Miller v. State Of Florida et al

Filing 18

OPINION AND ORDER denying re: 1 Petition for writ of habeas corpus. Ground One, Three, and Five are dismissed as unexhausted and procedurally defaulted. Grounds Two, Four, and Six are denied. Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. Signed by Judge Sheri Polster Chappell on 9/21/2016. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WILLIAM FOLEY MILLER,
Petitioner,
v.

Case No: 2:13-cv-610-FtM-38MRM

STATE OF FLORIDA and FLORIDA
ATTORNEY GENERAL,
Respondents.
/
OPINION AND ORDER1
I. Status
This matter comes before the Court upon periodic review of the file. Petitioner
William Foley Miller (hereinafter “Petitioner,” or “Miller”) initiated this action proceeding
pro se by filing a timely 28 U.S.C. § 2254 petition for writ of habeas corpus (Docs. #1,
“Petition”) challenging his judgment and conviction entered in the Twentieth Judicial
Circuit Court in Lee County, Florida. The Petition raises six grounds for relief. See
generally Petition.

1

Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other
documents or Web sites. These hyperlinks are provided only for users’ convenience.
Users are cautioned that hyperlinked documents in CM/ECF are subject to PACER fees.
By allowing hyperlinks to other Web sites, this court does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on their
Web sites. Likewise, the court has no agreements with any of these third parties or their
Web sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some
other site does not affect the opinion of the court.

Respondent2 filed a Response (Doc. #8, Response) opposing all grounds and
attached supporting exhibits (Doc. #8, Exhs. 1-19) consisting of the record on direct
appeal and postconviction pleadings.
satisfied 28 U.S.C. § 2254(d) (1)-(2).3

Respondent argues that Petitioner has not
Petitioner filed a Reply (Doc. #11).

For the reasons that follow, the Court concludes that Petitioner is not entitled to
federal habeas relief. Because the Petition can be resolved on the basis of the record,
an evidentiary hearing is not warranted. Schriro v. Landrigan, 550 U.S. 465, 473-474
(2007) (finding 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).
II. Background4
Petitioner was charged by information with second degree murder in case number
07-cf-20409. Exh. 1. A jury found Petitioner guilty. Exh. 3. In accordance with the
verdict, the judge sentenced Petitioner to life in prison. Exh. 4 - Exh 5.
Petitioner, through counsel, pursued a direct appeal raising three grounds:
(1) whether the trial court abused its discretion when it denied
the defense of a separate instruction on heat of passion
manslaughter;

2

Rule 2(a) of the Rules Governing Section 2254 Cases in United States District
Courts provides that applicants in “present custody” seeking habeas relief should name
“the state officer having custody of the applicant as respondent.” The Supreme Court
has made clear that there “is generally only one proper respondent to a given prisoner’s
habeas petition.” Rumsfield v. Padilla, 542 U.S. 426, 435 (2004). This is “‘the person
with the ability to produce the prisoner’s body before the habeas court.’” Id. at 435-436.
In this case, the proper Respondent is the Secretary of the Florida Department of
Corrections. The Florida Attorney General is dismissed from this action.
3

Respondent notes that the Petition is timely filed. Response at 4.

4

In pertinent part, the procedural history of this case is adopted from the
Respondent’s Response.

-2-

(2) whether the trial court abused its discretion when it
denied the defense’s request for a curative instruction after
the prosecution improperly shifted the self-defense burden to
the defense, and;
(3) whether the trial court abused its discretion when it denied
the defense’s motion for a mistrial when a state’s witness
improperly commented on petitioner’s request for a public
defender.
Exh. 6. The State filed an answer brief. Exh. 7. Upon review, the appellate court per
curiam affirmed without a written opinion. Exh. 8.
Petitioner then filed a motion for postconviction relief under Florida Rule of Criminal
Procedure 3.850 raising the following three claims of ineffective assistance of trial
counsel:
(1) ineffective assistance of counsel as guaranteed by the
Sixth and Fourteenth Amendment of the United States
Constitution wherein [sic] counsel failed to call witness
imperative to the defense;
(2) ineffective assistance of counsel as guaranteed by the
Sixth and Fourteenth Amendment of the United States
Constitution where [sic] counsel failed to call defendant to
testify and misadvised the defendant that the jury would learn
of the specific nature of his prior convictions;
(3) ineffective assistance of counsel as guaranteed by the
Sixth and Fourteenth Amendment of the United States
Constitution whereon [sic] counsel failed to object to an
incorrect and misleading jury instruction for the lesser
included offense of manslaughter.
Exh. 10. The state filed a brief in response. Exh. 11. Upon review of the state’s
response, the postconviction court ordered an evidentiary hearing on grounds one and
two, denied relief on ground three, and appointed counsel to represent Petitioner. Exh.
13.

