Opinion

ALLEN

Court: District Court, N.D. Florida
Filed: Jun 23, 2026
Cited by: 0 cases
Authority: More cited than 42.1%

The opinion

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MICHAEL L. ALLEN,

Petitioner,

vs. Case No.: 4:23cv226/MW/ZCB

RICKY D. DIXON,

Respondent.

___________________________________/

REPORT AND RECOMMENDATION

This is a federal habeas corpus case filed under 28 U.S.C. § 2254.

(Doc. 1). Respondent has answered the petition, and Petitioner has

replied. (Docs. 9, 11). For the reasons below, Petitioner is not entitled to

habeas relief.1

I. Factual Background

Petitioner, Michael L. Allen, had been in a relationship with

Lanedra Williams. Ms. Williams ended that relationship approximately

one week prior to May 25, 2017. (Doc. 9-2 at 52-53). After breaking up

1 This matter may be resolved without an evidentiary hearing. Rule 8(a),

Rules Governing Section 2254 Cases.

with Petitioner, Ms. Williams began a friendship with Vontrez Moore.

(Id. at 54).

After learning that Mr. Moore had been talking with Ms. Williams,

Petitioner sent a Facebook message asking Mr. Moore to call him. (Id. at

111-13). Mr. Moore made the call, during which Petitioner said things

that Mr. Moore perceived as threats. (Id. at 112-14). The two men agreed

to meet each other outside a barbershop on May 25, 2017. (Id. at 113-14,

121).

During the meeting, Petitioner questioned Mr. Moore about the

status of his relationship with Ms. Williams. (Id. at 114-15). Referring

to Ms. Williams, Petitioner said: “That’s mine, pussy n***er, that’s mine.”

(Id. at 115-16). Petitioner challenged Mr. Moore to call Ms. Williams and

let him listen in on their conversation, but Mr. Moore refused. (Id. at

116-17). As the meeting ended, Petitioner told Moore, “you probably will

be hearing more from me again.” (Id. at 117). Mr. Moore then got in his

car and left. (Id.).

Mr. Moore subsequently called Ms. Williams, and they agreed to

meet up at Jack McLean Park. (Id.). Ms. Williams arrived at the park

first and backed into a parking spot. (Id. at 55, 117). Mr. Moore parked

across from her, exited his car, and walked over to the driver’s side

window of Ms. Williams’ SUV to talk with her. (Id.). Soon after they

started talking, Petitioner unexpectedly pulled up in his truck. (Id. at

56, 117-18). Petitioner parked his truck in front of Ms. Williams’ SUV,

blocking her in. (Id. at 56).

Petitioner got out of his truck, looked at Ms. Williams, pointed at

Mr. Moore, and demanded, “is this your man, huh? . . . This who you done

left me for[?]” (Id. at 56-57, 118). Petitioner then reached into Ms.

Williams’ open car window, grabbed her cell phone, and slammed it to

the ground with such force that it broke. (Id. at 57, 71-73, 118-20).2

Petitioner then turned to Mr. Moore and punched him. (Id. at 120).

Mr. Moore fell to the ground and hit his head. (Id. at 120-21). Petitioner

then began kicking Mr. Moore. (Id. at 120-21). Mr. Moore’s phone, as

2 Although both Ms. Williams and Mr. Moore testified that Petitioner

reached into Williams’ SUV and grabbed her phone, they gave slightly

different versions of where her phone was when Petitioner grabbed it.

Mr. Moore testified that he recalled the phone being in Ms. Williams’

hand, and that Petitioner first grabbed Ms. Williams’ arm and then her

phone. (Doc. 9-2 at 118-19). Ms. Williams testified that her phone was

on her thigh, not in her hand. (Id. at 57, 71-73).

well as a taser, fell out of his pocket during the scuffle. (Id. at 121). Mr.

Moore never brandished the taser before it fell out of his pocket. (Id. at

58, 121). Petitioner picked up the taser, and Mr. Moore fled to his car.

(Id. at 121-22).

Ms. Williams then backed her SUV over the curb, maneuvered it

around Petitioner’s truck, and circled the parking lot. (Id. at 58-59, 82).

Petitioner got into his truck, put it in gear, and plowed his truck into the

side of Ms. Williams’ SUV. Petitioner’s truck hit Ms. Williams’ SUV with

such force that the airbags deployed. (Id. at 58-60, 106). Mr. Moore drove

to a nearby school and used a bystander’s phone to call 911. (Id. at 121-

22).

One of the responding police officers photographed Mr. Moore’s

injuries, which included a knot on his head, bruised ribs, and scrapes.

(Id. at 122-23). Mr. Moore received treatment from EMS for those

injuries. (Id. at 146-47). Another responding police officer, Officer

Aldridge, interviewed Petitioner and Ms. Williams. (Id. at 84-87).

During the investigation, officers photographed Ms. Williams’ broken cell

phone and the damage found on both her SUV and Petitioner’s truck. (Id.

at 60, 87-88). Officer Aldridge examined the damage to the vehicles and

noted that Petitioner’s truck did not simply sideswipe Ms. Williams’ SUV;

rather, it directly hit it. (Id. at 106).

The incident was captured on the park’s video surveillance

cameras. (Id. at 31-36). And Petitioner was subsequently charged with

burglary of a conveyance with assault (Count I), aggravated battery with

a deadly weapon (Count II), misdemeanor criminal mischief (Count III),

and misdemeanor battery (Count IV). (Doc. 9-1 at 22-23). Petitioner’s

case proceeded to a jury trial. (Doc. 9-2). The jury convicted Petitioner

of the lesser offense of burglary of an occupied conveyance as to Count I

and as charged on Counts II through IV. (Doc. 9-1 at 59-60; Doc. 9-2).

The trial court sentenced Petitioner—a recidivist with a lengthy record—

to twelve years’ imprisonment. (Doc. 9-1 at 64-74).

