ADKINS v. CREWS

Filing 50

ORDER denying 1 Petition for writ of habeas corpus and dismissing case with prejudice. The Clerk of the Court shall enter judgment in accordance with this Order and close the case. The Court denies a certificate of appealability. Signed by Judge Marcia Morales Howard on 8/16/2017. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
LAWTON CALVIN ADKINS,
Petitioner,
v.

Case No. 3:14-cv-910-J-34PDB

SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.

ORDER
I. Status
Petitioner Lawton Calvin Adkins, an inmate of the Florida penal system, initiated
this action by filing a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus
By a Person in State Custody (Petition, Doc. 1). Adkins challenges a 2002 state court
(Suwannee County, Florida) judgment of conviction for first degree premeditated murder.
Respondents filed an Answer in Response to Order to Show Cause (Response, Doc. 30)
with exhibits (Resp. Ex.). Adkins replied. See Reply in Response to Show Cause (Reply,
Doc. 39). This case is ripe for review.
II. Procedural History
On January 19, 2001, the State of Florida charged Adkins by indictment with
murder in the first degree. Resp. Ex. A at 1. A jury found Adkins guilty of first degree
premeditated murder. Resp. Ex. B at 23. The court sentenced Adkins to life in prison.
Id. at 49-54; Resp. Ex. D at 35.

Adkins appealed his conviction to the First District Court of Appeal. Resp. Ex. L.
On March 30, 2004, the First District Court of Appeal issued an opinion, which per curiam
affirmed Adkins’ conviction and sentence. The mandate issued on August 17, 2004.
Resp. Ex. Q.
On August 10, 2005, Adkins filed a motion for post-conviction relief pursuant to
Florida Rule of Criminal Procedure 3.850. Resp. Ex. R at 1-65. Thereafter, he filed a
supplement to the motion on February 29, 2008 (id. at 66-78) and an amended
supplement to the motion on March 12, 2008 (id. at 79-92). On August 10, 2009, the trial
court partially denied Adkins’ motion for postconviction relief and ordered the State to
respond to grounds 12, 13, 14, 15, 18, 19 and 20. After finding that Adkins failed to allege
prejudice in his original motion, the court indicated that it would consider only the grounds
raised in the amended supplemental motion filed on February 29, 2008. It also summarily
denied claims 1, 8 and 10. Id. at 94-97.
Adkins filed a supplemental motion for postconviction relief on October 5, 2009 (id.
at 126-30) and an amended supplemental motion on October 23, 2009 (id. at 131-36).
Adkins’s former defense counsel filed a response to his motion for postconviction relief
with respect to grounds 12, 13, 14, 15, 18, 19 and 20. Id. at 137-47. Following an
evidentiary hearing on those grounds, the trial court on August 6, 2013, entered a final
order denying or dismissing each of Adkins’s claims. Resp. Ex. S at 180-403.
Adkins appealed the denial of his motion for postconviction relief to the First District
Court of Appeal, which per curiam affirmed the trial court’s order on July 7, 2014. Resp.
Ex. W. Adkins filed a motion for rehearing, which the court denied on August 21, 2014.
Resp. Ex. X. The mandate issued on September 8, 2014. Resp. Ex. Y.
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III. 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) (citation omitted); Jones
v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016). “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 [Thompson’s] claim[s] without further factual
development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary
hearing will not be conducted.
IV. Limits of Habeas Relief, Exhaustion and Procedural Default
A. Limits of Habeas Relief
Federal habeas review “is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68
(1991) (citations omitted). As such, federal habeas “does not lie for errors of state law.”
Id. at 67 (quotations omitted). “[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.” Id. at 67-68. As such,
federal courts may not review claims based exclusively on state law issues even if the

3

claims are “couched in terms of equal protection and due process.” Branan v. Booth, 861
F.2d 1507, 1508 (11th Cir. 1988) (quotation omitted).
B. Exhaustion
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), (c). 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).
As the United States Supreme Court has 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. 838,
845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004); see also O'Sullivan v. Boerckel, 526 U.S. 838,
845 (1999) (“[S]tate 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.”).
To fairly present a claim, the petitioner must present it to the state courts as a
federal, constitutional claim rather than as a matter of state law. See Duncan, 513 U.S.
at 365-66; Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 456-59 (11th Cir. 2015).
4

To do so, a petitioner can include “the federal source of law on which he relies or a case
deciding such a claim on federal grounds, or by simply labeling the claim ‘federal.’”
Baldwin, 541 U.S. at 32. But raising a state law claim that “is merely similar to the federal
habeas claim is insufficient to satisfy the fairly presented requirement.” Duncan, 513 U.S.
at 366. Likewise, merely citing to the federal constitution is insufficient to exhaust a claim
in state court. Anderson v. Harless, 459 U.S. 4, 7 (1982); see also McNair v. Campbell,
416 F.3d 1291, 1302 (11th Cir. 2005) (“‘The exhaustion doctrine requires a habeas
applicant to do more than scatter some makeshift needles in the haystack of the state
court record.’”) (quoting Kelley v. Sec’y for the Dep’t of Corr., 377 F.3d 1317, 1343-44
(11th Cir. 2004)). As explained by the Eleventh Circuit:
To “fairly present” a claim, the petitioner is not required to cite
“book and verse on the federal constitution.” Picard v.
Connor, 404 U.S. 270, 278, 92 S. Ct. 509, 30 L.Ed.2d 438
(1971) (quotation omitted). Nevertheless, a petitioner does
not “fairly present” a claim to the state court “if that court must
read beyond a petition or a brief (or a similar document) that
does not alert it to the presence of a federal claim in order to
find material, such as a lower court opinion in the case, that
does so.” Baldwin, 541 U.S. at 32, 124 S. Ct. 1347. In other
words, “to exhaust state remedies fully the petitioner must
make the state court aware that the claims asserted present
federal constitutional issues.” Jimenez v. Fla. Dep't of Corr.,
481 F.3d 1337, 1342 (11th Cir. 2007) (quoting Snowden v.
Singletary, 135 F.3d 732, 735 (11th Cir.1998)) (concluding
that the petitioner's claims were raised where the petitioner
had provided enough information about the claims (and
citations to Supreme Court cases) to notify the state court that
the challenges were being made on both state and federal
grounds).
Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1352 (11th Cir. 2012). “The crux of the
exhaustion requirement is simply that the petitioner must have put the state court on
notice that he intended to raise a federal claim.” Preston, 785 F.3d at 457 (11th Cir.

