Petition for Writ of Certiorari — Robert Oulton, Jr., Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections

USCA11 Case: 21-13058

Date Filed: 03/22/2022

Page: 1 of 3

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 21-13058-F

ROBERT OULTON, JR.,

Petitioner-Appellant,

versus

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Florida

ORDER:

Robert Oulton, Jr., a Florida prisoner serving a term of life imprisonment for second-degree

murder seeks a certificate of appealability (“COA”) to appeal from the district court’s sua sponte

dismissal in part, and denial in part, of his pro se 28 U.S.C. § 2254 habeas corpus petition. He

raised ten grounds for relief: (1) the state post-conviction court violated his rights; (2) his counsel’s

failure to ensure that he receive “psychiatric assistance in preparation for and at trial[,]” and the

state post-conviction court’s failure to remedy counsel’s ineffective performance in that regard,

violated his rights; (3) his counsel performed ineffectively by failing to investigate his “clearly

declared war-related PTSD history”; (4) his initial counsel had a conflict of interest; (5) the Office

of the Public Defender for Broward County (“OPD”) deprived him of his right to conflict-free

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USCA11 Case: 21-13058

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counsel; (6) he was deprived of his right under Florida law to a “capital-case qualified” judge;

(7) there was a “systemic breakdown” in the Broward County’s Seventeenth Judicial Circuit

Court’s Criminal Division; (8) the deprivation of his right to a fair and impartial judge; (9) the trial

court violated his rights by failing to address “the specifically cited federal law as determined by

the Supreme Court of the United States,” in its order denying his motion for a formal hearing to

determine whether a hearing, held pursuant to Nelson v. State, 274 So. 2d 256 (Fla. 4th Dist. Ct.

App. 1973), was a critical stage of the proceedings; and (10) the violation of his right to a speedy

trial.

Here, reasonable jurists would not debate the district court’s resolution of Oulton’s

§ 2254 petition. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that to obtain a COA,

the movant must demonstrate that “reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong,” or that the issues “deserve encouragement to

proceed further.”). As an initial matter, reasonable jurists would not debate the district court’s

sua sponte dismissal of Grounds One and Six because the grounds asserted issues that were not

cognizable under § 2254. See Rules Governing § 2254 Cases, Rule 4 (“If it plainly appears from

the petition and any attached exhibits that the petitioner is not entitled to relief in the district court,

the judge must dismiss the petition and direct the clerk to notify the petitioner.”); McCullough v.

Singletary, 967 F.2d 530, 535 (11th Cir. 1992) (explaining that a state’s interpretation of its own

laws or rules provides no basis for federal habeas corpus relief); Quince v. Crosby, 360 F.3d 1259,

1262 (11th Cir. 2004) (providing that an error in a state post-conviction proceeding is not a basis

for federal habeas relief).

Additionally, reasonable jurists would not debate the district court’s denial of the remaining

grounds of Oulton’s § 2254 petition. Grounds Two, Seven, Eight, and Nine failed because Oulton

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USCA11 Case: 21-13058

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did not carry his burden to establish that he was entitled to relief. See Cullen v. Pinholster,

563 U.S. 170, 181 (2011) (explaining that, when a § 2254 petitioner asserts a claim that has been

adjudicated on the merits in state court proceedings, the petitioner bears the burden of proving he

is entitled to relief). Ground Three did not entitle Oulton to relief because he did not prove

prejudice from his counsel’s purported deficient performance. See Strickland v. Washington,

466 U.S. 668, 687-97 (1984) (holding that an ineffective-assistance claim requires a showing of

deficient performance and resulting prejudice). Ground Four failed because Oulton did not satisfy

the adverse-effect prong. See Reynolds v. Chapman, 253 F.3d 1337, 1342 (11th Cir. 2001)

(providing that an ineffective-assistance claim based upon a conflict of interest requires a showing

of (1) an actual conflict of interest; and (2) a resulting adverse impact on counsel’s performance).

Ground Five did not entitle Oulton to relief because, as he failed to establish a claim of ineffective

assistance based on a conflict of interest, he could not establish that the OPD deprived him of his

right to conflict-free counsel.

Lastly, Ground Ten failed because, as Oulton neither established that the first three Barker

factors heavily weighed against the state, nor actual prejudice, the state appellate court’s rejection

of this claim was reasonable. See Barker v. Wingo, 407 U.S. 514, 530 (1972) (explaining that

when analyzing a speedy-trial claim, a court should consider: (1) the length of the delay; (2) the

reason for the delay; (3) whether the defendant asserted the right; and (4) any prejudice to the

defendant); United States v. Dunn, 345 F.3d 1285,1296 (11th Cir. 2003) (providing that if the first

three Barker factors do not heavily weigh against the prosecution, the defendant generally must

demonstrate actual prejudice). Accordingly, Oulton’s motion for a COA is DENIED.

