Scott v. Secretary, Department of Corrections
Filing
27
OPINION AND ORDER dismissing the Florida Attorney General as a named respondent; dismissing Claims 1, 2, 4, and 7 of 1 Petition for writ of habeas corpus with prejudice as unexhausted; alternatively denying Claims 2, 3, and 7 on the merits; a nd otherwise denying remaining claims on merits. A certificate of appealability and leave to appeal in forma pauperis are denied. The Clerk shall enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Judge John E. Steele on 10/24/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KASHON SCOTT,
Petitioner,
v.
Case No:
SECRETARY,
DEPARTMENT
CORRECTIONS,
2:16-cv-127-FtM-29MRM
OF
Respondent. 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 Kashon Scott
(“Petitioner”),
Corrections
a
(Doc.
prisoner
1,
filed
of
the
February
Florida
8,
Department
2016).
of
Petitioner,
proceeding through counsel, attacks the convictions and sentences
entered against him by the Twentieth Judicial Circuit Court in Lee
County,
Florida
for
aggravated
aggravated child abuse. Id.
petition (Doc. 18).
manslaughter
of
a
child
and
Respondent filed a response to the
Petitioner filed a reply (Doc. 23), 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
On June 21, 2007, the State of Florida charged Petitioner by
information with aggravated manslaughter of a child under the age
of eighteen, in violation of Florida Statute § 782.07(3) (count
one) and aggravated child abuse, in violation of Florida Statute
§ 827.03(2) (count two) (Ex. 1). 2
A jury found Petitioner guilty
as charged, and the trial court sentenced him to consecutive terms
of thirty years in prison on each count (Ex. 2; Ex. 3; Ex. 24).
Florida’s Second District Court of Appeal affirmed per curiam (Ex.
7); Scott v. State, 44 So. 3d 590 (Fla. 2d DCA 2010).
Petitioner filed a motion for post-conviction relief pursuant
to Rule 3.850 of the Florida Rules of Criminal Procedure (“Rule
3.850 motion”) on October 19, 2011 (Ex. 9).
motion on January 18, 2012 (Ex. 10).
2
He filed an amended
The post-conviction court
Citations to exhibits are to those filed by Respondent on
August 4, 2017 (Doc. 26).
Citations to the trial transcript,
located in Exhibit 24, will be cited as (T. at __).
- 2 -
summarily
denied
Petitioner’s
claims
(Ex.
12).
Although
Petitioner filed a notice of appeal, he did not file a supporting
brief (Ex. 13).
Nevertheless, Florida’s Second District Court of
Appeal affirmed the post-conviction court’s denial of Petitioner’s
Rule 3.850 motions (Ex. 15).
On February 26, 2014, Petitioner filed a motion to correct an
illegal sentence (Ex. 17).
The post-conviction court denied the
motion, and Florida’s Second District Court of Appeal affirmed
without a written opinion (Ex. 22); Scott v. State, 44 So. 3d 590
(Fla. 2d DCA 2010).
Petitioner timely filed the instant petition on February 8,
2016 (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:
(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).
- 3 -
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
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
- 4 -
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
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.
- 5 -
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.
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
- 6 -
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)).
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
- 7 -
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.
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,
- 8 -
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).
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
- 9 -
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).
Actual innocence means factual innocence, not
legal insufficiency.
(1998).
Murray v. Carrier, 477 U.S.
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).
- 10 -
III. Analysis
Petitioner raises nine claims in his petition.
He contends
that the trial court erred when it: (1) denied his motion for a
judgment of acquittal; (2) allowed the state to introduce the prior
consistent statements of two child witnesses; and (3) denied his
request to present evidence that the child’s mother had abused the
victim (Claims One, Two, and Three).
He contends that trial
counsel (“Counsel”) was ineffective for: (4) failing to call the
victim’s mother as an alibi witness; (5) failing to impeach witness
Cynthia Morant; (6) failing to acquire a third expert witness; (7)
failing to prove that Petitioner was actually innocent; and (8)
making cumulative errors (Claim Four – Eight).
In his last claim,
Petitioner asserts that his consecutive sentences for aggravated
child
abuse
and
manslaughter
violate
the
Fifth
Amendment’s
proscription against double jeopardy (Claim Nine) (Doc. 1 at 428).
Each claim will be addressed separately.
a.
Claim One
Petitioner asserts that the trial court erred when it failed
to grant his motion for a judgment of acquittal (Doc. 1 at 5).