5

2015); see also French v. Warden, Wilcox State Prison, 790 F.3d 1259, 1270-71 (11th
Cir. 2015), cert. denied, 136 S. Ct. 815 (2016).
C. Procedural Default and Exceptions
“[W]hen ‘the petitioner fails to raise the [federal] claim in state court and it is clear
from state law that any future attempts at exhaustion would be futile,” a procedural default
occurs. Owen v. Sec’y, Dep’t of Corr., 568 F.3d 894, 908 n.9 (11th Cir. 2009) (quotation
omitted); see also Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001) (“The teeth of
the exhaustion requirement comes from its handmaiden, the procedural default
doctrine.”).

In such circumstances, federal habeas review of the claim is typically

precluded. Pope v. Sec’y for Dep’t of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012); Smith,
256 F.3d at 1138. Nevertheless, 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. See Coleman v. Thompson, 501 U.S. 722, 750
(1991); Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010).
To show cause for a procedural default, “the petitioner must demonstrate ‘some
objective factor external to the defense’ that impeded his effort to raise the claim properly
in state court.” Id. at 1157 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). “[T]o
show prejudice, a petitioner must demonstrate that ‘the errors at trial actually and
substantially disadvantaged his defense so that he was denied fundamental fairness.’”
Id. (quoting McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992) (per curiam)).
In the absence of a showing of cause and prejudice, a petitioner may obtain
consideration on the merits of a procedurally defaulted claim if he can establish that a
failure to consider the claim will result in a fundamental miscarriage of justice. Coleman,
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501 U.S. at 724. This exception has been described as “exceedingly narrow in scope as
it concerns a petitioner’s ‘actual’ innocence rather than his ‘legal’ innocence.” Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). “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.” Id. (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)), cert.
denied, 535 U.S. 926 (2002)). 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.
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 28.U.S.C. § 2254; Ledford v.
Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016). “‘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)). 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)).
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, Wilson v. Sellers,
137 S. Ct. 1203 (2017); Marshall v. Sec’y, Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th
7

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); see also Johnson v. Williams, 568 U.S. 289, --, 133 S. Ct. 1088,
1096 (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; Wright v. Sec’y for the Dep’t of Corr., 278 F.3d 1245, 1255 (11th Cir.
2002).
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 98. 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” clause allows for relief only “if the state court

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 Williams, 568 U.S. at --, 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.
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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
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); see also Daniel v. Comm’r, Ala.
Dep’t of Corr., 822 F.3d 1248, 1259 (11th Cir. 2016). Notably, the Supreme Court has
instructed that “[i]n order for a state court's decision to be an unreasonable application of
[that] Court's case law, the ruling must be ‘objectively unreasonable, not merely wrong;
even clear error will not suffice.’” Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017)
(quoting Woods v. Donald, 575 U.S. ---, ---, 135 S. Ct. 1372, 1376 (2015) (per curiam)
(internal quotation marks omitted)). Also, deferential review under § 2254(d) generally is
limited to the record that was before the state court that adjudicated the claim on the

The Eleventh Circuit has previously 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); see also Landers, 776 F.3d at 1294 n.4; Cave v. Sec’y, Dep’t of Corr.,
638 F.3d 739, 744-47 & n.4, 6 (11th Cir. 2011); Jones v. Walker, 540 F.3d at 1277, 1288
n.5.
2

9

merits. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (regarding § 2254(d)(1));
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; Marshall, 828 F.3d at 1285. 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). 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.3 834 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 [v. Lett, 449 U.S. 766, 733
(2010)] (quoting [Woodford v. Visciotti, 537 U.S. 19, 24
(2002)]), and presume that it “follow[ed] the law,” [Woods v.

  Although the 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.
3

10

Donald, --- U.S. ---, 135 U.S. 1372, 1376 (2015)] (quoting
Visciotti, 537 U.S. at 24).
Id. at 1238; see also Williams, 133 S. Ct. at 1101 (Scalia, J., concurring). Thus, “AEDPA
erects a formidable barrier to federal habeas relief for prisoners whose claims have been
adjudicated in state court.” Titlow, 134 S. Ct. at 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.
VI. Ineffective Assistance of Counsel
“The Sixth Amendment guarantees criminal defendants effective assistance of
counsel. That right is denied when a defense counsel’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.
With respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
11

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.
Notably, there is no “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 twopart 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.” 466 U.S. at 697.
Finally, “the standard for judging counsel’s representation is a most deferential
one.” Richter, 562 U.S. at 105. “Reviewing courts apply a ‘strong presumption’ that
counsel’s representation was ‘within the wide range of reasonable professional
assistance.’” Daniel, 822 F.3d at 1262 (quoting Strickland, 466 U.S. at 689). “When this
presumption is combined with § 2254(d), the result is double deference to the state court
ruling on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v.
Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,
concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).
“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.
12

111, 123 (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, 562 U.S. at 105.

