The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JAMAL A. MILLER,
Petitioner,
v. Case No. 3:23-cv-501-JEP-LLL
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
Respondent.
_____________________________________
ORDER
THIS CAUSE is before the Court on Petitioner’s pro se Petition Under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody
(“Petition,” Doc. 1), Respondent’s Response to the Petition (Doc. 7), and
Petitioner’s Reply (Doc. 11) thereto.1 Upon review, no evidentiary proceedings
are warranted in this Court.2 For the reasons set forth below, the Petition is
denied.
1 For purposes of reference to pleadings and exhibits, the Court will cite the
document numbers and page numbers assigned by the Court’s electronic docketing
system.
2 “In a habeas corpus proceeding, the burden is on the petitioner to establish
the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299,
1318 (11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060
(11th Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal
court must consider whether such a hearing could enable an applicant to prove the
I. PROCEDURAL HISTORY
On March 3, 2017, the State of Florida filed an amended information in
Duval County Circuit Court case number 2016-CF-8450,3 charging Jamal
Artherio Miller (“Miller”) with: (1) count one – aggravated stalking between
January 1 and 22, 2016 after a domestic violence injunction4; (2) count two –
kidnapping on January 15, 2016; (3) count three – sexual battery on January
15, 2016; (4) count four – kidnapping with a weapon on January 22, 2016; (5)
count five – aggravated battery on January 22, 2016; (6) count six – tampering
with a witness, victim, or informant between January 21 and 22, 2016; and (7)
count seven – tampering with a witness, victim, or informant on January 22,
2016. (Doc. 7-1).
petition’s factual allegations, which, if true, would entitle the applicant to federal
habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It
follows that if the record refutes the applicant’s factual allegations or otherwise
precludes habeas relief, a district court is not required to hold an evidentiary
hearing.” Id. The Court finds that “further factual development” is unnecessary.
Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003). Thus, an evidentiary hearing
will not be conducted.
3 The Court takes judicial notice of Petitioner’s state court dockets. See Paez v.
Sec’y, Fla. Dep’t of Corr., 947 F.3d 649, 651–52 (11th Cir. 2020) (holding that a district
court may take judicial notice of online state court docket sheets in ruling on a
petition for writ of habeas corpus).
4 The victim in the underlying state court case obtained a lifetime injunction
against Miller following a domestic battery on January 15, 2015. (See Doc. 7-2 at 5).
Miller was convicted for the January 15, 2015 incident, was released from prison
around December 2015, and then committed another battery against the victim on
January 15, 2016. (See id.).
On April 10, 2017,5 Miller proceeded to a jury trial represented by
private counsel Regina Wright (“Ms. Wright”). (Doc. 7-14). On the last day of
trial, Miller fired Ms. Wright and requested to represent himself, which
request the trial court granted after finding him competent to waive the right
to counsel. (Id. at 844–57). On April 13, 2017, the jury found Miller not guilty
on counts one, three, and seven; guilty as charged in counts two and five; and
guilty of a lesser-included offense as charged in count four.6 (Doc. 7-14 at 1137;
Doc. 7-35 at 12, 24–26).
At Miller’s request, Tricia Rover (“Ms. Rover”) with the Public
Defender’s Office was appointed to represent him at the sentencing. (See Doc.
7-16 at 2). At Ms. Rover’s request, on May 12, 2017, Dr. Stephen I. Bloomfield
(“Dr. Bloomfield”) evaluated Miller and opined he was incompetent to
proceed. (See Doc. 7-16 at 2; Doc. 7-17 at 4; Doc. 7-28 at 18–22; Doc. 13-1). At
the State’s request, on June 13, 2017, Dr. William R. Meadows (“Dr.
Meadows”) evaluated Miller and similarly opined he was incompetent to
proceed. (See Doc. 7-16 at 2; Doc. 7-17 at 4–5; Doc. 7-18 at 5–6). Based on these
5 Previously, at his arraignment, Miller asserted the right to self-
representation. (Doc. 7-3 at 8). The next day, the trial court found him competent to
waive the right to counsel and allowed him to represent himself. (Doc. 7-4 at 5, 30).
At his adversary preliminary hearing, Miller reaffirmed his desire to continue to
represent himself with stand-by counsel from the Public Defender’s Office. (Doc. 7-5
at 6–7, 71, 79–80; Doc. 7-6 at 5–9).
6 Count six was previously dismissed after the State abandoned it. (Doc. 7-14
at 814–15).
doctors’ reports, on July 6, 2017, the trial court found Miller incompetent to
proceed and committed him to the Department of Children and Families for
treatment. (Doc. 7-18 at 5–6). On October 3, 2017,7 Dr. Heather Jaudzimas
(“Dr. Jaudzimas”) with the Florida State Hospital, where Miller was being
treated, submitted a report opining that Miller’s competency had been
restored. (Doc. 13-2). On October 23, 2017, the trial court found Miller
competent to proceed. (Doc. 7-20; Doc. 7-21 at 7).
On January 2, 2018, three days before the sentencing, Miller invoked the
right to self-representation. (Doc. 7-22 at 6–8, 11–12, 19–22, 28–29). The trial
court found him competent to waive the right to counsel and appointed Ms.
Rover as stand-by counsel. (Id. at 29–30). Immediately, Miller moved for a
nunc pro tunc competency determination as of the time of trial. (Id. at 30–31).
The trial court took the motion under advisement and denied it on January 5,
2018. (Doc. 7-22 at 31; Doc. 7-23 at 8, 11–12, 14–18, 20). The same day, the
trial court sentenced Miller as a Prison Releasee Reoffender to a mandatory
term of life in prison without early release on count two, a consecutive term of
life in prison on count four, and a term of fifteen years in prison on count five
7 The report was dated September 28, 2017, but it was submitted to the trial
court on October 3, 2017, and the court referred to it as the “October 3, 2017” report.
(See Doc. 7-19; Doc. 7-21 at 7; Doc. 13-2).
to run consecutive to count two. (Doc. 7-23 at 25, 62–65; see also Doc. 7-35 at
15–20).