Specifically, Petitioner argues:
When a case is based solely on circumstantial
evidence, as in the instant case, a special
standard of review of the sufficiency of the
evidence applies, to wit: the evidence must
be inconsistent with any reasonable hypothesis
of innocence for the conviction to be
sustained.
- 11 -
(Doc.
1
at
5).
Petitioner
claims
that
the
medical
doctors
testified that the victim died as a result of blunt force trauma
to his stomach, and there was no direct evidence showing that
Petitioner
ever
struck
the
child
in
the
stomach,
(Petitioner) never admitted to killing the child.
and
he
Id.
Respondents urge that Claim One is unexhausted because, while
Petitioner raised a judgment of acquittal claim at trial and on
direct appeal, he did not present the federal nature of Claim One
to the state court (Doc. 18 at 10-11).
Indeed, a review of
Petitioner’s brief on direct appeal shows that he framed his claim
and argument in terms of state law only without making reference
to the United States Constitution, federal law, or even federal
cases.
Specifically, his brief on direct appeal repeated the
instant
argument
that
“[w]hen
a
case
is
based
solely
on
circumstantial evidence, as the instant case is, a special standard
of
review
of
the
evidence
applies.
The
evidence
must
be
inconsistent with any reasonable hypotheses of innocence for the
conviction to be sustained.” (Ex. 5 at 24) (citing State v. Law,
559 So. 2d 187, 188 (Fla. 1989); P.M.M. v. State, 884 So. 2d 418,
419-20 (Fla. 2d DCA 2004)).
Petitioner’s state law argument
leaves § 2254(b)(1)’s exhaustion requirement unsatisfied. Duncan,
513 U.S. at 365-66.
For a habeas petitioner to fairly present a federal claim to
state courts:
- 12 -
It is not sufficient merely that the federal
habeas petitioner 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 foundation.
McNair
v.
Campbell,
416
F.3d
1291,
1302–03
(emphasis added) (internal citations omitted).
(11th
Cir.
2005)
As part of such a
showing, the claim presented to the state courts “must include
reference to a specific federal constitutional guarantee, as well
as a statement of the facts that entitle the petitioner to relief.”
Reedman v. Thomas, 305 F. App’x 544, 545–46 (11th Cir. 2008)
(internal citation omitted).
In his reply, Petitioner argues that this claim is exhausted
because he needed only to present the substance of his claims to
the state courts (Doc. 23 at 8).
This is wrong.
The Supreme
Court has made clear that a prisoner does not exhaust federal
claims merely by raising similar state claims. Picard v. Conner,
404 U.S. 270, 277-78 (1971).
Moreover, the legal standard relied
- 13 -
upon by Petitioner in his brief is peculiar to Florida law. 3
The
federal sufficiency of the evidence standard, set forth in Jackson
v. Virginia, 443 U.S. 307 (1979) does not include a requirement
that
cases
turning
on
circumstantial
evidence
exclude
every
reasonable hypothesis of innocence. See United States v. Herrera,
931 F.2d 761, 763 (11th Cir. 1991) (evidence need not exclude every
reasonable hypothesis of innocence or be wholly inconsistent with
every conclusion except that of guilt, provided that a reasonable
trier of fact could find that the evidence established guilt beyond
a
reasonable
doubt)
(citations
omitted).
Florida’s
procedural
rules and time limitations preclude a second direct appeal. Fla.
R.
App.
P.
9.140(b)(3)
(defendant
wishing
to
appeal
a
final
judgment must do so within “30 days following rendition of a
written order”). Therefore, in addition to being unexhausted,
3
While Florida may apply the Jackson standard in resolving
an ordinary sufficiency claim, see Melendez v. State, 498 So.2d
1258, 1261 (Fla. 1986), a “special standard of review of the
sufficiency of the evidence applies where a conviction is wholly
based on circumstantial evidence,” or “predicated chiefly upon
circumstantial evidence,” Thorp v. State, 777 So.2d 385, 389 (Fla.
2000) (quotation omitted). It is a rule in Florida that “[w]here
the only proof of guilt is circumstantial, no matter how strongly
the evidence may suggest guilt, a conviction cannot be sustained
unless the evidence is inconsistent with any reasonable hypothesis
of innocence.” Id. (quotation omitted); Lowe v. State, 90 Fla.
255, 105 So. 829, 830 (1925) (requiring that the evidence be
“irreconcilable with any reasonable theory of [the defendant’s]
innocence and exclude to a moral certainty every hypothesis but
that of his guilt”). This is the argument Petitioner made in his
appellate brief (Ex. 5). See discussion infra note 4.