II. Procedural History

Petitioner appealed his conviction to the Florida First District

Court of Appeal (First DCA). (Doc. 9-3). That court affirmed. (Doc. 9-6);

Allen v. State, 279 So. 3d 646 (Fla. 1st DCA 2019). Petitioner then sought

state postconviction relief under Florida Rule of Criminal Procedure

3.850. (Docs. 9-7, 9-8, 9-9). The trial court held an evidentiary hearing

on four of Petitioner’s seven claims before ultimately denying them all.

(Docs. 9-10, 9-11, 9-12). Petitioner appealed to the First DCA, which

affirmed. (Docs. 9-13, 9-15); Allen v. State, 359 So. 3d 1264 (Fla. 1st DCA

2023).

Petitioner then turned his postconviction efforts to federal court by

filing the current habeas corpus petition under 28 U.S.C. § 2254. (Doc.

1). The § 2254 petition raises three claims—two ineffective assistance of

trial counsel claims and one challenging the denial of his newly

discovered evidence claim. Each claim will be discussed in detail below.

But first the Court will address Respondent’s argument that Petitioner’s

§ 2254 petition was untimely filed.

III. Timeliness

An inmate in state custody has one year to file a § 2254 habeas

petition. See 28 U.S.C. § 2244(d)(1). The one-year clock starts running

from the latest of:

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time

for seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed, if

the applicant was prevented from filing by such State

action;

was initially recognized by the Supreme Court, if the

right has been newly recognized by the Supreme Court

and made retroactively applicable to cases on collateral

review; or

(D) the date on which the factual predicate of the claim

or claims presented could have been discovered through

the exercise of due diligence.

28 U.S.C. § 2244(d)(1). The statute also includes a tolling provision,

which provides that, “[t]he time during which a properly filed application

for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted toward any

period of limitation . . . .” 28 U.S.C. § 2244(d)(2).

Here, the parties agree that the relevant trigger for the limitation

period is the date the state court judgment became final—i.e., §

2244(d)(1)(A). (Doc. 9 at 2-5; Doc. 11 at 2). The parties also agree that

the judgment became final on December 18, 2019. (Id.). That is when

the ninety-day window closed for Petitioner to seek review in the U.S.

Supreme Court. (Doc. 9-6). The one-year clock for filing a § 2254 petition

started to run the next day, on December 19, 2019. See Fed. R. Civ. P.

6(a)(1) (stating that when computing a time period for the occurrence of

an event specified by the law, the Court should “exclude the day of the

event that triggers the period”).

The clock continued to run until December 14, 2020, when

Petitioner filed his Rule 3.850 motion in state court. (Doc. 9-7). The filing

of that motion tolled the one-year clock, and when it was filed 361 days

had elapsed (December 19, 2019, to December 14, 2020).3 That motion

was pending until May 22, 2023, which is when the First DCA’s mandate

issued on Petitioner’s appeal from the denial of his Rule 3.850 motion.

(Doc. 9-15 at 1); see generally Nyland v. Moore, 216 F.3d 1264, 1267 (11th

Cir. 2000) (holding that when a Florida petitioner appeals the trial court’s

denial of postconviction motion, the motion remains pending until the

appellate court’s mandate).

3 Respondent argues that the one-year clock stopped at 362 days. (Doc.

9 at 3). Respondent either misapplied Rule 6(a) by counting the day of

the event that triggered the federal clock (i.e., the finality date) or

erroneously counted the day that Petitioner filed the tolling motion.

The one-year clock started to tick again on May 23, 2023, the day

after the mandate issued. Petitioner filed his § 2254 petition three days

later on May 26, 2023. (Doc. 1 at 20, 24).4 Because only 364 days of the

one-year limitations period had passed (361 + 3 = 364) when Petitioner

filed his § 2254 petition, it was timely. Having found that the petition

was timely, the Court will now turn to a discussion of Petitioner’s claims.

IV. Legal Standard for 28 U.S.C. § 2254 Petitions

Under § 2254(d), a federal court may invalidate a state criminal

conviction only if a state court decision on the merits (1) “was contrary

to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States;”

or (2) “was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1)-(2). This is a “highly deferential standard” that “demands

that state-court decisions be given the benefit of the doubt[.]” Cullen v.

Pinholster, 563 U.S. 170, 181 (2011). When considering a state prisoner’s

4 Again, Respondent’s calculation is one day off. Respondent argues that

four days passed between issuance of the mandate and the date

Petitioner filed his § 2254 petition. (Doc. 9 at 4-5).

habeas petition under § 2254(d), a federal court is not sitting as an

appellate court with the mandate of correcting errors that may have

occurred in the state court. See Shinn v. Ramirez, 596 U.S. 366, 377

(2022) (explaining that a federal habeas proceeding is not “a substitute

for ordinary error correction through appeal”).

To be contrary to clearly established federal law under § 2254(d)(1),

“the state court must either (1) apply a rule that contradicts the

governing law set forth by Supreme Court case law, or (2) reach a

different result from the Supreme Court when faced with materially

indistinguishable facts.” Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir.

2010) (cleaned up). And to meet the unreasonable application standard,

“a prisoner must show far more than that the state court’s decision was

merely wrong or even clear error.” Shinn v. Kayer, 592 U.S. 111, 118

(2020) (cleaned up). Rather, the state court’s application of federal law

must be “so obviously wrong that its error lies beyond any possibility for

fairminded disagreement.” Id. (cleaned up). This standard reflects that

the writ of habeas corpus is an “extraordinary remedy that guards only

against extreme malfunctions in the state criminal justice systems.”

Ramirez, 596 U.S. at 377 (cleaned up).

