Johnson v. Secretary, DOC et al
OPINION AND ORDER denying 1 petition for habeas corpus relief filed by Dwayne Johnson. This case is dismissed without prejudice. Petitioner is denied a certificate of appealability. The Clerk of the Court is directed to terminate any pending motions, enter judgment accordingly, and close this case. Signed by Judge John E. Steele on 10/14/2014. (MAB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No: 2:12-cv-99-FtM-29DNF
SECRETARY, DOC and FLORIDA
OPINION AND ORDER
This matter comes before the Court upon a petition for habeas
corpus relief filed pursuant to 28 U.S.C. § 2254 by Dwayne Johnson
sentences entered by the Twentieth Judicial Circuit Court in
Collier County, Florida, for battery on a law enforcement officer
Respondents filed a response to the petition,
and Petitioner filed a reply to the response (Doc. 18; Doc. 26).
Petitioner raises four claims in his petition.
that: (1) trial counsel was ineffective for failing to strike a
potentially biased juror; (2) trial counsel was ineffective for
filing to request a jury instruction on the crime of attempted
escape; (3) trial counsel was ineffective for failing to request
a special jury instruction on the definition of a valid arrest;
and (4) the post-conviction court erred by failing to hold an
assistance claims (Doc. 1 at 7-10).
Upon due consideration of the petition, the responses, the
replies, and the state court record, the Court concludes that the
petition must be denied.
Because the Court may resolve the
Petition on the basis of the record, an evidentiary hearing is not
See Rule 8, Rules Governing Habeas Corpus Petitions
under Section 2254.
Background and Procedural History
On March 23, 2001, Petitioner was charged by information with
escape from custody and battery on a law enforcement officer (Vol.
1, Ex. 1 at 9). 1
The alleged escape and battery occurred in the
courtroom after Petitioner was found guilty of robbery in an
Id. at 9.
After being found guilty of robbery,
Petitioner was remanded into the custody of the Sheriff of Collier
County pending a presentence investigation, and as he was taken to
be fingerprinted, Petitioner attempted to leave the courtroom.
After a jury trial on the escape and battery charges,
Petitioner was sentenced as a violent career criminal to a thirty
The volumes and exhibits referenced in this case refer to
those filed by Respondents on June 14, 2012 (Doc. 10). References
to the trial transcript, located in volume three, are cited as (T.
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year minimum mandatory term of imprisonment on the escape charge.
He was sentenced to a fifteen year sentence on the battery charge.
consecutively to a thirty year sentence for robbery.
Id. at 108-
Petitioner's convictions and sentences were per curiam
affirmed on direct appeal (Ex. 4); Johnson v. State, 865 So. 2d
495 (Fla. 2d DCA 2003).
Petitioner filed a motion for post-conviction relief and
several amended motions pursuant to Rule 3.850 of the Florida Rules
of Criminal Procedure (collectively, “Rule 3.850 motion”) (Ex. 6).
The post-conviction court held an evidentiary hearing on five of
the grounds raised in the Rule 3.850 motion and summarily denied
the remaining claims (Ex. 9).
After the evidentiary hearing, all
of Petitioner's Rule 3.850 claims were denied (Ex. 10).
was per curiam affirmed on October 21, 2011 (Ex. 14); Johnson v.
State, 73 So. 3d 768 (Fla. 2d DCA 2011).
On December 5, 2005, Petitioner filed a motion to correct
illegal sentence pursuant to Rule 3.800 of the Florida Rules of
Criminal Procedure (Ex. 16).
The trial court denied the motion,
but the Second District Court of Appeal issued a written opinion
reversing in part and affirming in part (Ex. 21); Johnson v. State,
977 So. 2d 661, 662 (Fla. 2d DCA 2008).
The appellate court noted
that battery on a law enforcement officer was not a forcible felony
for qualification as a violent career criminal and reversed for
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rehearing which was denied (Ex. 22; Ex. 25).
Petitioner filed the instant habeas petition on February 27,
2012 (Doc. 1).
Respondents agree that the petition was timely
filed (Doc. 8 at 5).
