The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
MICHAEL KENNETH BALL,
Petitioner,
v. CASE NO. 5:25-cv-268-TPB-PRL
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
______________________________________/
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Michael Kenneth Ball filed an amended petition for a writ of habeas corpus
under 28 U.S.C. § 2254 challenging his state court convictions for second-degree
murder with a firearm and carrying a concealed firearm. (Doc. 7) The Respondent
asserts that the claims in the petition are procedurally barred and meritless.
(Doc. 13) After reviewing the amended petition, the response, and the state court
record (Doc. 13-1), the Court DENIES the amended petition.1
PROCEDURAL HISTORY
A jury found Ball guilty of second-degree murder with a firearm and carrying
a concealed firearm. (Doc. 13-1 at 1675–77) Before trial, the trial judge denied
Ball’s motion to dismiss based on immunity under Florida’s Stand Your Ground
law. (Doc. 13-1 at 653–60) Evidence at trial proved that, during an argument with
his neighbor, Ball pulled out a firearm from his waistband and shot his neighbor in
1 The Court afforded Ball an opportunity to file a reply (Doc. 10 at 3), Ball did not file a reply,
and the time to file a reply expired.
the chest. During an interview with detectives, Ball claimed that he acted in self-
defense because his neighbor threatened him and attacked him during the
argument and because his neighbor had attacked him two years earlier. The jury
rejected Ball’s claim of self-defense and found him guilty.
The trial judge sentenced Ball to life in prison with a mandatory minimum
prison term of twenty-five years for the second-degree murder conviction and a
concurrent five years in prison for the carrying a concealed firearm conviction.
(Doc. 13-1 at 1727–30) The state appellate court affirmed. (Doc. 13-1 at 1787) The
state appellate court denied Ball’s petition asserting ineffective assistance of
appellate counsel. (Doc. 13-1 at 1866) The post-conviction court denied Ball’s
motion for post-conviction relief (Doc. 13-1 at 1948–55), and the state appellate
court affirmed. (Doc. 13-1 at 2141)
MERITS
A federal court may grant a state prisoner habeas relief “only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Because Ball filed his federal petition after the
enactment of the Antiterrorism and Effective Death Penalty Act of 1996, AEDPA
governs the review of his claims. Lindh v. Murphy, 521 U.S. 320, 336–37 (1997).
Under AEDPA, a federal court cannot grant relief unless a petitioner exhausts his
remedies in state court. 28 U.S.C. § 2254(b)(1)(A). The petitioner must give the
state court one full opportunity to resolve the federal claim by invoking one
complete round of the state’s established appellate review process. O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). The state court must have the first opportunity
to review and correct any alleged violation of a federal right. Baldwin v. Reese,
541 U.S. 27, 29 (2004).
Also, a federal court cannot grant habeas relief unless a petitioner
demonstrates that the state court’s adjudication of the claim resulted in a decision
that either was contrary to or unreasonably applied clearly established federal law,
or that was based on an unreasonable determination of a fact. 28 U.S.C. § 2254(d).
Clearly established federal law refers to “the holdings, as opposed to the dicta, of
[the U.S. Supreme Court’s] decisions as of the time of the relevant state-court
decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
Ground One, Ground Two, and Ground Three
In Ground One, Ball asserts that trial counsel deficiently performed by not
interviewing and calling to testify at trial witnesses whose observations supported
his defense. (Doc. 7 at 5–6) In Ground Two, Ball asserts that trial counsel
deficiently performed by not interviewing and calling to testify at trial Ball’s
physician who treated Ball for an aneurysm. (Doc. 7 at 8–9) In Ground Three, Ball
asserts that trial counsel deficiently performed by not communicating to Ball any
plea offer from the prosecutor. (Doc. 7 at 10)
The Respondent asserts that the claims in Ground One, Ground Two, and
Ground Three are procedurally barred because Ball failed to exhaust his remedies
in state court. (Doc. 13 at 7–8) Ball failed to assert the claims in his brief on post-
conviction appeal. (Doc. 13-1 at 2121–36) Because Ball failed to “give the state
courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process,” the claims are
procedurally defaulted. O’Sullivan, 526 U.S. at 845. If Ball returned to state court
to exhaust the claims, the post-conviction court would dismiss the claims as
untimely and successive. Fla. R. Crim. P. 3.850(b), (h). Ball fails to demonstrate
either cause and prejudice or a miscarriage of justice based on actual innocence to
excuse the procedural bar. Maples v. Thomas, 565 U.S. 266, 280 (2012); House v.