/s/ Kevin C. Newsom

UNITED STATES CIRCUIT JUDGE

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rage

United States District Court

for the

Southern District of Florida

Robert Oulton, Jr., Petitioner

)

)

v.

) Civil Action No. 21-60688-Scola

Mark S. Inch, Respondent.

)

)

Final Order Denying Petition for Writ of Habeas Corpus

1.

Introduction

The Petitioner has filed a Petition for Writ of Habeas Corpus under 28

U.S.C. § 2254 (“Petition”). (ECF No. 1). The Petition challenges his conviction,

for second-degree murder in Case No. 10-6118-CF10A, Seventeenth Judicial

Circuit, Broward County. On screening, the Court entered an order dismissing

claims 1 and 6. (ECF No. 6). The Court ordered the State to respond to claims

2-5 and 7-10. (ECF No. 7). After amendments irrelevant here, the State filed a

Second Amended Response (“SAR”). (ECF No. 21). The Petitioner replied. (ECF

No. 35).

2.

Relevant Background

On April 21, 2010, a grand jury indicted Petitioner for first-degree

murder. (ECF No. 14-1 at 13-14).1 The indictment alleged that he caused the

death of Yvonne Oulton “by inflicting blunt force trauma to [her] head.” {Id.)

The Petitioner’s trial started on August 17, 2015. (ECF No. 15-1 at 1).

The evidence against him was overwhelming. The Petitioner was at the scene

where the detectives discovered the victim, the Petitioner’s wife. (ECF No. 15-1

at 436). The Petitioner told his son to drive the area where the detectives

discovered her body. (Id. at 547). Video footage contradicted the Petitioner’s

story that his wife dropped him off at the casino before her murder. (Id. at 54546, 556). Rather, the video footage showed the Petitioner entering the casino 18

minutes after the minivan in which the police discovered his wife’s body was

abandoned. (Id. at 562-63). Det. Kogan testified that the distance between the

crime scene and the casino was “a little less than a mile” and that it took him

“about 15 minutes” to walk that distance. (Id. at 563). A detective found a

suicide note from the Petitioner to his son on a computer at their residence,

which the jurors read. (Id. at 706-08, 717). The Petitioner admitted to his son

1 All page citations to ECF entries are to the CM/ECF-generated page stamp number at the top,

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in that and other letters that he snapped and killed his wife and farther asked

for his son’s forgiveness. (Id. at 775-76).

The Petitioner testified in his defense. He admitted that he “got heated,”

that he saw her trying to take their son away, and that he beat her with a tool

from the tool bag. (Id. at 840, 842, 850-51). He conceded that he “was covering

things up” and that he knew what he was doing “was dead wrong.” [Id. at 858).

Further, the Petitioner admitted that he wrote his son a letter and that he was

going to commit suicide. (Id. at 860, 863).

The jury convicted the Petitioner of the “lesser included crime of Murder

in the Second Degree.” (ECF No. 14-1 at 652). The trial court imposed a life

sentence. (Id. at 654, 660).

Representing himself, the Petitioner filed a direct appeal. (Id. at 667). The

State filed a response. (Id. at 717). The Fourth District Court of Appeals

affirmed without comment. (Id. at 777).

The Petitioner filed a motion for postconviction relief. (ECF No. 14-1 at

955). The State responded. (Id. at 985). The trial court denied the motion for

the reasons in the State’s response. (Id. at 1011, 1036). The Fourth District

affirmed without comment. (Id. at 1082).

3.

Legal Standard Under § 2254(d)

28 U.S.C. § 2254(d) sets forth the following standards for granting federal

habeas corpus relief:

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 with

respect to any claim that was adjudicated on the merits in State court

proceedings 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.

Under § 2254(d)(l)’s “contrary to” clause, courts may grant the writ if the

state court: (1) reaches a conclusion on a question of law opposite to that

reached by the Supreme Court; or (2) decides a case differently than the

Supreme Court has on materially indistinguishable facts. Williams v. Taylor,

529 U.S. 362, 412-13 (2000). Under its “unreasonable application” clause,

courts may grant the writ if the state court identifies the correct governing legal

principle from the Supreme Court’s decisions but unreasonably applies that

principle to the facts of the case. Id. at 413. “[CJlearly established Federal law”

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consists of Supreme Court “precedents as of the time the state court renders

its decision.” Greene v. Fisher, 565 U.S. 34, 38 (2011) (citation and emphasis

omitted).

