Williams v. Secretary, Florida Department of Corrections et al

Filing 20

ORDER denying the 1 Petition and dismissing this action with prejudice; directing the Clerk to enter judgment accordingly and close the file. Signed by Judge Marcia Morales Howard on 7/3/2017. (JLD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ADRIAN FRANCIS WILLIAMS,
Petitioner,
v.

Case No. 3:14-cv-706-J-34JBT

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Adrian Francis Williams, an inmate of the Florida
penal system, initiated this action on June 18, 2014, by filing a
pro se Petition for Writ of Habeas Corpus (Petition; Doc. 1) under
28 U.S.C. § 2254 with exhibits (P. Ex.) and a "2254 Argument Brief"
(Memorandum; Doc. 2). In the Petition, Williams challenges a 2012
state court (Duval County, Florida) judgment of conviction for
dealing in stolen property and false verification of ownership on
a

pawnbroker

transaction

form.

Respondents

have

submitted

a

memorandum in opposition to the Petition. See Respondents' Response
to Petition for Habeas Corpus (Response; Doc. 12) with exhibits
(Resp. Ex.). On October 14, 2014, the Court entered an Order to
Show Cause and Notice to Petitioner (Doc. 7), admonishing Williams
regarding his obligations and giving Williams a time frame in which

to submit a reply. Williams submitted a brief in reply. See
Response (Reply; Doc. 13). This case is ripe for review.
II. Procedural History
On September 23, 2010, the State of Florida, in case number
2010-CF-10746, charged Williams with burglary of a dwelling (count
one),

dealing

in

stolen

property

(count

two),

and

false

verification of ownership on a pawnbroker transaction form (count
three). See Resp. Ex. A at 1. The State of Florida issued a capias
that same day, see id. at 4, and Williams was arrested on November
28, 2011, see id. at 7; PD-1 at 1. In May 2012, Williams proceeded
to trial, see Resp. Exs. D, E, F, Transcripts of the Jury Trial
(Tr.), at the conclusion of which, on May 8, 2012, a jury found him
guilty

of

dealing

in

stolen

property

(count

two)

and

false

verification of ownership on a pawnbroker transaction form (count
three), see Resp. Ex. A at 118, 119, Verdicts, and not guilty of
burglary (count one), as charged in the Information, see id. at
116-17, Verdict. On December 13, 2012, the court sentenced Williams
to terms of imprisonment of twelve years on count two and ten years
on

count

three,

to

run

concurrently

with

each

other

and

consecutively to the sentences imposed in case numbers 2007-CF14505 and 2007-CF-14726. See Resp. Ex. B at 218-24.
On direct appeal, Williams, with the benefit of counsel, filed
an initial brief, arguing that: (1) Williams' due process rights
under the Florida and United States Constitutions were violated

2

when the court denied him access to relevant and material evidence
-

the

stolen

production;

ring

-

despite

production

of

repeated

the

ring,

motions
still

in

to

compel

the

its

victim's

possession, would have proven William's innocence, and (2) the
circuit court failed to conduct a proper Melbourne1 inquiry into
the

State's

peremptory

strike

of

prospective

juror

Beverly

Randolph. The State filed an answer brief. See Resp. Ex. H. On
January 22, 2014, the appellate court affirmed Williams' conviction
per curiam, see Williams v. State, 130 So.3d 232 (Fla. 1st DCA
2014), and the mandate issued on February 7, 2014, see Resp. Ex. I.
During the pendency of Williams' appeal, he filed several petitions
for extraordinary relief. See PD-2.
On March 10, 2010, Williams filed a pro se petition for writ
of habeas corpus. In the petition, he asserted that appellate
counsel (John Burr Kelly, III) failed to raise the following issues
on direct appeal: Williams' right to speedy trial (claim one); the
court's denial of his motion to vacate and set aside judgment based
on a violation of Florida Rule of Criminal Procedure 3.191 (claim
two); and Williams' right to challenge the Information as a
violation of Florida Rule of Criminal Procedure 3.140(g) (claim
three). See Resp. Ex. M. The appellate court denied the petition on
the merits on April 8, 2014. See Williams v. State, 135 So.3d 1133
(Fla. 1st DCA 2014); Resp. Ex. N.

1

Melbourne v. State, 679 So.2d 759 (Fla. 1996).
3

III. One-Year Limitations Period
The Petition appears to be timely filed within the one-year
limitations period. See 28 U.S.C. § 2244(d).
IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner
to establish the need for a federal evidentiary hearing. See 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); Jones v. Sec'y,
Fla. Dep't of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert.
denied, No. 16-8668, 2017 WL 1346407 (June 12, 2017). "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." Schriro, 550 U.S. at 474. The
pertinent facts of this case are fully developed in the record
before

the

Court.

Because

this

Court

can

"adequately

assess

[Williams'] claim[s] without further factual development," Turner
v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary
hearing will not be conducted.

4

V. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) governs a state prisoner's federal petition for habeas
corpus. 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)
(quotation marks omitted)). As such, federal habeas review of final
state court decisions is "'greatly circumscribed' and 'highly
deferential.'" Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343
(11th Cir. 2011) (quotation marks omitted)).
The first task of the federal habeas court is to identify the
last state court decision, if any, that adjudicated the claim on
the merits. See Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d
1227, 1235 (11th Cir. 2016) (en banc), cert. granted, 137 S. Ct.
1203 (2017); Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277,
1285 (11th Cir. 2016). 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) (citation omitted);
see also Johnson v. Williams, 568 U.S. 289, --, 133 S. Ct. 1088,

5

1096 (2013).2 Thus, the state court need not issue an opinion
explaining its rationale in order for the state court's decision to
qualify as an adjudication on the merits. See Richter, 562 U.S. at
100.
If the claim was "adjudicated on the merits" in state court,
§ 2254(d) bars relitigation of the claim unless the state court's
decision

(1)

"was

contrary

to,

or

involved

an

unreasonable

application of, clearly established Federal law, as determined by
the Supreme Court of the United States;" or (2) "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);
Richter, 562 U.S. at 97-98. As the Eleventh Circuit has explained:
First, § 2254(d)(1) provides for federal
review for claims of state courts' erroneous
legal conclusions. As explained by the Supreme
Court in Williams v. Taylor, 529 U.S. 362, 120
S. Ct. 1495, 146 L.Ed.2d 389 (2000), §
2254(d)(1) consists of two distinct clauses: a
"contrary to" clause and an "unreasonable
application" clause. The "contrary to" clause
allows for relief only "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."
Id. at 413, 120 S. Ct. at 1523 (plurality
opinion).
The
"unreasonable
application"

