The opinion
UNITED STATES DISTRICT COURT
. MIDDLE DISTRICT OF FLORIDA
. JACKSONVILLE DIVISION .
COLAVITO ANTON BELL,
Petitioner,
Vv. Case No. 3:22-cv-1210-HES-LUL
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al., .
□□ ‘Respondents. oe
“LStatus
Petitioner Colavito Anton Bell, an inmate of the Florida penal system,
initiated this action by filing a Petition for Writ of Habeas Corpus under
28 U.S.C. § 2254. (Doc, 1).1 In the Petition, Bell challenges a 2012 state court
judgment of conviction in Duval County for first-degree murder. He raises
five grounds for relief. (Doc. 1 at 5-12). Respondents submitted □□□□
memorandum in opposition to the Petition with exhibits. (Doc. 13). Bell filed -
1 For purposes of reference to pleadings and exhibits, the Court will cite the
document page numbers assigned by the Court’s electronic docketing system.
II. Relevant Procedural History
An indictment charged Bell with first-degree murder, (Doc, 13-3 at 40).
The indictment alleged that Bell killed Christopher Oney with a firearm.
(Doc. 18-3 at 40).
At trial, Oney’s fiance testified that Bell and Oney, whose nickname
was Chip, worked as truck drivers and that she worked as a dispatcher at the
company that contracted Bell and Oney to transport patio stones. (Doc. 13-3
at 419-23). She testified that Bell knew where Oney parked his truck at
‘night. (Doe. 13-3 at 424). On January 23, 2008, in the early morning, Oney’s □
fiance spoke with Oney on the telephone while he drove to pick up his truck
for work. (Doc. 13-3 at 428), During the conversation, Oney’s fiance heard a
loud noise and heard Oney exclaim, “Oh, shit!” (Doc. 13-3 at 427-28). Oney’s
fiance drove to the lot where Oney kept his truck, found Oney on the ground
bleeding, and called 911. (Doc.. 13-3 at 429-31). A paramedic observed
gunshot wounds to Oney’s head. (Doc. 13-3 at 524-25). A medical examiner
opined that the gunshots, which were inflicted at close range, caused Oney's □ □
death. (Doc. 13-8 at 861, 864-65). ee oe oo □□
In the early morning on the day of the shooting, a district manager for
a newspaper drove by the lot where Oney parked his truck. (Doc. 13-3 at
457-62). The district manager saw a small, yellow sports car with tinted
windows, a silver sticker on the driver’s window, markings on the doors that
looked like flares, and two big mufflers on the back. (Doc. 138-3 at
463-64, 467). Oney’s fiance testified that Bell owned a yellow car with black
stripes, tinted windows, and decals of a skull and crossbones on the side of
the doors. (Doc. 13-3 ‘at 440). A detective showed the district manager a
picture of Bell's cat (Doc. 13-3 at 494-96, 507-09), and the district manager
identified Bell’s car as the car that he saw that morning. oe. 13-3 at
472—74). A crime laboratory analyst testified that tire impressions found on a
driveway near the lot where Oney parked his truck were consistent with the
tires on Bell’s car. (Doc. 13-3 at 492, 617—24, 636-38, 647-49, 804-10).
A site manager of the company that contracted with Bell and Oney
testified that the dispatcher, who was Oney’s girlfriend, had discretion to
assign work to whomever she chose. (Doe. 13-3 at 566-57). He testified that □
some truck drivers were preferred over other drivers and that the company
‘never guaranteed a driver a certain amount of work: Woe. 13-3 at 558). He
testified that Bell complained to him about the amount of work that the
_ dispatcher assigned him. (Doc. 13-3 at 559-6 1). Also, Oney’s fiance confirmed
that Bell had complained, (Doc. 13-3 at 451-52). Bell started working for the
company two years before Oney. (Doc. 13-3 at 577). However, Oney earned
$46,000.00 more than Bell in 2007, the year before the shooting. (Doc. 13-3 at
577-78). At the end of 2007 and the beginning of 2008, Bell told his sister
that work was difficult because the price of gasoline had increased, that one
of his trucking contracts had terminated, and that he experienced problems
with another contract. (Doc. 13-3 at. 705-06). Dot. □ □
Bells ‘ex-girlfriend testified that, on January 24, 2008 in the early □
morning, Bell called her on the telephone and asked to. come over to her
home. (Doc. 13-3 at 672-73). She testified that she was not expecting a call
from him and that, when he arrived, he looked frightened. (Doe. 13-3 at
673-75). She testified that she asked him if he had hurt someone, and he
responded, “No.” (Doc. 13-3 at 676). She testified that she asked him if he had
killed somedine, and he responded, “Yes.” (Doe. 13-3 at 676). She testified that
Bell asked for the names and telephone numbers of her family who lived in □
Jamaica because he planned to leave the country, (Doe. 13-3 at 677). □□□
testified that she : refused and told Bell that authorities in Jamaica would
extradite him to the United States. (Doc. 13-3 at 677-78). She testified that
Bell became upset, replied that he instead would flee to Belize, and left. (Doc.
13-3 at 678). Me □□
Adlai Bell, Bell’s brother who lived in Arizona and who had eleven
convictions for felony crimes and crimes of dishonesty, testified that Bell
unexpectedly visited him. (Doc. 13-3 at 726-28). Adlai testified that, during
the visit, Bell confessed that he had driven to the truck yard where he
worked and shot a person named Chip two or three times in the upper body.
(Doc. 13-3 at 729-30). Adlai testified that Bell admitted that he threw ina
river both the clothes that he wore during the shooting and the gun. that he
used to shoot Chip. Doe, 13-3 at 781). Adlai testified that Bell stated that he □
drove to the truck yard in his yellow sedan. (Doe. 13-3 at 732). Adlai testified —
that Bell stated ‘that he initially went to the truck yard to shoot the
dispatcher because of problems with her at work and instead shot Chip, the
dispatcher’s boyfriend, because he could not find the dispatcher. (Doc. 13-3 at
732-83). Adlai testified that Bell stayed with him in Arizona for about two
months. (Doe 13-8 at 734). . : fobs . □
On cross-examination, Adlai admitted that he felt resentful because □ □
Bell earned more ‘poney than him, was the oxecutor of an estate worth □□
$300,000.00 that belonged to their aunt and uncle, refused to lend him money
during probate, and refused to allow him to stay in a home that he co-owned
unless he paid $500.00 a month for rent. (Doc. 13-3 at 744-49). □
Bell’s fiance testified that in June of 2009, when she was moving her
belongings out of the home that she shared with Bell because she wanted to
end her relationship with him, Bell begged her to stay, apologized for “what
he did,” and wished he could “take it back.” (Doc. 13-3 at 782-83). Bell’s
fiance testified that Bell did not specifically apologize for the murder, but she
believed that Bell meant to apologize for the murder. (Doc. 13-3 at 784-85).
