Starkes v. Secretary, Department of Corrections et al

Filing 20

ORDER denying the Amended Petition 11 and dismissing the case with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 9/18/2017. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JIMMIE D. STARKES,
Petitioner,
v.

Case No. 3:14-cv-894-J-34JBT

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Jimmie Darnell Starkes, an inmate of the Florida
penal system, initiated this action on July 28, 2014, by filing a
pro se Petition for Writ of Habeas Corpus (Doc. 1) under 28 U.S.C.
§ 2254. He filed an Amended Petition (Doc. 6) on May 21, 2015, and
a Second Amended Petition (Amended Petition; Doc. 11) on November
21, 2016. In the Amended Petition, Starkes challenges a 2008 state
court (Duval County, Florida) judgment of conviction for possession
of cocaine while armed and possession of a firearm by a convicted
felon. Respondents have submitted a memorandum in opposition to the
Amended Petition. See Respondents' Motion to Dismiss Second Amended
Petition for Writ of Habeas Corpus (Response; Doc. 18) with
exhibits (Resp. Ex.). On January 12, 2017, the Court entered an
Order to Show Cause and Notice to Petitioner (Doc. 15), admonishing
Starkes regarding his obligations and giving Starkes a time frame
in which to submit a reply.

On August 8, 2017, the Court directed Starkes, by September
11, 2017, to show cause why this case should not be dismissed for
his failure to comply, and either reply to the Response or notify
the Court he does not intend to reply. See Order (Doc. 19). Starkes
has neither requested an extension, shown cause, filed a reply, nor
notified the Court he does not intend to reply. The September 11,
2017 deadline having passed, the case is ripe for review.
II. Procedural History
On December 4, 2007, the State of Florida charged Starkes
with possession of cocaine while armed (count one) and possession
of a firearm by a convicted felon (count two). See Resp. Ex. 1 at
35-36, Amended Information. Starkes entered a plea of guilty to
counts one and two on January 15, 2008. See id. at 44-45; Resp. Ex.
2 at 249-71 (Plea Tr.). On February 14, 2008, the court sentenced
Starkes to a term of imprisonment of fifteen years for count one,
and a term of imprisonment of fifteen years for count two, to run
concurrently with count one. Resp. Exs. 1 at 63-69, Judgment; 2 at
272-352 (Sentencing Tr.).
On direct appeal, Starkes, with the benefit of counsel, filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967). See
Resp. Ex. 7. Starkes filed a pro se brief, arguing that the trial
court erred when it denied his motion to suppress (ground one), and
the State of Florida erred when it vindictively prosecuted him
twice for the same crime. See Resp. Ex. 9. On April 14, 2009, the

2

appellate

court

affirmed

Starkes'

conviction

per

curiam,

see

Starkes v. State, 10 So.3d 1109 (Fla. 1st DCA 2009); Resp. Ex. 10,
and the mandate issued on May 12, 2009, see Resp. Ex. 10.
On February 24, 2010, pursuant to the mailbox rule, Starkes
filed a pro se motion to correct illegal sentence under Florida
Rule of Criminal Procedure 3.800(a) (Rule 3.800 motion). See Resp.
Ex. 12 at 1-6. The circuit court denied the motion on April 12,
2010, see id. at 7-8, and later denied his motion for rehearing,
see Resp. Ex. 13 at 1-18, 19. On October 13, 2010, the appellate
court reversed the circuit court's denial of the Rule 3.800 motion
and remanded the case for the court either to attach portions of
the record refuting Starkes' claim or strike the habitual felony
offender (HFO) designation. See Starkes v. State, 46 So.3d 621
(Fla. 1st DCA 2010); Resp. Ex. 15. On remand, the circuit court
denied the Rule 3.800 motion and provided record attachments, see
Resp. Ex. 16 at 12-24, and later denied Starkes' motion for
rehearing, see id. at 25-29, 33. On March 24, 2011, the appellate
court affirmed the circuit court's denial per curiam, see Starkes
v. State, 61 So.3d 1119 (Fla. 1st DCA 2011); Resp. Ex. 17, and the
mandate issued on June 16, 2011, see Resp. Ex. 17.
During the pendency of the Rule 3.800 proceedings, Starkes
filed a pro se petition for writ of habeas corpus on March 27,
2010, pursuant to the mailbox rule. See Resp. Ex. 19. On May 14,
2010, the appellate court denied the petition on the merits, see