2

The presumption is rebuttable and "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; see
also Williams, 133 S. Ct. at 1096-97. However, "the Richter
presumption is a strong one that may be rebutted only in unusual
circumstances . . . ." Williams, 133 S. Ct. at 1096.
6

clause allows for relief only "if the state
court identifies the correct governing legal
principle from [the Supreme] Court's decisions
but unreasonably applies that principle to the
facts of the prisoner's case." Id.
Second, § 2254(d)(2) provides for federal
review for claims of state courts' erroneous
factual determinations. Section 2254(d)(2)
allows federal courts to grant relief only if
the state court's denial of the petitioner's
claim
"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)(2). The
Supreme
Court
has
not
yet
defined
§
2254(d)(2)'s "precise relationship" to §
2254(e)(1), which imposes a burden on the
petitioner to rebut the state court's factual
findings "by clear and convincing evidence."
See Burt v. Titlow, 571 U.S. ---, ---, 134 S.
Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord
Brumfield v. Cain, 576 U.S. ---, ---, 135 S.
Ct. 2269, 2282, 192 L.Ed.2d 356 (2015).
Whatever that "precise relationship" may be,
"'a state-court factual determination is not
unreasonable merely because the federal habeas
court
would
have
reached
a
different
conclusion in the first instance.'"[3] Titlow,
571 U.S. at ---, 134 S. Ct. at 15 (quoting
Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct.
841, 849, 175 L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert.
denied, No. 16-8733, 2017 WL 1386004 (U.S. June 26, 2017); see also
Daniel v. Comm'r, Ala. Dep't of Corr., 822 F.3d 1248, 1259 (11th
Cir. 2016). Also, deferential review under § 2254(d) generally is
limited

to

the

record

that

was

3

before

the

state

court

that

The Eleventh Circuit has described the interaction between
§ 2254(d)(2) and § 2254(e)(1) as "somewhat murky." Clark v. Att'y
Gen., Fla., 821 F.3d 1270, 1286 n.3 (11th Cir. 2016).
7

adjudicated the claim on the merits. See Cullen v. Pinholster, 563
U.S. 170, 182 (2011) (stating the language in § 2254(d)(1)'s
"requires an examination of the state-court decision at the time it
was made"); Landers v. Warden, Att'y Gen. of Ala., 776 F.3d 1288,
1295 (11th Cir. 2015) (regarding § 2254(d)(2)).
Where

the

state

court's

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). Thus, "a habeas court must determine what
arguments or theories supported or, as here, 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." Richter, 562 U.S. at 102; see also Wilson, 834 F.3d
at 1235. To determine which theories could have supported the state
appellate court's decision, the federal habeas court may look to a
state trial court's previous opinion as one example of a reasonable
application of law or determination of fact. Wilson, 834 F.3d at
1239; see also Butts v. GDCP Warden, 850 F.3d 1201, 1204 (11th Cir.
2017).4 However, in Wilson, the en banc Eleventh Circuit stated

4

Although the United States Supreme Court has granted
Wilson's petition for certiorari, the "en banc decision in Wilson
remains the law of the [Eleventh Circuit] unless and until the
Supreme Court overrules it." Butts, 850 F.3d at 1205 n.2.
8

that the federal habeas court is not limited to assessing the
reasoning of the lower court. 834 F.3d at 1239. As such,
even when the opinion of a lower state court
contains flawed reasoning, [AEDPA] requires
that [the federal court] give the last state
court to adjudicate the prisoner's claim on
the merits "the benefit of the doubt,"
Renico,[5] 559 U.S. at 773, 130 S.Ct. 1855
(quoting Visciotti,[6] 537 U.S. at 24, 123
S.Ct. 357), and presume that it "follow[ed]
the law," Donald,[7] 135 S.Ct. at 1376 (quoting
Visciotti, 537 U.S. at 24, 123 S.Ct. 357).
Id. at 1238.
Thus, "AEDPA erects a formidable barrier to federal habeas
relief for prisoners whose claims have been adjudicated in state
court." Burt v. Titlow, 134 S. Ct. 10, 16 (2013). "Federal courts
may grant habeas relief only when a state court blundered in a
manner so 'well understood and comprehended in existing law' and
'was so lacking in justification' that 'there is no possibility
fairminded jurists could disagree.'" Tharpe, 834 F.3d at 1338
(quoting Richter, 562 U.S. at 102-03). "If this standard is
difficult to meet, that is because it was meant to be." Richter,
562 U.S. at 102. Thus, to the extent that Williams' claims were
adjudicated on the merits in the state courts, they must be
evaluated under 28 U.S.C. § 2254(d).

5

Renico v. Lett, 559 U.S. 766 (2010).

6

Woodford v. Visciotti, 537 U.S. 19 (2002).

7

Woods v. Donald, 135 U.S. 1372 (2015).
9

VI. Exhaustion/Procedural Default
There are prerequisites to federal habeas review. Before
bringing a § 2254 habeas action in federal court, a petitioner must
exhaust all state court remedies that are available for challenging
his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To exhaust
state remedies, the petitioner must "fairly present[]" every issue
raised in his federal petition to the state's highest court, either
on direct appeal or on collateral review. Castille v. Peoples, 489
U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust
a claim, "state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one
complete

round

of

the

State's

established

appellate

review

process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In addressing exhaustion, the United States Supreme Court
explained:
Before seeking a federal writ of habeas
corpus,
a
state
prisoner
must
exhaust
available
state
remedies,
28
U.S.C.
§
2254(b)(1), thereby giving the State the
"'"opportunity to pass upon and correct"
alleged violations of its prisoners' federal
rights.'" Duncan v. Henry, 513 U.S. 364, 365,
115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per
curiam) (quoting Picard v. Connor, 404 U.S.
270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438
(1971)). To provide the State with the
necessary "opportunity," the prisoner must
"fairly present" his claim in each appropriate
state court (including a state supreme court
with powers of discretionary review), thereby
alerting that court to the federal nature of
the claim. Duncan, supra, at 365-366, 115
S.Ct. 887; O'Sullivan v. Boerckel, 526 U.S.
10

838, 845,
(1999).

119

S.Ct.

1728,

144

L.Ed.2d

1

Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner's failure to properly exhaust available state
remedies results in a procedural default which raises a potential
bar to federal habeas review. The United States Supreme Court has
explained the doctrine of procedural default as follows:
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
are
accorded
the
finality
and
respect
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,[8] supra, at 747–748, 111 S.Ct.
2546; Sykes,[9] 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

8

Coleman v. Thompson, 501 U.S. 722 (1991).

9

Wainwright v. Sykes, 433 U.S. 72 (1977).
11

default and prejudice from a violation of
federal law. See Coleman, 501 U.S., at 750,
111 S.Ct. 2546.
Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012). Thus, procedural
defaults

may

be

excused

under

certain

circumstances.

