Arnold v. Secretary, Department of Corrections et al
ORDER denying 5 the amended petition, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 3/6/2018. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
RODRIQUEZ L. ARNOLD,1
Case No. 3:13-cv-1132-J-39JRK
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Petitioner Rodriquez L. Arnold challenges a 2008 Suwannee
firearm, shooting into an occupied motor vehicle, and possession of
a firearm by a convicted felon.
He initiated this case by filing
a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (Petition) (Doc. 1) on September 9, 2013,
pursuant to the mailbox rule.
The Court found that he failed to
complete the habeas corpus petition form, including failing to
respond to all of the questions on the form that the Court is
required to review. Order (Doc. 3). The Court directed Petitioner
to file an amended petition.
Petitioner filed his Amended
The Clerk of the Court shall correct Petitioner's name on
The Court notes that in the state court record,
Petitioner is referred to as Rodriguez Arnold, and the Court will
do the same when referring to the state court record.
Petition (Doc. 5) pursuant to the mailbox rule on September 24,
In the Amended Petition, Petitioner raises nine claims for
habeas relief. Respondents filed an Answer to Petition for Writ of
Habeas Corpus (Response) (Doc. 26) with supporting Exhibits.2
Petitioner filed a Reply to Respondents' Answer Brief (Reply) (Doc.
See Order (Doc. 8).
He filed appendices on February 8, 2018
(Doc. 35), pursuant to the mailbox rule.3
CLAIMS OF PETITION
ineffective assistance of counsel for failure to argue in support
of a motion for a judgment of acquittal that the state failed to
Petitioner was in fact the person who discharged a firearm into the
vehicle and/or the body of the victim; (2) ineffective assistance
of counsel for failure to effectively cross examine Jeff Foggy, the
state's firearms and ballistics expert, and/or call him for the
purpose of impeachment; (3) ineffective assistance of counsel for
failure to move to conduct an adequate investigation into the
The Court hereinafter refers to the Exhibits as "Ex." Where
provided, the page numbers referenced in this opinion are the Bates
stamp numbers at the bottom of each page of the exhibit.
Otherwise, the page number on the particular document will be
referenced. The Court will reference the page numbers assigned by
the electronic docketing system where applicable.
The Court will refer to the appendices as "App."
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shooting; (4) ineffective assistance of counsel for failure to
object to the state's discovery violation and/or move for a
assistance of counsel for failure to effectively cross examine,
ineffective assistance of counsel for failure to object to the
state's closing argument and move for mistrial on the ground of
impermissible burden shifting and/or other improprieties; (8)
ineffective assistance of counsel for failure to request that the
jury be informed that it could have a witnesses' testimony read
back in response to the second jury question; and (9) ineffective
assistance of counsel for failure to adequately prepare witness
Stephanie Brown Arnold for trial.
The Court will address the nine grounds raised in the Amended
Petition, see Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992).
Respondents urge this Court to deny habeas relief. Response at 72.
It is Petitioner's burden to establish the need for a federal
Chavez v. Sec'y, Fla. Dep't of Corr., 647
F.3d 1057, 1060 (11th Cir. 2011), cert. denied, 565 U.S. 1120
A district court is not required to hold an evidentiary
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hearing if the record refutes the asserted factual allegations or
otherwise precludes habeas relief.4 Schriro v. Landrigan, 550 U.S.
465, 474 (2007).
In this case, the pertinent facts are fully
developed in the record before the Court.
As a result, this Court
can "adequately assess [Petitioner's] claim[s] without further
factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th
Cir. 2003), cert. denied, 541 U.S. 1034 (2004), and no further
evidentiary proceedings are required in this Court.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (AEDPA)
governs a state prisoner's federal petition for habeas corpus. See
Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert.
denied, 137 S.Ct. 1432 (2017).
"AEDPA limits the scope of federal
habeas review of state court judgments[.]"
Pittman v. Sec'y, Fla.
Dep't of Corr., 871 F.3d 1231, 1243 (11th Cir. 2017).
AEDPA ensures that federal habeas relief is limited to extreme
malfunctions, and not used as a means to attempt to correct state
It is important to note that Petitioner received a post
conviction evidentiary hearing in the trial court on claims of
ineffective assistance of counsel. After the filing of his post
conviction motion, the trial court appointed counsel and set the
case for a status conference. Ex. 31. The record shows that the
court appointed the Office of Regional Conflict Counsel to
represent Petitioner. Id. at 2. Appointed counsel, John Broling,
represented Petitioner in the evidentiary proceeding which took
place on September 4, 2012. Ex. 32, Hearing on Post Conviction
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Ledford, 818 F.3d at 642 (quoting Greene v. Fisher,
132 S.Ct. 38, 43 (2011)).
The parameters of review are as follows:
Thus, under AEDPA, a person in custody
pursuant to the judgment of a state court
shall not be granted habeas relief on a claim
"that was adjudicated on the merits in State
court proceedings" unless the state court's
decision was "contrary to, or involved an
established Federal law as determined by the
Supreme Court of the United States; or ... 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). "For § 2254(d), clearly established
federal law includes only the holdings of the
Supreme Court—not Supreme Court dicta, nor the
opinions of this Court." Taylor v. Sec'y, Fla.
Dep't of Corr., 760 F.3d 1284, 1293–94 (11th
As for the "contrary to" clause, "a
federal habeas court may grant the writ if the
state court arrives at a conclusion opposite
to that reached by [the Supreme Court] on a
question of law or if the state court decides
a case differently than [the Supreme Court]
has on a set of materially indistinguishable
facts." Terry Williams v. Taylor, 529 U.S.
362, 412–13, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000). Under the "unreasonable application"
clause, a federal habeas court may "grant the
writ if the state court identifies the correct
governing legal principle from [the Supreme
Court's] decisions but unreasonably applies
that principle to the facts." Id. at 413, 120
S.Ct. 1495. "In other words, a federal court
may grant relief when a state court has
misapplied a 'governing legal principle' to 'a
set of facts different from those of the case
in which the principle was announced.'"
Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct.
2527, 156 L.Ed.2d 471 (2003) (quoting Lockyer
v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166,
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155 L.Ed.2d 144 (2003)). And "an 'unreasonable
application of' [Supreme Court] holdings must
be objectively unreasonable, not merely wrong;
even clear error will not suffice." Woods v.
Donald, ––– U.S. ––––, 135 S.Ct. 1372, 1376,
191 L.Ed.2d 464 (2015) (per curiam) (quotation
omitted). To overcome this substantial hurdle,
"a state prisoner must show that the state
court's ruling on the claim being presented in
federal court was so lacking in justification
that there was an error well understood and
comprehended in existing law beyond any
possibility for fairminded disagreement."
Harrington v. Richter, 562 U.S. 86, 103, 131
S.Ct. 770, 178 L.Ed.2d 624 (2011). This is
"meant to be" a difficult standard to meet.
Id. at 102, 131 S.Ct. 770.
Pittman, 871 F.3d at 1243-44.
There is a presumption of correctness of state court's factual
28 U.S.C. § 2254(e)(1).
The standard of
proof is demanding, requiring that a claim be highly probable.
Bishop v. Warden, GDCP, 726 F.3d 1243, 1258 (11th Cir. 2013), cert.
denied, 135 S.Ct. 67 (2014). Also, the trial court's determination
will not be superseded if reasonable minds might disagree about the
Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015).
Also of note, "[t]his presumption of correctness applies equally to
factual determinations made by the state trial and appellate
Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284
(11th Cir. 2012) (quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th
Cir. 2003)), cert. denied, 568 U.S. 1233 (2013).
In applying AEDPA deference, the first step is to identify the
last state court decision that evaluated the claim on its merits.
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Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th
Once identified, the Court reviews the state court's
decision, "not necessarily its rationale."
Pittman, 871 F.3d at
1244 (quoting Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 785
(11th Cir. 2003) (citation omitted)).
