The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AARON C. PORTER,
Petitioner,
v. Case No. 8:23-cv-441-JLB-AEP
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
_______________________________/
ORDER
Petitioner Aaron C. Porter, a Florida prisoner, filed a pro se Petition for Writ
of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1). Upon consideration of the
petition (id.) and the response in opposition (Doc. 32), the petition is denied.1
I. Background and Procedural History
The State of Florida charged Porter and his co-defendant, Sabrina Gibbons,
with one count of armed robbery and one count of false imprisonment. (Doc. 15-2,
Ex. 1 at 12-16). Porter represented himself for most of the state court jury trial,
with attorney Christopher Boldt serving as standby counsel. Near the end of the
State’s case-in-chief, the trial court appointed Boldt as Porter’s counsel of record.
(Doc. 15-2, Ex. 1a at 588–90). Boldt served in this capacity for the rest of the trial.
The jury convicted Porter as charged. (Doc. 15-2, Ex. 1 at 86–87). The state
trial court sentenced him to life imprisonment as a prison releasee reoffender. (Doc.
1 Porter did not file a reply.
15-2, Ex. 1 at 110–16; Doc. 15-2, Ex. 1a at 749). The state appellate court per
curiam affirmed Porter’s convictions and sentence. (Doc. 15-2, Ex. 5). Porter
unsuccessfully sought postconviction relief under Florida Rule of Criminal
Procedure 3.850. (Doc. 15-2, Exs. 17–20; Doc. 15-3, Exs. 21–24, 26, 27, 32–37; Doc.
15-4, Exs. 40–45). The state appellate court per curiam affirmed the denial of relief.
(Doc. 15-4, Ex. 48).
II. Factual Summary2
On July 30, 2010, Porter and Jesus Garza met online. (Doc. 15-2, Ex. 1a at
197). They exchanged cell phone numbers and texted each other that night. (Id. at
197–98). Garza went to Porter’s apartment in Tampa, Florida, after midnight. (Id.
at 198–99). Porter, Sabrina Gibbons, Marquell Drigo, and Dawane Wells were at
the apartment. (Id. at 200–03).
Later that night, Garza agreed to drive an unidentified man home. (Id. at
203). Porter warned Garza that the man was planning to rob him, so Garza went
on the drive with them. (Id. at 205). When the other man got out of Garza’s truck,
Porter chased him away. (Id. at 205–06). On the way back to the apartment, they
stopped at a convenience store. (Id. at 206–07). Porter asked Garza to go inside the
store to buy cigars, but Garza refused. (Id.). When they arrived back at the
apartment, Porter took the keys from the ignition of Garza’s truck and said they
needed to talk. (Id. at 207–08). Inside the apartment, Porter said that Garza did
2 This summary is based on the trial transcript and appellate briefs.
not seem to appreciate what Porter had done for him, and Porter decided to teach
Garza a lesson. (Id. at 208).
Porter asked Garza for his debit card so that Sabrina Gibbons could use it to
buy the items that Porter had wanted. (Id. at 208–09). When Garza refused, Porter
told Gibbons to go into another room and get a gun. (Id. at 209). Gibbons brought
the gun to Porter, who showed Garza that it was loaded. (Id. at 209–10). Garza
gave Porter his debit card. (Id. at 210–11). At Porter’s direction, Gibbons went to
an ATM to withdraw money from Garza’s account. (Id. at 211).
Gibbons called Porter from the ATM to ask for the PIN, and Porter pointed
the gun at Garza’s head and told Garza that he had “better have” the correct PIN.
(Id.). Porter and another man at the apartment, Marquell Drigo, beat and hit
Garza. (Id. at 210–11, 216). Drigo also copied Garza’s personal information from
items in his wallet. (Id. at 221). Porter took paperwork from Garza’s truck before
coming back into the apartment. Once inside the apartment, Porter punched Garza
in the mouth. (Id. at 222–23).
Early the next morning, on July 31, 2010, Porter let Garza go after having
him touch all the doorknobs in the apartment to ensure that he left his fingerprints.
(Id. at 224). Porter kept Garza’s cell phone and told Garza that if he involved the
police, Porter would tell them that Garza raped Gibbons. (Id. at 223–24). But one
of Garza’s friends convinced him to go to the police anyway. (Id. at 226–27). Garza
showed the police a printout of Porter’s online profile. (Id. at 227–28).
At trial, Porter testified that Gibbons and Dawane Wells invited Garza to the
apartment as their guest. (Id. at 647–48). Porter testified that Garza, who was
intoxicated, went into a separate room with Gibbons. (Id. at 654–55). They exited
the room, arguing over the money Garza owed Gibbons. (Id. at 655–56). Later,
Porter told Garza that he needed to pay Gibbons and that if he did not do so, Porter
would tell the police that Garza raped Gibbons. (Id. at 656–57). Garza gave
Gibbons his debit card, and she went to the ATM. (Id. at 658). Porter denied
having a gun or hitting Garza. (Id. at 657).
III. Legal Principles
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs
this proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas
relief under the AEDPA can be granted only if a petitioner is in custody “in violation
of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
Section 2254(d) provides that federal habeas relief cannot be granted on a claim
adjudicated on the merits in state court unless the state court’s adjudication:
(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
For purposes of § 2254(d)(1), a decision is “contrary to” clearly established
federal law “if the state court arrives at a conclusion opposite to that reached by [the
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.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase “clearly established Federal
law” encompasses the holdings only of the United States Supreme Court “as of the
time of the relevant state-court decision.” Id. at 412. A decision involves an
“unreasonable application” of clearly established federal law “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.
The AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that
state-court convictions are given effect to the extent possible under law.” Bell v. Cone,
535 U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s
application of clearly established federal law is objectively unreasonable, and . . . an
unreasonable application is different from an incorrect one.” Id. at 694. As a result,
to obtain relief under the AEDPA, “a state prisoner must show that the state court’s
ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103
(2011); Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (stating that “[t]he state court’s
application of clearly established federal law must be objectively unreasonable” for a
federal habeas petitioner to prevail and that the state court’s “clear error” is
insufficient).
Furthermore, when reviewing a claim under section 2254(d), a federal court
must presume that any “determination of a factual issue made by a State court” is
correct, and the petitioner bears “the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e). A state court’s
summary rejection of a claim, even without explanation, qualifies as an adjudication
on the merits that warrants deference. Ferguson v. Culliver, 527 F.3d 1144, 1146
(11th Cir. 2008).
B. Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a two-part test
for determining whether a convicted person is entitled to relief on the ground that his
counsel rendered ineffective assistance. 466 U.S. 668, 687–88 (1984). A petitioner
must establish that counsel’s performance was deficient and fell below an objective
standard of reasonableness and that the deficient performance prejudiced the
defense. Id. A showing on only one prong will not support an ineffective assistance
claim. Id. at 687 (“Unless a defendant makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the adversary process that renders
the result unreliable.”).
The focus of inquiry under Strickland’s performance prong is “reasonableness
under prevailing professional norms.” Id. at 688. In reviewing counsel’s
performance, a court must adhere to the presumption that “counsel’s conduct falls
within the wide range of reasonable professional assistance[.]” Id. at 689 (citation
omitted). A court must “judge the reasonableness of counsel’s challenged conduct on
the facts of the particular case, viewed as of the time of counsel’s conduct,” applying
a highly deferential level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477
(2000) (quoting Strickland, 466 U.S. at 690). Proving Strickland prejudice “requires
showing that counsel’s errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.
C. Exhaustion and Procedural Default
The AEDPA precludes federal courts, absent exceptional circumstances, from
granting habeas relief unless a petitioner has exhausted all means of available relief
under state law. 28 U.S.C. § 2254(b)(1). Exhaustion of state remedies requires that
the state prisoner “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). The petitioner must
apprise the state court of the federal constitutional issue, not merely the underlying
facts of the claim or a similar state law claim. Snowden v. Singletary, 135 F.3d 732,
735–36 (11th Cir. 1998). Under the similar doctrine of procedural default, “a federal
court will not review the merits of claims, including constitutional claims, that a state
court declined to hear because the prisoner failed to abide by a state procedural rule.”
Martinez v. Ryan, 566 U.S. 1, 9 (2012).
A petitioner can avoid the application of the exhaustion or procedural default
rules by establishing objective cause for failing to properly raise the claim in state
court and actual prejudice from the alleged constitutional violation. Spencer v. Sec’y,
Dep’t of Corr., 609 F.3d 1170, 1179–80 (11th Cir. 2010). To show cause, a petitioner
“must demonstrate that some objective factor external to the defense impeded the
effort to raise the claim properly in state court.” Wright v. Hopper, 169 F.3d 695, 703
(11th Cir. 1999). To show prejudice, a petitioner must demonstrate a reasonable
probability that the outcome of the proceeding would have differed. Crawford v.
Head, 311 F.3d 1288, 1327–28 (11th Cir. 2002).
A second exception, known as the “fundamental miscarriage of justice,” only
occurs in an extraordinary case, where a “constitutional violation has probably
resulted in the conviction of one who is actually innocent[.]” Murray v. Carrier, 477
U.S. 478, 496 (1986).
IV. Discussion
A. Ground One
Porter contends that the state trial court judge violated his federal rights to
due process and a fair trial by interrupting him, berating him, and displaying a
“general air of disdain” for him while he was representing himself at the jury trial.
(Doc. 1 at 9). Porter asserts that the judge’s remarks “prejudiced [him] in the eyes
of the jury.” (Id. at 12). He further argues that the judge’s comments “crossed the
line by indicating partiality, or by ridiculing or showing disfavor toward [Porter] in
the jury’s presence. The court did not appear to be neutral.” (Id. at 26).
Porter acknowledged in his appellate brief that because he did not object in
the trial court, his claim could properly be raised on direct appeal only if the errors
were “fundamental.” (Doc. 15-2, Ex. 2 at 12–13); see J.B. v. State, 705 So. 2d 1376,
1378 (Fla. 1998) (“Generally, to raise an error on appeal, a contemporaneous
objection must be made at the trial level when the alleged error occurred. . . . Only
when error is fundamental can the error be raised on appeal in the absence of a
contemporaneous objection.”).
On direct appeal, the State argued that Porter failed to preserve his claim for
appellate review by failing to object at trial. (Doc. 15-2, Ex. 3 at 4). The State also
argued that Porter failed to show fundamental error. (Id. at 4–6). Respondent
contends that the state appellate court’s silent decision is presumed to rest on the
procedural bar asserted by the State.
A state court’s resolution of a petitioner’s federal constitutional claim on state
procedural grounds precludes federal review if the state procedural ruling rests on
an “independent and adequate” state law ground. Ferguson v. Sec’y, Dep’t of Corr.,
580 F.3d 1183, 1212 (11th Cir. 2009); see also Kimbrough v. Sec’y, Fla. Dep’t of Corr.,
809 F. App’x 684, 691–92 (11th Cir. 2020); Judd v. Haley, 250 F.3d 1308, 1313 (11th
Cir. 2001). “[T]he adequate and independent state ground doctrine requires the
federal court to honor a state holding that is a sufficient basis for the state court’s
judgment” disposing of a federal claim. Harris v. Reed, 489 U.S. 255, 264 n.10 (1989).