Governing Legal Principles
Standard of Review Under the Antiterrorism Effective
Death Penalty Act (“AEDPA”)
Pursuant to the AEDPA, federal habeas relief may not be
granted with respect to a claim adjudicated on the merits in state
court unless the adjudication of the claim:
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
resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
28 U.S.C. § 2254(d).
This standard is both mandatory and difficult
White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
court’s summary rejection of a claim, even without explanation,
Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir.
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“Clearly established federal law” consists of the governing
legal principles, rather than the dicta, set forth in the decisions
of the United States Supreme Court at the time the state court
issues its decision.
White, 134 S. Ct. at 1702; Carey v. Musladin,
549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362,
A decision is “contrary to” clearly established
federal law if the state court either: (1) applied a rule that
contradicts the governing law set forth by Supreme Court case law;
or (2) reached a different result from the Supreme Court when faced
with materially indistinguishable facts.
Ward v. Hall, 592 F.3d
1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16
A state court decision involves an “unreasonable application”
of the Supreme Court’s precedents if the state court correctly
identifies the governing legal principle, but applies it to the
facts of the petitioner’s case in an objectively unreasonable
manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.
Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court
either unreasonably extends a legal principle from [Supreme Court]
unreasonably refuses to extend that principle to a new context
where it should apply.”
Williams, 529 U.S. at 406).
Bottoson, 234 F.3d at 531 (quoting
The unreasonable application inquiry
“requires the state court decision to be more than incorrect or
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Lockyer v. Andrade, 538 U.S. 63, 75-77 (2003) (citation omitted);
Mitchell, 540 U.S. at 17-18; Ward, 592 F.3d at 1155.
comprehended in existing law beyond any possibility for fairminded
White, 134 S. Ct. at 1702 (quoting Harrington v.
Richter, 562 U.S. 86, 131 S. Ct. 770, 786–787 (2011)).
adjudicated on the merits in a state court and based on a factual
determination will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the
340 (2003) (dictum).
Miller–El v. Cockrell, 537 U.S. 322,
When reviewing a claim under § 2254(d), a
federal court must bear in mind that any “determination of a
factual issue made by a State court shall be presumed to be
correct,” and the petitioner bears “the burden of rebutting the
presumption of correctness by clear and convincing evidence.”
U.S.C. § 2254(e)(1); see e.g. Burt v. Titlow, 134 S. Ct. 10, 1516 (2013); Miller–El, 537 U.S. at 340 (explaining that a federal
court can disagree with a state court’s factual finding and, when
guided by AEDPA, “conclude the decision was unreasonable or that
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Standard for Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a
petitioner must establish that counsel’s performance was deficient
and fell below an objective standard of reasonableness and that
the deficient performance prejudiced the defense.
This is a
“doubly deferential” standard of review that gives both the state
court and the petitioner’s attorney the benefit of the doubt.
Burt, 134 S. Ct. at 13, citing Cullen v. Pinholster, 131 S. Ct.
1388, 1403 (2011).
The focus of inquiry under Strickland's performance prong is
performance, a court must adhere to a strong presumption that
“counsel’s conduct falls within the wide range of reasonable
Id. at 689.
Indeed, the petitioner
bears the heavy burden to “prove, by a preponderance of the
evidence, that counsel’s performance was unreasonable[.]”
v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006).
A court must
“judge the reasonableness of counsel’s conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct,”
applying a “highly deferential” level of judicial scrutiny.
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v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland,
466 U.S. at 690).
Petitioner’s burden to demonstrate prejudice is high.
“requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
defendant must show that there is a reasonable probability that,
proceeding would have been different.”
Id. At 694.
probability is “a probability sufficient to undermine confidence
in the outcome.”
Strickland, 466 U.S. at 694.
Exhaustion and Procedural Default
circumstances, from granting habeas relief unless a petitioner has
Specifically, the AEDPA provides, in pertinent part:
An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that–
(A) the applicant has exhausted the
available in the courts of the State; or
there is an absence of available State
corrective process; or
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circumstances exist that render
such process ineffective
to protect the rights of
28 U.S.C. § 2254(b)(1) (2012).
Exhaustion of state remedies requires that the state prisoner
“fairly presen[t] federal claims to the state courts in order to
give the State the opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights[.]”
