Lawson v. Secretary, DOC et al

Filing 24

OPINION AND ORDER dismissing Florida Attorney General as a named respondent; dismissing Claim One of 1 Petition for writ of habeas corpus as unexhausted, and denying Claims Two through Five on the merits. Claim Six is dismissed as unexhausted , or alternatively, denied on the merits. The case is dismissed with prejudice. A certificate of appealability is denied. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 9/26/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICAH L. LAWSON,
Petitioner,
v.

Case No:

2:16-cv-85-FtM-29MRM

SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents. 1
/
OPINION AND ORDER
This matter comes before the Court on a petition for habeas
corpus relief filed pursuant to 28 U.S.C. § 2254 by Micah L. Lawson
(“Petitioner” or “Lawson”), a prisoner of the Florida Department
of

Corrections

(Doc.

1,

filed

February

1,

2016).

Lawson,

proceeding pro se, attacks the convictions and sentences entered
against him by the Twentieth Judicial Circuit Court in Lee County,
Florida for aggravated burglary. Id.
to the petition (Doc. 14).

Respondent filed a response

Petitioner filed a reply (Doc. 22),

and the matter is now ripe for review.

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.

Upon due consideration of the pleadings and the state court
record, the Court concludes that each claim must be dismissed or
denied.

Because the petition is resolved on the record, an

evidentiary hearing is not warranted.

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 and Procedural History 2

On November 20, 2008, Lawson was charged by information with
first degree burglary, in violation of Florida Statute § 810.02
(count one); lewd or lascivious battery upon an elderly person or
disabled adult, in violation of Florida Statute § 825.1025(2)
(count two); and abuse of an elderly person or disabled adult, in
violation of Florida Statute § 825.102(1) (count three) (Ex. A1).
On April 16, 2009, a jury found Lawson guilty as charged on each
count (Doc. 1-5).

The trial court sentenced him to 65 years in

prison on count one, fifteen years on count two, and five years in
prison on count three (Ex. A3).

Florida’s Second District Court

of Appeal affirmed Lawson’s sentence on count one, but dismissed
his convictions on counts two and three as barred by the statute

2

Unless otherwise indicated, citations to exhibits and appendices
are to those filed by Respondent on August 4, 2016 (Doc. 16). The
trial transcript, located in Exhibit A5 will be cited as (T. at
__).
The transcript of the evidentiary hearing on Plaintiff’s
Rule 3.850 motion, located in Exhibit D4, will be cited as (EH at
__).
2

of limitations (Ex. A4); Lawson v. State, 51 So. 3d 1287 (Fla. 2d
DCA 2011).
Lawson filed a state habeas corpus petition on August 5, 2011
in which he argued that appellate counsel was ineffective for
failing to argue that the information’s charging language was
insufficient to support his 65-year sentence on the burglary count
(Ex. C).

Florida’s Second District Court of Appeal denied the

petition on November 15, 2011.

Lawson v. State, 75 So. 3d 1258

(Fla. 2d DCA 2011).
On May 24, 2012, Lawson filed a motion for post-conviction
relief pursuant to Rule 3.850 of the Florida Rules of Criminal
Procedure (“Rule 3.850 motion”).
summarily, denied (Ex. D3).

Ground Six of the motion was

After holding an evidentiary hearing

on the remaining claims, the post-conviction court denied the
motion (Ex. D3; Ex. D4). Florida’s Second District Court of Appeal
affirmed (Ex. D8).
Lawson filed the instant habeas petition on January 29, 2017
(Doc. 1).
II.
a.

Legal Standards

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:

3

(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). This standard is both mandatory and difficult
to meet.

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

Notably,

a state court’s violation of state law is not sufficient to show
that a petitioner is in custody in violation of 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
4

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
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
5

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.
Notably,

even

when

the

opinion

of

a

lower

state

post-

conviction court contains flawed reasoning, the federal court must
give the last state court to adjudicate the prisoner’s claim on
the merits “the benefit of the doubt.” Wilson v. Warden, Ga.
Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016), cert.
granted Wilson v. Sellers, 137 S. Ct. 1203 (Feb. 27, 2017).
state

court’s

summary

rejection

of

a

claim,

even

A

without

explanation, qualifies as an adjudication on the merits which
warrants deference.
(11th Cir. 2008).

Ferguson v. Culliver, 527 F.3d 1144, 1146
Therefore, to determine which theories could

have supported the state appellate court’s decision, the federal
habeas court may look to a state post-conviction court’s previous
opinion as one example of a reasonable application of law or
determination of fact; however, the federal court is not limited
to assessing the reasoning of the lower court. Wilson, 834 F.3d at
1239.

6

Finally, when reviewing a claim under § 2254(d), a federal
court must bear in mind that any “determination of a factual issue
made by a State court shall be presumed to be correct[,]” and the
petitioner bears “the burden of rebutting the presumption of
correctness

by

clear

and

convincing

evidence.”