3

Starkes v. State, 37 So.3d 904 (Fla. 1st DCA 2010); Resp. Ex. 20,
and later denied Starkes' motion for rehearing, see Resp. Ex. 21.
Additionally,

during

the

pendency

of

the

Rule

3.800

proceedings, Starkes filed a pro se motion for post-conviction
relief pursuant to Florida Rule of Criminal Procedure 3.850 on
February 18, 2011, pursuant to the mailbox rule. See Resp. Ex. 22.
He filed an amended motion (Rule 3.850 motion) on March 9, 2011.
See Resp. Ex. 23. In his request for post-conviction relief,
Starkes asserted that counsel was ineffective because he misadvised
Starkes: he faced a term of imprisonment of thirty years as an HFO
for

the

offense

of

possession

of

cocaine

while

armed

if

he

proceeded to trial (ground one), and to not testify during the
suppression

hearing

as

to

Officer

Sharp's

alleged

unlawful

intrusion (ground four). Additionally, Starkes contended that
counsel was ineffective because he failed to: adopt Starkes' pro se
motion to disqualify Judge Haddock and preserve the issue for
appeal (ground two); properly preserve for appellate review the
issue relating to the trial court's denial of his motion for a
continuance of the suppression hearing to locate defense witness
Devon Brown (ground three); and file a motion to compel Judge
Haddock to order Officer Sharp to answer the certified deposition
question, file a motion in limine to prohibit Officer Sharp from
testifying during the suppression hearing, and preserve the issues
for appeal (ground five). The State responded. See Resp. Ex. 25.

4

The circuit court partially granted the Rule 3.850 motion as to
ground one relating to Starkes' assertion that he was improperly
deemed an HFO as to count one; the court therefore struck the HFO
designation as to count one. See Resp. Ex. 26. Additionally, the
court denied the Rule 3.850 motion as to grounds two, three, four,
five, and the remaining portion of ground one. See id. The court
entered an amended judgment and sentence on May 5, 2014, nunc pro
tunc to February 14, 2008. See Resp. Ex. 27. Starkes did not appeal
the circuit court's decision.
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, 137 S.Ct. 2245 (2017). "It follows that if the record
refutes the applicant's factual allegations or otherwise precludes

5

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

6

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, 301 (2013).1 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

1

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 Johnson, 133 S. Ct. at 1096-97. However, "the Richter
presumption is a strong one that may be rebutted only in unusual
circumstances . . . ." Johnson, 133 S. Ct. at 1096.
7

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"
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.'"[2] Titlow,
571 U.S. at ---, 134 S. Ct. at 15 (quoting

2

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).
8

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, 137 S. Ct. 2298 (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 before the state court that 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
9

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).3 However, in Wilson, the en banc Eleventh Circuit stated
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,[4] 559 U.S. at 773, 130 S.Ct. 1855
(quoting Visciotti,[5] 537 U.S. at 24, 123
S.Ct. 357), and presume that it "follow[ed]
the law," Donald,[6] 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

3

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.
4

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

5

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

6

Woods v. Donald, 135 U.S. 1372 (2015).
10

(quoting Richter, 562 U.S. at 102-03). "This standard is 'meant to
be' a difficult one to meet." Rimmer v. Sec'y, Fla. Dep't of Corr.,
864 F.3d 1261, 1274 (11th Cir. 2017) (quoting Richter, 562 U.S. at
102). Thus, to the extent that Starkes' claims were adjudicated on
the merits in the state courts, they must be evaluated under 28
U.S.C. § 2254(d).
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
11

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.
838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1
(1999).
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,[7] supra, at 747–748, 111 S.Ct.
2546; Sykes,[8] 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

7

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

8

Wainwright v. Sykes, 433 U.S. 72 (1977).
12

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, 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. Ward v.
Hall, 592 F.3d 1144, 1157 (11th Cir. 2010); In Re Davis, 565 F.3d
810, 821 (11th Cir. 2009). In order for a 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).[9] 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.

9

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

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 Martinez, the Supreme Court modified the general rule in
Coleman10 to expand the "cause" that may excuse a procedural
default. 132 S.Ct. at 1315.
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-trialcounsel claim in a collateral proceeding, a
prisoner may establish cause for a default of
an
ineffective-assistance
claim
in
two
circumstances. The first is where the state
courts did not appoint counsel in the initialreview 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

10

"Negligence on the part of a prisoner's postconviction
attorney does not qualify as 'cause.'" Maples v. Thomas, 565 U.S.
266, 280 (2012) (citing Coleman, 501 U.S. at 753). The Court
reasoned that, under principles of agency law, the attorney is the
prisoner's agent, and therefore, the principal bears the risk of
negligent conduct on the part of his agent. Coleman, 501 U.S. at
753-54. In Coleman, the alleged ineffectiveness of counsel was on
appeal from an initial-review collateral proceeding, and in that
proceeding the prisoner's claims had been addressed by the state
habeas trial court. Id. at 755. However, the Martinez Court
addressed inadequate assistance of counsel at an initial-review
collateral proceeding.
14

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 issue).
Id. at 1318-19.
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
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. "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, 592 F.3d at 1157. "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.