V. Discussion

A. Ineffective assistance of counsel claims

In his § 2254 petition, Petitioner has raised two ineffective

assistance of trial counsel claims. Such claims are governed by the

standard found in Strickland v. Washington, 466 U.S. 668 (1984). To

prevail on a Strickland claim, a petitioner must show that (1) counsel’s

performance was constitutionally deficient, and (2) prejudice resulted.

Id. at 687. Under the deficiency prong, the inquiry focuses on “whether

counsel’s assistance was reasonable considering all the circumstances.”

Id. at 688. Trial counsel is “strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Id. at 690. As for the prejudice

prong, the inquiry focuses on whether the petitioner has shown there is

a “reasonable probability” that the outcome would have been different

absent counsel’s deficient performance. Id. at 694. To make the prejudice

showing, the “likelihood of a different result must be substantial, not just

conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).5

Having set forth the applicable standard, the Court will now apply

it to Petitioner’s ineffective assistance of counsel claims.

1. Ground One: “Counsel was ineffective for interfering

with Petitioner’s right to testify.”

In Ground One, Petitioner claims counsel provided ineffective

assistance by advising him not to testify at trial. (Doc. 1 at 22). According

to Petitioner, absent counsel’s advice, he would have testified that he did

not reach into Ms. Williams’ vehicle to grab her phone (thus, negating the

entry element of the burglary charge in Count I) and that he accidentally

struck her vehicle with his truck (thus, negating the intent element of

the aggravated battery with a deadly weapon charge in Count II).

5 Both the Strickland standard and the standard for relief under § 2254

are “highly deferential.” Richter, 562 U.S. at 105. And when—in a case

like the current one— “the two apply in tandem, review is doubly”

deferential. Id. (cleaned up). The Supreme Court has warned that

“habeas courts must guard against the danger of equating

unreasonableness under Strickland[ʼs]” deficient performance prong

with “unreasonableness under § 2254(d).” Id. Thus, “[w]hen § 2254(d)

applies, the question is not whether counsel’s actions were reasonable.

The question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.” Id.

Petitioner says that if the jury had heard this testimony from him, then

there is a reasonable probability the jury would have acquitted him on

Counts I and II.

Petitioner presented this claim in his Rule 3.850 motion. (Doc. 9-7

at 27). At the evidentiary hearing on the Rule 3.850 motion, Petitioner’s

trial counsel, David Collins, testified. (Doc. 9-11 at 44). Attorney Collins

explained that he had over thirty years of experience and had handled

approximately 500 criminal trials. (Id. at 45-46). Attorney Collins stated

that he and Petitioner had discussed the possibility of Petitioner

testifying. (Id. at 47, 49, 58). Attorney Collins testified that he had

learned during the representation that Petitioner had at least five prior

felony convictions, but he could not recall the specific number of

convictions. (Id. at 46, 48, 56-58). Attorney Collins further testified that

neither of the victims had a felony record, although he said it was possible

Mr. Moore may have had one conviction. (Id. at 56).

Attorney Collins explained that in his opinion Petitioner had a

tough case because there was a video of the incident. After the video was

played for the jury and after Attorney Collins had cross-examined the

victims, Attorney Collins and Petitioner discussed whether Petitioner

should testify. (Id. at 49, 58). In Attorney Collins’ opinion, Petitioner’s

testimony was “not going to help that much,” and his prior convictions

would have given the jury a reason to discredit his testimony. (Id. at 47,

61-62).

Petitioner also testified at the evidentiary hearing on his Rule 3.850

motion. (Id. at 22). He acknowledged that he had eight prior felony

convictions from five criminal cases,6 as well as a misdemeanor

conviction for a crime of dishonesty. (Id. at 34-37). Petitioner stated that

Attorney Collins advised him against testifying because the prosecutor

would bring up his criminal convictions and “eat [him] alive.” (Id. at 28).

According to Petitioner, he would have testified that Ms. Williams held

her phone outside of the window and Petitioner knocked it from her hand.

(Id. at 31-32, 38-40). Moreover, Petitioner said he would have testified

that he accidentally crashed his truck into Ms. Williams’ vehicle. (Id. at

32-33).

6 Several of the cases involved multiple felony counts.

The state trial court rejected Petitioner’s claim, finding that he had

not satisfied the Strickland standard. (Doc. 9-11 at 102-104; Doc. 9-12).

In reaching that conclusion, the court explained that it was reasonable

for Attorney Collins to advise Petitioner that testifying would have

exposed the jury to his prior convictions, which could have adversely

impacted the jury’s assessment of his credibility. (Doc. 9-11 at 102-03).

The court further found that Petitioner’s testimony about what he would

have told the jury had he testified was “wholly incredible.” (Id. at 104).

Thus, the court effectively found that there was no reasonable probability

the result would have been different had Petitioner testified.

Petitioner appealed the trial court’s denial of his Rule 3.850 motion,

and the First DCA affirmed. (Doc. 9-15).7 In his § 2254 petition,

Petitioner claims that the state court’s decision involved an unreasonable

7 The First DCA explained its reasons for rejecting two of Petitioner’s

postconviction claims, but it did not explain its reasoning on this

particular claim of ineffective assistance of counsel. (Doc. 9-15 at 4-7).

Because the First DCA’s decision on this claim was not accompanied by

reasons, the Court will look through to the trial court’s reasons for

rejecting Petitioner’s claim. See Wilson v. Sellers, 584 U.S. 122, 125

(2018) (holding that where a reviewing state court’s decision is not

accompanied by reasons, the federal habeas court must “look through”

the unexplained decision to the trial court’s rationale).

application of Strickland.8 Thus, “the question [for this Court] is whether

there is any reasonable argument that counsel satisfied Strickland’s

deferential standard” for attorney performance. Richter, 562 U.S. at 105.

The answer to that question is “yes”—there is such a reasonable

argument here. And that means Petitioner is not entitled to habeas relief

on Ground One.