Notwithstanding that a claim has been procedurally defaulted, a
federal court may still consider the claim if a state habeas
petitioner can show either (1) cause for and actual prejudice from
the default; or (2) a fundamental miscarriage of justice. Maples v.
Thomas, 132 S.Ct. 912, 922 (2012) (citations omitted); In re Davis,
565 F.3d 810, 821 (11th Cir. 2009) (citation omitted). In order for
Petitioner to establish cause,
the procedural default "must result from some
objective factor external to the defense that
prevented [him] from raising the claim and
which cannot be fairly attributable to his own
conduct." McCoy v. Newsome, 953 F.2d 1252,
1258 (11th Cir. 1992) (quoting Carrier, 477
U.S. at 488, 106 S.Ct. 2639). Under the
prejudice prong, [a petitioner] must show that
"the
errors
at
trial
actually
and
substantially disadvantaged his defense so
that he was denied fundamental fairness." Id.
at 1261 (quoting Carrier, 477 U.S. at 494, 106
S.Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In

the

petitioner

absence
may

of

receive

a

showing

of

consideration

cause
on

and
the

prejudice,
merits

of

a
a

procedurally defaulted claim if he can establish that a fundamental
miscarriage of justice, the continued incarceration of one who is

12

actually innocent, otherwise would result. The Eleventh Circuit has
explained:
[I]f a petitioner cannot show cause and
prejudice, there remains yet another avenue
for him to receive consideration on the merits
of his procedurally defaulted claim. "[I]n an
extraordinary case, where a constitutional
violation has probably resulted in the
conviction of one who is actually innocent, a
federal habeas court may grant the writ even
in the absence of a showing of cause for the
procedural default." Carrier, 477 U.S. at 496,
106 S.Ct. at 2649.[10] "This exception is
exceedingly narrow in scope," however, and
requires proof of actual innocence, not just
legal innocence. Johnson v. Alabama, 256 F.3d
1156, 1171 (11th Cir. 2001).
Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). "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." Johnson v. Alabama, 256 F.3d 1156, 1171 (11th
Cir. 2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Additionally, "'[t]o be credible,' a claim of actual innocence must
be based on reliable evidence not presented at trial." Calderon v.
Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at
324). With the rarity of such evidence, in most cases, allegations
of actual innocence are ultimately summarily rejected. Schlup, 513
U.S. at 324.

10

Murray v. Carrier, 477 U.S. 478 (1986).
13

VII. Ineffective Assistance of Appellate Counsel
"The

Sixth

Amendment

guarantees

criminal

defendants

the

effective assistance of counsel. That right is denied when a
defense attorney's performance falls below an objective standard of
reasonableness and thereby prejudices the defense." Yarborough v.
Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith,
539 U.S. 510, 521 (2003), and Strickland v. Washington, 466 U.S.
668, 687 (1984)). This two-part Strickland standard also governs a
claim of ineffective assistance of appellate counsel. Overstreet v.
Warden, 811 F.3d 1283, 1287 (11th Cir. 2016).
The Eleventh Circuit has stated:
To prevail on a claim of ineffective
assistance of appellate counsel, a habeas
petitioner must establish that his counsel's
performance was deficient and that the
deficient performance prejudiced his defense.
See Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
(1984); Brooks v. Comm'r, Ala. Dep't of Corr.,
719 F.3d 1292, 1300 (11th Cir. 2013) ("Claims
of ineffective assistance of appellate counsel
are governed by the same standards applied to
trial counsel under Strickland.") (quotation
marks
omitted).
Under
the
deficient
performance prong, the petitioner "must show
that counsel's representation fell below an
objective
standard
of
reasonableness."
Strickland, 466 U.S. at 688, 104 S.Ct. at
2064. "The standards created by Strickland and
§ 2254(d) are both highly deferential, and
when the two apply in tandem, review is doubly
so." Harrington, 562 U.S. at 105, 131 S.Ct. at
788 (quotation marks and citations omitted);
see also Gissendaner v. Seaboldt, 735 F.3d
1311, 1323 (11th Cir. 2013) ("This double
deference is doubly difficult for a petitioner
to overcome, and it will be a rare case in
14

which an ineffective assistance of counsel
claim that was denied on the merits in state
court is found to merit relief in a federal
habeas proceeding.") (quotation marks and
alteration omitted). "If this standard is
difficult to meet, that is because it was
meant to be." Harrington, 562 U.S. at 102, 131
S.Ct. at 786.
Rambaran v. Sec'y, Dep't of Corr., 821 F.3d 1325, 1331 (11th Cir.
2016), cert. denied, 137 S.Ct. 505 (2016).
When considering deficient performance by appellate counsel,
a court must presume counsel's performance was
"within
the
wide
range
of
reasonable
professional assistance." Id.[11] at 689, 104
S. Ct. 2052. Appellate counsel has no duty to
raise every non-frivolous issue and may
reasonably
weed
out
weaker
(albeit
meritorious) arguments. See
Philmore v.
McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009).
"Generally, only when ignored issues are
clearly stronger than those presented, will
the presumption of effective assistance of
counsel be overcome." Smith v. Robbins, 528
U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756
(2000) (quoting Gray v. Greer, 800 F.2d 644,
646 (7th Cir. 1986)); see also Burger v. Kemp,
483 U.S. 776, 784, 107 S. Ct. 3114, 97 L.Ed.2d
638 (1987) (finding no ineffective assistance
of counsel when the failure to raise a
particular issue had "a sound strategic
basis").
Overstreet, 811 F.3d at 1287; see also Owen v. Sec'y, Dep't of
Corr.,

568

F.3d

894,

915

(11th

Cir.

2009)

(stating

"any

deficiencies of counsel in failing to raise or adequately pursue
[meritless

issues

on

appeal]

cannot

assistance of counsel").

11

Strickland, 466 U.S. at 689.
15

constitute

ineffective

To satisfy the prejudice prong, a petitioner must show a
reasonable probability that "but for the deficient performance, the
outcome of the appeal would have been different." Black v. United
States, 373 F.3d 1140, 1142 (11th Cir. 2004) (citations omitted);
see Philmore v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir. 2009)
("In order to establish prejudice, we must first review the merits
of

the

omitted

claim.

Counsel's

performance

will

be

deemed

prejudicial if we find that 'the neglected claim would have a
reasonable

probability

of

success

on

appeal.'")

(citations

omitted).
VIII. Findings of Fact and Conclusions of Law
A. Ground One
As ground one, Williams asserts that his appellate counsel was
ineffective because he failed to argue on direct appeal that the
trial court erred when it denied his pretrial motions12 challenging
the Information and asserting that the prosecutor committed fraud
when he failed to comply with Florida Rule of Criminal Procedure
3.140(g). See Petition at 5; Memorandum at 4-6; Reply at 24-28.
Williams raised the ineffectiveness claim in his state petition for
writ of habeas corpus. See Resp. Ex. M at 17-22. The appellate

12

The trial court denied Williams' pro se pretrial motions:
"6th Amendment Right to the Confrontation Clause Violation and 5th
and 14th Amendment Right of Due Process Violation, filed January 3,
2012, and Fraud on the Court - Motion to Dismiss Charges, filed May
7, 2012. See P. Ex. A; Resp. Ex. A at 29-31, 93-104.
16

court ultimately denied the petition on the merits. See Williams,
135 So.3d 1133; Resp. Ex. N.
Thus, as there is a qualifying state court decision, the Court
will address this claim in accordance with the deferential standard
for federal court review of state court adjudications. After a
review of the record and the applicable law, the Court concludes
that the state court's adjudication of this claim was not contrary
to clearly established federal law, did not involve an unreasonable
application of clearly established federal law, and was not based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. Thus, Williams
is not entitled to relief on the basis of this claim.
Moreover, even assuming that the state court's adjudication of
this claim is not entitled to deference, Williams' ineffectiveness
claim is without merit.

