West v. Secretary, Department of Corrections et al
ORDER denying 1 Petition and dismissing this case with prejudice; directions to the Clerk. Signed by Judge Timothy J. Corrigan on 1/11/2018. (JLD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 3:12-cv-454-J-32JBT
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS and ATTORNEY
GENERAL, STATE OF FLORIDA,
Petitioner, an inmate of the Florida penal system, initiated this case by filing a pro se
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) (Petition). He
challenges his 2008 state court (Duval County) judgment of conviction for conspiracy to
traffic in heroin and trafficking in heroin. Petitioner was sentenced to a total term of
imprisonment of 30 years. Respondents filed an Answer (Doc. 13) (Answer),1 and Petitioner
filed a Reply (Doc. 16) (Reply). Petitioner then obtained counsel, who sought a stay of the
case to review the docket and pleadings (Doc. 24). Counsel subsequently filed a
Memorandum of Law in Support of the Petition (Doc. 27) (Memorandum). Respondents
The Court cites to the exhibits attached to the Answer as “Ex.” Respondents did not
include the complete trial transcript. The Court takes judicial notice of the missing portion
from the state court docket.
notified the Court that they would rely on the arguments previously made in the Answer (Doc.
30). The case is ripe for review.2
II. Governing Legal Principles
Standard of Review
The Antiterrorism and Effective Death Penalty Act (AEDPA) governs a state prisoner’s
federal habeas corpus petition. See Ledford v. Warden, Ga. Diagnostic & Classification
Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The
purpose of AEDPA is to ensure that federal habeas relief functions as a guard against
extreme malfunctions in the state criminal justice systems, and not as a means of error
correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).
Under AEDPA, when a state court has adjudicated the
petitioner’s claim on the merits, a federal court may not grant
habeas relief unless the state court’s decision was “contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States,” 28 U.S.C. § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” id. § 2254(d)(2). A
state court’s factual findings are presumed correct unless
rebutted by clear and convincing evidence. Id. § 2254(e)(1);
Ferrell v. Hall, 640 F.3d 1199, 1223 (11th Cir. 2011).
“In a habeas corpus proceeding, the burden is on the petitioner to establish the need
for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318 (11th
Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011)).
“In deciding whether to grant an evidentiary hearing, a federal court must consider whether
such a hearing could enable an applicant to prove the petition’s factual allegations, which,
if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S.
465, 474 (2007) (citation omitted). “It follows that if the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district court is not required to hold an
evidentiary hearing.” Id. The pertinent facts of this case are fully developed in the record
before the Court, and “further factual development” is not necessary. Turner v. Crosby, 339
F.3d 1247, 1275 (11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.
AEDPA “imposes a highly deferential standard for
evaluating state-court rulings” and “demands that state-court
decisions be given the benefit of the doubt.” Renico v. Lett, 559
U.S. 766, 773 (2010) (internal quotation marks omitted). “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.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal
quotation marks omitted). “It bears repeating that even a strong
case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. [at 102] (citing Lockyer v.
Andrade, 538 U.S. 63, 75 (2003)). The Supreme Court has
repeatedly instructed lower federal courts that an unreasonable
application of law requires more than mere error or even clear
error. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 18 (2003);
Lockyer, 538 U.S. at 75 (“The gloss of clear error fails to give
proper deference to state courts by conflating error (even clear
error) with unreasonableness.”); Williams v. Taylor, 529 U.S.
362, 410 (2000) (“[A]n unreasonable application of federal law
is different from an incorrect application of federal law.”).
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal citations
“[A] federal court reviewing the judgment of a state court must first identify the last
adjudication on the merits. It does not matter whether that adjudication provided a reasoned
opinion because section 2254(d) ‘refers only to a decision’ and does not ‘requir[e] a
statement of reasons.’” Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235 (11th
Cir. 2016), cert. granted, 137 S. Ct. 1203 (2017), (quoting Richter, 562 U.S. at 98).
Regardless of whether the last state court provided a reasoned opinion, “it may be presumed
that the state court adjudicated the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.” Richter, 562 U.S. at 99 (citation omitted).