Duncan v. Henry,
513 U.S. 364, 365 (1995) (citing Picard v. Conner, 404 U.S. 270,
The petitioner must apprise the state court of
the federal constitutional issue, not just the underlying facts of
the claim or a similar state law claim.
135 F.3d 732 (11th Cir. 1998).
Snowden v. Singletary,
In addition, a federal habeas
court is precluded from considering claims that are not exhausted
but would clearly be barred if returned to state court.
v. Thompson, 501 U.S. 722, 735 n.1 (1991) (if a petitioner has
failed to exhaust state remedies and the state court to which the
petitioner would be required to present his claims in order to
procedurally barred, there is a procedural default for federal
habeas purposes regardless of the decision of the last state court
to which the petitioner actually presented his claims).
a federal court must dismiss those claims or portions of claims
that have been denied on adequate and independent procedural
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petitioner attempts to raise a claim in a manner not permitted by
state procedural rules, he is barred from pursuing the same claim
in federal court.
Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.
First, a petitioner may obtain federal review of
a procedurally defaulted claim if he can show both “cause” for the
default and actual “prejudice” resulting from the default.
demonstrate that some objective factor external to the defense
impeded the effort to raise the claim properly in state court.”
Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999) (internal
quotation marks omitted).
To establish prejudice, a petitioner
must show that there is at least a reasonable probability that the
result of the proceeding would have been different.
Campbell, 353 F.3d 880, 892 (11th Cir. 2003).
The second exception, known as the fundamental miscarriage of
“constitutional violation has probably resulted in the conviction
of one who is actually innocent[.]”
478, 479-80 (1986).
Murray v. Carrier, 477 U.S.
Actual innocence means factual innocence, not
Bousley v. United States, 523 U.S. 614, 623
To meet this standard, a petitioner must “show that it
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is more likely than not that no reasonable juror would have
convicted him” of the underlying offense.
U.S. 298, 327 (1995).
Schlup v. Delo, 513
In addition, “[t]o be credible, a claim of
actual innocence must be based on [new] reliable evidence not
presented at trial.”
Calderon v. Thompson, 523 U.S. 538, 559
(1998) (quoting Schlup, 513 U.S. at 324).
Petitioner asserts that trial counsel was ineffective for
failing to strike a potentially biased juror from the jury pool
Charles Holliday was biased because he admitted that he (Holliday)
had an inclination to believe that law enforcement officers are
truthful about everything.
Petitioner raised this issue in his Rule 3.850 motion, and
the post-conviction court ordered an evidentiary hearing on the
claim (Ex. 9).
After the hearing, the claim was denied:
Defendant alleges his counsel was ineffective
for failing to strike juror Charles Holliday.
Defendant's objection to Juror Holliday is
based on the relationship between the juror
and his friend who is a law enforcement
This relationship, the State
asserted, is not enough on its own to require
that the juror be stricken for cause.
The record reflects that Juror Holliday’s
friendship with a law enforcement officer and
his ability to consider the credibility of the
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testifying officers was addressed at voir
Juror Holliday stated that his “best
friend from the marines is a Lee County
deputy” and that he would be inclined to
believe his friend because the friend is
“pretty straightforward about everything.”
When pressed if he would be able to judge the
credibility of the officers who would be
testifying against Defendant despite his
inclination to believe his friend, Juror
Holliday responded that he thought he could.
At the evidentiary hearing, Defendant only
testified that counsel did not discuss the
jury selection with Defendant and that counsel
did not ask for Defendant's consent to not
strike Juror Holliday.
Defendant bears the
demonstrating how counsel was deficient within
the meaning of Strickland, and how the outcome
of trial would have been different. Defendant
has failed to meet his burden. [This claim],
therefore, is DENIED.
(Ex. 10 at 749-50) (citations to record omitted).
appealed the denial of this claim, but in his brief on appeal, he
argued only that Holliday’s equivocation in his answers to the
trial court justified a dismissal for cause (Ex. 11 at 22-30). 2
Petitioner does not explain how the state court’s adjudication of
this claim was contrary to, or an unreasonable application of,
Respondents now assert that this claim is unexhausted
because Petitioner did not appeal the precise issue raised in his
Rule 3.850 (Doc. 8 at 9-10). This Court does not agree. In his
Rule 3.850 motion, Petitioner argued, as he did on direct appeal,
that “the law was clear that such an equivocal response does not
erase a doubt as to a juror’s impartiality and a cause challenge
must be granted.” (Ex. 6 at 7). The fact that Petitioner has not
addressed or refuted the post-conviction court’s conclusion that
Petitioner had not met his burden under Strickland goes to the
merits of Petitioner's claim, not to its exhaustion.
