Brown

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ROBERT EUGENE BROWN,

Petitioner,

v. Case No. 8:23-cv-2135-CEH-AEP

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________/

ORDER

Petitioner, a Florida prisoner, initiated this action by filing a petition for a writ

of habeas corpus under 28 U.S.C. § 2254 (Petition) (Doc. 1). Respondent filed a

response in opposition (Doc. 9), to which Petitioner replied (Doc. 13). Upon

consideration, the Petition will be denied.

I. BACKGROUND AND RELEVANT PROCEDURAL HISTORY

Petitioner and his accomplice entered a gas station wearing something covering

their faces and carrying guns (Doc. 10-2, Ex. 1a at 199-201).1 Three employees at the

gas station, Si Kang, Tae Kang, and Myong Kang, confronted them (Id., Ex. 1a at 198-

204). During the struggle, Petitioner’s hat and the shirt covering his face fell off (Id.,

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.

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Ex. 1a at 203). Si Kang was “right next to” and “face to face” with Petitioner and saw

his face (Id.). Petitioner shot Tae Kang (Id. at 202). Both Petitioner and his accomplice

escaped out the front door (Id., Ex. 1a at 202-04).

Approximately one year after the robbery, the police showed the three witnesses

photographs (Id., Ex. 1a at 443). When Si Kang saw the photograph of Petitioner, Si

Kang told the detective, “I think it’s possibly him.” (Id., Ex. 1a at 329). However, she

“did not want to positively identify anyone.” (Id., Ex. 1a at 466). After the detective

left, Si Kang was certain she had identified the robber (Id., Ex. 1a at 329-30). Tae King

could only say that two of the individuals in the photographs looked familiar (Id., Ex.

1a at 421). Myong Kang selected one photograph as the robber, but it was not

Petitioner (Id., Ex. 1a at 443; 462-63; 476). Both Si Kang and the detectives denied

that the detectives told the witnesses that they had selected the right person (Id., Ex.

1a at 330; 479; 514).

The hat and shirt that fell off the face and head of one of the robbers were tested

for DNA evidence (Id., Ex. 1a at 351; 362). The DNA discovered on the shirt and hat

matched the DNA sample Petitioner provided to law enforcement (Id., Ex. 1a at 569;

579).

A jury found Petitioner guilty of robbery with a firearm and aggravated battery

with a firearm (Id., Ex. 1 at 49). He was sentenced as a prison releasee reoffender to

25 years in prison on the aggravated battery conviction and life in prison on the robbery

with a firearm conviction (Id., Ex. 1 at 75-78). His convictions and sentences were

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affirmed on appeal (Id., Ex. 5).

Petitioner filed his federal habeas petition in this Court (Doc. 1), alleging one

claim for relief.

II. GOVERNING LEGAL PRINCIPLES

Because Petitioner filed his Petition after April 24, 1996, this case is governed

by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v.

Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The AEDPA “establishes a more

deferential standard of review of state habeas judgments,” Fugate v. Head, 261 F.3d

1206, 1215 (11th Cir. 2001), 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); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002)

(recognizing that the federal habeas court’s evaluation of state-court rulings is highly

deferential and that state-court decisions must be given the benefit of the doubt).

A. Standard of Review Under the AEDPA

Under the AEDPA, habeas relief may not be granted regarding a claim

adjudicated on the merits in state court unless the adjudication of the claim:

(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.

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28 U.S.C. § 2254(d). The phrase “clearly established Federal law” encompasses only

the holdings of the United States Supreme Court “as of the time of the relevant state-

court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

“[S]ection 2254(d)(1) provides two separate bases for reviewing state court

decisions; the ‘contrary to’ and ‘unreasonable application’ clauses articulate

independent considerations a federal court must consider.” Maharaj v. Secretary for

Dep’t. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was

discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831,

835 (11th Cir. 2001):

Under the “contrary to” clause, a federal court may grant the writ if the state

court arrives at a conclusion opposite to that reached by [the United States Supreme

Court] on a question of law or if the state court decides a case differently than [the

United States Supreme Court] has on a set of materially indistinguishable facts. Under

the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the

state court identifies the correct governing legal principle from [the United States

Supreme Court’s] decisions but unreasonably applies that principle to the facts of the

prisoner’s case.