As such,

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.
356, 371 (2010).
VII. Findings of Fact and Conclusions of Law
A. Grounds One through Four
In Grounds One through Four, Adkins asserts four claims of trial court error.

In

particular, Adkins contends that (1) the cumulative impact of the prosecutor’s improper
comments denied him of his right to a fair trial; see Petition at 5, 15; (2) the trial court
erred by excluding evidence of the victim’s toxicology report that was relevant to his theory
of defense; see id. at 6, 15; (3) the trial court erred by overruling his objection to an
outburst by the victim’s son; see id. at 8, 15-16; and (4) the trial court erred by instructing
the jury that voluntary intoxication is not a defense; see id. at 9, 16. Adkins raised all four
of these claims in his direct appeal to the First DCA as issues of state law, but he failed
to fairly present them as violations of federal constitutional law.4 See Duncan, 513 U.S.
at 365-66; Preston, 785 F.3d at 456-59. Regardless, for the reasons that follow, the

 Adkins’s failure to fairly present any federal constitutional claim in state court renders his
claims in Grounds One through Four unexhausted, despite Respondents’ assertions to
the contrary. See Response at 21, 36, 39, 43 (“Petitioner exhausted his state court
remedies on this ground by presenting this argument in his direct appeal.”). The Court is
inclined to conclude that Respondents made an inadvertent oversight, see Day v.
McDonough, 547 U.S. 198, 202 (2006), rather than a deliberate decision to forego a
defensive argument, see Wood v. Milyard, 566 U.S. 463, 132 S. Ct. 1826, 1834 (2012).
Regardless, the Court need not decide this issue because Adkins’s claims in the Petition
fail to rise to the level of due process violations and, as such, are not cognizable in federal
habeas court. See McGuire, 502 U.S. at 67; Branan, 861 F.2d at 1508.
4

13

claims in Adkins’s Petition also do not present violations of his federal constitutional rights,
and as such, his claims fail in federal habeas court. See McGuire, 502 U.S. at 67-68;
McCullough v. Singletary, 967 F.2d 530, 535-36 (11th Cir. 1992).
1. Ground One
As Ground One, Adkins asserts that the cumulative impact of the prosecutor’s
improper comments rose to the level of fundamental error and denied him of his right to
a fair trial. See Petition at 5, 15. Specifically, Adkins contends:
The trial court erred by allowing the prosecutor to make
improper statements which curried favor with the jury. Prior
to closing arguments, the prosecutor offered to waive his
closing argument if it would preclude Appellant from making a
closing statement. The tenor of the comments was such that
the prosecutor endeared himself to the jury and prejudiced
Appellant.
The prosecutor made additional improper comments
during his closing argument including comments on facts not
in evidence, personal opinion, vouching for state witnesses,
attacks on the defense and defense counsel, and
misstatements of the law and jury instructions.
Although only some of these improprieties were
objected to by the defense, the cumulative impact of these
comments rose to the level of fundamental error, denying
Appellant of his right to a fair trial.
Id. at 15. However, other than bare assertions of “fundamental error” and denial of a
“right to a fair trial,” the Petition lacks any specific, articulable violations of federal
constitutional provisions.5 See Petition at 5, 15. Likewise, Adkins failed to assert any

5
 Although Adkins adds that the trial court’s error violated “the 6th and 14th amendments

to a fair and impartial trial” in his Reply, see Reply at 8, 11, the Court may not consider
claims raised for the first time in a reply brief. Cf. Herring v. Sec'y, Dep't of Corr., 397
F.3d 1338, 1342 (11th Cir. 2005) (“[a]rguments raised for the first time in a reply brief are
not properly before a reviewing court”).
14

federal constitutional violation in state court in his direct appeal from his conviction,
although he did raise this claim as a matter of state law. See Resp. Ex. L at 13, 16-31.
Without a written opinion, the First DCA per curiam affirmed Adkins’s judgment of
conviction and sentence. See Resp. Ex. N.
To the extent Adkins’s claim involves an issue of state law, his claim in Ground
One is not cognizable in federal habeas. See McGuire, 502 U.S. at 67-68 (federal habeas
relief “does not lie for errors of state law” but “is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.” (citations omitted)); see
also 28 U.S.C. §2254(a). But even if he fairly presented his claim in his Petition as a
violation of federal constitutional claim, his claim involving improper prosecutorial
comments would fail. As the Supreme Court has explained,
it “is not enough that the prosecutors' remarks were
undesirable or even universally condemned.” Darden v.
Wainwright, 699 F.2d, at 1036. The relevant question is
whether the prosecutors' comments “so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.” Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct.
1868, 40 L.Ed.2d 431 (1974). Moreover, the appropriate
standard of review for such a claim on writ of habeas corpus
is “the narrow one of due process, and not the broad exercise
of supervisory power.” Id., at 642, 94 S. Ct., at 1871.
Darden v. Wainwright, 477 U.S. 168, 181 (1986).
The Eleventh Circuit has further explained that “due process is denied only ‘when
there is a reasonable probability,’ or ‘a probability sufficient to undermine confidence in
the outcome,’ that, but for the offending remarks, ‘the outcome of the proceeding would
have been different.’” Spencer v. Sec’y, Dep’t of Corr., 609 F.3d 1170, 1182 (11th Cir.
2010) (quoting United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991)). “If the

