Travis v. Secretary, DOC et al

Filing 31

ORDER dismissing the Florida Attorney General as a named respondent; dismissing Claims One and Three and denying remaining claims of 1 Petition for writ of habeas corpus filed by Dorris Wayne Travis. A certificate of appealability and leave to appeal in forma pauperis are denied. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 5/12/2015. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DORRIS WAYNE TRAVIS,
Petitioner,
v.

Case No: 2:13-cv-359-FtM-29CM

SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents. 1
ORDER
This matter comes before the Court upon a petition for habeas
corpus relief filed pursuant to 28 U.S.C. § 2254 by Dorris Wayne
Travis (“Petitioner”) who is presently confined at the South
Florida Reception Center in Doral, Florida (Doc. 1, filed May 10,
2013).

Petitioner,

proceeding

pro

se,

attacks

a

conviction

entered by the Circuit Court in Lee County, Florida for second
degree murder. Id.

Respondent filed a response to the petition

(Doc. 12; Doc. 13).
Upon due consideration of the pleadings and the state-court
record, the Court concludes that Petitioner is not entitled to

1

When the petitioner is incarcerated and challenges his
present physical confinement “the proper respondent is the warden
of the facility where the prisoner is being held, not the Attorney
General or some other remote supervisory official.” Rumsfeld v.
Padilla, 542 U.S. 426, 436 (2004)(citations omitted). In Florida,
the proper respondent in this action is the Secretary of the
Florida Department of Corrections.
Therefore, the Florida
Attorney General will be dismissed from this action.

federal habeas relief.

Because the Court may resolve the Petition

on

record,

the

basis

warranted.

of

the

an

evidentiary

hearing

is

not

See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if

the record refutes the factual allegations in the petition or
otherwise precludes habeas relief, a district court is not required
to hold an evidentiary hearing).
I.

Background
On

October

1,

2004,

Petitioner

was

charged

by

amended

information with second degree murder in violation of Florida
Statute § 782.04(2) (count one) and aggravated assault with a
deadly weapon in violation of Florida Statute § 784.021 (count
two) (Doc. 13-5 at 26-27).

After a jury trial, he was found guilty

as charged on count one, and not guilty on count two. Id. at 29,
30.

Petitioner was sentenced to life in prison. Id. at 32.

His

conviction and sentence were per curiam affirmed by Florida’s
Second District Court of Appeal (“DCA”) (Doc. 13-1 at 104); Travis
v. State, 959 So. 2d 734 (Fla. 2d DCA 2007).
Subsequently, Petitioner filed a motion pursuant to Rule
3.850 of the Florida Rules of Criminal Procedure (“Rule 3.850
motion”)

in

which

he

raised

a

total

of

seventeen

claims

ineffective assistance of trial counsel (Doc. 13-2 at 13).

of
The

post-conviction court made findings regarding all but three of the
claims and provided an opportunity for Petitioner to file an
amended Rule 3.850 motion that adequately set forth the remaining

- 2 -

claims (Doc. 13-5 at 8).
motion (Doc. 13-6).

Petitioner filed an amended Rule 3.850

The post-conviction court entered an order

denying both of Petitioner's Rule 3.850 motions (Doc. 13-7 at 1).
Florida’s

Second

DCA

per

curiam

affirmed

the

post-conviction

court’s denial (Doc. 13-7 at 103); Travis v. State, 121 So. 3d
1048 (Fla. 2d DCA 2012).
II.

Governing Legal Principles
A.

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:
(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.

28 U.S.C. § 2254(d).
to meet.

This standard is both mandatory and difficult

White v. Woodall, 134 S. Ct. 1697, 1702 (2014).

A state

court’s summary rejection of a claim, even without explanation,
qualifies
deference.
2008).

as

an

adjudication

on

the

merits

which

warrants

Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir.

Notably, a state court’s violation of state law is not

sufficient to show that a petitioner is in custody in violation of

- 3 -

the “Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
“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
issued 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,
412 (2000)).

That said, the Supreme Court has also explained that

“the lack of a Supreme Court decision on nearly identical facts
does not by itself mean that there is no clearly established
federal law, since ‘a general standard’ from [the Supreme Court’s]
cases can supply such law.” Marshall v. Rodgers, 133 S. Ct. 1446,
1449 (2013) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)).

State courts “must reasonably apply the rules ‘squarely

established’ by [the Supreme] Court’s holdings to the facts of
each

case.

White,

134

S.

Ct.

at

1706

(quoting

Knowles

v.

Mirzayance, 556 U.S. 111, 122 (2009)).
Even if there is clearly established federal law on point,
habeas relief is only appropriate if the state court decision was
“contrary to, or an unreasonable application of,” that federal
law. 29 U.S.C. § 2254(d)(1).

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

- 4 -

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 (2003).
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]
precedent

to

a

new

context

where

it

should

not

apply

or

unreasonably refuses to extend that principle to a new context
where

it

should

apply.”

Bottoson,

Williams, 529 U.S. at 406).

234

F.3d

at

531

(quoting

The petitioner must show that the

state court's ruling was “so lacking in justification that there
was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” White, 134 S.
Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)).
Moreover,

“it

is

not

an

unreasonable

application

of

clearly

established Federal law for a state court to decline to apply a
specific legal rule that has not been squarely established by [the
Supreme] Court.” Knowles, 556 U.S. at 122.
Finally, when reviewing a claim under § 2254(d), a federal
court must bear in mind that any “determination of a factual issue

- 5 -

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.”

28

U.S.C.

§

2254(e)(1); Miller–El v. Cockrell, 537 U.S. 322, 340 (2003) (“a
decision 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 state-court proceeding”) (dictum);

Burt v. Titlow, 134 S.

Ct. 10, 15-16 (2013) (same).
B.

Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established a
two-part

test

entitled

to

for

relief

determining
on

the

whether

ground

that

a

convicted
his

person

counsel

ineffective assistance. 466 U.S. 668, 687-88 (1984).

is

rendered

A petitioner

must establish that counsel’s performance was deficient and fell
below

an

objective

standard

of

reasonableness

and

deficient performance prejudiced the defense. Id.

that

the

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
“reasonableness under prevailing professional norms.” Strickland,
466 U.S. at 688-89.

In reviewing counsel's performance, a court

- 6 -

must adhere to a strong presumption that “counsel’s conduct falls
within the wide range of reasonable professional assistance.”
at 689.

Id.

Indeed, the petitioner bears the heavy burden to “prove,

by a preponderance of the evidence, that counsel’s performance was
unreasonable[.]” Jones 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. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)
(quoting Strickland, 466 U.S. at 690).
As

to

the

prejudice

prong

of

the

Strickland

standard,

Petitioner’s burden to demonstrate prejudice is high. Wellington
v.

Moore,

314

F.3d

1256,

1260

(11th

Cir.

2002).

Prejudice

“requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland, 466 U.S. at 687.

That is, “[t]he defendant

must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. At 694.
is

“a

probability

sufficient

to

A reasonable probability

undermine

confidence

in

the

outcome.” Strickland, 466 U.S. at 694.
C.