The State’s assertion that Porter failed to preserve his claim, and Porter’s
acknowledgment that he did not do so, indicate that the state appellate court’s
decision likely rested on this state law procedural bar. See Hernandez v. Sec’y, Dep’t
of Corr., No. 23-11878, 2026 WL 507311, at *4 (11th Cir. Feb. 24, 2026). Porter has
not shown that an exception applies to excuse the resulting procedural default.
Even assuming that the state appellate court ruled on the merits of Porter’s
federal due process claim, its decision was not unreasonable. Porter cites judicial
remarks made at different stages of the proceedings. First, Porter refers to several
comments the judge made before or during trial, but outside the jury's presence.
Porter has not demonstrated how such comments, even if improper, “prejudiced
[him] in the eyes of the jury.” (Doc. 1 at 12). Thus, the state appellate court
reasonably denied any federal due process claim based on remarks made outside of
the jury’s presence. See United States v. Hill, 643 F.3d 807, 845 (11th Cir. 2011)
(“Because a clear effect on the jury is required to reverse for comment by the trial
judge, [a court] will only consider the trial court’s comments that were made in the
presence of the jury.” (internal quotation marks and citation omitted)).
Next, Porter identifies several judicial remarks during jury selection. One
instance involved Porter questioning a potential juror who had already said that
she could not be fair and impartial:
THE DEFENDANT: [] Your dad was robbed at gunpoint.
Is there anything with respect to the fact that your dad was robbed at
gunpoint and the victim –
THE COURT: [The prospective juror] has already stated she cannot be
fair and impartial.
Have I correctly summarized your statements?
PROSPECTIVE JUROR []: Yes.
THE COURT: Has anything changed in the last 30 minutes?
THE DEFENDANT: Your Honor, I think the defendant is entitled to
the same respect that you gave the State. And I’m entitled to make
sure that each and every one of these last individuals can sit and be
fair and impartial. There’s no rush when my life is on the line.
THE COURT: There is no rush. However, let me say, this, Mr. Porter,
the defendant in this case: There’s have been [sic] several
misstatements during your voir dire of this particular jury panel
without objection. I note specifically that Mr. Boldt, who is standby
counsel, has absolutely no affiliation with Public Defender’s Office,
contrary to statements you made before to this jury panel.
Mr. Boldt, for whom do you work, sir?
MR. BOLDT: Your Honor, I’m a court-appointed attorney. I work for
the Office of Criminal Conflict and Civil Regional Counsel.
. . .
THE COURT: Very well.
Mr. Porter, I have corrected the record.
THE DEFENDANT: Judge, you’re misleading the jury on the facts –
THE COURT: Take the jury out right now.
Mr. Porter, stop right there. The jury will be afforded a 15-minute
recess for comfort purposes.
(Doc. 15-2, Ex. 1a at 117–19).
Later during jury selection, Porter asked the panel about their ability to
fairly consider his co-defendant Sabrina Gibbons’s background and motive “with
respect to her testimony here today.” (Id. at 130). A prospective juror said that he
did not understand the question. (Id.). Porter stated:
THE DEFENDANT: Basically what I’m saying, sir, obviously, if this
individual’s going to testify, there’s going to be some background
information brought out to her truthfulness to testify or willingness to
testify as opposed to was she offered anything to testify. Obviously,
there’s a motive for her testifying today.
THE COURT: You’re not testifying, are you, Mr. Porter?
THE DEFENDANT: No, Your Honor.
THE COURT: You’re to ask questions, not make statements, sir.
(Id. at 130–31).
Porter then asked the panel, “Does anyone here agree or disagree that the
State must prove its case beyond a reasonable doubt?” (Id. at 131). The judge
stated:
THE COURT: That is the law. That is the instruction that I have given
to this jury panel. And this jury panel has assured me, all 30 members
of this panel, that they could do so and would hold the State to its
burden.
Has anyone changed their mind in the last 40 minutes, raise your
hand? No hands are raised.
(Id. at 132).
Most of the judicial remarks Porter cites, however, were made during witness
testimony at trial. When victim Jesus Garza testified, the State sought to introduce
a photograph of Marquell Drigo. Porter objected, and the state trial court judge
asked him for the basis of his objection:
THE COURT: What basis?
THE DEFENDANT: Your Honor, this witness was basically –
THE COURT: No, no. What legal basis [?] I’m referring to Chapter 90
of the Florida Statutes.
THE DEFENDANT: I don’t see how this picture is admissibility [sic] as
to anyone who did anything to this individual.
THE COURT: Your objection is overruled. Do you have any other
objection[?]
THE DEFENDANT: The fact that –
THE COURT: No. Do you have any other legal objections?
THE DEFENDANT: Let me give you my objections?
THE COURT: No, because it’s not a legal objection.
THE DEFENDANT: How do you know that without hearing it out?
THE COURT: Here’s what I’m going to do: I’m going to give to Master
Deputy Alexander Chapter 90 of the Florida Statutes. He’s going to
hand you that so that you can turn to Chapter 90; that is the evidence
code, as you know, and if you have any lawful objections within Chapter
90 –
. . .
THE DEFENDANT: We’ll proceed.
THE COURT: I’ll take that as a waiver of any further objections.
(Id. at 217–218).
Later, Porter objected when the State sought to introduce a copy of his online
profile, which Garza had printed and given to police:
THE COURT: Mr. Porter, any objection?
THE DEFENDANT: Objection, Your Honor.
THE COURT: Basis?
THE DEFENDANT: I’m not sure where these photos came from. I’m
not sure this individual can testify to the photos that he printed at a
friend’s house and bring this to court and expect the Court –
THE COURT: Okay. “The I’m not sure” objection is overruled. Do you
have any lawful objection[?]
THE DEFENDANT: Thank you, Your Honor.
THE COURT: Thank you. Move on.
(Id. at 228–29).