On cross-examination, Bell’s fiance testified that she was not certain that
Bell apologized for the murder and admitted that Bell could have intended to
apologize for infidelity. (Doc. 13-3 at 787-88, 790).
During the defense’s case, Bell’s friend who drove a truck testified that
a truck driver’s income fluctuates from week to week and month to month.
(Doc. 13-3 at 895). Also, he testified that he had never seen Bell unable to
control his temper. (Doc. 13-3 at 896-97). A detective testified that □□□□ □
voluntarily came to the sheriff S. office for an interview, and the detective
attempted to obtain a confession. Doe, 13-3 at 907-16). After the interview,
the detective allowed Bell to ‘g0 home ‘because at that time the evidence □□
known to the detective did not support Bell’s arrest. (Doc. 13-3 at 918). The
detective testified that he submitted many items for testing and did not □
discover any incriminating physical evidence, (Doc. 13-3 at 915-16, 919-21, □
944). The detective testified that, during the evening of the shooting. Bell’s
mobile telephone connected to a cell tower away from the truck lot and closer
to Bell’s home. (Doc. 13-3 at 916-17). However, he explained that, at the
time, a mobile telephone connected to a tower only during a telephone call.
(Doc. 18-3 at 917).
OA jury found Bell guilty of first-degree murder and further determined □
_ that.Bell discharged a firearm, that caused death or great bodily harm. (Doe. □□
18-8 at. 73). The trial judge sentenced Bell to life in prison, (Doc. 13-3. at
230-35). The state appellate court affirmed Bell’s conviction and sentence in
a decision without a written opinion. (Doc. 18-8 at 2).
Bell filed a motion for post-conviction relief (Doc. 13-10 at 6-26) and a
supplement to his post-conviction motion. (Doc. | 13-10 at. 82-99). The
post-conviction court, dismissed as untimely the claim in the supplement and
denied the remaining claims in the. post-conviction motion without an.
evidentiary hearing (Doe. 13-10 at 130-42). The state appellate court □ :
affirmed in a decision without a written opinion. Doe. 13-18). Bell’s federal □□□
petition followed.
III. One-Year Limitations Period vo
This action was timely filed within the one-year limitations period. See
28 U.S.C. § 2244(d).
IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner to
establish the need for a federal evidentiary hearing. Chavez v. Sec’y, Fla.
Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to
grant an evidentiary hearing, a federal court must consider whether such a
‘hearing could enable an. applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief.” Schriro v. □□
Landrigan, 850 U.S. 465, 474 (2007). Jones v. Sec'y, Fla, Dep tof Corr. 834
F.3d 1299, 1818-19 (11th Cir. 2016). “It follows that if the record refutes the
applicant’s factual allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary hearing.” Schriro, 550 US. at
474, The pertinent facts of this case are fully developed in the record before
the Court. Because the Court can adequately assess Bell’s claims without □
further factual development, an evidentiary hearing will not be conducted,
Parner v. Crosby, 339 F.3d 1247, 1275 (11th Gir, 2008). EE
OY. Governing Legal Principles
OS A Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner’s federal petition for habeas corpus. Lindh v.
Murphy, 521 U.S. 320, 8327 (1997). “The purpose of AEDPA is to ensure that
federal habeas relief functions as a guard against extreme malfunctions in
the state criminal justice systems, and not as a means of error correction.”
Greene v. Fisher, 565. U.S. 34, 38 (2011) (citation and: internal quotations
omitted). As such, federal habeas review of final state court decisions is □□
“greatly circumscribed and highly deferential.” Thomas v. Atty Gen., 992
F.3d 1162, 1184 (11th Cir. 2021) (citation omitted).
The first task of the federal habeas court is to identify the last state
court decision, if any, that adjudicated the claim on the merits. Wilson _v.
Sellers, 584 U.S. 122, 125 (2018). The state court need not issue a written
opinion explaining its rationale in. order for. the state court's. decision to.
qualify as an adjudication on the merits. Harringt on Vv. Richter, 562 US. 86, □ □
100 2019) Where the state court's adjudication on . merits is
unaccompanied by an explanation, “the federal court ‘should ‘look through’ □□
the unexplained decision to the last related state-court decision that does
provide a relevant rationale [and] presume that the unexplained decision
adopted the same reasoning.” Wilson, 584 U.S, at 125.
The presumption may be rebutted by showing that the higher state
court’s adjudication most likely relied on different grounds than the lower
state court’s reasoned decision, such as persuasive alternative grounds that
were briefed or argued to the higher court or obvious in the record it
reviewed. Wilson, 584 U.S. at 125-26.
If the claim was “adjudicated on the merits” in state court, § 2254(d)
bars. relitigation of the claim unless the .state court’s decision (1) “was
contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States;” or
(2) “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
The Eleventh Circuit describes the limited scope of federal review
pursuant to § 2254(d) follows:
□ First, § 2254(d)(1) :provides for federal review for oo □
+s. ¢laims of state courts’ erroneous legal conclusions. As
«explained by the Supreme Court in Williams vo 2 □□
□□ Taylor, 529 U.S. 362 (2000), § 2254(d)(1) consists of
two distinct clauses: a “contrary to” clause and an
“anreasonable application” clause. The “contrary to” □
clause allows for relief only “if the state court arrives -
at a conclusion opposite to that reached by [the
10
Supreme] Court on a question of law or if the state _
‘court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable
facts.” Id. at 413 (plurality opinion). The
“ynreasonable application” clause allows for relief
only “if the state court identifies the correct
governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to
the facts of the prisoner’s case.” Id.
Second, § 2254(d)(2) provides for federal review for
claims of state courts’ erroneous factual
_ determinations. Section 2254(d)(2) allows federal
courts to grant relief only if the state court’s denial of
the petitioner’s claim “was based on an unreasonable
oo determination of the facts in light of the evidence . =~
presented in the State court proceeding.” 28 U.S.C, 000.00
§ 2254(d)(2). The Supreme Court has not yet defined
-§ 2254(d)(2)’s “precise relationship” to § 2254()(1),
which imposes a burden on the petitioner to rebut the
state court’s factual findings “by clear and convincing
evidence.” See Burt v. Titlow, 184 8. Ct. 10, 15 (2013);
accord Brumfield _v. Cain, 185 8S. Ct. 2269, 2282
(2015). Whatever that “precise relationship” may be,
“a state-court factual determination is not
unreasonable merely because the federal habeas
‘court would have reached a different conclusion in
the first instance.” Titlow, 184.8. Ct, at 15 (quoting ==
+: Wood v. Allen, 558 U.S. 290, 301(2010)).