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." Harrington v. Richter, 562
U.S. 86, 99 (2011). "The presumption may be overcome when there is
reason to think some other explanation for the state court's
decision is more likely." Richter, 562 U.S. at 99-100 (citing Ylst
v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the last adjudication on the merits is unaccompanied by
an explanation, the petitioner must demonstrate there was no
reasonable basis for the state court to deny relief.
Id. at 98.
supported or, as here, could have supported, the state court's
decision; and then it must ask whether it is possible fairminded
As suggested by the Eleventh Circuit in Butts v. GDCP
Warden, 850 F.3d 1201, 1204 (11th Cir. 2017), cert. denied, 2018 WL
491544 (U.S. Jan. 22, 2018), in order to avoid any complications if
the United States Supreme Court decides to overturn Eleventh
Circuit precedent as pronounced in Wilson v. Warden, Ga. Diagnostic
Prison, 834 F.3d 1227 (11th Cir. 2016) (en banc), cert. granted,
137 S.Ct. 1203 (2017), this Court, will employ "the more statetrial-court focused approach in applying § 2254(d)[,]" where
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inconsistent with the holding in a prior decision of [the] Court."
Richter, 562 U.S. at 102; Marshall, 828 F.3d at 1285.
Although the § 2254(d) standard is difficult to meet, it was
meant to be difficult.
Rimmer v. Sec'y, Fla. Dep't of Corr., 876
F.3d 1039, 1053 (11th Cir. 2017) (opining that to reach the level
of an unreasonable application of federal law, the ruling must be
objectively unreasonable, not merely wrong or even clear error).
Indeed, in order to obtain habeas relief, "a state prisoner must
presented . . . was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement."
Richter, 562 U.S. at
Before addressing each ground raised in the Amended Petition,
the Court will provide a brief procedural history.
charged by amended information with attempted murder in the second
degree with a firearm, shooting into an occupied vehicle, and
possession of a firearm by a convicted felon.
filed a notice of intention to seek sentencing as a habitual felony
offender and a notice of Petitioner's qualification as a prison
releasee reoffender. Ex. 2; Ex. 3. The court granted Petitioner's
motion to sever the possession count.
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The trial on the first two counts commenced on February 13,
Curiously, the jury returned a verdict of guilty as
to count one, the attempted murder in the second degree charge,
commission of the offense, but also found that the discharge of the
firearm did not result in great bodily harm, and also returned a
verdict of guilty to the charge of shooting a firearm at, within or
into an occupied vehicle, and found the discharge or actual
shooting of the firearm during the commission of the offense
resulted in great bodily harm.6
judgment February 14, 2008.
The trial court entered
Petitioner moved for a new
The trial court conducted the trial on the third count on
March 11, 2008.
The jury returned a guilty verdict.
The trial court entered judgment on March 11, 2008.
Although in his Amended Motion for New Trial and Motion for
Arrest of Judgment, Ex. 15, Petitioner raised the issue of
inconsistent verdicts, he does not raise this claim in his federal
Indeed, in his Amended Petition he does not assert that
these verdicts constituted truly inconsistent verdicts, those in
which an acquittal of one negates a necessary element of another.
See Brown v. State, 959 So.2d 218, 220 (Fla. 2007) (recognizing the
possibility of a wrongful conviction outweighing the rationale
permitting inconsistent verdicts in Florida).
Florida, inconsistent verdicts are allowed because a jury verdict
can be due to lenity or compromise.
Id. at 220 (citations
omitted). In order to have truly inconsistent verdicts on legally
interlocking charges, there must be an acquittal on one count which
negates a necessary element for conviction of the other count.
Dayes v. McNeil, No. 08-22711-CIV, 2010 WL 1796812, at *3 (S.D.
Fla. May 3, 2010) (citation and internal quotation omitted).
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Petitioner moved for a new trial.
The trial court denied
Ex. 16 at 171.
Petitioner filed an amended motion for new trial and motion
for arrest of judgment on counts one and two.
Ex. 16 at 170.
held a sentencing proceeding.
On June 5, 2008, the trial court
The court sentenced
Petitioner to concurrent sentences of life imprisonment as a prison
releasee reoffender, with a twenty-year mandatory minimum term for
use of a firearm on count one, fifteen years imprisonment as a
imprisonment with a three-year mandatory minimum term for use of a
firearm on count three.
Id. at 20-21.
judgment and sentence on June 5, 2008.
The trial court entered
Through counsel, Petitioner
filed a Rule 3.800(b)(2) motion challenging the sentence on count
The trial court granted the motion, Ex. 21, and the
trial court entered an amended judgment and sentence reflecting a
thirty-year sentence on count one as a prison releasee reoffender,
with a twenty-year minimum mandatory term for use of a firearm.
Through counsel, Petitioner filed an appeal brief.
The state filed an answer brief.
On June 21, 2010,
the 1st DCA affirmed per curiam with a written opinion.
The mandate issued on July 7, 2010.
Ex. 26; Ex. 27; Ex. 28.
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On November 16,
2010, the Supreme Court of Florida declined to accept jurisdiction
and denied the petition for review.
On November 15, 2011, pursuant to the mailbox rule, Petitioner
filed a Motion for Postconviction Relief (Rule 3.850 motion).
The circuit court found an evidentiary hearing required on
grounds one and three and appointed the Office of Regional Conflict
Counsel to represent Petitioner.
On September 4, 2012,
the trial court conducted an evidentiary hearing.
on Post Conviction Motion.
Ex. 32, Hearing
The trial court denied the Rule 3.850
motion in its Order Denying Motion for Postconviction Relief . Ex.
Ex. 33; Ex. 34.
The state filed an
The 1st DCA, on May 15, 2013, per curiam
The mandate issued on June 11, 2013.
Petitioner states that he filed a successive Rule 3.850 motion
in the trial court.
App., Successive Motion for Postconviction
He reports that on January 12, 2018, the state court
denied the motion as untimely (outside the two-year window to
timely file a Rule 3.850 motion).
See Motion to Reopen Case (Doc.
As noted by Respondents, Petitioner timely filed the original
Petition. Response at 7. Once the Supreme Court of Florida denied
Petitioner had ninety days to petition for certiorari in the United
States Supreme Court.
Id. at 5. He did not seek certiorari.
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such, the one-year clock began to run on February 14, 2011, and ran
for a period of 273 days.
The one-year limitation period was
tolled during the pendency of Petitioner's Rule 3.850 motion, from
the date of filing, November 15, 2011, until the mandate issued on
June 11, 2013.
Id. at 6.
On June 12, 2013, the clock began to run
again, and ran out on Thursday, September 12, 2013.
timely filed his original Petition on September 9, 2013.
Grounds one through eight of the Amended Petition relate back
to claims presented in the timely original petition.
Civ. P. 15(c)(1)(B).
See Fed. R.
Ground nine, set forth in the Amended
Petition, does not relate back to any timely filed claim.
Mayle v. Felix, 545 U.S. 644, 656-57 (2005) (finding that a habeas
petitioner's amended petition, filed after the one-year federal
habeas limitation period had expired, did not arise out of the same
"conduct, transaction, or occurrence" set forth in his original
timely filed petition, and thus did not "relate back" to the date
of the original petition; the amended petition asserted a new
ground for relief supported by facts that differed in both time and
additional claim, ground nine, is untimely and does not relate back
to Petitioner's timely-filed claims.
Petitioner contends that this ground should be accepted
as timely filed because this Court granted Petitioner an extension
of time to file an amended petition "which acts as a stay and does
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toll the time [.]" Reply at 32.
See Order (Doc. 3), Emergency
Motion for Extension of Time (Doc. 4), and Order (Doc. 6).
Court rejects this contention.
An explanation follows.
The record shows that the one-year period expired immediately
after the filing of the incomplete, original Petition on September
Although Petitioner moved for an extension of time to
file his amended petition (Doc. 4), the one-year period had already
expired on September 12, 2013.
The Court granted Petitioner's
motion for extension of time and deemed the Amended Petition timely
filed for purposes of its order to amend the petition, but the
Court's Order did not act as a stay of the one-year period because
there was no time left to be tolled as the one-year period expired
on September 12, 2013.
