Roberts v. Secretary, DOC (Lee County)

Filing 30

OPINION AND ORDER denying 1 Petition for Writ of Habeas Corpus. The Clerk shall enter judgment, terminate all pending matters, and close the case. Signed by Judge John E. Steele on 6/7/2021. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL E. ROBERTS,
Petitioner,
v.

Case No:

2:18-cv-501-JES-NPM

SECRETARY, DOC,
Respondent.

/
OPINION AND ORDER

Before the Court is Petitioner Michael E. Roberts’ Petition
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody (Doc. 1).

Roberts challenges a 2013 conviction of

aggravated battery.
I.

Background

The State of Florida charged Roberts with Aggravated Battery
with a Deadly Weapon for stabbing Larry McDonald with a knife on
October 7, 2012.
the

Public

(Doc. #21-1 at 18).

Defender’s

Office—Thomas

Roberts was represented by
B.

Dominico

represented

Roberts pre-trial, and Jason Jay Kruszka represented him at trial
and sentencing.

(Doc. #1 at 8).

The State moved in limine to

exclude evidence that McDonald had cocaine in his system on October
7, 2012, and that McDonald signed a document requesting that no
charges be filed.

(Doc. #21-1 at 27).

The trial court found

McDonald’s drug use likely irrelevant but declined to prejudge its

admissibility

on

cross-examination

McDonald’s testimony.

without

(Doc. #21-3 at 51).

first

hearing

The court allowed

Kruszka to ask McDonald about the document he signed.

(Id. at

35).
At trial, the State presented evidence that Roberts stabbed
McDonald multiple times with a knife outside Wrights Groceries
after McDonald refused to buy him a beer, and that Roberts gave
police inconsistent statements about the stabbing.

In his case

in chief, Roberts claimed McDonald attacked him and he used his
knife in self-defense.
The jury found Roberts guilty of Aggravated Battery with a
Deadly Weapon (Doc. #21-1 at 51).
30-year

prison

term.

(Id.

at

The Court sentenced him to a
55).

Roberts

appealed

the

conviction to the Second District Court of Appeal of Florida (2nd
DCA), represented by Allyn M. Giambalvo.

Roberts raised one issue

on appeal: that the trial court erred in granting the state’s
motion in limine to exclude evidence of McDonald’s drug use.

(Id.

at 66-79).

(Id.

The 2nd DCA affirmed without a written opinion.

at 95).
Roberts petitioned the 2nd DCA for a writ of habeas corpus,
asserting ineffective assistance of appellate counsel.
102-25).
opinion.

(Id. at

The 2nd DCA denied the petition without a written
(Doc. #21-2 at 224).

Roberts also filed a motion under

Florida Rule of Criminal Procedure 3.850, arguing his trial counsel

2

was constitutionally ineffective. (Id. at 226-36).
conviction court denied the motion.

(Doc. #21-6 at 2-7).

DCA affirmed without a written opinion.
Habeas Petition followed.

The post-

(Id. at 73).

The 2nd
Roberts’

He raises two grounds of ineffective

assistance of counsel and argues the trial court erred by partially
granting the State’s motion in limine.
II.

Applicable Habeas Law

a. AEDPA
The Antiterrorism Effective Death Penalty Act (AEDPA) governs
a state prisoner’s petition for habeas corpus relief.
§ 2254.

28 U.S.C.

Relief may only be granted on a claim adjudicated on the

merits in state court if the adjudication:
(1)

(2)

resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
resulted in a decision that was based on an
unreasonable determination of the facts in light of
the
evidence
presented
in
the
State
court
proceeding.

28 U.S.C. § 2254(d).
to meet.

This standard is both mandatory and difficult

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

A state

court’s violation of state law is not enough 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

3

legal principles set forth in the decisions of the United States
Supreme Court when the state court issued its decision.

White,

134 S. Ct. at 1702; Casey v. Musladin, 549 U.S. 70, 74 (2006)
(citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
relief

is

appropriate

only

if

the

state

court

Habeas

decision

was

“contrary to, or an unreasonable application of,” that federal
law.

28 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 Supreme Court precedent 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,

234 F.3d at 531 (quoting Williams, 529 U.S. at 406).

“A state

court’s determination that a claim lacks merit precludes federal

4

habeas relief so long as fair-minded jurists could disagree on the
correctness

of

the

state

court’s

Richter, 562 U.S. 86, 101 (2011).

decision.”