On September 14, 2011, the postconviction court held the evidentiary hearing.

-3-

Exh. 14. Thereafter, the postconviction court entered an order denying Petitioner relief
on his claims. Exh. 15.
Petitioner appealed the postconviction court’s decision. Exh. 16. The appellate
court per curiam affirmed the lower court’s without written decision on March 20, 2013.
Exh. 18. Petitioner then initiated the instant federal habeas petition on August 16, 2013.
III. Applicable § 2254 Law
A. Deferential Review Required By AEDPA
Petitioner filed his Petition after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996).
Abdul-Kabir v. Quarterman, 550 U.S. 233, 246 (2007); Penry v. Johnson, 532 U.S. 782,
792 (2001). Consequently, post-AEDPA law governs this action. Abdul-Kabir, 550 U.S.
at 246; Penry, 532 U.S. at 792; Davis v. Jones, 506 F.3d 1325, 1331, n.9 (11th Cir. 2007).
Under the deferential review standard, 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). Cullen v. Pinholster, 563 U.S. 170, 181 (2011). “This is a difficult
to meet, and highly deferential standard for evaluating state-court rulings, which demands
that the state-court decisions be given the benefit of the doubt.” Id. (internal quotations
and citations omitted). See also Harrington v. Richter, 562 U.S. 86, 102 (2011) (pointing
out that “if [§ 2254(d)’s] standard is difficult to meet, that is because it was meant to be.”).

-4-

Both the Eleventh Circuit and the Supreme Court broadly interpret what is meant
by an “adjudication on the merits.” Childers v. Floyd, 642 F.3d 953, 967-68 (11th Cir.
2011). Thus, a state court’s summary rejection of a claim, even without explanation,
qualifies as an adjudication on the merits that warrants deference by a federal court. Id.;
see also Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Indeed, “unless the
state court clearly states that its decision was based solely on a state procedural rule [the
Court] will presume that the state court has rendered an adjudication on the merits when
the petitioner’s claim ‘is the same claim rejected’ by the court.” Childers v. Floyd, 642
F.3d at 969 (quoting Early v. Packer, 537 U.S. 3, 8 (2002)).
“A legal principle is ‘clearly established’ within the meaning of this provision only
when it is embodied in a holding of [the United States Supreme] Court.”

Thaler v.

Haynes, 559 U.S. 43, 47 (2010); see also Carey v. Musladin, 549 U.S. 70, 74 (2006)
(citing Williams v. Taylor, 529 U.S. 362, 412 (2000)) (recognizing “[c]learly 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). “A state court decision involves an unreasonable application of federal law
when it identifies the correct legal rule from Supreme Court case law but unreasonably
applies that rule to the facts of the petitioner's case, or when it unreasonably extends, or
unreasonably declines to extend, a legal principle from Supreme Court case law to a new
context.” Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271, 1291 (11th Cir. 2012)
(internal quotations and citations omitted). The “unreasonable application” inquiry
requires the Court to conduct the two-step analysis set forth in Harrington v. Richter, 562
U.S. at 86. First, the Court determines what arguments or theories support the state

-5-

court decision; and second, the Court must determine whether “fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a prior”
Supreme Court decision. Id. (citations omitted). Whether a court errs in determining
facts “is even more deferential than under a clearly erroneous standard of review.”
Stephens v. Hall, 407 F.3d 1195, 1201 (11th Cir. 2005).

The Court presumes the

findings of fact to be correct, and petitioner bears the burden of rebutting the presumption
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
B.