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, 563 U.S. 170
(2011)).

7

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

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

by

Indeed, the petitioner bears the heavy burden to
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

undermine

outcome.” Strickland, 466 U.S. at 694.
8

A reasonable probability
confidence

in

the

c.
The

AEDPA

Exhaustion and Procedural Default
precludes

federal

courts,

absent

exceptional

circumstances, from granting habeas relief unless a petitioner has
exhausted

all

means

of

available

relief

under

state

law.

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.

Snowden v. Singletary,

135 F.3d 732 (11th Cir. 1998).
In

addition,

a

federal

habeas

court

is

precluded

from

considering claims that are not exhausted and 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 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).

9

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).
A petitioner can avoid the application of procedural default
by establishing objective cause for failing to properly raise the
claim

in

state

court

and

actual

prejudice

from

the

alleged

constitutional violation. Spencer v. Sec’y, Dep’t of Corr., 609
F.3d 1170, 1179–80 (11th Cir. 2010).

To show cause, a petitioner

“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);
Murray v. Carrier, 477 U.S. 478 (1986).

To show prejudice, a

petitioner must demonstrate there is a reasonable probability the
outcome of the proceeding would have been different. Crawford v.
Head, 311 F.3d 1288, 1327–28 (11th Cir. 2002).
A 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).

Murray v. Carrier, 477 U.S.

Actual innocence means factual innocence, not
10

legal insufficiency.
(1998).

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).

“To 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
Florida’s Second District Court of Appeal described the facts
surrounding Lawson’s arrest as follows:
On the evening of January 26, 2003, a young
man broke into the home of a seventy-six-yearold woman in Lee County. The intruder
committed a sexual assault on the elderly
resident.
The
identity
of
the
woman's
assailant remained undetermined for several
years.
In November 2008, the Florida Department of
Law Enforcement notified the Lee County
Sheriff's Office that DNA evidence obtained
from the victim's person matched Mr. Lawson's
DNA. On November 20, 2008, the State Attorney
for the Twentieth Judicial Circuit filed an
information charging Mr. Lawson with three
crimes arising out of the incident: count one,
burglary of a dwelling with assault or battery
in violation of section 810.02(2), Florida
Statutes
(2002),
a
first-degree
felony
punishable by life; count two, lewd or
lascivious battery upon an elderly person in
violation of section 825.1025(2), Florida
Statutes (2002), a second-degree felony; and
count three, abuse of an elderly person in

11

violation of section
degree felony.
Lawson, 51 So. 3d at 1288.

825.102(1),

a

third-

Lawson now urges that trial counsel

Christopher Whitney and Tiffany Chewning (collectively, “Counsel”)
were ineffective for: (1) failing to object to a flawed charging
instrument, to faulty jury instructions, and to his enhanced
sentence; (2) interfering with Lawson’s right to testify on his
own behalf; (3) failing to move to dismiss counts two and three of
the information as barred by the statute of limitations; (4)
failing to object to the trial court’s unfair time limit on closing
argument; and (5) failing to call Amber Lewis as a witness (Doc.
1).

Lawson also asserts that his acquittal on counts two and three

resulted in an inconsistent verdict, in contradiction of due
process.

Id.

Each claim will be addressed separately.
a.

Claim One

Lawson raises three separate issues in Claim One.

First, he

asserts that Counsel was ineffective for failing to object to the
charging information because “there is no such ‘offense’ as First
Degree Burglary found in the Florida [Statutes].” (Doc. 1 at 4)
(emphasis

in

original).

Specifically,

he

argues

that

the

information is unclear as to whether he “[had] an ‘intent’ or did
he actually commit an assault and/or battery[?]”
original).

Id. (emphasis in

Next, Lawson urges that the jury instructions were

incomplete because they did not specifically inform the jury that

12

it must find he actually committed an assault or battery in order
to find him guilty of first degree burglary (as opposed to generic
burglary).

Id.

Finally, Lawson argues that his sentence was

“enhanced” without a jury finding of the enhancement factors, in
violation of Apprendi.

Id.

Respondent notes that Lawson did not raise these claims in
state court and that they are unexhausted as a result (Doc. 14 at
7).

However,

Respondent

recognizes

that

certain

ineffective

assistance of trial counsel claims can be raised for the first
time in a § 2254 petition.

Id.

In Martinez v. Ryan, 132 S. Ct.

1309 (2012) the United State Supreme Court held:
Where, under state law, claims of ineffective
assistance of trial counsel must be raised in
an initial-review collateral proceeding, a
procedural default will not bar a federal
habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the
initial-review collateral proceeding, there
was no counsel or counsel in that proceeding
was ineffective.
Id. at 1320.