With the assistance of counsel, Miller appealed his convictions and
sentences. Florida’s First District Court of Appeal (“First DCA”) per curiam
affirmed without a written opinion on November 12, 2019, see Miller v. State,
290 So. 3d 456 (table) (Fla. 1st DCA 2019), denied rehearing on January 13,
2020, and issued the mandate on March 4, 2020. (Doc. 7-26). On December 4,
2019 (mailbox8), while still represented by counsel, Miller filed a pro se belated
petition for rehearing, which he amended on January 9, 2020. (Docs. 7-28, 7-
29). On February 25, 2020, the First DCA denied Miller’s petitions, along with
his other pro se motions, as unauthorized, untimely, and meritless. (Doc. 7-30).
On June 5, 2020 (mailbox), Miller filed a pro se petition alleging
ineffective assistance of appellate counsel, which he amended on July 8, 2020.
(Docs. 7-31, 7-32). On April 13, 2021, the First DCA per curiam denied the
petition “on the merits” without a written opinion. (Doc. 7-33).
On October 18, 2021 (mailbox), Miller filed a pro se motion for
postconviction relief under Florida Rule of Criminal Procedure 3.800(a), which
8 See Houston v. Lack, 487 U.S. 266, 270, 276 (1988) (concluding that under the
mailbox rule, the filing date for pro se prisoners is the day when they deliver their
notice of appeal or petition to “prison authorities for forwarding to the court clerk”).
the trial court construed as a motion for correction of an illegal sentence and
dismissed as meritless on October 28, 2021. (Doc. 7-34; Doc. 7-35 at 2–4).
On December 6, 2021 (mailbox), Miller filed another pro se motion under
Florida Rule of Criminal Procedure 3.800(a), which the trial court denied on
September 1, 2022. (Doc. 7-36 at 5–10, 19–20). The Fifth DCA per curiam
affirmed the denial without a written opinion on February 21, 2023, see Miller
v. State, 357 So. 3d 127 (table) (Fla. 5th DCA 2023), and issued the mandate
on March 17, 2023. (Docs. 7-38, 7-40). On March 18, 2023 (mailbox), Miller
timely filed the present Petition in this Court.9 (Doc. 1 at 29).
II. LEGAL STANDARD
A. AEDPA
Pursuant to the Antiterrorism Effective Death Penalty Act (“AEDPA”),
a federal court may not grant federal habeas relief with respect to 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.
9 Respondent concedes, and this Court finds based on a review of the state court
dockets, that this action is timely. (See Doc. 7 at 14).
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. Sec’y for Dep’t of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The Eleventh
Circuit Court of Appeals discussed the meaning of the clauses in Parker v.
Head:
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.
244 F.3d 831, 835 (11th Cir. 2001) (quoting Williams, 529 U.S. at 412–13).
Even if the federal court concludes that the state court applied federal law
incorrectly, habeas relief is appropriate only if that application was “objectively
unreasonable.”10 Id. (quotation omitted).
10 In considering the “unreasonable application inquiry,” the Court must
determine “whether the state court’s application of clearly established federal law
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.” 28 U.S.C. § 2254(d)(2). However, the state court’s “determination
of a factual issue . . . shall be presumed correct,” and the habeas petitioner
“shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Parker, 244 F.3d at 835–
36.
B. Exhaustion and Procedural Default
Before bringing a § 2254 habeas action in federal court, a state prisoner
must exhaust all state court remedies that are available for challenging his
conviction. See 28 U.S.C. § 2254(b)(1)(A). To do so, he must “fairly present[ ]”
every issue raised in his federal petition to the state’s highest court, either on
direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351
(1989) (emphasis omitted). Thus, to properly exhaust their claims, “state
prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established
was objectively unreasonable.” Williams, 529 U.S. at 409. Whether a state court’s
decision was an unreasonable application of law must be assessed in light of the
record before the state court. Holland v. Jackson, 542 U.S. 649, 652 (2004); see also
Bell v. Cone, 535 U.S. 685, 697 n.4 (2002) (declining to consider evidence not
presented to the state court in determining whether the state court’s decision was
contrary to federal law).
appellate review process,” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999),
thereby alerting the appropriate state court to “the federal nature of the
claim[s],” Baldwin v. Reese, 541 U.S. 27, 29 (2004); see also Pope v. Rich, 358
F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the state
collateral review process as well as the direct appeal process”).
A state prisoner’s failure to properly exhaust available state remedies
results in a procedural default, which raises a potential bar to federal habeas
review. Under the doctrine of procedural default:
[A] federal court will not review the merits of claims, including
constitutional claims, that a state court declined to hear because
the prisoner failed to abide by a state procedural rule. See, e.g.,
Coleman v. Thompson, 501 U.S. 722, 747–48 (1991); Wainwright
v. Sykes, 433 U.S. 72, 84–85 (1977). A state court’s invocation of a
procedural rule to deny a prisoner’s claims precludes federal
review of the claims if, among other requisites, the state
procedural rule is a nonfederal ground adequate to support the
judgment and the rule is firmly established and consistently
followed. See, e.g., Walker v. Martin, 562 U.S. 307, 316 (2011);
Beard v. Kindler, 558 U.S. 53, 60–61 (2009). The doctrine barring
procedurally defaulted claims from being heard is not without
exceptions. A prisoner may obtain federal review of a defaulted
claim by showing cause for the default and prejudice from a
violation of federal law. See Coleman, 501 U.S. at 750.
Martinez v. Ryan, 566 U.S. 1, 9–10 (2012) (internal citations modified).
“To show cause, the petitioner must demonstrate ‘some objective factor
external to the defense’ that impeded his effort to raise the claim properly in
state court.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (quoting
Murray v. Carrier, 477 U.S. 478, 488 (1986)). Once cause is established, “the
petitioner also must show actual prejudice from the alleged constitutional
violation.” Id. (citing Sykes, 433 U.S. at 84). “[I]n order to show prejudice, a
petitioner must demonstrate that ‘the errors at trial actually and substantially
disadvantaged his defense so that he was denied fundamental fairness.’” Id.
(quoting McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992)).