Exhaustion and Procedural Default

The

AEDPA

precludes

federal

courts,

absent

exceptional

circumstances, from granting habeas relief unless a petitioner has

- 7 -

exhausted

all

means

of

available

relief

under

state

law.

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

remedies

(B)
(i)

there is an absence of available
State corrective process; or

(ii)

circumstances exist that
render
such
process
ineffective to protect the
rights of the applicant.

28 U.S.C. § 2254(b)(1) (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. Connor, 404 U.S. 270,
275-76 (1971)).

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. Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991) (if a petitioner has failed
to

exhaust

state

remedies

and

the

- 8 -

state

court

to

which

the

petitioner would be required to present his claims in order to
meet

the

exhaustion

requirement

would

now

find

the

claims

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).

Finally,

a federal court must dismiss those claims or portions of claims
that have been denied on adequate and independent procedural
grounds under state law. Coleman, 501 U.S. at 750.

If a 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.
1994).
Procedural
circumstances.

default

will

be

excused

only

in

two

narrow

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.
establish

cause

for

procedural

default,

a

petitioner

“To
must

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. Henderson v.
Campbell, 353 F.3d 880, 892 (11th Cir. 2003).

- 9 -

The second exception, known as the fundamental miscarriage of
justice,

only

occurs

in

an

extraordinary

case,

where

a

“constitutional violation has probably resulted in the conviction
of one who is actually innocent[.]”
478, 479-80 (1986).
legal insufficiency.
(1998).

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

is more likely than not that no reasonable juror would have
convicted him” of the underlying offense. Schlup v. Delo, 513 U.S.
298, 327 (1995).

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).
III. Analysis
A.

Claims One and Five 2

2

In Ground Four of the instant petition, Petitioner merely
directs this Court to “Grounds Two through Eight, pages 3A through
3C and see Grounds Two through Eight, pages 4A through 4C.”
Petitioner does not number or further explain the claims (Doc. 1
at 17). It is unclear what Petitioner is raising in Ground Four
of the instant petition.
Respondent correctly notes that
Petitioner's “references” are “confusing when comparing those
claims as raised in State circuit court in his 3.850 Postconviction
Motion and those raised upon appeal to the Second District Court
of Appeal from the denial of his 3.850 Postconviction Motion, and
as now set forth in his petition.” (Doc. 12 at 32). Nonetheless,
Respondent cogently responded to Petitioner's claims, and
Petitioner has not objected to Respondent’s attempt to label and
enumerate the issues he raises. Accordingly, the Court will adopt
Respondent’s numbering system for the claims raised in Ground Four.
To the extent Petitioner intended to assert different or additional
claims, they are dismissed pursuant to Rule 2(c) of the Rules
- 10 -

In Claim One, Petitioner asserts that the trial court erred
when it refused to give the “affray” jury instruction (Doc. 1 at
10).

Petitioner also asserts that the trial court failed to

instruct the jury on Petitioner's statutory right to defend. Id.
In

Claim

Five,

ineffective

for

Petitioner
failing

asserts

to

ensure

that

defense

that

the

counsel

“affray”

was
jury

instruction was given (Doc. 1 at 3).
Upon review of the record, it does not appear that Claim One
has been presented to the state courts. As a prerequisite to
federal habeas review, a petitioner must exhaust state court
remedies, either on direct appeal or in a state post-conviction
motion. 28 U.S.C. § 2254(b)-(c).

A claim that a jury instruction

is erroneous is “clearly a matter to be raised on direct appeal.”
Gary v. State, 775 So. 2d 335, 336 (Fla. 2d DCA 2000); Thompson v.
State,

759

So.

2d

650,

665

(Fla.

2000)

(recognizing

that

substantive challenges to jury instructions must be raised on
direct appeal).

In his brief on direct appeal, Petitioner argued

only that the state had not proven second degree murder and that
the trial judge admitted “inherently prejudicial evidence.” (Doc.
13-1 at 3).

Petitioner's brief did not mention the court’s failure

to read the affray instruction.

Petitioner has not demonstrated

cause and prejudice for his failure to exhaust this claim on direct

Governing Section 2254 cases (stating that § 2254 petition must
specify all grounds for relief in the petition and state the facts
supporting each ground).
- 11 -

appeal; nor has he demonstrated the applicability of the actual
innocence exception.

Accordingly, Claim One is dismissed as

unexhausted.
Petitioner did argue in his Rule 3.850 motion that trial
counsel was ineffective for failing to request an instruction on
the crime of affray.

Petitioner asserted that “the Trial Court

explicitly instructed the jurors that murder in the second-degree
includes the lesser included crime of manslaughter, and aggravated
battery was also given.

‘Affray’ was not given.” (Doc. 13-2 at

26)(emphasis in original).

Petitioner claimed entitlement to the

instruction because the altercation which led to the victim’s
stabbing death was described as a “fight.” Id. at 26-27.

He claims

to have suffered prejudice because “affray” only carries a sentence
of one year in prison whereas second degree murder carries a
maximum sentence of life. Id. at 26.
The post-conviction court denied Claim Five, noting that
affray is not a lesser included offense of second degree murder:
The Court notes that “lesser offenses ‘are
those in which the elements of the lesser
offense are always subsumed within the
greater, without regard to the charging
document or evidence at trial.’” Pizzo v.
State, 945 So. 2d 1203, 1206 (Fla. 2006)
(quoting State v. Florida, 894 So. 2d 941, 947
(Fla. 2005)).
Accordingly, the elements of
an affray are 1) the fighting of two or more
people in a public place, and (2) to the terror
of the people. See D.J. v. State, 651 So. 2d
1255, 1256 (Fla. 1st DCA 1995). Accordingly,
the elements of an affray cannot be subsumed
within second degree murder.
Consequently,

- 12 -

an affray is not a lesser included offense of
second degree murder. See Fla. Std. Jury
Instr. Crim. 7.4. Therefore, [Claim Five] is
without merit.
(Doc. 13-5 at 14).

The post-conviction court’s rejection of this

claim was affirmed by Florida’s Second DCA (Doc. 13-7 at 106).

A

review of the record and applicable state law supports the state
court’s conclusions.
Under Florida law, affray is not a lesser included offense of
second degree murder. One reason for this is that in an affray,
two or more persons must fight, whereas a second degree murder may
be committed by only one person. See O.A. v. State, 312 So. 2d
202, 203 (Fla. App. 1975) (“[I]t appears that assault and battery
is a lesser include offense of an affray and not vice versa.”);
Hickman v. State, 996 A.2d 974, 982-83 (Md. App. 2010) (“[W]hile
assault may be an element of an affray, an affray is not a form of
common law assault or common law battery.

Although an indictment

charging a common law affray is, in effect, also one for several
assaults and batteries, there are significant differences between
the offenses that make clear that an affray is a separate and
distinct offense from common law assault and battery.”) (citing
Carnley v. State, 102 So. 333, 334 ( Fla. 1924)). Therefore, while
the state may have had the right to charge Petitioner with an
affray, it chose not to do so.