15

misconduct fails to render the trial fundamentally unfair, habeas relief is not available.”
Id. (quoting Land v. Allen, 573 F.3d 1211, 1219 (11th Cir. 2009)).
In determining whether the act of misconduct rendered the
trial fundamentally unfair, we measure the remark against the
totality of the facts and circumstances. Hall v. Wainwright,
733 F.2d 766, 773 (11th Cir.1984). “In determining whether
arguments are sufficiently egregious to result in the denial of
due process,” facts such as the following may be considered:
“(1) whether the remarks were isolated, ambiguous, or
unintentional; (2) whether there was a contemporaneous
objection by defense counsel; (3) the trial court's instructions;
and (4) the weight of aggravating and mitigating factors.”
Land, 573 F.3d at 1219-20. Moreover, we consider “the
degree to which the challenged remarks have a tendency to
mislead the jury and to prejudice the accused,” and “the
strength of the competent proof to establish the guilt of the
accused.” Davis v. Zant, 36 F.3d 1538, 1546 (11th Cir.1994).
Thus, where the evidence of guilt is overwhelming, an
improper comment by a prosecutor usually does not render
the trial fundamentally unfair in violation of the Constitution.
See Land, 573 F.3d at 1220.
Id.
Given the totality of the facts and circumstances surrounding the prosecutor’s
comments at Adkins’s trial, including the overwhelming evidence of Adkins’s guilt, the
remarks fail to render the trial fundamentally unfair. Because the prosecutor’s comments
fail to rise to the level of a due process violation, Adkins’s claim fails. To the extent
AEDPA deference applies, the Court finds that the First DCA’s rejection of Adkins’s
prosecutorial misconduct claim on direct appeal was neither contrary to, nor an
unreasonable application of clearly established federal law, and did not result from an
unreasonable determination of the facts in light of the evidence presented in the state
court proceeding. The claim in Ground One is denied.

16

2. Ground Two
As Ground Two, Adkins asserts that the trial court erred by excluding evidence of
the victim’s toxicology report showing the presence of cocaine because it was relevant to
his theory of defense, which was that the shooting was an “accident, intertwined with selfdefense.” See Petition at 6, 15. Again, Adkins fails to articulate a federal constitutional
violation in his federal Petition. Similarly, Adkins failed to assert any federal constitutional
violation in the direct appeal from his conviction, although he did raise this claim as a
matter of state law. See Resp. Ex. L at 13, 32-40. Without a written opinion, the First
DCA per curiam affirmed Adkins’s judgment of conviction and sentence. See Resp. Ex.
N.
Not only does Adkins fail in his federal Petition to fairly present a federal
constitutional claim, federal habeas courts “generally will not review a state trial court’s
decisions on whether to admit evidence and will not grant a writ of habeas corpus simply
because a state trial judge has erred, under state law, in this determination.” Thigpen v.
Thigpen, 926 F.2d 1003, 1011 (11th Cir. 1991); see also Snowden v. Singletary, 135 F.3d
732, 737 (11th Cir. 1998) (unless a state trial court evidentiary error rises to the level of
fundamental unfairness and violates the Due Process Clause, a federal habeas court may
not review the claim); Alderman v. Zant, 22 F.3d 1541, 1555 (11th Cir. 1994) (federal
courts generally “will not review the trial court’s actions concerning the admissibility of
evidence”); Boykins v. Wainwright, 737 F.2d 1539, 1543 (11th Cir. 1984) (holding that
federal courts are not empowered to correct erroneous evidentiary rulings in state court
except where rulings deny petitioner fundamental constitutional protections). Notably, the
state court “has wide discretion in determining whether to admit evidence at trial, and may
17

exclude material evidence when there is a compelling reason to do so.” Lynd v. Terry,
470 F.3d 1308, 1314 (11th Cir. 2006). As such, when a petitioner claims a state court’s
evidentiary ruling deprived him of due process, the habeas court must ask only “whether
the error was of such magnitude as to deny fundamental fairness to the criminal trial . . .
.” Alderman, 22 F.3d at 1555 (internal quotation marks and citations omitted).
Adkins’s claim does not rise to the level of fundamental unfairness that would
violate due process, and consequently, it is not appropriate for federal habeas corpus
review. See McGuire, 502 U.S. at 67-68. To the extent that AEDPA deference applies,
the Court finds that the state court’s decision was neither contrary to nor 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. As such, Adkins’s claim
does not warrant federal habeas corpus relief. The claim in Ground Two is denied.
3. Ground Three
As Ground Three, Adkins asserts that the trial court erred by overruling his objection
to an “outburst” by the victim’s son. See Petition at 8, 15-16. During the son’s testimony,
the son asked whether Adkins was going to stare at him the whole time he was testifying.
See Resp. Ex. G at 515. Although Adkins’s counsel did not contemporaneously object,
he expressed concern over the incident the following day. Resp. Ex. H at 596-97. Once
again, other than bare assertions of denial of a “right to a fair trial by an impartial jury,”
the Petition fails to articulate any specific violation of federal constitutional provision. See
Petition at 8, 16. In addition, Adkins raised this claim in his state court direct appeal solely
as a state law issue. See Resp. Ex. L at 13, 41-45. Without a written opinion, the First
DCA per curiam affirmed Adkins’s judgment of conviction and sentence. Resp. Ex. N.
18