- 14 -
Claim One is procedurally barred, and is dismissed under 28 U.S.C.
§ 2254(b)(1). 4
b.
Claim Two
Petitioner asserts that the trial court erred by allowing the
state to introduce prior consistent statements of the victims’
siblings through the testimony of police detectives (Doc. 1 at
11).
Petitioner states that Witness Detective Cunningham was
questioned
as
to
what
the
victim’s
4
brother
told
her
about
Even had Petitioner not relied upon Florida’s circumstantial
evidence standard, and simply challenged the sufficiency of the
evidence under the standard applied in non-circumstantial cases
(which is the same as the federal standard), his argument would
still have been insufficient to alert the state court to a federal
claim, in light of his failure to reference the federal
Constitution or any federal law, and his failure to cite any state
cases relying on federal law. See Pearson v. Sec’y, Dep’t of Corr.,
273 F. App’x 847, 850 (11th Cir. 2008) (petitioner’s federal
sufficiency of evidence claim was not exhausted where petitioner
cited exclusively to Florida cases in state court and addressed
Florida law in all of his substantive arguments, even though
Florida courts assess sufficiency of evidence under standard
identical to federal standard); Cook v. McNeil, 266 F. App’x 843,
845–46 (11th Cir. 2008) (same); Ramos v. Sec’y, Dep’t of Corr.,
441 F. App’x 689 (11th Cir. 2011) (same); but see Mulinix v. Sec’y
for Dep’t of Corr., 254 F. App’x 763 (11th Cir. 2007) (petitioner’s
federal sufficiency of evidence claim was exhausted where
petitioner presented identical argument to state and federal
courts, and Florida courts’ sufficiency of evidence standard was
identical to federal standard); compare Preston v. Sec’y, Fla.
Dep’t of Corr., 785 F.3d 449, 462 (11th Cir. 2015) (casting doubt
on Mulinix, stating “We think it far more straightforward to simply
require that when petitioners intend to bring a federal claim,
they say so, in words or substance. We also do not think that this
requirement places a particularly onerous burden on state
prisoners, who need only indicate to the state courts that they
intend to raise a federal claim.”).
- 15 -
Petitioner hitting the victim in the chest (Doc. 1 at 11).
When
Counsel objected on hearsay grounds, the trial court ruled that it
was not hearsay under Rule 90.801(2)(b) of the Florida Evidence
Code
because
the
brother
had
already
questioned about his credibility.
Id.
testified
and
had
been
Witness Lieutenant Urraro
was similarly questioned about statements the victim’s sister
made, and Counsel was again overruled on the ground that the
testimony concerned a prior consistent statement.
Id. at 12.
Petitioner now argues:
The
State’s
argument
that
the
hearsay
statements were somehow admissible pursuant to
Section
90.801(2)(b),
Fla.
Stat.,
was
incorrect.
Section 90.801(2)(b) excludes
from the definition of hearsay a prior
consistent
statement
of
a
witness
who
testifies at trial and is subject to crossexamination concerning the statement when the
statement is offered to rebut an express or
implied charge of improper influence, motive,
or recent fabrication.
There was no such
express or implied charge made by defense
counsel in this case.
The defense was that
the charges against the Petitioner were
fabricated from day one, not that the children
had recently fabricated the allegations.
(Doc. 1 at 12).
Respondents urge that Claim Two is unexhausted
because, as with Claim One, Petitioner did not assert any federal
component to the evidentiary challenge by citing to controlling
federal law on this point (Doc. 18 at 19).
supports Respondent’s argument.
- 16 -
A review of the record
When Counsel objected to the children’s testimony at trial,
he did not cite to any federal authorities or raise a federal due
process issue (T. at 901-05, 1139-40). 5
In his brief on direct
appeal, Petitioner raised this claim in terms of state evidentiary
law
only
(Ex.
5
at
36-43).
Therefore,
Petitioner’s
instant
challenge to the admission of the children’s statements was not
exhausted in state court.
Petitioner does not show cause for his
failure to exhaust, nor has he presented new evidence that a
fundamental miscarriage of justice occurred.
Consequently, Claim
Two is procedurally barred and cannot be considered by this Court.
Moreover, Petitioner has not directed the Court to a Supreme
Court case holding that the admission of a child’s prior consistent
statement is unconstitutional.
Petitioner now urges that the
state court’s denial of this claim was contrary to Tome v. United
States, 513 U.S. 150 (1995) (Doc. 3 at 23).