Under Martinez, a petitioner must still establish

that his underlying ineffective assistance claim is “substantial”
— that is, that it has “some merit” — before the procedural default
can be excused.
Each

of

Martinez, 132 S. Ct. at 1318-19.
Claim

One’s

ineffective

assistance

claims

are

unexhausted because they are not “substantial.” Therefore, the
claims do not fall within Martinez’ equitable exception to the
procedural bar.
13

Information
Lawson’s construed assertion that the charging information
was unconstitutionally vague because “[t]he information alleges no
positive accusation to the fact as required to be adequately
noticed of the charge to defend against” is unavailing (Doc. 1 at
4) (emphasis in original).

Under Florida law, an information may

be quashed for vagueness on a motion to dismiss, only if it is “so
vague, indistinct and indefinite as to mislead the accused and
embarrass him in the preparation of his defense or expose him after
conviction or acquittal to substantial danger of a new prosecution
for the same offense.”

State v. Dilworth, 397 So. 2d 292, 293

(Fla. 1981) (quoting Fla. R. Crim. P. 3.140(o)).
The charging information in this case listed “First Degree
Burglary, F.S. 810.02, PBL Felony” as count one and alleged that
Lawson:
On or about January 26, 2003 in Lee County,
Florida, did unlawfully enter or remain in a
certain conveyance, to-wit: dwelling, the
property of [the victim] as owner or custodian
thereof, with the intent to commit an offense
therein,
to-wit:
battery
and/or
sexual
battery, or made an assault or battery upon
[the victim] in the dwelling, contrary to
Florida Statute 810.02.
(Ex. A1).

Here, the state charged Lawson with first-degree felony

burglary by including in the charging language the allegation that,
during the course of the burglary, Lawson either had the intent to

14

commit, or actually did commit, battery or sexual battery upon the
victim.

Id. 3

Given that the information clearly and completely described
the charges against Lawson, reasonable competent counsel could
have concluded that Lawson’s charging information did not suffer
from any defect described in Dilworth, and as a result, there were
no grounds on which to challenge the information’s clarity.

See

Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (counsel
is not ineffective for failing to raise issues that clearly lack
merit).

Moreover,

Lawson

has

not

explained

what

would

have

prevented the state from simply filing an amended information had
Counsel objected; accordingly, he has not demonstrated Strickland
prejudice.

Because Lawson has failed to satisfy either Strickland

prong, the first portion of Claim One is not “substantial” so as
to excuse Lawson’s default.
Jury Instructions
Equally unavailing is Lawson’s argument that Counsel was
ineffective for failing to object to the jury instructions. He
argues

that

the

instruction

for

first

degree

burglary

was

incomplete because it did not specifically include a requirement
that the jury find that he committed an assault or battery.

First,

Lawson’s assertion that there is no such offense as “First Degree

3

In counts two and three of the information, the specific facts
surrounding the alleged assault were described (Ex. A1).
15

Burglary” in the Florida statutes makes little sense (Doc. 1 at
4).

Under Florida law, burglary can be a first, second, or third-

degree felony, depending upon the facts and circumstances of the
crime.

See Fla. Stat. § 810.02 (2003).

“burglary”

means,

“[e]ntering

a

Under this statute,

dwelling,

structure,

or

a

conveyance with the intent to commit an offense therein, unless
the premises are at the time open to the public or the defendant
is licensed or invited to enter[.]”

Id. at § 810.02 (1)(b)(1).

Burglary is a felony of the first degree if, in the course of
committing the offense, the offender inter alia “[m]akes an assault
or battery upon any person[.]”

Id. at § 810.02(2)(a).

Next, Lawson’s assertion that the jury was not instructed
that it had to find he committed an assault or battery after
entering the victim’s home is untrue.

The jury was properly

instructed that:
To prove the crime of first degree burglary,
the State must prove the following two
elements beyond a reasonable doubt:
1.
That
Micah
Lynn
Lawson
entered
a
conveyance owned by or in the possession of
[the victim].
2.
At the time of entering the conveyance,
Micah Lynn Lawson had the intent to commit an
offense of battery and/or sexual battery in
that conveyance.

16

(T.

at

469).

The

trial

court

then

defined

“intent”

and

“conveyance” 4 and stated that:
If you find Micah Lynn Lawson guilty of
burglary, you must also determine if the State
has proved beyond a reasonable doubt whether
in the course of committing the burglary Micah
Lynn Lawson assaulted any person.
An “assault” is an intentional and unlawful
threat either by word or act to do violence to
another at the time when the defendant
appeared to have the ability to carry out that
threat, and his act created a well-founded
fear in the other person that violence was
about to take place.
If you find Micah Lynn Lawson guilty of
burglary, you must also determine if the State
has proved beyond a reasonable doubt whether
in the course of the burglary Micah Lynn
Lawson – Lawson, excuse me, battered any
person.
A “battery” is an actual and intentional
touching or striking of a person, against that
person’s will, or the intentional causing of
bodily harm to another person.
(T. at 470-71).

