Reed v. Secretary, Department of Corrections et al

Filing 41

ORDER denying the 1 Petition and dismissing the action with prejudice. Signed by Judge Marcia Morales Howard on 8/25/2017. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ERNEST REED,
Petitioner,
v.

Case No. 3:14-cv-1187-J-34JRK

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Ernest Reed, an inmate of the Florida penal system,
initiated this action on September 29, 2014, by filing a pro se
Petition for Writ of Habeas Corpus (Petition; Doc. 1) under 28
U.S.C. § 2254 and Memorandum of Law (Memorandum; Doc. 21-1). In the
Petition,

Reed

challenges

a

2007

state

court

(Duval

County,

Florida) judgment of conviction for sexual battery. Respondents
have submitted a memorandum in opposition to the Petition. See
Respondents' Answer to Petition for Habeas Corpus (Response; Doc.
28) with exhibits (Resp. Ex.). On September 3, 2015, the Court
entered an Order to Show Cause and Notice to Petitioner (Doc. 15),
admonishing Reed regarding his obligations and giving Reed a time
frame in which to submit a reply. Reed submitted a brief in reply.

See Reply to Respondents' Answer (Reply; Doc. 31). This case is
ripe for review.
II. Procedural History
On November 9, 2006, the State of Florida charged Reed with
three counts of capital sexual battery under Florida Statutes
section 794.011(2)(a) and three counts of custodial sexual battery
under Florida Statutes section 794.011(8)(b). See Resp. Ex. 1 at
22-23, Amended Information. Reed proceeded to trial in June 2007,
see Resp. Exs. 3, 4, Transcripts of the Jury Trial (Tr.), at the
conclusion of which, on June 27, 2007, a jury found him guilty of
sexual battery (count four), guilty of battery, a lesser-included
offense (counts five and six), see Tr. at 253; Resp. Ex. 1 at 10103, Verdicts; and not guilty of sexual battery (counts one, two,
and three), see Tr. at 252-53; Resp. Ex. 1 at 98-100, Verdicts. On
August 2, 2007, the court sentenced Reed to a term of imprisonment
of twenty-five years for count four, and a term of one year in the
county jail with credit for 365 days as to counts five and six.
Resp. Exs. 1 at 114-20, Judgment; 2 at 320-21.
On direct appeal, Reed, with the benefit of counsel, filed an
initial

brief,

arguing

that

the

trial

court

erred

when

it:

restricted the cross-examination of the child victim (RMA) and her
mother (Tisha) (ground one); permitted Tisha and RMA's friend
(Phonicia) to introduce RMA's prior consistent hearsay statements
to bolster her credibility (ground two); and restricted the cross-

2

examination of Detective Leavens relating to the failure to conduct
a sexual assault examination (ground three). Resp. Ex. 6. The State
filed an answer brief. See Resp. Ex. 7. On March 18, 2009, the
appellate court affirmed Reed's conviction per curiam, see Reed v.
State, 4 So.3d 1227 (Fla. 1st DCA 2009); Resp. Ex. 8, and the
mandate issued on April 3, 2009, see Resp. Ex. 8. The court also
denied his motions for rehearing on May 21, 2009, and June 22,
2009. See Resp. Exs. 9, 10.
On November 20, 2009, pursuant to the mailbox rule, Reed filed
a pro se motion for post-conviction relief pursuant to Florida Rule
of Criminal Procedure 3.850 (Rule 3.850 motion). See Resp. Ex. 11
at 1-73. The court struck ground four of the Rule 3.850 motion as
facially insufficient with leave to amend, see id. at 74-76, and
Reed amended ground four on August 30, 2010, see id. at 77-81. In
his request for post-conviction relief, Reed asserted that counsel
was ineffective because she failed to: object when the trial court
ruled that the only lesser-included offense for the three counts of
custodial sexual battery was misdemeanor battery, and failed to
instruct the jury that attempted custodial sexual battery was a
lesser-included offense (ground one); investigate and call two
exculpatory witnesses: Nell Hughes and a high school physical
education teacher (ground four); object to numerous trial errors
and

preserve

them

for

appellate

review

(ground

five);

renew

objections to numerous trial errors and preserve them for appellate

3

review (ground six); impeach the State's witnesses by confronting
them with inconsistent statements made in their depositions (ground
seven); investigate facts about a key state witness (ground eight);
and properly draft a motion in limine regarding the lingerie the
victim was wearing at the time of the offense (ground nine). Reed
contended that the compact diskette (CD) containing the controlled
telephone conversations was false evidence in violation of Giglio
v. United States, 405 U.S. 150 (1972), because the CD was placed in
the evidence property room before the phone calls were made (ground
2(a)), and counsel was ineffective because she failed to object to
the CD's authenticity (ground 2(b)) and the CD's chain of custody
(ground 2(c)). He also asserted that counsel was ineffective
because she improperly advised him as to his rights to testify and
call witnesses (ground three), and that the cumulative effect of
errors one through nine denied him a fair trial (ground ten). The
court