However, Tome
explicitly limited its holding “to the requirements for admission
under [Federal] Rule [of Evidence] 801(d)(1)(B).” 513 U.S. 167.
Tome, therefore, did not announce a constitutional principle that
federal courts can apply to a § 2254 habeas petition.
5
Even if
To the extent Petitioner now argues that the trial court
erred under Florida law when it denied his motion for a judgment
of acquittal, such argument is not cognizable on federal habeas
review.
Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have
stated many times that ‘federal habeas corpus relief does not lie
for errors of state law.’”) (quoting Lewis v. Jeffers, 497 U.S.
764, 780 (1990)).
- 17 -
Claim Two were exhausted, Petitioner would not be entitled to
federal habeas corpus relief.
Accordingly, in addition to being
dismissed as unexhausted, Claim Two is denied on the merits. 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.”).
c.
Claim Three
Petitioner asserts that the trial court erred because it did
not
allow
him
to
present
“reverse
Williams
rule”
evidence
suggesting that the victim may have been abused by his mother (Doc.
1 at 14-15). 6
Specifically, Petitioner proffered the testimony of
Dr. Teresa Stevens, the victim’s pediatrician, and Janice Jones,
the child’s grandmother.
These witnesses said that the victim
told them that his mother caused bruises on his body.
6
Id.
He
“Reverse Williams rule” evidence is evidence of a crime
committed by another person that a defendant offers to show his or
her innocence of the instant crime. See McDuffie v. State, 970
So. 2d 312, 324 (Fla. 2007).
The defendant must demonstrate a
“close similarity of facts, a unique or ‘fingerprint’ type of
information” for the reverse Williams rule evidence to be
admissible. See White v. State, 817 So. 2d 799, 806 (Fla. 2002)
(quoting State v. Savino, 567 So. 2d 892, 894 (Fla. 1990)). If a
defendant’s purpose is to shift suspicion from himself to another
person, then evidence of past criminal conduct of that other person
should be of such nature that it would be admissible if that person
were on trial for the present offense. In other words, uncharged
offenses and juvenile adjudications would not be admissible. See
Murphy v. State, 930 So. 2d 794, 796 (Fla. 1st DCA 2006); see also
Florida Statute § 90.610(1)(b).
- 18 -
proffered the testimony of Latroyer Lamar that she had seen the
child’s mother hit him with a belt on one occasion.
Id.
The
trial court determined that the testimony was not admissible as
reverse Williams rule evidence (T. at 1382).
Specifically, the
Court noted:
The one statement made to Dr. Stevens that,
“My mama did it”; the statement to Ms. Jones
that, “My mama did it,” by a three-year-old
with no inquiry, no challenge to it, no
determination of its veracity by either one of
those cannot assist the Court in making a
clear and convincing finding that [the child’s
mother] committed those acts that the defense
seeks to admit.
So based upon the lack of clear and convincing
evidence to establish that first component, I
find the reverse Williams Rule will not apply
in this case and I will not allow the evidence;
and that’s even without the necessity – which
it basically eliminates the necessity of the
Court making a balancing consideration of the
relevancy versus the potential prejudice.
(T. at 1382).
Petitioner argues that he should have been allowed
to present the evidence because it may have established reasonable
doubt
of
his
guilt
by
pointing
the
finger
at
a
different
perpetrator (Doc. 1 at 15).
Once again, in his brief on appeal (and in his instant
pleadings), Petitioner argues only that the trial court erred under
Florida law by refusing to admit the evidence that the victim may
have been abused by his mother.
- 19 -
As such, the constitutional
dimension of this claim is unexhausted. See discussison supra
Claims One and Two.
Moreover, Petitioner has not presented a Supreme Court case
holding that the exclusion of reverse Williams rule evidence
violates due process.
The Supreme Court has never “questioned the
power of States to exclude evidence through the application of
evidentiary rules that themselves serve the interests of fairness
and reliability even if the defendant would prefer to see that
evidence admitted.” Crane v. Kentucky, 476 U.S. 683, 690 (1986)
(citing
Chambers
v.
Mississippi,
410
U.S.
284,
302
(1973)).
Accordingly, in addition to being dismissed as unexhausted and
procedurally barred, Claim Three does not warrant federal habeas
relief under 28 U.S.C. § 2254(d) and is denied on the merits.
d.
Petitioner
asserts
Claim Four
that
Counsel
rendered
ineffective
assistance when he failed to call the victim’s mother, Nicole
Brewington, as an alibi witness at trial (Doc. 1 at 16-18).
asserts
that
Brewington
(who
was
a
co-defendant)
would
He
have
testified that the victim was sick prior to Petitioner arriving at
her house and that she did not see Petitioner abuse the child.