Bell, 547 U.S. 518, 536–37 (2006). Consequently, the claims are procedurally
barred in federal court. Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998).
Accordingly, Ground One, Ground Two, and Ground Three are DISMISSED as
procedurally barred.
Ground Four
Ball asserts that trial counsel deficiently performed by not moving to
disqualify the trial judge. (Doc. 7 at 12–13) Ball raised the claim in his brief on
post-conviction appeal. (Doc. 13-1 at 2128–34) Because the state appellate court
affirmed in a decision without a written opinion (Doc. 13-1 at 2141), this Court looks
through the silent decision to the post-conviction court’s order denying relief and
evaluates the reasons for the denial of relief. Wilson v. Sellers, 584 U.S. 122, 125
(2018).
The post-conviction court denied the claim as follows (Doc. 13-1 at 1954):
Defendant argues that trial counsel was ineffective for failing
to file a motion to disqualify the trial judge. Defendant
articulates that the trial court judge made numerous
statements of Defendant’s guilt prior to his conviction, stated
facts not in evidence, ruled outside of the law, questioned
witnesses and specifically argues that the trial judge was
biased because he denied a special jury instruction and Stand
Your Ground immunity.
“In order to establish a claim of ineffectiveness for failure to file
a motion for disqualification, a defendant must show that a
facially sufficient claim of disqualification was present.”
Polanco v. State, 993 So. 2d 566, 566 (Fla. 4th DCA 2008).
Furthermore, “[a] motion to disqualify must be well-founded
and contain facts germane to the judge’s undue bias, prejudice,
or sympathy. The fact that a judge has previously made
adverse rulings is not an adequate ground for recusal.” Jackson
v. State, 599 So. 2d 103, 107 (Fla. 1992). The State argues in its
response that there was no basis for trial counsel to seek
recusal of the trial judge.
“We start with the well-established premise that counsel
cannot be deemed ineffective for failing to file a meritless
motion.” Michel v. State, 47 Fla. L. Weekly D2169 (Fla. 3d DCA
Oct. 26, 2022). See also Dickerson v. State, 285 So. 3d 353, 358
(Fla. 1st DCA 2019) (“Trial counsel cannot be held to have been
ineffective for not making meritless motions.”). Here, trial
counsel would have had insufficient grounds to file a motion to
disqualify, and the motion would have been meritless.
Accordingly, Defendant fails to meet his burden under the
second prong of Strickland, and this ground is denied.
Whether a motion for disqualification would have succeeded is an issue of
state law, and a federal court defers to a state court’s determination of state law.
Hendrix v. Sec’y, Fla. Dep’t Corrs., 527 F.3d 1149, 1153 (11th Cir. 2008) (“To the
extent that Hendrix argues recusal or disqualification was required under Florida
statutory law or its Code of Judicial Conduct, the Florida Supreme Court held to the
contrary, and we are bound by its interpretation of state law.”) (citations omitted).
A trial judge must grant a motion to disqualify if a party “reasonably fears
that he or she will not receive a fair trial or hearing because of specifically described
prejudice or bias of the judge.” Fla. R. Jud. Admin. 2.330(e)(1). “The judge against
whom an initial motion to disqualify [ ] is directed may determine only the legal
sufficiency of the motion and shall not pass on the truth of the facts alleged.”
Fla. R. Jud. Admin. 2.330(h).