-Tharpe v. Warden, 834 F.3d 1323, 1387 (11th Cir. 2016)... © □□□
“Review under § 2254(d)(1) is limited to the record that was before □□□□
state court that adjudicated the claim on the merits.” Cullen v. Pinholster,
563 U.S. 170, 181 (2011). See also Landers v. Warden, Att'y Gen. of Ala.,
11
71176 F.3d 1288, 1295 (11th Cir. 2015) (extending the holding in Pinholster to
g225).
“AEDPA erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,
571 U.S. 12, 19 (2013). “Federal courts may grant habeas relief only when a
state court blundered in a manner so ‘well understood and comprehended in
existing law’ and ‘was so lacking in justification’ that ‘there is no possibility
fairminded jurists could disagree.” Tharpe, 834 F.3d at 1338 (quoting .
Richter, 562 US. at 102-08). This standard is “meant to be” a “difficult? one
to meet. Richter, 562 US. at 102, Thus, to the extent that the petitioner's □□
claims were adjudicated on the merits in the state courts, they must be.
evaluated under 28 U.S.C. § 2254(d).
B. Exhaustion/Procedural Default . □
There are prerequisites to federal habeas review. Before bringing a .
§ 2254 habeas action in federal court, a petitioner must exhaust all state □□□□
court remedies that. are available for challenging his state ‘conviction, □ :
28 USC. 8 2254()(1)(A). To properly exhaust a claim, “state prisoners must
give the state courts one full opportunity to resolve any constitutional issues” □□
by invoking one complete round of the State’s established appellate review
12
process.” O'Sullivan v. Boerckel, 526 U.S, 838, 845 (1999). “[E]xhaustion of
state remedies requires that petitioners ‘fairly presen[t] federal claims to the ©
state courts in order to give the State the ‘opportunity to pass upon and
correct alleged violations of its prisoners’ federal rights.” Duncan v. Henry,
513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).
“In habeas, the sanction for failing to exhaust properly (preclusion of
review in federal court) is [ ] procedural default.” Woodford v. Ngo, 548 U.S.
81, 92 (2006). “[I]f the petitioner procedurally defaulted [a] claim[ ], the □
prisoner generally is barred from asserting [the] claim[ 1 ina federal habeas □
proceeding.” Woodford, 548 US. at 93. Also, state court's invocation of a □ □
procedural rule to deny a prisoner’s claim{ ] precludes federal review of the
claim[ ] if, among other requisites, the state procedural rule is a nonfederal
ground adequate to support the judgment and the rule is firmly established
and consistently followed.” Martinez v. Ryan, 566 U.S.1,9 (2012).
eA prisoner may obtain federal review of a defaulted claim by showing
cause for the default and prejudice from a violation of federal law.” Martinez,
566 US. at 10. Also, “Fin certain exceptional cases involving a compelling □
claim of actual innocence, [] the state procedural default rule is not a bar to a □□
federal habeas corpus petition.” House v. Bell, 547 U.S. 518, 522 (2006).
13
“[P]risoners asserting innocence as a gateway to defaulted claims must □
establish that, in light of new evidence, ‘it is more likely than not that no
reasonable juror would have found petitioner euilty beyond a reasonable.
doubt.” House, 547 U.S. at 536-37 (quoting Schlup v. Delo, 513 U.S. 298, 327
(1995)). “To be credible, such a claim requires petitioner to support his
allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific eviderice, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.” Schiup, 513 U.S. at 324.
With. the rarity of . such evidence, in ‘most cases, . allegations of actual □
innocence aire ultimately gummaicily rejected. Schlup, 513 US. at 824
C. Ineffective Assistance of Trial Counsel
“The Sixth Amendment guarantees criminal defendants the effective
assistance of counsel. That right is denied when a defense attorney’s
performance falls below an objective standard of reasonableness and thereby
prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) □□□□□
‘curiam) (first citing Wiggins v. Smith, 539 US. 510, 521 (2003); and then
Oe To ‘establish deficient performance, a “person” be □□
challenging a conviction must show that “counsel’s
representation fell below an objective standard of
reasonableness.” [Strickland] 466 U.S. at 688.
14
A court considering a claim of ineffective assistance □
must apply a “strong presumption” that counsel's □
representation was within the “wide range” of
_ reasonable professional assistance. Id., at 689. The
challenger’s burden is to show “that counsel made
errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id., at 687.
With respect to prejudice, a challenger must
demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
_ probability is a probability sufficient to undermine
confidence in the outcome.” Id., at 694. It is not
enough “to show that the errors had some conceivable
. effect on the outcome of the proceeding.” .Id., at 6938... □□
--"..---Counsel’s errors must be “so serious as to deprive the
defendant of a fair trial, a trial whose result : □□
reliable.” Id., at 687...
Richter, 562 U.S. at 104. “[T]here is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in the same order or even
to address both components of the inquiry if the defendant makes an
insufficient showing on one.” Strickland, 466 U.S. at 697. “If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient, □
prejudice, which we expect will often be 80, that course should be followed.”
A state court’s adjudication of an ineffectiveness claim is accorded great
deference.
15
“[T]he standard for judging counsel’s representation
is a most deferential one.” Richter, 131 5. Ct. at 788.
But “[e]stablishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all
the more difficult. The standards created by
Strickland and § 2254(d) are both highly deferential,
and when the two apply in tandem, review is doubly
so.” Id. (citations and quotation marks omitted). “The
question is not whether a federal court believes the
state court’s determination under the Strickland
standard was incorrect but whether that
determination was unreasonable—a substantially
higher threshold.” Knowles v. Mirzayance, 556 U.S.
111, 123 (2009) (quotation marks omitted). If there is □
_ “any reasonable argument that counsel satisfied □ .
Strickland’s deferential standard,” then a federal oe
<->. court may not disturb a-state-court decision denying... =...