15

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.
VII. Ineffective Assistance of 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)).
To establish deficient performance, a
person challenging a conviction must show that
"counsel's representation fell below an
objective
standard
of
reasonableness."
[Strickland,] 466 U.S. at 688, 104 S.Ct. 2052.
A court considering a claim of ineffective
assistance must apply a "strong presumption"
that counsel's representation was within the
"wide range" of reasonable professional
assistance. Id., at 689, 104 S.Ct. 2052. The
challenger's burden is to show "that counsel
made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id., at
687, 104 S.Ct. 2052.
must

With respect to prejudice, a challenger
demonstrate "a reasonable probability
16

that, but for counsel's unprofessional errors,
the result of the proceeding would have been
different.[11] A reasonable probability is a
probability sufficient to undermine confidence
in the outcome." Id., at 694, 104 S.Ct. 2052.
It is not enough "to show that the errors had
some conceivable effect on the outcome of the
proceeding." Id., at 693, 104 S.Ct. 2052.
Counsel's errors must be "so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable." Id., at 687, 104
S.Ct. 2052.
Richter, 562 U.S. at 104. The Eleventh Circuit has recognized "the
absence of any iron-clad rule requiring a court to tackle one prong
of the Strickland test before the other." Ward, 592 F.3d at 1163.
Since both prongs of the two-part Strickland test must be satisfied
to show a Sixth Amendment violation, "a court need not address the
performance prong if the petitioner cannot meet the prejudice
prong, and vice-versa." Id. (citing Holladay v. Haley, 209 F.3d
1243, 1248 (11th Cir. 2000)). As stated in Strickland: "If it is
easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that
course should be followed." Strickland, 466 U.S. at 697.

11

In the context of an ineffective assistance challenge to the
voluntariness of a guilty or no contest plea, a petitioner must
show there is a "reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have insisted on
going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); see
Lynch v. Sec'y, Fla. Dep't of Corr., 776 F.3d 1209, 1218 (11th Cir.
2015) (citation omitted) (stating that, to succeed on a claim that
counsel was ineffective because he advised petitioner to plead
guilty, petitioner "must prove that: (1) counsel's advice was
deficient; and (2) 'but for counsel's errors, he would not have
pleaded guilty and would have insisted on going to trial'"), cert.
denied, 136 S.Ct. 798 (2016).
17

A state court's adjudication of an ineffectiveness claim is
accorded great deference.
"[T]he
standard
for
judging
counsel's
representation is a most deferential one."
Richter, - U.S. at -, 131 S.Ct. at 788. But
"[e]stablishing
that
a
state
court's
application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d)
are both highly deferential, and when the two
apply in tandem, review is doubly so." Id.
(citations and quotation marks omitted). "The
question is not whether a federal court
believes the state court's determination under
the Strickland standard was incorrect but
whether that determination was unreasonable a substantially higher threshold." Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411,
1420, 173 L.Ed.2d 251 (2009) (quotation marks
omitted). If there is "any reasonable argument
that
counsel
satisfied
Strickland's
deferential standard," then a federal court
may not disturb a state-court decision denying
the claim. Richter, - U.S. at -, 131 S.Ct. at
788.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014), cert.
denied, 135 S.Ct. 2126 (2015); Knowles v. Mirzayance, 556 U.S. 111,
123 (2009). "In addition to the deference to counsel's performance
mandated

by

Strickland,

the

AEDPA

adds

another

layer

of

deference--this one to a state court's decision--when we are
considering whether to grant federal habeas relief from a state
court's decision." Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th
Cir. 2004). As such, "[s]urmounting Strickland's high bar is never
an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

18

VIII. Findings of Fact and Conclusions of Law
A. Ground One
As ground one, Starkes asserts that counsel (Matt Shirk) was
ineffective because he coerced Starkes to plead guilty when he
misadvised Starkes that, if he proceeded to trial, he faced a term
of imprisonment of thirty years as an HFO for the offense of
possession of cocaine while armed. See Amended Petition at 5-7.
Petitioner raised the claim in his Rule 3.850 motion in state
court.

See

Strickland

Resp.

Ex.

23

ineffectiveness

at

6-9.

test

and

Identifying
Hill

v.

the

two-prong

Lockhart

as

the

controlling law, see Resp. Ex. 26 at 2, the post-conviction court
denied the Rule 3.850 motion with respect to this claim, stating in
pertinent part:
In Ground One, Defendant claims that
counsel was ineffective for coercing him into
entering a guilty plea. In support of this
contention, Defendant maintains that counsel
advised him that if he went to trial, he was
facing a thirty-year sentence for Possession
of Cocaine while Armed (Count One) because the
offense qualified him as an HFO. Defendant
maintains that he would not have pled had he
known he did not qualify as an HFO for Count
One.
Section 775.084(1)(a)3, Florida Statutes
(2008), prohibits the imposition of an HFO
sentence when the felony for which the
defendant is to be sentenced is a violation of
section 893.13, Florida Statutes (2008),
relating to the purchase or the possession of
a controlled substance. A defendant who is
convicted of a violation of section 893.13
relating to the possession of a controlled
substance is not eligible for an HFO sentence
19