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Indeed, a review of the record supports the state
courts’ denial of this claim.
At issue is the following exchange during voir dire:
Does anybody here have any dealings
with law enforcement officers which
would kind of color the way that you
Anybody who said yes raise your
hand. Sometimes that’s easier for
me. Mr. Holliday.
HOLLIDAY: My best friend from the marines is
a Lee County deputy.
Would you agree, though, that your
friend is a human being?
So you could believe or disbelieve
testimony here today and what you
see here today?
He’s pretty straightforward about
everything, you know, so I believe
they’re truthful about everything.
Do you think you could judge these
officers independent of your friend
and judge their credibility based on
what you see in here today?
I assume so because I don’t know
what I’m going to see.
Okay, That’s a fair statement. You
don’t know what you’re going to see.
But let’s say, for example, you see
something that may influence their
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another, either make them more
credible or less credible.
would be able to take that into
So you could judge their testimony
just the same as you could judge
Yes, I believe so.
(T. at 59-61).
Petitioner asserts that counsel was ineffective
objectively evaluate a law enforcement officer’s testimony (Ex. 6
The Sixth Amendment guarantees the accused a trial by an
impartial jury in federal criminal prosecutions.
Because “trial by jury in criminal cases is fundamental
to the American scheme of justice,” the Due Process Clause of the
Fourteenth Amendment guarantees the same right to the accused in
state criminal prosecutions.
Duncan v. Louisiana, 391 U.S. 145,
As with federal law, the test for determining juror
competency in the Florida courts is “whether the juror can lay
aside any bias or prejudice and render his verdict solely upon the
evidence presented and the instructions on the law given to him by
Lusk v. State, 446 So. 2d 1038, 1041 (Fla. 1984).
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Strickland must “defer to trial counsel’s performance and eschew
whether or not to leave that person on the jury.
Harvey v. Warden,
Union Correctional Institution, 629 F.3d 1228, 1247 (11th Cir.
2011); see also Babb v. Crosby, 197 F. App’x 885, 887 (11th Cir.
2006) (“the Supreme Court has not concluded that a lawyer who
leaves an arguably biased juror on a jury is per se ineffective”).
Moreover, “[a]ssessing jurors during voir dire also requires an
performance is highly deferential in any case, but the case for
deference is even greater when counsel is evaluating credibility.”
Bell v. United States, 351 F. App’x 357, 360 (11th Cir. 2009)
(internal citation omitted).
In the instant case, Juror Holliday stated that he would take
into consideration anything that would influence a law enforcement
officer’s credibility and that he believed he could evaluate their
Petitioner has adduced no evidence other than the transcript of
the jury selection proceeding to support his claim that trial
counsel had a reasonable basis for striking Holliday from the jury
evaluate the credibility of witnesses, Petitioner has not shown
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that no competent counsel would have failed to use a peremptory
challenge to strike Holliday from the jury panel.
petitioner to show that the conduct was unreasonable, a petitioner
must establish that no competent counsel would have taken the
action that his counsel did take.”).
Likewise, Petitioner has failed to present evidence of bias.
prejudice prong, Petitioner must show that the jury selection
process produced a juror that was actually biased against him.
(defendant's Sixth Amendment right to a fair and impartial jury
was not violated absent a showing that a jury member hearing the
case was actually biased against him).
As noted by the post-
evidentiary hearing showing that Holliday was actually biased.
Rather, Petitioner merely testified that had counsel discussed the
issue with him, he would have objected to Holliday and asked
Petitioner admitted that he did not ask defense counsel to strike
Defense counsel did not testify at the evidentiary hearing.
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Other than speculating in the instant petition
equivocation during voir dire, Petitioner does not show that a
biased juror actually sat on his jury.