See e.g., Webster v. Moore, 199 F.3d 1256,
1259 (11th Cir.) (per curiam) ("Under § 2244(d)(2), even 'properly
filed' state-court petitions must be 'pending' in order to toll the
A state-court petition like [Petitioner]'s
that is filed following the expiration of the limitations period
cannot toll that period because there is no period remaining to be
tolled."), cert. denied, 531 U.S. 991 (2000).
Moreover, the time
in which a federal habeas petition is pending does not toll the
one-year limitation period.
See Duncan v. Walker, 533 U.S. 167
(2001) (holding that an application for federal habeas corpus
toll the one-year limitation period under §
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As such, Petitioner's filings in this Court after the filing
of the original Petition did not operate to toll the limitation
period. They were filed following the expiration of the limitation
Based on the record before the Court, Petitioner has not
presented any justifiable reason why the dictates of the one-year
limitation period should not be imposed upon him with regard to
Petitioner has failed to show an extraordinary
circumstance, and he has not met the burden of showing that
equitable tolling is warranted.7
Additionally, Petitioner had
ample time to exhaust state remedies and prepare and file a federal
prejudice pursuant to 28 U.S.C. § 2244(d).8
EXHAUSTION AND PROCEDURAL DEFAULT
Petitioner's procedural hurdles are not at an end. Petitioner
failed to exhaust grounds one through eight of the Amended Petition
in the state courts.
He concedes that he did not do so, but asks
financially unable to secure the services of an attorney to assist
In order to be entitled to equitable tolling a petitioner is
required to demonstrate two criteria: (1) the diligent pursuit of
his rights and (2) some extraordinary circumstance that stood in
his way and that prevented timely filing. Agnew v. Florida, No.
16-14451, 2017 WL 962489, at *5 (S.D. Fla. Feb. 1, 2017), report
and recommendation adopted by No. 16-14451, 2017 WL 962486 (S.D.
Fla. Feb. 22, 2017). It is the petitioner's burden of persuasion,
and Petitioner has not met this burden.
Petitioner has failed to demonstrate that he has new
evidence establishing actual innocence.
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him in the investigation, research, preparation, and prosecution of
his state post conviction claims.9
Amended Petition at 10, 14, 17,
20, 24, 28-29, 35, 37-38.
In addressing the question of exhaustion, this Court must ask
whether Petitioner's claims were fairly raised in the state court
Before seeking § 2254 habeas relief in
federal court, a petitioner must exhaust all
state court remedies available for challenging
his conviction. See 28 U.S.C. § 2254(b), (c).
For a federal claim to be exhausted, the
petitioner must have "fairly presented [it] to
the state courts." McNair v. Campbell, 416
F.3d 1291, 1302 (11th Cir. 2005). The Supreme
Court has suggested that a litigant could do
so by including in his claim before the state
appellate court "the federal source of law on
which he relies or a case deciding such a
claim on federal grounds, or by simply
labeling the claim 'federal.'" Baldwin v.
Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158
L.Ed.2d 64 (2004). The Court's guidance in
Baldwin "must be applied with common sense and
in light of the purpose underlying the
exhaustion requirement"—namely, giving the
state courts "a meaningful opportunity" to
address the federal claim. McNair, 416 F.3d at
1302. Thus, a petitioner could not satisfy the
exhaustion requirement merely by presenting
the state court with "all the facts necessary
to support the claim," or by making a
"somewhat similar state-law claim." Kelley,
377 F.3d at 1343–44. Rather, he must make his
claims in a manner that provides the state
controlling legal principles to the facts
Petitioner, in his original Petition, stated he was relying
on Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569
U.S. 413 (2013), as providing the basis to excuse his procedural
default. Petition at 6-7.
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bearing upon (his) [federal] constitutional
claim." Id. at 1344 (quotation omitted).
Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351-52 (11th Cir.
2012), cert. denied, 568 U.S. 1104 (2013).
Of course, in this
instance, the claims were not fairly raised in the state court
The doctrine of procedural default requires the following:
Federal habeas courts reviewing the
constitutionality of a state prisoner's
conviction and sentence are guided by rules
designed to ensure that state-court judgments
necessary to preserve the integrity of legal
proceedings within our system of federalism.
These rules include the doctrine of procedural
default, under which a federal court will not
review the merits of claims, including
constitutional claims, that a state court
declined to hear because the prisoner failed
to abide by a state procedural rule. See,
e.g., Coleman, supra, at 747–748, 111 S.Ct.
2546; Sykes, supra, at 84–85, 97 S.Ct. 2497. A
state court's invocation of a procedural rule
to deny a prisoner's claims precludes federal
review of the claims if, among other
requisites, the state procedural rule is a
nonfederal ground adequate to support the
judgment and the rule is firmly established
and consistently followed. See, e.g., Walker
v. Martin, 562 U.S. ––––, ––––, 131 S.Ct.
1120, 1127–1128, 179 L.Ed.2d 62 (2011); Beard
v. Kindler, 558 U.S. ––––, ––––, 130 S.Ct.
612, 617–618, 175 L.Ed.2d 417 (2009). The
doctrine barring procedurally defaulted claims
from being heard is not without exceptions. A
prisoner may obtain federal review of a
defaulted claim by showing cause for the
default and prejudice from a violation of
federal law. See Coleman, 501 U.S., at 750,
111 S.Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012).
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In Martinez, the Supreme Court expanded the "cause" that may
excuse a procedural default.
Id. at 9.
The Supreme Court
Allowing a federal habeas court to hear a
claim of ineffective assistance of trial
counsel when an attorney's errors (or the
absence of an attorney) caused a procedural
default in an initial-review collateral
proceeding acknowledges, as an equitable
matter, that the initial-review collateral
proceeding, if undertaken without counsel or
with ineffective counsel, may not have been
sufficient to ensure that proper consideration
was given to a substantial claim. From this it
follows that, when a State requires a prisoner
to raise an [ineffective assistance of trial
counsel] claim in a collateral proceeding, a
prisoner may establish cause for a default of
circumstances. The first is where the state
courts did not appoint counsel in the
initial-review collateral proceeding for a
claim of ineffective assistance at trial. The
second is where appointed counsel in the
initial-review collateral proceeding, where
the claim should have been raised, was
ineffective under the standards of Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). To overcome the
default, a prisoner must also demonstrate that
the underlying [ineffective assistance of
trial counsel] claim is a substantial one,
which is to say that the prisoner must
demonstrate that the claim has some merit. Cf.
Miller–El v. Cockrell, 537 U.S. 322, 123 S.Ct.
1029, 154 L.Ed.2d 931 (2003) (describing
standards for certificates of appealability to
Martinez v. Ryan, 566 U.S. at 14.
Respondents assert that grounds one through eight of the
Amended Petition are unexhausted and procedurally defaulted and
must be denied as such.
Response at 20.
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After giving due
consideration to this assertion, the Court finds that grounds one
through eight are unexhausted because Petitioner failed to fairly
raise these claims in the state court system, thus the trial court
never considered the merits of these claims.
circumstances; "[a] petitioner who fails to exhaust his claim is
procedurally barred from pursuing that claim on habeas review in
federal court unless he shows either cause for and actual prejudice
from the default or a fundamental miscarriage of justice from
applying the default."
Lucas, 682 F.3d at 1353 (citing Bailey v.
Nagle, 172 F.3d 1299, 1306 (11th Cir. 1999) (per curiam)).
fundamental miscarriage of justice exception is only available in
extraordinary cases upon a showing of "'actual' innocence" rather
than mere "'legal' innocence."
Johnson v. Ala., 256 F.3d 1156,
1171 (11th Cir. 2001) (citations omitted), cert. denied, 535 U.S.
federal constitutional claims to the state courts.
attempts to seek post conviction relief in the state courts on
these grounds will be unavailing.