After the trial court gave the instruction for

first degree burglary, the jury was instructed on the elements of
the lesser-included crime of burglary (T. at 472-73).
Given the above, reasonable competent counsel could have
concluded that the jury was properly instructed on the elements of
first degree battery and on the elements of the lesser-included
crime of simple battery.

Moreover, even had Counsel objected to

4

The victim lived in a mobile home. Later, the jury was instructed
that it had to determine whether the conveyance was a dwelling (T.
at 471).
17

the jury instructions, the Court would have either overruled the
objection (because the instructions were correct) or, to the extent
they were ambiguous, merely corrected them; accordingly, Lawson
has not demonstrated Strickland prejudice.

Because Lawson has

failed to satisfy either Strickland prong, this part of Claim One
is not “substantial” so as to excuse Lawson’s default.
Apprendi Claim
Also without merit is Lawson’s claim that his sentence was
unlawfully enhanced, in violation of Apprendi v. New Jersey, 530
U.S. 466 (2000).

He urges that the jury’s verdict does not reflect

the findings necessary to support a sentence in excess of the
statutory maximum for simple burglary because the jury did not
specifically find that he committed the requisite assault or
battery (Doc. 1 at 5).

Indeed, a finding of whether an assault

or battery occurred during the course of a burglary is a fact that
increases the penalty for a crime beyond the statutory maximum for
Apprendi purposes.

See Gonzalez v. State, 876 So. 2d 658, 661

(Fla. 3d DCA 2004).

Therefore, the jury would have to find beyond

a reasonable doubt that an assault or battery occurred.
530 U.S. at 466.

Apprendi,

In the instant case, the jury specifically found

Lawson guilty of “lewd or lascivious battery upon elderly person
or disabled adult.” (Doc. 1-5).

Accordingly, Counsel would have

18

had no reason to make an Apprendi objection, and this claim is not
“substantial” so as to excuse Lawson’s procedural default. 5
Because none of the ineffectiveness claims raised in Claim
One are “substantial,” they cannot excuse Lawson’s failure to
exhaust them in state court. Martinez, 132 S. Ct. at 1318-20.

Nor

has Lawson presented new, reliable evidence indicating that the
actual innocence exception would apply to excuse his default of
this claim.

All issues raised in Claim One are dismissed as

unexhausted.
b.

Claim Two

Lawson asserts that Counsel was ineffective for advising him
against testifying at trial, even though he “expressed a desire to
do so on several occasions.” (Doc. 1 at 7).

Lawson raised this

claim in his Rule 3.850 motion, and the post-conviction court held
an evidentiary hearing on the claim (Ex. D4).

5

Petitioner argues that because his conviction for lewd and
lascivious battery upon an elderly person or disabled adult was
set aside on direct appeal as barred by the statute of limitations,
the jury’s finding that he committed the lewd and lascivious
battery cannot support a first degree burglary charge (Doc. 22 at
9).
However, the statute for first-degree burglary does not
require that the defendant be convicted of battery, only that the
defendant did, in fact, commit the battery.
See Fla. Stat. §
810.02(2)(a)(2002). The jury found beyond a reasonable doubt that
Petitioner committed lewd or lascivious battery on the victim, and
Florida’s Second District Court of Appeal determined that
Petitioner’s first-degree burglary charge would stand, despite the
dismissal of counts two and three on statute of limitations
grounds.
Lawson, 51 So. 3d at 1288 (affirming Petitioner’s
judgment and sentence on the burglary charge).
19

At the hearing, Lawson testified that he was unaware he had
the right to testify, and that had he done so, he would have
testified that he had consensual sex with the victim (Ex. D4 at
44).

Defense Counsel Whitney testified that he advised Lawson not

to testify because his criminal history would be used to impeach
him and because “the benefit gained from a defendant testifying is
usually outweighed by the – how that’s perceived with the jury.”
Id. at 53.
have

Counsel Whitney also believed that the state could

impeached

enforcement.

Lawson

Id.

with

prior

statements

he

made

to

law

Counsel Whitney stated that he had explained to

Lawson that it was his choice whether to testify and that he could
do so, despite Counsel’s recommendation that he not.

Id. at 66.

Defense Counsel Chewning testified that she had discussed with
Lawson his right to testify at trial, but advised him that it was
not a good idea.

Id. at 80.

Lawson had told her that he did not

remember what had happened on the night of the crime because he
was doing a lot of drugs at the time.

Id. at 81.

Counsel Chewning that “DNA doesn’t lie.”

Id.

He admitted to

Lawson never told

Chewning that he had consensual sex with the victim.

Id. at 82.