On cross-examination, Garza said that one of Porter’s questions confused
him. (Id. at 248). Porter responded, “I don’t want you to be confused. You didn’t
seem confused a moment ago when you were giving testimony.” (Id.) The trial
court noted, “Mr. Porter – Mr. Porter, that is argumentative. This is your
opportunity to ask this witness questions, sir.” (Id. at 249).
Later on cross-examination, Garza testified that Marquell Drigo was the
second person who hit him:
Q: And [Drigo] was the second person?
A: Yeah.
Q. Because you gave a statement to some –
THE COURT: Now, wait a minute. That’s not a question, Mr.
Porter. This is not your opportunity to testify. I expect properly
phased questions of this witness. Ask one, sir.
(Id. at 264–65).
Porter later asked Garza about what he observed from outside Porter’s
apartment:
Q: Was the door open? Was the door closed? Was anyone outside when
you arrived back?
A: The windows and the door was [sic] open. Everything was visible
from standing outside.
. . .
Q: You said that everything was open, visual from the street. Quite
obviously you wasn’t [sic] secluded. Let’s move on here.
THE COURT: Is that a question, Mr. Porter? It does not appear
to be a question. Question, answer; question, answer.”
BY THE DEFENDANT:
Q: You said it was visual from the street, right?
A: Not from the street. I mean, you could see – from within a few feet
of the doorway you could see inside the house.
Q: You’re changing it.
A: No, I never said –
THE COURT: Mr. Porter, that’s a comment on the evidence,
which is not allowed. Questions.
(Id. at 272–73).
Porter also cross-examined Garza about the use of intoxicants, and
referenced a police report:
Q: [] Do you recall giving a statement to the police that everyone was
drinking Heineken and smoking weed except for me?
A: I don’t smoke so I don’t know where you got that from.
Q: Answer the question, please, Mr. Garza.
Did you tell police that everyone was drinking and smoking weed
except you? ’Cause that detective’s going to take the stand –
THE COURT: Wait a minute, Mr. Porter. Questions, as I’ve
repeatedly instructed you.
. . .
Q: You did have some [beer], okay.
Is there any reason – I’m just trying to understand –
THE COURT: Mr. Porter, you may not cross-examine Mr. Garza
on something he, Mr. Garza, did not write. Move on.
(Id. at 280–81).
Sabrina Gibbons testified for the State and stated that she and Porter were
first cousins and had known each other for 28 years. (Id. at 479). When Porter
cross-examined Gibbons, he asked her how long she had known him. (Id. at 505).
The state trial court stated, “Twenty-eight years. Next question.” Porter repeated
the question, after which the trial judge said, “Twenty-eight years. Already asked
and answered. Next question.” (Id. at 505–06).
The trial court told Porter to “speak up” when he cross-examined Gibbons.
(Id. at 552). A short time later, as Porter asked Gibbons about the charges she was
facing from this incident, Porter stated:
Q: It seems like you may be mistaken with respect to –
THE COURT: Well, now, wait a minute. You can’t tell the witness
they’re mistaken, Mr. Porter. That is absolutely improper, contrary to
Florida law, will not be tolerated. Don’t do that.
(Id. at 555).
Porter called Gibbons as a defense witness. He asked her “what, if anything,
took place” when Garza arrived at the apartment, and Gibbons stated that she did
not understand the question. (Id. at 572). The trial court, referring to the
testimony Gibbons gave as a prosecution witness, stated:
Mr. Porter, Ms. Gibbons has already testified extensively on direct and
cross-examination regarding the events of July 31. As such, these
questions, at least that question, have been asked and answered. Go
on to a new line of questioning.
(Id.).
Lastly, Porter called Gibbons as a defense witness and asked her about
certain photographs:
Q: Isn’t it true that those pictures were missing[,] Miss Gibbons?
THE COURT: Mr. Porter, you’re conducting direct examination.
As such, as I previously instructed you outside the presence of the jury,
you are not allowed to ask leading questions absent some exception to
the normal rules regarding direct examination. Rephrase your next
question.
(Id. at 576).
The Due Process Clause requires “a fair trial in a fair tribunal, before a judge
with no actual bias against the defendant or interest in the outcome of his particular
case.” Bracy v. Gramley, 520 U.S. 899, 904–05 (1997) (internal quotation marks and
citation omitted). “In other words, due process imposes a ‘neutrality requirement.’”
United States v. Cortero-Roman, No. 22-13930, 2025 WL 1662612, at *5 (11th Cir.
June 12, 2025) (quoting Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980)). Due
process encompasses the right to “a fair trial by a panel of impartial, indifferent
jurors.” Morgan v. Illinois, 504 US. 719, 727 (1992) (internal quotation marks
omitted).
The state appellate court reasonably concluded that Porter did not establish
any federal due process violation that amounted to fundamental error. Here, the
state appellate court rejected Porter’s claim in an unelaborated per curiam
affirmance, and there is no state trial court ruling to which this Court can look to
ascertain reasons for the decision. See Wilson v. Sellers, 584 U.S. 122, 125 (2018)
(explaining that when the relevant state-court decision is not accompanied by reasons
for the decision—such as a summary affirmance without discussion—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”). Therefore, this Court must “determine what
arguments or theories supported . . . or could have supported the state court’s
decision.” Richter, 562 U.S. at 101–02.
Porter contends that the state trial judge’s remarks “indicat[ed] partiality” and
“show[ed] disfavor.” (Doc. 1 at 26). He similarly contends that the judge “did not
impart an air of impartiality” and “did not appear to be neutral.” (Id. at 24, 26). But
Porter does not clearly allege that the trial court was, in fact, biased against him. To
the extent that Porter’s claim is based on an appearance of judicial bias, he cannot
show that the state appellate court’s rejection of his claim was contrary to or involved
an unreasonable application of clearly established federal law. See United States v.