In the absence of a showing of cause and prejudice, a petitioner may still
receive consideration on the merits of a procedurally defaulted claim if he can
show that a fundamental miscarriage of justice would occur:
“[I]n an extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually innocent,
a federal habeas court may grant the writ even in the absence of a
showing of cause for the procedural default.” Carrier, 477 U.S. at
496. “This exception is exceedingly narrow in scope,” however, and
requires proof of actual innocence, not just legal innocence.
Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).
Ward, 592 F.3d at 1157 (internal citations modified). “To meet this standard,
a petitioner must ‘show that it is more likely than not that no reasonable juror
would have convicted him’ of the underlying offense.” Johnson, 256 F.3d at
1171 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be
credible,’ a claim of actual innocence must be based on reliable evidence not
presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting
Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,
allegations of actual innocence are ultimately summarily rejected. Schlup, 513
U.S. at 324.
C. Ineffective Assistance of Trial and Appellate Counsel
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court of
the United States established a two-part test for determining whether a
convicted person is entitled to relief on the ground that his counsel rendered
ineffective assistance: (1) whether counsel’s performance was deficient and
“fell below an objective standard of reasonableness”; and (2) whether the
deficient performance prejudiced the defense. Id. at 687–88. A court must
adhere to a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. Id. at 689–90. “Thus, a court
deciding an actual ineffectiveness claim must judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed as of
the time of counsel’s conduct.” Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497
(11th Cir. 1989).
As the Eleventh Circuit has observed:
[The test for ineffective assistance of counsel] has nothing to do
with what the best lawyers would have done. Nor is the test even
what most good lawyers would have done. We ask only whether
some reasonable lawyer at the trial could have acted, in the
circumstances, as defense counsel acted at trial. Courts also should
at the start presume effectiveness and should always avoid second
guessing with the benefit of hindsight. Strickland encourages
reviewing courts to allow lawyers broad discretion to represent
their clients by pursuing their own strategy. We are not interested
in grading lawyers’ performances; we are interested in whether the
adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992) (citation omitted).
Under those rules and presumptions, “the cases in which habeas petitioners
can properly prevail on the ground of ineffective assistance of counsel are few
and far between.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
The two-part Strickland standard also governs claims of ineffective
assistance of appellate counsel. Overstreet v. Warden, 811 F.3d 1283, 1287
(11th Cir. 2016). When considering deficient performance by appellate counsel,
“a court must presume counsel’s performance was ‘within the wide range of
reasonable professional assistance.’” Id. (internal citation omitted). To that
end:
Appellate counsel has no duty to raise every non-frivolous issue
and may reasonably weed out weaker (albeit meritorious)
arguments. See Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir.
2009). “Generally, only when ignored issues are clearly stronger
than those presented, will the presumption of effective assistance
of counsel be overcome.” Smith v. Robbins, 528 U.S. 259, 288 (2000)
(quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)); see also
Burger v. Kemp, 483 U.S. 776, 784 (1987) (finding no ineffective
assistance of counsel when the failure to raise a particular issue
had “a sound strategic basis”).
Id.; see also Owen v. Sec’y, Dep’t of Corr., 568 F.3d 894, 915 (11th Cir. 2009)
(stating that “failing to raise or adequately pursue [meritless issues on appeal]
cannot constitute ineffective assistance of counsel”).
To satisfy the prejudice prong of an ineffective assistance of appellate
counsel claim, a petitioner must show a reasonable probability that “but for
the deficient performance, the outcome of the appeal would have been
different.” Black v. United States, 373 F.3d 1140, 1142 (11th Cir. 2004); see also
Philmore, 575 F.3d at 1264–65 (stating that prejudice results only if “the
neglected claim would have a reasonable probability of success on appeal”). “A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (internal citations
and quotation marks omitted). “It is not enough ‘to show that the errors had
some conceivable effect on the outcome of the proceeding.’” Id. (internal
citations omitted). Thus, “[a]ppellate counsel might fail to identify a mediocre
or obscure basis for reversal without being ineffective under Strickland.”
Overstreet, 811 F.3d at 1287 (citation omitted).
For ineffective assistance claims as to both trial and appellate counsel,
there is no “iron-clad rule requiring a court to tackle one prong of the
Strickland test before the other.” Ward, 592 F.3d at 1163. Because both prongs
of the two-part Strickland test must be satisfied to show a Sixth Amendment
violation, “a court need not address the performance prong if the petitioner
cannot meet the prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley,
209 F.3d 1243, 1248 (11th Cir. 2000)). As Strickland stated: “If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.” 466 U.S. at
697.
Further, “[t]he question ‘is not whether a federal court believes the state
court’s determination’ under the Strickland standard ‘was incorrect but
whether that determination was unreasonable—a substantially higher
threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citation omitted).
If there is “any reasonable argument that counsel satisfied Strickland’s
deferential standard,” then a federal court may not disturb a state-court
decision denying the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting
Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,
371 (2010). “Reviewing courts apply a ‘strong presumption’ that counsel’s
representation was ‘within the wide range of reasonable professional
assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th
Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this presumption is
combined with § 2254(d), the result is double deference to the state court ruling
on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans
v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333–35 (11th Cir. 2013) (Jordan, J.,
concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).
III. DISCUSSION
A. Ground One
In Ground One, Miller alleges that when the trial court adjudicated him
competent to proceed on October 23, 2017, it erroneously dispensed with a
competency hearing based on counsel’s stipulation to waive the hearing, even
though Miller did not agree to the waiver either orally or in writing. (Doc. 1 at
5; see also Doc. 11 at 7–1511).