When the last adjudication on the merits “‘is unaccompanied by an explanation,’ a
petitioner’s burden under section 2254(d) is to ‘show there was no reasonable basis for the
state court to deny relief.’” Wilson, 834 F.3d at 1235 (quoting Richter, 562 U.S. at 98). “‘[A]
habeas court must determine what arguments or theories supported or . . . could have
supported, the state court’s decision; and then it must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with the holding in
a prior decision of [the] Court.’” Id. (quoting Richter, 562 U.S. at 102).
When the reasoning of the state trial court was reasonable,
there is necessarily at least one reasonable basis on which the
state supreme court could have denied relief and our inquiry
ends. In this way, federal courts can use previous opinions as
evidence that the relevant state court decision under review is
reasonable. But the relevant state court decision for federal
habeas review remains the last adjudication on the merits, and
federal courts are not limited to assessing the reasoning of the
Id. at 1239.3
Exhaustion and Procedural Default
There are prerequisites to federal habeas review. Before filing a habeas petition in
federal court, a petitioner must exhaust all available state court remedies. To exhaust state
remedies, the petitioner must “fairly present” each issue raised in his federal petition to the
state’s highest court. Castille v. Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted). This
means that a “state prisoner must give the state courts an opportunity to act on his claims
before he presents those claims to a federal court in a habeas petition.” O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999); Raleigh v. Sec’y, Fla. Dep’t of Corr., 827 F.3d 938, 956
(11th Cir. 2016), cert. denied, Raleigh v. Jones, 137 S. Ct. 2160 (2017) (“The petitioner must
Wilson is currently before the Supreme Court. However, even under pre-Wilson AEDPA
jurisprudence, the result here would be the same.
have presented the claim in a manner that affords the State a full and fair opportunity to
address and resolve the claim on the merits.” (quotations and citation omitted)). 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.” Preston v. Sec’y, Fla. Dep’t of Corr.,
785 F.3d 449, 457 (11th Cir. 2015). Rather, “[t]he crux of the exhaustion requirement is
simply that the petitioner must have put the state court on notice that he intended to raise
a federal claim.” Id.
Failure to exhaust results in a procedural default which raises a potential bar to
federal habeas review. “A state prisoner may overcome the prohibition on reviewing
procedurally defaulted claims if he can show ‘cause’ to excuse his failure to comply with the
state procedural rule and ‘actual prejudice resulting from the alleged constitutional violation.’”
Davila v. Davis, 137 S. Ct. 2058, 2064-65 (2017) (citing Wainwright v. Sykes, 433 U.S. 72,
84 (1977); Coleman v. Thompson, 501 U.S. 722, 750 (1991)). To show cause for a
procedural default, “the petitioner must demonstrate ‘some objective factor external to the
defense’ that impeded his effort to raise the claim properly in state court.” Ward v. Hall, 592
F.3d 1144, 1157 (11th Cir. 2010) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). “[T]o
show prejudice, a petitioner must demonstrate that ‘the errors at trial actually and
substantially disadvantaged his defense so that he was denied fundamental fairness.’” Id.
(quoting McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992) (per curiam)).
A petitioner may also obtain review of a federal habeas claim that is procedurally
defaulted if he can show that a “constitutional violation has probably resulted in the
conviction of one who is actually innocent[.]” Murray, 477 U.S. at 496. Actual innocence
means factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614,
623 (1998). 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).
Petitioner asserts that newly discovered evidence proves his actual innocence. After
Petitioner’s trial, his codefendant (Anthony Sweeting) signed an affidavit4 stating that
Petitioner (1) “did not have anything to do with the narcotics that w[ere] found in the rental
car;” (2) “had no knowledge of the narcotics and no dealings of anything illegal;” and (3) “was
only a passenger along for the ride.” Ex. Z at 18. In his counseled Memorandum, Petitioner
argues that his freestanding actual innocence claim is a colorable claim that can be raised
on federal habeas review.
While a federal habeas petitioner may allege actual innocence to overcome a
procedural bar or the application of the one-year limitations period, the Supreme Court has
“not resolved whether a prisoner may be entitled to habeas relief based on a freestanding
claim of actual innocence.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013) (citing
Herrera v. Collins, 506 U.S. 390, 404-05 (1993)). However, the Eleventh Circuit, which this
The affidavit was signed one day after Mr. Sweeting was sentenced.