To the extent Adkins’s claim involves an issue of state law, his claim in Ground Three
is not cognizable in federal habeas. See McGuire, 502 U.S. at 67-68. Because the trial
judge is in the best position to evaluate the prejudicial effect of a witness's outburst, the
decision on whether to remedy the incident lies within the trial judge’s sound discretion.
See Messer v. Kemp, 760 F.2d 1080, 1087(11th Cir.1985). Even if Adkins would have
articulated a violation of federal due process, his claim would be couched merely in terms
of due process, and not significant enough to rise to the level of a due process violation.
See Branan, 861 F.2d at 1508.
Adkins’s claim does not rise to the level of fundamental unfairness that would violate
due process, and consequently, it is not appropriate for federal habeas corpus review.
See McGuire, 502 U.S. at 67-68. To the extent that AEDPA deference applies, the Court
finds that the state court’s decision was neither contrary to nor 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. As such, Adkins’s claim
does not warrant federal habeas corpus relief. As such, the claim in Ground Three is
denied.
4. Ground Four
As Ground Four, Adkins contends that the trial court erred by instructing the jury that
voluntary intoxication is not a defense. See Petition at 9, 16. Adkins asserts that he did
not raise voluntary intoxication, that no evidence justified the instruction, and that the
instruction was misleading to the jury. Id. Again, other than an oblique reference to the
denial of his “right to a fair trial,” Adkins does not come close to articulating a federal
constitutional violation in his federal Petition. Adkins raised this claim only by presenting
19

the issue in his direct appeal as a state law issue. See Resp. Ex. L. Without a written
opinion, the First DCA per curiam affirmed Adkins’s judgment of conviction and sentence.
Resp. Ex. N.
To the extent Adkins’s claim involves an issue of state law, his claim in Ground Four
is not cognizable in a federal habeas action. See McGuire, 502 U.S. at 67-68. But even
if he fairly presented this claim in his Petition as a violation of federal constitutional claim,
his claim that the trial court erred by needlessly giving a particular jury instruction would
fail. The Supreme Court has “defined the category of infractions that violate fundamental
fairness very narrowly.” McGuire, 502 U.S. at 73 (quotations and citation omitted).
“Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause
has limited operation.” Id. With those principles in mind, jury instructions “may not be
judged in artificial isolation, but must be considered in the context of the instructions as a
whole and the trial record.” Id. at 72.
The trial court instructed the jury that “evidence of a defendant’s voluntary intoxication
is not admissible to show that the defendant lacked the specific intent to commit an
offense.” Resp. Ex. J at 1166. The Court agrees with Respondents that even if Adkins
did not specifically claim voluntary intoxication as his theory of defense, there was no due
process violation by instructing the jury that Adkins’s intoxication could not excuse his
killing of the victim. Adkins’s claim does not rise to the level of fundamental unfairness
that would violate due process, and consequently, it is not appropriate for federal habeas
corpus review. See McGuire, 502 U.S. at 67-68. To the extent that AEDPA deference
applies, the Court finds that the state court’s decision was neither contrary to nor an
unreasonable application of clearly established federal law, and was not based on an
20

unreasonable determination of the facts in light of the evidence presented. As such,
Adkins’s claim does not warrant federal habeas corpus relief. The claim in Ground Four
is denied.
B. Grounds Five through Thirteen
In Grounds Five through Thirteen, Adkins asserts that his counsel provided
constitutionally ineffective assistance. Adkins exhausted these claims by raising them in
state court collateral proceedings. See Resp. Ex. R. The state circuit court denied
Adkins’s claims in a lengthy opinion. The First DCA affirmed without written opinion.
The Court affords the state court decision the deference it is due under §2254(d). See
Butts, 850 F.3d at 1204 (citing Richter, 562 U.S. at 100). Because reviewing the state
circuit court’s decision denying relief leads to the same conclusion under §2254(d) as
reviewing the First DCA’s affirmance, the Court will review the state circuit court’s written
explanation for its rejection of Adkins’s claim.6 See Butts, 850 F.3d at 1204 & 1205, n.2.
Applying the deference the Court owes state courts under AEDPA, the Court asks
“whether any fairminded jurist could agree with the state trial court’s decision denying
[Adkins] habeas relief.” Id. at 1205 (citations omitted). “If some fairminded jurists could
agree with the state court’s decision, although others might disagree, federal habeas relief
must be denied.” Id. (quotations and citation omitted).

6

  Where “it does not matter to the result, and to avoid any further complications if the

United States Supreme Court disagrees with [the] Wilson decision,” the federal habeas
court may apply § 2254(d) by deferring to “the more state-trial-court focused approach.”
Butts, 850 F.3d at 1204.
21

1. Ground Five
As Ground Five, Adkins contends that defense counsel rendered ineffective
assistance of counsel by failing to remove an “actually biased” juror, Morris Kight, from
the panel. Petition at 17. Adkins exhausted this claim by raising it as ground one of his
state court motion for postconviction relief. Finding that the record conclusively refuted
the contention that counsel performed deficiently, the state circuit court denied his claim
on August 10, 2009, and again after the evidentiary hearing in the final order on August
6, 2013. See Resp. Ex. S at 180. In the final denial, the circuit court wrote:
In Ground One, the Defendant alleges that Trial Counsel
was ineffective for failing to move to strike Juror Kight from the
jury. The Defendant argues that Juror Kight was biased
because he was the brother-in-law of the Suwannee County
Jail Administrator, and that the Defendant and the Jail
Administrator had a documented conflict. However, Ground
One fails.
In order to prove a claim of ineffective assistance of
counsel for failure to strike an allegedly biased juror under the
Strickland postconviction standard, a defendant must prove
actual bias on the part of the juror. Troy v. State, 57 So. 3d
828 (Fla. 2011); Carratelli v. State, 961 So. 2d 312 (Fla. 2007).
This standard is more difficult to meet than the standard used
on direct appeal. Id. A defendant does not prove actual bias
if the juror indicated that she or he could be fair during voir
dire. Id.
Applying these principles to the instant motion’s challenge
to Juror Kight, this Court finds that Trial Counsel was not
ineffective for failing to strike Juror Kight, because the record
reflects that Juror Kight did not indicate actual bias. The
record demonstrates that, when Juror Kight disclosed that the
Jail Administrator was his brother-in-law, Trial Counsel asked
him explicitly “So due to the fact that Captain Mills is your
brother-in-law, would you be more inclined to believe the
officers who took the stand over other witnesses?” Trial
Transcript, 375-76. In response, Juror Kight answered, “no.”
Trial Transcript at 376.
22