Id.
He asserts that Brewington would have testified that the
child had been hit by a bicycle, that the child was malnourished,
or that the child could have been injured by playing roughly with
his older brother.
Id.
Petitioner raised this claim in his Rule
- 20 -
3.850 motion, and the post-conviction court denied it on the ground
that Petitioner could not demonstrate prejudice:
In his first allegation, Defendant alleges
that trial counsel was ineffective for failing
to call alibi witness, Nicole Brewington, who
was a co-defendant and the victim’s mother.
Defendant also alleges that she would have
testified that the victim had been vomiting
during the ten days prior to Defendant’s
arrival at her house.
Defendant further
alleges that Brewington would have testified
that she never witnessed any abusive behavior
by Defendant toward the victim and that an
older sibling, Jack Nash, was abusing the
victim. Furthermore, Defendant alleges that
if Brewington would have testified, she could
have been asked whether or not she knew that
the victim was run over by a bicycle as his
sister Jessica Nash testified.
As the State points out, Jack and Jessica Nash
did testify about the body slamming and
bicycle incident at trial. Furthermore, both
medical experts, Dr. Hamilton and Dr. Daniel,
were asked whether the body slamming or the
bicycle incident could have caused the
victim’s injuries and led to his death.
Because all of this evidence was presented to
the jury, Defendant cannot show how he was
prejudiced.
Furthermore, the fact that
Defendant did not abuse the victim prior to
this incident was undisputed at trial.
Lastly,
Defendant’s
allegation
that
Brewington would have testified that the
victim was sick prior to Defendant’s arrival
is refuted by the record.
Because her
testimony would not have provided Defendant an
alibi, Defendant has failed to show how he was
prejudiced by this omitted testimony or how
counsel was ineffective.
(Ex. 12) (internal citations to the record omitted).
Petitioner
filed a notice of appeal of the denial of his Rule 3.850 motion
- 21 -
(Ex. 13).
15).
Florida’s Second District Court of Appeal affirmed (Ex.
Accordingly,
Claim
Four
is
exhausted.
7
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.
Petitioner offers nothing to dispute the factual findings of
the post-conviction court or to support his claim that Brewington
would have testified as Petitioner now suggests.
about
the
testimony
of
a
putative
witness
must
“[E]vidence
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).
Accordingly,
the
post-
conviction court’s rejection of this claim was neither contrary
7
Respondent asserts that Claims Four through Eight are
unexhausted because Petitioner did not file a brief on appeal of
his Rule 3.850 motion. The Court disagrees. There was no hearing
held on Petitioner’s motion. See Fla. R. App. P. 9.141(b)(2)(C)
(providing that briefs are “not required” when a petitioner appeals
from summary denial of a Rule 3.850 motion). However, even if the
claims are unexhausted, the Court may deny a claim on its merits
“notwithstanding the failure of the applicant to exhaust the
remedies available in state court.” 28 U.S.C. § 2254(b)(2).
- 22 -
to, nor based upon an unreasonable application of Strickland.
Petitioner is not entitled to habeas relief on Claim Four.
e.
Petitioner
asserts
Claim Five
that
Counsel
rendered
ineffective
assistance when he failed to impeach witness Cynthia Morant with
the testimony of witness Rebecca Hamilton (Doc. 1 at 19-20).
Specifically, Petitioner asserts that Child Welfare Case Manager
Morant testified that the victim, who was wearing no shorts or
shirt when she saw him, had no visible bruises on the last day she
visited him, which was only a few days before he died.
asserts
that
Dr.
Rebecca
Hamilton
testified
that,
Id.
when
He
she
autopsied the victim, she found evidence of bruising that should
have been visible when Morant saw him.
Id.
Petitioner argues
that Counsel should have impeached Morant’s testimony by showing
that it “conflicted with proven science” and that the existence of
bruises on the victim’s body four days prior to his death would
have precluded Petitioner being the person who inflicted the
injuries that killed him.
Id. at 20.
Petitioner raised this claim in his Rule 3.850 motion, and
the post-conviction court denied it on both prongs of Strickland:
In the second allegation, Defendant alleges
that trial counsel was ineffective for failing
to properly impeach Cynthia Santiago-Morant,
who was the Children’s Network Child Welfare
Case
Manager.