Rodriguez, 627 F.3d 1372, 1382 (11th Cir. 2010) (stating that the Supreme Court has
not clearly established that “an appearance of bias is enough by itself to be a
constitutional violation”).
Nor has Porter shown any other basis for relief. A judge exercises discretion
when presiding over a trial because the judge must maintain “reasonable control over
the mode and order of interrogating witnesses and presenting evidence in order to
ensure that evidence is presented effectively for the ascertainment of truth, time is
conserved, and witnesses are protected from harassment.” Hill, 643 F.3d at 845
(internal quotation marks and citation omitted).
Porter has not shown that the state trial court judge abused his discretion in a
manner that violated his due process rights. Consequently, he has not established a
fundamental error that would have afforded him relief on appeal. Montgomery v.
Noga, 168 F.3d 1282, 1294 (11th Cir. 1999) (describing fundamental error justifying
reversal as error that results in a miscarriage of justice). Many of the state trial
judge’s comments served to prevent Porter from making statements/testifying and
improperly questioning witnesses, rather than preventing him from asking witnesses
appropriate questions. Some of the judge’s comments also sought to avoid repetition,
ensure that the trial progressed, or correct misstatements of law or fact. The state
court judge based his comments on the law and procedures applicable to trial
proceedings. The record indicates that Porter understood he was subject to these
authorities while representing himself. When the state trial court appointed Boldt
as standby counsel, Porter said that he understood Boldt’s caution that Boldt would
not file motions for Porter and that “standby is beyond limited, it is virtually just a
resource available to [Porter] and to the court to facilitate an orderly proceeding.”
(Doc. 15-2, Ex. 1 at 184). Additionally, the judge warned Porter during voir dire, out
of the jury’s presence, that he would receive no latitude on the basis that he was not
an attorney and that he was subject to Florida law and court rules. (Doc. 15-2, Ex.
1a at 128).
Indeed, “[t]he right of self-representation is not a license to abuse the dignity
of the courtroom. Neither is it a license not to comply with relevant rules of
procedural and substantive law.” Faretta v. California, 422 U.S. 806,834 n.46 (1975).
And a trial judge must “exercise reasonable control” over the questioning of witnesses
to “facilitate, through effective interrogation and presentation, the discovery of the
truth”; “[a]void needless consumption of time”; and “[p]rotect witnesses from
harassment or undue embarrassment.” Fla. Stat. § 90.612(1)(a)–(c).
The judge’s comments were made as part of this obligation to exercise control
over the trial. For instance, a trial court may exclude cumulative evidence to ensure
an efficient trial. Knight v. State, 324 So. 3d 64, 65-66 (Fla. 5th DCA 2021). When
such evidence “calls for a mere repetition of testimony,” a trial court can limit an
attorney’s repetitive questioning. Peterson v. State, 154 So. 3d 275, 283 (Fla. 2014).
Similarly, an attorney is prohibited from asking improper or repetitive questions
during voir dire. King v. State, 790 So. 2d 1253, 1254-55 (Fla. 5th DCA 2011). Also,
when objecting, an attorney must state a specific ground for the objection if the
specific ground is not apparent from the context. Fla. Stat. § 90.104(1)(a), Fla. Stat.
Attorneys cannot offer their personal opinions as facts; instead, they must ask
questions of the witnesses. Kaas v. Atlas Chemical Co., 623 So. 2d 525, 525-26 (Fla.
3d DCA 1993). And, generally, an attorney may not ask leading questions of a witness
on direct or redirect examination. Fla. Stat. § 90.612(3). Thus, the trial judge’s
comments and corrections were based on applicable Florida law and procedure.
Even if the trial judge seemed frustrated at times, Porter has not established
a due process violation. “[J]udicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.” Liteky v. United States, 510
U.S. 540, 555 (1994). Judicial remarks can support a claim of partiality if they
indicate “an opinion that derives from an extrajudicial source” or if they “reveal such
a high degree of favoritism or antagonism as to make fair judgment impossible.” Id.
But “expressions of impatience, dissatisfaction, annoyance, and even anger, that are
within the bounds of what imperfect men and women . . . sometimes display” are
insufficient to show bias or partiality. Id. at 555–56. This is true for remarks made
during the ordinary efforts of a judge, “even a stern and short-tempered judge,” at
courtroom administration. Id. at 556. Porter has not shown that the identified
judicial comments supported a claim of bias under this standard.
Additionally, the judge instructed the jury to base its decision solely on the
evidence and the law:
Your verdict should not be influenced by feelings of prejudice, bias or
sympathy. Your verdict must be based on the evidence and on the law
contained within these instructions.
Deciding a verdict is exclusively your job. I cannot participate in that
decision in any way, and I ask anything that I may have said or done
that made you think I preferred one verdict over another to be
disregarded entirely.
(Doc. 15-2, Ex. 1a at 732).
The jury is presumed to have followed this instruction. See United States v.
Grushko, 50 F.4th 1, 15 (11th Cir. 2022). Under these circumstances, Porter has not
shown any violation of his due process rights, and, therefore, no constitutional
violation that resulted in fundamental error. The identified remarks do not indicate
an extrajudicial source of information or “reveal such a high degree of favoritism or
antagonism as to make fair judgment impossible.” Liteky, 510 U.S. at 555. Porter
has not shown that the state appellate court’s denial of his federal constitutional
claim was contrary to or involved an unreasonable application of clearly established
federal law, or that it was based on an unreasonable factual determination. He is
therefore not entitled to relief on Ground One.
B. Ground Two
Porter argues that the state trial court violated his federal constitutional
rights by failing to renew an offer of court-appointed counsel at a September 16,
2010, pretrial hearing at which Porter represented himself. Porter alleges that the
court was required to renew the offer because the hearing was a “critical” stage of
the proceedings. See Iowa v. Tovar, 541 U.S. 77, 80–81 (2004) (stating that, under
the Sixth Amendment, an accused who faces incarceration has the right to counsel
at all critical stages of the criminal process).