In a detailed order, the post-conviction court denied this
claim, concluding that:
Having heard the benefit of the testimony and
having had the opportunity to observe the
demeanor of all the witnesses, this Court
finds counsel to be credible and that
Defendant made the decision not to testify
20

because he could not remember the night at
issue, the attorneys advised him not to
testify and Defendant accepted that advice,
and their trial strategy should the recording
[of the victim’s 9-1-1 call] be admitted was
to attack the State’s case through crossexamination of the witnesses. Additionally,
this Court finds that that counsel’s trial
strategy was not unreasonable and counsel was
not ineffective for advising Defendant not to
testify. Defendant has failed to demonstrate
any entitlement to relief.
. . .
At the hearing, Attorney Chewning testified
that Defendant knew he had the right to
testify and that she had explained to him that
the decision was his alone to make and that
his attorneys could not make it for him.
Attorney Whitney testified that he had
explained to Defendant that he had an absolute
right to testify. Having had the benefit of
the testimony and having had the opportunity
to observe the demeanor of all the witnesses,
this Court finds counsel to be credible and
that Defendant had been advised of his right
to testify, that it had been stressed to him
that the decision was his alone to make, that
the attorneys advised him not to testify, and
that
Defendant
accepted
that
advice.
Defendant has failed to demonstrate any
entitlement to relief.
(Doc. 1-1 at ¶ 5-7) (citations to the record omitted).
Second

District

Court

of

Appeal

affirmed

court’s rejection of Claim Two (Ex. D8).

the

Florida’s

post-conviction

The silent affirmance of

the post-conviction court’s ruling is entitled to deference, and
the Court must determine whether any arguments or theories could
have supported the state appellate court’s decision. Wilson, 834
F.3d at 1235.
21

A defendant's right to testify at a criminal trial is a
fundamental and personal right that cannot be waived by defense
counsel. See United States v. Teague, 953 F.2d 1525, 1532 (11th
Cir. 1992).

In Teague, the Eleventh Circuit held that it is

defense counsel's responsibility to advise the defendant of this
right and the strategic implications and “that the appropriate
vehicle for claims that the defendant's right to testify was
violated by defense counsel is a claim of ineffective assistance
[under Strickland].” Id. at 1534.

The Teague court reasoned that

an attorney's performance would be deficient under the first prong
of the Strickland test if counsel refused to accept the defendant's
decision to testify and would not call him to the stand or,
alternatively, if defense counsel never informed the defendant of
the right to testify and that the ultimate decision belonged to
the

defendant.

Id.

In

Teague,

the

defendant's

ineffective

assistance of counsel claim was rejected because the trial court
found that counsel had advised the defendant of his right to
testify, had advised him that he should not exercise that right,
and the defendant did not protest. Teague, 953 F.2d at 1535.
Claim Two suffers from the same defect as the ineffective
assistance claim in Teague; specifically, it fails because Counsel
informed Lawson of his right to testify, advised him against doing
so, and Lawson accepted Counsel’s strategic advice.

The post-

conviction court’s determination that Counsel Whitney and Counsel
22

Chewning were more credible than Lawson and had explained to him
his right to testify are factual determinations that Lawson must
rebut by clear and convincing evidence before he is entitled to
relief on this claim.

See Freund v. Butterworth, 165 F.3d 839,

862 (11th Cir. 1999) (questions of credibility and demeanor of a
witness

is

a

question

of

fact);

28

U.S.C.

§

2254(e)(1)(a

determination of a factual issue made by a State court shall be
presumed

correct

unless

rebutted

by

clear

and

convincing

evidence); Gore v. Sec'y, Dep't of Corr., 492 F.3d 1273, 1300 (11th
Cir. 2007) (recognizing that while a reviewing court also gives a
certain amount of deference to credibility determinations, that
deference is heightened on habeas review).
Lawson offers nothing to rebut the state court’s factual
finding that Counsel informed him of his right to testify.

In

fact, Lawson actually told the trial court that it was his own
decision not to testify, and he does not now explain why he lied
to the trial court (T. at 441).

In addition, upon review of the

trial transcript, the Court concludes that reasonable competent
Counsel
Lawson’s

would

have

advised

inconsistent

Lawson

statements

to

against
the

testifying

police

and

due

to

Lawson’s

statement to Chewney that he could not remember what had happened
at trial. Accordingly, Lawson fails to show Counsel’s deficient
performance.

23

Moreover,

Lawson

cannot

demonstrate

prejudice.

Had

he

testified, the jury would have learned that Lawson was a convicted
felon.

See Fla. Stat. § 90.610(a) (“A party may attack the

credibility of any witness, including an accused, by evidence that
the witness has been convicted of a crime if the crime was
punishable by death or imprisonment in excess of 1 year under the
law under which the witness was convicted, or if the crime involved
dishonesty or a false statement regardless of the punishment[.]”).
In addition, although he now argues that he would have testified
that his sexual encounter with the victim was consensual, the jury
heard Lawson tell the investigating detective prior to his arrest
that he had no idea how his DNA was found in the victim’s house or
on the victim’s body (T. at 415, 417).