Specifically,
Defendant
alleges that Santiago-Morant’s testimony,
that she saw no bruises on the victim four
- 23 -
days prior to the incident, was a lie and in
contradiction to Hamilton’s testimony, who was
the pathologist that performed the autopsy on
the victim.
Defendant further alleges that
if counsel would have questioned SantiagoMorant’s testimony, the jury would have
decided in his favor.
However, a review of Dr. Hamilton’s testimony
does not support Defendant’s allegation, in
that, she never testified about bruises on the
skin of the victim. Therefore, counsel could
not have used Dr. Hamilton’s testimony to
impeach
Santiago-Morant’s
testimony.
Moreover, impeachment of this type is not by
direct questioning of the person whose
testimony you are trying to impeach, but by
presenting the conflicting testimony of other
witnesses. See § 90.806, Fla. Stat. Because
there was not any conflicting evidence on this
issue, counsel could not have been ineffective
for failing to raise a meritless issue.
(Ex. 12) (internal citations to the record omitted).
Second District Court of Appeal affirmed (Ex. 15).
Florida’s
Accordingly,
Claim Five is exhausted.
Petitioner does not explain how the post-conviction court’s
adjudication of this claim was contrary to Strickland or based
upon an unreasonable determination of the facts.
Contrary to
Petitioner’s assertions, Dr. Hamilton did not testify that the
bruising on the victim’s body was present when Santiago-Morant
visually evaluated him.
She testified that it was difficult to
discern the age of a bruise, that the child was dark-skinned
(making discoloration difficult to see), and that DCF workers
sometimes don’t notice bruises on children (T. at 681, 694, 718).
- 24 -
She also stated that the blows that caused the bruising were not
necessarily the same blows that killed the victim because the
victim died of an infection caused by blunt force trauma to his
stomach that probably occurred sometime after the victim was
observed by Santiago-Morant (T. at 713).
Dr. Hamilton’s testimony was not inconsistent with SantiagoMorant’s testimony that she did not observe any bruising on the
victim’s skin when she saw him several days before he died (T. at
626).
Accordingly,
reasonable
competent
counsel
could
have
decided against attempting to further question the witness about
the bruising on the child’s body.
Moreover, the jury heard both
Hamilton’s and Santiago-Morant’s testimony, so Petitioner cannot
demonstrate that he was prejudiced by Counsel’s alleged failure to
point out that the victim had multiple bruises on his body when he
died.
Claim Five fails to satisfy either Strickland prong, and
Petitioner is not entitled to federal habeas relief.
f.
Claim Six
Petitioner asserts that Counsel was ineffective for failing
to acquire an expert witness to testify that some of the bruises
on the victim’s body were older than others (Doc. 1 at 21).
Specifically, Petitioner argues that neither of the doctors who
testified at his trial “performed stain tests on subcutaneous area
which would have proven certain bruises were older than others.”
Id.
Petitioner urges that, had an expert determined that some of
- 25 -
the bruises occurred earlier, “the jury would have learned that
the ongoing physical abuse of Zahid Jones could have caused the
malnourished child to expire.” Id. at 22.
Petitioner raised this claim in his Rule 3.850 motion, and
the trial court rejected his argument, noting that the two experts
who testified both agreed that the victim’s cause of death “was
peritonitis due to blunt force trauma to the victim’s abdomen.”
(Ex. 12).
needed
The Court noted that the testing Petitioner urges he
could
not
determine
the
exact
timing
of
the
victim’s
injuries and “it is highly unlikely that testimony from a third
expert would have changed the outcome of the proceedings.”
Id.
Florida’s Second District Court of Appeal affirmed (Ex. 15).
Accordingly, Claim Six is exhausted.
Petitioner has not established the existence of an expert who
would have testified that the blows that caused the perforation of
the victim’s intestines occurred when Petitioner could not have
struck them, nor has he established that such a witness would have
been available to testify.
“Without some specificity as to the
proposed expert’s testimony, any assertion that an expert would
testify consistently with his claims is mere speculation and does
not entitle him to habeas relief.” Finch v. Sec’y, Dept of Corr.,
643 F. App’x 848, 852 (11th Cir. 2016); see also Sullivan v.
DeLoach, 459 F.3d 1097, 1109 (11th Cir. 2006) (“Th[e] prejudice
burden
is
heavy
where
the
petitioner
- 26 -
alleges
ineffective
assistance in failing to call a witness because ‘often allegations
of
what
a
witness
would
have
testified
to
are
largely
speculative.’”) (quoting United States v. Guerra, 628 F.2d 410,
413 (5th Cir. 1980)).