As such, he has procedurally
defaulted grounds one through eight claiming ineffective assistance
In the Reply, Petitioner contends that this procedural default
should be excused because he meets the narrow exception under
Reply at 3.
Petitioner is apparently blaming the lack
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of counsel at the inception of his post conviction proceeding for
his failure to raise the eight grounds in his Rule 3.850 motion.
Amended Petition at 10.
Petitioner urges this Court to find that
the narrow exception provided for in Martinez is applicable to his
situation because he asked post conviction counsel to supplement
the Rule 3.850 motion, but counsel did not do so.
Reply at 5.
Upon review of the record, Petitioner may not have had
representation at the inception of his post conviction proceeding,
but he was represented by John Broling, Criminal Conflict Counsel.
Ex. 32, Hearing on Post Conviction Motion. The trial court granted
an evidentiary hearing on two grounds of ineffective assistance of
counsel and appointed counsel.
Petitioner has not demonstrated that Mr. Broling's performance
as post conviction counsel amounted to ineffective assistance of
counsel. See Martinez v. Ryan, 566 U.S. at 17 ("Where, under state
law, claims of ineffective assistance of trial counsel must be
raised in an initial-review collateral proceeding, a procedural
substantial claim of ineffective assistance of counsel at trial if,
in the initial-review collateral proceeding, there was no counsel
or counsel in that proceeding was ineffective.").
proceeding, this Court's inquiry is "whether, in light of all the
circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance."
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Washington, 466 U.S. 688, 690 (1984).
"[H]indsight is discounted
by pegging adequacy to 'counsel's perspective at the time' . . .
(citations omitted). The standard is reasonably effective counsel,
not the perfect assistance of counsel.
Petitioner has failed to
show that Mr. Broling's representation as post conviction counsel
fell below an objective standard of reasonableness. Petitioner has
also failed to show that there was a reasonable probability that
the results of the post conviction proceeding would have been
different but for the actions and/or omissions of his counsel.
unexhausted and procedurally defaulted.
Petitioner has failed to
show cause and prejudice or that a fundamental miscarriage of
justice will result if the Court does not reach the merits of these
Although Petitioner claims that his procedural default
should be excused, relying on Martinez, Petitioner has failed to
show that he falls within the narrow parameters of the ruling in
Martinez, which recognized a narrow exception for ineffective
assistance of counsel at initial-review collateral proceedings. As
such, Petitioner has failed to establish cause for the procedural
default of his claim of ineffective assistance of trial counsel
raised in grounds one through eight of the Petition.
Petitioner, in his Reply, asserts that this procedural default
should be excused because he was not appointed counsel at the
- 20 -
inception of his post conviction proceedings and his appointed
counsel did not supplement the post conviction motion, thereby
deducing that the lack of counsel at the inception of the process
amounts to no post conviction counsel.
Although the Court is not
convinced that Petitioner did not have counsel for his post
conviction proceeding, assuming arguendo Petitioner was without
post conviction counsel for part of the process and that amounts to
the deprivation of counsel as contemplated by Martinez, to overcome
the procedural default, Petitioner must also demonstrate that the
specifically, "[t]o overcome the default, a prisoner must also
demonstrate that the underlying ineffective-assistance-of-trialcounsel claim is a substantial one, which is to say that the
Martinez, 566 U.S. at 14 (citation omitted).
Underlying Ineffectiveness Claims
Petitioner has failed to demonstrate that the underlying
ineffective assistance claims are substantial ones.
In his first
ground, he claims his trial counsel was ineffective for failure to
argue in support of a motion for a judgment of acquittal that the
state failed to present any competent substantial evidence to
Respondents presume, for purposes of this habeas proceeding,
that Petitioner was not represented by counsel in the post
conviction process as contemplated by Martinez, and address the
grounds accordingly. Response at 21 n.3.
- 21 -
establish that Petitioner was in fact the person who discharged a
firearm into the vehicle and/or the body of the victim.
Petition at 5.
The Court is not convinced that this ground has
The Due Process Clause of the Fourteenth Amendment requires
the state to prove beyond a reasonable doubt each element of the
offense charged. Thompson v. Nagle, 118 F.3d 1442, 1448 (11th Cir.
1997)(citing Jackson v. Virginia, 443 U.S. 307, 314 (1979)), cert.
denied, 522 U.S. 1125 (1998).
"[T]his court must presume that
conflicting inferences to be drawn from the evidence were resolved
by the jury in favor of the State."
Thompson, 118 F.3d at 1448
(citing Machin v. Wainwright, 758 F.2d 1431, 1435 (11th Cir.
The relevant question is whether any rational jury, after
prosecution, could have found the essential elements of the charged
offense beyond a reasonable doubt.
Thompson, 118 F.3d at 1448.
Petitioner guilty of attempted murder in the second degree, the
jury also had to determine whether the state had proved beyond a
reasonable doubt Petitioner "actually discharged a firearm" during
the course of committing the offense and whether as a result of
discharging the firearm, Petitioner caused the victim great bodily
Ex. 6 at 388.
As to the second count, shooting into an
occupied vehicle, the trial court instructed the jury that the
- 22 -
discharged a firearm, he did so at, within or into a vehicle that
was being used or occupied by any person, and the act was done
wantonly or maliciously.
Id. at 388-89.
The records shows that the jury returned a verdict finding
Petitioner guilty of attempted murder in the second degree, and
specifically finding that Petitioner actually discharged a firearm
during the commission of the offense.
Ex. 7 at 75.
The jury also
found Petitioner guilty of shooting at, within or into an occupied
vehicle, and the discharge or actual shooting of a firearm during
the offense resulted in great bodily harm to the victim.
The trial record demonstrates that the victim, Anthony L.
Brown, Sr., who survived the shooting, testified at trial.
initially testified that he was in his vehicle when Petitioner
approached the passenger side and addressed confrontational and
derogatory statements to Mr. Brown.
Ex. 6 at 36.
testified that Petitioner began moving around the car.
Id. at 37.
Mr. Brown said gunfire came right in his car window, and a bullet
hit his wedding band finger.
Id. at 38.
He described the shots
coming into the vehicle:
So first shot and then another shot right into
the window and that's when I leaned over in
Then it was just gunfire, just
gunfire all around the car. And I looked up
and still see gunfire, see him running back
and forth, back and forth.
- 23 -
Mr. Brown testified that after twelve to fourteen shots, he
drove away in reverse.
Id. at 39.
telling Mr. Brown to die.
He said that Petitioner was
The prosecutor asked:
And do you have any doubt whether he was
holding a gun or not?
No, sir, I don't.
No doubt that was the man there who was
No doubt, no doubt at all.
The record also demonstrates that Petitioner took the stand
and admitted that he shot the victim; however, he claimed he did so
in self defense.
Id. at 319.
Petitioner testified he shot at the
victim while the victim was in the vehicle: "[h]e got back in his
car and went to backing up.
And he as he was backing up, he had
his arm out the window and shooting.
I shot maybe three more
Id. at 324.
Although Petitioner references the conflicting testimony at
trial, "[w]hen the record reflects facts that support conflicting
inferences, there is a presumption that the jury resolved those
conflicts in favor of the prosecution and against the defendant.
In other words, federal courts must defer to the judgment of the
jury in assigning credibility to the witnesses and in weighing the
Johnson v. Ala., 256 F.3d at 1172 (citations omitted).
As explained by the Supreme Court,
- 24 -
Jackson requires a reviewing court to review
the evidence "in the light most favorable to
the prosecution." 443 U.S., at 319, 99 S.Ct.
2781. Expressed more fully, this means a
reviewing court "faced with a record of
historical facts that supports conflicting
inferences must presume—even if it does not
affirmatively appear in the record—that the
trier of fact resolved any such conflicts in
favor of the prosecution, and must defer to
that resolution." Id., at 326, 99 S.Ct. 2781;
see also Schlup v. Delo, 513 U.S. 298, 330,
115 S.Ct. 851, 130 L.Ed.2d 808 (1995) ("The
Jackson standard ... looks to whether there is
sufficient evidence which, if credited, could
support the conviction").