The prosecution would have

certainly sought to impeach Lawson’s statement that the encounter
was consensual with Lawson’s own statement denying that he was
even in the victim’s home.

The prosecution would also have

highlighted the fact that the victim called 9-1-1 and told the
operator that she had been raped.

Given Lawson's motivation to

frame his testimony in a favorable light and the strong evidence
against him, his self-serving statements would have had limited
credibility with the jury.
Claim Two fails to satisfy either prong of Strickland, and
the state courts’ rejection of this claim was neither contrary to
clearly established federal law nor based upon an unreasonable
24

determination of the facts.

Claim Two is denied.

28 U.S.C. §

2254(d).
c.

Claim Three

Lawson asserts that Counsel was ineffective for failing to
move to dismiss counts two and three of the information as barred
by the statute of limitations (Doc. 1 at 10).

He urges that, had

the state not been allowed to try him on the lewd and lascivious
assault and the abuse charges “the court could not have increased
his sentence to 65 years because there would not have been any
evidence of a battery or an assault.”

Id.

Lawson raised this claim in his Rule 3.850 motion, and it was
denied by the post-conviction court (Doc. 1-1 at 9-10).
conviction

court

determined

that,

due

to

a

great

The postamount

of

confusion as to the applicable statute of limitations when DNA
evidence

is

uncovered

long

after

the

commission

of

a

crime,

Counsel’s failure to move for dismissal of counts two and three
was not constitutionally deficient. Id. The post-conviction court
also determined:
However, to the extent that Defendant claims
that his sentence is illegal, this Court notes
that even with the deletion of the points
assessed for Counts 2 and 3, this Court could
still have imposed a life sentence for the
conviction of burglary with assault or battery
(Count 1) pursuant to Fla. Stat. § 810.02. As
this
Court
presided
over
Defendant's
sentencing, it now finds that it would have
imposed the same sentence of 65 years for the
conviction of Count 1, regardless of the
25

deletion of
scoresheet.
Id. at 10.

Counts

2

and

3

from

the

Florida’s Second District Court of Appeal affirmed the

post-conviction court’s denial of Claim Three (Ex. D8). The silent
affirmance of the post-conviction court’s ruling is entitled to
deference, and the Court must determine whether any arguments or
theories

could

have

supported

the

state

appellate

court’s

decision. Wilson, 834 F.3d at 1235.
It is unnecessary for this Court to consider whether Counsel’s
performance
clearly

was

fails

constitutionally
to

satisfy

adequate

Strickland’s

because

Claim

prejudice

Three
prong.

Strickland, 466 U.S. 697 (“[T]here is no reason for a court
deciding an ineffective assistance claim to . . . address both
components of the inquiry if the defendant makes an insufficient
showing on one.”).

The post-conviction judge, who also presided

over Lawson’s trial and sentencing, has already told us what would
have happened if Counsel had successfully moved to remove counts
two and three from the information -- Lawson would have still
received a sixty-five year sentence on count one.

Accordingly,

Lawson cannot demonstrate Strickland prejudice, and Claim Three is
denied. 6

6

To the extent Petitioner believes the state could not have
presented evidence of the sexual battery if he had not been charged
with count two, he is wrong. Evidence of the lewd and lascivious
sexual battery upon the victim was relevant and would have been
admissible at trial because it was an element of count one. See
26

b.

Claim Four

Lawson asserts that Counsel was ineffective for failing to
object to the “unreasonable” time restriction the trial court
placed on Counsel’s closing argument (Doc. 1 at 11).

He asserts

that Counsel was only allowed half as much time in closing as the
prosecutor.

Id.

Lawson does not explain what was left out of his

closing argument as a result of the unreasonable time restriction.
Lawson raised this claim in his Rule 3.850 motion, and after
an evidentiary hearing, the post-conviction court denied the claim
(Doc. 1-1 at 14).

The post-conviction court noted:

At the hearing, Defendant testified that
Attorney Whitney spoke for less than ten
minutes in closing arguments.
Attorney
Whitney testified that he did not recall being
limited in time, and that his comment about
completing his closing argument within ten
minutes was his attempt to be humorous.
He
stated that both the State and the defense had
had the same amount of time for closing
arguments and that had he felt as if addition
time had been needed, he would have taken it.
Having had the benefit of the testimony and
having had the opportunity to observe the
demeanor of all the witnesses, the Court finds
counsel to be credible and that the trial
court and the parties were joking about the
ten-minute time limit.

Fla. Stat. § 810.10(2)(1); discussion supra Claim One; discussion
infra Claim Six. Petitioner has presented no authority for his
apparent assertion that the running of the statute of limitations
on a crime bars presentation of evidence on all aspects of that
crime when the evidence is relevant to an element of a separate
crime.
27

Id. at 14 (citations to the record omitted).