“‘The standard for viewing the legal sufficiency of a motion to disqualify is
whether the facts alleged, which must be assumed to be true, would cause the
movant to have a well-founded fear that he or she will not receive a fair trial at the
hands of that judge.’” Wall v. State, 238 So. 3d 127, 143 (Fla. 2018) (quoting Parker
v. State, 3 So. 3d 974, 982 (Fla. 2009)). “‘[T]his fear of judicial bias must be
objectively reasonable.’” Wall, 238 So. 3d at 143 (quoting Parker, 3 So. 3d at 982).
“[T]he context of the hearing and history of the case as reflected in the record are
relevant to understanding whether a movant has a well-founded fear of judicial
bias.” Wall, 238 So. 3d at 143. Ball identifies ten comments by the trial judge that
he contends would have supported disqualification.
Comment One
“During the hearing for the State[’s] motion in limine, the trial
judge makes the comment that the Petitioner ‘was ready.’
Counsel of record[ ] informed the trial judge that is for the jury
to decide, and that statement is a mischaracterization of the
evidence.”
(Doc. 7 at 12)
The trial judge made the comment during a hearing on the prosecution’s
motion in limine to exclude an out-of-court statement by the victim. (Doc. 13-1 at
678–85) Before the hearing on the motion in limine, the trial judge had presided
over an evidentiary hearing for Ball’s Stand Your Ground motion. (Doc. 13-1 at 25,
666, 676) The prosecutor moved to exclude a statement by the victim outside the
presence of Ball that he was “going to go out and fuck that guy up,” referring to
Ball. (Doc. 13-1 at 678) The trial judge made the comment that Ball “was ready for
him” based on his recollection of the evidence at the evidentiary hearing. (Doc. 13-1
at 682–83) Shortly after making the comment, the trial judge granted the
prosecution’s motion in limine. (Doc. 13-1 at 685)
Because the trial judge’s comment was part of a ruling adverse to Ball, and
“[t]he fact that a judge has previously made adverse rulings is not an adequate
ground for recusal,” a motion to disqualify based on Comment One would not have
succeeded. Jackson v. State, 599 So. 2d 103, 107 (Fla. 1992).
Comment Two
“On September 15, 2021, the trial judge stated that ‘vicinity of
the home’ as allowed in Florida Statute [Section] 790.25(3)(n),
and requested in the special jury instruction ‘does not apply’ in
this case as he was ‘down the street.’ This was another
mischaracterization of the evidence as the evidence indicated a
distance of sixty feet from the Petitioner[’s] mailbox at the
furthest the Petitioner ever traveled.”
(Doc. 7 at 12)
The record demonstrates that the trial judge denied the defense’s request for
a special jury instruction after determining during trial that the standard
instruction sufficed. (Doc. 13-1 at 1481–84) On September 15, 2021, the trial judge
presided over a sentencing hearing and ruled on Ball’s motion for a new trial.
(Doc. 13-1 at 1679–82) During the ruling on the motion for a new trial, the trial
judge determined that Ball was “down the street away from his residence by at least
two to three lots.” (Doc. 13-1 at 1681) Because the comment was based on the trial
judge’s recollection of the evidence at trial and related to a ruling adverse to Ball,
a motion to disqualify based on Comment Two would not have succeeded. Jackson,
599 So. 2d at 107.
Comment Three
“The trial judge questioned the first witness after both the
Petitioner and the State stopped their questions. Counsel of
record[ ] admonished the trial judge.”
(Doc. 7 at 12)
Comment Four
“The trial judge again questioned the second witness about [to]
give [a] version of events[;] again he was admonished by
defense counsel.”
(Doc. 7 at 12)
During the evidentiary hearing on Ball’s Stand Your Ground motion, the trial
judge asked witnesses questions. At the end of the examination of the first witness
at the hearing, the trial judge asked the following questions (Doc. 13-1 at 77–78):
[Trial judge:] Okay. How old is Mr. Ball, if you know,
best estimate?
[Witness:] I would say seventy.