+ the claim. Richter, 1318. Ct. at 788. 00
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014). “Given □□□
double deference due, it is a ‘rare case in which an ineffective assistance of
counsel claim that was denied on the merits in state court is found to merit
relief in a federal habeas proceeding.” Nance v. Warden, Ga. Diagnostic
Prison, 922 F.3d 1298, 1303 (11th Cir, 2019) (citation omitted). As such,
“[s}urmounting Strickland’s high bar is never an. easy task.” Padilla ve
16
‘VI. Findings of Fact and Conclusions of Law _ .
A. Ground One a □
Bell asserts that trial counsel deficiently performed by not objecting to
testimony by Bell’s fiance that she believed that Beil apologized for
committing the murder. (Doc. 1 at 5).
The post-conviction court denied the claim after determining that Bell
failed to demonstrate deficient performance and prejudice under Strickland.
(Doc. 13-10 at 132-36), For deficient performance, the post-conviction court
determined that an objection to the testimony by Bell's exegirlfriend would □
not hava □ succeeded because the testimony was admissible. The ‘post-
conviction court concluded that the prosecutor impeached Bell's fiance about
“her perspective on the meaning of a phrase from a one-on-one conversation
between [her] and [Bell].” (Doc. 13-10 at 134). The post-conviction court
further concluded that, even if the testimony was not impeachment, the
testimony. was admissible. as .lay opinion under Section 90.701, Florida
Statutes. (Doc. 13-10 at 133-34), . : □
Whether the testimony was admissible at trial is an issue of state law,
and a state courts determination of state law receives deference in federal □□
court. Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1295 (1lith Cir. 2017)
17
(“{[A]lthough ‘the issue of ineffective assistance—even when based on the
failure of counsel to. raise a state law claim—is one of constitutional
dimension,’ we ‘must defer to the state’s construction of its own law’ when the
validity of the claim that [ ] counsel failed to raise turns on state law.”)
(citation omitted).
Diane Lockhart, Bell’s fiance, testified that after the murder, when she
was moving out of the home that she shared with Bell, Bell “made a
confession of some sort.” (Doc. 13-3 at 788). Lockhart - described Bell's
statements as follows (Doc. 13-3 at 783-85): ate ees
_-fProsecutor:] . . What did the defendant say to you -
□□ inthatregard?
[Lockhart:] Well, we were talking, I had
informed Mr. Bell that I was going
to leave, that we needed to separate
for awhile and he just started
saying, “Please don’t go,” and
. . . I said, you know, “I need to go,” you
know, “to clear my mind.” “Please
‘don’t. go.” “But. need to go.” “Tm =.
a sorry for what I did. Iffcouldtake
es it-back, I would,” and I stopped him □□
Ba and covered my ears, and Tleftthe os
Prosecutor] And from knowing the defendantin
. the context of the conversation you
were having with the defendant
18
apologizing to you, what was he
apologizing about? _
{[Lockhart:] I don't know what he was
apologizing about. I stopped him.
[Prosecutor:] Ms. Lockhart, do you recall giving a
sworn statement in this matter?
[Lockhart:] Yes, I did.
[Prosecutor:] Do you recall this question by
rayself and your answer? .
fLockhart:} [Question:] Okay. “Was it your 0...
understanding from the context of
os your relationship andthe context of =.
-your conversation with him at that □□
time that what he was saying he
was sorry about wasthe murder?”
. Your answer: “To my knowledge,
I believe that’s what he was saying
he was sorry for.”
[Prosecutor:] Do you recall that question and
a a thatamswer2
ee, ‘[Prosecutor:] _. Was that the truth when yousaid
. fLockhart:] Yes.
19
Because Lockhart did not testify at a trial or a hearing and was not
subject to cross-examination when she made the prior statement, the
prosecutor did not introduce the statement as substantive evidence.
§ 90.801(2)(a), Fla. Stat. State v. Green, 667 So. 2d 756, 759-60 (Fla. 1995);
State v. Delgado-Santos, 497 So, 2d 1199, 1199 (Fla. 1986). The prosecutor
instead impeached Lockhart with a prior inconsistent statement. “The theory
of admissibility is not that the prior statement is true and the in-court
testimony is false, but that because the witness has not told the truth in one
of the statements, the jury should disbelieve both statements.” Pearoe We.
State, 880 So. ad 561, 569 (Fla. 2004). Because Lockhart’s testimony at trial □ □
materially differed from her sworn statement. with the prosecutor, an
objection to the testimony would not have succeeded. Pearce, 880 So. 2d at
569. Consequently, trial counsel did not deficiently perform. Pinkney, 876
F.3d at 1297 (“[A]n attorney will not be held to have performed deficiently
failing to perform a futile .act, one that would not have gotten his client any. . □ □
For projudice under Strickland, the post-conviction court determined
that Lockhaxt's testimony about Bell’s admission of guilt was cumulative to
other evidence admitted at trial. (Doc. 13-10 at 135-36). Doreth Campbell,
20
Bell's ex-girlfriend, testified that, after the murder, Bell and his sisters came □
over to her home at five o'clock in the morning and that Bell admitted that he
had killed a person. (Doc. 13-3 at 674-76). Adlai Bell, Bell’s brother, testified
that, after the murder, Bell traveled by plane to Arizona to visit him and told
him that he had killed a person named “Chip” in the early morning at the
yard where he worked by shooting him two or three times in the upper body.
(Doc. 13-3 at 728-31). Because Lockhart’s testimony about Bell’s ambiguous
admission was cumulative to these other more detailed confessions, Bell
failed to demonstrate prejudice under Strickland. Meders v. Warden, Ga,
Diagnostic Prison, 911 F.8d 1335, 1355 (11th Cir. 2019). ee □□
Also, on cross-examination, Lockhart admitted that, when Bell
apologized to her, she had suspected that Bell began a relationship with
another woman. (Doc. 13-3 at 787). She testified that she was not certain
whether Bell apologized for the murder or for the infidelity. (Doe. 13-3 at
788). She testified that she was. confused during the interview when the □
prosecutor asked if Bell apologized for the murder. (Doe. 13:3 789-90), She
admitted that she dia not end her relationship with Bell b é cause of □□□ □
murder. (Doc. 13-3 at 788-90). Because trial counsel raised ‘serious doubt
that Bell apologized to his fiance for the murder, Bell cannot demonstrate a
21
reasonable probability that the outcome at trial would change if trial counsel
had objected. Consequently, the post-conviction court did not unreasonably
deny the claim. Strickland, 466 U.S. at 694.
Ground One is DENIED.
B. Ground Two
Bell asserts that trial counsel deficiently performed by not
investigating, cross-examining, and impeaching Lockhart about Bell's
infidelity and the disease that Bell sexually transmitted to her. (Doc. 1 at 7).