Porter’s claim is procedurally defaulted. When he raised his argument on
direct appeal, Porter relied solely on Florida case law and the Florida Rules of
Criminal Procedure. (Doc. 15-2, Ex. 2 at 34–36). Because Porter did not allege a
violation of his federal rights or rely on federal law in presenting the claim to the
state appellate court, he did not exhaust a federal claim. Porter cannot return to
state court to bring a federal claim in a second direct appeal. See Fla. R. App. P.
9.140(b)(3). Porter’s federal trial court error claim is therefore procedurally
defaulted. He has not shown either cause and prejudice or a fundamental
miscarriage of justice to excuse the default.
Even assuming that Porter’s appellate brief exhausted a federal claim, the
state appellate court reasonably denied it. A criminal defendant can waive his
Sixth Amendment right to counsel if the waiver is knowing and voluntary. Faretta,
422 U.S. at 835. On August 23, 2010, the state trial judge conducted a Faretta
hearing after Porter stated his intention to proceed pro se. (Doc. 15-2, Ex. 1 at 132).
The judge’s questions to Porter about his decision included whether his decision was
made knowingly, intelligently, and voluntarily; whether anyone had threatened or
coerced him; and whether he understood that self-representation came with dangers
and disadvantages. (Id. at 133–37); see Faretta, 422 U.S. at 835-36. The judge
granted Porter’s request to proceed pro se and appointed an assistant public
defender as standby counsel. (Id. at 137).
Several weeks later, on September 16, 2010, the state trial court conducted
the pretrial hearing, which is the focus of Porter’s argument. The trial court started
by announcing that it was entering a written order denying Porter’s earlier motion
to disqualify the judge. (Id. at 143). The state court then noted that Porter was
proceeding pro se and that his initial standby counsel, an assistant public defender,
was with him. (Id.). Standby counsel informed the court that the Office of the
Public Defender had learned of a potential conflict that would require that Office’s
withdrawal from Porter’s case. (Id.). After addressing Porter’s motion for a speedy
trial and setting a trial date less than a month away on October 11, 2010, the court
noted the urgency of reviewing the potential conflict, and standby counsel said that
he would address it immediately. (Id., pp. 144–46).
Porter contends that the trial court was constitutionally obligated to renew
the offer of court-appointed counsel before conducting this hearing. He relies on
Traylor v. State, 596 So. 2d 957 (1992), a decision of the Florida Supreme Court.
Traylor holds that, under the Florida Constitution, a trial court is required to renew
the offer of court-appointed counsel to an unrepresented defendant at the start of
each “crucial stage” of the proceeding, “where the defendant is unrepresented.” Id.
at 968.
But Traylor is not “clearly established federal law” for purposes of federal
habeas review under the AEDPA. Porter has not identified any clearly established
federal law—holdings of the Supreme Court of the United States—providing that
the Constitution required the state trial court to renew the offer of counsel at this
pretrial hearing.
The Supreme Court of the United States has not held that a renewal of the
offer or a reaffirmation of a criminal defendant’s decision to continue pro se is
required at every hearing or event before trial. See McClain v. Sec’y, Dep’t of Corr.,
855 F. App’x 610, 613–14 (11th Cir. 2021) (“The [federal] district court did not err in
concluding the [state appellate court’s] decision on this issue was not contrary to, or
an unreasonable application of, clearly established Supreme Court precedent. There
is no clearly established Supreme Court law on when the Sixth Amendment
requires an additional waiver of counsel, just that there are times when it may be
necessary.”); United States v. Nunez, 137 F. App’x 214, 215 (11th Cir. 2005)
(concluding that the trial court was not required to sua sponte conduct another
Faretta hearing at the start of trial, four months after the initial hearing, and
stating, “[i]f we were to place upon the [trial] court an obligation to reassess its
Faretta hearing decision, we would do so only on a showing of a substantial change
in circumstances since the initial hearing”); Duncan v. Sec'y, Fla. Dep't of Corr., No.
3:18-cv-2099-MCR-GRJ, 2021 WL 4464431, at *12 (N.D. Fla. Aug. 20, 2021),
adopted by 2021 WL 4465996 (N.D. Fla. Sep. 29, 2021) (“Petitioner does not have a
constitutional right to a renewed offer of counsel at all pretrial proceedings and
during the evidentiary portion of trial.”).
A waiver of the right to counsel may remain valid for subsequent
proceedings. See Nelson v. Alabama, 292 F.3d 1291, 1296 (11th Cir. 2002) (stating
that “the Supreme Court in Faretta did not set out any fixed time frame for the
holding of the Faretta hearing it suggested” and finding that a defendant’s initial
waiver under Faretta remained valid several years later at resentencing given the
trial court’s reliance on the initial Faretta hearing, the defendant’s representations
to the court over time, and the defendant’s representations and demeanor at the
resentencing hearing); United States v. McBride, 362 F.3d 360, 367 (6th Cir.
2004) (adopting the rule that “a defendant’s waiver of counsel at trial carries over to
subsequent proceedings absent a substantial change in circumstances” and
explaining that “[o]ther circuits have held that a valid waiver remains in effect at
subsequent proceedings in the absence of an explicit revocation by the defendant or
a change of circumstances that would suggest that the [trial] court should make
a renewed inquiry of the defendant”).
Here, the state trial court questioned Porter under Faretta about three and a
half weeks before the September 16, 2010, speedy trial hearing. Additionally,
Porter’s first standby attorney was present at the hearing and discussed his
potential withdrawal due to a conflict. Thus, the matter of whether Porter’s court-
appointed standby counsel would be able to continue in the case was brought to
Porter’s attention. Porter has not identified clearly established federal law
requiring a state trial court to renew the offer of counsel expressly or to conduct an
additional Faretta inquiry under such circumstances. Nor does Porter show any
substantial change in his circumstances that would have compelled the state trial
court to revisit his pro se status.