The prosecutor, not defense counsel

or the trial court, has the sole discretion to charge and prosecute
criminal acts. State v. Greaux, 977 So. 2d 614, 615 (Fla. 4th DCA

- 13 -

2008); McArthur v. State, 597 So. 2d 406 (Fla. 1st DCA 1992)
(“[T]he decision to initiate criminal prosecutions for felonies
rests with the state attorney[.]”).

Defense counsel was not

ineffective for failing to seek an additional charge against
Petitioner.
Moreover, the jury found Petitioner guilty of second degree
murder.

Presuming, as we must for federal habeas purposes, that

the jury properly applied the law on second degree murder, the
Court sees no logical basis to conclude that an additional charge
would have led the jury down a different path.

A charge on affray

would have changed neither the evidence nor the standard for a
conviction on second degree murder, and consequently, would not
have changed the outcome for Petitioner.

Although Petitioner

urges that he may have been entitled to a jury pardon had the
affray instruction been given (Doc. 1 at 11), Strickland forbids
any inquiry into the possibility of such “lawless” and resultoriented modes of jury decision-making. Strickland, 466 U.S. at
694 (“In making the determination whether the specified errors
resulted in the required prejudice, a court should presume, absent
challenge to the judgment on grounds of evidentiary insufficiency,
that the judge or jury acted according to law.”).

Applying

Strickland’s presumptions, the Court concludes that the addition
of a new charge would not have changed a rational jury’s decision.

- 14 -

Claim Five fails to satisfy either Strickland prong and is denied
pursuant to 28 U.S.C. § 2254(d).
B.

Claim Two

Petitioner asserts that the trial court erred by allowing the
admission of hearsay evidence at his trial (Doc. 1 at 2-3, 13).
Specifically, he argues that the physician who actually conducted
the victim’s autopsy, Dr. Douglas Kelley, did not testify at
Petitioner's trial and that the testimony of the medical examiner
who testified was, therefore, inadmissible hearsay. Id.
Petitioner argued in his Rule 3.850 motion that trial counsel
was ineffective for failing to object to the testimony of Dr.
Rebecca Hamilton on Confrontation Clause 3 grounds (Ex. 13-2 at 17).
Although this is not the precise claim raised in the instant
petition, in an abundance of caution, this Court will address the
ineffectiveness claim raised in Petitioner's Rule 3.850 motion. 4

3

The Confrontation Clause of the Sixth Amendment states that
“[i]n all criminal prosecutions, the accused shall enjoy the right
... to be confronted with the witnesses against him.” U.S. Const.
amend. VI. Accordingly, testimonial hearsay may not come into
evidence without cross-examination of the declarant unless: (1)
the declarant is unavailable; and (2) the declarant was subject to
prior cross-examination on the hearsay. See Bullcoming v. New
Mexico, 131 S. Ct. 2705 (2011) (“The accused's right is to be
confronted with the analyst who made the certification, unless
that analyst is unavailable at trial, and the accused had an
opportunity,
pretrial,
to
cross-examine
that
particular
scientist.”).
4

A claim of trial court error on this ground was not presented
to the state courts. Accordingly, any claim of trial court error
in relation to the admission of the medical examiner’s testimony
- 15 -

See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (recognizing that
s document filed pro se is to be liberally construed).

The post-

conviction court denied this claim on the ground that Dr. Hamilton
testified only to her own opinions and not to those of Dr. Kelley
(Doc.

13-5

at

11-12).

Therefore,

the

post-conviction

court

concluded that counsel was not ineffective for failing to make a
meritless objection. Id.
(Doc.

13-7

at

106).

Florida’s Second DCA per curiam affirmed
A

review

of

the

trial

transcript

and

applicable Florida law supports the state court’s conclusion.
At

Petitioner's

trial,

Dr.

Hamilton

testified

that

she

reviewed photographs taken from the scene of the crime as well as
from the victim’s autopsy (Doc. 13-5 at 104).

The photographs

were introduced into evidence. Id. at 105, 107.

Counsel objected

to the handwritten “arrows” on the photographs that had been placed
there by Dr. Kelley. Id. at 108.

The state argued that the arrows

only pointed to holes in the clothing and were not testimonial.
Id.

The objection was overruled. Id.

Dr. Hamilton used the

photographs and Dr. Kelley’s autopsy report to show and describe
two stab wounds on the victim. Id. at 109-110.

The first wound

indicated that a knife had entered the victim’s chest between two
ribs and damaged his heart so badly that Dr. Hamilton opined that
the injury would not have been survivable, even had a trauma

is unexhausted and subject to dismissal.
Claim One.
- 16 -

See discussion supra

surgeon been “right there.” Id. at 109-112, 113.

She testified

that a second knife wound showed that a knife had entered the
victim’s abdomen and pierced his liver and gall bladder.

Id. at

113-14. It was her opinion that the second wound could have been
survivable had the victim received immediate medical treatment.
Id. at 114.

Dr. Hamilton also testified as to the existence of

several non-fatal wounds to the victim. Id. at 114-42.
In the instant case, Dr. Hamilton did not merely testify as
to Dr. Kelley’s conclusions regarding the victim’s cause of death.
Rather Dr. Hamilton testified that she reached her independent
conclusions regarding the victim’s cause of death by reviewing the
autopsy and crime scene photographs and the autopsy report by Dr.
Kelley.
substitute

Florida

courts

examiner

have

develops

consistently

held

that

independent

conclusions

when

a

using

objective evidence, a trial court may allow that examiner to
testify. See Brennan v. State, 754 So. 2d 1, 4-5 (Fla. 1999);
Capehart v. State, 583 So.2d 1009 (Fla. 1991) (finding admission
of M.E.'s testimony proper even in absence of admitted autopsy
report, where M.E. relied on the autopsy and toxicology reports,
evidence receipts and photos, and all other proper documentation
in the case); Linn v. Fossum, 946 So. 2d 1032, 1037 (Fla. 2006)
(“The

autopsy

report,

toxicology

report,

and

photographs

are

clearly ‘facts or data’ reasonably relied on by experts in the
field.”); Banmah v. State, 87 So. 3d 101, 103 (Fla. 3d DCA 2012)

- 17 -

(“[I]t is proper to permit a substitute medical expert to testify
as to cause of death despite the fact that the expert did not
perform the autopsy, when the substitute medical expert relies on
the autopsy report.”); compare United States v. Ignasiak, 667 F.3d
1217,

1231

(11th

Cir.

2012)(concluding

that

autopsy

reports

admitted into evidence in conjunction with a substitute medical
examiner’s

testimony

personally

observe

where
or

the

substitute

participate

in

examiner
the

did

autopsy

not
were

testimonial).
Given the case law from the Florida courts regarding the
admissibility
could

have

of

Dr.

Hamilton’s

concluded

that

any

objections would be futile. 5

testimony,
further

reasonable

Confrontation

counsel
Clause

Accordingly, counsel’s performance

was not constitutionally ineffective, and Claim Two is denied
pursuant to 28 U.S.C. § 2254(d).
C.