An unreasonable application of federal law differs from an incorrect

application of federal law. Renico v. Lett, 559 U.S. 766, 773 (2010) (citation

omitted). Under this standard, “a state prisoner 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 for

fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

Courts “apply this same standard when evaluating the reasonableness of

a state court’s decision under § 2254(d)(2).” Landers v. Warden, 776 F.3d 1288,

1294 (11th Cir. 2015) (citations omitted). That is, “a state court’s determination

of the facts is unreasonable only if no fairminded jurist could agree with the

state court’s determination.” Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d

1230, 1257 (11th Cir. 2012) (cleaned up).

Under § 2254(d), where the decision of the last state court to decide a

prisoner’s federal claim contains no reasoning, federal courts must “look

through’ the unexplained decision to the last related state-court decision that

does provide a relevant rationale.” Wilson v. Sellers, 138 S. Ct. 1188, 1192

(2018). “It should then presume that the unexplained decision adopted the

same reasoning.” Id.

A contrastable situation occurs when the decision of the last state court

to decide a federal claim contains no reasoning and there is “no lower court

opinion to look to.” Id. at 1195. In this case, “it may be presumed that the state

court adjudicated the claim on the merits in the absence of any indication or

state-law procedural principles to the contrary.” Richter, 562 U.S. at 99

(citation omitted). Thus, “[s]ection 2254(d) applies even [though] there has been

a summary denial.” Cullen v. Pinholster, 563 U.S. 170, 187 (2011) (citation

omitted). Because § 2254(d) applies, and because the last state court decision

is unreasoned and there is no lower court decision to look to, “a habeas court

must determine what arguments or theories . . . could have supported[] the

state court’s decision [] and . . . ask whether [they] are inconsistent with

[Supreme Court precedent].” Richter, 562 U.S. at 102.

4.

Ineffective Assistance of Counsel Principles

To establish a claim of ineffective assistance of counsel, the Petitioner

must show that counsel’s performance was deficient and that the deficient

performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668,

687 (1984).

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To prove deficiency, he must show that counsel’s performance “fell below

an objective standard of reasonableness” as measured by prevailing

professional norms. Id. at 688. Courts must “indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 689. “[A]n attorney will not be held to have performed

deficiently for failing to perform a futile act, one that would not have gotten his

client any relief.” Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1297 (11th Cir. 2017)

(collecting cases).

To prove prejudice, the Petitioner must show “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. Counsel’s failure to raise a meritless claim is

not prejudicial under Strickland. Hittson v. GDCP Warden, 759 F.3d 1210, 1262

(11th Cir. 2014).

It is “all the more difficult” to prevail on a Strickland claim under §

2254(d). Richter, 562 U.S. at 105. As the standards that Strickland and §

2254(d) create are both “highly deferential,” review is “doubly” so when the two

apply in tandem. Id. (citation omitted). Thus, “[w]hen § 2254(d) applies, the

question is not whether counsel’s actions were reasonable.” Id. Rather, “[t]he

question is whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Id.

The Petitioner has the burden of proof on his ineffectiveness claim,

Holsey, 694 F.3d at 1256, as well as the burden of proof under § 2254(d),

Cullen, 563 U.S. at 181.

5.

Discussion

A.

Claims 2 and 3

The Petitioner poorly pleads claims 2 and 3. In claim 2, he conclusorily

alleges that the trial and postconviction court2 violated due process by failing

to ensure that he received “his required psychiatric assistance in preparation

for and at trial.” (See ECF No. 1 at 5). On the one hand, he states that claim 2

is an “issue [of] ineffective assistance of counsel.” (ECF No. 35 at 2). On the

other hand, he seems to contend that claim 2 alleges trial court error for failing

to ensure that he receive the assistance of a psychiatrist under Ake v.

Oklahoma, 470 U.S. 68 (1985). (See id. at 4). This latter construction of claim 2

comports with his postconviction motion. There, he alleged that: (1) counsel

ineffectively failed to ensure that he received such assistance; and (2) the trial

2 Any claim based on the postconviction court’s alleged error is not cognizable. (ECF No. 6 at

2).

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court violated due process by failing to ensure that he received such

assistance. (ECF No. 14-1 at 961-71).

In claim 3, the Petitioner alleges that counsel ineffectively failed to

investigate his “clearly declared war-related PTSD history as mitigation to

support his courtroom declaration of responsibility of the crime.” (ECF No. 1 at

7). He adds that claim 3 is “tightly intertwined with [claim] 2 . . . , as both arose

out of the same incident, sharing all the same facts.” (ECF No. 21 at 4).

The trial court rejected these claims on the merits. (Id. at 999-1000,

1003-05). Pertinently, it reasoned that he could not show prejudice because he

failed to adequately allege how a psychiatrist’s testimony would have resulted

in “sufficient mitigating considerations to justify a conviction of manslaughter

or less.” (Id. at 1003). Further, the trial court found that “the record

conclusively reflect[ed that] the [Petitioner] was not entitled to psychiatric

assistance at trial pursuant to Ake.” (Id. at 1004). In support, it stated that his

“trial attorney was clear they were not pursuing insanity as a defense” and

noted that the Petitioner stated on the record that “counsel had done

everything he asked of him in [terms of] preparing, investigating, and trying the

case.” (Id.)