Petitioner has not shown that the post-conviction court’s
adjudication of this claim was contrary to, or based upon an
unreasonable application of Strickland.
g.
Claim Six is denied.
Claim Seven
Petitioner asserts that Counsel was ineffective for “failing
to subject the State’s case to adversarial testing where the State
failed to meet its burden of proof when Petitioner is actually
innocent.” (Doc. 1 at 23).
Petitioner raised this claim in his
Rule 3.850 motion, and the post-conviction court rejected it on
the ground that Petitioner actually sought to raise a sufficiency
of
the
evidence
claim
(Ex.
12).
The
post-conviction
court
determined that such a claim was procedurally defaulted because it
should have been raised on direct appeal.
Id.
Alternatively, the
post-conviction court determined that the claim was meritless.
Id.
Florida’s Second District Court of Appeal affirmed (Ex. 15).
Petitioner
does
not
rebut
(or
acknowledge)
the
post-
conviction court’s conclusion that “[Petitioner’s] argument is an
attempt to reweigh and re-analyze the sufficiency of the evidence,
which
should
have
been
raised
in
direct
cognizable in a rule 3.850 motion.” (Ex. 12).
- 27 -
appeal
and
is
not
Under the doctrine
of procedural default, a federal court will not review the merits
of claims that a state court declined to hear because the prisoner
failed to abide by a state procedural rule.
U.S. 1 (2012).
Martinez v. Ryan, 566
Petitioner does not offer cause for his failure
to raise this claim on direct appeal.
To the extent he urges that
he is subject to the manifest injustice exception to the procedural
bar, he does not offer any new evidence demonstrating actual
innocence.
Accordingly, Claim Seven is unexhausted.
Even had this argument been raised as a proper ineffective
assistance claim, it is impossible to discern exactly what Counsel
is alleged to have done wrong.
Petitioner points to evidence and
testimony that was actually developed during his trial and urges
that “trial counsel should have capitalized on and argued” that
the state’s cases had weaknesses (Doc. 1 at 24).
In other words,
Petitioner offers the argument that, in light of all the evidence
offered at trial, Counsel was ineffective because he was unable to
convince the jury that Petitioner was innocent.
A review of
Counsel’s lengthy closing argument shows that Counsel questioned
the veracity and memories of the state’s witnesses; suggested that
the victim’s trauma was caused by a bicycle accident or a body
slam from his older brother; argued that Petitioner had not been
present in the home until after the blunt force trauma leading to
the fatal infection had occurred; suggested that some of the
child’s
bruising
could
have
occurred
- 28 -
during
Petitioner’s
administration
of
CPR;
pointed
to
witnesses
who
noted
that
Petitioner liked and was nice to the children; and argued that the
victim’s mother could have caused his injuries (T. at 1826-57).
In every case, a trial lawyer “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 (11th Cir. 2000) (quoting Burger v. Kemp,
483 U.S. 776 (1987)).
jury’s
attention
on
That Petitioner would have focused the
different
evidence
or
stressed
different
arguments in closing does not compel a conclusion that Counsel’s
performance was deficient.
Rather it suggests only a difference
of opinion, insufficient to support an ineffective assistance
claim.
In addition to being dismissed as procedurally barred, Claim
Seven is denied on the merits. 28 U.S.C. § 2254(b)(2).
h.
Claim Eight
Petitioner asserts that the cumulative effect of Counsel’s
deficient performance resulted in prejudice (Doc. 1 at 26).
This
Court need not determine whether, under current Supreme Court
precedent, cumulative error claims can ever succeed under 28 U.S.C.
§ 2254(d).
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
- 29 -
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 on the trial); Hill v.
Sec’y,
Fla.
2014)(same).
Dep’t
of
Corr.,
578
F.
App’x
805
(11th
Cir.
Petitioner is not entitled to federal habeas relief
on Claim Eight.
i.
Claim Nine
Petitioner asserts that his convictions for both aggravated
child abuse and manslaughter of a child violate the prohibition
against double jeopardy (Doc. 1 at 28).
Petitioner raised this
claim in a Rule 3.800 motion to correct sentencing in state court
(Doc. 17), and the post-conviction court rejected the claim on the
- 30 -
merits, and as incorrectly raised in a Rule 3.800 motion (Doc.
18).
Respondent urges that Petitioner’s multiple convictions do
not violate double jeopardy because the offenses are separate for
purposes of multiple punishments under the “same elements” rule
originally established by the United States Supreme Court in
Blockburger v. United States, 284 U.S. 299 (1932) (Doc. 18 at 41).