Claims Three and Four

Petitioner

asserts

that

he

was

subjected

to

vindictive

prosecution because the charge against him was increased from
manslaughter to second degree murder after he failed to plead

5

The Eleventh Circuit’s conclusion in Ignasiak, was issued
more than two years after Petitioner's trial, and could not have
been relied upon by the trial court to sustain an objection to Dr.
Hamilton’s review of Dr. Kelley’s autopsy reports. 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[.]”
Flores-Ortega, 528 U.S. at 477 (quoting Strickland, 466 U.S. at
690).
- 18 -

guilty (Doc. 1 at 14-15).

Petitioner raised this issue in his

Rule 3.850 motion (Doc. 13-2 at 13).
broke

the

claim

into

two

parts:

The post-conviction court
(1)

a

general

claim

of

prosecutorial vindictiveness; and (2) a claim that counsel was
ineffective

for

failing

to

pursue

vindictiveness (Doc. 13-5 at 5).
of

prosecutorial

a

claim

of

prosecutorial

This Court will label the claim

vindictiveness

as

Claim

Three

and

the

corresponding ineffectiveness claim as Claim Four.
The

post-conviction

procedurally

barred

court

because

dismissed
“[c]laims

Claim
of

Three

as

prosecutorial

vindictiveness could have been, should have been, or perhaps were
raised on direct appeal, and are therefore, procedurally barred.”
(Doc. 13-5 at 13) (citing Groover v. State, 489 So. 2d 15, 16 (Fla.
1986). The dismissal was per curiam affirmed by Florida’s Second
DCA (Doc. 13-7 at 106).
A petitioner requesting a federal court to issue a writ of
habeas corpus must present his claims to the state courts in a
procedurally correct manner. Upshaw v. Singletary, 70 F.3d 576,
579 (11th Cir. 1995).

The procedurally correct way for Petitioner

to raise a claim of prosecutorial vindictiveness in the Florida
state courts is by direct appeal. See Groover v. Singletary, 656
So. 2d 424 (Fla. 1995) (claims of prosecutorial vindictiveness
should be raised on direct appeal); Sampson v. State, 845 So.2d
271, 272 (Fla. 2d DCA 2003) (claims of trial court error should be

- 19 -

raised on direct appeal).

In Florida, a District Court of Appeal's

per curiam affirmance of a circuit court's ruling explicitly based
on procedural default “is a clear and express statement of its
reliance on an independent and adequate state ground which bars
consideration by the federal courts.” Harmon v. Barton, 894 F.2d
1268,

1273

properly

(11th

raise

a

Cir.

1990).

claim

of

Because

Petitioner

prosecutorial

failed

to

vindictiveness

in

appropriate state court proceedings, resulting in the application
of a procedural bar by the state courts, the claim is likewise
procedurally barred from review in this Court.

Petitioner has

failed to demonstrate cause for not raising this claim in the state
courts or actual prejudice resulting from the error of which he
complains.

Therefore, he cannot overcome the bar, and Claim Three

is dismissed as unexhausted and procedurally barred.
To

the

extent

that

Petitioner

asserts

counsel

was

constitutionally ineffective for failing to raise a claim of
prosecutorial vindictiveness, 6 the claim fails.

6

Under Florida

Upon review of Petitioner's Rule 3.850 motion, it appears
that Petitioner asserted to the post-conviction court that counsel
was ineffective for “failing to adequately argue and follow
through” on a claim of prosecutorial vindictiveness (Doc. 13-2 at
21). This Court will address this ineffectiveness claim to the
extent it was raised in his Rule 3.850 motion.
However, any
additional assertions raised in the instant petition that were not
presented to the state court are unexhausted. Petitioner does not
raise cause and prejudice for his failure to raise these issues in
state court; therefore, this Court will not consider the additional
claims raised in Claim Four of Petitioner's federal habeas
petition. See discussion supra Claim One.
- 20 -

law, it is “within the state attorney’s discretion to prosecute
less than fully when, in his determination, the ends of justice
will be served.” State v. Phillips, 642 So. 2d 18, 19 (Fla. 2d DCA
1994).

The United States Supreme Court has stated that “just as

a prosecutor may forgo legitimate charges already brought in an
effort to save the time and expense of trial, a prosecutor may
file additional charges if an initial expectation that a defendant
would plead guilty to lesser charges proves unfounded.” United
States v. Goodwin, 457 U.S. 368, 378 (1982).

That is exactly what

occurred in this case.
Although Petitioner urges that counsel should have argued
that Blackledge v. Perry, 417 U.S. 21, 28-29 (1974) supported his
claim for prosecutorial vindictiveness, Blackledge did not deal
with a pre-trial decision by the prosecution.

As noted by the

Supreme Court subsequent to Blackledge:
A prosecutor should remain free before trial
to exercise the broad discretion entrusted to
him to determine the extent of the societal
interest in prosecution. An initial decision
should not freeze future conduct. As we made
clear in Bordenkircher, the initial charges
filed by a prosecutor may not reflect the
extent to which an individual is legitimately
subject to prosecution.
Goodwin, 457 U.S. at 382.

Like the Petitioner in Goodwin, “the

only evidence [Petitioner] is able to marshal in support of his
evidence of vindictiveness is that the additional charge was
brought at a point in time after his exercise of a protected legal

- 21 -

right.” Id. at 382, n.15.

“[T]he mere fact that a defendant

refuses to plead guilty and forces the government to prove its
case is insufficient to warrant a presumption that subsequent
changes in the charging decision are unwarranted.” Id. at 382-83.
Notwithstanding that the state attorney was within his rights
to amend the information as he did, counsel actually filed a motion
to dismiss the amended complaint on the same bases that Petitioner
set forth in his Rule 3.850 motion (Doc. 13-2 at 55).

Given that

Florida and United States Supreme Court case law definitely defeats
a

claim

of

prosecutorial

misconduct,

counsel

was

not

constitutionally ineffective for deciding against making further
argument on this point.

Claim Four is denied pursuant to 28 U.S.C.

§ 2254(d).
D.