Thus, even if Porter’s claim is not procedurally defaulted, Porter has not
shown that the state appellate court’s denial of his trial court error claim was
contrary to or involved a reasonable application of clearly established federal law, or
was based on an unreasonable factual determination. He is therefore not entitled to
relief on Ground Two.
C. Ground Three
Porter asserts that the state trial court lacked subject matter jurisdiction and
personal jurisdiction to hear his case. He argues that the information did not
charge him with a crime because it contained both his given name and an alias he
used at the time of his arrest. Porter alleges a violation of his federal due process
rights.
The information, filed on August 13, 2010, named as defendants Sabrina C.
Gibbons and Robert E. Gordon. (Doc. 15-2, Ex. 1 at 12–16). At an October 11, 2010
pretrial proceeding, the prosecutor informed the state trial court that the State
believed the name Robert E. Gordon was likely an alias used by Porter. (Id. at 179–
81). Porter then admitted under oath that his legal name is Aaron Porter. (Id. at
182). The State amended the information that same day to correct Porter’s name in
the caption of the information. (Id. at 12–16). But the name was not corrected in
the offense descriptions, which still alleged that Gibbons and “Robert E. Gordon”
committed the offenses. (Id. at 12–13).
Porter’s federal due process claim is unexhausted and procedurally defaulted.
Porter did not allege a violation of his federal rights when he challenged the state
trial court’s jurisdiction in his state court petition for writ of habeas corpus. (Doc.
15-5, Ex. 52). Respondent also argues, and Porter concedes, that the state court
dismissed Porter’s jurisdictional claim on the basis that it was not cognizable in a
habeas corpus proceeding.3 Respondent therefore contends that, even if Porter’s
state court habeas petition could be construed to raise a federal claim, his claim in
this section 2254 proceeding is procedurally defaulted because the state court
resolved it on an independent and adequate state procedural basis. Porter has not
shown that an exception applies to overcome the procedural default of his federal
claim.
Even if Porter’s federal due process claim were exhausted, it would not afford
him relief. Porter has not shown that any deficiency in the information deprived
the state trial court of jurisdiction. When considering the sufficiency of a criminal
3 The order resolving Porter’s state court habeas petition does not appear to be
included in the state court record submitted in this case. (See Doc. 15-5, Ex. 53).
But both parties agree that the claim was dismissed as non-cognizable in a habeas
corpus proceeding.
information filed in a Florida court, “[t]he overriding concern is whether the
defendant had sufficient notice of the crimes for which he is being tried.” McMillan
v. State, 832 So. 2d 946, 947–48 (Fla. 5th DCA 2002). Similarly, under federal law,
“an indictment is sufficient if it, first, contains the elements of the offense charged
and fairly informs a defendant of the charge against which he must defend, and,
second, enables him to plead an acquittal or conviction in bar of future prosecutions
for the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974).
When the State amended the information, it did not correct Porter’s name in
several places. But the wrong name was listed in the first instance because Porter
misidentified himself as Robert E. Gordon at the time of his arrest. (Doc. 15-2, Ex.
1 at 179–80, 184–85). Moreover, Porter does not allege that the information failed
to put him on notice that, regardless of whether his given name or his alias was
listed, he was the person charged with the crimes alleged. Porter has not shown
that the information was insufficient to charge him with committing felonies in
Florida.
Because the information sufficiently charged Porter with committing felonies
in Florida, the state circuit court had subject matter jurisdiction to hear his case.
See Art. V, § 20(c)(3), Fla. Const. (providing that circuit courts “shall have exclusive
original jurisdiction . . . of all felonies”); Fla. Stat. § 26.012(2)(d) (same); Carbajal v.
State, 75 So. 3d 258, 262 (Fla. 2011) (stating that subject matter jurisdiction is the
“[p]ower of a particular court to hear the type of case that is then before it or
jurisdiction over the nature of the cause of action and relief sought” and that
“[b]ecause the information filed in this case charged Carbajal with multiple felonies,
the circuit court had subject matter jurisdiction over Carbajal’s case” despite an
alleged defect in the charging document) (internal quotation marks and citations
omitted)). Accordingly, Porter does not show that he is entitled to federal habeas
relief on Ground Three.
D. Ground Four
Porter argues that his standby counsel, Christopher Boldt, was ineffective for
“not being prepared to step in as appointed counsel during trial” and for failing to
inform the trial court that he was unprepared. (Doc. 1 at 38). Porter also argues
that after being appointed as counsel of record, Boldt provided ineffective assistance
by not moving for a continuance.
The state court held an evidentiary hearing on Porter’s claim. Boldt testified
that he was appointed as Porter’s standby counsel very shortly before trial. (Doc.
15-4, Ex. 44 at 6). As standby counsel, Boldt testified, he could only serve as a
resource for Porter. (Id. at 6–7). Therefore, Boldt explained, his limited ability to
prepare before trial was driven by Porter’s decision that Boldt continue in this
restricted role, rather than being appointed as counsel. (Id. at 6, 22). Boldt
testified that he was present for the entire trial and took contemporaneous notes,
anticipating that he might become counsel of record. (Id. at 7–8, 21). Upon
questioning from Porter’s postconviction attorney, Boldt testified that it was
possible he could have left the courtroom at some point during the trial, but also
stated that he could not “imagine” doing so. (Id. at 36, 59).