A criminal defendant has a right to testify at trial. United States v.

Teague, 953 F.2d 1525, 1532 (11th Cir. 1992) (en banc). That right is a

personal one that can only be waived by the defendant. Id. Defense

counsel is responsible for informing “the defendant of his right to testify

or not to testify, the strategic implications of each choice, and that it is

ultimately for the defendant himself to decide.” Id. at 1533. Additionally,

8 To the extent Petitioner has argued that the state court decision was

“contrary to” federal law, he is plainly incorrect. A state court’s decision

is only “contrary to” federal law “if the decision applies a legal principle

substantially different from the relevant precedent of the Supreme

Court.” Gore v. Sec’y for Dep’t of Corr., 492 F.3d 1273, 1293 (11th Cir.

2007) (cleaned up). Thus, if the “state court correctly identifies the

governing precedent, that court’s decision cannot be said to be ‘contrary

to’ federal law.” Id. (cleaned up). Here, the state court correctly

identified the governing Supreme Court precedent and legal standard

(i.e., Strickland’s deficient performance and prejudice standard). (See,

e.g., Doc. 9-11 at 100, 102).

if defense counsel “believes that it would be unwise for the defendant to

testify, counsel may, and indeed should, advise the client in the strongest

possible terms not to testify.” Id. An attorney generally does not provide

ineffective assistance by advising a defendant against testifying where

testifying would open the defendant up to cross examination regarding

his prior felony convictions. See Lisbon v. United States, 758 F. App’x

780, 783-84 (11th Cir. 2018) (rejecting argument that counsel provided

ineffective assistance by advising defendant with a prior felony

conviction not to testify because the conviction could be used as

impeachment); see also Preston v. Sec’y, Dep’t of Corr., 745 F. App’x 835,

838 (11th Cir. 2018) (same).

Here, the state court reasonably found that Attorney Collins did not

perform deficiently by advising Petitioner against testifying. It is

apparent from the record that Attorney Collins informed Petitioner of his

right to testify and discussed the matter with him. (Doc. 9-2 at 162; Doc.

9-11 at 27-28). It is also apparent that Petitioner understood that the

decision regarding whether to testify was his to make. Indeed, Petitioner

confirmed to the trial judge that he understood his right to testify, that

he had discussed the issue with Attorney Collins, and that he had decided

to waive that right. (Doc. 9-2 at 153, 162). Thus, this is not a case where

“defense counsel refused to accept the defendant’s decision to testify and

would not call him to the stand[.]” Teague, 953 F.2d at 1534. Nor is it a

case where “defense counsel never informed the defendant of the right to

testify[.]” Id.

Instead, this is a case where an experienced defense attorney

advised a client that he believed testifying was a bad idea because it

would allow the jury to learn Petitioner was a multi-convicted felon (who

also had a misdemeanor crime of dishonesty conviction) without adding

much in the way of new information.9 And as the Eleventh Circuit has

recognized, “if counsel believes that it would be unwise for the defendant

to testify, counsel may, and indeed should, advise the client in the

strongest possible terms not to testify.” Id. at 1533 (emphasis added).

9 Under Florida law, the prosecutor could have impeached Petitioner with

his prior convictions had he testified. See Fla. Stat. § 90.610(1) (“A party

may attack the credibility of any witness, including an accused, by

evidence that the witness has been convicted of a crime if the crime was

punishable by death or imprisonment in excess of 1 year . . . , or if the

crime involved dishonesty or a false statement regardless of the

punishment . . . .”).

The fact that Petitioner now wishes he had testified does not mean that

Attorney Collins performed deficiently by advising Petitioner of his belief

that the risks of testifying outweighed the benefits. Indeed, the Court is

confident that an overwhelming majority of experienced defense

attorneys would have given Petitioner the same advice under the

circumstances of this case.

Not only has Petitioner failed to show that Attorney Collins

performed deficiently by advising him against testifying, but Petitioner

also has failed to show that prejudice resulted. The state court

reasonably concluded that there was no reasonable probability that a

jury would have acquitted Petitioner had he testified in the manner he

proposed at the evidentiary hearing on his Rule 3.850 motion. Having

reviewed the record, the Court does not believe the state court erred by

finding that Petitioner’s testimony was not credible and appeared to have

been generated “to conform with evidence he already knew.” Petitioner’s

proposed testimony was inconsistent with other evidence in the record,

and it is hard to believe a jury would have credited it. (Doc. 9-11 at 104).

Accordingly, Petitioner has not shown that the state court unreasonably

applied Strickland to his claim that counsel performed ineffectively by

advising him against testifying. See Jones v. Sec’y, Dep’t of Corr., 487 F.

App’x 563, 567 (11th Cir. 2012) (finding that habeas petitioner failed to

show counsel acted unreasonably by advising him not to testify when he

had five prior felony convictions that the jury could have learned of on

cross examination); see also Teague, 953 F.2d at 1533 n.9 (recognizing

that the possibility “the defendant might be prejudiced by revelation of

prior convictions” is a “good tactical reason[] why it may not be best for

the defendant to testify”). As a result, Petitioner is not entitled to habeas

relief on Ground One.

2. Ground Two: “Counsel was ineffective for failing to

object to the jury being instructed on burglary of an

OCCUPIED conveyance, which was not charged in the

information and resulted in conviction of an

uncharged offense.”

In Ground Two, Petitioner raises an ineffective assistance claim

involving the jury instructions and verdict form. More specifically,

Petitioner argues that counsel performed ineffectively by not objecting

when the trial judge included in the jury instructions and on the verdict

form the lesser offense of burglary of an occupied conveyance. (Doc. 1 at

22-23). To understand this argument, it is necessary to look at the

information, the jury instructions, and the verdict form.