Juror Kight also did not demonstrate actual bias in the
following circumstances: when asked whether he would
require the State to convince him of the Defendant’s guilt
beyond a reasonable doubt, Juror Kight answered, “yes” (Trial
Transcript at 335); and when asked whether his past
experiences as a juror were pleasant experiences and
whether he could evaluate the instant case without letting his
prior jury experiences affect his judgment, Juror Kight
answered “yes” to both questions. (Trial Transcript at 342).
And, when asked whether he would hold his previous
experience with the State Attorney’s office against the
prosecution, Juror Kight also answered “no.” Trial Transcript
at 344.
In addition to the fact that the record refutes the
Defendant’s claim that Trial Counsel was ineffective for failing
to strike Juror Kight, the record also reflects that the
Defendant was present for the discussion of the final panel of
jurors, and that, when this Court asked whether the Defendant
approved the panel, he responded, “Yes, sir, your Honor.”
Trial Transcript at 389. Therefore, Juror Kight’s responses
during voir dire demonstrate that he could be a fair juror and
clearly do not establish actual bias.
Altogether, Ground One is conclusively refuted by the
record, which reflects that Juror Kight did not demonstrate
actual bias and that the Defendant approved the jury panel
that included Juror Kight. Accordingly, Ground One’s claim
that Trial Counsel was ineffective for failing to strike Juror
Kight fails to demonstrate the deficient performance prong of
the Strickland standard. Troy, 57 So. 3d 828. As a result,
Ground One must be denied. Hurst, 18 So. 3d 975.
Resp. Ex. S at 182-83. The First DCA affirmed.
Courts evaluate an ineffective-assistance-of-counsel claim based on failure to object
to jury selection as they would any other Strickland claim. See Harvey v. Warden, Union
Corr. Inst., 629 F.3d 1228, 1238 (11th Cir. 2011). “The performance inquiry will generally
boil down to whether trial counsel's actions (or inactions) were the result of deficient
performance or sound trial strategy.” Id. (citing Strickland, 466 U.S. at 689).

23

The state circuit court’s conclusion that counsel did not perform deficiently is both
consistent with Strickland and entitled to double deference from this Court. See Richter,
562 U.S. at 105; Daniel, 822 F.3d at 1262. The state court’s decision denying relief is
neither contrary to nor an unreasonable application of Strickland, and it did not rely on an
unreasonable determination of the facts in light of the evidence presented to the state
court. The claim in Ground Five is denied.
2. Ground Six
As Ground Six, Adkins contends that defense counsel rendered ineffective assistance
of counsel by failing to object properly to the introduction of collateral act evidence during
his trial. Petition at 18-19. Adkins raised this claim as ground two of his state court motion
for postconviction relief. The state circuit court described his claim as follows:
In Ground Two, the Defendant argues that Trial
Counsel was ineffective for failing to object to the admission
of bad character or propensity evidence. The Defendant
asserts that a State’s witness, a bouncer at the bar that the
Defendant had patronized on the night of the offense, testified
about the Defendant’s other bad acts solely to prove bad
character or propensity.
Resp. Ex. S at 183.
The state circuit court denied his claim on the merits in the final order on August 6,
2013, because the court found that the claim did not meet either prong of the Strickland
standard.

See id. at 183-86.

The circuit court first explained that Adkins did “not

demonstrate that Counsel provided deficient performance by failing to object to the
bouncer’s testimony, as the record reflects that the bouncer’s testimony was not offered
solely to prove bad character or propensity.” Id. at 184. The circuit court concluded its
assessment of deficient performance by stating:
24

As the bouncer’s testimony was admissible for the State’s
purpose of proving motive and absence of mistake or
accident, the testimony did not warrant an objection from Trial
Counsel. Because the testimony did not warrant an objection,
Trial Counsel could not have provided deficient performance
by failing to object.
Id. at 185.
Next, the state circuit court also found that Adkins’s claim did not meet the prejudice
prong of the Strickland standard. Id. After reviewing the evidence and explaining it’s
reasoning, the state circuit court found that “the outcome of the trial likely would not have
been different if Trial Counsel had objected to these comments [made by the bouncer
during his testimony].” Id. at 186.
The Court defers to the state trial court’s decision and concludes that it is neither
contrary to nor an unreasonable application of Strickland, and it did not rely on an
unreasonable determination of the facts in light of the evidence presented to the state
court. The claim in Ground Six is denied.
3. Ground Seven
As Ground Seven, Adkins contends that defense counsel rendered ineffective
assistance of counsel by failing to properly cross-examine the State’s witnesses, Cynthia
Collier and Sergeant St. John’s. Petition at 20. Adkins raised this claim as ground eight
of his state court motion for postconviction relief. The state circuit court denied his claim
on August 10, 2009, and again after the evidentiary hearing in the final order on August
6, 2013. Resp. Ex. S at 186-88. In the final order, the circuit court concluded that Adkins’s
claim failed for two reasons. First, finding that Adkins’s claim was conclusory in that it did
not demonstrate how the trial would have been different if counsel had impeached the
two witnesses, the state court concluded that Adkins failed “to properly plead the
25