Miller presented a similar claim in his December 6, 2021, Rule 3.800(a)
motion, which the trial court denied without elaboration on September 1, 2022,
and the Fifth DCA per curiam affirmed without a written opinion on February
21, 2023. (See Doc. 7-36 at 5–10, 19–20; Doc. 7-40). Because the Fifth DCA
affirmed without a written opinion, the Court presumes the affirmance was
based on the trial court’s findings. Wilson v. Sellers, 584 U.S. 122, 125–26
(2018). To the extent the trial court denied Miller’s Rule 3.800(a) motion as
procedurally barred, Miller did not properly exhaust his claim, and the claim
would be procedurally defaulted. See Coleman, 501 U.S. at 734–35 & n.1
(stating that federal habeas courts will consider a claim to be procedurally
defaulted if it was presented in state court and rejected on the independent
and adequate state ground of procedural bar or default). Moreover, Miller has
failed to show either cause and prejudice, or any factor warranting the
11 To the extent Miller attempts to raise new claims in his Reply as to any of
the alleged grounds, such claims are not properly before the Court. See Rule 2(c),
Rules Governing Section 2254 Cases (“The petition must: (1) specify all the grounds
for relief available to the petitioner . . . .”); Herring v. Sec’y, Dep’t of Corr., 397 F.3d
1338, 1342 (11th Cir. 2005) (“As we repeatedly have admonished, ‘[a]rguments raised
for the first time in a reply brief are not properly before a reviewing court.’”)
(collecting cases); see also Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)
(finding that a pro se litigant abandoned an issue that was not raised in his initial
brief as the court does “not address arguments raised for the first time in a pro se
litigant’s reply brief”).
application of the fundamental miscarriage of justice exception to overcome the
procedural default. See Harris v. Reed, 489 U.S. 255, 262 (1989).
Nevertheless, as Respondent concedes, Miller exhausted this claim by
presenting it in ground four of his pro se amended petition, albeit as a claim
for ineffective assistance of appellate counsel. (See Doc. 7-32 at 25–29 (alleging
that “appellate counsel rendered ineffective assistance for failing to raise that
the trial court fundamentally erred by improperly deciding [Miller’s]
competency, by allowing [Miller] to make a stipulation to his own competency,
based solely on [Department of Children and Families] facility report that
[Miller] had regained competency”)). The First DCA denied the claim “on the
merits” without a written opinion. (Doc. 7-33). Because the First DCA decided
the claim on the merits, the Court addresses it in accordance with the
deferential standard for federal court review of state court adjudications.
“Generally, a proper hearing to determine whether competency has been
restored after a period of incompetence requires ‘the calling of court-appointed
expert witnesses designated under Florida Rule of Criminal Procedure 3.211,
a determination of competence to proceed, and the entry of an order finding
competence.’” Dougherty v. State, 149 So. 3d 672, 677 (Fla. 2014) (citations
omitted). However, the plain language of Florida Rule of Criminal Procedure
3.212(a) “does not require the calling of expert witnesses or any additional
witnesses.” Id. Further, “where the parties and the judge agree, the trial [c]ourt
may decide the issue of competency on the basis of the written reports alone.”
Id. at 678 (quotation marks omitted) (citing Fowler v. State, 255 So. 2d 513,
515 (Fla. 1971) (“We concur that where the parties and the judge agree, the
trial [c]ourt may decide the issue of competency on the basis of the written
reports alone. But where . . . there are reasonable grounds to believe defendant
[is] insane, [a]nd defense counsel requests a hearing, it is error not to provide
such a hearing.”); Jones v. State, 125 So. 3d 982, 984 (Fla. 4th DCA 2013)
(holding that the trial court held a proper competency hearing where “the
parties stipulated to the expert reports,” the “reports became the evidence on
which the trial court relied to decide the ultimate issue,” “nothing in the record
suggests that either side was prohibited from presenting any other evidence or
arguments, and the trial court entered a written order concluding [defendant]
was competent to proceed”)).
Here, the parties stipulated to Dr. Jaudzimas’s report, and her report
became the evidence on which the trial court relied in determining Miller’s
competency on October 23, 2017. (Doc. 7-19; Doc. 7-21 at 6–7; Doc. 13-2). The
same day, the trial court entered a written order memorializing the court’s
finding that Miller was competent to proceed. (See Doc. 7-20 (“Order Adjudging
Defendant Mentally Competent”)). Miller does not argue that either party was
prohibited from presenting evidence or argument on the issue of competency
before the court reached its decision. (See Doc. 7-21). Therefore, based on the
foregoing, including the agreement between the parties and the judge, the trial
court reasonably determined Miller’s competency based on the written report
and without eliciting further expert testimony. See Dougherty, 149 So. 3d at
677–78; Fowler, 255 So. 2d at 515; Jones, 125 So. 3d at 984. To the extent Miller
argues that counsel’s waiver of a competency hearing was invalid because he
did not personally approve it, counsel was not required to obtain Miller’s
waiver on the record before acting on his behalf. See McArthur v. State, 303 So.
2d 359, 360 (Fla. 3d DCA 1974) (“We cannot accept the [defendant’s] argument
that because the continuance was obtained without his knowledge, consent or
approval, it would not operate as an effective waiver. The acts of an attorney
[ ‘. . . ] will be binding on the client even though done without consulting him
and even against his wishes.’”).
Therefore, upon thorough review of the record and the applicable law,
the Court concludes that the state court’s decision to deny Miller’s claim was
not contrary to clearly established federal law, did not involve an unreasonable
application of clearly established federal law, and was not based on an
unreasonable determination of the facts in light of the evidence presented to
the state court. See 28 U.S.C. § 2254(d). Accordingly, Ground One is denied.
B. Ground Two
In Ground Two, Miller alleges his appellate counsel was ineffective for
failing to challenge the trial court’s failure to reoffer counsel at several critical
stages, all of which occurred on the last day of trial. (Doc. 1 at 7; see also Doc.
11 at 15–23). These stages include: (1) Miller’s decision to remove his mother
from the witness list (Doc. 7-14 at 864–65); (2) the questioning of the victim,
defense witness Jumecia White, and Miller during the defense case (id. at 866–
915, 933–87); and (3) Miller’s closing arguments and sitting through the charge
conference and the jury’s deliberations (id. at 1061–83, 1107–34). (Doc. 1 at 7).
Miller presented this claim in ground three of his pro se amended
petition alleging ineffective assistance of appellate counsel, which the First
DCA denied “on the merits” without a written opinion. (See Doc. 7-32 at 21–
24; Doc. 7-33). The First DCA’s adjudication of the claim is entitled to AEDPA
deference. Further, the Court gives considerable deference to appellate
counsel’s strategic decision of selecting the issue or issues to raise on appeal.