Williams

has

failed to establish that

appellate counsel's failure to raise the issue on direct appeal was
deficient performance. Under Florida law, the state circuit courts
have jurisdiction over all felonies. See Fla. Stat. § 26.012(2)(d).
Moreover, the Information filed in Williams' case, see Resp. Ex. A
at 1-3, properly set forth the elements of burglary of a dwelling
(count one), dealing in stolen property (count two), and false
verification of ownership on a pawnbroker transaction form (count
three), and therefore met the minimum requirement for invoking the
jurisdiction

of

the

state

circuit

17

court.

Additionally,

the

Information contains the required sworn oath of the Assistant State
Attorney, certifying that the allegations in the Information "are
based upon facts that have been sworn to as true, and which, if
true, would constitute the offense therein charged," that the
prosecution "is instituted in good faith," and "that testimony
under oath has been received from the material witness(es) for the
offense." Id. at 1. Such a sworn oath by the prosecutor that he
received testimony under oath from the material witness(es) for the
offense is sufficient pursuant to applicable Florida law. See Fla.
R. Crim. P. 3.140(g).13 Undoubtedly, the trial court had subject
matter jurisdiction over Williams' case since the Information
charged

him

with

burglary

of

a

dwelling,

dealing

in

stolen

property, and false verification of ownership on a pawnbroker
transaction

form

in

violation

of

Florida

Statutes

sections

810.02(3)(b), 812.019(1), and 539.001(8)(b)8a. See Resp. Ex. A at
1. Williams was neither inadequately informed of the charges nor
hampered in preparing a defense.
Given

the

record,

Williams

has

not

shown

a

reasonable

probability exists that the claim would have been meritorious on
direct appeal, if counsel had raised the claim in the manner

13

Florida Rule of Criminal Procedure 3.140(g) "requires that
informations be under oath of the prosecuting attorney of the court
in which the information is filed."
18

suggested

by

Williams.14

Accordingly,

Williams'

ground

one

is

without merit since he has neither shown deficient performance nor
resulting prejudice.
B. Ground Two
As ground two, Williams asserts that the trial and appellate
courts erred when they denied him "access to the alleged stolen
ring." Petition at 7; Memorandum at 7-9; Reply at 3-15. Williams
argued this issue on direct appeal, see Resp. Ex. G at 2, 19-29;
the State filed an Answer Brief, see Resp. Ex. H at 10-14; and the
appellate court affirmed Williams' conviction and sentence per
curiam without a written opinion as to this issue, see Williams,
130 So.2d 232.
the

same

claim

To the extent Williams is raising, in ground two,
he

presented

on

direct

appeal,

the

claim

is

sufficiently exhausted.
In its appellate brief, the State addressed the claim on the
merits, see Resp. Ex. H at 11-14, and therefore, the appellate
court may have affirmed Williams' conviction based on the State's
argument. If the appellate court addressed the merits, the state
court's adjudication of this claim is entitled to deference under
AEDPA. After a review of the record and the applicable law, the
Court concludes that the state court's adjudication of this claim

14

Notably, at a February 7, 2012 pretrial hearing, the trial
court addressed Williams' assertions relating to sworn affidavits
from material witnesses. See Resp. Ex. A at 58-83; P. Ex. A.
19

was not contrary to clearly established federal law and did not
involve an unreasonable application of clearly established federal
law.

Nor

was

the

state

court's

adjudication

based

on

an

unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Accordingly, Williams is
not entitled to relief on the basis of this claim.
Even assuming that the state court's adjudication of this
claim is not entitled to deference, and that the claim presents a
sufficiently exhausted issue of federal constitutional dimension,15
Williams' claim is without merit. Williams filed pro se pretrial
motions relating to the allegedly stolen ring. See Resp. Ex. A at
32-33, 106-08. In the motions, he asserted that the State's use of
photographs, instead of the ring itself, hampered his ability to
prepare and present his defense to the charge of dealing in stolen
property; he argued that the ring belonged to him, not the victim,
because his great grandmother had given it to him before she died.16
Thus, he requested access to the ring for examination and asked the
court to prohibit the State from eliciting any testimony about the
ring from witnesses at trial. The trial court addressed the issue
and denied Williams' request for access to and examination of the

15

See Response at 5-6.

16

Williams asserts that his great grandmother's name and date
of birth were engraved inside the ring. See Memorandum at 7.
20

ring. See Resp. Exs. A at 78-79, 105; B at 269-71, 293-94; see Tr.
at 37-38.
Prior to trial, the following colloquy ensued.
THE COURT: Mr. Williams, let me remind
you of something. You're supposed to be your
own attorney, you're supposed to know the
rules, and things that I've already ruled upon
you do not get to just bring up an infinite
number of times. As a matter of fact, once the
Court has ruled[,] you can't even bring it up
again. You don't get to re-argue your issues
that you've lost in the past.
Now, if you've got something new[,] tell
me all about it, but if all you're going to do
is bring up the issue of whether --- the State
has already said they don't have the ring,
right?
[PROSECUTOR]: Correct.
THE COURT: Who has the ring?
[PROSECUTOR]: The victim. It was released
back to the victim, however, pictures were
taken
and
the
State
feels
that
it's
substantial enough for the victim to testify
that's her ring, as well as the pawnshop
broker to say that's the ring released to
justify it. He's allowed to cross-examine them
on that, and if [the] jury does not believe
that's enough, then, of course, their verdict
will be not guilty.
THE COURT: Does she -- I'm just curious,
does she even still own the ring?
[PROSECUTOR]: I'm not aware of -THE COURT: Is she, for example, going to
wear the ring to -[PROSECUTOR]: I do not believe she's
going be bringing it into court. But it's
often -- perhaps a scenario could be that the
21

pawnshop had sold the ring, we could still
move forward on dealing in stolen property
even if the pawnshop had, in fact, already
sold an item. So the actual ring being
presented in court is not required.
MR. WILLIAMS: It's required for my
defense, Your Honor, because I got to prove my
innocence with it. I got to prove my innocence
with the ring before they give it to somebody
it didn't even belong to.
THE COURT: Have you got a picture of the
ring here that I can look at that you're going
to be putting in evidence?
By the way, let's talk about the
evidence. Usually the State has a list of
their exhibits. Do you have something like
that?
[PROSECUTOR]: I can tell you, Judge, it's
going to be three pictures and the pawn form.
THE COURT: These three pictures[17] and
the pawn ticket?
[PROSECUTOR]: Yes, sir.
. . . .
THE COURT: I am looking at three
photographs now, I'm glad -- I'm glad I got a
chance to look at these now. It's a good thing
we're bringing this up before the trial
starts. I have no idea what that triangular
figure is, but at any -- I think that's just
something to get the ring to stand up or
something.
. . . .
THE COURT: There's a ring, it's a nice
looking ring, it's very unique, extremely
unique in my humble opinion, not being an