Upon review of Blockburger and other relevant law, the Court agrees
that
Petitioner
has
not
demonstrated
how
the
state
court’s
rejection of this claim was contrary to clearly established federal
law.
The Double Jeopardy Clause of the United States Constitution
protects “against multiple punishments for the same offense.” Ohio
v. Johnson, 467 U.S. 493, 498 (1984).
double
jeopardy
convictions
violation
stemming
from
has
the
To determine whether a
occurred
same
based
conduct,
but
on
multiple
pursuant
to
separate statutes, the Court must undertake a two-part analysis.
See Williams v. Singletary, 78 F.3d 1510, 1513 (11th Cir. 1996).
First, the Court must determine “whether there exists a clear
legislative
intent
to
impose
cumulative
punishments,
separate statutory provisions, for the same conduct.” Id.
under
If a
clear indication exists of such legislative intent, the double
jeopardy bar does not apply. Id.
However, “[i]f there is no clear
indication of legislative intent to impose cumulative punishments,
- 31 -
[courts] examine the relevant statutes under the same-elements
test
of
Blockburger.”
Id.
Pursuant
to
Blockburger’s
“same-
elements” test, “if each statutory offense requires proof of an
element not contained in the other, the offenses are not the ‘same’
and double jeopardy is no bar to cumulative punishment.” Id. 8
To prove the crime of aggravated child abuse, the state must
prove that the defendant committed aggravated battery on a child;
willfully
tortured,
maliciously
punished,
or
willfully
and
unlawfully caged a child; or knowingly or willfully abused a child
and in so doing caused great bodily harm, permanent disability, or
permanent disfigurement to the child.
Fla. Stat. § 827.03 (2007).
To prove the crime of manslaughter of a child, the state must prove
that the defendant caused the death of a person under the age of
eighteen by culpable negligence.
Fla. Stat. § 782.07 (2007). 9
Thus, manslaughter (and not aggravated child abuse) requires
proof of the victim’s death resulting from culpable negligence
whereas aggravated child abuse (and not manslaughter) requires
8
In the instant case, it is not clear from the statutory
language of the relevant statutes whether the Florida legislature
intended to impose cumulative punishments for aggravated child
abuse and manslaughter of a child. As such, the Court will examine
the statutes pursuant to Blockburger’s “same-elements” test.
9
Culpable negligence under this statute occurs when a
defendant “neglects a child and in so doing causes great bodily
harm, permanent disability, or permanent disfigurement to the
child.” Fla. Stat. § 827.03(2)(b).
- 32 -
proof of intentional battery or abuse.
Florida’s Fifth District
Court of Appeal addressed this issue in Koenig v. State:
Child abuse is not subsumed in a charge of
aggravated manslaughter of a child. Further,
child abuse and the manslaughter charge do not
pass the same-elements test. Manslaughter
requires the death of a child, but child abuse
does not. Child abuse requires, by definition,
an intentional act; the manslaughter charge,
by its terms, requires culpable negligence and
not intent. Indeed, a death occurring as a
result of child abuse, aggravated or simple,
would be either first or third degree felony
murder and not aggravated manslaughter of a
child.
757 So. 2d 595, 596 (2000).
Petitioner was convicted of two
separate crimes with independent elements.
Therefore, Petitioner
was not subjected to multiple punishments for the same offense,
and no double jeopardy violation occurred in his case.
Claim Nine
is denied pursuant to 28 U.S.C. § 2254(d)(1).
Any of Petitioner’s allegations not specifically addressed
herein have been found to be without merit.
IV.
Certificate of Appealability 10
Petitioner is not entitled to a certificate of appealability.
A
prisoner
seeking
a
writ
of
habeas
10
corpus
has
no
absolute
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.
- 33 -
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.
Because
Petitioner
is
not
entitled
to
a
certificate
of
appealability, he is not entitled to appeal as a pauper.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.
The Florida Attorney General is DISMISSED as a named
Respondent.
2. Claims One, Two, Three, and Seven of the 28 U.S.C. § 2254
petition for habeas corpus relief filed by Kashon Scott (Doc. 1)
are DISMISSED with prejudice as unexhausted.
Claims Two, Three,
and Seven are alternatively denied on the merits.
The remaining
claims are DENIED on the merits.
3.
Petitioner is DENIED a certificate of appealability.
- 34 -
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 October, 2017.
SA: OrlP-4
Copies: All Parties of Record
- 35 -
24th
day
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?