[Trial judge:] How tall is he?
[Witness:] Five-eight.
[Trial judge:] How tall — now, [how] old is Mr. Dorbert?
[Witness:] Thirty-five.
[Trial judge:] How big?
[Witness:] Height-wise?
[Trial judge:] Height-wise.
[Witness:] Six foot.
[Trial judge:] Six foot, okay. That’s all the questions. . . .
During cross-examination of the second witness, the trial judge asked the
following questions (Doc. 13-1 at 108–11):
[Trial counsel:] — rather than making you come over
here, I’m [going to] point. Can you tell me
where you saw Tyler? You said by the
mailbox.
[Witness:] No.
[Trial counsel:] Which way do you want me to hold my
hand?
[Witness:] Further down.
[Trial counsel:] Further down, so down —
[Witness:] Not that far.
[Trial counsel:] Not this way. Here?
[Witness:] And —
[Trial counsel:] Closer?
[Witness:] Up towards his house a little.
[Trial counsel:] Up towards his house.
[Witness:] No. No. Let me come up there.
[Trial judge:] Let’s get her some assistance. And again,
when you point this out, make sure you
don’t block my view of it [because] I really
can’t move that good.
[Witness:] Yes, sir. The first time when they were
arguing —
[Trial counsel:] Hold on for a second. I’m [going] to see if I
can pull my microphone closer so that it
picks up. Speak loudly, ma’am, and I
think you’re blocking —
[Trial judge:] You’re blocking. I can’t see. I’m sorry.
[Witness:] I’m so sorry.
[Trial counsel:] Why don’t you come from right back here.
[Trial judge:] There you go.
[Witness:] The first time they were arguing, Tyler
was standing probably about right here.
[Trial judge:] Okay. Where was the defendant?
[Witness:] The defendant, as they’re arguing back
and forth, kept coming closer and closer
and closer and closer and closer.
[Trial judge:] And what’s the victim doing?
[Witness:] He’s still standing here. He never — he
never moved from his spot.
[Trial judge:] Okay. Go ahead.
[Witness:] And he went into — back into his home,
came back out, and they were constantly
arguing back and forth again.
[Trial judge:] Uh-huh.
[Witness:] And that’s — he came back closer and
closer and closer.
[Trial judge:] Okay.
[Witness:] Can I sit down?
[Trial judge:] So, he was on the street when he shot the
gun?
[Witness:] Mike was on the — on the street, [and]
Tyler was in his yard.
[Trial judge:] Okay.
During cross-examination of the second witness, the trial judge asked these
additional questions (Doc. 13-1 at 112–14):
[Trial counsel:] Okay. Where was Katie?
[Witness:] I could hear her voice. I don’t know. She
was busy with the kids. She was getting
ready for work.
[Trial counsel:] You couldn’t see her?
[Witness:] No, because of my bushes.
[Trial counsel:] Okay. So you — are you speculating —
actually, you’re not — I don’t want to ask
you to repeat those anymore. You could —
[Trial judge:] Oh, let me ask you a question before you
— I know [you’re] having a tough time
walking. What you said earlier, that they
were about five feet away when this man
shot Tyler, right? Correct?
[Witness:] — watching.
[Trial judge:] Yes, ma’am, you were watching. Okay.
Now, the bailiff, just pretend the bailiff is
Tyler. You’re Mr. Ball. Look at the bailiff
now and just show me physically, were
you closer or farther? If you need to move,
feel free. Take your time. You were about
that far when the — he was about that far
from Tyler when the shot was fired?
[Witness:] Yes, sir.
[Trial judge:] What was Tyler doing? If you can recall.
[Witness:] He was just standing there.
[Trial judge:] He hadn’t moved towards the defendant?
[Witness:] No.
[Trial judge:] Did he have his hands up?
[Witness:] No.
[Trial judge:] Did he have fists made into balls?
[Witness:] No.
[Trial judge:] Have a seat, please.
[Witness:] Your Honor, may I add, this was at 7:30
in the morning.