Let’s start with the information. Count I of the information charged

Petitioner as follows:

On or about May 25, 2017, [Petitioner] did unlawfully enter

or remain in a conveyance, an Infiniti motor vehicle, the

property of Lanedra S. Williams, with the intent to commit

the offense of theft, criminal mischief, assault, battery,

tampering, or some offense therein, and in the course of

committing the offense did make an assault or a battery upon

a person, Lanedra Williams, contrary to Section 810.02(2)(a),

Florida Statutes.

(Doc. 9-1 at 22). Put simply, in Count I Petitioner was charged with

burglary of a conveyance with assault or battery—a first-degree felony

under Florida law.

In the jury instructions, the jurors were informed of the elements

of the crime of burglary. (Doc. 9-2 at 174-75). The jurors were then

instructed that if they found Petitioner had committed a burglary, then

they needed to determine whether (1) Petitioner had battered or

assaulted anyone during the burglary, or (2) whether anyone was in the

conveyance (i.e., the vehicle) when Defendant entered it. (Id. at 176).

The jurors were also instructed on the lesser offenses of burglary of a

conveyance, assault, and battery. (Id. at 177-78).

On the verdict form, the jurors were directed to choose one of the

following options as to Count I:

a. The defendant is guilty of Burglary.

b. The defendant is guilty of Battery.

c. The defendant is guilty of Assault.

d. The defendant is not guilty.

(Doc. 9-1 at 59). The verdict form then contained an interrogatory

instructing the jurors as follows regarding Count I:

If you have chosen a. [the defendant is guilty of Burglary],

please check all options that have been proven beyond a

reasonable doubt in the course of committing the Burglary:

i. Defendant committed a battery.

ii. Defendant committed an assault.

iii. There was a human being in the conveyance at the time

of the burglary.

(Id.). Petitioner’s counsel did not object to the jury instructions or the

verdict form. (Doc. 9-2 at 229-31). Regarding Count I, the jury found

Petitioner guilty of burglary and then on the interrogatory answered that

a human being was in the conveyance during the burglary. (Doc. 9-1 at

59-60).

On direct appeal, Petitioner argued that the trial judge erred by

instructing the jury on the lesser offense of burglary of an occupied

conveyance because that offense was not specifically charged in the

information. (Doc. 9-3). The First DCA rejected that argument. (Doc. 9-

6 at 3). Petitioner then filed a Rule 3.850 motion, which argued that

counsel was ineffective for failing to object to the jury instruction and

verdict form regarding the lesser offense of burglary of an occupied

conveyance. (Doc. 9-7 at 21-22).

During the evidentiary hearing on Petitioner’s Rule 3.850 motion,

Attorney Collins testified about his failure to object to the jury

instructions and verdict form. Although Attorney Collins could not

specifically recall why he did not object to the instructions and verdict

form in this case, he explained his general practice as a defense attorney

was “if we can get lessers, the more lessers the better.” (Doc. 9-11 at 54).

Attorney Collins further explained that he believed that it was generally

best to provide the jury with as many lesser offenses as possible in an

effort to avoid his client being convicted of the most serious offense.10

(Id.).

At the conclusion of the evidentiary hearing, the trial court found

that Attorney Collins had not performed deficiently by failing to object.

(Doc. 9-11 at 101-02). In reaching this conclusion, the trial court

explained that it was a strategic decision by Attorney Collins—an

experienced defense attorney—to provide the jury with options “of where

they can go other than the charged offense.” (Id. at 101). The trial court

further found that Attorney Collins’ failure to object did not prejudice

Petitioner. More specifically, the court found that if an objection had

been lodged by Attorney Collins, then it was highly likely the trial judge

would have permitted the prosecution to amend the information to add

the occupied conveyance language. (Id. at 101-02, 67-68). Thus, the court

found that Petitioner had not shown a reasonable probability that the

10 Count I of the information charged Petitioner with burglary of a

conveyance with assault and battery, which is a first degree felony. (Doc.

9-1 at 22); Fla. Stat. § 810.02(2)(a). The offense of burglary of an occupied

conveyance is a second degree felony. (Doc. 9-2 at 238, 242); Fla. Stat. §

810.02(3)(d).

jury would have reached a different conclusion if Attorney Collins had

objected to the jury instructions and verdict form. (Id. at 101-02).

Petitioner raised this issue in his appeal from the denial of his Rule

3.850 motion. (Doc. 9-13 at 35-41). The First DCA found Petitioner’s

argument unpersuasive and affirmed. (Doc. 9-15).11 Petitioner now

challenges that finding in his § 2254 petition. Although the state court

found that Petitioner had satisfied neither the deficient performance nor

the prejudice prong of Strickland, this Court will limit its discussion to

the prejudice prong because it is clear Petitioner has failed to meet it.12

See Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“[T]he court

11 The First DCA explained its reasons for rejecting two of Petitioner’s

postconviction claims, but it did not explain its reasoning on this claim of

ineffective assistance of counsel. (Doc. 9-15 at 4-7). Because the First

DCA’s decision on this claim was not accompanied by reasons, the Court

will look through to the trial court’s reasons for rejecting Petitioner’s

claim. See Wilson, 584 U.S. at 125.

12 It bears mentioning, however, that Attorney Collins’ decision not to

object to the inclusion of a lesser offense in the jury instructions and the

verdict form appears to have been a reasonable strategy decision. See

Griffith v. Mitchem, No. 4:10-0397, 2012 WL 2357936, at *8 (N.D. Ala.

Apr. 9, 2012) (finding that defense counsel’s failure to object to a lesser

offense instruction was “reasonable trial strategy” because it provided

the jury with a “compromise option” and afforded the petitioner “a better

chance to be acquitted” on the most serious offense (cleaned up)).

need not address the performance prong if the defendant cannot meet the

prejudice prong, or vice versa.”).