‘The post-conviction court denied the claim because Bell speculated that □
the infidelity and the sexually transmitted disease ‘motivated Lockhart to
testify against him. (Doc. 13-10 at 136). Also, for prejudice under Strickland,
the post-conviction court determined that Bell failed to demonstrate a
reasonable probability that the outcome at trial would have changed if trial
counsel had further cross-examined Lockhart because other compelling |
evidence proved Bell’s guilt. (Doc. 13-10 at 186-37). fe □□
‘Bell presented no evidence either that he suffered from a sexually
transmitted disease or that he transmitted the disease to Lockhart. Because
22
as to what evidence could have been revealed by further investigation,” the
claim is meritless. Aldrich v. Wainwright, 777 F.2d 630, 636 (Lith Cir. 1985).
Also, as explained above, trial counsel cross-examined Lockhart about
Bell’s infidelity during their relationship. (Doc. 13-3 at 787). Lockhart
testified that, when she was moving out of the home that she shared with
Bell, she no longer trusted Bell because she suspected infidelity. (Doc. 13-3 at
787-88). She testified that she decided to end her relationship with Bell
because of the lack of trust. (Doc. 13-3 at 788-89), Consequently, Bell’s claim
based on the infidelity is meritless.
□□ Lastly, on redirect examination, Lockhart insisted that, during her
interview with the detective and the prosecutor, the prosecutor did not want
her to speak about the infidelity. (Doc. 13-3 at 792). Lockhart testified that
she did not voluntarily come to the prosecutor's office for an interview or to □
court to testify at trial and that the prosecutor subpoenaed her to interview
and to testify. (Doc. 13-3 at 793). This testimony convincingly rebuts Bell’s □□
contention that Lockhart testified against him because of the infidelity and □□
the sexually transmitted disease. a ee
Because Bell fails to demonstrate a reasonable probability that the □□
outcome at trial would have changed if trial counsel had further impeached
23
Lockhart, the post-conviction court did not unreasonably deny the claim.
Strickland, 466 U.S. at 694. Johnson v. Alabama, 256 F.3d 1156, 1185-87 □
(Lith Cir, 2001).
Ground Two is DENIED.
C. Ground Three
Bell asserts that trial counsel deficiently performed at trial by
“opening the door” to the admission of evidence that Bell wanted to kill
Charlie Bell, his brother. (Doe. 1 at 8). :
_ On direct examination, Adlai Bell, Bell’s brother, testified that, after □ □
the murder, Bell traveled to Arizona and confessed that he killed a person □
named “Chip” by shooting him two or three times in the upper part of the
body. (Doc. 13-3 at 128-30). Also, Adlai testified that he and Bell had a third
brother named Charlie. (Doc. 13-3 at 727).
On cross-examination, Adlai testified that, when a detective contacted
him. about the. murder, he spoke. with Charlie. (Doc. 13-3 at 738-39). He |
testified that, during the conversation, Charlie wore a recording device
provided by the detective. (Doc. 18-3 at 739-40). He testified that Charlie told □
that Bell killed a coworker. (Doe. 18-3 at 740, 742), SALAS
24
Adlai further testified that, sometimes, the relationship between him,
Bell, and Charlie strained. (Doe. 13-3 at 742-48). He testified that Bell was
financially more successful than him and Charlie. (Doc, 13-3 at 743-44). He
testified that he, Bell, and Charlie jointly inherited $300,000.00, and Bell was
appointed the executor of the estate. (Doc. 13-3 at 745). He testified that he
and Charlie asked Bell for money from the estate before probate concluded
and that Bell refused to lend them money. (Doc. 13-3 at 745-46). Bell’s
refusal angered Adlai and Charlie because both knew that Bell had money to
lend. (Doc. 13-3 at 746-47). Bell purchased a trailer for $47,000.00. (Doc. 13:3 □□
at 750-51). 8 . ~
Trial counsel asked Adlai whether he “of any situation where
[Bell] did some things to Charlie that would make Charlie go to extremes?”
(Doc. 18-3 at 754). The prosecutor objected, and the trial judge sustained the
objection and determined that the testimony about Charlie was not relevant
because the prosecutor did not intend to call Charlie to. testify. (Doe. 18-3. at.
758). a Eee ts Boek) . Meds □□
"rial counsel asked Adlai when he learned that Charlie wore the
recording device, and Adlai responded that he did not know the day when he □□
25
learned about the device but added that he prevented Bell from killing
Charlie when he and Bell learned about the device (Doc. 13-3 at 759-60):
[Trial counsel:] Now, you become aware at some
time, did you not, that your
conversations between Charlie Bell
and yourself were being bugged,
correct, wired?
[Adlai:] Yes.
[Trial counsel:] And Charlie was wired?
[Adlai:] Yes. □□□
_...... [Trial counsel:] And you discovered that how soon □□
[Adlai] Tean’t—I can’t give you a date on it Bo
but I—we all seemed to be able to
discover it at the same time and at
that time I had to stop [Bell] from
killing Charlie.
[Trial counsel:] [’m sorry? .
[Adlai] I said at, the time when it was □ □
oe discovered that Charlie was wired, . □□□□□□□□
when it seemed that we were all in —
“the same room at that time, and
: . | [Trial counsel:]:. ‘Sir, you're testifying now that [Bell] □□□ □
wanted to kill Charlieas well? ©
fAdlai:] Yes.
26
Adlai admitted that he had “no proof’ that Bell intended to kill Charlie
(Doc. 13-8 at 763,770);
[Trial counsel:] So you have—you agree you have a
motive to testify and your hope that
that might bring you, quote, reward
money?
[Adlai:] Well, it could—it’s a couple of
things involved in that because if
you didn’t—if [Bell] continued to
roll like he was rolling he would
have killed Charlie, so I mean it
was more so protection of my other
Oe [Trial counsél:] Sir, you have.no proof that [Bell] oe
□□ ever had the intent of Killimg © □ □
Charlie, doyou?. =
[Adlai:] No, sir, I don’t.
[Trial counsel:] Do you?
[Adlai:] I don’t have any proof of anything □ □
that [occurred] here.
[Trial counsel:] Right. cope a es
[Adlai] Twas in Arizona. □□
On redirect examination, the prosecutor asked Adlai why he believed
‘that Bell wanted to kill Charlie, and Adlai responded that Bell wanted to kill
Charlie because of the recording device. (Doc. 13-3 at 772). He testified that
27
he learned from his sister about Bell’s intent to kill Charlie. (Doc. 13-3 at
772). Trial counsel objected to the testimony based on hearsay, and the trial
judge sustained the objection. (Doc. 13-3 at 772).