The trial court reasonably rejected these claims. Ake held that “when [an

indigent] defendant demonstrates to the trial judge that his sanity at the time

of the offense is to be a significant factor at trial, the State must, at a

minimum, assure the defendant access to a competent psychiatrist who will

conduct an appropriate examination and assist in evaluation, preparation, and

presentation of the defense.” 470 U.S. at 83. To trigger Ake, the defendant’s

“‘sanity at the time of the offense [must be] seriously in question.’” McWilliams

v. Dunn, 137 S. Ct. 1790, 1798 (2017) (quoting Ake, 470 U.S. at 70).

Here, the trial court reasonably concluded that the Petitioner’s sanity at

the time of the offense was not seriously in question. Although the Petitioner

moved the trial court to transfer the case to a South Florida Veteran’s

Administration Hospital to be evaluated for PTSD, the motion does not link his

alleged military-related PTSD to the crime. (ECF No. 14-1 at 27-33).34

Furthermore, the record indicates that trial counsel was in possession of prior

mental health examinations but chose not to disclose them. (See ECF No. 15-1

at 843-44). Additionally, at trial, counsel stated that he “absolutely” was not

“raising an insanity defense.” (Id. at 844); see Watts v. Singletary, 87 F.3d

3 The Petitioner did not challenge the trial court’s failure to rule on this motion. (ECF No. 14-1

at 1004).

4 The Petitioner testified that he was a clerk typist and served only two years of active duty.

(ECF No. 14-1 at 812, 814).

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1282, 1288 (11th Cir. 1996) (“Because legal competency is primarily a function

of [the] defendant’s role in assisting counsel in conducting the defense, the

defendant’s attorney is in the best position to determine whether the

defendant’s competency is suspect.”). Likewise, the Petitioner stated that he

was happy with counsel and that counsel had “[b]asically” done everything that

he asked him to do in terms of “preparing, investigating, [and] trying the case.”

(ECF No. 15-1 at 947-48). Moreover, the Petitioner admitted on the stand that

he did not want his wife to take their son, wrongfully murdered her, and tried

to cover up the crime. These admissions undercut the Petitioner’s suggestion

that his sanity at the time of the offense was seriously in question. In short, the

trial court reasonably found Ake inapplicable.

The trial court also reasonably rejected the derivative ineffectiveness

claim. The Petitioner contends that counsel ineffectively failed to ensure that he

received psychiatric assistance to support his manslaughter defense. (ECF No.

35 at 2). For the above reasons, however, counsel reasonably could have

concluded that the Petitioner did not require such assistance. Furthermore, the

Petitioner does not meaningfully explain what a psychiatrist would have

testified to or how his/her testimony would have substantiated this theory. See

Streeter v. United States, 335 F. App’x 859, 864 (11th Cir. 2009) (per curiam)

(“In a habeas petition alleging ineffective assistance of counsel, mere

speculation that missing witnesses would have been helpful is insufficient to

meet the petitioner’s burden of proof.” (citation omitted)). Based on the

brutality of the homicide, the presence of defensive wounds, and the

Petitioner’s highly incriminating remarks,5 the jury reasonably could have

rejected this putative testimony and found that he committed “an unlawful

killing of [the victim] by an act imminently dangerous to [the victim] and

demonstrating a depraved mind without regard for human life.” (ECF No. 15-1

at 904); (see also id. at 910 (instruction that the jury could “believe or

disbelieve all or any part of an expert’s testimony”)).

In sum, the state courts’ rejection of claims 2 and 3 was not contrary to,

or an unreasonable application of, clearly established federal law or an

unreasonable determination of the facts.

B.

Claim 4

The Petitioner contends that his initial attorney, Assistant Public

Defender H. Dohn Williams (“APD Williams”), had a “conflict of interest due to

[an excessive] caseload.” (ECF No. 1 at 8). This excessive caseload allegedly

caused APD Williams to place other clients’ needs ahead of the Petitioner’s.”

s See supra Part 2; (see also ECF No. 21 at 11-13 (citing trial transcript)).

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(ECF No. 35 at 8). In support, he alleges that APD Williams “routinely claimed

[to have] 9 to 11 active capital cases counting” his. (Id. at 7). He further alleges

that APD Williams stated during hearings that he would not put the Petitioner’s

case ahead of his other clients’ cases. (Id. at 9). Additionally, he conclusorily

alleges that this conflict of interest resulted in a litany or errors and induced

him to waive his procedural speedy trial rights. (Id. at 8—9). This alleged conflict

of interest violated due process and the Sixth Amendment and constituted

ineffective assistance of counsel. (ECF No. 1 at 8; ECF No. 35 at 10).