Claim Six

Petitioner asserts that defense counsel was ineffective for
failing

to

“preclude

hearsay

and

contradictory

statements

by

adequate impeachment of state’s star witness[.]” (Doc. 1 at 4).
Petitioner does not elaborate on this claim nor does he identify
the “star witness” whom counsel failed to adequately cross examine.
Petitioner did raise a similar claim in his Rule 3.850 motion which
the post-conviction court addressed in pertinent part as follows:
Defendant asserts that trial counsel was
ineffective for failing to impeach witness
Nils Sansmark.
In his motion, Defendant
raises three issues with regard to Mr.
Sansmark’s testimony at trial.
First,
Defendant claims that trial counsel was

- 22 -

ineffective for failing to impeach Mr.
Sansmark’s testimony at trial with his
conflicting
initial
statement
to
law
enforcement.
However, the record reflects
that trial counsel did question Mr. Sansmark
regarding
the
discrepancies
between
the
statement he gave law enforcement and his
testimony at trial. Accordingly, this claim
is without merit.
Second, Defendant claims
that trial counsel was ineffective for failing
to impeach Mr. Sansmark’s testimony with
conflicting
statements
made
by
other
witnesses. A witness can be impeached by his
or her own prior inconsistent statements, but
not by the prior inconsistent statements of
other witnesses.
Accordingly, Defendant's
second claim is without merit.
Lastly,
Defendant claims that trial counsel was
ineffective for failing to impeach Mr.
Sansmark’s testimony at trial because he
alleges that Mr. Sansmark gave contradictory
statements to law enforcement. The allegedly
contradictory
statements
given
to
law
enforcement are unrelated to trial court
testimony given by Mr. Sansmark at trial.
Therefore, this claim is without merit.
. . .
Defendant asserts that trial counsel was
ineffective for failing to impeach witness
Sharon Range. In his motion, Defendant raises
two issues with regard to Ms. Ranges’s
testimony at trial. First, Defendant claims
that trial counsel was ineffective for failing
to impeach Ms. Range’s testimony at trial with
her conflicting statement to law enforcement
officers regarding the relationship between
the victim and Defendant. Defendant alleges
that in statements offered to law enforcement
officers, Ms. Range described the victim and
Defendant as friends, but at trial, she
testified
that
the
two
were
only
acquaintances.
According to the record,
trial counsel for Defendant impeached Ms.
Range’s testimony regarding the victim and
Defendant's relationship and how often she
told police that the two were friends.

- 23 -

Accordingly, the record conclusively refutes
this claim.
Second, Defendant claims that
trial counsel was ineffective for failing to
impeach Ms. Range’s testimony at trial with
her conflicting statements that:
Contradicts herself again, when she
first testifies that the decedent
was so crippled that he was on
disability [compensation], and had
severe mobility problems, because
his artificial hip was ‘coming out,’
and he could hardly walk, but, in
her later testimony confirms that he
was playing ‘golf, baseball, tennis
and bowling,’ as well as house
painting.
According to the record, trial counsel for
Defendant questioned Ms. Range regarding how
often the victim and Defendant played golf
together, the fact that the victim was on
disability,
worked
as
a
handyman,
and
regarding the hip replacement surgery.
The
record conclusively refutes this claim, as
well.
. . .
Defendant asserts that trial counsel was
ineffective for failing to impeach witness
Robert Hewitt with the testimony of Robin
Randall or Marty Murphy. The Court notes that
Defendant's motion is unclear as to whether he
is asserting that trial counsel should have
impeached Robin Randall, Mary Murphy, or
Robert Hewitt; however, what is clear from
Defendant's motion, is that he is asserting
that trial counsel was ineffective for failing
to impeach one or all three of these witnesses
with prior inconsistent statements made by
other witnesses and not prior inconsistent
statements made by the witness specifically
testifying. A witness can be impeached by his
or her own prior inconsistent statements, but
not by the prior inconsistent statements of
other witnesses.

- 24 -

(Doc. 13-5 at 15-16) (internal citations to the record omitted).
The post-conviction court’s denial of this claim was per curiam
affirmed by Florida’s Second DCA (Doc. 13-7 at 106). A review of
the record supports the state court’s conclusions.
1.

Witnesses Robin Randall, Marty Murphy, and Robert
Hewitt

The post-conviction court reasonably determined that defense
counsel could not have used the statements of other witnesses to
impeach the state’s witnesses on cross examination.
law,

a

witness

may

be

impeached

with

his

or

Under Florida
her

own

prior

inconsistent statements, but the Florida rules of evidence do not
provide that a witness may be impeached with a prior statement
from a different witnesses. See Fla. Stat. § 90.614.

To the extent

Petitioner now argues that the post-conviction court unreasonably
applied state law in reaching this conclusion, this Court is bound
by the state courts’ interpretation its own law. See Bradshaw v.
Richey, 546 U.S. 74, 76 (2005) (“[A] state court’s interpretation
of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting in habeas
corpus.”).

Accordingly, any assertion by Petitioner that trial

counsel was ineffective for failing to impeach a witness with a
different witness’ prior statement is without merit.
2.

Witness Nils Sansmark

Petitioner’s assertion that defense counsel did not impeach
Witness Sansmark regarding the identity of the initial aggressor

- 25 -

in the altercation between Petitioner and the victim is equally
without merit.

Defense counsel thoroughly cross examined Sansmark

on this issue:
COUNSEL:

So, it’s your testimony back on
August 28 of 2003 that Mike was the
aggressor.
That’s what you told
the police officers, correct?

WITNESS:

Yes.

Q.

Two experienced – two detectives who
took you in the back room after they
realized you told them Mike was the
aggressor,
Wayne
was
ready
to
oblige.

A.

That’s what I said on tape.

Q.

And now two years later you’ve come
forward saying, oh, no, no, that’s
not what happened?
Is that your
testimony?

A.

It was the first time I saw the
transcript and then heard the tape
of what I said.

Q.

And at no time did you contact the
police; is that correct?

A.

When?

Q.

At any time in the past two years.

A.

I spoke with one of the detectives
about a year and a half ago.

Q.

Okay.
And on numerous occasions,
you’ve had an opportunity to meet
with various State Attorneys on this
case?

A.

No.

Q.

Or speak with them?

- 26 -

A.

No.

Q.

You’ve not been contacted at any
time?

A.

One time they came and I came and
spoke to the State Attorney.

Q.

You’ve received subpoenas in this
case; is that correct?

A.

Yes.

Q.

But the first time bringing it to
their attention is today in court
after reading your statement?

A.

It was brought to my attention two
days ago.

Q.

It was brought to your attention or
you
brought
it
to
someone’s
attention?

A.

It was the first time I saw the
transcript of what I said that
night, and then I brought it to the
State Attorney’s Office attention
that that was incorrect.

Q.

It was then –

A.

Two days ago.

Q.

It was then that you completely
changed what you said, correct?

A.

No. I just changed the place where
names are.

Q.

The names of your very good friend,
Michael Range, and Mr. Travis, who
you barely knew.

A.

Right.

- 27 -

(Doc. 13-5 at 91-93).

Accordingly, any complaint that counsel did

not impeach Sansmark with his prior identification of the victim
as the initial aggressor is without merit.
3.

Witness Sharon Range

Petitioner

asserts

that

Range

contradicted

her

prior

statement to the police in which she described the relationship
between Petitioner and the victim as “friends” whereas at trial,
she described them as “acquaintances” and “not friends.” (Doc. 132 at 32) (emphasis in original).

However, Defense counsel did

impeach Range on this issue, noting that she had told the police
that Petitioner and the victim were friends on six different
occasions.

(Doc.

13-5

at

43-44).

Petitioner's

assertion

is

without merit.
Finally,

Petitioner

asserts

that

Range

made

conflicting

statements regarding the victim’s level of physical impairment and
that counsel should have impeached her on this issue.
counsel did:
COUNSEL:

Good Afternoon, Mrs. Range.
You
indicated that your husband had – he
was on total disability, correct?

RANGE:

Yes.