At a sidebar conference, the trial judge rejected the prosecutor's
argument that trial counsel had opened the door to the hearsay testimony.
(Doc. 13-3 at 774). The trial judge further instructed the jury to disregard the
testimony (Doc. 13-3 at 775):
_ [Trial judge:] Ladies and gentlemen, the jury will □
disregard the testimony of the □□
a WEbNeSS as based. on. hearsay,
□□ regarding the defendant's alleged
intent to kall Charlie Bell.
The post-conviction court denied the ineffective assistance of counsel
claim after determining that trial counsel did not open the door to the
testimony by Adlai about Bell’s intent to kill Charlie. (Doc. 13-10 at 138). The
post-conviction court. concluded that Adlai volunteered the testimony without
a question by trial counsel. (Doc. 13-10. at 138). The post-conviction court
further determined that, : after Adlai testified about Bell's intent to □□□□
“Charlie, trial counsel erose-exainined Adlai to establish that Adlai had “no
proof” ‘that Bell intended ‘to kill Charlie. Woe. 13-10 ‘at 138). □□□□
post-conviction court further determined that, on redirect examination, trial
28
counsel successfully objected to any further testimony about Bell’s intent to
kill Charlie and obtained a curative instruction. (Doc. 13-10 at 138-39). □□
Whether trial counsel opened the door to the testimony by Adlai about
Bell’s intent to kill Charlie is an issue of state law, and a state court’s
determination of state law receives deference in federal court. Pinkney, 876
F.3d at 1295. The record supports the post-conviction court’s determination
that trial counsel did not open the door. 28 U.S.C. § 2254(d)(2). Trial counsel
asked Adlai when he learned that Charlie used the recording device. (Doc.
at 159). Adlai responded that he did not know the date when he learned
about the recording device and that he and Bell learned about the recording □
device on the came day. (Doc. 13-3 at 759). Adlai added that “at that time,
had to stop [Bell] from killing Charlie.” (Doc. 13-3 at 759-60). Because
Adlai’s response about Bell attempting to kill Charlie did not answer trial
“counsel’s question, trial counsel did not deficiently perform. Bozeman Vv.
State, 698 So. 2d 629, 631 (Fla. 4th DCA 1997) CTo open the door to.evidence. □
of prior bad. acts, the defense must first offer misleading testimony or make a □
specific factual assertion which the state has the right to correct so that the □□
will not be misled”). pa MELAS ay as . i
29
Also, on cross-examination, Adlai admitted that he had “no proof” of
Bell’s intent to kill Charlie. (Doc. 13-3 at 763). The trial judge instructed the
jury to disregard Adlai’s testimony about Bell’s intent to kill Charlie. Doe,
13-3 at 775). This Court presumes that the jury followed the trial judge’s
instruction. Samia v. United States, 599 U.S. 635, 646 (2023). During closing,
the prosecutor complied with the trial judge’s ruling and did not mention the
testimony about Bell’s intent to kill Charlie. (Doc. 13-3 at 1013-15, 1066-67).
Consequently, Bell failed to demonstrate a reasonable. probability the
outcome at trial would have changed if Adlai had not testified about Bell’s..
intent to kill Charlie. Strickland, 466US.ab604. □□
Because Bell failed to demonstrate either deficient performance or
prejudice under Strickland, the post-conviction court did not unreasonably
deny the claim. .
Ground Three is DENIED. □
D. Ground Four
Bell asserts that trial counsel deficiently performed by not
investigating and presenting evidence of his wealth to rebut the prosecutor's
argument that he murdered Oley for financial reasons. (Doc. 1 at 10).
The post-conviction court denied the claim because evidence of Bell’s
wealth was introduced at trial. (Doc. 13-10 at 189-40). A financial controller
for the company that contracted with Bell testified that the company paid
Bell. $10,800.00 in 2005, $86,000.00 in 2006, $120,000.00 in 2007, and
$9,600.00 in 2008, (Doc. 13-3 at 577). The murder occurred on January
2008. (Doe. 13-3 at 426-80). CEN ae . ms Lobe □ □□
On cross-examination, Adlai Bell, Bell’s brother, testified that Bell was
“the more successful of all the siblings” and that he and the other siblings
asked Bell for money. (Doc. 13-3 at 743-44). He testified that Bell helped his
siblings if Bell could. (Doc. 18-3 at 744). He testified that Bell was appointed
the executor of their aunt and uncle’s estate worth $300,000.00 and that Bell
purchased a trailer for $47,000.00. (Doc. 13-3 at 745, 760-51). Lockhart, □
Bell’s fiance, testified that Bell always saved money and earned other income
from a rental property and denied that Bell became angry because of the lack □□□
of work at the trucking company. (Doc. 13-3 at 791-92),
31
In his motion for post-conviction relief, Bell contended that he owned
two trucks and. six trailers, three cars, two motorcycles, an investment
portfolio, rental properties, and a home. (Doc. 13-10 at 22-23). He further
contended that he received income from sources other than truck driving,
planned to inherit additional money, and did not incur significant debt. (Doc.
13-10 at 22-23). However, Bell failed to submit with his motion any evidence
that substantiated these allegations. Because “[s]peculation is insufficient to
carry the burden of a habeas corpus petitioner as to what evidence could have
been revealed by further. investigation,” Bell failed to demonstrate deficient
performance under Strickland, Aldrich, 777 F.2d at 636.
Also, because any additional evidence of Bell’s wealth is cumulative to
the evidence admitted at trial, Bell failed to demonstrate prejudice under
Strickland. Consequently, the post-conviction court did not unreasonably
deny the claim. Guardado v. Sec’y, Fla. Dep’t of Corr., 112 F.4th 958, □□□
(1th Cir. 2024) (“{[N]o prejudice can result from the exclusion of cumulative □□
‘evidence. [E]vidence presented in postconviction proceedings is cumulative or
largely cumulative to : that presented at trial when it tells a more detailed
version of the same story 2 ul provides “iore or better examples[] or
32
amplifies the themes presented to the jury.”) (citations and internal _
quotations omitted). .
Ground Four is DENIED.
E. Ground Five
Bell asserts that trial counsel deficiently performed by not objecting to
Juror R.H. serving on the jury after trial counsel struck the juror during jury
selection. (Doc. 1 at 12).