The Petitioner raised this claim on direct appeal. (ECF No. 14-1 at 67786). The Fourth District rejected it without comment. (Id. at 777).

The Fourth District reasonably rejected this claim. “To establish a

violation of the defendant’s Sixth Amendment right to counsel based on a

conflict of interest, a defendant must demonstrate: (a) that his defense attorney

had an actual conflict of interest, and (b) that this conflict adversely affected

his attorney’s performance.” Tuomi v. Sec’y, Fla. Dep’t of Corr., 980 F.3d 787,

796 (11th Cir. 2020) (citation and quotation marks omitted). “The mere

possibility of conflict of interest does not rise to the level of a Sixth Amendment

violation.” Id. (citation and quotation marks omitted). “To show an actual

conflict of interest, a habeas petitioner must make a factual showing of

inconsistent interests and must demonstrate that the attorney made a choice

between possible alternative courses of action that favors an interest in

competition with that of the defendant. If counsel did not make such a choice,

the conflict remained hypothetical.” Id. (cleaned up).

Here, the Fourth District reasonably could have concluded that there

was no actual conflict of interest. The Petitioner broadly alleges that APD

Williams had an excessive caseload. However, he identifies no facts supporting

a finding that, due to his workload, APD Williams favored other clients’

competing interests. APD Williams’s statement (and similar statements) that

the Petitioner could not “arbitrarily put himself at the head of the line because

of impatience, [his] wanting to get to trial before everyone else” does not reflect

that he favored other clients’ competing interests. (ECF No. 17-1 at 491-92

(emphasis added)). It simply reflects his professional judgment that pursuing a

speedy trial was not a sound strategy under the circumstances and that a

motion to dismiss on speedy trial grounds would prove futile. (See id.).

Furthermore, the record does not support the Petitioner’s assertion that APD

Williams carried 9 to 11 capital cases. Rather, the evidence indicates that he

had around that many first-degree murder cases, but that the State was

seeking the death penalty in only two of them, excluding the Petitioner’s. (See

id. at 409, 491; ECF No. 32 at 13); see also Fla. Stat. § 27.5304(5)(d) (defining a

capital case as “any offense for which the potential sentence is death and the

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state has not waived seeking the death penalty”).6 Additionally, while the

Petitioner faults APD Williams for waiving his right to a speedy trial, “an

attorney, acting without consent from his client, may waive his client’s right to

a speedy trial because scheduling matters are plainly among those decisions

for which agreement by counsel generally controls.” Fayson v. Sec’y, Fla. Dep’t

ofCorr., 568 F. App’x 771, 773 (11th Cir. 2014) (per curiam) (cleaned up). So

this waiver has little, if any, tendency to show an actual conflict. The

Petitioner’s remaining criticisms of APD Williams’ representation are too

conclusory to support a finding that his representation was deficient or that he

favored competing interests. (See ECF No. 35 at 10); see also McFarland v.

Scott, 512 U.S. 849, 856 (1994) (“Habeas corpus petitions must meet

heightened pleading requirements.” (citation omitted)).

In short, the alleged conflicts that the Petitioner describes are “all

possible, speculative or merely hypothetical.” (ECF No. 21 at 47). Thus, the

Fourth District reasonably could have concluded that APD Williams’s allegedly

excessive caseload did not result in an actual conflict.

The Fourth District also could have reasonably rejected the Petitioner’s

piggybacked due process and ineffectiveness claims for the same essential

reasons. Based on the above analysis, there is no indication that APD

Williams’s caseload “so infused the trial with unfairness as to deny [the

Petitioner] due process of law,” See Estelle v. McGuire, 502 U.S. 62, 75 (1991)

(citation omitted), or fell outside the “wide range of reasonable professional

assistance,” Strickland, 466 U.S. at 687.7

In sum, the Fourth District’s rejection of claim 4 was not contrary to, or

an unreasonable application of, clearly established federal law or an

unreasonable determination of the facts.

C.

Claim 5

The Petitioner alleges that the Office of the Public Defender for Broward

County (“OPD”) deprived him of his right to conflict-free counsel because it

“had no program, method, or need to know or track individual attorney

caseloads, by type or quantity.” (ECF No. 1 at 10). He explains that he wrote

the OPD, which stated in response that it could not “generate any report”

6 The Petitioner was indicted in April 2010. Before March 24, 2011, the State waived the death

penalty. (ECF No. 17-1 at 403, 418). That, at one point, he faced the death penalty supports

the finding that APD Williams’s strategy of not racing to trial was sound. And that the State

waived the death penalty during his representation also weakens the contention that his

representative was ineffective.