prejudice prong of the Strickland standard.” Id. at 187. Second, the state court found
that counsel “did not provide ineffective assistance by failing to impeach two witnesses
with the depositions of two other witnesses, as such impeachment would have been
improper.” Id.
The Court defers to the state trial court’s decision and concludes that it is neither
contrary to nor an unreasonable application of Strickland, and it did not rely on an
unreasonable determination of the facts in light of the evidence presented to the state
court. The claim in Ground Seven is denied.
4. Ground Eight
As Ground Eight, Adkins asserts that defense counsel was ineffective for failing to
present Talenana Roberts as a witness at trial. See Petition at 21-22. Adkins raised this
claim as ground nine of his state court motion for postconviction relief. The state circuit
court denied his claim in the final order on August 6, 2013. Resp. Ex. S at 188-89. In
doing so, the court found that Adkins failed to meet the prejudice prong of the Strickland
standard because the outcome of the trial would not have been different. Id. at 188; 189.
Even if Talenana Roberts had been called as a witness, “the jury still would have heard
Deputy Brownfield’s firsthand account and the other, more incriminating evidence of the
Defendant’s guilt.” Id. at 189.
The Court defers to the state trial court’s decision and concludes that it is neither
contrary to nor an unreasonable application of Strickland, and it did not rely on an
unreasonable determination of the facts in light of the evidence presented to the state
court. The claim in Ground Eight is denied.

26

5. Ground Nine
As Ground Nine, Adkins contends that his counsel rendered ineffective assistance by
failing to raise a destruction of evidence claim as to fingerprints that could have been
found on the firearm but were not because the Florida Department of Law Enforcement
serologist swabbed the firearm prior to examination. Specifically, Adkins asserts that his
counsel should have objected to the admission of the firearm and/or moved to dismiss
the charges based on the destruction of fingerprint evidence. Petition at 23. Adkins
raised this claim as ground ten of his state court motion for postconviction relief. The
state circuit court denied his claim on August 10, 2009, and again in the final order on
August 6, 2013. Resp. Ex. S at 189. The state circuit court concluded that Adkins failed
to prove the deficient performance prong of the Strickland standard “[b]ecause Ground
Ten neither allege[d] nor demonstrate[d] bad faith on the part of law enforcement or the
State, and because it [was] based on speculation.” Id.
Applying double deference to the state trial court’s decision that counsel did not
perform deficiently, the Court concludes that it is neither contrary to nor an unreasonable
application of Strickland, and it did not rely on an unreasonable determination of the facts
in light of the evidence presented to the state court. The claim in Ground Nine is denied.
6. Ground Ten
As Ground Ten, Adkins contends that counsel rendered ineffective assistance by
failing to investigate, depose, and call as a witness at trial Billy Burnham. Petition at 2425. Adkins raised this claim as ground twelve of his state postconviction motion. The
state circuit court denied his claim in the final order on August 6, 2013. Resp. Ex. S at

27

189-191. The state circuit court concluded that Adkins failed to prove the deficient
performance prong of the Strickland standard after explaining:
This Court finds that Trial Counsel’s testimony
demonstrates that he considered an alternative course
(calling Billy Burnham to testify that the Defendant did not
make the alleged incriminating statements that Deputy
Brownfield claimed he did), diligently attempted to exhaust
that course by sending his investigator out five times, but was
ultimately unable to utilize that course because his
investigator could not locate Billy Burnham. This Court finds
that Trial Counsel then made a strategic decision to pursue
investigation of Michael McKneely’s potential contribution to
the defense. Based on the fact that Billy Burnham could not
be found and the fact that it was unclear to Trial Counsel that
Billy Burnham would have helped the defense, this Court finds
that it was reasonable under the norms of professional
conduct for Trial Counsel not to call Billy Burnham as a
witness at trial or investigate him any further than he did.
Accordingly, Ground Twelve fails to demonstrate that Trial
Counsel was ineffective for failing to call Billy Burnham as a
witness at trial or investigate him any further.
Id. at 190-91.
Applying double deference to the state trial court’s decision that counsel did not
perform deficiently, the Court defers to the state trial court’s decision and concludes that
it is neither contrary to nor an unreasonable application of Strickland, and it did not rely
on an unreasonable determination of the facts in light of the evidence presented to the
state court. The claim in Ground Ten is denied.
7. Ground Eleven
As Ground Eleven, Adkins asserts that counsel was ineffective for failing to properly
question defense witness James Hughens. Petition at 26. Adkins raised this claim as
ground fifteen in his state court motion for postconviction relief. The state circuit court
denied his claim in the final order on August 6, 2013 see Resp. Ex. S at 191-92. The
28