even if the prior predicate felonies were not
violations of section 893.13. Woods v. State,
807 So. 2d 727, 728 (Fla. 1st DCA 2002);
Livingston v. State, 682 So. 2d 591, 591 (Fla.
2d DCA 1996). An HFO sentence imposed for a
section 893.13 possession offense must be
reversed even if it is imposed pursuant to a
plea agreement. Hayes v. State, 677 So. 2d
304, 305 (Fla. 1st DCA 1996). When a crime
cannot be habitualized, a trial court is
limited in sentencing a defendant to the
statutory maximum for the crime. Ledea v.
State, 121 So. 3d 88, 89 (Fla. 3d DCA 2013).
"'[I]n order to satisfy the "prejudice"
requirement, the defendant must show a
reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and
would have insisted on going to trial.'"
Brazeail v. State, 821 So. 2d 364[, 3]68 (Fla.
1st DCA 2002) (quoting Hill v. Lockhart, 474
U.S. 52, 58-59 (1985)). In determining whether
a reasonable probability exists, a court
should
consider
the
totality
of
the
circumstances surrounding the plea. Grosvenor
v. State, 874 So. 2d 1176, 1181-82 (Fla.
2004).
While Defendant's Judgment and Sentencing
Order does not specify for which Count(s)
Defendant is to serve an HFO sentence,
the
trial
court
orally
pronounced
at
Defendant's sentencing hearing that Defendant
was to be deemed an HFO for Count One. (Ex. D
at 101)[12]; See Williams v. State, 957 So. 2d
600, 603 (Fla. 2007) (A court's oral
pronouncement of a sentence controls over the
written sentencing document). Defendant's
conviction for Possession of Cocaine while
Armed under Count One is a violation of
section 893.13(6)(a), Florida Statutes (2008).
(Ex. B.) Section 775.084(1)(a)3, Florida
Statutes
(2008),
does
not
permit
habitualization for such an offense. In its
Response,
the
State
concedes
that
the
statutory maximum under Count One is fifteen

12

See Sentencing Tr. at 349.
20

years. See §§ 893.13(6)(a), 775.087(l)(c),
775.082(3)(c),
Florida
Statutes
(2008).
Therefore, while the trial court could
sentence Defendant to fifteen years on Count
One, the trial court could not designate
Defendant
as
an
HFO
for
Count
One.
Accordingly, the HFO designation on Count One
must be stricken.
However, assuming arguendo that counsel
was ineffective, counsel's misadvice did not
amount to coercion. During his plea colloquy,
Defendant testified under oath as follows:
THE COURT: Has anyone promised you
anything whatsoever to get you to
plead guilty, any certain type of
sentence, hope of special treatment,
or reward of any kind?
THE DEFENDANT: No, Sir.
THE COURT: Has anyone threatened
you, intimidated or coerced you into
pleading guilty?
THE DEFENDANT: No, Sir.
(Ex. D at 14.)[13] Based on this sworn
testimony, this Court finds that Defendant's
plea was freely and voluntarily entered.
Moreover,
this
Court
finds
that
Defendant did not suffer prejudice due to
counsel's alleged misadvice. As the sentence
under Count One was within the statutory
maximum for a second degree felony, Defendant
was not harmed by the improper HFO designation
on Count One. The fifteen-year sentence for
Count One is concurrent to the fifteen-year
sentence for Count Two. The fifteen-year
sentence under Count Two and Count Two's HFO
designation are legal. Further, the State
properly notified Defendant that he was facing
an enhanced sentence of up to thirty years as

13

See Plea Tr. at 262.
21

[an] HFO. (Ex. E.) Accordingly, Count One's
improper HFO designation did not affect the
cumulative length of Defendant's overall
sentences. Defendant entered his open plea
knowing he was facing a possible thirty-year
sentence as an HFO. Based on the totality of
these circumstances, there is not a reasonable
probability that Defendant would not have pled
guilty as to Count One. Thus, Defendant does
not meet the second prong of Strickland.
Resp. Ex. 26 at 2-5 (footnotes omitted). Starkes did not appeal the
post-conviction court's denial. Respondents contend that the claim
is procedurally barred since Starkes failed to appeal the court's
denial. See Response at 16-20. On this record, the Court agrees
that

the

claim

has

not

been

exhausted,

and

is

therefore

procedurally barred since Starkes failed to raise the claim in a
procedurally correct manner. Starkes has not shown either cause
excusing the default or actual prejudice resulting from the bar.14
Moreover, he has failed to identify any fact warranting the
application of the fundamental miscarriage of justice exception.
Assuming that Starkes' claim is not procedurally barred,
Starkes is not entitled to relief. The state post-conviction
court's adjudication of this claim is entitled to deference under
AEDPA. After a review of the record and the applicable law, the