Harrington

v.

“[T]his standard is difficult

to meet because it was meant to be.”

Sexton v. Beaudreaux, 138

S. Ct. 2555, 2558 (2018).
Finally, when reviewing a claim under 28 U.S.C. § 2254(d), a
federal court must remember 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); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A] statecourt factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in
the first instance.”).
b. Exhaustion and Procedural Default
AEDPA

precludes

federal

courts,

absent

exceptional

circumstances, from granting habeas relief unless a petitioner has
exhausted all means of relief available under state law.

Failure

to exhaust occurs “when a petitioner has not ‘fairly presented’
every issue raised in his federal petition to the state’s highest
court, either on direct appeal or on collateral review.”

Pope v.

Sec’y for Dep’t of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012)
(quoting Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010)).
The

petitioner

must

apprise

the

5

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, 735 (11th Cir. 1998).
Procedural defaults generally arise in two ways:
(1) where the state court correctly applies a procedural
default principle of state law to arrive at the
conclusion that the petitioner’s federal claims are
barred; or (2) where the petitioner never raised the
claim in state court, and it is obvious that the state
court would hold it to be procedurally barred if it were
raised now.
Cortes v. Gladish, 216 F. App’x 897, 899 (11th Cir. 2007).

A

federal habeas court may consider a procedurally barred claim if
(1) petitioner shows “adequate cause and actual prejudice,” or (2)
if “the failure to consider the claim would result in a fundamental
miscarriage of justice.”

Id. (citing Coleman v. Thompson, 501

U.S. 722, 749-50 (1991)).
c. Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a
two-part test for determining whether a convicted person may have
relief for ineffective assistance of counsel.
88

(1984).

A

petitioner

must

establish:

466 U.S. 668, 687(1)

counsel’s

performance was deficient and fell below an objective standard of
reasonableness; and (2) the deficient performance prejudiced the
defense.

Id.

When considering the first prong, “courts must ‘indulge a
strong presumption that counsel’s conduct falls within the wide

6

range of reasonable professional assistance.’”

Sealey v. Warden,

954 F.3d 1338, 1354 (11th Cir. 2020) (quoting Strickland, 466 U.S.
at 689).

And “[a] state court’s determination that a claim lacks

merit precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state court’s
decision.”

Franks v. GDCP Warden, 975 F.3d 1165, 1176 (11th Cir.

2020) (quoting Harrington, 562 U.S. at 101).

Thus, a habeas

petitioner must “show that no reasonable jurist could find that
his counsel’s performance fell within the wide range of reasonable
professional conduct.”

Id.

The second prong requires the petitioner to “show that there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Sealey, 954 F.3d at 1355 (quoting Strickland, 466 U.S. at 694).
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.”

Id.

“An ineffective-assistance claim can be decided on either the
deficiency or prejudice prong.”

Id.

And “[w]hile the Strickland

standard is itself hard to meet, ‘establishing that a state court’s
application of Strickland was unreasonable under § 2254(d) is all
the more difficult.’”
The

critical

question

Id. (quoting Harrington, 562 U.S. at 105).
is

not

whether

this

Court

can

see

a

substantial likelihood of a different result had defense counsel
taken a different approach.

Mays v. Hines, 141 S. Ct. 1145, 1149

7

(2021).

All

that

matters

is

whether

the

state

court,

“notwithstanding its substantial ‘latitude to reasonably determine
that a defendant has not [shown prejudice],’ still managed to
blunder so badly that every fairminded jurist would disagree.”
Id. (quoting Knowles v. Mirazayance, 556 U.S. 111, 123 (2009)).
III. Analysis
a. Ground 1: Trial counsel failed to object to erroneous
jury instruction on justifiable use of deadly force.
The trial court gave the jury the standard instruction on
justifiable use of deadly force.

Roberts argues Kruszka should

have objected because the instruction incorrectly stated deadly
force

was

not

justified

unless

reasonable means of escape.

Roberts

had

exhausted

every

The record refutes Roberts’ claim.

The relevant part of the instruction actually read,
If the defendant was not engaged in an unlawful activity
and was attacked in any place where he had a right to
be, he had no duty to retreat and had the right to stand
his ground and meet force with force, including deadly
force, if he reasonably believed that it was necessary
to do so to prevent death or great bodily harm to himself
or to prevent the commission of a forcible felony.
(Doc. #21-1 at 38).
Roberts claims an unnamed Florida appellate court found the
instruction outdated.