Q.

But, in fact, that he engaged in
playing golf two, three times a
week?

A.

Two or three times, yes, ma’am.

- 28 -

In fact,

Q.

And in fact he had played golf with
Mr. Travis on numerous occasions,
correct?

A.

I’m not going to – I don’t know if
it was numerous occasions.

Q.

Okay.
And, in fact, your husband
also did some chores or handyman
work such as painting; isn’t that
correct?

A.

Yes.

Q.

Okay.
And, in fact, your husband
also did some chores or handyman
work such as painting; isn’t that
correct?

A.

Yes.

Q.

In fact, he would climb a ladder and
paint houses, and whatnot?

A.

No.

Q.

It’s your testimony that he had not
climbed a ladder?

A.

Not to my knowledge, no, ma’am.

(Doc. 13-5 at 39-40).

Any complaint that counsel failed to impeach

Range on her testimony regarding the level of her late husband’s
physical impairment is without merit.
The

state

court

reasonably

concluded

that

the

alleged

instances of defense counsel’s deficient performance were either
contrary to Florida evidentiary law or completely refuted by the
record.

Claim Six is denied pursuant to 28 U.S.C. § 2254(d).

- 29 -

E.

Claim Seven

Petitioner asserts that defense counsel was ineffective for
failing

to

call

certain

witnesses

at

trial

(Doc.

1

at

4).

Specifically, he asserts that counsel should have called: (1) Robin
Randall to testify that Petitioner and the victim were alone when
the

victim

was

stabbed

and

that

Petitioner

“appeared

to

be

delirious, confused, and disoriented.”; (2) Ethel Elmetta Travis
to testify that the victim was a good dancer, that he had painted
the Moose Lodge on a ladder, had laid floor tile in back of the
bar area, was smoking crack, and was best friends with the victim;
(3) Pamela Engelman to rebut Sharon Range’s testimony that she and
the victim had a loving marriage and to show that the victim did
not have “high integrity”; (4) Marty Murphy to testify that Robert
Hewitt did not witness the fight as he had testified; and (5) an
audio

recording

expert

to

establish

that

the

recording

of

Petitioner's confession to the police had been altered (Doc. 13-2
at 35-38).

Petitioner raised this claim in his Rule 3.850 motion,

and the post-conviction court denied each allegation as without
merit (Doc. 13-5 at 16-20).

The post-conviction court’s rejection

of this claim was per curiam affirmed by Florida’s Second DCA (Doc.
13-7 at 106).
“Which witnesses, if any, to call, and when to call them, is
the epitome of a strategic decision, and it is one that [the court]
will seldom, if ever, second guess.” Waters v. Thomas, 46 F.3d

- 30 -

1506, 1512 (11th Cir. 1995); Chandler v. United States, 218 F.3d
1305, 1314 n. 14 (11th Cir. 2000)(describing the decision to call
some witnesses and not others as “the epitome of a strategic
decision” (quotation marks omitted)).

Moreover, “evidence about

the testimony of a putative witness must generally be presented in
the form of actual testimony by the witness or on affidavit.

A

defendant cannot simply state that the testimony would have been
favorable;

self-serving

speculation

will

not

sustain

an

ineffective assistance claim.” United States v. Ashimi, 932 F.2d
643, 650 (7th Cir. 1991).

Even assuming that the deposition

excerpts provided by Petitioner as attachments to his Rule 3.850
motion

satisfy

Petitioner

has

the
not

Ashimi

“actual

demonstrated

testimony”

that

the

requirement,

state

court’s

adjudication of this claim was contrary to Strickland or based
upon an unreasonable determination of the facts.
1.

Robin Randall and Marty Murphy

The post-conviction court noted that prospective witnesses
Robin Randall and Marty Murphy had been investigated by counsel
and that “Mr. Randall’s statements to law enforcement and testimony
given during a deposition do not conflict with the trial testimony
of Robert Hewitt.” (Doc. 13-5 at 17).

The court also concluded

that Marty Murphy did not witness the altercation, and that there
was no indication that Murphy “knew the whereabouts of Mr. Hewitt
when

the

altercation

between

[Petitioner]

- 31 -

and

the

victim

occurred.” Id. at 19.

The court noted that “Hewitt never testified

that he was a witness to the altercation between [Petitioner] and
the victim outside of the Moose Lodge.” Id.
Petitioner has not overcome the presumption of correctness
due the post-conviction court’s factual determination on these
issues. See 28 U.S.C. § 2254(e)(1) (requiring a district court to
presume that a state court’s factual determination of a factual
issue

is

correct

unless

the

habeas

petitioner

presumption with clear and convincing evidence).

rebuts

the

Indeed, a review

of the putative witness “testimony” offered by Petitioner shows
that Randall only stated that he had not “noticed” anybody else in
the area where Petitioner and the victim were lying, and that
“[e]verybody else was either standing beside us or coming in or
out.” (Doc. 13-2 at 100).

Murphy testified that he did not witness

the altercation between Petitioner and the victim, and that when
he was “out with Bob Hewitt was when Mike was laying in front of
the Moose, and that’s when I was outside with Bob.” Id. at 100.
Murphy’s
testimony

testimony
from

would

Hewitt

not

have

regarding

contradicted
the

fight.

any

relevant

Given

that

Petitioner's factual assertions regarding these witnesses are not
supported by the record, reasonable trial counsel could have
decided against calling Randall or Murphy as witnesses.
2.

Ethel Elmetta Travis and Pamela Engelman

- 32 -

The post-conviction determined that Petitioner's assertions
regarding Ethel Elmetta Travis’ and Pamela Engelman’s testimony
were without merit because these witness’ testimony would have
either been inadmissible or merely cumulative to the testimony of
other witnesses:
The proposed testimony that Ms. Travis would
have offered as alleged by Defendant regarding
the
victim’s
relationship
with
Pamela
Engelman, as well as the victim’s alleged
narcotics usage, would have been impermissible
character evidence.
§ 90.404 Fla. Stat.
(2003). Furthermore, the proposed testimony
regarding the victim’s alleged narcotics usage
would have been inadmissible hearsay. See
Defendant's Exhibit “F” page 54 (Ms. Travis
claims that she only heard a rumor regarding
the victim’s use of crack, but did not have
personal knowledge). The testimony regarding
the victim’s propensity to play golf and other
sports was provided at trial by the victim’s
wife. The victim’s wife also testified that
the victim was a handyman and did work such as
painting. Accordingly, the alleged testimony
proposed by Defendant that Ms. Travis would
have
given
at
trial
would
have
been
corresponding and not contradictory.
. . .
The proposed testimony that Ms. Engelman would
have offered as alleged by Defendant regarding
the victim’s relationship with Ms. Engelman,
as well as the victim’s alleged marital
problems,
would
have
been
impermissible
character evidence. § 90.404, Fla. Stat.
(2003).
(Doc.

13-5

omitted).

at

18,

18-19)

(internal

citations

to

the

record

Florida’s Second DCA per curiam affirmed (Doc. 13-7 at

106).