The danger of raising weaker issues in a “kitchen-sink” approach is that it
detracts from the attention an appellate court can devote to the stronger issues
and reduces appellate counsel’s credibility. See Miller v. Keeney, 882 F.2d 1428,
1434 (9th Cir. 1989); see also McBride v. Sharpe, 25 F.3d 962, 973 (11th Cir.
1994). Thus, effective appellate attorneys “will weed out weaker arguments,
even though they may have merit.” Philmore, 575 F.3d at 1264; see also
Overstreet, 811 F.3d at 1287. Appellate counsel’s failure to raise a meritless or
weaker issue does not constitute deficient performance. See Brown v. United
States, 720 F.3d 1316, 1335 (11th Cir. 2013) (citing Jones v. Barnes, 463 U.S.
745, 754 (1983)); Owen, 568 F.3d at 915. Prejudice results only if “the neglected
claim would have a reasonable probability of success on appeal.” Philmore, 575
F.3d at 1264–65.
The trial court was not required to reoffer counsel at each step that
Miller has identified, considering that all of these steps occurred on the same
day, and the trial court had already engaged in a Faretta12 inquiry earlier that
day when it allowed Miller to represent himself (Doc. 7-14 at 844–61). See
Brown v. State, 113 So. 3d 134, 142–43 (Fla. 1st DCA 2013) (stating that
although “[a] trial can be separated into many ‘stages,’ including jury selection,
opening statements, the presentation of evidence, closing argument, jury
instructions, the verdict, and certain post-trial motions,” there is no
constitutional requirement for “a renewed Faretta inquiry at the start of each
and every component part of the trial”; and finding “it was sufficient under
Faretta for the court to proceed on the second and third days of the trial without
renewing the full Faretta inquiry at the beginning of each day”); see also Knight
v. State, 770 So. 2d 663, 669 (Fla. 2000) (concluding that “the trial court was
not required to offer counsel during the same stage of the proceeding where
Knight waived his right to counsel, the trial portion”). Further, because the
12 Faretta v. California, 422 U.S. 806, 835–36 (1975) (holding that the accused
may represent himself and relinquish his Sixth Amendment right to counsel only
upon a knowing, intelligent, and voluntary waiver).
trial court was not required to reoffer counsel as Miller argues, his appellate
counsel cannot be ineffective for failing to bring this issue on appeal. See Owen,
568 F.3d at 915 (stating that “failing to raise or adequately pursue [meritless
issues on appeal] cannot constitute ineffective assistance of counsel”); King v.
Dugger, 555 So. 2d 355, 357–58 (Fla. 1990) (citing Suarez v. Dugger, 527 So. 2d
190, 193 (Fla. 1988)) (same).
Therefore, upon thorough review of the record and the applicable law,
the Court concludes that the state court’s decision to deny Miller’s claim was
neither contrary to nor an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of the facts
in light of the evidence presented to the state court. See 28 U.S.C. § 2254(d).
Thus, Ground Two is denied.
C. Ground Three
In Ground Three, Miller alleges the trial court erred by denying his
motion for nunc pro tunc competency determination. (Doc. 1 at 8; Doc. 11 at
23–28). Three days before the sentencing, Miller filed his pro se motion for
nunc pro tunc competency determination as of the time of trial. (Doc. 7-22 at
29–31). The trial court took the motion under advisement and explained it
would be difficult to bring the experts (Dr. Bloomfield and Dr. Meadows) and
Miller’s trial counsel (Ms. Wright) to testify before the court in three days—on
January 5, 2018—because they were not under a subpoena. (Id. at 31–39). On
January 5, 2018, Miller moved to continue the nunc pro tunc hearing so he
could subpoena the experts, arguing that without their testimony, he would be
prejudiced and his due process rights would be violated. (Doc. 7-23 at 7–9). The
trial court denied Miller’s request for a continuance, permitted Ms. Wright to
testify telephonically, and denied Miller’s pro se motion for nunc pro tunc
competency determination. (Id. at 8, 11–12, 14–18, 20).
Miller presented this claim in his counseled amended initial brief on
direct appeal, which the First DCA per curiam affirmed without a written
opinion. (See Docs. 7-24, 7-26). To the extent the state court adjudicated the
claim on the merits, the state court’s adjudication is entitled to AEDPA
deference. See Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1255–56 (11th
Cir. 2002) (“In § 2254(d) Congress meant to, and did, mandate deference to
state court adjudications on the merits of federal constitutional issues, and a
decision that does not rest on procedural grounds alone is an adjudication on
the merits regardless of the form in which it is expressed.”). Upon thorough
review of the record and the applicable law, the Court concludes that the state
court’s decision to deny Miller’s claim was neither contrary to nor an
unreasonable application of clearly established federal law, and was not based
on an unreasonable determination of the facts in light of the evidence
presented to the state court. See 28 U.S.C. § 2254(d). Notably, the state court’s
factual determinations are presumed correct, unless rebutted by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); see also Parker, 244 F.3d at 835–
36. Miller has not shown the state court’s factual determinations were
unreasonable.
Even assuming the state court’s adjudication were not entitled to
deference, Miller’s claim still fails. The standard for mental competency to
stand trial asks whether the defendant “has sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding” and
“whether he has a rational as well as factual understanding of the proceedings
against him.” Dusky v. United States, 362 U.S. 402, 402 (1960). “[N]ot every
manifestation of mental illness demonstrates incompetence to stand trial;
rather, the evidence must indicate a present inability to assist counsel or
understand the charges.” Card v. Singletary, 981 F.2d 481, 487–88 (11th Cir.
1992). “[N]either low intelligence, mental deficiency, nor bizarre, volatile, and
irrational behavior can be equated with mental [in]competence to stand trial.”
Medina v. Singletary, 59 F.2d 1095, 1107 (11th Cir. 1995). When an inquiry
into the defendant’s competence to stand trial has not been requested, the
standard for determining whether the trial court violated the Due Process
Clause by failing to conduct that inquiry “is whether the objective facts known
to the trial court at the time create a bona fide doubt as to mental competency.”
Wright, 278 F.3d at 1256 (citing Drope v. Missouri, 420 U.S. 162, 180 (1975);
Pate v. Robinson, 383 U.S. 375, 385 (1966)).