Ineffective Assistance of Counsel Claims

Ineffective assistance of counsel claims are reviewed under the standards
established by 28 U.S.C. § 2254(d). Newland v. Hall, 527 F.3d 1162, 1183 (11th Cir.
2008). Post-AEDPA, the standard set forth in Strickland v. Washington, 466 U.S. 668
(1984), remains applicable to the claims of ineffective assistance of counsel raised in this
case. Newland, 527 F.3d at 1184. In Strickland, the Supreme Court established a twopart test to determine whether a convicted person is entitled to habeas relief on the
grounds that his or her counsel rendered ineffective assistance: (1) whether counsel’s
representation was deficient, i.e., “fell below an objective standard of reasonableness”
“under prevailing professional norms,” which requires a showing that “counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment”; and (2) whether the deficient performance
prejudiced the defendant, i.e., there was a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different, which
“requires showing that counsel’s errors were so serious as to deprive the defendant of a

-6-

fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 688; see also Bobby Van
Hook, 558 U.S. 4, 8 (2009); Cullen v. Pinholster, 131 S. Ct. at 1403 (2011).
States may “impose whatever specific rules . . . to ensure that criminal defendants
are well represented,” but “the Federal Constitution imposes one general requirement:
that counsel make objectively reasonable choices.” Bobby Van Hook, 558 U.S. at 9
(internal quotations and citations omitted).

It is petitioner who 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,” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)
(quoting Strickland, 466 U.S. at 690), applying a “highly deferential” level of judicial
scrutiny. Id. A court must adhere to a strong presumption that “counsel’s conduct falls
within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at
689. An attorney is not ineffective for failing to raise or preserve a meritless issue. Ladd
v. Jones, 864 F.2d 108, 109-10 (11th Cir. 1989); United States v. Winfield, 960 F.2d 970,
974 (11th Cir. 1992) (“a lawyer’s failure to preserve a meritless issue plainly cannot
prejudice a client”). “To state the obvious: the trial lawyers, in every case, could have
done something more or something different. So, omissions are inevitable. But, the
issue is not what is possible or ‘what is prudent or appropriate, but only what is
constitutionally compelled.’” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.
2000) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).

III. Findings of Fact and Conclusions of Law

-7-

The Petition raises six grounds for relief. Grounds One, Three, and Five raise
“trial court error” claims. See generally Petition. Grounds Two, Four, and Six raise
ineffective assistance of trial counsel.

Id.

Respondent opposes relief on all six

grounds. The Court will address the claims in numerical order.
A. Ground One
Petitioner alleges that the prosecution improperly shifted the self-defense burden
to the defense when the prosecutor stated “there is absolutely no evidence to show that
the defendant had justifiable use of deadly force.” Petition at 6. Petitioner contends that
he established a prima facie case of self-defense because other witnesses testified as to
Petitioner’s injuries sustained in the attack, that the deceased had “violent and aggressive
behavior,” and that the deceased had cocaine, alcohol, and Xanax in his system at the
time of death. Id.
In Response, Respondent contends the claim is unexhausted and now
procedurally defaulted because Petitioner never raised the claim in terms of a violation of
federal law on direct appeal. Response at 5-6. Alternatively, Respondent asserts the
claim lacks merit because Petitioner cannot show that the prosecutor’s comment so
infected the trial with unfairness as to make the resulting conviction a violation of due
process. Id. at 6.
A review of the record confirms that Respondent is correct concerning Petitioner’s
failure to exhaust his claim.

Response at 5-6.

A review of the record shows that

Petitioner’s failed to exhaust the federal dimension of this claim before the state courts.
On direct appeal, Petitioner did not raise this claim as one of a federal constitutional
violation.

Exh. 6.

Petitioner only claimed a violation of state law.

-8-

Id. at 10-12.

Petitioner’s direct appeal brief did not cite any cases referencing a violation of the federal
constitution. Id. For a habeas petitioner to fairly present a federal claim to the state
courts:
It is not sufficient merely that the federal habeas petition has
been through the state courts. . . nor is it sufficient that all the
facts necessary to support the claim were before the state
courts or that a somewhat similar state-law claim was made.
Rather, in order to ensure that state courts have the first
opportunity to hear all claims, federal courts “have required a
state prisoner to present the state courts with the same claim
he urges upon the federal courts.” While we do not require a
verbatim restatement of the claims brought in state court, we
do require that a petitioner presented his claims to the state
court “such that a reasonable reader would understand each
claim’s particular legal basis and specific factual fountain.
McNair v. Campbell, 416 F.3d 1291, 1301 (11th Cir. 2005).