McDaniel v. Brown, 558 U.S. 120, 133 (2010) (per curiam).
At the close of the state's case, defense counsel moved for a
judgment of acquittal on counts one and two.
Ex. 6 at 262.
argued that there had been a failure to show intent to murder and
"intent that he had a depraved mind."
Same thing with the shooting into the
vehicle. Obviously there was shooting into a
vehicle and there was testified [sic] my
client was shooting into the vehicle, but
there is nothing as to the intent element of
wantonly and recklessly shooting into that
Id. (emphasis added).
The prosecutor responded:
State has provided –- presented a prima
facie case and the evidence does show the
defendant shot the vehicle and evidence
testified that he was the one firing the gun
and wantonly and maliciously and don't have to
prove intent to kill.
Id. at 262-63.
- 25 -
The court denied the motion finding, based on the evidence in
the light most favorable to the state, the state had made a prima
Id. at 263.
When defense counsel renewed his motion
for judgment of acquittal, making the same argument but also
relying on additional testimony regarding justifiable actions of
self defense, the trial court denied the motion finding the state
had made a prima facie case.
Id. at 339.
After viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found that
Petitioner committed the offense of attempted murder in the second
degree and the defendant actually discharged a firearm during the
commission of the offense, and committed the offense of shooting a
firearm at, within or into an occupied vehicle and the defendant's
actual discharge or actual shooting of a firearm during the
commission of the offense resulted in great bodily harm. Here, the
testimony of the victim was sufficient to sustain the conviction.
Moreover, Petitioner testified that he shot the victim and he shot
at the victim while the victim was in the vehicle.
Based on the testimony in the light most favorable to the
prosecution, Petitioner discharged a firearm, he shot the victim,
and he shot into the vehicle occupied by the victim. Trial counsel
cannot be found to be ineffective for failing to raise a meritless
argument. Diaz v. Sec'y, Dep't of Corr., 402 F.3d 1136, 1142 (11th
Cir.), cert. denied, 546 U.S. 1064 (2005).
There is no reasonable
probability that a motion for judgment of acquittal based on the
- 26 -
ground suggested by Petitioner would have been granted; therefore,
Petitioner has not shown prejudice to excuse procedural default.
Ground one is due to be denied.
It simply does not have some
In his second ground, Petitioner claims his trial counsel was
ineffective for failure to effectively cross examine Jeff Foggy,
the state's firearms and ballistics expert, and/or call him for the
purpose of impeachment.
Amended Petition at 10.
The Court is not
convinced that this ground has some merit.
The trial record shows the prosecutor called Jeff Foggy, an
employee of the firearms section of the Florida Department of Law
Enforcement, to testify as an expert in firearms, ballistics and
qualifications, Mr. Foggy testified that he examines ammunition
components to determine if they have been fired from or within a
Id. at 223.
He said he does serial number
He testified that he looked at the ammunition
to determine if "they were fired from the same firearm."
258. He determined that all thirteen cartridge cases were fired in
the same firearm.
Id. at 259.
With regard to the projectile, he
determined it was a nine millimeter (9 mm) caliber and "could list
- 27 -
possible weapons that could have fired it."11
In looking at
the projectile, he submitted that the most prominent firearms that
could have fired it were "Beretta, Taurus or Intertech."
Also, based on his experience, he surmised that these were
the most prominent firearms that could have fired the cartridge
Defense counsel did not cross examine the witness.
failing to cross examine or call Mr. Foggy as a witness to testify
as to "the details of the scientific and/or other principles,
techniques, and processes underlying his findings, opinions, and
conclusions[.]" Amended Petition at 11.
Petitioner suggests that
if counsel had done so, Mr. Foggy's testimony would have revealed
inconsistencies and contradictions. Id. Petitioner opines that if
counsel had effectively cross examined Mr. Foggy or called him as
a witness, Mr. Foggy would have had to admit that none of the
examined evidence could conclusively be connected to Petitioner.
Significantly, the gun used by Petitioner was never found.
particular gun, instead he testified that the cartridges came from
the same gun, and the projectile was a 9 mm caliber.
It is important to note that Petitioner testified that he
had a 9 mm gun on the day of the shooting, but did not know the
brand of the gun. Ex. 6 at 326. The record shows that the gun was
not found by the police.
- 28 -
Petitioner does not contest that Mr. Foggy was an expert in
At trial, Mr. Foggy appropriately provided testimony
within his expertise.
Petitioner faults his counsel with failing
to explore facts and data that supported Mr. Foggy's conclusions.
Respondents contend that had counsel done so, most assuredly, it
would have served to bolster the expert's testimony, something
counsel strategically would want to avoid doing.
Response at 33.
It was important for Petitioner's trial counsel to take into
consideration the fact that the defense was going to be self
defense, and proceed accordingly.
The defense made tactical
Petitioner was going to take the stand and admit
shooting the victim, shooting into the car, and using a 9 mm
Because Petitioner was not going to deny shooting the
victim or into the car, it was not unreasonable for defense counsel
to avoid bolstering the expert's testimony by challenging his
expertise through cross examination or impeachment.
Even if defense counsel had questioned the substance of the
remained the same as it was appropriately a limited one based on
the evidence found.12
As such, if defense counsel had cross
examined Mr. Foggy in the manner in which Petitioner desired or
called Mr. Foggy as a defense witness, there is no reasonable
Defense counsel had the written report and was fully aware
of its contents.
- 29 -
Also, in reviewing the record, it is quite apparent that
defense counsel decided to use closing argument to challenge Mr.
Foggy's conclusion that all of the casings came from the same gun
as being unverified or factually unsupported.
Ex. 6 at 372.
Defense counsel effectively argued the state's case had weaknesses,
including the fact that the prosecution neglected to present
supporting data and sufficient analysis to justify the expert's
conclusions. Consequently, counsel contended that the state failed
to prove its case beyond a reasonable doubt:
Now FDLE would like to tell you that they
all came from the same gun.
I would have
liked to have known how they verified that.
The expert gave us no pictures, no diagrams,
no –- here is the butt of one shell, here is
the butt of the other and, look, they have the
same firing pin. How you can check the same
firing pin and how many permutations of the
firing pin there is. The firing pin is a nine
millimeter. You get to take a shell casing
back. You get to take them out and play with
them. Take them out and compare them. You
see whether the evidence in your hand if there
is some type of fingerprint where we can tell
that they are from the same firing pin.
You are going to be read a jury
instruction about experts. They are allowed
to give the opinion but they are like –- they
are not like any witness in that they are
allowed to give an opinion, but they are like
any witness they are allowed to believe them
or disbelieve them and that is your job as a
juror, to weigh what is real, what seems
correct to you, what is evidence that can't be
- 30 -
Id. at 372-73.
It is very important to recognize, "[t]here are countless ways
to provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular client in
the same way."
Strickland, 466 U.S. at 689–90 (citation omitted).
Here, defense counsel elected to attack the asserted deficiency in
the state's case in his closing argument, a sound trial strategy.
independence of defense counsel[.]
Id. at 690.
This Court will
not unduly scrutinize the performance of defense counsel, and finds
this was acceptable and reasonable assistance considering the
Petitioner has failed to demonstrate that the underlying
ineffective assistance claim raised in ground two is a substantial
Petitioner is not entitled to relief on ground two.
In his third ground, Petitioner claims his trial counsel was
ineffective for failure to conduct an adequate investigation into
Amended Petition at 14.
The Court is not convinced
that this ground has some merit.
In ground three, Petitioner is apparently attempting to claim
that the police did an inadequate investigation of the scene by
failing to find bullet holes in the ground and "expended cases"
from Petitioner's gun in the ground.
- 31 -
Id. at 15.
states: "[a]fter all, they did not have the benefit of Petitioner's
knowledge at the time.
had, that excuse."
However, counsel would not have, and never
The testimony at trial revealed that the shooting took place
on the grounds of Petitioner's residence, including the concrete
pad and sandy, dirt driveway.