Here, as explained in the State’s answer brief:
At no time prior to or during [the] trial did [Miller] or any defense
attorney raise the possibility that [Miller] was incompetent. The
trial judge had repeated, frequent conversations with [Miller]
because [Miller] went pro se for part of the proceedings. The [j]udge
was told by [Miller] in October of 2016 during the first Faretta
hearing that he has been previously found incompetent and
hospitalized.
Throughout portions of the proceedings, [Miller] represented
himself, including at the adversarial preliminary hearing. [Miller]
was represented at different times by an attorney from the Public
Defender’s Office and by private counsel. [Miller] went to trial in
April of 2017. During [the] trial, [Miller] was initially represented
by private counsel, who [Miller] requested to fire and proceed pro
se after the State rested. During the Faretta inquiry, the judge
again inquired about competency and [Miller’s] mental health
history. At the time [Miller] requested to go pro se, neither his
defense counsel, nor the State, nor the judge expressed concerns
about his competence. The judge allowed [Miller] to proceed pro se,
and [Miller] presented the defense case.
[Miller] re-called the victim as a witness. He properly and
repeatedly impeached her with deposition testimony and
statements the victim made to police. [Miller] elucidated his theory
of defense to the court. [Miller] presented an additional witness,
testified to the court himself, engaged in a charge conference about
the proposed jury instructions, argued the second motion for
judgment of acquittal, and made closing argument. [Miller] was
ultimately acquitted of a count of stalking, sexual battery, and
tampering, but was convicted of two counts of kidnapping and one
count of aggravated battery.
After [the] trial, [Miller] was again represented by the public
defender, who raised the issue of competency. [Miller] was
evaluated, found incompetent, sent to the State hospital, and was
deemed restored to competency on October 23, 2017. On January
2, 2018, [Miller] again asked to represent himself and after a
Faretta inquiry was allowed to do so. [Miller] immediately filed a
“Motion for Nunc Pro Tunc Competency Evaluation,” challenging
his competency during the trial. The judge held a hearing on the
motion, during which [Miller’s] trial lawyer briefly testified. (R-
1121).
(Doc. 7-25 at 7–8 (record citations omitted); see also Docs. 7-3, 7-4, 7-5, 7-6, 7-
16, 7-17, 7-18, 7-19, 7-20, 7-21, 7-22, 7-23; Doc. 7-14 at 844–1057, 1061–83,
1137).
Miller’s trial counsel, Ms. Wright, responded to Miller’s questioning at
the nunc pro tunc motion hearing, as follows:
Q Do you remember me saying that you was [sic] working with
the state attorney and with the judge to obtain a conviction?
A Yes, Mr. Miller.
Q Do you remember you telling me that I was acting very
paranoid and to calm down?
A To [sic] very what?
Q Very paranoid during the trial and to calm down.
A Yes. Well, let me say this[,] Mr. Miller. Well, I guess
throughout the time that I was representing you, I had to, I guess,
prove that I wasn’t working with the State, somehow helping
them. So in that sense you were a difficult client because you had
to -- I had to constantly reassure you that I was there for your best
interest.
Q Do you remember me turning -- spinning around in my chair
and keeping my back turned towards you because I thought that
you were on their side?
A Yes. Well, I can’t remember if that was the behavior, but I
do remember throughout the trial there were times when you were
just very difficult to deal with and you -- you know, I remember the
night before you dismissed me from your case. I was at the jail for
I think [sic] about midnight, somewhere around there, and you
know, you had expressed some thought that I was going through
with the State and I thought we had cleared up those matters and
I had to reassure you that I didn’t.
But yeah, throughout the trial[,] you -- I guess whenever I
did not do something that you thought I should have done, that
was your response.
Q And do you remember me saying that you are a maze along
with the judge and the prosecutor[,] and you guys -- I caught you
winking at the Judge, and things of that nature?
A I don’t know about the winking part. I mean, I don’t
remember that, but I know you did say that I was in cahoots with
the State and the Judge to help you [sic] get a conviction.
Q And do you think this is something that a competent person
would do if they was [sic] competent[:] in the middle of a trial to
fire an attorney that -- you know, that a private attorney in [sic]
which they had to pay for with their own money, just throw money
down the drain? I mean, I was serious about -- wouldn’t you think
I was serious about my allegations of you working with the State
to aid the State to get a conviction?
THE COURT: Hold on[,] Ms. Wright.
Mr. Miller, that actually calls for a legal conclusion, so I’m not
[going to] let you ask that question.
. . .
THE DEFENDANT: . . . [T]hat’s really all I need to ask at this
time.
(Doc. 7-23 at 16–18). After this questioning, Miller argued that because he “was
found incompetent after [the] trial[,] then certainly [he] had to be incompetent
during the trial.” (Id. at 20). The trial court denied his motion. (Id. at 19–20).
The facts of this case, including Ms. Wright’s testimony at the nunc pro
tunc hearing, “were not sufficient to raise a bona fide doubt as to whether
[Miller], at the time of [his] trial,” had “sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding,” and as to
“whether he ha[d] a rational as well as factual understanding of the
proceedings against him.” Wright, 278 F.3d at 1257 (citing Dusky, 362 U.S. at
402). Indeed, Ms. Wright’s testimony points “to no behavior or beliefs that
indicate [Miller had] an insufficient ability to communicate with her, or an
irrational understanding of the proceedings,” nor did she “express[ ] a belief
that [Miller] was incompetent.” (Doc. 7-25 at 15).
While Miller’s incompetence before and after the trial may be relevant,
it is not enough to counter the best evidence of his mental condition at the time
of the trial. Wright, 278 F.3d at 1259. The best evidence is “the evidence of his
behavior around that time, especially the evidence of how he related to and
communicated with others then.” Id. As the State points out, Miller’s
“performance during the trial demonstrate[d] a full grasp on the proceedings,
an understanding of his defense, and an ability to cogently present his case.”