state circuit court concluded that Adkins failed to prove the deficient performance prong
of the Strickland standard after explaining:
This Court finds that Trial Counsel’s testimony
demonstrates that he considered an alternative course
(calling James Hughens as a witness), but rejected that
course because he feared that part of James Hughens’s
potential testimony would not have been relevant and that part
of it could have damaged the Defendant’s case. This Court
finds that it was reasonable under the norms of professional
conduct for Trial Counsel not to call James Hughens as a
witness at trial after evaluating his deposition testimony,
reviewing the deposition testimony with the Defendant, and
considering James Hughens’s potential trial testimony,
especially since Trial Counsel was acting to protect what he
believed to be the Defendant’s best interests: not opening the
door to potentially harmful evidence. Accordingly, Ground
Fifteen fails to demonstrate that Trial Counsel was ineffective
for failing to call James Hughens as a witness at trial.
Id.
Applying double deference to the state trial court’s decision that counsel did not
perform deficiently, the Court concludes that the state court’s decision is neither contrary
to nor an unreasonable application of Strickland, and it did not result from an
unreasonable determination of the facts in light of the evidence presented to the state
court. The claim in Ground Eleven is denied.
8. Ground Twelve
As Ground Twelve, Adkins asserts that counsel rendered ineffective assistance by
failing to acquire and rely upon the second 911/dispatch tape. Petition at 27. Adkins
presented this claim as ground eighteen of his state postconviction motion. The state
circuit court denied his claim in the final order on August 6, 2013. Resp. Ex. S at 192-93.
The court concluded that Adkins had not proven the deficient performance prong of the
Strickland standard, explaining:
29

Although the Defendant seemed to sincerely believe that
he called 911 on the date of the offense, this Court finds Trial
Counsel more credible. Because Trial Counsel is more
credible than the Defendant, this Court makes the factual
finding, based on Trial Counsel’s testimony, that the
Defendant did not tell Trial Counsel that he called 911 on the
date of the offense. Further, this Court finds that Trial Counsel
provided effective assistance of counsel by sending the 911
tape to an expert, by sending his investigator to interview the
911 operator, and by deposing the 911 operator thereafter.
Based upon the prevailing standards of postconviction law
discussed throughout, this Court finds that Trial Counsel’s
actions with regard to the 911 tape were reasonable under the
norms of professional conduct, based on what Trial Counsel
knew at that time.
Id. at 193.
Applying double deference to the state trial court’s decision that counsel did not
perform deficiently, the state court’s decision is neither contrary to nor an unreasonable
application of Strickland, and it did not result from an unreasonable determination of the
facts in light of the evidence presented to the state court. The claim in Ground Twelve is
denied.
9. Ground Thirteen
As Ground Thirteen, Adkins contends that counsel was ineffective by failing to
investigate, depose and call as a witness at trial, Geraldine Chauncey. Petition at 28.
Adkins presented this claim in state court postconviction proceedings, where it was
inadvertently referred to as both grounds twenty and twenty-four. Resp. Ex. S at 193.
The state circuit court denied his claim in the final order on August 6, 2013. Id. at 19394. Following a hearing, the court wrote:
[S]trategic decisions do not constitute ineffective
assistance of counsel if alternative courses have been
considered and rejected, and if counsel’s decision was
reasonable under the norms of professional conduct.
30

Occhicone, 768 So. 2d 1037; Bolender, 503 So. 2d 1247;
Henry, 948 So. 2d 609. This Court finds that Trial Counsel’s
testimony demonstrates that he considered an alternative
course (calling Geraldine Chauncey as a witness), but
rejected that course because, after having deposed her, he
feared that her potential testimony would not have portrayed
the Defendant in a favorable light. This Court finds that it was
reasonable under the norms of professional conduct for Trial
Counsel not to call Geraldine Chauncey as a witness at trial
after evaluating her deposition testimony, especially since
Trial Counsel was acting to protect what he believed to be the
Defendant’s best interests: not opening the door to potentially
harmful evidence.
Accordingly, this ground fails to
demonstrate that Trial Counsel was ineffective for failing to
call Geraldine Chauncey as a witness at trial. Because this
ground does not meet the deficient performance prong of the
Strickland standard, it must be denied. Hurst, 18 So. 3d 975.
Id. at 194.
Applying double deference to the state trial court’s decision that counsel did not
perform deficiently, the Court concludes that the state court’s decision is neither contrary
to nor an unreasonable application of Strickland, and it did not result from an
unreasonable determination of the facts in light of the evidence presented to the state
court. The claim in Ground Thirteen is denied.
C. Grounds Fourteen and Fifteen
As Ground Fourteen, Adkins asserts that judgment of acquittal was warranted
notwithstanding the jury’s verdict, see Petition at 29-30, and as Ground Fifteen, Adkins
asserts his motion for new trial should have been granted because the verdict was
contrary to the weight of the evidence. Petition at 31-33. Respondents contend that
Adkins failed to exhaust these claims in state court, and as such, the claims are
procedurally defaulted. Response at 78-86. The Court agrees. See Baldwin, 541 U.S.
at 29.
31

In his Reply, Adkins attempts to relitigate his trial. See Reply at 29-38. Although he
writes that “cause and prejudice is satisfied beyond a reasonable doubt that the petitioner
was maliciously prosecuted beyond a reasonable doubt by allowing the jury to hear facts
not in evidence, hear faulty instructions based on that evidence,” id. at 33, Adkins fails to
show cause and prejudice for his failure to raise the claims in Grounds Fourteen and
Fifteen in state court collateral litigation. See Coleman, 501 U.S. at 750. Even under a
liberal reading of his pro se pleadings, the Court finds that Adkins fails to show either
cause and prejudice for his procedural default or the exceedingly narrow fundamental
miscarriage of justice. See id.; Schlup, 513 U.S. at 327. As such, his claims in Grounds
Fourteen and Fifteen are denied.
VIII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Adkins 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 of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make this substantial showing, Adkins
“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 district court has rejected a petitioner’s constitutional claims on the merits,
the petitioner must demonstrate that reasonable jurists would find the district court’s
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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.
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 Adkins 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 16th day of August, 2017.

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lc22
c:

Lawton Calvin Adkins. #I05113
Counsel of Record

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