See Phillips, 455 U.S. at
215-17 (recognizing that the remedy in the face of allegations of
juror partiality is a hearing in which the defendant must prove
Petitioner's unsupported and speculative assertions do not
entitle him to habeas relief on this claim.
See Hill v. Lockhart,
assistance of counsel are insufficient to raise a constitutional
issue); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991)
(vague, conclusory, or unsupported allegations cannot support an
ineffective assistance of counsel claim).
Petitioner fails to
establish that the state post-conviction court either unreasonably
rejecting this claim of ineffective assistance of counsel. Claim
One is denied.
Petitioner asserts that counsel was ineffective for failing
to request a jury instruction on the crime of “attempted escape.”
(Doc. 1 at 7).
Petitioner raised this claim in his Rule 3.850
motion for post-conviction relief (Ex. 6 at 184-88).
conviction court denied the claim on the ground that there is
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simply no crime of “attempted escape,” and counsel could not be
ineffective for failing to request an instruction on such (Ex. 10
at 750-51). 4
Petitioner did not challenge the post-conviction
court’s conclusion on appeal.
Respondent argues that Petitioner has procedurally defaulted
this claim because, while he raised it in his Rule 3.850 motion
and an evidentiary hearing was held, he did not raise it on appeal
Respondent is correct.
On appeal of the denial of his Rule 3.850
motion, Petitioner challenged the post-conviction court’s ruling
on only three of the twelve claims he raised in his Rule 3.850
motion (Ex. 11).
Pursuant to Rule 9.141(b)(3) of the Florida
Rules of Appellate Procedure, failure to fully brief and argue
points on appeal after receiving an evidentiary hearing on a Rule
3.850 motion constitutes a waiver of those claims.
Florida Statute § 944.40 provides that “any prisoner
confined in any prison, jail, private correctional facility, road
camp, or other penal institution . . . or being transported to or
from a place of confinement who escapes or attempts to escape from
such confinement commits a felony of the second degree[.]” (2001)
(emphasis added). Accordingly, “attempted escape” under Florida
law is encompassed in the definition of escape and is not a lesser
included offense of that crime. Therefore, even if review of this
claim was not procedurally barred, the post-conviction court
correctly concluded that counsel could not be ineffective for
failing to request a jury instruction on a crime that did not
exist. Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002)
(counsel was not ineffective for failing to raise issues clearly
lacking in merit).
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Leonard v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979) (Florida
remedies); 5 Cortes v. Gladish, 216 F. App’x 897, 899-900 (11th Cir.
2007) (recognizing that when a petitioner receives an evidentiary
hearing on his Rule 3.850 motion, his failure to address issues in
his appellate brief would constitute a waiver of those claims);
Coolen v. State, 696 So. 2d 738, 742 n.2 (Fla. 1997) (Failure to
fully brief and argue points on appeal constitutes a waiver of
The “one complete round” exhaustion requirement set forth in
O'Sullivan v. Boerckel, 526 U.S. 838 (1999), applies to postconviction review as well; a prisoner must appeal the denial of
LeCroy v. Secretary, Florida Dep’t of Corr., 421 F.3d
1237, 1261 (11th Cir. 2005) (as Florida prisoner failed to properly
exhaust claim on direct appeal or Rule 3.850 appeal, it was
procedurally barred (citing Coleman)); Pope v. Rich, 358 F.3d 852,
854 (11th Cir. 2004) (“Boerckel applies to the state collateral
review process as well as the direct appeal process”); Pruitt v.
Jones, 348 F.3d 1355, 1359 (11th Cir. 2003) (“A § 2254 habeas
petition ‘shall not be deemed to have exhausted the remedies
The Eleventh Circuit adopted as precedent decisions of the
former Fifth Circuit rendered prior to October 1, 1981. Bonner
v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
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available in the courts of the State . . . if he has the right
under the law of the State, to raise, by any available procedure,
the question presented.’”) (citing 28 U.S.C. § 2254(c)).
petitioner who fails to exhaust his claim is procedurally barred
from pursuing that claim on habeas review in federal court unless
he shows either cause for and actual prejudice from the default or
a fundamental miscarriage of justice from applying the default.”
Lucas v. Sec'y Dep't of Corr., 682 F.3d 1342, 1353 (11th Cir.