Florida’s Second

District Court of Appeal affirmed without a written opinion (Ex.
D8).

The silent affirmance of the post-conviction court’s ruling

is entitled to deference, and the Court must determine whether any
arguments or theories could have supported the state appellate
court’s decision. Wilson, 834 F.3d at 1235.
Lawson has not rebutted by clear and convincing evidence the
post-conviction court’s factual finding that Counsel’s comment
that he “could do [closing argument] in ten, but [the court
reporter] won’t like having to type it all down” (T. at 442) was
a joke. Counsel Whitney specifically stated that his comment about
speeding through closing in ten minutes was made in jest, in an
attempt “to be humorous with [the court reporter]” and that his
“sarcastic sense of humor . . . never seems to” come across in a
transcript (EH at 59).

Counsel Whitney stated that he was not

limited in the amount of time for closing, and that he would have
objected if the trial court had imposed such a limitation.

Id. at

58-59. Counsel stated that he was able to make an adequate closing
argument in the time allotted.

Id. at 58.

Lawson has not pointed

to anything he believes Counsel omitted from his closing argument
or explained how the outcome of his trial would have differed had
Counsel made a longer closing argument.
demonstrated

neither

deficient

28

Accordingly, Lawson has

performance

nor

resulting

prejudice, and the state courts’ adjudication of Claim Four was
objectively reasonable.
Claim Four fails to satisfy either Strickland prong and is
denied pursuant to 28 U.S.C. § 2254.
e.

Claim Five

Lawson asserts that Counsel was ineffective for failing to
call Amber Lewis as a witness to testify that she dropped Lawson
off at the victim’s home on the night of the crime and that the
victim allowed Lawson into her home (Doc. 1 at 13-14).

Lawson

asserts that he informed Counsel of Lewis’ potential testimony and
told him that it would take some time to find her due to the
passage of time since the burglary, but that Counsel wanted to
proceed to trial quickly because a new state prosecutor had been
assigned to the case, and Counsel hoped the prosecutor would be
unprepared for trial.

Id.

Lawson raised this claim in his Rule 3.850 motion, and it was
summarily denied by the post-conviction court on the ground that
Lawson could not demonstrate prejudice.

The post-conviction court

concluded that Lewis’ proposed testimony was irrelevant to the
issue

of

commission

consent
of

the

because

Lewis

was

alleged

crime

(Ex.

not

present

D3).

District Court of Appeal affirmed (Ex. D8).

during

Florida’s

the

Second

The silent affirmance

of the post-conviction court’s ruling is entitled to deference,
and the Court must determine whether any arguments or theories
29

could have supported the state appellate court’s decision. Wilson,
834 F.3d at 1235.
Lawson offers nothing to support his claim that Lewis would
have testified in his favor.

In fact, his petition is devoid of

any evidence that she would have even testified as Lawson now
suggests. “[E]vidence 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) (footnotes omitted);
accord Dottin v. Sec’y, Dep’t of Corr., No. 8:07–CV–884–T–27MAP,
2010 WL 3766339, at *6 (M.D. Fla. Sept. 16, 2010).
Lawson

has

not

met

his

burden

of

Accordingly,

demonstrating

Strickland

prejudice.
Moreover, Lawson told Counsel that he would “need some time”
to locate Amber Lewis; however, Counsel believed that enforcing
Lawson’s speedy trial rights would be to his tactical advantage
because the newly-appointed prosecutor would be less prepared for
trial.

The Supreme Court has instructed that, “a court must

indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that is, the
defendant

must

overcome

the

presumption

that,

under

the

circumstances, the challenged action might be considered sound
30

trial strategy.” Strickland, 466 U.S. at 689 (quotation marks and
citation omitted); see also Waters v. Thomas, 46 F.3d 1506, 151819 (11th Cir. 1995) (observing that “[w]e cannot, and will not,
second guess” the “strategic decisions trial counsel are called
upon to make”).

Given the DNA evidence against Lawson and his

prior statement to the police denying any responsibility for the
break-in or the sexual assault, Counsel reasonably determined that
Lawson was better off forcing a speedy trial in the hope that the
prosecutor would be unprepared.

Lawson has satisfied neither

Strickland prong and is not entitled to relief on Claim Five.
f.

Claim Six

Lawson asserts that his constitutional rights to due process
were violated because Florida’s Second District Court of Appeal
vacated his convictions on counts two and three as barred by the
statute of limitations, but did not concomitantly vacate his
conviction on count one (Doc. 1 at 15).

Lawson asserts that the

dismissal of his sexual battery charges on statute of limitation
grounds was an “acquittal” on those charges, and therefore, his
sexual battery of the victim can no longer support his conviction
for first degree burglary.

Id.