17

See Resp. Ex. A at 148-50.
22

expert in jewelry. But there are five separate
oval-shaped white stones. I don't know if
they're opals or what, and then there are five
smaller blue stones that look like sapphires.
And then there's another design, as far as the
setting, it's very intricate. So the ring is
extremely unique and identifiable. I'm not
saying there aren't others exactly like it,
but it's not a normal looking ring. It's
definitely different.
The defendant does have the right to
cross-examine and ask [the victim] all about
why the ring is not important, I guess. But,
at any rate, that's just a -- it's just a
matter that goes to the weight of the
evidence, not to the admissibility.
Tr. at 218-22. During Williams' open statement to the jury, he
argued that, if he had physical possession of the ring, rather than
just a photograph, he could prove his great grandmother had given
him the ring because of the engravings of her name and date of
birth. See id. at 253-54.
At trial, Lou Ann Erickson, the victim, testified that she was
away from her home about an hour on the day it was burglarized. See
id. at 256. She stated that, when she returned to her home, she
discovered that "three pieces" of "good valuable jewelry" were
missing

from

her

bedroom

dresser.

Id.

at

259.

According

to

Erickson, one of the missing rings was a gift she had given to her
daughter for her twenty-first birthday, see id. at 260; the "small
little opals" were "very fragile" and broke several times, so she
"would take [the ring] back and have it fixed and then give it back
to [her daughter];" upon her daughter's death in 2007, she got the

23

ring back and often wore it; after the theft of her ring, she
periodically stopped at pawn shops to look for her jewelry, but
never found anything, see id. at 260-61; approximately one year
later, she asked a store clerk at Gold Star Pawn shop if the store
had any opal rings; the clerk pointed to a display case with thirty
or more opal rings; Erickson immediately saw her ring, "started to
cry," and called the officer she had dealt with to report her
discovery, see id. at 261.
Erickson

identified

three

photographs

of

the

ring

and

testified that she was "certain" that the photographs accurately
depicted the ring that belonged to her daughter. Id. at 262, 264.
She explained that she "was very familiar with [her] daughter's
ring since [she and her ex-husband] had bought it for her and had
replaced one of the opals numerous times." Id. at 262. The court
overruled

Williams'

objection

photographs. See id. at 263.

to

the

introduction

of

the

According to Erickson, the only

marking on the ring's inner band was the carat weight; the ring
"had no other inscription of any kind." Id. at 266. She testified
that one of the officers returned the ring to her. See id.
On cross-examination, Erickson testified about the uniqueness
of her daughter's ring.
That is absolutely the only opal ring
that was made like that. Because I looked at
all the others and besides, the ring, as you
saw in the pictures, is a very unique setting.
It has five small opals and five small
sapphires in it. It is arranged very different
24

than a lot of rings. Most opal rings are just
one stone with maybe something around it. This
was very unusual. This setting was very
unusual. I knew my daughter's ring. That is
why I chose it for her.
. . . .
I just knew it was my ring. And I didn't
say anything to them. I just simply told the
officer. I called the officer and told him it
was my ring that was in there. And I showed it
to him when he arrived at the pawnshop. It was
still in the counter -- in the counter. I
showed him which one it was.
Id. at 272, 273. Additionally, Judy Farhat, manager and records
custodian of Gold Star Pawn shop, testified on recross-examination:
"there [are] plenty of rings that are made alike, but not this
particular ring. This obviously looks like a custom ring." Id. at
297.
When the State rested its case, see id. at 307-08, Williams
moved for a judgment of acquittal and asserted that he could have
proved his innocence if the court had permitted him access to the
ring, see id. at 308-09, 314-15. The court reminded Williams that,
while he alluded to the issue in his opening remarks to the jury,
the opening statements were not evidence. See id. at 312. The court
denied his motion for judgment of acquittal. See id. at 315.
Williams testified that he could have proved his innocence if the
court had allowed him access to the ring to show the jury that the
inside

of

the

ring

has

specific

markings

with

his

great

grandmother's name and birthdate. See id. at 319-20. During closing

25

argument, Williams argued that the State deprived him of the right
to present the ring in court. See id. at 348-49.
Although alleged state law errors generally are not grounds
for federal habeas relief, "a habeas court may review a state
court's evidentiary rulings in order to determine whether those
rulings violated the petitioner's right to due process by depriving
him of a fundamentally fair trial." Copper v. Wise, 426 F. App'x
689, 692 (11th Cir. 2011) (citing Felker v. Turpin, 83 F.3d 1303,
1311-12 (11th Cir. 1996)). The Eleventh Circuit explained:
Indeed, in a habeas corpus action brought by a
state prisoner, our authority is "severely
restricted" in the review of state evidentiary
rulings. Shaw v. Boney, 695 F.2d 528, 530
(11th Cir. 1983) (per curiam); see Estelle v.
McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475,
116 L.Ed.2d 385 (1991) ("[I]t is not the
province of a federal habeas court to
reexamine state-court determinations on statelaw questions. In conducting habeas review, a
federal court is limited to deciding whether a
conviction violated the Constitution, laws, or
treaties of the United States."). Habeas
relief is warranted only when the error "so
infused the trial with unfairness as to deny
due process of law." Lisenba,[18] 314 U.S. at
228, 62 S.Ct. 280; see Estelle, 502 U.S. at
75, 112 S.Ct. 475 (holding that habeas relief
was
not
warranted
because
neither
the
introduction of the challenged evidence, nor
the jury instruction as to its use, "so
infused the trial with unfairness as to deny
due process of law"); Bryson v. Alabama, 634
F.2d 862, 864–65 (5th Cir. Unit B Jan. 1981)
("A violation of state evidentiary rules will
not in and of itself invoke Section 2254
habeas corpus relief. The violation must be of

18

Lisenba v. California, 314 U.S. 219 (1941).
26

such a magnitude as to constitute a denial of
'fundamental fairness.'"); cf. Chambers,[19]
410 U.S. at 302, 93 S.Ct. 1038 (concluding
that the exclusion of "critical evidence"
denied the defendant "a trial in accord with
traditional and fundamental standards of due
process").
Taylor v. Sec'y, Fla. Dep't of Corr., 760 F.3d 1284, 1295 (2014)
(footnote omitted), cert. denied, 135 S. Ct. 2323 (2015). On this
record, the trial court did not err when it permitted the State to
introduce the three photographs of the ring. In the context of the
trial as a whole, the trial court's ruling did not so infuse the
trial with unfairness as to deny Williams due process of law.
Williams is not entitled to federal habeas relief on ground two.
C. Ground Three
As ground three, Williams asserts that his appellate counsel
was ineffective because he failed to raise the following issue on
direct appeal: Williams was entitled to be discharged from the
crime when he was not brought to trial within fifty days of the
filing of the demand for speedy trial under Florida Rules of
Criminal

Procedure

Memorandum

at

3.191(b)(4)

9-17;

Reply

at

and

(p).