Court must follow, “forbids granting habeas relief based upon a claim of actual innocence,
anyway, at least in non-capital cases.” Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1356
(11th Cir. 2007) (citations omitted); see also Cunningham v. Dist. Attorney's Office for
Escambia Cty., 592 F.3d 1237, 1272 (11th Cir. 2010) (recognizing that “this Court’s own
precedent does not allow habeas relief on a freestanding innocence claim in non-capital
cases”). Therefore, Petitioner’s claim is not cognizable on federal habeas review.
Assuming Petitioner could raise a freestanding actual innocence claim, he would be
required to show that “in light of the new evidence, no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 329. Petitioner
cannot meet this high standard.
The following is a summary of the evidence adduced at trial (taken from the state’s
response to Petitioner’s state court post-conviction motion).
The Defendant’s activities were revealed as part of a
wiretap investigation. A wiretap was placed in his
codefendant’s cellular telephone. The electronic surveillance
and other testimony given at trial revealed the following: the
Defendant was part of a group of individuals involved in the
trafficking of heroin from Miami to Jacksonville, FL. The
Defendant’s purpose in the organization was to serve as a
body guard for his codefendant, Anthony Sweeting. The
Defendant accompanied his codefendant on numerous trips
from Miami to a Jacksonville residence, referred to as the
“Trap,” to deliver heroin. The Defendant and Sweeting
participated in the bagging of heroin for distribution at the
Defendant’s residence. The Defendant received proceeds from
the sale of heroin. The Defendant received a phone call from
his codefendant acknowledging that “they keep calling,” which
is code for needing an additional supply of heroin. The
Defendant was stopped in Jacksonville on his way to the Trap
with heroin in the car, but released in an effort to obtain more
information about the organization. The day after the stop, the
Defendant engaged in a conversation with other codefendants
regarding law enforcement’s acquisition of the dope and
questioned whether the officers were “dirty.” The heroin that
was taken when the Defendant was stopped in Jacksonville
was supposed to be supplied to the Trap. The Defendant came
to Jacksonville to sell heroin.
Ex. Z at 127-28 (citations omitted). Considering the evidence adduced at trial along with the
“new affidavit,” the Court finds that Petitioner has not shown “that it is more likely than not
that no reasonable juror would have convicted him” if the information in the affidavit had
been presented at his trial. Even if Petitioner could raise a freestanding actual innocence
claim, he would not be entitled to federal habeas relief.
Petitioner argues that the evidence was insufficient to prove constructive possession,
because the state failed to prove that he had “knowledge” of the controlled substance that
was found in the vehicle. See Memorandum at 29 (requesting that this Court find “as to the
possession of narcotics count” that “there was no evidence introduced that [he] had
knowledge of those specific narcotics”). He indicates that he raised this claim in his Rule
3.850 motion. See Petition at 7.
A sufficiency of the evidence claim is properly raised on direct appeal rather than in
a post-conviction motion. Petitioner did not raise this issue on direct appeal. He attempted
to raise it in his post-conviction motion, but the state court did not address it because it was
not clearly presented. Thus, because Petitioner failed to properly present this claim to the
state courts in a procedurally correct manner, it is procedurally defaulted on federal habeas
review. Petitioner has shown neither cause excusing the default nor resulting prejudice. He
also has failed to identify any fact warranting the application of the fundamental miscarriage
of justice exception. Thus, Petitioner is not entitled to relief on this claim.
Nevertheless, the Due Process Clause of the Fourteenth Amendment requires the
state to prove beyond a reasonable doubt each element of the offense charged. See
Jackson v. Virginia, 443 U.S. 307, 316 (1979). “The relevant question in reviewing the
sufficiency of the evidence supporting a criminal conviction is ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’” Hallford v. Culliver,
459 F.3d 1193, 1205-06 (11th Cir. 2006) (per curiam) (quoting Jackson, 443 U.S. at 319).
In reviewing the evidence presented at trial, “this court must presume that conflicting
inferences to be drawn from the evidence were resolved by the jury in favor of the State.”