7 The Fourth District’s rejection of the Strickland claim is entitled to double deference. See

Richter, 562 U.S. at 105.

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“tracking] individual attorney caseloads involved in capital cases.” (ECF No. 35

at 11).

The Petitioner raised this claim on direct appeal. (ECF No. 14-1 at 68586). The Fourth District rejected it without comment. (Id. at 777).

Here, the Fourth District could have reasonably rejected this claim for

the same reasons that it could have rejected claim 4. Even if the OPD could not

adequately track the caseloads of attorneys who had capital cases, the

Petitioner has not shown that APD Williams had an actual conflict or that the

alleged actual conflict adversely affected his performance.

Furthermore, although not essential to the analysis, the Court notes the

Plaintiffs assertion that an assistant public defender’s caseload should not

exceed three capital cases. (ECF No. 35 at 7-8). Yet, as stated above, the

Petitioner has not shown that APD Williams carried more than three capital

cases, including his. So he has not shown that the OPD’s alleged “systemic

breakdown” in tracking attorney caseloads caused APD Williams to carry an

inordinately high load of capital cases.

In sum, the Fourth District’s rejection of this claim was not contrary to,

or an unreasonable application of, clearly established federal law or an

unreasonable determination of the facts.

D,

Claim 7

Similarly to claim 5, the Petitioner contends that there was a “systemic

breakdown” in “Broward County’s Seventeenth Judicial Circuit Court’s

Criminal Division.” (ECF No. 1 at 13). In support, he contends that the

Seventeenth Judicial Circuit has not established specific guideline limitations

as to how many capital cases an attorney may represent at one time and does

not require certification every time a public defender receives a capital case.

{Id.) Further, he alleges that the Seventeenth Judicial Circuit failed to ensure

that a “capital-case-qualified” judge presided over his trial. (Id.) These

deficiencies allegedly resulted in “may errors and constitutional violations.” (Id.)

The Petitioner raised this claim on direct appeal. (See ECF No. 14-1 at

685-88). The Fourth District rejected it without comment. (Id. at 777).

The State correctly notes that this claim “is a combination of grounds 5

and 6.” (ECF No. 21 at 52). The claim-5 component fails for the same reasons

as claims 4 and 5. Supra Part 5(B)-(C). The claim-6 component fails for the

same reasons as claim 6. (ECF No. 6 at 3-4). In short, claim 7 is meritless.

E.

Claim 8

The Petitioner contends that Judge Ilona Holmes had a conflict of

interest that resulted in her being biased against him. (ECF No. 1 at 14-15).

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His reasoning is unclear. (Id.) Apparently, the alleged conflict stemmed from

the fact that she was a supervising administrative judge in 2009 and 2010 and

“openly expressed” her “sufficient concern” that the OPD “may have a potential

for exposing their attorneys to excessive caseloads.” (Id. at 14). This alleged

concern for OPD attorney caseloads caused her to issue adverse rulings, fail to

appoint conflict-free counsel, and fail to appoint a capital-case-qualified judge.

(Id.) His supporting allegations are conclusory. (Id.)

He raised this claim on direct appeal. (ECF No. 14-1 at 695-96). The

Fourth District rejected it without comment. (Id. at 777).

Here, the Fourth District reasonably rejected this claim for the reasons in

the State’s Response, (ECF No. 21 at 52-54), to which the Petitioner failed to

reply, (ECF No. 35 at 12-13). This claim would also fail under de novo review. A

petitioner cannot obtain relief under § 2254 based on such conclusory and

unclear allegations. See Scott, 512 U.S. at 856 (1994); see also Garlotte v.

Fordice, 515 U.S. 39, 46 (1995) (“[T]he habeas petitioner generally bears the

burden of proof].]”); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991)

(habeas petitioner not entitled to evidentiary hearing “when his claims are

merely conclusory allegations unsupported by specifics” (citation and quotation

marks omitted)).

F.

Claim 9

(1)

Background

Relevant here, while his prosecution pended, the Petitioner filed several

motions and letters attacking the effectiveness of his attorneys’ representation.

(See, e.g., ECF No. 14-1 at 35, 39, 42, 54), In response, the Court made at least

three inquiries under Nelson v. State, 274 So. 2d 256, 258 (Fla. 4th DCA 1973).

Under Nelson, “when a defendant seeks to discharge court-appointed counsel

before trial on account of ineffectiveness, ‘the trial judge should make a

sufficient inquiry of the defendant and his appointed counsel to determine

whether or not there is reasonable cause to believe that the court appointed

counsel is not rendering effective assistance to the defendant.’” Holland v.

Florida, 775 F.3d 1294, 1302 n.l (11th Cir. 2014) (quoting Nelson, 274 So. 2d

at 258-59); (see also ECF No. 17-1 at 263-64, 402-03, 474 (Nelson hearings)).