Petitioner has shown neither.
Rather, he argues only that
collateral counsel was ineffective and that Martinez v. Ryan, 132
deficiencies in his prior cases should be excused as a result of
collateral counsel’s failings (Doc. 26 at 2).
To the extent Petitioner now argues that his Rule 3.850
exhaust these claims, such argument is foreclosed by the Supreme
Court’s decisions in Coleman v. Thompson and Martinez v. Ryan.
Coleman, the petitioner had defaulted his claim because he failed
to bring a timely appeal of the denial of his state habeas
Coleman, 501 U.S. at 727.
The petitioner argued that
the cause for his default was his appellate counsel’s failure to
timely file the appeal.
Id. at 752.
The Coleman court concluded
that such a procedural default may be excused only if the “cause”
under the cause and prejudice test was something external to the
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petitioner that could not fairly be attributed to him.
Id. at 753
(“As between the State and the petitioner, it is the petitioner
who must bear the burden of a failure to follow state procedural
petitioner bears the risk in federal habeas for all attorney errors
recognized that attorney error could be seen as an external factor
only if it violated the Sixth Amendment right to counsel.
However, because a defendant has no right to counsel in
state collateral proceedings after exhaustion of direct appellate
review, “it would defy logic for us to hold that [petitioner] had
a right to counsel to appeal a state collateral determination of
appellate counsel’s failure to timely file the appeal did not
Petitioner's collateral counsel’s failure to compel the attendance
of trial counsel at the evidentiary hearing or to properly question
Petitioner at the hearing does not excuse Petitioner's procedural
default of this claim (Doc. 26 at 2).
In Martinez, the Supreme Court relaxed the Coleman cause-andprejudice
category of cases.
Specifically, the Supreme Court determined
that the procedural default of “an ineffective-assistance claim”
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collateral proceeding should be excused under a more lenient
standard than cause and prejudice under Coleman.
S. Ct. at 1318.
However, the Court in Martinez was careful to
restrict its holding to ineffective assistance in the initialreview collateral proceeding in state court.
The Court wrote:
The rule of Coleman governs in all but the
limited circumstances recognized here.
holding in this case does not concern attorney
collateral proceedings, second or successive
collateral proceedings, and petitions for
discretionary review in a State's appellate
courts. It does not extend to attorney errors
in any proceeding beyond the first occasion
the State allows a prisoner to raise a claim
of ineffective assistance at trial, even
proceeding may be deficient for other reasons.
Id. at 1320 (emphasis added) (internal citations omitted).
instant case, it is only the appeal of an initial review collateral
proceeding that was defaulted.
Therefore, the Martinez exception
failure to exhaust in this case would ignore the Supreme Court’s
explicit and emphatic statement that the Martinez rule creates
only a narrow exception to Coleman’s general rule.
132 S. Ct. at 1315 (referring to a “narrow exception”); id. at
1320 (referring to the “limited circumstances” in which its ruling
applied and discussing the “limited nature” of the rule); Trevino
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v. Thaler, 133 S. Ct. 1911, 1921 (2013) (applying Martinez's
Petitioner has made none of the requisite showings to excuse
Coleman, 501 U.S. at 734–35.
Accordingly, Claim Two is dismissed
as unexhausted and procedurally barred.
Petitioner asserts that trial counsel was ineffective for
failing to request a special jury instruction on the definition of
a valid arrest (Doc. 1 at 8).
Petitioner raised this issue in his
Rule 3.850 motion in which he argued that his defense “was based
upon an insufficiency of the state’s evidence to show that the
defendant knew he had been arrested and/or ordered into custody”
at the time he attempted to escape (Ex. 6 at 6).
evidentiary hearing, the post-conviction court denied this claim
on the basis that counsel was not ineffective because the standard
jury instruction on escape had been read to the jury and adequately
stated the controlling law (Ex. 10 at 749).
court also determined that Petitioner could not show prejudice
because the issue of whether Petitioner had been placed in custody
at the time of his escape attempt “had been decided by the Second
District Court of Appeal when it affirmed the final judgment of
The post-conviction court’s denial of this
claim was affirmed on appeal (Ex. 14); Johnson, 73 So. 3d at 768.