(Doc. 7-25 at 17). Based on the foregoing, the state court’s denial of Miller’s
nunc pro tunc motion was not objectively unreasonable. Wright, 278 F.3d at
1256. Therefore, Ground Three is denied.
D. Ground Four
In Ground Four, Miller alleges his appellate counsel was ineffective for
failing to challenge the trial court’s denial of his motion to exclude evidence of
“other crimes, wrongs or acts,” also known as Williams rule13 evidence. (Doc. 1
at 13–16; see also Doc. 11 at 28–30). The State filed pre-trial notices of intent
to introduce evidence of other crimes, wrongs, or acts that Miller committed on
January 15, 2015 and January 1–22, 2016, as relevant to prove his motive,
intent, preparation, plan, or knowledge for the charged offenses. (See Docs. 7-
7, 7-8; see also Doc. 7-11 at 47–48). With counsel’s assistance, Miller filed a
motion to exclude this evidence. (Doc. 7-10). On March 30, 2017, the trial court
held a hearing, at which the State presented the victim’s testimony. (Doc. 7-
11). On April 4, 2017, the trial court orally denied Miller’s motion and allowed
the State to introduce evidence of Miller’s 2015 conviction, including
uncharged offenses subsumed into the aggravated stalking count and the
incidents on January 15 and 22, 2016. (Doc. 18-1 at 5–6). In doing so, the trial
court considered the victim’s testimony at the hearing and at her deposition,
along with counsel’s arguments. (See Docs. 7-11, 7-12, 18-1). In his instant
ineffective assistance of counsel claim, Miller seems to challenge the trial
13 Williams v. State, 110 So. 2d 654, 663 (Fla. 1959) (“[E]vidence of any facts
relevant to a material fact in issue except where the sole relevancy is character or
propensity of the accused is admissible unless precluded by some specific exception
or rule of exclusion.”).
court’s ruling only as to evidence of his 2015 conviction.14 (Doc. 1 at 13–16; see
also Doc. 11 at 28–30).
Miller presented this claim in ground one of his pro se amended petition
alleging ineffective assistance of appellate counsel, which the First DCA denied
“on the merits” without a written opinion. (See Doc. 7-32 at 9–15; Doc. 7-33).
The First DCA’s adjudication of the claim is entitled to AEDPA deference. As
previously stated, the Court gives considerable deference to appellate counsel’s
strategic decision of selecting the issues to raise on appeal. Further, contrary
to Miller’s argument, the trial court found that the State had proven the
aggravated stalking charge in count one by clear and convincing evidence for
the purpose of ruling on the Williams rule motion, regardless of the jury’s
ultimate conclusion as to count one. (Doc. 18-1 at 5; see also Doc. 7-11; Doc. 7-
12 at 13–15, 19, 28, 50). Also, the trial court found that evidence of the January
14 It does not appear that Miller’s present claim is premised on the trial court’s
admission of evidence about the incidents on January 15 and 22, 2016, which the trial
court found were “inextricably intertwined.” (Doc. 18-1 at 5–6). In any event,
“evidence which is inextricably intertwined with the crime charged[ ] is not Williams
rule evidence.” Mills v. State, 816 So. 2d 170, 171 (Fla. 3d DCA 2002) (“Evidence of
uncharged crimes which are inseparable from the crime charged, or evidence which
is inextricably intertwined with the crime charged, is not Williams rule evidence. It
is admissible under [Florida Statutes,] section 90.402[,] because ‘it is a relevant and
inseparable part of the act which is in issue . . . [I]t is necessary to admit the evidence
to adequately describe the deed.’” (citations omitted)); Tumulty v. State, 489 So. 2d
150, 153 (Fla. 4th DCA 1986) (stating that “‘inseparable crime’ evidence that explains
or throws light upon the crime being prosecuted” is admissible under Fla. Stat. §
90.402 simply as relevant evidence because it allows the State “to present an orderly,
intelligible case”).
15, 2015 incident was “relevant and admissible” to show motive for the charged
offenses, because Miller “had expressed anger and concern that the alleged
victim in this case had caused his incarceration” for the January 15, 2015
incident. (Doc. 18-1 at 5; see also Doc. 7-11 at 17–18, 22–23, 25–28, 30–32, 34–
36, 38–41, 44–46; Doc. 7-12 at 13–16, 28, 5015). Upon thorough review of the
record and the applicable law, the Court concludes that the state court’s
decision to deny Miller’s claim was neither contrary to nor an unreasonable
application of clearly established federal law, and was not based on an
unreasonable determination of the facts in light of the evidence presented to
the state court. See 28 U.S.C. § 2254(d). Therefore, Ground Four is denied.
E. Ground Five
In Ground Five, Miller alleges his appellate counsel was ineffective for
failing to challenge the trial court’s denial of his counseled motion for severance
of counts. (Doc. 1 at 17–19; see also Doc. 11 at 30–32). Miller’s motion sought
to sever the trial of counts one and two from the trial of counts three, four, and
five.16 (Doc. 7-9). The trial court denied the motion in open court on April 4,
15 The victim’s trial testimony substantiated her earlier statements. (See Doc.
7-14 at 333, 336–38, 341–43, 381, 385–86, 447).
16 Count one (aggravated stalking) was based on January 1–22, 2016 events
after a January 29, 2015 domestic violence injunction stemming from an incident on
January 15, 2015; counts two (kidnapping) and three (sexual battery) were based on
January 15, 2016 events; and counts four (kidnapping with a weapon), five
(aggravated battery), and seven (tampering with a witness, victim, or informant)
were based on January 22, 2016 events. (Doc. 7-1; Doc. 7-14 at 428).
2017, finding, as stated earlier, that the incidents on January 15 and 22, 2016
were “inextricably intertwined,” and that the incident on January 15, 2015 was
“relevant and admissible” because Miller “had expressed anger and concern
that the alleged victim in this case had caused his incarceration” for the
January 15, 2015 incident. (Doc. 18-1 at 5–6).
Miller presented this claim in ground two of his pro se amended petition
alleging ineffective assistance of appellate counsel, which the First DCA denied
“on the merits” without a written opinion. (See Doc. 7-32 at 16–20; Doc. 7-33).
The First DCA’s adjudication of the claim is entitled to AEDPA deference. As
previously stated, the Court gives considerable deference to appellate counsel’s
strategic decision of selecting the issues to raise on appeal.