[Trial judge:] Uh-huh.
[Trial counsel:] Your Honor, I would object to —
[Trial judge:] Is it about your comfort, ma’am, are you
cold?
[Witness:] No.
[Trial judge:] Well, I —
[Witness:] Tyler had no shirt on. It looked like he
just woke up.
[Trial counsel:] Objection, Your Honor. There’s no
pending questions here.
[Trial judge:] Okay. Well, there might be after this, so
just take a deep breath and relax. Tell us
only the truth and await the next
question.
“A judge may question witnesses to clarify issues, as long as the questions do
not demonstrate a departure from the judge’s neutral position.” Lee v. State, 264
So. 3d 225, 226 (Fla. 1st DCA 2018). See § 90.615(2), Fla. Stat. (“When required by
the interests of justice, the court may interrogate witnesses, whether called by the
court or by a party.”). “[W]hen a trial judge is sitting as the sole finder of fact, his
role is not that of a passive observer.” Nateman v. Greenbaum, 582 So. 2d 643, 644
(Fla. 3d DCA 1991). “Disqualifying a judge because his examination of a witness on
relevant matters gives a clue as to how he may be inclined to rule at the end of the
evidence would wreak administrative havoc in the circuit court by inviting
mid-hearing motions for recusal.” Nateman, 582 So. 2d at 644.
Because the trial judge was the only finder of fact at the evidentiary hearing
on the Stand Your Ground motion, because the trial judge asked questions that
clarified testimony by the witnesses, and because the trial judge did not otherwise
depart from a neutral position, a motion to disqualify based on the trial judge’s
examination of the witnesses would not have succeeded. Nateman, 582 So. 2d at
644–45.
Comment Five
“Judge Howard stated the Petitioner ‘selected’ the gun, and
didn’t ‘rack’ the gun, which indicated again, facts not in
evidence.”
(Doc. 7 at 12)
The trial judge made the comment when denying the Stand Your Ground
motion. (Doc. 13-1 at 658–59) Because the trial judge determined this fact after an
evidentiary hearing and made the comment as part of a ruling adverse to Ball, a
motion to disqualify based on Comment Five would not have succeeded. Jackson,
599 So. 2d at 107.
Comment Six
“Judge Howard overruled an objection made by counsel of
record[ ] that the State claimed the witness stated the
‘defendant went into his home’ which the witness never stated.”
(Doc. 7 at 12)
The trial judge made the comment when overruling an objection by trial
counsel during trial. (Doc. 13-1 at 821) Because the trial judge determined this fact
after hearing testimony at trial and made the comment as part of a ruling adverse
to Ball, a motion to disqualify based on Comment Six would not have succeeded.
Jackson, 599 So. 2d at 107.
Comment Seven
“Judge Howard in the denial of the inclusion of the victim’s
statement that he was going to ‘fuck Ball up,’ stated ‘it’s not
relevant.’ The ruling is clearly not following the relevant laws
of exceptions to hearsay statements.”
(Doc. 7 at 12)
The trial judge made the comment during trial when denying trial counsel’s
motion for reconsideration of the ruling to exclude the following statement by the
victim: “I’m going to go out there and I’m going to fuck this guy up,” referring to
Ball. (Doc. 13-1 at 848–54) Because the trial judge made this comment as part of a
ruling adverse to Ball, a motion to disqualify based on Comment Seven would not
have succeeded. Jackson, 599 So. 2d at 107.
Comment Eight
“Judge Howard told the State in a sidebar conference, ‘[h]e’s
winning this.’”
(Doc. 7 at 12)
The trial judge made the comment when the prosecutor objected to trial
counsel’s request to introduce evidence during cross-examination of a witness who
was testifying during the prosecution’s case-in-chief. (Doc. 13-1 at 963–65) Trial
counsel advised that he had subpoenaed the witness and agreed to call the witness
during the defense’s case-in-chief to introduce the evidence. (Doc. 13-1 at 934–65)
However, the trial judge overruled the prosecutor’s objection after informing trial
counsel that he was “kind of winning this.” (Doc. 13-1 at 964) Because the trial
judge made the comment as part of a ruling adverse the prosecutor and in favor of
Ball, a motion to disqualify based on Comment Eight would not have succeeded.