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Petitioner does not explain how the post-conviction court’s
conclusions were contrary to, or an unreasonable application of
Strickland. A review of the record supports a conclusion that
Petitioner was properly “in custody” during the alleged escape
As a result, Petitioner cannot demonstrate prejudice
from the lack of an instruction on this issue.
Testimony was presented at trial from Sergeant Larry White
that Petitioner was in the custody of Corporal Wilkinson, and had
been for five or ten minutes when Petitioner left custody by
“bolt[ing] down this aisle-way here, attempting to escape from the
(T. at 127-30).
Corporal Wilkinson testified that he took
Petitioner into custody after he was adjudicated guilty at the
conclusion of Petitioner's robbery trial and that Petitioner broke
from his custody and headed for the doors to the courtroom (T. at
Corporal Michael Brady testified that after Corporal
Wilkinson took Petitioner into custody, Petitioner ran for the
door to the courtroom (T. at 174-75).
At his evidentiary hearing, Petitioner did not argue that he
was not “in custody” when he attempted to leave.
admitted that after the jury returned its verdict of guilty, he
was taken by a bailiff for fingerprinting (Ex. 9 at 14-15).
explained to the post-conviction court that he had no intent to
escape, but that he “blanked out” after visiting with his family
for the last time and being “convicted of a crime that I know I
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(Ex. 9 at 13-15, 18).
that he had no intent to leave the courtroom, but did not testify
that he did not realize that he was in custody.
Id. at 18.
Even assuming, arguendo, that Petitioner could show prejudice
from the lack of a special instruction, he has not shown that no
reasonable counsel would have failed to request a special jury
instruction on a “valid arrest.”
The trial court instructed the
jury on escape as follows:
Before you can find the Defendant guilty of
escape, the State must prove the following
three elements beyond a reasonable doubt: One
Dwayne Johnson was in the lawful custody – was
under arrest and in the lawful custody of a
prisoner, Dwayne Johnson was being transported
to or from a place of confinement, three
Dwayne Johnson escaped or attempted to escape
by leaving from the custody of Collier County
Sheriff’s Deputy Lee Wilkinson, intending to
avoid lawful confinement.
(T. at 288-89).
Petitioner does not dispute that this is the
standard Florida jury instruction on escape.
Instr. Crim. 27.1; Fla. Stat. § 944.40.
See Fla. Std. Jury
Although Petitioner now
asserts that defense counsel should have asked for an additional
instruction defining “valid arrest,” he does not provide the court
with the instruction he believes counsel should have requested or
explain how such an instruction would have been helpful to his
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Under Florida law, the standard jury instructions are
presumed correct and are preferred over special instructions.
Stephens v. State, 787 So. 2d 747, 755 (Fla. 2001).
Moreover, defense counsel was not unaware of this particular
line of defense.
He unsuccessfully argued to the trial court in
his motion for a judgment of acquittal that the state had not
established the “in custody” element of an escape charge (T. at
He also made the following argument to the jury during
Now, ladies and gentlemen of the jury, the
State has to prove beyond and to the exclusion
of each and every reasonable doubt that Dwayne
was confined in a prison, as a prisoner, on
that day. Now, the evidence is, yes, he went
to trial on that case, yes, he was convicted,
but you haven’t heard any evidence or seen any
corroboration that Judge Blackwell on that day
ordered him into custody. The State has that
burden to prove that to you, you have no
evidence before you as to that.
evidence you have regarding Judge Blackwell is
his order signed July 27th of 2001. You don’t
have – you see that lady right there, the court
reporter, you don’t have a transcript of what
Judge Blackwell ordered that day, all you have
are the words of the corrections officers, who
I would submit are certainly short of
credibility or as we discussed in jury
During the evidentiary hearing on this issue, the postconviction court asked for a copy of the proposed instruction
Petitioner believed counsel should have given (Ex. 9 at 29).
Petitioner’s collateral counsel was unable to provide such. Id.
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concluded that Petitioner was in custody and found him guilty of
escape (Ex. 1 at 107-09).