The post-conviction court addressed this

issue when it denied Robert’s Rule 3.850 motion:
12. To the extend Defendant argues in his motion that
the jury instructions were invalid, defense counsel
could not be found ineffective for failing to object to
instructions which had not been invalidated at the time

8

of trial. See Nixon v. State, 932 So. 2d 1009, 1016 n.6
(Fla. 2006) (citing Waterhouse v. State, 792 So. 2d 1176,
1196 (Fla. 2001)). Moreover, as the State argued, the
jury instructions were not outdated and included
language that the Second District stated should have
been used by the trial court in Richard v. State, 39 So.
3d 431, 433 (Fla. 2d DCA 2010). Further, as the State
argued, the jury instructions that Defendant claims were
invalid have been in existence since 2010.
Hence,
defense counsel cannot be found ineffective for failing
to object to the instructions.
13. To the extent that Defendant believes the jury
instructions were invalidated by Floyd v. State, 151 SO.
3d 452, 453-54 (Fla. 1st DCA 2014), quashed by Floyd v.
State, 186 So. 3d 1013 (Fla. 2016), this argument is
misplaced. First, Floyd was decided after the case at
hand; therefore, any invalidation would have occurred
after the trial in this case.
Second, the “initial
aggressor” language that appeared in Floyd was not used
in this case.
Third, the Florida Supreme Court held
that the standard jury instruction at issue in Floyd
“accurately and correctly” explained the law to the
jury. Floyd, 186 So. 3d at 1020.
(Doc. #21-6 at 4-5).
Roberts identifies no error in the state court’s holding, and
this

Court

finds

none.

The

instruction

was

not

misleading,

invalid, or otherwise erroneous, so an objection would have been
meritless.

The Court denies Ground 1.
b. Ground 2: Trial counsel failed to move for “Stand Your
Ground” immunity before trial.

Roberts next argues a “Stand Your Ground” motion filed before
trial would have made him immune from prosecution, and Kruszka was
constitutionally
Florida’s

“Stand

ineffective
Your

because

Ground”

law

he

did

provides

not

file

one.

“immunity

from

prosecution when a defendant has used force in accordance with

9

certain specified statutory circumstances.”
170 So. 3d 766, 768 (Fla. 2015).

Bretherick v. State,

Had Kruszka filed a motion, the

burden would have been on Roberts to prove entitlement to “Stand
Your Ground” immunity by a preponderance of the evidence.

State

v. Gallo, 76 So. 3d 407, 409 n.2 (Dist. Ct. App. Fla. 2011);
Bretherick, 170 So. 3d at 775.
The post-conviction court found that Roberts failed to show
either prong of Strickland:
16. The State persuasively argues that Defendant’s
counsel was not deficient because he would not have
prevailed had a pretrial motion to dismiss been filed.
The record evidence shows that the Defendant provided
numerous inconsistent and contradictory statements and
could not have proven by the “preponderance of the
evidence” (which was the legal standard at the time)
that he reasonably believed deadly force was necessary
to prevent imminent death or great bodily harm...
17. Even if counsel was in some way deficient, Defendant
has not and could not demonstrate prejudice (the second
prong of Strickland) at any evidentiary hearing
scheduled on the 3.850 motion. He was permitted to, and
did, testify on his own behalf at trial, and the State
introduced testimony that contradicted the Defendant’s
claim of self-defense. See Dennis v. State, 51 So. 3d
456, 463 (Fla. 2010) (when trial court erroneously
denied defendant’s pretrial motion to dismiss, the
Florida Supreme Court found that the error was harmless
after jury rejected claim of self-defense at trial).
The jury was able to see identical evidence and hear
testimony from the exact same witnesses, consisting of
the Defendant, the victim, and law enforcement, who
likely would have appeared before the Court at a motion
to dismiss hearing.
The jury considered and rejected
the Defendant’s self-defense claim at trial, when the
State had the burden to prove, beyond a reasonable doubt,
that self-defense did not apply.
(Doc. #21-6 at 5-6).

10

Roberts does not challenge any part of the post-conviction
court’s reasoning.
conclusory;

he

does

Roberts’ claim that Kruszka was deficient is
not

identify

any

evidence

he

could

have

presented at a “Stand Your Ground” hearing to meet his burden of
proof.