Respondents assert that the claim is procedurally defaulted because .
the post-conviction court dismissed the claina as untimely. (Doc. 13 at 10~13).
Bell asserts that, under Martinez v. Ry an, 566 US. Al (2012), ineffective □
assistance of post-conviction counsel excuses the procedural default, (Doe. 19
at 4-8). For judicial economy, the Court will proceed to the merits of the
claim. Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (citing 28 U.S.C.
§ 2254(b)(2)).
_...During jury selection, trial counsel advised the trial judge that. he did
not accept Juror R.H. However, trial counsel failed to state that he either.
exercised a peremptory strike on the juror or requested dismissal of the juror
fon cause Die. 34 nt 208-04) One a Malta mee a □□
33
[Trial judge:] Moving on to juror number 29,
[Juror R.H.], acceptable to the □
State([?] □
{Prosecutor:] Yes, Your Honor[.]
[Trial judge:] Acceptable to the defense?
[Trial counsel:] One second.
(Counsel conferring with client.)
[Trial counsel:] No, sir.
[Trial judge:] Moving on to juror number 30,
a a [Juror M.], acceptable to the State? □□
After trial counsel exercised all his peremptory strikes, the trial judge □
read the names of the jurors who would serve, including Juror RH, and
asked trial counsel if the panel was acceptable without waiving any
objections. (Doc. 18-4 at 208). Trial counsel did not object to Juror R.H.
(Doc. 18-4 at 208). After the parties selected two alternate jurors, the trial
judge read the names of the jurors who would serve, including Juror R.H.,
and trial counsel did not object. (Doe. 13-4 at 211-12). oe □ .
After the potential jurors Jearned who would serve and learned that
they could not keep their telephones during trial, a selected juror expressed
concern because her baby was sick. (Doc. 13-4 at 215-16). Because the juror
failed to raise her concern earlier, the trial judge refused to excuse the juror,
34
instead gave the juror the telephone number for his judicial assistant, and
permitted the juror to share the telephone number with the person who cared
for the sick baby. (Doc. 13-4 at 216-17).
The next day, before the jury was sworn, trial counsel asked the trial
judge if the selected jurors could come into the courtroom because Bell
wanted to confirm who was selected as a juror (Doc. 13-3 at 366):
[Trial counsel:] Your Honor, would it be a great
imposition if we were to have the
. - jurors even before you swear them
+ in just to come and sit{;] [ ] my □□
a client [-]. just. needs to see the.
a oo: facefs]. I mean I—you know,
know there’s one for sure that =
we've agreed that we would have □□
struck, and that’s the lady whose
child has asthma.
[Trial judge:} She’s an alternate. That’s
{Juror M.M.] .
_ [Trial counsel:] Well, that’s an alternate. Oh, well,
. then we'll deal with—let’s. deal □
ee with—DI’m sorry. I didn’t know she... 7
was an alternate and that’s why
ee □ I guess if we could see them—if he
‘idea that he knows. but he'd feel. a
more comfortable ifthe could place 9 2 □
the face. 7 □□
35
The trial judge asked to first speak with the prosecutor and trial
counsel about reconsidering the denial of trial counsel’s requests to strike two
jurors for cause. (Doc. 13-3 at 366-368). After summarizing the rulings, the
trial judge asked trial counsel whether Bell was satisfied with the selected
jurors, and trial counsel responded that Bell was not satisfied. (Doc. 13-3 at
368). After hearing additional argument from the parties, the trial judge
reconsidered the rulings on the motions to strike as follows (Doc. 18-3 at 375):
[Trial judge:] All right. What I propose to do at □□□
. . this point is if we have all the
jurors, let’s hold them outside the ..
De courtroom, take care of all other =
preliminary matters, and then TN. □□
. bring the jurors in. I'll let you get a
look at them again, Mr. Fallis. □
Before [I bring them in, I'll tell you
how many, if any, I’m inclined to
allow you to strike, and we'll
handle it that way.
During the discussion, trial counsel did not mention Juror R.H.
‘After addressing other matters, the trial judge asked the jurors to come .
into the courtroom, twice identified each individual juror, and asked the □
jurors to leave the courtroom for a short recess. (Doc. 13-3 at 383-86).
trial judge asked trial counsel whether Bell accepted the selected jurors, and
36
trial counsel identified jurors whom Bell wanted to excuse (Doc. 18-3 at
387-89): oe
[Trial judge:] All right. Let the record reflect that
the jurors have left the courtroom.
What I propose is that the
attorneys, and the defendant can
reposition himself if he wants to
hear the argument, but that you
actually approach the clerk so that
we can have a slightly quiet
conversation. Not the clerk, but I
mean the court reporter. □
All the future sidebars will be over oe
es ....- there, Pm afraid. Mr. Fallis, is your □□
client content with the panel? Bae □□□□
[Trial counsel:] No, Your Honor. . □ □
[Trial judge:] Can you express the extent of his
discontent?
[Trial counsel:]. Yes, Your Honor. He—this was
from yesterday when I ran out of
. _peremptories. The gentleman
. . whose name we cannot pronounce =.
ee, WHO □□
ffrialjudge:] urrB] □□
> [Trial counsel:] —you can. That’s one, and once =
Pte Vag again, -Your - Honor, vhe has 9 2
problems with the alternate who
we spoke about earlier, the one
whose child has asthma.
37
[Trial judge:] All right. So he wants [Juror B.] .
stricken, is that correct?
[Trial counsel:] (Nods head affirmatively.)
[Trial judge:] And that’s the only one from the
panel that he wants stricken, is
that correct?
[Trial counsel:] Correct.
[Trial judge:] I’m prepared at this time to find
that iI should have © stricken
[Juror D.M.] and based on that I’m □
. prepared—I should have— | □
a _ [Trial counsel:] She's onthepanel. oe! □
. . [Trial judge:]. ‘I should have stricken [Juror D.M.] oe □□
for cause yesterday... Co
[Trial counsel:] Correct.
[Trial judge:] She was not sufficiently
rehabilitated based on my recent
reading of the case law. [ll allow
. you one peremptory challenge—
excuse me, one challenge for cause,
_ go.your request for an additional =. __. □□
os peremptory challenge is granted.
coli oo, Who do you want to exercise that
a [Trial counsel:] Well, the chances of the alternate. we □
“sitting areless than— = □□
[Trial judge:] We'll come to that in a second.
| 38
[Trial counsel:] Okay. [Juror B.]
[Trial judge:] So, Ill go ahead and—State, you
want to be heard?