In light of clear Florida precedent indicating that “[t]he
standard jury instructions are presumed correct and preferred over
special instructions” and defense counsel’s arguments to the trial
court and to the jury on the “in custody” element of an escape
charge, Petitioner has not shown that counsel’s performance was
Stephens, 787 So. 2d at 755; Chandler, 218 F.3d at
Claim Three fails to satisfy either prong of Strickland and
is denied under 28 U.S.C. § 2254().
Petitioner asserts that the trial court erred in denying three
of his Rule 3.850 claims without an evidentiary hearing (Doc. 1 at
Specifically, he asserts that an evidentiary hearing should
have been held on his claims that: (1) counsel was ineffective for
failing to move for a judgment of acquittal; (2) counsel was
ineffective for failing to object to the attempted escape language
in the jury instructions on the grounds that no overt act was
alleged in the information; and (3) counsel was ineffective for
failing to move for a judgment of acquittal on the basis that the
state’s charging document failed to allege an overt act.
his brief on appeal of the post-conviction court’s denial of these
- 27 -
claims, Petitioner asserts that he “has had no opportunity to
present to the court that this was not the product of any strategic
trial decision and was, in fact, ineffectiveness.
To deny this
claim without an evidentiary hearing was error and [Petitioner]
asks that it be remanded on this basis.”
(Ex. 11 at 35) (citing
Wiggins v. State, 933 So. 2d 1224 (Fla. 1st DCA 2006) (error to
issue a summary denial and remanded on that basis); McCray v.
State, 933 So. 2d 1226 (Fla. 1st DCA 2006) (defendant entitled to
evidentiary hearing on claim attorney failed to investigate and
call witness when trial court appeared to determine failure to
call was a product of trial strategy); Peede v. State, 748 So. 2d
253 (Fla. 1999) (defendant entitled to evidentiary hearing on
claims not adequately refuted by the record.).
A prisoner's challenge to the process afforded him in a state
post-conviction proceeding does not constitute a cognizable claim
for habeas corpus relief.
Rather, such a claim represents an
attack on a proceeding collateral to the prisoner's confinement
and not the confinement itself.
Carroll v. Sec'y Dep’t of Corr.,
574 F.3d 1354, 1366 (11th Cir. 2009) (habeas petitioner's claim—
that the state court violated his due process rights when it
summarily denied his postconviction claim without an evidentiary
hearing—did not state a claim on which federal habeas relief could
be granted); Anderson v. Sec'y for Dep't of Corr., 462 F.3d 1319,
1330 (11th Cir. 2006) (a state court's failure to conduct an
- 28 -
evidentiary hearing on a postconviction motion does not constitute
a cognizable claim for federal habeas relief).
Therefore, to the extent that Petitioner seeks relief based
on the ground that he did not receive an evidentiary hearing on
issues raised in his Rule 3.850 motion, he fails to state a claim
cognizable on habeas review, and Claim Four is denied on this
Any of Petitioner's allegations not specifically addressed
herein have been found to be without merit.
Certificate of Appealability 7
Petitioner is not entitled to a certificate of appealability.
entitlement to appeal a district court's denial of his petition.
28 U.S.C. § 2253(c)(1).
Rather, a district court must first issue
a certificate of appealability (“COA”).
“A [COA] may issue . . .
only if the applicant has made a substantial showing of the denial
of a constitutional right.”
28 U.S.C. § 2253(c)(2).
To make such
a showing, Petitioner must demonstrate that “reasonable jurists
would find the district court's assessment of the constitutional
Pursuant to Rule 11(a) of the Rules Governing Section 2254
Cases in the United States District Courts, the “district court
must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” Id. As this Court has
determined that Petitioner is not entitled to habeas corpus relief,
it must now consider whether Petitioner is entitled to a
certificate of appealability.
- 29 -
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, 537 U.S. at 335–36.
has not made the requisite showing in these circumstances.
appealability, he is not entitled to appeal in forma pauperis.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
The 28 U.S.C. § 2254 petition for habeas corpus relief
filed by Dwayne Johnson (Doc. 1) is DENIED.
This case is DISMISSED with prejudice.
Petitioner is DENIED a certificate of appealability.
The Clerk of Court is directed to terminate any pending
motions, enter judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of October, 2014.
Copies: Dwayne Johnson
Counsel of Record
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