Florida law now precludes

Petitioner from raising the federal dimension of his claim before the State courts.
Consequently, the Court dismisses Ground One as unexhausted and procedurally
defaulted.
B. Ground Two
Petitioner alleges that counsel rendered ineffective assistance when counsel failed
to call a witness imperative to the defense. Petition at 9. Petitioner contends that the
witness would have testified regarding the victim’s violent behavior during the fight. Id.
Specifically, Petitioner contends that the witness would have testified that the victim
started the fight with Petitioner, after Petitioner accused him of stealing six hundred
dollars from him. Further, Petitioner claims that this witness would have testified that the
victim hit Petitioner several times and broke his glasses. Id.
In Response, Respondent notes that Petitioner raised this claim as his first ground
for relief in his Rule 3.850 postconviction motion. Response at 7. Respondent directs

-9-

the court to the postconviction court’s order denying Petitioner relief on this claim, which
was entered following an evidentiary hearing.

Id. at 8.

Respondent contends that

Petitioner has failed to demonstrate either deficient performance or prejudice, and the
state court’s denial of relief was neither contrary to, nor an unreasonable application of
Strickland. Id. at 10.
The Court finds Ground Two is exhausted to the extent Petitioner raised this claim
as his first claim for relief in his Rule 3.850 motions and the adverse result appealed
thereafter. See Exh. 10 (Rule 3.850 motion); Exh. 15 (order from postconviction court
denying relief); Exh. 16 (appellate brief); Exh. 18 (appellate court order per curiam
affirming the decision).
In denying Petitioner relief on this claim, the postconviction court found as follows:
[Miller] alleges ineffective assistance of counsel for failure to
call a witness. At the beginning of the hearing, defense
counsel moved for a continuance, representing that he had
difficulty locating the witness, James Nunemaker, and that to
his knowledge, Mr. Nunemaker is or was homeless,
occasionally lives with his son, a Mr. Hoskins’ residence and
left several notes, but has received no response. The Court
noted that the hearing had been set since July 26, 2011, for
the September 14, 2011 hearing. Even though counsel
stated his optimism of placing Mr. Nunemaker under
subpoena, he presented no facts in support as to how
thought he [sic] could produce the witness in a timely fashion
when he had been unable to do so previously. Based upon
the uncertainty of counsel’s representations, the Court denied
the continuance and directed that Defendant proceed on his
claims.
To the extent that [Miller] is not able to establish Mr.
Nunemaker’s availability or what his testimony would have
been at trial, the Court finds that Defendant has failed to meet
his burden of demonstrating that counsel was deficient or that
Defendant was prejudiced as it relates to Ground One.
Furthermore, trial counsel, David Brener, testified that Mr.
Nunemaker was listed as a State witness, and he had
determined that his testimony would not have been favorable

- 10 -

to [Miller], and therefore, his decision to not call James
Nunemaker as a witness was a matter of trial strategy. In
light of Mr. Brener’s testimony, this Court cannot find anything
inherently unreasonable about counsel’s trial strategy.
[Miller] has failed to meet his burden of overcoming the
presumption that counsel’s decision to not call Mr.
Nunemaker as a witness was the product of reasonable trial
strategy. State v. Chattin, 877 So. 2d 747 (Fla. 2d DCA
2004) (in a claim of ineffective assistance of counsel, it is
defendant’s burden to overcome the presumption that the
challenged actions of counsel might be considered sound trial
strategy). Defendant has failed to meet his burden of
demonstrating that counsel acted deficiently within the
meaning of Strickland. Accordingly, Ground One is without
merit and DENIED.
Exh. 15 at 524-525 (emphasis in original).
The Court finds that the Florida court’s denial of postconviction relief did not result
in a decision that was “contrary to, or involved an unreasonable application of” Strickland,
or “in a decision that was based on an unreasonable determination of the facts in light of
the evidence presented” in the Florida court.

Significantly, the postconviction court

record determined that defense counsel tried to locate Nunemaker and even moved for
a continuance to do so, but was unable to locate Nunemaker, who was homeless.
Further, the postconviction court determined that Petitioner could not show either deficient
performance or prejudice under Strickland as a result of counsel’s failure to call Mr.
Nunemaker as a witness because Nunemaker was actually listed as a witness for the
State. Additionally, although not noted by the postconviction court in its order, it is
evident that Nunemaker was not available to testify as a witness because he was not
located. See Gideon v. Dep’t of Corr., 295 F. App’x 988, 989 (11th Cir. 2008) (noting
district court did not error in denying ineffective assistance of counsel claims when a
petitioner could not establish prejudice because the witness was not available to testify).
Accordingly, Petitioner is denied relief on Ground One because the postconviction court’s

- 11 -

decision was not contrary to, or an unreasonable application of” Strickland. Nor was the
decision “based on an unreasonable determination of the facts in light of the evidence
presented” in the Florida court. Accordingly, Petitioner is denied relief on Ground Two.
C. Ground Three
Petitioner alleges that the state court violated Petitioner’s federal constitutional
right when it erred by denying Petitioner’s motion for mistrial.