If the federal court concludes that the state court misapplied federal law, habeas

relief is appropriate only if that application was “objectively unreasonable.” Id.

Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if

the state court’s decision “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” However, a

determination of a factual issue made by a state court shall be presumed correct, and

the habeas Petitioner has the burden of rebutting the presumption of correctness by

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clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).

B. Exhaustion and Procedural Default

The writ of habeas corpus cannot be granted unless the Petitioner has exhausted

all available state court remedies. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Lucas

v. Sec’y, Dep’t of Corr., 682 F.3d 1342, 1351 (11th Cir. 2012) (citing 28 U.S.C. § 2254(b),

(c)). Exhausting state remedies requires a Petitioner to “fairly present” his claims in

each appropriate state court “thereby alerting that court to the federal nature of the

claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing O’Sullivan v. Boerckel, 526 U.S.

838, 848 (1999) and Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)).

Moreover, to properly exhaust a claim, “the [Petitioner] must have presented his

claims in state court in a procedurally correct manner.” Upshaw v. Singletary, 70 F.3d

576, 579 (11th Cir. 1995).

Under the procedural default doctrine, a claim raised in a federal habeas

Petition is barred from review if the claim was not properly raised in state court and

“the court to which the Petitioner would be required to present [the] claims in order to

meet the exhaustion requirement would now find the claims procedurally barred.”

Coleman, 501 U.S. at 735 n.1. To avoid a procedural default, a Petitioner must show

“either cause for and actual prejudice from the default or fundamental miscarriage of

justice from applying the default.” Lucas, 682 F.3d at 1353; Smith v. Jones, 256 F.3d

1135, 1138 (11th Cir. 2001).

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III. ANALYSIS

In Ground One, Petitioner contends that his conviction violates due process

because the procedures by which he was identified as the perpetrator were unduly

suggestive. Specifically, Petitioner asserts that when Myong Kang was shown the

photo pack, Detective Himmel told her that she correctly identified the perpetrator.

Because of Detective Himmel’s comment, Petitioner argues that Myong Kang’s “out-

of-court identification should [have been] suppressed.” (Doc. 1 at 6).

Respondent contends that this claim is procedurally barred from review because

Petitioner never exhausted the claim in state court (Doc. 9 at 14-19). The Court agrees.

In his Initial Brief on direct appeal, Petitioner never argued that Myong Kang’s

identification of Petitioner was the product of an unduly suggestive procedure (Doc.

10-2 at 715-20). Rather, Petitioner conceded that the police’s procedure was not

suggestive, then argued that under all the circumstances, the trial court erred under

Florida law (Florida Statute 90.403) in denying Petitioner’s motion to suppress

because Myong Kang’s in-court identification of Petitioner was more prejudicial than

probative (Id. at 719). Thus, Petitioner never presented to the state appellate court the

claim he raises in Ground One of his federal habeas petition—that he was denied due

process because Myong Kang’s identification of Petitioner as the perpetrator was the

product of an unduly suggestive procedure. Because Petitioner did not fairly present

this claim, and the federal nature of this claim, to the state court, the ground is

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unexhausted. Duncan v. Henry, 513 U.S. 364, 366 (1995) (“If a habeas petitioner wishes

to claim that an evidentiary ruling at a state court trial denied him the due process of

law guaranteed by the Fourteenth Amendment, he must say so, not only in federal

court, but in state court.”).

If Petitioner returned to state court to attempt to exhaust the claim, the state

court would dismiss the claim as procedurally barred. See Fla. R. Crim. P. 3.850(c)

(“This rule does not authorize relief based on grounds that could have or should have

been raised at trial and, if properly preserved, on direct appeal of the judgment and

sentence.”). Petitioner does not argue that either cause and prejudice or manifest

injustice excuses the procedural default. Consequently, the claim is procedurally

barred from federal review. Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998).

Thus, Ground One warrants no relief because it is procedurally barred from review.