14

"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." Martinez, 132 S.Ct. at
1318 (citation omitted). As discussed in the alternative merits
analysis that follows, this ineffectiveness claim lacks any merit.
Therefore, Starkes has not shown that he can satisfy an exception
to the bar.
22

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, Starkes 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,
Starkes' claim is, nevertheless, without merit. The record supports
the trial court's conclusion. The United States Supreme Court has
determined that "the representations of the defendant . . . [at a
plea

proceeding]

accepting

the

as

plea,

well

as

any

constitute

a

findings

made

formidable

by

the

barrier

judge

in

any

subsequent collateral proceedings. Solemn declarations in open
court carry a strong presumption of verity." Blackledge v. Allison,
431 U.S. 63, 73-74 (1977). Moreover, "[a] reviewing federal court
may set aside a state court guilty plea only for failure to satisfy
due process: If a defendant understands the charges against him,
understands the consequences of a guilty plea, and voluntarily
chooses to plead guilty, without being coerced to do so, the guilty
plea . . . will be upheld on federal review." Stano v. Dugger, 921
F.2d 1125, 1141 (11th Cir. 1991). On this record, Starkes has

23

failed to carry his burden of showing that his counsel coerced him
to enter the guilty plea.
At the plea hearing, the following colloquy transpired:
THE COURT: First let me tell you the
maximum sentence that you could receive on
these charges would be 35 years in prison if
you are found to be an habitual felony
offender or 20 years in prison if you are
found not to be an habitual felony offender.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And on
sentence you anywhere
nothing all of the way
prison. Do you understand

this plea I could
from probation or
up to 35 years in
that?

THE DEFENDANT: Yes, sir.
Plea Tr. at 257-58. Even assuming arguendo deficient performance by
defense counsel, Starkes has not shown prejudice. He has not shown
a "reasonable probability that, but for counsel's errors, he would
not have pleaded guilty and would have insisted on going to trial."
Hill, 474 U.S. at 59. If Starkes had proceeded to trial, and the
jury had found him guilty of both counts, he would have faced a
possible term of imprisonment of : fifteen years15 (with no courtimposed HFO designation) as to count one (possession of cocaine
while armed), and thirty years as to count two (possession of a
firearm by a convicted felon) if the court had found him to be an

15

See Fla. Stat. §§ 775.082(3)(c), (d), 893.13(6)(a),
775.087(1)(c) (2008).
24

HFO.16 See Resp. Ex. 1 at 11, Notice of Intent to Classify Defendant
as a Habitual Felony Offender. Starkes' ineffectiveness claim is
without merit since he has not shown prejudice. Accordingly,
Starkes

is

not

entitled

to

federal

habeas

relief

on

this

ineffectiveness claim.
B. Ground Two
As ground two, Starkes asserts that counsel was ineffective
because he failed to adopt Starkes' pro se motion to disqualify
Judge Haddock. See Amended Petition at 7-9. Respondents claim, see
Response at 9-15, and this Court agrees, that ground two does not
relate back to any of the claims in the original Petition,17 and
therefore is due to be dismissed as untimely. Nevertheless, for
purposes of the foregoing analysis, this Court will assume Starkes
timely filed the claim.
Petitioner raised the claim in his Rule 3.850 motion in state
court.

See

Resp.

Ex.

23

at

9-12.

The

post-conviction

court

ultimately denied the Rule 3.850 motion with respect to this claim,
stating in pertinent part:
In Ground Two, Defendant claims that
counsel was ineffective for failing to adopt
Defendant's pro se Motion to Disqualify the
Judge and for failure to preserve the issue
for appellate review. Defendant maintains that
his pro se motion contained a well founded

16

The court sentenced Starkes to a fifteen-year HFO sentence
as to count two.
17

See Mayle v. Felix, 545 U.S. 644 (2005).
25

basis for disqualification and counsel was
deficient for not going forward with the
motion.
Ethically, an attorney must refrain from
filing motions that lack meritorious grounds.
Smith v. State, 192 So. 2d 346, 351 (Fla. 2d
DCA
1966). Accordingly, counsel cannot be
ineffective for failing to file a motion which
would have been properly denied. Branch v.
State, 952 So. 2d 470, 476 (Fla. 2006). A
trial court's adverse ruling is not a legally
sufficient ground upon which to base a motion
to disqualify. Hastings v. State, 788 So. 2d
342, 342 (Fla. 5th DCA 2001) (citing Thompson
v. State, 759 So. 2d 650 (Fla. 2000)).
Moreover, in the context of a plea, the denial
of a motion for disqualification is typically
not appealable as it is generally not legally
dispositive of the case. See Duckworth v.
State, 469 So. 2d 913 (Fla. 1st DCA 1985).
Defendant's
pro
se
Motion
for
Disqualification
was
premised
on
his
disapproval with the trial court's denial of
his Motion to Suppress. (Ex. D at 6-8.) The
trial
court
addressed
the
Motion
for
Disqualification
immediately
before
Defendant's plea colloquy, and the court
explained that it was denying Defendant's
motion based on its legal insufficiency. (Ex.
D at 7.) Thus, even if counsel had adopted the
motion, it would have failed. Moreover,
counsel cannot be ineffective for failing to
preserve the denial for appellate review
because
Defendant
ultimately
pled.
Accordingly, this Court finds that counsel was
not deficient. Because Defendant failed to
make a sufficient showing on the first prong,
Defendant is unable to establish a sustainable
ineffective assistance of counsel claim under
Strickland. See Strickland, 466 U.S. at 697
("[T]here is no reason for a court deciding an
ineffective assistance claim . . . to address
both components of the inquiry if the
defendant makes an insufficient showing on
one.") Accordingly, Defendant is not entitled
to relief on this Ground.
26