Presumably, Roberts would have given testimony similar to

his trial testimony.

And as the post-conviction court noted, that

testimony failed to even raise a reasonable doubt of Roberts’ guilt
in the minds of the jurors.

The state court’s rejection of this

ground was not contrary to established federal law, and Roberts
has not satisfied either ground of Strickland.

Ground 2 is thus

denied.
c. Ground 3: The trial court
State’s motion in limine.

erred

by

granting

the

Finally, Roberts argues the trial court violated his Fifth,
Sixth, and Fourteenth Amendment due process rights by excluding
evidence of McDonald’s cocaine use.

Roberts argues the “evidence

was proffered to show that the victim’s inebriated state was the
very reason he was the aggressor and not the Petitioner.”

(Doc.

#1 at 7).
Before the trial court ruled on the State’s motion in limine,
Kruszka moved for a continuance so he could secure witnesses to
testify there was cocaine in McDonald’s system the night Roberts
stabbed him.

(Doc. #21-3 at 28).

The trial court denied the

motion after finding McDonald’s drug use irrelevant.

11

(Id. at 37).

Roberts appears to be challenging the trial court’s denial of his
motion to continue in addition to its grant of the State’s motion
in limine.
court.

But he did not exhaust this part of Ground 3 in state

The only federal question Roberts raised on direct appeal—

and thus the only part of Ground 3 he exhausted—is whether the
trial court violated the Sixth Amendment’s confrontation clause by
excluding McDonald’s drug use on cross-examination.
at 75-79).

(Doc. #21-1

The remainder of Ground 3 is procedurally barred.

See

Spencer v. Sec’y, Dep’t of Corr., 609 F.3d 1170, 1179 (11th Cir.
2010) (“under Florida law, a claim is procedurally barred from
being raised on collateral review if it could have been, but was
not raised on direct appeal”).
“[F]ederal

courts

will

not

generally

courts’ evidentiary determinations.”

review

state

trial

Taylor v. Sec’y, Fla. Dep’t

of Corr., 760 F.3d 1284, 1295 (11th Cir. 2014).

“Habeas relief

is warranted only when the error ‘so infused the trial with
unfairness as to deny due process of law.’”

Id. (quoting Lisenba

v. California, 314 U.S. 219, 228 (1941)).
The

trial

court

found

evidence

of

McDonald’s

drug

use

irrelevant when denying Roberts’ motion to continue, but it did
not prejudge its admissibility on cross-examination.

Kruszka did

not attempt to question McDonald about drug use, so the trial court
never explicitly excluded that line of questioning.

But even if

the court’s ruling could be interpreted as excluding McDonald’s

12

drug use—as it was by both sides in Roberts’ direct appeal—that
did not fatally infect Roberts’ trial with unfairness.
“To render a state-court proceeding fundamentally unfair, the
excluded evidence must be material in the sense of a crucial,
critical, highly significant factor.”
marks and citation omitted).

Id. (internal quotation

Roberts failed to show the relevance

of the proffered testimony at trial, on direct appeal, and here.
Roberts proffered no evidence to establish that McDonald’s cocaine
use made it more likely that he was the aggressor.

So while

questioning McDonald about his drug use might have given the jury
a negative impression of him, it was not material to Roberts’ claim
of self-defense.

What is more, McDonald testified that he drank

several beers before his confrontation with Roberts, and Roberts
was allowed to testify that McDonald appeared inebriated.

Roberts

was thus given a fair opportunity to show that McDonald was the
aggressor.
The Court denies Ground 3.
IV.

Certificate of Appealability

A prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his petition.
28 U.S.C. § 2253(c)(1).

Rather, a district court must first issue

a certificate of appealability (COA).

“A [COA] may issue...only

if the applicant has made a substantial showing of the denial of
a constitutional right.”

28 U.S.C. § 2253(c)(2).

13

To make such a

showing, a 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 v. Cockrell, 537 U.S. 322, 335–36
(2003) (citations omitted). Roberts has not made the requisite
showing here and may not have a certificate of appealability on
any ground of his Petition.
Accordingly, it is
ORDERED:
Petitioner Michael E. Roberts’ Petition Under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State Custody (Doc.
1) is DENIED.

The Clerk is DIRECTED to terminate all pending

motions and deadlines, enter judgment, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of June 2021.

SA: FTMP-1
Copies:
Petitioner and Counsel of Record

14

7th

day