Thompson v. Nagle, 118 F.3d 1442, 1448 (11th Cir. 1997) (citing Machin v. Wainwright, 758
F.2d 1431, 1435 (11th Cir. 1985)). After a thorough review of the trial transcript, it is clear
that the state presented sufficient evidence on each element of the charged offense for a
“rational trier of fact” to find “the essential elements of the crime beyond a reasonable doubt.”
Hallford, 459 F.3d at 1206 (quotations and citation omitted). The jury was entitled to believe
the state’s witnesses and consider the testimony along with the other evidence presented,
including the wiretap transcripts. Petitioner’s sufficiency of the evidence claim is without
At Petitioner’s sentencing hearing, the trial judge denied a motion for a judgment of
acquittal based on insufficiency of the evidence: “Yes, I’m denying it on the merits. There
was sufficient evidence to go – or I would have entered a judgment of acquittal on my own
motion without Mr. West even having to do it.” Ex. H at 439.
Petitioner claims that the statutes under which he was convicted are unconstitutional.
To support this ground, he cites Shelton v. Sec’y, Dep’t of Corr., 802 F. Supp. 2d 1289 (M.D.
Fla. 2011). As Petitioner recognizes in his Reply and Memorandum, the case on which he
relied was reversed by the Eleventh Circuit after the Petition was filed. See Shelton v. Sec’y,
Dep’t of Corr., 691 F.3d 1348 (11th Cir. 2012). Thus, there is no merit to this claim.
Petitioner argues that the trial court erred “by allowing the jury to be unduly prejudiced
by inadmissible evidence of Petitioner being required to wear a security device which was
tantamount to shackling.” Petition at 10.
At trial, the following discussion occurred outside the presence of the jury.
[PROSECUTOR]: If you don’t mind, a quick matter,
since we’re waiting. I have a concern about one issue I’m not
quite sure how to address. I need to seek some of the Court’s
guidance on this. I know that because of the nature of this
courtroom and because of the charges, that Mr. West is
wearing a security leg brace. And I have noticed during the
course of the trial that it has become very apparent and
obvious that it bothers him somewhat as he moves from his
chair to the podium to ask questions, and that it is actually
even audible that it is on him. He appears to, at least from
somebody who doesn’t know, it has the appearance that he
has a handicap of some sort or has some problem with his leg.
As the Court is aware now that the allegations in this
case are that his - - the reason he became involved in this is,
it [is] our allegation, that he was a bodyguard for both Joseph
Sweeting and Anthony Sweeting and came up here to
participate in the activity in that capacity. And I know that the
jury has noticed that leg brace, and it is somewhat - - I don’t
think it is somewhat. I think it probably significantly undermines
the state’s theory of the case and almost becomes testimonial
to a certain degree.
And I have been trying to think of ways to handle that
issue. If Mr. West testifies ultimately, I think I can probably ask
him if he has any impairments to his leg, and it can be placed
before the jury that way. But, of course, I have a duty to put all
of the evidence and the complete case before we get there.
And I don’t know whether he is going to testify or not.
Obviously, he doesn’t have to testify, and I have to have my
case completed when I rest.
So I wanted to mention it to the Court. I have a couple
of possible suggestions as to how to handle it. I don’t know if
the Court - - I’m sure the Court is more experienced with this
than I am. But mostly the defendants sit over there at the table
and the jury doesn’t see it. You know, if they testify, they are
put in the witness stand before the jury comes out, and the
Court generally handles it that way. So I thought I would throw
that out and we can address it before I close.
THE COURT: Wayne, what is you-all’s rule about that?
THE BAILIFF: They are supposed to wear it. That is all.
THE COURT: It is mandatory whenever they are not - THE BAILIFF: Whenever they are dressed out.
[PROSECUTOR]: I’m not faulting anybody for it, Judge. I
understand the need for it. I’m not criticizing or faulting
anybody for it.
[THE COURT]: I was going to say, one solution would be that
we could take it off, but if their rule is that it is mandatory, I’m
not going to order them to violate their rules. I won’t get fired
for it; they will.
[PROSECUTOR]: They do need to get a can of oil for that thing
though because it is squeaking awful.