Resp. Ex. 26 at 5-6 (emphasis omitted). Starkes did not appeal the
post-conviction court's denial. Respondents contend that the claim
is procedurally barred since Starkes failed to appeal the court's
denial. See Response at 16 n.6. On this record, the Court agrees
that

the

claim

has

not

been

exhausted,

and

is

therefore

procedurally barred since Starkes failed to raise the claim in a
procedurally correct manner. Starkes has not shown either cause
excusing the default or actual prejudice resulting from the bar.18
Moreover, he has failed to identify any fact warranting the
application of the fundamental miscarriage of justice exception.
Assuming that Starkes' claim is not procedurally barred,
Starkes is not entitled to relief. The state post-conviction
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, Starkes is
not entitled to relief on the basis of this claim.

18

As discussed in the alternative merits analysis that
follows, this ineffectiveness claim lacks any merit. Therefore,
Starkes has not shown that he can satisfy an exception to the bar.
27

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,
Starkes' claim is, nevertheless, without merit. In evaluating the
performance prong of the Strickland ineffectiveness inquiry, there
is a strong presumption in favor of competence. See Anderson v.
Sec'y, Fla. Dep't of Corr., 752 F.3d 881, 904 (11th Cir. 2014). The
inquiry is "whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance." Strickland, 466 U.S. at 690.
"[H]indsight

is

discounted

by

pegging

adequacy

to

'counsel's

perspective at the time' . . . and by giving a 'heavy measure of
deference to counsel's judgments.'" Rompilla v. Beard, 545 U.S.
374, 381 (2005). Thus, Starkes must establish that no competent
attorney would have taken the action that counsel, here, chose.
Notably, the test for ineffectiveness is neither whether
counsel could have done more nor whether the best criminal defense
attorneys might have done more; in retrospect, one may always
identify shortcomings. Waters v. Thomas, 46 F.3d 1506, 1514 (11th
Cir. 1995) (stating that "perfection is not the standard of
effective assistance") (quotations omitted). Instead, the test is
whether what counsel did was within the wide range of reasonable
professional assistance. Ward, 592 F.3d at 1164 (quotations and
citation omitted); Dingle v. Sec'y for Dep't of Corr., 480 F.3d

28

1092,

1099

(11th

Cir.

2007)

("The

question

is

whether

some

reasonable lawyer at the trial could have acted as defense counsel
acted in the trial at issue and not what 'most good lawyers' would
have done.") (citation omitted).
On this record, Starkes has failed to carry his burden of
showing that his counsel's representation fell outside that range
of reasonably professional assistance. At the plea hearing, the
following colloquy ensued:
[STARKES]: Your Honor, I'd like to speak
to Your Honor. In maintaining that there, I'm
not biased towards you. I was biased with the
decision in the hearing that was going between
the issue, not you.
THE COURT: Oh, I see. Okay. All right.
Well, on the recusal, I do think that -- and
if I didn't make this clear yesterday, I
denied the recusal because it was legally
insufficient.[19] It didn't state -- I think
everything it said in it was true. In other
words, what you said in it was that I said
those things, and the transcript is there, and
what I said in the transcript is there, but it
doesn't create a grounds [sic] for recusal.
But that is certainly something you can
appeal, but I don't think you can -- it's just
illogical. So now you are saying it is really
just the –
[DEFENSE COUNSEL]:
decision I think –

It

was

just

the

THE COURT: The decision, not me as the
Judge?

19

See Resp. Ex. 1 at 41-42, 43.
29

[STARKES]: No. Just the decision in the
case.
[DEFENSE COUNSEL]:
basis to recuse.