Boldt testified that the state trial court appointed him as the attorney of
record near the end of the State’s case after Porter had an outburst in the
courtroom. (Id. at 14–15). After his appointment, Boldt testified, he moved for a
mistrial on the basis that the jury was prejudiced by hearing the state trial court
cite Porter for contempt during this incident. (Id. at 22–23, 51). The state trial
court denied the motion for mistrial. (Id. at 19). Boldt testified that completing
trial preparation, which would involve, for instance, taking depositions and
litigating motions, would likely take several months. (Id. at 22–23, 51–53).
Boldt explained that he did not separately request a continuance because he
believed the court would not grant a continuance of this length during the trial.
(Id.). In other words, he believed that a mistrial was the only realistic way to
secure the time needed to prepare. (Id.) Although he did not move for a
continuance, Boldt asked the court for time to speak with defense witness Drigo and
with Porter. (Id.) His request to recess for the day was denied, and the state trial
court allowed him a one-hour break. (Id.).
At the postconviction evidentiary hearing, Porter testified that Boldt was not
prepared to handle his case and that Boldt said he would move to continue the case.
(Id. at 71).
The state postconviction court found that counsel did not perform deficiently.
(Doc. 15-4, Ex. 45 at 17). The state court found Boldt’s testimony to be credible.
(Id. at 16). The state court also found that the record did not reflect Boldt’s absence
at any point in the trial. (Id.) Indeed, the state court found that counsel was
present throughout Porter’s “entire trial and took contemporaneous notes to be
prepared should he be appointed counsel of record.” (Id.). The state court noted
that Boldt in effect sought a continuance through his motion for a mistrial, “which,
if granted, would have given him the time necessary to conduct depositions, file and
litigate motions, and prepare a defense.” (Id. at 16–17). The state court further
found that Porter “consistently declined” the trial judge’s offers of appointed
counsel. (Id. at 15–16). The state court concluded that any limit on Boldt’s ability
“to depose witnesses, file motions, prepare a defense or otherwise prepare for trial
are attributable to [Porter’s] own actions.” (Doc. 15-4 at 17).
Porter is not entitled to relief on Ground Four. Initially, as Respondent
notes, there is no constitutional right to standby counsel. See McKaskle v. Wiggins,
465 U.S. 168, 183 (1984) (stating that Faretta does not require a trial judge to
permit “hybrid” representation); United States v. Taylor, 933 F.2d 307, 313 (5th Cir.
1991) (stating that, because of standby counsel’s very limited role, “the assistance of
standby counsel, no matter how useful to the court or the defendant, cannot qualify
as the assistance of counsel required by the Sixth Amendment”). Therefore, Porter
cannot show a deprivation of his Sixth Amendment right to effective assistance of
counsel while Boldt was merely serving as standby counsel. But even considering
these claims under Strickland, as the state court did, they do not warrant relief.
Nor is Porter entitled to relief on his claim that Boldt was ineffective after his
appointment of counsel of record.
First, Porter does not rebut, by clear and convincing evidence, the
presumption of correctness afforded to the state trial court’s factual finding that
counsel’s testimony was credible. Whether a witness is credible is a finding of fact
that a petitioner can rebut only by clear and convincing evidence. See Whatley v.
Warden, Ga. Diagnostic and Classification Ctr., 927 F.3d 1150,1175–77 (11th Cir.
2019) (stating that “credibility-based determinations are findings of fact” that are
presumed correct and that when a petitioner “challenges state court rulings that
rest on findings of fact,” he must “rebut the presumption of correctness . . . with
clear and convincing evidence” (internal quotation marks and citations omitted)).
Porter has not made this showing.
The testimony that the state court found credible reflects that Boldt was
present throughout the trial and took notes because he anticipated being appointed
as counsel of record. But, before that appointment, Boldt’s participation was
severely limited. Despite the constraints inherent in this role, when Boldt was
appointed, he had sufficient knowledge of the case to examine witnesses, challenge
the State’s objections to his questioning, and raise objections during the State’s
questioning. (Doc. 15-2, Ex. 1a at 621–42, 646–72). He also actively participated in
the jury instruction charge conference and presented a closing argument, arguing
that the State had not met its burden of proof. (Id. at 676–87, 701–12). Boldt was
not ineffective for failing to prepare while he was standby counsel, or for failing to
represent otherwise to the state trial court.
Furthermore, the state court reasonably determined that Boldt did not
perform deficiently for failing to seek a continuance of the trial. As noted, Boldt
moved for a mistrial after his appointment. When his motion for a mistrial was
denied, Boldt concluded that the state trial court would not grant a month- or
months-long continuance. The state trial court’s decision to allow only a one-hour
break supports the conclusion that counsel reasonably believed that the court would
not grant a continuance of any significant length.
Further, Porter has not shown how the outcome of the trial would likely have
been different had Boldt successfully moved for a continuance. He does not identify
what other information Boldt would have learned, or how any such material would
have changed the outcome of the trial. Because the state court’s decision did not
involve an unreasonable application of Strickland and was not based on an
unreasonable factual determination, Porter is not entitled to relief on Ground Four.
V. Certificate of Appealability
A prisoner seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Instead, a
district court or court of appeals must first issue a certificate of appealability (“COA”).
Id. “A [COA] may issue . . . only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To obtain a COA, Porter
must show that reasonable jurists would find debatable both the merits of the
underlying claims and the procedural issues he seeks to raise. See Slack v. McDaniel,
529 U.S. 473, 484 (2000). Porter has not made the requisite showing. Finally,
because Porter is not entitled to a COA, he is not entitled to appeal in forma pauperis.
It is therefore ORDERED that Porter’s Petition for Writ of Habeas Corpus
(Doc. 1) is DENIED. The CLERK is directed to enter judgment against Porter and
in Respondent’s favor, to terminate any pending motions and deadlines, and to
CLOSE this case.
ORDERED in Tampa, Florida, on March 31, 2026.
JOHN L. BADALAMENTI
UNITED STATES DISTRICT JUDGE
34