The prejudice prong of Strickland requires a showing that “there is

a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Bishop v. Warden,

GDCP, 726 F.3d 1243, 1254 (11th Cir. 2013). A reasonable probability

“is a probability sufficient to undermine confidence in the outcome.” Id.

Because the state court resolved Petitioner’s ineffective assistance claim

on the merits, this Court’s review is limited to deciding “whether the state

court’s application” of Strickland’s prejudice prong “was unreasonable.”

Id. Thus, to prevail Petitioner “must show that the state court’s ruling

was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility of fairminded

disagreement.” Jenkins v. Comm’r, Ala. Dep’t of Corr., 963 F.3d 1248,

1263-64 (11th Cir. 2020) (cleaned up).

Petitioner has not made the requisite showing here. As an initial

matter this Court defers to the state court’s determination that Florida

law would have permitted the prosecution to amend the information at

trial to conform to the evidence regarding the occupancy of the

conveyance. See Herring v. Sec’y, Dept. of Corr., 397 F.3d 1338, 1355

(11th Cir. 2005) (recognizing that “state courts are the final arbiters of

state law, and federal habeas courts should not second-guess them on

such matters”). Moreover, it is well recognized that “under Florida law,

the state is not precluded from amending the charging document, even

during trial, to conform with the evidence, absent a showing of prejudice

to the substantial rights of the defendant.” Pinkney v. Sec’y, DOC, No.

2:10-cv-744, 2014 WL 4542962, at *14 (M.D. Fla. Sept. 12, 2024); see also

Rivera v. State, 745 So.2d 343, 345 (Fla. 4th DCA 1999) (recognizing that

“it is well-settled that the state may amend its information during trial,

either as to substantive or non-substantive matters, unless the defendant

is prejudiced thereby”). Consistent with that principle of Florida law, the

state court found that if Attorney Collins had objected on the grounds

that the information did not charge that the conveyance was occupied,

then it is highly likely the prosecution would have moved to amend the

information to include such language, and it is highly likely the trial

judge would have permitted the amendment under Florida law13—in

which case the jury instructions and verdict form would have still

included the occupied conveyance language. Thus, the state court

reasonably concluded that Petitioner had not met his burden of showing

prejudice from Attorney Collins’ failure to object. See Perrott v. Sec’y, Fla.

Dep’t of Corr., 480 F. App’x 978, 982-83 (11th Cir. 2012) (finding counsel

was not ineffective for failing to object to jury instructions that included

language that was not in the information because the prosecution could

have amended the information during trial and doing so would have

caused no prejudice to the petitioner). Accordingly, Petitioner is not

entitled to habeas relief on Ground Two.

13 As the state court reasonably found during the hearing on Petitioner’s

Rule 3.850 motion (Doc. 9-11 at 66-68), permitting the amendment would

not have prejudiced Petitioner because Petitioner and his counsel were

aware of the evidence showing the vehicle was occupied and were aware

of the prosecution’s argument that the vehicle was occupied (indeed, this

was not a disputed fact at trial). Thus, amending the information would

not have introduced new evidence or altered the prosecution’s theory of

the case. Moreover, there was substantial (undisputed) evidence in the

record showing that the vehicle was occupied by Ms. Williams. This is

plainly not a case where an unobjected-to error in the jury instructions

or verdict form resulted in a verdict that was inconsistent with the

evidence.

B. Ground Three: “The postconviction court’s method, and

Florida’s general practice, in resolving newly discovered

evidence claims based on recantation of a witness violated

the Sixth Amendment right to a fair trial and right to

present exculpatory evidence/witness, and the Fourteenth

Amendment’s Due Process Clause.”

In Ground Three, Petitioner argues that the way the state court

resolved his newly discovered evidence claim violated his rights under

the U.S. Constitution. (Doc. 1 at 23-24). More specifically, Petitioner

claims that the state court violated the Sixth and Fourteenth

Amendments by finding that Ms. Williams’ recantation14 at the Rule

3.850 hearing lacked credibility. According to Petitioner, a jury should

have been responsible for assessing the credibility of Ms. Williams’

recantation.

Respondent argues that Petitioner’s claim is unexhausted and

procedurally defaulted because Petitioner failed to present the federal

14 Ms. Williams testified at the Rule 3.850 hearing that Petitioner did not

reach into the vehicle to grab her phone. (Doc. 9-11 at 7-9). Instead, she

testified at the Rule 3.850 hearing that she had the phone in her hand at

the window of the vehicle when Petitioner grabbed it. (Id. at 8).

According to Ms. Williams’ testimony at the Rule 3.850 hearing, she lied

at trial, lied to the police, and lied in her deposition when she said that

the phone was inside the vehicle when Petitioner grabbed it. (Id. at 10-

18).

nature of this claim to the First DCA during his appeal from the denial

of the Rule 3.850 motion. (Doc. 9 at 24-26). Petitioner concedes that the

claim is unexhausted. (Doc. 11 at 17-18). But Petitioner argues that an

exception to the exhaustion requirement applies. As explained below, the

Court agrees with Respondent that the claim is unexhausted and that no

exceptions apply.

1. Overview of exhaustion

The exhaustion requirement is found in § 2254(b)(1), which

provides that an “application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court shall not be

granted unless it appears that—(A) the applicant has exhausted the

remedies available in the courts of the State[.]” This means that a “state

prisoner must give the state courts an opportunity to act on his claims

before he presents those claims to a federal court in a habeas petition.”

O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The exhaustion

requirement is “designed to protect the state courts’ role in the

enforcement of federal law and prevent disruption of state judicial

proceedings.” Rose v. Lundy, 455 U.S. 509, 518 (1982).