[Prosecutor:] No, sir.
[Trial judge:] All right. PIL go ahead and grant
the strike for cause and [Juror B.]
will be excused—correct that. PU
grant the peremptory challenge.
1 should have granted a strike for
cause to [Juror D.M.] You have a
peremptory challenge with
. [Juror B.] TH grant the strike for
ne . cause. [Juror B.] will be dismissed. □ □
After dismissing Juror B. and denying trial counsel’s request to dismiss —
the alternate juror with the sick baby for cause, the trial judge asked trial
counsel whether Bell accepted the panel, and trial counsel confirmed that
Bell accepted the panel (Doc. 13-3 at 394-95):
{Trial judge:] So that the record is clear, you've
_ now discussed the issues with your □
_ client. Mr. Fallis, is that correct? □
□ [Trialcounsel:] Yes. □□
es : [Trial judge:] . He is satisfied and prepared to go. Ce
forward?
[Trial counsel:] : With the exception of my objection’ | □□
on the issue.
39
[Trial judge:] I’m sorry, Mr. Fallis, | was asking
whether or not after conferring
with your client, is he prepared to
go forward with this panel, is that
correct?
[Trial counsel:] Yes.
[Trial judge:] Okay. Subject to the objection you
raise with respect to the alternate,
is that correct?
[Trial counsel:] That is correct, Judge. .
Trial counsel did not mention Juror R.H.
ee Even if Bell initially asked trial counsel to exercise a peremptory strike. □□
on Juror RH, Bell learned the next day that Juror R.H. remained onthejury
panel and failed to again ask trial counsel to exercise a strike on the juror.
Because “[cjounsel’s actions are usually based, quite properly, on informed
strategic choices made by the defendant and on information supplied by the
defendant,” Bell fails to demonstrate deficient performance under Strickland. |
Strickland, 466U.S.at691.
Also, in his supplement to: the motion for post-conviction relief, □□□□
argued. that trial counsel should have. exercised a peremptory. challenge ‘on
Juror R.H. because during jury selection the juror stated that
“all his family, close friends, and himself have been victims of crime.” _
40
(Doc. 13-10 at 87). He argued that, because the juror and the juror’s family
and friends were victims of crime, the juror “would harbor potential bias
against persons accused of crimes, especially [Bel!].” (Doc. 13-10 at 87).
However, during jury selection, Juror R.H. stated that he had family
members and close friends who were victims of crime and other family
members and close friends who were accused of crimes (Doc. 13-4 at 72):
[Juror R.H.}: My name is [R.H.] Born April 18,
. 1988. I live in Oceanway. I’ve lived
in Duval County for twenty years,
in Florida for twenty-three. _ □
oo Current. residence . two. . years,
ee former residence. two years. Pm»
a single. I work in the food and.
beverage industry. I have never
served as a juror. I have no
children. I have a close friend that’s
military police. All my family
. members, fa] close friend, and
myself have been the victim of
crimes. And I’ve had close friends
and family members accused of |
. erimes. □
Also, the prosecutor specifically asked Juror R.H. and the potential jurors.
seated on his ‘TOW. whether any juror wanted to speak about □□
“a situation in their personal life,”. and Juror R.H. did not respond. (Doc. □□□□
at 121-22).
41
During jury selection, the potential jurors agreed to follow the law as.
instructed and to render a fair and impartial verdict based on the evidence
presented at trial. (Doc. 13-4 at 47-49). The potential jurors agreed to set
aside any preconceived notions about the case. (Doc. 13-3 at 49). Also, before
deliberations, the trial judge instructed the jurors to reach a verdict based on
both the evidence and testimony presented at trial and the instructions on
the law and prohibited the jurors from “decid[ing] for or against anyone
because [a juror] feells] sorry for anyone or [is] angry at anyone.” (Doc. 13-3
at 1081), A federal habeas court presumes that a juror follows the trial
‘judge's inatructioné. Brown, 255 F.3d at 1280. : on
Because Bell fails to demonstrate a reasonable probability that the -
outcome at trial would have changed if trial counsel exercised a peremptory
challenge on Juror R.H. and instead speculates that the jury would have
reached a different “verdict, Bell fails to demonstrate prejudice under
Strickland. Strickland, 466 US. at 695. (“The assessment of prejudice should...
proceed on. the . assumption that the decisionmaker - is reasonably,
conscientiously, and impartially applying the standards that govern the □
decision.”), Owen v. Fla. Dep't of Corr., 686 F.3d 1181, 1201 (11th Cir. 2012)
(“To show that there is a reasonable probability that, but for counsel’s
42
unprofessional errors, the result of the proceeding would have been different,
Owen must show that at least one juror was biased; if no Juror were biased,
then there is no reasonable probability that... the result of the proceeding
would have been different”) (citations and internal quotations omitted).
Ground Five is DENIED.
VIL. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Bell seeks issuance of a certificate of appealability, the undersigned
opines that a certificate of appealability is not warranted. The Court should □□
issue a certificate of appealability only if the petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 USC. § 2253(c)(2). To
make this substantial showing, Bell “must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting
Slack v. McDaniel, 529 US. 473, 484 (2000)), or that “the issues presented
were ‘adequate to deserve encouragement to proceed further,” Miller-E □□
Cockrell, 537 U.S. 822, 336 (2008) (quoting Barefoot v. Estelle, 463 US. 880,
Where a district court has rejected. a petitioner's constitutional claims
on the merits, the petitioner must demonstrate that reasonable jurists would
43
find the district court’s assessment of the constitutional claims debatable or
wrong. Slack, 529 U.S. at 484. However, when the district court has rejected
a claim on procedural grounds, the petitioner must show that “jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Id.
Upon consideration of the record as a whole, the Court will deny a certificate
of appealability. □□ =
‘Therefore, it is now □ ow . □□ □□
ORDEREDANDADJUDGED; =
1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED
WITH PREJUDICE.
2. The Clerk of the Court shall enter judgment denying the Petition
and dismissing this case with prejudice.
3. If Bell appeals the denial of the Petition, the Court denies □□
certificate of appealability. Because the Court has determined that a □
certificate of appealability is not warranted, the Clerk shall terminate froim, □ □ □
the pending motions report any motion to proceed on appeal as 2 patiper that
44
may be filed in this case. Such termination shall serve as a denial of the
motion. .
4, The Clerk of the Court is directed to close this case and terminate
any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this /§¥" day of
March, 2025.
Oe od VEY a Aine
LI nited States District dudge_ □□
45