- 33 -

Given that the proposed testimony from Witness Ethel Elmetta
Travis would have been inadmissible under Florida law or was merely
cumulative to evidence offered by other witnesses, reasonable
defense counsel could have decided against calling Travis as a
defense witness.
prejudice

from

Likewise, Petitioner cannot show how he suffered
counsel’s

decision

not

to

offer

inadmissible

character evidence about the victim’s lack of integrity or unhappy
marriage through the testimony of Pamela Engelman.
3.

Audio-recording forensic expert

Finally, Petitioner asserts that an unnamed “audio-recording
forensic expert”
would have established that the Defendant
actually stated (in his police interview) that
“when he came to, if he had a knife, he threw
it aside,” which was altered to state
“Defendant did have a knife.” (Emphasis
added).
The Defendant never admitted to
having a knife at that time, which gave the
jury the wrong impression, further ensuring
Defendant's conviction of the higher charge
rather than the lesser charge, or even an
acquittal, which was most appropriate.
(Doc 13-2 at 38).

The post-conviction court denied the claim,

noting that, even if Petitioner's statement was presumed true, he
could not show prejudice (Doc. 13-5 at 20).

Florida’s Second DCA

per curiam affirmed (Doc. 13-7 at 106).
This Court also concludes that Petitioner cannot demonstrate
prejudice from counsel’s alleged failure.

To establish prejudice,

Petitioner must demonstrate a reasonable probability that, but for

- 34 -

counsel's deficient performance, the result of his trial would
have been different. United States v. Greer, 440 F.3d 1267, 1272
(11th Cir. 2006).
form

of

an

Petitioner has not provided evidence, in the

affidavit

or

otherwise,

that

an

“audio-recording

forensic expert” would have testified as he now describes.

Self-

serving speculation about potential witness testimony will not
support a claim of ineffective assistance of counsel.
932 F.2d at 650.

See Ashimi,

Because Petitioner fails to proffer any expert

testimony showing that an audio recording was altered, he fails to
demonstrate

a

reasonable

probability

that,

but

for

counsel's

failure to call expert witnesses at trial, the result of the trial
would have been different.
Moreover, as noted by the post-conviction court, Petitioner's
current assertion that he never told the police that he had a knife
is refuted by the record.

Petitioner made numerous statements to

police regarding his possession of a knife.

Petitioner told the

police that after the victim punched him:
PETITIONER:

I pulled out my knife and I
said, ‘Mike, don’t do this no
more, stay the fuck away from
me, get out of here. It’s my
problem,
it’s
not
your
problem’; and he come at me
again and I stabbed him.”

DETECTIVE:

Okay.

PETITIONER:

And then he tried to hit me
again and I’m sure I stabbed
him again.

- 35 -

DETECTIVE:

Okay.

PETITIONER:

He tried two or three times to
come at me and I know that I
stabbed him two or three times.

DETECTIVE:

Okay.

PETITIONER:

And after two or three times,
I said, “you go on.” And then
I knew I seen him fall and then
I knew that I was probably in
some deep trouble and I took
off running towards my house;
and
somewhere
between
the
Moose and my house, I still had
the knife in my hand, and I
know that I probably ran for a
mile or whatever, and then I
realized I still had the knife
in my hand. I threw it aside.

(Doc. 1305 at 154-55).

Petitioner later described the knife as a

normal pocketknife and a “long switchblade.” Id. at 155. He told
the police that he carried a knife because he needed a knife for
work. Id. at 164.

He repeated his assertion that he stabbed the

victim after he (the victim) hit him in the mouth, and that he
used the knife because the victim kept “coming” at him. Id. at
162, 164.

He stated that he didn’t know why he pulled the knife

“other than the fact that somewhere in my mind, somewhere in my
thinking I thought you’re not going to whip my ass, you’re not
going to whip me because this really isn’t your damn problem, and
why we’re out here is another thing that I don’t understand.” Id.
at 165.

He told the police that he was sorry that the stabbing

occurred, “sorry to God I stabbed him. I stabbed him.” Id. at 168.

- 36 -

Given Petitioner's repeated confessions to the police regarding
the knife, the post-conviction court reasonably concluded that he
could not demonstrate prejudice from counsel’s failure to hire an
audio-recording forensics expert.
Petitioner has not satisfied the prejudice prong of the
Strickland

ineffectiveness

test,

and

Claim

Seven

is

denied

pursuant to 28 U.S.C. § 2254(d). See Holladay v. Haley, 209 F.3d
1243, 1248 (11th Cir. 2000) (“Because both parts of the test must
be satisfied in order to show a violation of the Sixth Amendment,
the court need not address the performance prong if the defendant
cannot meet the prejudice prong . . . or vice versa.”).
F.

Claim Eight

Petitioner asserts that counsel was ineffective for failing
to file a motion to dismiss the charges against him on the ground
that the information was not based on the testimony of a material
witness (Doc. 1 at 4).

Petitioner raised this issue in his Rule

3.850 motion, and the post-conviction court determined that the
claim was without merit because “no objection to an information on
the ground that it is not signed or verified can be entertained
‘after the defendant pleads to the merits.’” (Doc. 13-5 at 20)
(citing Logan v. State, 1 So. 3d 1253 (Fla. 4th DCA 2009)).
Florida’s Second DCA per curiam affirmed (Doc. 13-7 at 106).
Petitioner does not identify any defect in the state court’s
adjudication of this claim.

Rule 3.140(g) of the Florida Rules

- 37 -

of

Criminal

Procedure

requires

that

the

state

attorney

or

a

designated assistant state attorney sign a felony information
under oath affirming good faith in instituting the prosecution and
certifying the receipt of testimony under oath from the material
witness or witnesses to the offense. The amended information in
Petitioner's

case

charges

second

degree

murder

under

Florida

Statute § 782.04(2) and aggravated assault with a deadly weapon
under

Florida

Statute

§

784.021

(Doc.

13-5

at

26-27).

The

information includes the signature and oath of an assistant state
attorney required under Rule 3.140(g). Id. at 27. Consequently,
counsel had no basis on which to object to the information. See
Jones v. Barnes, 463 U.S. 745, 751 (1983) (trial counsel has no
duty to raise a frivolous claim).

Moreover, Petitioner cannot

show prejudice because even had counsel filed a motion to dismiss
a defective information, it would not have prohibited further
proceedings against him in connection with the charges because the
state

would

merely

have

proceeded

upon

a

second

amended

information. See Alba v. State, 541 So. 2d 747, 748 (Fla. 3d DCA
1989) (“Clearly, the fact that the defendant was tried upon an
unsworn Information does not rise to such a level of error which
would entitle the defendant to a complete release from the charges
brought against him.”).
Claim Eight fails to satisfy either prong of Strickland, and
is denied pursuant to 28 U.S.C. § 2254(d).

- 38 -

G.

Claim Nine

Petitioner asserts that trial counsel was ineffective for
failing to request a competency hearing and for not considering an
insanity defense (Doc. 1 at 5).