To satisfy the exhaustion requirement, a petitioner must have

“fairly presented” the substance of his federal claim to the state courts.15

Lucas v. Sec’y, Dep’t of Corr., 682 F.3d 1342, 1351 (11th Cir. 2012). A

petitioner “fairly” presents the substance of his federal claim when he

describes the claim “such that [the state courts] are permitted the

opportunity to apply controlling legal principles to the facts bearing upon

his constitutional claim.” Kelley v. Sec’y Dep’t of Corr., 377 F.3d 1317,

1344 (11th Cir. 2004) (cleaned up). Exhaustion is not present “merely”

because “the federal habeas petitioner has been through the state courts

nor is it sufficient that all the facts necessary to support the claim were

before the state courts or that a somewhat similar state-law claim was

made.” McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005)

(cleaned up). Instead, exhaustion requires that the “ground relied upon

. . . be presented face-up and squarely; the federal question must be

plainly defined.” Kelley, 377 F.3d at 1345. “[A] petitioner with a claim

15 In habeas cases involving Florida prisoners, “claims for postconviction

relief are exhausted once they are appealed to the state district court of

appeal. They need not be appealed to the Florida Supreme Court in order

to be considered exhausted for federal habeas purposes.” Barritt v. Sec’y

Fla. Dep’t of Corr., 968 F.3d 1246, 1249 n.3 (11th Cir. 2020).

that could arise under either state or federal law must clearly indicate to

the state courts that he intends to bring a federal claim.” Preston v. Sec’y,

Fla. Dep’t of Corr., 785 F.3d 449, 458 (11th Cir. 2015).

If a petitioner has not exhausted his claim and it “is clear from state

law that any future attempts at exhaustion would be futile[,]” then

federal courts “may treat unexhausted claims as procedurally

defaulted[.]” Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999). And

a procedurally defaulted claim will not be considered by a federal habeas

court unless “a petitioner can show (1) cause for the default and (2) actual

prejudice resulting from the alleged constitutional violation.” Sealey v.

Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1365 (11th Cir. 2020)

(cleaned up).

2. Ground Three is unexhausted and procedurally

defaulted

Petitioner admits (and the record confirms) that he did not exhaust

the claims raised in Ground Three. (Doc. 1 at 13-14, 17; Doc. 11 at 17).

In his First DCA appeal from the denial of his Rule 3.850 motion,

Petitioner argued that the weight of the evidence did not support the trial

court’s finding that Ms. Williams’ recantation testimony was not credible.

(Doc. 9-13 at 45-50). The argument focused exclusively on state law.

Because Petitioner did not fairly present the federal constitutional claims

raised in Ground Three to the state courts before raising them in his §

2254 petition, they are unexhausted.

Petitioner could not now return to state court to exhaust the federal

claims because Florida’s postconviction procedures do not permit a

second appeal from the denial of a Rule 3.850 motion. See Fla. R. Crim.

P. 3.850(m) (authorizing an appeal from the final order disposing of the

Rule 3.850 motion); Fla. R. App. P. 9.141(b) (setting out procedures for

appeals from postconviction proceedings under Rule 3.850). Further, any

attempt to raise the claim in another Rule 3.850 motion would be subject

to dismissal as successive. Fla. R. Crim. P. 3.850(j)(2) (authorizing

dismissal of a second Rule 3.850 motion if the court finds that it fails to

allege new or different ground for relief and the prior determination was

on the merits). As a result, the unexhausted claims raised in Ground

Three have been procedurally defaulted.

3. No exceptions apply

Although he admits the claims in Ground Three are unexhausted,

Petitioner urges this Court to review them based on two exceptions to

exhaustion found in § 2254(b)(1)(B). (Doc. 1 at 17; Doc. 11 at 18-20).

Under § 2254(b)(1)(B), a petitioner can proceed on an unexhausted claim

if he shows that “(i) there is an absence of available State corrective

process; or (ii) circumstances exist that render such process ineffective to

protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i)-(ii).

Petitioner’s argument that these exceptions apply is unpersuasive.

Looking first to § 2254(b)(1)(B)(i), there is “an absence of available

State corrective process” only if “there is no opportunity to obtain redress

in state court or if the corrective process is so clearly deficient as to render

futile any effort to obtain relief.” Duckworth v. Serrano, 454 U.S. 1, 3

(1981) (emphasis added). A petitioner does not qualify for this exception

unless he shows that state court procedures were inadequate to

adjudicate the merits of his claim. Id. at 4.

Rule 3.850 of the Florida Rules of Criminal Procedure provides a

vehicle for defendants to challenge their convictions (on state and federal

law grounds) in Florida state court based on claims of newly discovered

evidence involving recanted testimony. See, e.g., Keen v. State, 855 So.

2d 117, 118 (Fla. 2d DCA 2003) (recognizing that allegation of recanted

testimony could be raised in a Rule 3.850 motion). And Florida law

provides defendants with the ability to seek appellate review of a trial

court’s adjudication of such challenges. Fla. R. App. P. 9.141(b). Because

Florida law provided Petitioner with the “opportunity to obtain redress

in state court[,]” and the state court process was not “so clearly deficient

as to render futile any effort to obtain relief[,]” Duckworth, 454 U.S. at

3, the exception found in § 2254(b)(1)(B)(i) does not apply here.

Similarly, Petitioner has not shown that the exception in §

2254(b)(1)(B)(ii) applies here. That exception applies if “circumstances

exist that render such process ineffective to protect the rights of the

applicant.” 28 U.S.C. § 2254(b)(1)(B)(ii). State court remedies “will be

found ineffective and a federal habeas petitioner will be excused from

exhausting them in the case of unreasonable, unexplained state delays

in acting on the petitioner’s motion for state relief.” Cook v. Fla. Parole

& Prob. Comm’n, 749 F.2d 678, 680 (11th Cir. 1985). Here, Petitioner

has not shown that any circumstances existed that rendered the state

court process ineffective to protect his rights. Petitioner has not shown

any unreasonable delays in the state court resolution of his motion, nor

has he pointed to anything else that would support a finding that the

state court process was ineffective.