It

really

isn't

a

THE COURT: You are all right with having
me as the Judge to enter your plea to and then
we will have a sentencing hearing?
[STARKES]: Correct.
THE COURT: Okay, I've got you. Well, I
think we are all right on that, but it would
be not reserving the right to appeal that, all
right?
[DEFENSE COUNSEL]: Yes, sir.
THE COURT: You understand, Mr. Starkes?
[STARKES]: Yes, sir.
[DEFENSE COUNSEL]: I think he just didn't
like the legal decision in the . . .
THE COURT: Oh, I understand. . . .
Plea Tr. at 254-56.
Even

assuming

arguendo

deficient

performance

by

defense

counsel, Starkes has not shown any resulting prejudice. He has not
shown that a reasonable probability exists that the outcome of the
case would have been different if counsel had adopted Starkes' pro
se motion to disqualify Judge Haddock. His ineffectiveness claim is
without merit since he has shown neither deficient performance nor
resulting

prejudice.

Accordingly,

federal habeas relief on ground two.

30

Starkes

is

not

entitled

to

C. Ground Three
As ground three, Starkes asserts that counsel was ineffective
because he failed to properly preserve for appellate review the
issue relating to the trial court's denial of his motion for a
continuance of the suppression hearing to locate defense witness
Devon Brown. See Amended Petition at 9-10. He contends that Brown's
testimony was crucial at the suppression hearing because he would
have corroborated Starkes' testimony. See id. at 9. Respondents
claim, see Response at 9-15, and this Court agrees, that ground
three does not relate back to any of the claims in the original
Petition, and therefore is due to be dismissed as untimely.
Nevertheless, for purposes of providing a complete analysis for
appellate review, this Court will assume Starkes timely filed the
claim.
Petitioner raised the claim in his Rule 3.850 motion in state
court. See

Resp. Ex. 23 at 12-14. The post-conviction court

ultimately denied the Rule 3.850 motion with respect to this claim,
stating that he failed to demonstrate prejudice. See Resp. Ex. 26
at 7. Starkes did not appeal the post-conviction court's denial.
Respondents contend that the claim is procedurally barred since
Starkes failed to appeal the court's denial. See Response at 16
n.6. On this record, the Court agrees that the claim has not been
exhausted, and is therefore procedurally barred since Starkes
failed to raise the claim in a procedurally correct manner. Starkes

31

has not shown either cause excusing the default or actual prejudice
resulting from the bar.20 Moreover, he has failed to identify any
fact warranting the application of the fundamental miscarriage of
justice exception.
Assuming that Starkes' claim is not procedurally barred,
Starkes is not entitled to relief. The state post-conviction
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, Starkes 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,
Starkes' claim is still without merit. On this record, Starkes has
failed

to

carry

his

burden

of

showing

that

his

counsel's

representation fell outside that range of reasonably professional
assistance. Even assuming arguendo deficient performance by defense

20

As set forth in the alternative merits analysis, this
ineffectiveness claim lacks any merit. Thus, Starkes has not shown
that he can satisfy an exception to the bar.
32

counsel, Starkes has not shown any resulting prejudice. He has not
shown that a reasonable probability exists that the outcome of the
case would have been different if counsel had argued the issue in
the manner Starkes suggests. His ineffectiveness claim is without
merit

since

resulting

he

has

prejudice.

shown

neither

Accordingly,

deficient

Starkes

is

performance
not

entitled

nor
to

federal habeas relief on ground three.
D. Ground Four
As ground four, Starkes asserts that counsel was ineffective
because he failed to: file a motion to compel Judge Haddock to
order Officer Sharp to answer the certified deposition question,
file a motion in limine to prohibit Officer Sharp from testifying
during

the

suppression

hearing,

and

preserve

the

issue

for

appellate review. See Amended Petition at 10-15. He contends that
"[t]he certified question was relevant and went to the credibility
of Officer Sharp," see id. at 13, since his answer "would have
revealed [he] had been disciplined a number of times, for bad acts
of dishonest[y] unbecoming of an officer, for lying during a police
investigation and mak[ing] false police reports," see id. at 14.
Petitioner raised the claim in his Rule 3.850 motion in state
court. See

Resp. Ex. 23 at 17-21. The post-conviction court

ultimately denied the Rule 3.850 motion with respect to this claim,
stating in pertinent part:
In Ground Five, Defendant claims that
counsel was ineffective for failing to file a
33

Motion to Compel Officer Sharp to answer a
question posed during his deposition and, upon
Officer Sharp's continued refusal, file a
Motion in Limine to prohibit Officer Sharp
from testifying at the suppression hearing.
Defendant
also
avers
that
counsel
was
ineffective for failing to preserve this issue
for appellate review. In support of this
contention, Defendant asserts that during
Officer Sharp's deposition, counsel inquired
about the Officer's disciplinary history and
Officer Sharp refused to answer. Defendant
opines that this omission prevented counsel
from being fully prepared for the suppression
hearing.
Initially, this Court
Defendant's plea hearing,
exchange occurred between the
Defendant regarding counsel's

notes that at
the following
trial court and
performance:

THE COURT: Are there any motions
you want [your attorney] to file
that he hasn't already done?
THE DEFENDANT: No, Sir.
(Ex. D at 14.) Defendant cannot now seek to go
behind this sworn testimony. Further, counsel
cannot be ineffective for failing to file a
motion which could have been properly denied.
Branch, 952 So. 2d at 476.[21] Assuming
arguendo that counsel was ineffective, the
outcome
of
Defendant's
case
would
be
unaffected by counsel's failure to file a
Motion to Compel or a Motion in Limine. The
deposition
question
at
the
center
of
Defendant's claim has no influence on his
plea, but is instead related to a suspension
Officer Sharp received six years prior. (Ex. H
at 44.)[22] Moreover, even if counsel was
successful in excluding Officer Sharp from
testifying at the suppression hearing, this

21

Branch v. State, 952 So. 2d 470 (Fla. 2006).

22

See Resp. Ex. 26, exhibit H at 44.
34

would have no bearing on Defendant's case
because Officer Reagor also testified at the
suppression hearing about the incident. (Ex. F
Thus,
Defendant
does
not
at
7-14.)[23]
demonstrate prejudice and fails to meet the
second prong of Strickland. Accordingly,
Defendant
is
not
entitled
to
relief.
Strickland, 466 U.S. at 697 ("[T]here is no
reason for a court deciding an ineffective
assistance claim . . . to address both
components of the inquiry if the defendant
makes an insufficient showing on one").
Resp. Ex. 26 at 9-10. Starkes did not appeal the post-conviction
court's denial. Respondents contend that the claim is procedurally
barred since Starkes failed to appeal the court's denial. See
Response at 16-20. On this record, the Court agrees that the claim
has not been exhausted, and is therefore procedurally barred since
Starkes failed to raise the claim in a procedurally correct manner.
Starkes has not shown either cause excusing the default or actual
prejudice resulting from the bar.24 Moreover, he has failed to
identify any fact warranting the application of the fundamental
miscarriage of justice exception.
Assuming that Starkes' claim is not procedurally barred,
Starkes is not entitled to relief. The state post-conviction
court's adjudication of this claim is entitled to deference under
AEDPA. After a review of the record and the applicable law, the

23

See Resp. Ex. 26, exhibit F.

24

As discussed in the following alternative merits analysis,
this ineffectiveness claim lacks any merit. Therefore, Starkes has
not shown that he can satisfy an exception to the bar.
35

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, Starkes 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,
Starkes' claim is, nevertheless, without merit. Thus, Starkes must
establish that no competent attorney would have taken the action
that counsel, here, chose. At Officer Sharp's deposition, defense
counsel inquired as follows:
[DEFENSE COUNSEL]: Could you just tell me
briefly what discipline you have had?
[OFFICER SHARP]: Yeah. Once for, I guess,
conduct unbecoming.
[DEFENSE COUNSEL]: What was the -- what was
the result? What punishment, if anything, did
you receive?
[OFFICER SHARP]: It was a suspension.
[DEFENSE COUNSEL]: And how long ago was that?
[OFFICER SHARP]: Six years ago maybe.
CQ1 [DEFENSE COUNSEL]: Okay. Could you just
briefly tell me what -- what it is that you
did?

36

[OFFICER SHARP]: Is that pertinent to this
case?
[PROSECUTOR]: You can certify the question.
[DEFENSE COUNSEL]: I'll certify the question.
[PROSECUTOR]: Okay. The Court would have to
make you answer.
[OFFICER SHARP]: Okay.
[DEFENSE COUNSEL]: Any other incidents?
[OFFICER SHARP]: No.
Resp. Ex. 26, exhibit H at 44. On this record, Starkes has failed
to carry his burden of showing that his counsel's representation
fell outside that range of reasonably professional assistance.
Even

assuming

arguendo

deficient

performance

by

defense

counsel, Starkes has not shown any resulting prejudice. He has not
shown that a reasonable probability exists that the outcome of the
case would have been different if counsel had requested that the
court direct Officer Sharp to answer the question or prohibit him
from testifying at the suppression hearing and preserved the issue
for appellate review. His ineffectiveness claim is without merit
since he has shown neither deficient performance nor resulting
prejudice. Accordingly, Starkes is not entitled to federal habeas
relief on ground four.
IX. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Starkes seeks issuance of a certificate of appealability,
the undersigned opines that a certificate of appealability is not
37

warranted. This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this
substantial showing, Starkes "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.

38

Therefore, it is now
ORDERED AND ADJUDGED:
1.

The Amended Petition (Doc. 11) is DENIED, and this action

is DISMISSED WITH PREJUDICE.
2.

The Clerk of the Court shall enter judgment denying the

Amended Petition and dismissing this case with prejudice.
3.

If Starkes appeals the denial of the Amended 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 18th day of
September, 2017.

sc 9/18
c:
Jimmie D. Starkes
Counsel of Record
39