Petitioner raised this issue in

his amended Rule 3.850 motion, in which he asserted that the
evidence showed that he was confused, dazed, and “out of it” after
the stabbing and that counsel “had a duty to investigate all
evidence” which showed that he may not have been competent (Doc.
13-6 at 31-32). Petitioner also asserted that he suffered from the
disease of alcoholism, and had counsel pursued an insanity defense,
“the jury would have reached a Manslaughter verdict.” Id. at 33.
The post-conviction court denied the claim:
In his initial motion, Defendant alluded to
the testimony provided by various witnesses
that indicate that Defendant appeared to be
dazed and confused following the criminal
incident. However, as the Court noted in its
prior order, a review of the entire file and
transcript of the trial did not indicate that
Defendant was either incompetent or insane.
Defendant's initial motion did not allege that
he failed to understand the nature of the
proceedings, the role of the parties, or that
Defendant's understanding of his actions [was]
affected by any mental health condition.
Because Defendant's original claim in Ground
7 offered no more than conclusory statements,
did not point to any facts which supported the
claim, nor did he demonstrate a deficiency in
performance that prejudiced the defense,
Defendant was afforded the opportunity to
amend his claim. Wilson v. State, 531 So. 2d
1012, 1013 (Fla. 2d DCA 1988); Teffeteller v.
Dugger, 734 So. 2d 1009, 1016 (Fla. 1999). In
Defendant's amended Ground 7, he again offers
no more than conclusory statements and does

- 39 -

not point to any facts which identify that
Defendant was incompetent or insane. In his
amended motion, Defendant claims that he “had
become a heavy drinker, and succumbed to the
disease of alcoholism, which clouded his
judgment” and “just prior to the fight, he had
only two (2) drinks, those drinks, combined
with his disease of alcoholism and the fact
that the alleged victim had banged Defendant's
head against the concrete, caused Defendant to
be temporarily insane . . .”
Notably,
voluntary intoxication is neither a defense to
any offense proscribed by law nor is it
admissible to show that a defendant was insane
at the time of the offense. § 775.051, Fla.
Stat.
(2003).
Accordingly,
Defendant's
claims in Ground 7 are without merit.
(Doc. 13-7 at 4-5).

The post-conviction court’s denial of this

claim was per curiam affirmed by Florida’s Second District Court
of Appeal (Doc. 13-7 at 106).
In Futch v. Dugger, the Eleventh Circuit Court of Appeals
considered

an

ineffective

assistance

claim

regarding

trial

counsel's failure to determine a petitioner's competency to stand
trial. 874 F.2d 1483, 1486 (11th Cir. 1989). The court stated that
“[i]n order to demonstrate prejudice from counsel's failure to
investigate his competency, [a] petitioner has to show that there
exists ‘at least a reasonable probability that a psychological
evaluation would have revealed that he was incompetent to stand
trial.’” Id. at 1487 (quoting Alexander v. Dugger, 841 F.2d 371,
375

(11th

presented

Cir.
no

speculation,

1988)).
evidence,

that

In

the

other

additional

instant
than

case,
his

psychological

- 40 -

Petitioner

own
testing

has

self-serving
would

have

shown that he was incompetent to stand trial. 7

Accordingly, he

cannot demonstrate prejudice from counsel's failure to move for a
competency hearing.
Likewise, as noted by the post-conviction court, voluntary
intoxication is not a defense to the general intent crime of second
degree murder. See Gray v. State, 731 So. 2d 816, 817 (Fla. 5th
DCA 1999) (voluntary intoxication is not a defense to a general
intent crime); Kiley v. State, 860 So. 2d 509 (Fla. 4th DCA 2003)
(voluntary intoxication is no longer a defense to second degree
murder).

Accordingly, counsel’s performance was not deficient for

failing to argue that Petitioner's use of alcohol, combined with
his alcoholism, rendered him temporarily insane at the time of the
stabbing.
Petitioner fails to meet his burden of proving that the state
court unreasonably applied controlling Supreme Court precedent or
unreasonably determined the facts in denying Claim Nine.

The

claim is denied pursuant to 28 U.S.C. § 2254(d).

7

Petitioner alleged in his Rule 3.850 motion that “Defense
Counsel did motion the Court for a mental health evaluation, and
Defendant did see a mental health expert, however, counsel failed
to follow-up, to ensure that a competence hearing was held, with
Defendant's presence, to allow for cross-examination, argument,
and objections, by counsel, and final determination by the Court.”
(Doc. 13-6 at 33) (emphasis in original). Indeed, Petitioner has
provided a copy of the motion and the trial court’s order
appointing an expert (Doc. 29 at 9-10). Petitioner does not assert
that the mental health evaluation suggested that he was incompetent
to proceed to trial, nor does he provide a copy of the mental
health report.
- 41 -

H.

Claim Ten

Petitioner

claims

that

the

cumulative

effect

of

trial

counsel’s errors deprived him of a fair trial (Doc. 1 at 8).

This

Court need not determine whether, under the current state of
Supreme Court precedent, cumulative error claims reviewed through
the lens of AEDPA can ever succeed in showing that the state
court's

adjudication

unreasonable

on

application

the
of

merits
clearly

was

contrary

established

to

or

federal

an
law.

Petitioner has not shown an error of constitutional dimension with
respect to any federal habeas claim. Therefore, he cannot show
that the cumulative effect of the alleged errors deprived him of
fundamental fairness in the state criminal proceedings. See Morris
v. Sec’y Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012)
(refusing to decide whether post-AEDPA claims of cumulative error
may ever succeed in showing that the state court's decision on the
merits was contrary to or an unreasonable application of clearly
established law, but holding that petitioner's claim of cumulative
error was without merit because none of his individual claims of
error or prejudice had any merit); Forrest v. Fla. Dep't of Corr.,
342 F. App'x 560, 565 (11th Cir. 2009) (noting absence of Supreme
Court precedent applying cumulative error doctrine to claims of
ineffective

assistance

of

counsel,

but

holding

that

the

petitioner's cumulative error argument lacked merit because he did
not establish prejudice or the collective effect of counsel's error

- 42 -

on the trial).

Petitioner is not entitled to relief on claim

eleven.
Any of Petitioner's allegations not specifically addressed
herein have been found to be without merit.
IV.

Certificate of Appealability 8
Petitioner is not entitled to a certificate of appealability.

A

prisoner

seeking

a

writ

of

habeas

corpus

has

no

absolute

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
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. Petitioner
has not made the requisite showing in these circumstances.

8

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.
- 43 -

Because

Petitioner

is

not

entitled

to

a

certificate

of

appealability, he is not entitled to appeal in forma pauperis.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.

The Florida Attorney General is DISMISSED as a named

Respondent.
2.

Claims One and Three of the 28 U.S.C. § 2254 petition

for habeas corpus relief filed by Dorris Wayne Travis (Doc. 1) are
DISMISSED; the remaining claims are DENIED.
3.

Petitioner is DENIED a certificate of appealability.

4.

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 May, 2015.

SA: OrlP-4
Copies: Doris Wayne Travis
Counsel of Record

- 44 -

12th

day