Having concluded that neither of the exceptions found in §

2254(b)(1)(B)(i)-(ii) apply, the Court will turn to Petitioner’s argument

that the unexhausted claims should not be deemed procedurally

defaulted because of the exception recognized in Martinez v. Ryan, 566

U.S. 1 (2012). (Doc. 1 at 17; Doc. 11 at 20-21). Unfortunately for

Petitioner, the Martinez exception is inapplicable. That is so because

Martinez applies only to procedurally defaulted ineffective assistance of

counsel claims. See Lambrix v. Sec’y, Fla. Dept. of Corr., 756 F.3d 1246,

1260 (11th Cir. 2014) (explaining that “the Martinez rule is expressly

limited to attorney errors in initial-review collateral proceedings”); see

also Davila v. Davis, 582 U.S. 521, 530 (2017) (recognizing that Martinez

created a “narrow exception that applies only to claims of ineffective

assistance of counsel” (cleaned up)). Petitioner’s claims in Ground Three

are not ineffective assistance of counsel claims. Martinez, therefore, does

not excuse Petitioner’s procedural default.

To the extent Petitioner has also argued that his procedural default

should be excused under the traditional cause and prejudice standard,

the argument lacks merit. A federal court may not review a procedurally

defaulted claim “absent a showing of cause for the default and actual

prejudice resulting from the errors of which he complains.” Alexander v.

Dugger, 841 F.2d 371, 373 (11th Cir. 1988). “Cause” in this context “must

be something external to the petitioner, something that cannot fairly be

attributed to him.” Coleman v. Thompson, 501 U.S. 722, 753 (1991)

(cleaned up).

In terms of cause, Petitioner argues that he was “simply unable to

raise the issue because it materialized simultaneously with the court’s

final ruling on the matter.” (Doc. 11 at 21). Petitioner’s argument is

insufficient to show cause. The state court record demonstrates that in

his state postconviction appeal to the First DCA Petitioner challenged

(on state law grounds) the trial court’s rejection of his newly discovered

evidence claim involving Ms. Williams’ recanted testimony. (Doc. 9-13

at 45-50). Petitioner could have, and should have, presented his federal

constitutional challenges to the First DCA at that time. He has pointed

to nothing external to him that would constitute cause for his failure to

do so. Accordingly, Petitioner has failed to show cause and prejudice as

required to excuse his procedural default.16

Ground Three is unexhausted and procedurally defaulted, and

Petitioner has not shown that an exception to these procedural bars

applies. Thus, Petitioner is not entitled to habeas relief on Ground Three.

VI. Conclusion

For the reasons above, Petitioner’s 28 U.S.C. § 2254 habeas corpus

petition lacks merit.

16 Even if Ground Three was not procedurally defaulted, Petitioner would

not be entitled to habeas relief. In Ground Three, Petitioner is attacking

the postconviction proceeding as opposed to the underlying conviction

itself. And defects in state postconviction proceedings do not provide a

basis for habeas relief. See Carroll v. Sec’y, DOC, 574 F.3d 1354, 1365

(11th Cir. 2009) (explaining that defects in state postconviction

proceedings “do not provide a basis for habeas relief” because “a challenge

to a state collateral proceeding does not undermine the legality of the

detention or imprisonment—i.e., the conviction itself”); see also Quince v.

Crosby, 360 F.3d 1259, 1262 (11th Cir. 2004) (stating that “while habeas

relief is available to address defects in a criminal defendant’s conviction

and sentence, an alleged defect in a collateral proceeding does not state

a basis for habeas relief”).

VII. Certificate of Appealability

Rule 11(a) of the Rules Governing Section 2254 Cases in the United

States District Courts provides that “[t]he district court must issue or

deny a certificate of appealability when it enters a final order adverse to

the applicant[,]” and if a certificate is issued “the court must state the

specific issue or issues that satisfy the showing required by 28 U.S.C.

§ 2253(c)(2).” Rule 11(a), Rules Governing § 2254 Cases. A timely notice

of appeal must still be filed, even if the Court issues a certificate of

appealability. Rule 11(b), Rules Governing § 2254 Cases.

Section 2253(c) “permits the issuance of a COA only where a

petitioner has made a ‘substantial showing of the denial of a

constitutional right.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)

(quoting § 2253(c)(2)). “At the COA stage, the only question is whether

the applicant has shown that ‘jurists of reason could disagree with the

district court’s resolution of his [or her] constitutional claims or that

jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.’” Buck v. Davis, 580 U.S. 100, 115

(2017) (citing Miller-El, 537 U.S. at 327). Petitioner here cannot make

that showing. Therefore, the undersigned recommends that the district

court deny a certificate of appealability in its final order.

The second sentence of Rule 11(a) provides: “Before entering the

final order, the court may direct the parties to submit arguments on

whether a certificate should issue.” Thus, if there is an objection to this

recommendation by either party, that party may bring this argument to

the attention of the district judge in the objections permitted to this

report and recommendation.

Accordingly, it is respectfully RECOMMENDED that:

1. Petitioner’s 28 U.S.C. § 2254 petition (Doc. 1) be DENIED

and this case be DISMISSED.

2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 23rd day of June 2026.

/s/ Zachary C. Bolitho

Zachary C. Bolitho

United States Magistrate Judge

Notice to the Parties

Objections to these proposed findings and recommendations must

be filed within fourteen days of the date of the Report and

Recommendation. Any different deadline that may appear on the

electronic docket is for the Court’s internal use only and does not control.

An objecting party must serve a copy of the objections on all other parties.

A party who fails to object to the magistrate judge’s findings or

recommendations contained in a report and recommendation waives the

right to challenge on appeal the district court’s order based on

unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28

U.S.C. § 636.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.