Wall, 238 So. 3d at 143.
Comment Nine
“When the defense stated that there are exceptions to the
Florida[’s] concealed carry law, the trial judge told him he is
facing a ‘cautionary [instruction].’ Counsel of record[ ] said the
jury should decide as it is a factual determination, the State
said it was a legal determination. Judge Howard told the jury
to disregard the statement.”
(Doc. 7 at 12–13)
The trial judge made the comment when sustaining an objection by the
prosecutor during the defense’s closing argument. (Doc. 13-1 at 1558) During
closing, trial counsel told the jury that, under Florida law, a person can carry a
concealed firearm “within the vicinity of [his] property.” (Doc. 13-1 at 1557) The
prosecutor objected, and the trial judge sustained the objection and instructed the
jury to disregard the comment. (Doc. 13-1 at 1558–59) Also, outside the presence of
the jury, the trial judge warned trial counsel that he would give the jury a
cautionary instruction if trial counsel repeated the statement. (Doc. 13-1 at 1558)
Because the trial judge made the comment as part of a ruling adverse to Ball, a
motion to disqualify based on Comment Nine would not have succeeded. Jackson,
599 So. 2d at 107.
Comment Ten
“The jury requested, by written question, for the ‘transcript’ of
the interview that was played. The trial judge denied the
request, stating it’s not in evidence. Then changed his stance
on the ruling and gave it to them.”
(Doc. 7 at 13)
The trial judge made the comment when ruling on the jury’s request for a
transcript during deliberations. (Doc. 13-1 at 1614–20, 1635–37) During
deliberations, the jury asked for a transcript that the prosecutor provided during
trial while playing a video recording of a detective’s interrogation of Ball. (Doc. 13-1
at 1614–20) The trial judge responded that the prosecutor introduced into evidence
only the video recording and did not introduce the transcript. (Doc. 13-1 at 1620)
The trial judge offered to play part of the video recording and provide the transcript
to assist with the review. (Doc. 13-1 at 1620–21) The jury foreperson clarified that
the jury wanted to view the part of the video recording transcribed on the last five
pages of the transcript. (Doc. 13-1 at 1621, 1624–25) The trial judge arranged for
the jury to view that part of the video recording with assistance of the transcript.
(Doc. 13-1 at 1635–56)
Because the trial judge made the comments as part of a ruling on the jury’s
request for a transcript, a motion to disqualify based on Comment Ten would not
have succeeded. Jackson, 599 So. 2d at 107.
Because a motion to disqualify based on all the comments would not have
succeeded, trial counsel did not deficiently perform. Pinkney v. Sec’y, Dep’t Corrs.,
876 F.3d 1290, 1297 (11th Cir. 2017) (“[A]n attorney will not be held to have
performed deficiently for failing to perform a futile act, one that would not have
gotten his client any relief.”). Also, Ball cannot demonstrate a reasonable
probability that the outcome at trial would change. Strickland, 466 U.S. at 694.
Consequently, the post-conviction court did not unreasonably deny the claim.
Ground Four is DENIED.
Conclusion
Because Ball fails to meet his heavy burden under AEDPA, his amended
petition for a writ of habeas corpus (Doc. 7) is DENIED. Because Ball fails to show
that reasonable jurists would debate either the merits of the underlying claims or
the procedural issues that he seeks to raise, a certificate of appealability and leave
to appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2). Slack v.
McDaniel, 529 U.S. 473, 478 (2000). The Clerk must enter a judgment against Ball
and CLOSE the case.
DONE and ORDERED in Chambers, in Tampa, Florida, this 3rd day of
June, 2026.
TOMBARBER SSS
UNITED STATES DISTRICT JUDGE
17