Ex. 6 at 95-97, 243.
artificial light, the Suwannee County Sheriff's Office conducted an
Id. at 92-100.
He attested that they looked
outside for the casings and anything that would have been involved
in the shooting.
Id. at 97.
He said they located casings along
The officers were there for two to three hours.
Id. at 99.
Suwannee County Sheriff's Office investigator Jeff Cameron
testified that he too was dispatched to the scene. Id. at 102-103.
He testified that he returned to the scene the following morning in
Id. at 106.
He photographed the double wide mobile
home and the six foot fence.
He further attested that he
found four more shell casings lined in the driveway and one
Id. at 107.
testified that he was called to the scene as well.
Id. at 129-30.
Upon being shown photographs of the scene, he testified:
Yeah, the blue roof there, I believe, is
Stephanie Brown's residence and that's where
the shooting took place. There is a driveway
- 32 -
there. That would be Stephanie Brown's house
and that's the driveway, the car. I believe
the shooting took place right around that
area. The bullet casings that were found were
from there on out to the road area. I think
90 or so feet. The shell casings that were
found indicating that the shooter would be
running after the car as it was trying to back
out. Then the car headed north on 153rd Road,
which is Mount Olive Road.
Id. at 144.
Investigator Fry reiterated that he saw shells on the
Id. at 153.
driveway, "90 feet worth."
Deputy Ronald Colvin testified that he was also called to the
Id. at 166-67.
Id. at 173.
Nine, 9 mm shell casings were found
He photographed the carport, cement slab
Id. at 167, 171-74.
Deputy Joe Rodriguez testified
that he was called to the scene and picked up bullet shells.
Investigator Cameron testified that the day following the
shooting he found four shell casings and one projectile or the
Id. at 243.
He testified that he found these
shells in the sandy drive from the road to the house.
cross examination, he said, the night before, the deputies had
marked and picked up different exhibits.
Id. at 250.
after the shooting, Deputy Cameron found spent shells in the sandy
Upon inquiry, he stated a spent shell could get
stuck in a tire tread.
Also upon cross examination, he
testified that the whole bullet was found in the sandy road bed.
- 33 -
Petitioner asserts that any reasonable, competent and diligent
attorney would have investigated the yard and hired an investigator
to search the yard and look for any evidence of bullet holes in the
Amended Petition at 15.
this claim has some merit.
The Court is not convinced that
Based on the record before the Court,
counsel's performance was not deficient for failing to further
investigate the yard and hire an investigator to search the yard
and the surrounding area for any evidence of ammunition or bullet
Immediately after the shooting, the Sheriff's Office sent
photograph the scene.
A diligent and lengthy search ensued.
following day, a Sheriff's Office investigator returned to the
scene during daylight hours and conducted an additional search and
took more photographs.
in the sand.
He successfully found additional evidence
He did not, however, find any bullet holes in the
mobile home or fence.
assistance, and criminal defense attorneys may choose to defend a
demonstrates that defense counsel made sound strategic decisions in
preparing for trial and defended Petitioner well within the range
of professional competence.
Any failure to undertake a personal
search of the yard and surroundings or to hire someone else to do
- 34 -
so was a reasonable strategic choice under the circumstances
In this instance, thorough searches had been conducted and
Thus, any decision by counsel not to undertake
a further investigation was reasonable and fell within the range of
professionally competent assistance, particularly giving a heavy
measure of deference to counsel's assessment of the need for a
personal investigation or the need to hire an investigator to
search the area. See Dobbs v. Turpin, 142 F.3d 1383, 1387-88 (11th
Cir. 1998) (citations omitted) (addressing the standard in this
circuit for determining whether a lawyer's failure to pursue an
investigation amounts to ineffectiveness).
This ineffectiveness claim does not have some merit.
three is due to be denied.
In his fourth ground, Petitioner claims his trial counsel was
violation and/or move for a continuance based on the state's
Amended Petition at 17.
The Court is not
convinced that this ground has some merit.
Response at 43.
A review of the record is required to address this
At trial on February 13, 2008, the state called Alzada
Jenkins, the evidence custodian for the Suwannee County Sheriff's
- 35 -
Ex. 6 at 123.
On cross examination, defense counsel
inquired about the Florida Department of Law Enforcement Lab Report
(state's exhibit 5) composed by Jeffrey R. Foggy. Id. at 125, 127.
Defense counsel asked Ms. Alzada when she came into possession of
Id. at 127.
She responded: "[y]esterday."13
After her testimony, defense counsel asked to approach the
Id. at 128.
He asked for a copy of the report.
prosecutor stated that it had been faxed to defense counsel the day
before at 4 o'clock.
Defense counsel said he received the fax
about witness Foggy, but did not receive a copy of the report
attached to the notice.
The prosecutor responded that the
report had been sent separately.
The prosecutor gave defense
counsel a copy of the report, calling it another copy for defense
The record reflects that Mr. Foggy was not called to testify
until the following day, February 14, 2008.
Id. at 221.
defense counsel had a day to become familiar with the report and
take any action he perceived necessary in light of the contents of
Also, the record reflects that the prosecutor sent
defense counsel a copy of the report the same day the prosecutor
received it, although defense counsel said he did not receive it.
This would have been the day before the trial started, or
February 12, 2008.
In the trial court record, state's exhibit 5 is the "report
analyzing the bullet and shells." Ex. 6 at 125.
- 36 -
In response to defense counsel's assertion that he did not receive
it, the prosecutor provided defense counsel with a copy of the
There was no apparent need for a continuance because Mr.
Foggy was not called to testify until the following day, giving
counsel an opportunity to review the report and make tactical
As such, there was no discovery violation.
Based on the record, defense counsel had the opportunity to
review the report and determine a proper course of action in light
of its contents.
When the state moved the report into evidence
(state's exhibit 57), defense counsel had no objection and the
court admitted the exhibit without objection.
Ex. 6 at 260.
Defense counsel elected not to cross examine Mr. Foggy.
As noted previously, defense counsel chose to attack the
validity of the report in his closing argument, contending it
lacked supporting factual information and presented unverifiable
Id. at 372.
Ground four does not have some merit and is due to be denied.
Habeas relief is not warranted.
ineffective assistance of counsel based on counsel's failure to
secure the assistance of qualified private forensic experts and/or
preparations for trial, and/or to testify. Amended Petition at 21.
- 37 -
After reviewing the submissions to the Court, the Court remains
unconvinced that this ground has some merit.
In this ground, Petitioner contends that counsel should have
secured the assistance of qualified private forensic experts and/or
investigators to examine the crime scene, the car, and the crime
scene photographs in order to undertake a scientific review of the
Id. at 21.
trajectories of the bullets.
He opines that such an
undertaking would have shown that one or more of his shots came
from a low angle, originating near or at ground level, and that a
shot or shots were fired from inside the car.
He also submits
that a review should have been undertaken to determine the make and
type of firearms involved.
Id. at 22.
Again, he asserts that a
more extensive search of the yard, driveway and surrounding area
should have been conducted.
Finally, he claims that a
qualified person should have reviewed the victim's medical records
to evaluate whether the wounds were entry or exit wounds.
As noted by Respondents, Petitioner previously raised the
issue concerning the need for a more extensive search of the
surroundings under ground three.
The Court previously addressed
this issue under ground three and will not re-address it.
the type of guns involved in the shooting, Petitioner testified
that he had a 9 mm gun.15
Ex. 6 at 326.
He claimed the victim shot
In the attempted second degree murder trial, Petitioner
testified that the victim had a firearm. Ex. 6 at 337. All found
shells were 9 mm.
Id. at 243.
At Petitioner's trial for the
- 38 -
at him with a firearm.
Since no guns were located, any review by
a firearms expert would have been limited to the shells and bullet
found at the scene, and the state's expert undertook that review
and submitted his report.
At most, it was determined that the
firing weapon was a 9 mm caliber gun and there were prominent types
of firearms that could have possibly fired the cartridge cases.