Petition at 11.

The

context of this claim arises from a crime scene investigator’s testimony on crossexamination concerning Petitioner’s “cooperativeness.”

Id.

Specifically, on cross-

exanimation Petitioner’s attorney asked whether Petitioner was cooperative, to which the
crime scene technician respond that Petitioner kept asking to speak to his public
defender. Id.
In Response, Respondent contends the claim is unexhausted and procedurally
defaulted because Petitioner did not raise the federal dimension of his claim before the
state courts. Response at 10. Turning to the merits, Respondent contends that the
remark was not an improper comment on petitioner’s right to silence or counsel, but was
elicited by defense counsel and was harmless in light of the overwhelming evidence of
Petitioner’s guilt. Id. at 11.
Based on a review of the record and binding precedent, the Court finds this claim
is unexhausted and procedurally defaulted. On direct appeal, Petitioner did not raise this
claim as one of a federal constitutional violation. Exh. 6. Petitioner only claimed a
violation of state law. Id. at 12-13. Petitioner’s direct appeal brief did not even cite any
cases referencing a violation of the federal constitution. Thus, Petitioner deprived the
state court of the first opportunity to hear all claims. Supra 8-9 (citing McNair, 416 F.3d

- 12 -

at 1301).

Florida law now precludes Petitioner from attempting to raise the federal

dimension of this claim before the State court.

Consequently, the Court dismisses

Ground Three as unexhausted and procedurally defaulted.
D. Ground Four
Petitioner alleges counsel rendered ineffective assistance of counsel when
counsel “made him waive his right to testify.” Petition at 14. Specifically, Petitioner
contends that if he had testified, he would have explained that he was “in fear of [sic] his
life,” that “the victim hit him, and was on top of him and beating him repeatedly.” Id.
In Response, Respondent refers the Court to the postconviction court’s order
denying Petitioner relief on this claim. Response at 11-12. Respondent contends that
Petitioner has not shown deficient performance or prejudice, and that the state court’s
decision was neither contrary to, nor an unreasonable application of Strickland. Id. at
14.
The Court finds Ground Four is exhausted to the extent Petitioner raised this claim
as his second claim for relief in his Rule 3.850 motion and appealed the adverse result
thereafter. See Exh. 10 (Rule 3.850 motion); Exh. 15 (order from postconviction court
denying relief); Exh. 16 (appellate brief); Exh. 18 (appellate court order per curiam
affirming the decision).
In denying Petitioner relief on this claim, the postconviction court found as follows:
[Miller] alleges in his motion that he was misadvised that the
jury would learn of the specific nature of his prior convictions
if he were to testify at trial. However, at the hearing, [Miller]
alleges for the first time a discrepancy regarding whether
[Miller] had one or two felonies. Mr. Brenner testified as to
his knowledge of the rule involving the State questioning a
defendant as to the specific nature of prior convictions and
that it is normal practice to advise his clients that if a client