29-43.

See

Petition

Williams

at

raised

8;
the

ineffectiveness claim in his state petition for writ of habeas
corpus. See Resp. Ex. M at 4-13. The appellate court ultimately
denied the petition on the merits. See Williams, 135 So.3d 1133;
Resp. Ex. N.

19

Chambers v. Mississippi, 410 U.S. 284 (1973).
27

There is a qualifying state court decision. Therefore, the
Court will address this claim in accordance with the deferential
standard for federal court review of state court adjudications.
After a review of the record and the applicable law, the Court
concludes that the state court's adjudication of this claim was not
contrary to clearly established federal law, did not involve an
unreasonable application of clearly established federal law, and
was not based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings.
Thus, Williams is not entitled to relief on the basis of this
claim.
Moreover, even assuming that the state court's adjudication of
this claim is not entitled to deference, Williams' ineffectiveness
claim is without merit.

Williams

was

arrested on the instant

charges on November 28, 2011. See Resp. Ex. A at 7, 13-15, 17; PD-1
at 1. On December 22, 2011, he filed a pro se Demand for Speedy
Trial (Demand).20 See Resp. Ex. A at 27-28. In the Demand, he
requested to be brought to trial within sixty days of the receipt
and filing of the demand.21 See id. at 27. He filed a notice of
expiration of speedy trial time (first notice) on February 9, 2012,

20

The demand was dated December 21, 2011. See Resp. Ex. A at
27-28; P. Ex. C.
21

Florida Rule of Criminal Procedure 3.191(a) provides for a
right to speedy trial without demand within 175 days of the arrest
if the crime charged is a felony. Rule 3.191(b) provides for a
speedy trial upon demand within 60 days.
28

and asserted that the fifty days22 "ran out" on February 9th. See
id. at 42-43. Williams filed a "new notice of expiration of speedy
trial time" (second notice) on April 3, 2012, and asked the court
to disregard the first notice and rule on the second notice.23 Id.
at 46-47. In the second notice, Williams explained why he filed the
new notice:
The Defendant cites under the penalty of
perjury that his 1st Notice of Expiration of
Speedy Trial Time is meritless based on
3.191(p) because it was filed on the
expiration date was [sic] 2-9-2012 which it
should have been filed on 2-10-2012 the 51st
day instead of the 50th after the expiration
of time needed on the demand for speedy
trial.... Therefore the Defendant submits this
new notice of expiration of speedy trial time
because the first one could be in error.
Id. at 47.
Florida

Rule

of

Criminal

Procedure

3.191(g)

provides

in

pertinent part:
No demand for speedy trial shall be filed or
served unless the accused has a bona fide
desire to obtain a trial sooner than otherwise
might be provided. A demand for speedy trial
shall be considered a pleading that the
accused is available for trial, has diligently
investigated the case, and is prepared or will
be prepared for trial within 5 days. . . .

22

Florida Rule of Criminal Procedure 3.191(b)(4) provides: "If
the defendant has not been brought to trial within 50 days of the
filing of the demand, the defendant shall have the right to the
appropriate remedy as set forth in subdivision (p)."
23

The second notice was dated April 2, 2012. See Resp. Ex. A
at 47; P. Ex. C.
29

In January and February 2012, Williams filed several pretrial
motions in preparation for trial. He was neither prepared for trial
within five days of his December 22, 2011 demand nor within five
days of his first and second notices of expiration. At a February
7, 2012 hearing on pretrial motions, see id. at 58-83, Williams was
still trying to obtain discoverable evidence. Notably, the court
addressed the speedy trial issue at the hearing, and the following
colloquy ensued.
[THE PROSECUTOR]: Your Honor, I would
just like to address the issue of speedy
trial. It runs in this case, my calculations
based on [the] arrest date is May 21, 2012. I
have a trial date that works for the State.
I'm not sure if it works for the defense
of April 30, 2012. I'm not sure if that is CRI week or not. We can, of course, do it the
week before.
THE COURT: That would be the week of the
23rd.
[THE PROSECUTOR]: That is correct, and
that is fine with the State, your Honor, and a
pre-trial the week before. That gets us -THE COURT: Well actually April 30th we
are yielding our courtroom to Judge Arnold. So
do you want to set it for April 23rd?
[THE PROSECUTOR]: Yes, sir. For trial and
it would [be] the 19th of April for final pretrial. The State will be prepared those
week[s]; but also, we won't have any issue
with the month of May with the courthouse
moving.
THE COURT: What is the speedy trial date?

30

[THE PROSECUTOR]: May 21, 2012.[24]
THE COURT: The final pre-trial would be
what?
[THE PROSECUTOR]: April 19th.
THE CLERK: April 19th.
THE COURT: Is that right?
THE CLERK: That's correct.
THE COURT: Okay. Did you want to be heard
about the trial date?
THE DEFENDANT: I am alright. I want to
know if I can get a copy of the order or -THE COURT: I can't understand what you
just said.
THE DEFENDANT: Can I have a copy of the
order for the law library?
THE COURT:
Anything else?

We

will

give

you

that.

[PROSECUTOR]: Nothing further from the
State, your Honor.
THE COURT: All right. Thank you. You can
take the defendant back.
Id. at 80-82.
On April 19, 2012, the court held a hearing and addressed the
speedy trial issue and the effect of Williams' second notice of
expiration. See Resp. Ex. B at 295-318. Five days later, the trial
judge continued the hearing, at which he stated:

24

See Fla. R. Crim. P. 3.191(a) (providing for a right to
speedy trial without demand within 175 days of the arrest if the
crime charged is a felony).
31

The issue today is whether the Court dismisses
your case because the rule has not been
complied with, and, therefore -- I already
told you what the issues were. They're not
whether the clerk notified the Court or not.
That's not the issue. The issue -- we all
agreed that the Court was not notified. But
the issue is, number one, did you serve the
State with their copy. Because regardless of
what you did with the clerk, you've got a duty
to serve both the State and the clerk. So
that's the issue. Did you serve them on the
3rd or on the 19th.
And the second issue is, was there a
waiver, and we're going to get the transcript
for that.
. . . .
And at this time the Court rules that
factually the most credible evidence is that
the defendant mailed a document to the State
or sent it out from the jail. It was received
on the 4th of April of this month and it
contained, unfortunately for the defendant,
not his new notice or any notice of expiration
of speedy trial, but, in fact, he mistakenly
copied his old demand for speedy trial, which
the State had already received way back in
December. Therefore, the State was not put on
notice of expiration of any speedy trial
period until the State received, as they have
told the Court, the first -- for the first
time, a copy of the defendant's new notice for
expiration of speedy trial, and the date that
they first received that, the Court is finding
most credible evidence and testimony, or at
least evidence, as an officer of the court
proffered to the Court, is that the State
first received that notice on the -- and help
me with this, State. You told me it was the
19th, I think; is that correct?
[PROSECUTOR]: Yes, sir.
THE COURT: So the Court is finding that
the -- it was received first from -- by the
32