Respondent urges that this claim is unexhausted because it
was never raised in state court (Doc. 14 at 31).

Indeed, in his

brief on direct appeal, Lawson argued only that his convictions on
counts two and three should be vacated due to the expiration of
31

the statute of limitations (Ex. B1).
Lawson’s

burglary

limitations
extended

count

because

under

the

Florida

was

not

barred

limitations
Statute

availability of DNA evidence.

§

The brief conceded that
by

period

the
for

775.15(16) 7

statute
burglary

due

to

the

of
was
new

Id. at 9.

Lawson recognizes that this claim is unexhausted, but urges
that appellate counsel was ineffective for failing to raise it
(Doc. 22 at 15-16).

Although ineffective assistance of appellate

counsel can operate to provide cause for the procedural default of
a claim of trial court error, Lawson must have first exhausted the
underlying

ineffective

assistance

of

appellate

counsel

claim,

which he did not do. See Edwards v. Carpenter, 529 U.S. 446, 45051 (2000) (concluding that a federal habeas court is barred from
considering a procedurally defaulted ineffective assistance of
counsel claim as cause for procedural default of another claim);
Hill v. Jones, 81 F.3d 1015, 1029–31 (11th Cir. 1996) (noting that
the Supreme Court's jurisprudence on procedural default dictate
that

procedurally

defaulted

claims

7

of

ineffective

assistance

This statute provides that a prosecution for burglary “may be
commenced at any time after the date on which the identity of the
accused is established, or should have been established by the
exercise
of
due
diligence,
through
the
analysis
of
deoxyribonucleic acid (DNA) evidence, if a sufficient portion of
the evidence collected at the time of the original investigation
and tested for DNA is preserved and available for testing by the
accused.” Fla. Stat. § 775.15(16)(a)(5).
32

cannot serve as cause to excuse a default of a second claim). 8

Nor

has Lawson presented new, reliable evidence to support an actual
innocence claim. Schlup, 513 U.S. at 324.

Consequently, the

ineffective assistance of appellate counsel claim, raised for the
first time on federal habeas review, does not satisfy the cause
and prejudice, or fundamental miscarriage of justice exception
necessary

to

overcome

the

procedural

default

of

Claim

Six.

Consequently, Claim Six is unexhausted and must be dismissed.
Even if Claim Six had been exhausted, Lawson is not entitled
to federal habeas corpus relief.

28 U.S.C. § 2254(b)(2)(“An

application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.”).
not

identified,

established

and

this

federal

law

Court

has

not

recognizing

found,
that

a

Lawson has
any

clearly

defendant’s

constitutional rights are violated when evidence of a crime (which
would be barred from prosecution under the statute of limitations)
is used to prove the elements of a different crime that is not
barred from prosecution. 9

This failure alone is sufficient to

8

Although Petitioner again raises Martinez to excuse his failure
to raise his ineffective assistance of appellate counsel claim,
the United States Supreme Court has recently held that Martinez
applies exclusively to ineffective assistance of trial counsel
claims. Davila v. Davis, 137 S. Ct. 2058 (2017).
9

The cases offered by Petitioner consider whether an acquittal on
any ground (including the statute of limitations) bars a retrial
33

defeat a § 2254 habeas claim. 28 U.S.C. § 2254(d)(1). Accordingly,
in addition to being unexhausted, Claim Six is denied on the
merits.
Any of Lawson’s allegations not specifically addressed herein
have been found to be without merit.
Certificate of Appealability 10

IV.

Lawson is not entitled to a certificate of appealability.
prisoner

seeking

a

writ

of

habeas

corpus

has

no

A

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, Lawson must demonstrate that “reasonable jurists would

under the Double Jeopardy Clause of the United States Constitution.
The cases have nothing to do with whether evidence of a defendant’s
commission of a time-barred crime can be used to prove the elements
of a crime that is not barred from prosecution.
See Burks v.
United States, 437 U.S. 1 (1978); United States v. Oppenheimer,
242 U.S. 85 (1916) (finding the defendant’s second indictment on
bank fraud to be prohibited because an earlier indictment for the
same offense had been held to be barred by the statute of
limitations). Double Jeopardy is not at issue in this action.
10

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 Lawson is not entitled to habeas corpus relief, it must now
consider whether Lawson is entitled to a certificate of
appealability.
34

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. Lawson has not
made the requisite showing in these circumstances.
Because

Lawson

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 from this

action as a named Respondent.
2.

Claim One of the 28 U.S.C. § 2254 petition for habeas

corpus relief filed by Micah L. Lawson is dismissed as unexhausted.
Claims Two through Five are denied on the merits.

Claim Six is

dismissed as unexhausted or, alternatively, denied on the merits.
This case is dismissed with prejudice.
3.

Lawson 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 September, 2017.

35

26th

day

SA: OrlP-4
Copies: Micah L. Lawson
Counsel of Record

36