Id. at 259-61. Again, no weapons were found; therefore, they could
not be tested.16
Petitioner asserts that he shot from a low angle at the start
of the shootout, and expended cases from Petitioner's gun may have
been imbedded in the ground at that location, but Petitioner's own
testimony reflects that he was "on the carport on the concrete
slab" at the inception of the shooting.
Id. at 323.
Also of note,
driveway, supporting their contention, and consistent with the
victim's testimony, that Petitioner moved down the driveway during
the course of the shooting.
Id. at 144, 153.
charge of possession of a firearm by a convicted felon, Petitioner
testified that both he and the victim had 9 mm guns. Ex. 11 at 65.
At Petitioner's trial for the charge of possession of a
firearm by a convicted felon, he testified he got rid of his gun
after the shooting and could not remember where he put it. Ex. 11
at 68. Petitioner admitted having the gun during the incident, and
if anyone had knowledge of the gun's location in order to make it
available for testing, it would have been Petitioner.
- 39 -
There was ample testimony and argument presented concerning
the possible trajectory of the bullets, but it was quite telling
that no shell casings, ammunition or weapons were found in the
victim's vehicle or along the roadway.17
Id. at 105, 108-109.
Although Petitioner claims counsel's performance was deficient
because counsel failed to hire an expert to try and show the bullet
lodged in the dash was fired from inside of the car, there was
simply no supporting physical evidence that shots were fired from
inside the vehicle.
All of the bullet holes were described as
going into the car.
Id. at 132, 141.
More importantly, there was
no physical evidence that showed the victim had a firearm or
ammunition in the vehicle.18
Id. at 108, 163.
ineffective for failing to hire a qualified person to review the
victim's medical records to evaluate whether the wounds were entry
or exit wounds.
The record shows the following.
The state called
Dr. Patrick Lee Agdamad, M.D. When asked whether the leg wound was
an entrance or exit wound, Dr. Agdamad testified that it was most
likely an entrance wound.
Ex. 6 at 210.
He explained that
generally exit wounds are larger and create more of an astelic
The victim testified that he drove from the scene and called
his wife and then dialed 911. Ex. 6 at 39-40.
Of import, the defense did put on some testimonial evidence
that shots or flashes were apparently coming from inside the
victim's vehicle as it was backing out. Ex. 6 at 276-77, 278.
- 40 -
[sic] pattern, but a physician specializing in forensic medicine
could address the issue more specifically.
On cross, he
indicate it is possibly an entrance wound."
said it was located at the back of the leg.
Id. at 211-12.
Id. at 212.
regard to additional photographs, he opined that one wound was an
exit wound and one was an entrance wound, but not with 100 percent
Id. at 212-13.
He said it was possible that the wound
with the bigger hole was an exit wound.
Id. at 213.
Defense counsel, Walter Flinn, in closing, argued that the
physical evidence matched Petitioner's testimony and contradicted
the victim's testimony. Ex. 6 at 366-67. Mr. Flinn referenced the
doctor's testimony about the back of the victim's leg and the
"conclusively [the victim] got shot outside the car."
Id. at 368.
Mr. Flinn reminded the jury that Petitioner testified to two
incidents of multiple shots.
Id. at 369.
Finally, Mr. Flinn
asserted that the victim lied about what happened that night, as
the evidence and photographs did not support his testimony. Id. at
"Which witnesses, if any, to call . . . is the epitome of a
strategic decision, and it is one that [a court] will seldom, if
ever, second guess."
Waters v. Thomas, 46 F.3d 1506, 1512 (11th
Cir. 1995), cert. denied, 516 U.S. 856 (1995).
- 41 -
In order to
demonstrate ineffectiveness, the decision must be so patently
unreasonable that no competent attorney would have chosen that
Dingle v. Sec'y for the Dep't of Corr. 480 F.3d 1092, 1099
(11th Cir. 2007) (quotation omitted), cert. denied, 552 U.S. 990
Here, defense counsel chose to cross examine the state's
witness, Dr. Agdamad.
However, the defense put on witnesses,
In this instance, Petitioner has not demonstrated that Mr.
Flinn's decision not to call a doctor or forensic expert was an
unreasonable strategic move that no competent counsel would have
The underlying ineffective assistance of counsel claim is
not a substantial one.
Ground five does not have some merit.
As such, it is due to
ineffective assistance of counsel due to counsel's failure to
effectively cross examine, confront and/or impeach one or more
state's witnesses. Amended Petition at 24. Upon review, the Court
is not convinced that this ground has some merit.
Apparently, Petitioner contends that there was some failure to
put on sufficient evidence to demonstrate a reasonable evidentiary
- 42 -
basis to support the affirmative defense of self defense.
Based on the record, there was sufficient evidence put forth
as the trial court instructed the jury on self defense.
Now, an issue in this case is whether the
defendant acted in self defense.
It is a
defense to the offense with which Rodriguez
Arnold is charged if the injury to Anthony L.
Brown resulted from the justifiable use of
Ex. 6 at 389-90.
In ground six, Petitioner contends that defense counsel should
have asked whether the victim, Anthony Brown, owned a gun or had
access to any gun and the type of gun.
Amended Petition at 25.
Petitioner claimed the same questions should have been asked of
In support of this ground, Petitioner suggests
that perhaps the victim had access to a gun that did not eject
shell casings, explaining the absence of finding the same, or the
victim had some type of antique firearm that did not require
possession of a firearm by a convicted felon, Petitioner testified
that both he and the victim had 9 mm guns during the incident.
11 at 65. Petitioner also testified that Mr. Brown's shell casings
were found on the ground as well.
Id. at 64.
Id. at 58.
- 43 -
As a consequence, it would have been fruitless for defense
counsel to explore or suggest that the victim had some type of gun
that did not eject shell casings or possessed some type of antique
firearm that did not require cartridges since the Petitioner
testified that the victim possessed a 9 mm gun on May 9, 2007, the
date of the shooting, and shell casings from that gun were found by
law enforcement at the scene.
Also of import, it would have been
fruitless to inquire of law enforcement officers as to the types of
firearms that would not have left expended cartridge cases, since
Petitioner said Anthony Brown had a 9 mm gun, and it left expended
At the attempted second degree murder trial, the victim,
Anthony Brown, testified he did not have a gun on him or in his
Ex. 6 at 37.
Id. at 43.
He testified that he did not shoot at
Mr. Brown said he did not put a gun in his
lap or get out of the car with a gun.
Id. at 43-44.
he did not shoot at Petitioner while pulling out.
Id. at 44.
Defense counsel did specifically inquire about Mr. Brown
coming over to the Arnold's house with guns in the past.
Mr. Flinn asked whether Mr. Brown brought a gun to Stephanie
Arnold's house on April 18th and April 19th, and Mr. Brown denied
Mr. Flinn inquired as to whether Mr. Brown went over to
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Mr. Brown denied being at the Arnold's house with
The record shows that Mr. Flinn repeatedly inquired about
whether Mr. Brown had threatened Stephanie Arnold or Rodriguez
Arnold with guns in the past.
Mr. Flinn asked if, on or about
January 1, Mr. Brown threatened Stephanie Arnold at her house. Id.
Mr. Flinn asked Mr. Brown whether, on April 13, he pulled a gun on
Stephanie Arnold or Rodriguez Arnold.
Id. at 49.
Id. at 48-49.
He did admit to being a convicted felon.
Id. On direct, Erica Brown testified that her husband did not keep
a gun in the car or carry a gun.
Id. at 57.
As noted above, defense counsel asked the relevant questions.
Response at 52.
At trial, Anthony Brown and Erica Brown both
denied that Anthony Brown had a gun in his car or carried a gun.
Anthony Brown denied that he had a gun during the incident and he
denied shooting at Petitioner.
The court is not convinced that
there is a reasonable probability that had counsel inquired of
Anthony Brown or Erica Brown if Anthony Brown ever possessed a gun
in the past it would have affected the outcome of the trial.
course, when asked by defense counsel, Mr. Brown denied bringing
guns over to the Arnold's house in the past.