- 13 -

testifies, then there is only one proper question that can be
asked if the defendant correctly acknowledges the number of
convictions, whether he or she has ever been convicted of a
felony or a crime involving dishonesty or false statement. Mr.
Brener further testifies that to his knowledge of the fact that if
a defendant states the incorrect number of prior convictions,
then the State could prove up the nature of the convictions in
order to establish them. Mr. Brener testified that he would
have never advise[d] a client that if he or she can answer the
number of convictions questions correctly, then the nature of
the convictions will be revealed.
To the extent that [Miller’s] own testimony reveals a
discrepancy in the number of his prior felonies, trial counsel
would not have been deficient in advising that there was a
possibility that the State could have brought out the specific
nature of [Miller’s] prior convictions. In light of the testimony
of Mr. Brener and [Miller] offered at the evidentiary hearing,
the Court finds that [Miller] has failed to meet his burden of
demonstrating deficient performance of counsel. Even if
[Miller] had testified as he claimed at the evidentiary hearing,
there is no reasonable probability that the outcome would
have been different.
The record reflects that, at trial, several witnesses testified
that [Miller] incriminated himself, regardless of whether the
killing was self-defense. Alisha Raybuck, the front desk
check-in clerk at Day’s Inn, where the homicide took place,
testified that she received a phone call from a man, later
identified as [Miller], who stated:
“This is Room 232. Please call 911 and ask for the Homicide
Unit.” (Trial Tr. vol. II, 214:6-15.)
Ms. Raybuck asked if there has been a homicide to which
[Miller] affirmed and replied, “‘Some stupid crack b**** or,
‘Some stupid crack w****.’” (Trial. Tr. vol. II, 215:5-13.) Ms.
Raybuck further testified that when [Miller] was being taken
down the stairs by the police and brought to the police car,
[Miller] said in a loud voice”
“The b**** tried to kill me. That b**** tried to kill me with a
beer bottle.” (Trial Tr. vol. II, 217:16-218:5).
Ronald A. Beecroft, a firefighter and paramedic with the North
Fort Myers Fire Department, also testified that when he asked
[Miller] what happened, [Miller] replied:

- 14 -

“She’s a crack w****. She tried to kill me, so I killed her.” (Tr.
Tr. vol. II, 257:19-21.) . . . . .
It’s notable that during the postconviction evidentiary hearing
held on September 14, 2011, [Miller] admitted that while at the
hospital, he stated, “Yeah, I’m hopin’ she was dead.”
At the evidentiary hearing, [Miller] had the burden of proving
his claims of ineffective assistance of trial counsel. Green v.
State, 857 So. 2d 304 (Fla. 2d DCA 2003). A defendant must
demonstrate that counsel’s performance was deficient and
that there is a reasonable probability that the outcome of the
proceedings would have been different. Locklear v. State,
847 So. 2d 543 (Fla. 2d DCA 2003) (citing Strickland v.
Washington, 466 U.S. 668 (1984)). As stated by the Florida
Supreme Court in Gore v. State, 846 So. 2d 461, 467 (Fla.
2003) (citations omitted):
As to the first prong, deficient performance, a defendant must
establish conduct on the part of counsel that is outside the
broad range of competent performance under prevailing
professional standards. Second, as to the prejudice prong,
the deficient performance must be shown to have so affected
the fairness and reliability of the proceedings that the
confidence in the outcome is undermined.
In light of the evidence at trial, and Defendant’s testimony at
the evidentiary hearing, [Miller] has failed to demonstrate that,
by not offering his own testimony, confidence in the outcome
of the trial was undermined. Accordingly, Ground Two is
without merit and is DENIED.
Exh. 15 at 525-526 (emphasis in original).
The Court finds that the Florida court’s denial of postconviction relief did not result
in a decision that was “contrary to, or involved an unreasonable application of” Strickland,
or “in a decision that was based on an unreasonable determination of the facts in light of
the evidence presented” in the Florida court.

Significantly, the postconviction court

reasonably determined that Petitioner could not demonstrate deficient performance of
counsel or prejudice stemming from Petitioner’s failure to testify because the jury would
have likely learned about Petitioner’s prior felonies (considering he couldn’t remember

- 15 -

how many felonies he had during the evidentiary hearing) and the overwhelming evidence
of his guilt.

Accordingly, Petitioner is denied relief on Ground Four because the

postconviction court’s decision was not contrary to, or involved an unreasonable
application of” Strickland, or “in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented” in the Florida court.
E. Grounds Five
Petitioner alleges that the state court erred in denying his counsel’s request for a
jury instruction on heat of passion. Petition at 15. Petitioner contends that the jury
instructions only contained the term “heat of passion” once. Id. Petitioner states that
the jury was instructed that if they found Petitioner acted in the heat of passion, the killing
would be excusable and lawful, but the verdict form only gave the choice of being guilty
of homicide or acquitted. Id.
In Response, Respondent contends that the Petition does not allege a violation of
Petitioner’s federal constitutional rights. Thus, Respondent argues that Petitioner is not
entitled to federal habeas corpus relief on a matter concerning only state law. Response
at 15.
Based on a review of the record and binding precedent, the Court finds the claim
is unexhausted and procedurally defaulted. Petitioner raised this claim on direct appeal
(ground one), but only alleged violations of State law. Exh. 6. Petitioner did not argue
that he was denied “due process” or denied a “fair trial” under federal law. Nowhere in
his direct appeal brief does Petitioner cite to United States Constitution or to any
Constitutional amendments. Florida law precludes Petitioner from now attempting to