The trial court found counsel effective at each hearing. (ECF No. 17-1 at 29193, 417-18, 496-501).

After these hearings, the Petitioner filed a motion to determine whether a

Nelson hearing is a critical stage of the proceedings. (ECF No. 14-1 at 396). He

argued that, if it were a critical stage, he would be entitled to legal

representation seeing that the hearing required him to “self-represent,

confronting his attorney.” (See id. at 397).

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The court denied the motion, ruling that: (1) there was no basis for such

a hearing under Florida law; and (2) the Court already determined that he was

receiving effective assistance. (Id. at 402).

The Petitioner raised the same essential claim on direct appeal, alleging

violations of due process and the Sixth Amendment. (ECF No. 14-1 at 693-94)

The Fourth District affirmed without comment. (Id. at 777).

(2)

Analysis

The Petitioner raises the same claim in his Petition. (ECF No. 1 at 16).

The Fourth District reasonably rejected it. The Petitioner has not identified any

Supreme Court cases clearly establishing that courts must appoint new

counsel for the defendant if the defendant files a motion to discharge counsel

or challenges the effectiveness of counsel’s representation.

Furthermore, the Court assumes, without deciding, that the Nelson

hearing was a critical stage of the proceedings. See generally Woods v. Donald,

575 U.S. 312, 315 (2015) (characterizing “a critical stage as one that held

significant consequences for the accused” (citation and quotation marks

omitted)). Even so, counsel was present at all the Nelson hearings.

Apparently, the Petitioner contends that the “adversarial nature of the

[Nelson] proceeding” virtually deprived him of counsel. (See ECF No. 35 at 14).

Again, however, no Supreme Court case so establishes.

Moreover, after thorough inquires, the Court found at each hearing that

counsel was effective. Far from demonstrating that counsel was the Petitioner’s

adversary or had impaired interests, the Nelson hearings indicated that counsel

was “investigating, conducting discovery, preparing pretrial motions, and

attempting to develop a plausible defense, all while handling other cases.” (ECF

No. 21 at 48 (citing hearing transcript)).

In sum, the Fourth District’s rejection of this Claim was not contrary to,

or an unreasonable application of, clearly established federal law or an

unreasonable determination of the facts.

G.

Claim 10

The Petitioner alleges a violation of his constitutional right to a speedy

trial. (ECF No. 1 at 17-18; ECF No. 35 at 15-18). The Petitioner alleges that he

was charged on April 6, 2010. (ECF No. 1 at 8). A grand jury indicted him on

April 21, 2010. (ECF No. 14-1 at 13-14). His trial started on August 17, 2015.

(ECF No. 15-1 at 1). He attributes this delay to the errors that he has alleged in

his other claims in his Petition. (ECF No. 1 at 18).

The Petitioner moved to dismiss the indictment on speedy trial grounds.

The trial court denied it in a reasoned order. (ECF No. 14-1 at 619-21).

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He also raised this claim on appeal. {Id. at 699-711). The Fourth District

rejected it without comment. {Id. at 777). Because the Fourth District’s

rejection is silent, and because the trial court rejected this claim in a reasoned

order, the Court presumes that the Fourth District adopted its reasoning.

Wilson, 138 at 1192.

To determine whether a defendant’s right to a speedy trial has been

violated, courts consider: (1) the length of delay; (2) the reasons for the delay;

(3) the defendant’s assertion of his right; and (4) prejudice to the defendant.

Barker v. Wingo, 407 U.S. 514, 530 (1972).

Here, because more than five years elapsed between indictment and trial,

the Court assumes that factor one favors the Petitioner. See United States v.

Oliva, 909 F.3d 1292, 1298 (11th Cir. 2018) (“A post-indictment delay

exceeding one year is generally sufficient to trigger the analysis.”).

Regarding factor two, however, the trial court found that “every

continuance was requested by defense counsel” and that “the weight of the

reasons for the delay comes down solely upon the defense.” (ECF No. 14-1 at

620). The Petitioner concedes that the “vast majority of delays had been

initiated by the defense.” (ECF No. 35 at 16 (emphasis omitted)). To circumvent

this fact and the rule that assigned counsel’s delay is attributable to the

defendant, the Petitioner alleges a “a systemic breakdown in the public

defender system.” Vermont v. Brillon, 556 U.S. 81, 94 (2009); (see also ECF No.

1 at 18). Again, however, the Court has already rejected this argument. Factor

two overwhelming factors the State.8

Factor three favors the Petitioner. The Petitioner repeatedly requested a

speedy trial in his correspondence with the trial court and at the Nelson and

other hearings. {See, e.g., ECF No. 14-1 at 35; ECF No. 17-1 at 495).