[PROSECUTOR]: I bring it to the Court’s attention because I
think it is a significant problem and could be problematic for the
jury. And like I said, it can be solved if he takes the stand and
I’m allowed to inquire into if he has any handicaps or
impairments. We don’t know whether he is going to do that. We
can’t make him tell us whether he is going to do that or not so
I’m at a hard spot.
THE COURT: Well, I have gotten a lot of complaints from
defense counsel since we have been using that. The jurors do
notice it, and they figure out what it is, and it is tantamount to
having them shackled in view of the jury, which violates the
THE COURT: As a general rule, if the defendant is doing
nothing more active than just being - - sitting in the counsel
table throughout the trial and we bring him in and out when the
jury is not here, then it is very unobtrusive and they don’t know.
In a case where the defendant is, for whatever reason, moving
around, I have had numerous complaints from defense counsel
that that device is not candescent, and at least it is visible
through his clothing, and it changes his gait and makes it
obvious that he is wearing some kind of restraining device. And
their theory is the jury figures it out and knows what it is, so it
is the same as having him shackled.
[PROSECUTOR]: But that is a defense theory trying to make
a record for something else. My concern is that the jury - - an
equally, you know, viable theory is that he has a leg brace
because he has a handicap or impairment, which completely
undermines the state’s theory of the case that he is a strong
man or an enforcer, so it concerns me.
And I know the Court is reluctant to comment upon it,
but I thought perhaps there are a couple - THE COURT: I think if I told them what it was, it would be
certain reversible error right there.
[PROSECUTOR]: I’m concerned about it too, but I’m
wondering if the Court would entertain - - and maybe the Court
needs to think about it - - obviously, going on with the case
here - - some kind of instruction that any - - or if the Court will
allow me to ask Detective Cook whether he is aware of Mr.
West suffering any handicaps, impairments, or anything during
the course of the pendency of this investigation up to and
including his arrest, whether there is anything physically wrong
THE COURT: I don’t think you can ask the detective that.
[PROSECUTOR]: Well, I think I can ask the detective in any of
his contact did he wear a leg brace?
THE COURT: Oh, you can ask him that. Anything that he has
physically seen or not seen, sure. But you can’t say, Is he
handicapped or not? That is clearly a medical - [PROSECUTOR]: Well, then I would move the Court to instruct
the bailiffs to remove the restraining device.
THE COURT: I’m not going to do that. If they violate those
standing rules on handling the prisoners, they - - and we’ve
had it happen right in this courtroom - - they get disciplinary
action for it.
[PROSECUTOR]: May I directly ask the bailiffs if they would be
willing to consider it?
THE COURT: Sure.
[PROSECUTOR]: Would you consider removing it for the
purposes that I’ve enumerated?
THE BAILIFF: No.
Ex. G at 327-33. Petitioner, who represented himself at trial, did not object or comment on
With the benefit of counsel, Petitioner raised this claim on direct appeal. Ex. J. The
state filed an answer brief arguing that Petitioner had not properly preserved the issue
because he did not raise it at trial or otherwise object to wearing the security leg brace. Ex.
K. The state further argued that because Petitioner was representing himself, the need to
maintain courtroom security outweighed his right to stand before the jury without restraint.
Id. The First DCA per curiam affirmed Petitioner’s judgment of conviction without issuing a
written opinion. Ex. M.
The First DCA could have agreed with the state’s argument and affirmed because
Petitioner failed to properly preserve the issue for appeal. Indeed, “to be preserved for
further review by a higher court, an issue must be presented to the lower court and the
specific legal argument or ground to be argued on appeal or review must be part of that
presentation if it is to be considered preserved.” Tillman v. State, 471 So. 2d 32, 35 (Fla.
1985) (citations omitted); see Brown v. State, 856 So. 2d 1116, 1117 (Fla. 4th DCA 2003)
(“Prior to trial, Brown requested the shackles be taken off; however, after the trial court
stated it[s] reasons for refusing to grant that request, Brown neither requested a hearing to
make an inquiry into the necessity for shackles nor did he contest the trial court’s stated
reasons. Since the trial court was never given the opportunity to rule upon this specific
argument and we find no fundamental error, appellate review is precluded”). While the state
objected to the use of the leg restraint during Petitioner’s trial, Petitioner remained silent.