Further, Miller has not shown that this claim would have had a
reasonable probability of success on appeal. First, the joinder of the counts did
not affect the jury’s ability to differentiate the crimes, considering that the jury
acquitted Miller of three of the six counts, including the aggravated stalking
offense in count one. (Doc. 7-14 at 1137). In addition, the six counts were
sufficiently connected to the January 2015 injunction and to one another to
support the denial of the motion to sever. The January 22, 2016 offenses in
counts four, five, and seven (armed kidnapping, aggravated battery, and
tampering) were sufficiently connected to the January 15, 2016 offenses in
counts two and three (kidnapping and sexual battery), as well as to the
January 1–22, 2016 offense in count one (aggravated stalking). The January
1–22, 2016 aggravated stalking charge stemmed from Miller’s violation of the
January 2015 domestic violence injunction. (See id. at 335–44, 445–54). The
January 15, 2016 charges for kidnapping and sexual battery, which Miller
wanted to sever, not only were based on events that occurred on the same day,
but were intertwined with conduct charged in count one. (See id. at 330–33,
345–52, 403–04, 471–76, 497). Also, the January 15, 2016 charges for
kidnapping and sexual battery gave context for the January 22, 2016 charges
for armed kidnapping and aggravated battery. Essentially, the January 22,
2016 kidnapping and aggravated battery offenses seemed to be a culmination
of Miller’s week-long search for the victim after she had cooperated in the
reporting of the January 15, 2016 crimes, which cooperation Miller told her to
drop, threatening to kill her and her family if she did not. (See id. at 370, 373–
89, 477–91, 496–97).
Thus, upon thorough review of the record and the applicable law, the
Court concludes that the state court’s decision to deny Miller’s claim was
neither contrary to nor an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of the facts
in light of the evidence presented to the state court. See 28 U.S.C. § 2254(d).
Accordingly, Ground Five is denied.
F. Ground Six
In Ground Six, Miller alleges his appellate counsel was ineffective for
failing to challenge the trial court’s denial of his motion to continue the hearing
on Miller’s pro se motion for nunc pro tunc competency determination to give
Miller an opportunity to call favorable witnesses, namely, Dr. Bloomfield and
Dr. Meadows. (Doc. 1 at 20–24; see also Doc. 11 at 32–34).
Miller presented this claim in ground five of his pro se amended petition
alleging ineffective assistance of appellate counsel, which the First DCA denied
“on the merits” without a written opinion. (See Doc. 7-32 at 30–36; Doc. 7-33).
The First DCA’s adjudication of the claim is entitled to AEDPA deference.
Again, the Court gives considerable deference to appellate counsel’s strategic
decision of selecting the issues to raise on appeal.
Moreover, Miller has not shown that appellate counsel was deficient or
that there was a reasonable probability that the outcome of the appeal would
have been different but for counsel’s allegedly deficient performance. To
succeed on his claim that the trial abused its discretion in denying his motion
for continuance, Miller was required to show: (1) “prior due diligence to obtain
the witness[es]’ presence”; (2) that “substantially favorable testimony would
have been forthcoming”; (3) that “the witness[es] [were] available and willing
to testify”; and (4) that “the denial of the continuance caused material
prejudice.” United States v. O’Neill, 767 F.2d 780, 784 (11th Cir. 1985). Miller
has not made these showings.
On January 2, 2018, Miller moved for a nunc pro tunc competency
determination, which the trial court took under advisement until January 5,
2018. (Doc. 7-22 at 31). When Miller indicated he wanted to have Dr. Meadows
and Dr. Bloomfield testify at the upcoming hearing, the trial court advised him
that would be problematic because the witnesses were not under a subpoena.
(Id. at 34–38). The trial court asked Miller about the witnesses’ expected
testimony and whether that testimony would be duplicative to their reports.
(Id. at 36–37). Other than generalized statements, Miller was unable to
identify anything that could not be introduced through the witnesses’ reports.
(Id.). At the end of the hearing, Miller conceded that he would only need Ms.
Wright’s testimony. (Id. at 39). However, on January 5, 2018, Miller stated that
he still wanted to call Dr. Meadows and Dr. Bloomfield, but he needed a
continuance to ensure their appearance. (Doc. 7-23 at 7). The trial court denied
the request and stated it would rule on the nunc pro tunc motion based on the
doctors’ reports and Ms. Wright’s testimony, assuming she were available to
testify. (Id. at 7–8). After Ms. Wright’s telephonic testimony that day, the trial
court denied Miller’s nunc pro tunc motion. (Id. at 14–20).
Based on the foregoing, Miller has not shown that the trial court abused
its discretion to deny his request for a continuance. See O’Neill, 767 F.2d at
784. And appellate counsel cannot be ineffective for failing to bring a weak or
meritless argument. See Philmore, 575 F.3d at 1264; Owen, 568 F.3d at 915.
Therefore, upon thorough review of the record and the applicable law, the
Court concludes that the state court’s decision to deny Miller’s claim was
neither contrary to nor an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of the facts
in light of the evidence presented to the state court. See 28 U.S.C. § 2254(d).
As such, Ground Six is denied.
Accordingly, it is ORDERED and ADJUDGED as follows:
1. The Petition (Doc. 1) is DENIED and this action is DISMISSED
WITH PREJUDICE.
2. The Clerk of the Court shall enter judgment dismissing this action
with prejudice, terminate any pending motions, and close the file.
3. If Petitioner appeals this Order, the Court denies a certificate of
appealability.17 Because the Court has determined that a certificate of
17 The court should issue a certificate of appealability only if a petitioner makes
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
To make this substantial showing, a petitioner “must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to
deserve encouragement to proceed further,’” Miller–El v. Cockrell, 537 U.S. 322, 335–
36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Upon due
consideration of the record as a whole, this Court denies a certificate of appealability.
appealability is not warranted, the Clerk of the Court shall terminate from the
pending motions report any motion to proceed on appeal as a pauper that may
be filed in this case. Such termination shall serve as a denial of the motion.
DONE AND ORDERED at Jacksonville, Florida, this 10th day of
September, 2026.
JORDAN E. PRATT
UNITED STATES DISTRICT JUDGE
Jax-11
C:
Jamal A. Miller, #132314
Counsel of Record
36