State on the 19th of April 2012; therefore,
the Court did start the calendar call within
the five days, today's a continuation of that.
Today's date, in fact, is the 24th of April,
so we're still within that five days. And at
this time I'm going to set the case for a
further hearing on Thursday of this week,
which is the 26th.
And, I want to -- in an abundance of
caution, even though I've already ruled that
the State didn't get notice and the time
didn't begin to tick until the 19th of this
month, that -- under that ruling we still
would have to try this case next week, if we
go to trial. So I want to continue to look at
the waiver question.
. . . .
But, anyway, I want to put everybody on
notice so that on Thursday we can dig deeper
into this issue because I've already ruled
that the speedy trial period didn't begin to
tick, this five -- five plus ten day period
didn't begin to tick until the 19th. But if
the defendant did, in fact, waive speedy trial
back on the 7th of February, then we don't
have to try this case next week.
Id. at 350, 354-57. After ordering and reviewing the transcript of
the February 7th hearing, the court held another hearing on April
26th. At the hearing, the court summarized its prior findings and
proceeded to address the speedy trial waiver issue.
[T]his is a continuation of a hearing that
we've had on several previous dates. And what
I did last time is we narrowed the issues,
speedy trial issues and we narrowed them down.
I've already ruled in part and I ruled that
[the prosecutor] did not receive your amended
notice or final notice or new notice [of]
expiration of speedy trial until the 19th of
this month was it, counsel?

33

[PROSECUTOR]: Yes, sir.
THE COURT: So we're still within that
period, but I reserved on the issue of whether
there was a waiver of speedy trial back on -[February 7th].
. . . .
THE COURT: Well, Mr. Williams, I've
complimented you before and said you were
doing a good job, and in many ways you were
doing a good job, but when you told me you
never agreed to setting of the court date
beyond this period that would have been
triggered by your demand for speedy trial, I
took your word for it but I did trust and
verify as they say and I ordered the
transcript. Frankly I was surprised to find
that you clearly agreed to the continuance
when you said I'm all right. You agreed to the
setting of the Court [date] of the jury trial
beyond the date required by your demand,
clearly. And you told me you didn't and I
consider that to be misrepresentation.
. . . .
We're going to pass this case at this time for
trial and the date I do find that Mr. Williams
still has his original speedy trial period and
so we're going to set it within that six
months on the date that the State asked about
which was May 7th ....
Id. at 363-64, 370, 377-78. Given the record, including the trial
judge's findings on the issue and his remarks relating to an appeal
on the issue, see id. at 372, Williams has failed to establish that
appellate counsel's failure to raise the issue on direct appeal was
deficient performance.
Given

the

record,

Williams

has

not

shown

a

reasonable

probability exists that the claim would have been meritorious on
34

direct appeal, if counsel had raised the claim in the manner
suggested by Williams. Accordingly, Williams' ground three is
without merit since he has neither shown deficient performance nor
resulting prejudice.
D. Ground Four
As ground four, Williams asserts that his appellate counsel
was ineffective because he failed to argue on direct appeal that
the trial court erred when it denied his motion to set aside the
judgment based on violation of his right to a speedy trial within
six months.25 See Petition at 10; Memorandum at 17-18; Reply at 4449. Williams raised the ineffectiveness claim in his state petition
for writ of habeas corpus. See Resp. Ex. M at 13-17. The appellate
court ultimately denied the petition on the merits. See Williams,
135 So.3d 1133; Resp. Ex. N.
As there is a qualifying state court decision, the Court will
address this claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review
of the record and the applicable law, the Court concludes that the
state court's adjudication of this claim was not contrary to
clearly established federal law, did not involve an unreasonable
application of clearly established federal law, and was not based
on an unreasonable determination of the facts in light of the

25

Williams' reference to six months corresponds to the 175-day
deadline in Florida Rule of Criminal Procedure 3.191(a).
35

evidence presented in the state court proceedings. Thus, Williams
is not entitled to relief on the basis of this claim.
Moreover, even assuming that the state court's adjudication of
this claim is not entitled to deference, Williams' ineffectiveness
claim is without merit.

Williams

has

failed to establish that

appellate counsel's failure to raise the issue on direct appeal was
deficient performance. He asserts that "the State should have
brought [him] to face the criminal charges within 6 months as
proscribed [sic] by the 6th Amendment and [rule] 3.191." Petition
at 10. Florida Rule of Criminal Procedure 3.191(a), titled "Speedy
Trial without Demand," provides in pertinent part:
Except as otherwise provided by this rule ...
every person charged with a crime shall be
brought to trial within 90 days of arrest if
the crime charged is a misdemeanor, or within
175 days of arrest if the crime charged is a
felony. If trial is not commenced within these
time periods, the defendant shall be entitled
to the appropriate remedy as set forth in
subdivision (p). The time periods established
by this subdivision shall commence when the
person is taken into custody as defined under
subdivision (d).... This subdivision shall
cease to apply whenever a person files a valid
demand for speedy trial under subdivision (b).
Fla. R. Crim. P. 3.191(a) (emphasis added). The rule defines
"custody" as:
For purposes of this rule, a person is taken
into custody (1) when the person is arrested
as a result of the conduct or criminal episode
that gave rise to the crime charged, or (2)
when the person is served with a notice to
appear in lieu of physical arrest.

36

Fla. R. Crim. P. 3.191(d) (emphasis added).
Williams was arrested on the instant charges on November 28,
2011. See Resp. Ex. A at 7, 13-15, 17; PD-1 at 1. A jury was sworn
in on May 7, 2012, just 161 days after his arrest. See Tr. at 21112. There was no violation of his right to speedy trial without
demand. The 175-day speedy trial period would have run on May 21,
2017. See Resp. Exs. A at 80-81; B at 296.
Given

the

record,

Williams

has

not

shown

a

reasonable

probability exists that the claim would have been meritorious on
direct appeal, if counsel had raised the claim in the manner
suggested

by

Williams.

Accordingly,

Williams'

ground

four

is

without merit since he has neither shown deficient performance nor
resulting prejudice.
E. Ground Five
As ground five, Williams asserts that the trial court failed
to conduct a proper Neil26 and Slappy27 inquiry into the State's
peremptory strike of prospective juror Beverly Randolph, thus
denying Williams a fair and impartial jury in violation of the
Sixth Amendment. See Petition at 12; Memorandum at 19; Reply at 1516. Williams argued this issue on direct appeal, see Resp. Ex. G at
2, 30-32; the State filed an Answer Brief, see Resp. Ex. H at 1517; and the appellate court affirmed Williams' conviction and

26

State v. Neil, 457 So.2d 481 (Fla. 1984).

27

State v. Slappy, 522 So.2d 18 (Fla. 1988).
37

sentence per curiam without a written opinion as to this issue, see
Williams, 130 So.2d 232. To the extent Williams is raising, in
ground five, the same claim he presented on direct appeal, the
claim is sufficiently exhausted.
In its appellate brief, the State addressed the claim on the
merits, see Resp. Ex. H at 16-17, and therefore, the appellate
court may have affirmed Williams' conviction based on the State's
argument. If the appellate court addressed the merits, the state
court's adjudication of this claim is entitled to deference under
AEDPA. After a review of the record and the applicable law, the
Court concludes that the state court's adjudication of this claim
was not contrary to clearly established federal law and did not
involve an unreasonable application of clearly established federal
law.