- 16 -

raise the federal dimension of this issue before the State court. Consequently, the Court
finds Ground Five is unexhausted and procedurally defaulted.
F. Ground Six
Petitioner alleges counsel rendered ineffective assistance of counsel when
counsel failed to object to an incorrect and misleading jury instruction of the lesser
included offense of manslaughter. Petition at 16.
In Response, Respondent acknowledges that this claim is exhausted to the extent
that Petitioner raised this claim as his third ground for relief in his Rule 3.850 motion.
Response at 15. Respondent refers the Court to the postconviction court’s order of
denial and argues that the decision was not contrary to or an unreasonable application of
Strickland. Id. at 16.
The Court finds Ground Six is exhausted to the extent Petitioner raised this claim
as his third claim for relief in his Rule 3.850 motion and appealed the adverse result
thereafter. See Exh. 10 (Rule 3.850 motion); Exh. 13 (order from postconviction court
denying relief); Exh. 16 (appellate brief); Exh. 18 (appellate court order per curiam
affirming the decision).
In denying Petitioner relief on this claim, the postconviction court found as follows:
[Miller] asserts that trial counsel was ineffective in not
objecting to an alleged incorrect and misleading jury
instruction for the lesser-included offense of manslaughter.
[Miller] cites as support State v. Montgomery, 35 So. 3d 252
(Fla. 2010) where the Florida Supreme Court held that the
standard jury instruction on manslaughter by act improperly
required the burden of proof of intent to kill and the use thereof
constituted fundamental error.
However, unlike Montgomery, the facts in the case at bar are
distinguishable because the manslaughter jury instruction
given in his case gave the jury the option of finding
manslaughter by culpable negligence and thus did not

- 17 -

constitute error. See Barros-Dias v. State, 41 So. 3d 370,
372 (Fla. 2d DCA 2010); Cubelo v. State, 41 So. 3d 263 (Fla.
3d DCA 2010); Singh v. State, 36 So. 3d 848 (Fla. 4th DCA
2010). Attached hereto is a copy of the portion of the
transcript at which this instruction was read. (Tr. 806:14808:5). Counsel had no basis upon which to object, and
cannot be deemed ineffective for failing to raise a meritless
issue. Teffeteller v. Dugger, 734 So. 2d 109, 1023 (Fla.
1999). [Miller] failed to allege any facts that, if true, satisfy
either prong of Strickland. As a matter of law and based
upon the facts alleged, the Court finds that trial counsel cannot
be found to have been ineffective within the meaning of
Strickland, in not objecting to the jury instruction of
manslaughter.
Exh. 13. at 391-392.
The Court finds that the Florida court’s denial of postconviction relief did not result
in a decision that was “contrary to, or involved an unreasonable application of” Strickland,
or “in a decision that was based on an unreasonable determination of the facts in light of
the evidence presented” in the Florida court.

Significantly, the postconviction court

reasonably determined that Petitioner could not demonstrate deficient performance of
counsel or prejudice stemming from defense counsel’s failure to object to the jury
instruction because such an objection would have been meritless.

Accordingly,

Petitioner is denied relief on Ground Six.
ACCORDINGLY, it is hereby
ORDERED:
1. The § 2254 Petition for Writ of Habeas Corpus (Doc. #1) is DENIED. Ground
One, Three, and Five are dismissed as unexhausted and procedurally defaulted.
Grounds Two, Four, and Six are denied.
2.

The Clerk of Court shall terminate any pending motions, enter judgment

accordingly, and close this case.

- 18 -

CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability on either petition. A prisoner seeking to appeal a district court's final order
denying his petition for writ of habeas corpus has no absolute entitlement to appeal but
must obtain a certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1); Harbison v.
Bell, 556 U.S. 180, 184 (2009). “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) or, that “the issues presented were adequate to deserve
encouragement to proceed further”, Miller-El v. Cockrell, 537 U.S. 322, 335-36
(2003)(citations omitted).

Petitioner has not made the requisite showing in these

circumstances. Finally, because Petitioner is not entitled to a certificate of appealability,
he is not entitled to appeal in forma pauperis.
DONE and ORDERED in Fort Myers, Florida on this 21st day of September, 2016.

FTMP-1
Copies: All Parties of Record

- 19 -