Even if the Court construed Ground One as raising the same claim Petitioner

asserted in his Initial Brief on direct appeal, the claim would warrant no relief. The

claim raised in state court was based entirely on the violation of state law (the trial

court erred in denying the motion to suppress and admitting both the out-of-court and

in-court identification of Petitioner because admitting the identifications was more

prejudicial than probative under section 90.403) (Doc. 10-2 at 715-20). The state law

claim is not cognizable on federal habeas review. Wilson v. Corcoran, 562 U.S. 1, 5

(2010) (“[I]t is only noncompliance with federal law that renders a State’s criminal

judgment susceptible to collateral attack in the federal courts.”); Branan v. Booth, 861

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F.2d 1507, 1508 (11th Cir. 1988) (“This limitation on federal habeas review is of equal

force when a petition, which actually involves state law issues, is ‘couched in terms of

equal protection and due process.’”) (citation omitted).

Finally, even if Ground One were not procedurally barred, it would fail on the

merits. See Loggins v. Thomas, 654 F.3d 1204, 1215 (11th Cir. 2011) (“When relief is

due to be denied even if claims are not procedurally barred, we can skip over the

procedural bar issues, and we have done so in the past.”); see also 28 U.S.C. § 2254(b)(2)

(“An application for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the remedies available in the

courts of the State.”). Assuming a violation of due process, Petitioner fails to

demonstrate entitlement to relief. Any constitutional error by the trial court in

admitting the identification evidence is subject to the harmless-error test set out in

Brecht v. Abrahamson, 507 U.S. 619 (1993):

In § 2254 proceedings, federal courts must evaluate constitutional

errors under the harmless-error standard articulated in Brecht v.

Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). As

Brecht explained, “[federal] habeas petitioners may obtain plenary

review of their constitutional claims, but they are not entitled to habeas

relief based on trial error unless they can establish that it resulted in

‘actual prejudice.’” Id. at 637, 113 S.Ct. at 1722. To find “actual

prejudice,” a federal habeas court must conclude that the error “had

substantial and injurious effect or influence in determining the jury’s

verdict.” Id. (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66

S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)).

Hittson v. GDCP Warden, 759 F.3d 1210, 1233–34 (11th Cir. 2014) (footnote omitted).

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Considering the trial as a whole—including the evidence revealing that

Petitioner’s DNA was found on both the shirt and the hat that the perpetrator was

wearing during the robbery—Petitioner fails to show that the trial court’s decision to

allow the identification evidence had a substantial and injurious effect or influence on

the verdict so as to result in actual prejudice. Accordingly, Ground One warrants no

relief.2

Accordingly:

1. The Petition for Writ of Habeas Corpus (Doc. 1) is DENIED. The Clerk of

the Court shall enter judgment against Petitioner and close this case.

2. This Court should grant an application for a Certificate of Appealability

(COA) only if Petitioner makes “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). He cannot make this showing. Accordingly, a COA is

2 In an abundance of caution, the Court notes that in Petitioner’s Reply, he raises new claims

for the first time concerning ineffective assistance of counsel (Doc. 13 at 1−6). These claims

are in fact new claims and are not additional details concerning another claim already raised.

Clisby v. Jones, 960 F.2d 925, 936 (1992). The Court will not address these extraneous claims

because they were not raised in the Petition. See Wilson v. United States, 2017 WL 3225903, at

*1 (11th Cir. Feb. 23, 2017) (citing Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th

Cir. 2005) (“[T]his claim was not properly raised until [the] reply brief and, therefore, was not

properly before the district court.”)); see also Prada v. United States, 692 F. App’x 572, 574 (11th

Cir. 2017) (affirming the district court’s refusal to consider new arguments raised in a reply

brief because petitioner “was barred from raising new claims”); Enriques v. United States, 416

F. App’x 849, 850 (11th Cir. 2011) (“Although pro se pleadings are construed more liberally

than those filed by counsel,...issues not argued by a pro se litigant in his initial brief are deemed

waived[,]...[and] we do not address arguments raised for the first time in a pro se litigant’s

reply brief.”); Snyder v. United States, 263 F. App’x 778, 780 (11th Cir. 2008) (affirming the

district court’s ruling that a pro se petitioner's reply brief could not be construed as an

amendment to add an additional claim to the motion to vacate).

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DENIED. And because Petitioner is not entitled to a COA, he may not proceed on

appeal in forma pauperis.

ORDERED in Tampa, Florida on June 11, 2026.

Charlene Edwards Honeywell

United States District Judge

Copies to: Petitioner, pro se

Counsel of Record

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