Nor

was

the

state

court's

adjudication

based

on

an

unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Accordingly, Williams is
not entitled to relief on the basis of this claim.
Even assuming that the state court's adjudication of this
claim is not entitled to deference, and that the claim presents a
sufficiently exhausted issue of federal constitutional dimension,28
Williams' claim is without merit. Two juries were selected on May
7, 2012: one for Williams' trial and another for Benjamin Morales'

28

See Response at 9-10.
38

trial. See Tr. at 44, 50. During the jury selection proceeding for
Morales' trial, the court stated:
Okay. So now we've got -- and for the
record, Mr. Williams is present and is not
participating because this is not his jury
selection but he is present and aware of
everything that's going on, because he's
currently having some quiet conversation with
his standby counsel. All right. As long as
they're whispering and don't distract us.
Id. at 164-65. During the examination of panelists, Ms. Beverly
Randolph, see id. at 78, stated that an officer killed her best
friend, see id. at 156, but that incident would not affect her
ability to be a fair and impartial juror, see id. at 156-57. During
the jury selection proceeding for Williams' trial, see id. at 180,
the State exercised a "backstrike" to remove Ms. Randolph, id. at
204. The following colloquy ensued.
[PROSECUTOR]: Your Honor, the State would
exercise a backstrike and strike number 28,
Ms. Randolph.
THE COURT: Okay. It may be a backstrike.
Backstriking is allowed up until the jury is
sworn.
MR. WILLIAMS: And, Your Honor, I ask for
a race neutral reason.
THE COURT: All right. A Neil-Slappy has
been invoked. The State is trying to strike
Ms. Randolph. That would be your number what,
State?
[PROSECUTOR]: That's my third peremptory.
THE COURT: Your third. Okay. You have to
give a race neutral and non-pretexual reason
to have the Court sustain that strike.
39

[PROSECUTOR]: Judge, the race neutral
reason, Ms. Randolph did state that during an
arrest of, I believe it was her family
members, that an officer shot and killed one
of her family members. This case does involve
law enforcement. The State does not want her
to be sitting there thinking about her
relative that was shot by the police.
THE COURT: Okay. She must have -- she
wasn't included in our original 11 cause
challenges.
[PROSECUTOR]: She did state that she
could set that aside and be fair and
impartial, that's why the State did not -THE COURT: But she does have a family -what was the nature of the relationship?
[PROSECUTOR]:
I
believe
she
just
testified that it was a family member. I
apologize, I wasn't the individual asking the
questions during that, but that's the State's
race neutral reason.
THE COURT: All right. Have you stricken
every other juror -- frankly, I don't have a
photographic memory to remember every other
one -[PROSECUTOR]: I don't think any other
juror stated that a police officer had killed
their [sic] family member.
THE COURT: It was a police officer?
[PROSECUTOR]: A
their family member.

police

officer

killed

THE COURT: All right. I don't recall
that, you're right, with any other juror.
That's the second phase in announcing -- not
only does it have to be race neutral, but it
has to be non-pretexual and I've considered
that to mean you have to be very consistent.
So I find that that is a race neutral reason

40

and I don't see any inconsistencies so that
will be allowed.
Id. at 204-06.
"[T]he Equal Protection Clause forbids the prosecutor to
challenge potential jurors solely on account of their race or on
the

assumption

impartially

that

to

black

consider

jurors
the

as

State's

a

group
case

will

against

be
a

unable
black

defendant." Batson v. Kentucky, 476 U.S. 79, 89 (1986). Even a
single peremptory strike that results from discriminatory intent
violates the Equal Protection Clause. See Cochran v. Herring, 43
F.3d 1404, 1412 (11th Cir. 1995). The Eleventh Circuit has stated:
When a party accuses her opponent of
violating Batson's prohibition, a district
court
deploys
a
three-step
process
to
adjudicate the claim:
First, a defendant must make a prima
facie showing that a peremptory
challenge has been exercised on the
basis of race; second, if that
showing
has
been
made,
the
prosecution
must
offer
a
race-neutral basis for striking the
juror in question; and third, in
light of the parties' submissions,
the trial court must determine
whether the defendant has shown
purposeful discrimination.
Foster v. Chatman, -- U.S. --, 136 S.Ct. 1737,
1747, 195 L.Ed.2d 1 (2016).
United States v. Hughes, 840 F.3d 1368, 1381 (11th Cir. 2016),
cert. denied, 137 S.Ct. 1354 (2017); see Batson, 476 U.S. at 96-98;

41

see also Truehill v. State, 211 So.3d 930, 942-43 (Fla. 2017),
petition for cert. filed, No. 16-9448 (U.S. June 2, 2017).
The trial judge conducted an adequate inquiry29 when Williams
challenged the State's use of one of its peremptory challenges to
strike Ms. Randolph. The prosecutor provided a race-neutral reason
as to why he used one of his peremptory challenges to strike Ms.
Randolph. Next, the trial judge determined that Williams had not
shown purposeful discrimination. He found that the prosecutor's
race-neutral reason was non-pretextual and his strategy was "very
consistent."30 On this record, the trial judge did not err in his
factual determination that the prosecutor did not strike Ms.
Randolph for discriminatory reasons. Accordingly, Williams is not
entitled to federal habeas relief on ground five.
IX. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Williams seeks issuance of a certificate of appealability,
the undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial

29

Notably, the trial judge stated that Williams had "invoked"
a "Neil-Slappy" inquiry. See Tr. at 204.
30

"Of course, a court may find intent to discriminate when the
reason provided for striking a juror applies with equal force to a
juror that the same party declined to strike, who is outside the
protected group of the stricken juror." United States v. Hughes,
840 F.3d at 1382 (citing Parker v. Allen, 565 F.3d 1258, 1271 (11th
Cir. 2009)).
42

of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this
substantial showing, Williams "must demonstrate that reasonable
jurists

would

find

the

district

court's

assessment

of

the

constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Where

a

constitutional

district
claims

court
on

the

has

rejected

merits,

the

a petitioner's
petitioner

must

demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. See
Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
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. Upon
consideration of the record as a whole, this Court will deny a
certificate of appealability.

43

Therefore, it is now
ORDERED AND ADJUDGED:
1.

The Petition (Doc. 1) is DENIED, and this action is

DISMISSED WITH PREJUDICE.
2.

The Clerk of the Court shall enter judgment denying the

Petition and dismissing this case with prejudice.
3.

If Williams appeals the denial of the Petition, the Court

denies a certificate of appealability. Because this 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 the motion.
4.

The Clerk of the Court is directed to close this case and

terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 3rd day of
July, 2017.

sc 6/30
c:
Adrian Francis Williams
Counsel of Record

44