Because Petitioner failed to object to the use of the leg brace at trial, he did not properly
preserve the issue for appeal. Assuming the First DCA rejected the claim based on
Petitioner’s failure to preserve it, the claim is likewise barred on federal habeas review. See
Finney v. McDonough, No. 8:02-cv-2217-T-30TBM, 2006 WL 2024456, at *14-15 (M.D. Fla.
2006) (unpublished) (a federal habeas petitioner argued that the state trial court erred in
denying his request to have the shackles removed during the penalty phase of his trial; the
Florida Supreme Court rejected the claim, finding that he failed to properly preserve the
issue for appeal; and the federal habeas court found the claim to be procedurally barred).
Petitioner has shown neither cause to excuse the default nor resulting prejudice. He also has
not shown that a fundamental miscarriage of justice will result if this Court declines to hear
this claim on the merits. Therefore, Petitioner’s claim is barred, and he is not entitled to
federal habeas relief.
Insofar as the First DCA decided the claim on the merits, this Court is required to
apply AEDPA deference to that decision. “The law has long forbidden routine use of visible
shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the
presence of a special need.” Deck v. Missouri, 544 U.S. 622, 626 (2005) (emphasis added).
This is so because “[v]isible shackling undermines the presumption of innocence and the
related fairness of the factfinding process.” Id. at 630. Additionally, it is important to maintain
the dignity and decorum of the courtroom and to allow for ready communication between the
accused and his counsel.6 Id. at 631. But, it is also recognized that criminal trials are not
conducted in a “crystalline palace,” and often, security measures must be taken to ensure
the safety and security of the judge, the lawyers, the jury, and the courtroom personnel. Allen
v. Montgomery, 728 F.2d 1409, 1413 (11th Cir. 1984).
This issue came up at trial in an unusual way: instead of the defendant objecting to
the jury seeing the leg brace, it was the prosecutor. The prosecutor’s concern was that the
jury would infer Petitioner had “a handicap of some sort or has some problem with his leg,”
which was inconsistent with the state’s theory of the case. Thus, the record only contains the
observations of the prosecutor and the trial judge’s commentary on what had occurred in
This concern is not present in this case because Petitioner represented himself.
prior cases in which defendants wore the same leg brace. The prosecutor asked two
witnesses if they had ever seen Petitioner wear a leg brace or have difficulty walking; both
witnesses responded negatively. Ex. G at 355, 469. Perhaps in an attempt to further
contradict the state’s theory, Petitioner asked a witness whether the witness knew that
Petitioner had once been “labeled 85 percent paralyzed on [his] left side” or whether he had
ever seen Petitioner walk with a limp. Ex. G at 471-72.
If Petitioner had objected at trial, the trial judge would have been required to make a
record and rule on the issue.7 But Petitioner did not object. While the issue could have been
handled better, given the record, the Court cannot find that the First DCA’s decision was
contrary to clearly established federal law, involved an unreasonable application of clearly
established federal law, or was based on an unreasonable determination of the facts in light
of the evidence presented. Thus, Petitioner is not entitled to federal habeas relief.
It is ORDERED:
The Petition (Doc. 1) is DENIED, and this case is DISMISSED WITH
The Clerk shall enter judgment denying the Petition and dismissing this case
with prejudice and thereafter close the file.
If Petitioner appeals the denial of the Petition, the Court denies a certificate of
appealability.8 Because the Court has determined that a certificate of appealability is not
If the trial judge was required to consider an objection by the Petitioner at trial, he could
not simply defer the decision to the bailiff, as he did here.
This Court should issue a certificate of appealability only if Petitioner makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make
warranted, the Clerk of Court shall terminate from the pending motions report any motion to
proceed on appeal as a pauper that may be filed in this case. Such termination shall serve
as a denial of the motion.
DONE AND ORDERED in Jacksonville, Florida, this 11th day of January, 2018.
Marshaun West, #430962
Counsel of Record
this substantial 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 v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack, 529 U.S. at 484). “Where a
district court has rejected the constitutional claims on the merits, . . . [t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. However, “[w]hen the
district court denies a habeas petition on procedural grounds . . . a [certificate of
appealability] should issue when the prisoner shows, at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Id. After consideration of the record as a whole, the Court denies a
certificate of appealability.
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