It is noteworthy that defense counsel called Stephanie Arnold
and she testified that Anthony Brown reached under the seat of the
car and pulled out a gun and put it on his lap.
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Ex. 6 at 292.
Mrs. Arnold testified that Mr. Brown jumped out of the car and
pointed the gun at her husband, Rodriguez Arnold.
counsel asked whether Mrs. Arnold had seen Anthony Brown with a
Id. at 294-96.
The court did allow Mrs. Arnold's
testimony concerning Mr. Brown showing up at the house while both
she and her husband were at home.
Id. at 296-97.
attested that on April 18, Mr. Brown showed up uninvited, with a
gun in his waistband.
Id. at 297.
happened again on April 19.
Mrs. Arnold testified that it
Id. at 298-99.
She explained that Mr.
Brown showed up at the house with two guns in his pants.
Finally, Mrs. Arnold testified that Mr. Brown shot at her
husband on May 9, 2007, before her husband fired any shots.
Petitioner testified concerning the events of April 18, 2007 and
April 19, 2007.
Id. at 320-322.
He said Mr. Brown pulled his gun
out and threatened Petitioner on April 19th.
Id. at 321-22.
Petitioner also testified that on the date of the shooting, Mr.
Brown reached under the seat of the car and retrieved a gun.
Petitioner testified that Mr. Brown shot at him.
In ground six, Petitioner again complains that there was an
addressed under ground three, the investigator testified there were
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no bullet holes in the house or fence.
This matter need not be re-
Defense counsel did not fail to effectively represent his
With regard to the complained of deficiencies, defense
counsel effectively cross examined, confronted and/or impeached the
have some merit.
Based on all of the above, ground six does not
Therefore, ground six is due to be denied.
In his seventh ground for relief, Petitioner raises a claim of
ineffective assistance of counsel for failure to object to the
state's closing argument and move for mistrial on the ground of
impermissible burden shifting and/or other improprieties.
convinced that this ground has some merit.
Petitioner contends that the prosecutor's closing argument
focused on Petitioner's failure to contradict the state's evidence,
to present physical evidence to support the claim of self defense,
insufficiency of the state's evidence.
that none of the statements identified by Petitioner, viewed in
context, were improper.
Response at 58.
"[i]mproper suggestions, insinuations, or assertions" that are
intended to mislead the jury or appeal to passions or prejudices
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during closing arguments; United States v. Hope, 608 F. App'x 831,
840 (11th Cir. 2015) (per curiam), but the prosecutor is entitled
to offer the jury his view of the evidence presented.
to the majority of the comments at issue, that is exactly what the
prosecutor did; he argued that he had proved the elements of the
sufficient evidence to support his affirmative defense of self
In closing, the prosecutor asked the jury to draw all
logical inferences from the evidence presented at trial.
There is no reasonable probability that the outcome of the
proceedings would have been different had counsel objected to all
Attorneys are allowed wide latitude during closing argument as they
review the evidence and explicate inferences which may reasonably
be drawn from it.
Even if defense counsel had objected, the trial
court would not have sustained the objections to the prosecutor's
comparative weaknesses in the defense's presentation of evidence.
In order to establish a substantial error by counsel for
failure to object to prosecutorial misconduct, the prosecutor's
"comments must either deprive the defendant of a fair and impartial
trial, materially contribute to the conviction, be so harmful or
inflammatory that they might have influenced the jury to reach a
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more severe verdict than it would have otherwise." Walls v. State,
926 So.2d 1156, 1167 (Fla. 2006) (per curiam) (citation omitted).
Also, there must be a showing that there was no tactical reason for
failure to object.
Without a showing of the above, a
petitioner fails to demonstrate the requisite prejudice.
In this case, the comments of the prosecutor did not deprive
Petitioner of a fair and impartial trial.
Also, they were not so
inflammatory as to result in a more severe verdict than was
demonstrated by the state's evidence. In his closing argument, the
prosecutor asked the jury to draw all logical inferences from the
evidence presented at trial.
Upon review, there was substantial
and very strong testimonial and physical evidence presented at
trial against Petitioner.
Thus, any failure on defense counsel's
part to object to the state's closing argument did not contribute
significantly to the verdict.
Failure to object during closing argument rarely amounts to
ineffective assistance of counsel, particularly if the errors, if
any, are insubstantial.
Here, at most, there was a questionable
comment made by the prosecutor, not objected to by defense counsel:
"[y]ou know, if there was evidence that Mr. Brown was shooting at
Mr. Rodriguez was defending himself, you wouldn't be here today."
Ex. 6 at 381.
However, error, if any, was insubstantial.
There was another questionable remark made by the prosecutor
during closing argument, when he referenced his personal opinion
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concerning great bodily injury to the victim.
instructed him to refrain from stating his personal beliefs.
In this instance, there was no need for defense counsel to
object because the court acted immediately, without objection. The
Id. at 384.
As noted by Respondents, it was proper for the prosecutor to
undertake an overall review of the evidence and to explicate those
inferences which may be drawn from it.
Response at 58.
Petitioner took the stand and testified that he shot at the victim
in self defense, Petitioner's credibility was at issue, and the
prosecutor could appropriately challenge the believability of the
Petitioner's testimony and attack the evidence presented to support
his contention that he acted in self defense.
In conclusion, there is no reasonable probability that had Mr.
Flinn objected to the statements of the prosecutor in closing or
moved for mistrial, the outcome of the trial would have been
different. Ground seven does not have some merit. Accordingly, it
is due to be denied.
In his eighth ground, Petitioner raises another claim of
ineffective assistance of trial counsel. He claims his counsel was
ineffective for failure to request that the jury be informed that
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it could have a witnesses' testimony read back in response to the
second jury question.
Amended Petition at 35.
This ground does
not have some merit and is due to be denied.
During deliberation, the jury had a question: "[r]equest Traci
Castle's signed statement."
Ex. 6 at 410.
immediately said: "[n]ot in evidence." Id. at 411. The prosecutor
After some discussion, it was agreed that the
court would instruct the jury that it would have to base its
verdict on the evidence admitted during the trial, the requested
item was not admitted in evidence, and the jury would have to rely
on Ms. Castle's in-court testimony.
provided this response to the jury.
Id. at 412.
The jury did not ask for
Ms. Castle's in-court testimony to be read back.
deficient because Ms. Castle's testimony was more favorable to the
defense, and the jury should have been reminded of its content
through a read-back. Although Petitioner would have preferred that
the jury be reminded of the content of Ms. Castle's testimony, the
jury did not request to hear the testimony.
The jury asked for Ms.
Castle's signed statement, a statement not admitted into evidence.
Defense counsel's response to that question was not unreasonable,
improper, or in some way deficient.
In fact, the court, in its
answer to the jury's question, reminded the jury that they had to
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Petitioner claims was favorable to him.
Defense counsel agreed
that the jury should rely on Ms. Castle's in-court testimony.
Counsel's performance was not deficient for failing to request
that the jury be informed that is could request a read-back.
response to the jury's question evinces a response of a reasonably
competent attorney. Petitioner received effective representation,
functioning of the adversarial process that Petitioner was deprived
of a fair trial.
Ground eight does not have some merit.
eight is due to be denied.
Accordingly, it is now
ORDERED AND ADJUDGED:
The Amended Petition (Doc. 5) is DENIED, and this action
is DISMISSED WITH PREJUDICE.
The Clerk of the Court shall enter judgment accordingly
and close this case.
If Petitioner appeals the denial of his Amended Petition,
the Court denies a certificate of appealability.19
This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
28 U.S.C. § 2253(c)(2).
To make 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
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Court has determined that a certificate of appealability is not
warranted, the Clerk 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
DONE AND ORDERED at Jacksonville, Florida, this 6th day of
Rodriquez L. Arnold
Counsel of Record
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) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
Upon due consideration, this Court will deny a
certificate of appealability.
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