Factor four favors the State. The trial court found that the Petitioner did

not allege “any oppression or impropriety in his incarceration” and that his

attorney’s continuances benefited his defense. (ECF No. 14-1 at 621). The

Petitioner has not challenged the trial court’s finding that there was no

oppression or impropriety in his incarceration. (ECF No. 1 at 18; ECF No. 35 at

17). Although on direct appeal he complained about the conditions of his

confinement, (ECF No. 14-1 at 707-08), he has not shown “that these were the

result of the delay in his trial rather than simply the result of the charges

against him.” See Jackson v. Benton, 315 F. App’x 788, 793 (11th Cir. 2009)

(per curiam). Further, counsel sought the continuances “to investigate the

case, conduct discovery, prepare pretrial motions, [and] develop a defense” in a

8 The Petitioner’s extensive pretrial filings certainly contributed to the delay as well. At one

point, he convinced the trial court to allow him to represent himself only to turn around and

ask for the reappointment of counsel. (ECF No. 14-1 at 374-75).

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difficult case for the Petitioner both in terms of the State’s overwhelming

evidence and the magnitude of the charge. (See ECF No. 14-1 at 620); (see also,

e.g., ECF No. 21 at 48 (citing hearing transcript)). In short, when assessing

prejudice, the most important consideration is whether the delay has impaired

the defense. Barker, 407 at 532. Because the delay here benefited the

Petitioner’s defense, this factor favors the State.

Accordingly, the Barker factors favor the State. Although factors one and

three favor the Petitioner, factors two and four favor the State with greater

force. At the very best, the Barker factors are in equipoise. This being so, the

state courts’ rejection of claim 10 was not contrary to, or an unreasonable

application of, clearly established federal law or an unreasonable determination

of the facts.9

6.

Conclusion

For the foregoing reasons, the Court denies the Petition (ECF No. 1) and

denies a certificate of appealability. The clerk is directed to close the case.

, 2021.

Done and ordered, in chambers, in Miami, Florida, on Auguj

Robert N. Scola, Jr.

United States District Judge

Copies, via U.S. Mail, to

Robert Oulton, Jr.

148297

Zephyrhills Correctional Institution

Inmate Mail/Parcels

2739 Gall Boulevard

Zephyrhills, FL 33541

PRO SE

9 The Petitioner is not entitled to an evidentiary hearing. See Schriro v. Landrigan, 550 U.S.

465, 474 (2007) (“[I]f the record refutes the applicant’s factual allegations or otherwise

precludes habeas relief, a district court is not required to hold an evidentiary hearing [under §

2254].”).

13

USCA11 Case: 21-13058

Date Filed: 04/21/2022

Page: 1 of 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 21-13058-F

ROBERT OULTON, JR.,

Petitioner-Appellant,

versus

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Florida

Before: NEWSOM and BRANCH, Circuit Judges.

BY THE COURT:

Robert Oulton, Jr. has filed a motion for reconsideration, pursuant to 11th Cir. R. 22-1 (c)

and 27-2, of this Court’s order dated March 22, 2022, denying his motion for a certificate of

appealability to appeal from the district court’s denial of his pro se 28 U.S.C. § 2254 habeas corpus

petition. Because Oulton has not alleged any points of law or fact that this Court overlooked or

misapprehended in denying his motion, his motion for reconsideration is DENIED.

-V

RECIEVED

UNION CORRECTIONAL INSTITUTION

JUL 2 0 2022

No.

B'

I OR MAILING

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2022

ROBERT OULTON

Petitioner,

v.

RICKY DIXON,

Secretary of the Florida

Department of Corrections,

Respondent.

On Petition for Writ of Certiorari to the

United States Eleventh Circuit Court of Appeals

PROOF OF SERVICE

I, Robert Oulton, do swear or declare that on this 20th day of July, 2022, as

required by Supreme Court Rule 29 I have served the enclosed MOTION FOR LEAVE

TO PROCEED IN FORMA PAUPERIS and PETITION FOR WRIT OF CERTIORARI on

each party to the above proceeding or that party’s counsel, and on every other person

required to be served, by depositing an envelope containing the above documents in

the United States mail properly addressed to each of them and with first-class postage

prepaid, or by delivery to a third-party commercial carrier for delivery within 3 calendar

days.

"ecSveq

^ 26 2022

1

V

The names and addresses of those served are as follows:

Ashley Moody

Attorney General

The Capitol

Tallahassee, FL 32399-1050

I declare under penalty of perjury that the foregoing is true and correct. Executed

on this 20th day of July, 2022.

Robert Oulton, DC #148297

Union Correctional Institution

P.O. Box 1000

Raiford, FL 32083-1000

Petitioner, pro se

2

Additional material

from this filing is

available in the

Clerk's Office.