held

evidentiary

proceedings

on

Reed's

Rule

3.850

on

September 27, 2011, and December 14, 2011. See Resp. Ex. 14 at 453506, 512-63 (EH Tr.). The court denied the motion on May 16, 2012,
see Resp. Ex. 12 at 163-213, and later denied Reed's motions for
rehearing on August 8, 2012, see id. at 214-51, 252-91; Resp. Ex.
13 at 292-377. On appeal, Reed filed a pro se brief, arguing that
the trial court erred when it denied him post-conviction relief
based on a Giglio violation. See Resp. Ex. 15. The State filed an
answer brief, see Resp. Ex. 17; Reed filed a reply brief, see Resp.

4

Ex. 18, an amended reply brief, see Resp. Ex. 19, and supplemental
authority, see Resp. Ex. 20. On June 20, 2014, the appellate court
affirmed the court's denial of post-conviction relief per curiam,
see Reed v. State, 145 So.3d 836 (Fla. 1st DCA 2014); Resp. Ex. 21,
and later denied Reed's motion for rehearing, see Resp. Ex. 22. The
mandate issued on August 27, 2014. See Resp. Ex. 21.
After Reed filed his federal Petition in this Court on
September 25, 2014, pursuant to the mailbox rule, he filed a second
pro se Rule 3.850 motion on December 4, 2014, see Resp. Ex. 23 at
1-42, followed by a motion to amend on April 6, 2015, see id. at
47-49. He filed an amended post-conviction motion on April 29,
2015. See id. at 50-86. On June 4, 2015, the court dismissed Reed's
April 29th post-conviction motion with prejudice as untimely and
successive, see id. at 87-126, and denied his motion for rehearing,
see id. at 129-34; Resp. Ex. 24 at 18-19. On October 22, 2015, the
appellate court affirmed the court's dismissal per curiam, see Reed
v. State, 211 So.3d 1033 (1st DCA 2015); Resp. Ex. 28, and
ultimately denied Reed's motion for rehearing, see Resp. Ex. 29.
The mandate issued on December 21, 2015, see Resp. Ex. 28.
Reed filed a third pro se Rule 3.850 motion on December 16,
2015, see Resp. Ex. 30 at 1-59, and an addendum, see Resp. Ex. 31
at 1-43. The court dismissed the motion with prejudice on June 17,
2016, see Resp. Ex. 30 at 63-80, and later denied his motion for
rehearing, see id. at 83-90, 91-134. On January 31, 2017, the

5

appellate court affirmed the court's dismissal per curiam, see
http://jweb.flcourts.org, Ernest Reed v. State of Florida, 1D163489, and the mandate issued on February 28, 2017, see id.
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); Response at 8-12.
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
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 [Reed'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.

6

V. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) governs a state prisoner's federal petition for habeas
corpus. See Ledford v. Warden, Ga. Diagnostic & Classification
Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S.
Ct. 1432 (2017). "'The purpose of AEDPA is to ensure that federal
habeas relief functions as a guard against extreme malfunctions in
the state criminal justice systems, and not as a means of error
correction.'" Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)
(quotation marks omitted)). As such, federal habeas review of final
state court decisions is "'greatly circumscribed' and 'highly
deferential.'" Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343
(11th Cir. 2011) (quotation marks omitted)).
The first task of the federal habeas court is to identify the
last state court decision, if any, that adjudicated the claim on
the merits. See Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d
1227, 1235 (11th Cir. 2016) (en banc), cert. granted, 137 S. Ct.
1203 (2017); Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277,
1285 (11th Cir. 2016). Regardless of whether the last state court
provided a reasoned opinion, "it may be presumed that the state
court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary."
Harrington v. Richter, 562 U.S. 86, 99 (2011) (citation omitted);
see also Johnson v. Williams, 568 U.S. 289, --, 133 S. Ct. 1088,

7

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.
If the claim was "adjudicated on the merits" in state court,
§ 2254(d) bars relitigation of the claim unless the state court's
decision

(1)

"was

contrary

to,

or

involved

an

unreasonable

application of, clearly established Federal law, as determined by
the Supreme Court of the United States;" or (2) "was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d);
Richter, 562 U.S. at 97-98. As the Eleventh Circuit has explained:
First, § 2254(d)(1) provides for federal
review for claims of state courts' erroneous
legal conclusions. As explained by the Supreme
Court in Williams v. Taylor, 529 U.S. 362, 120
S. Ct. 1495, 146 L.Ed.2d 389 (2000), §
2254(d)(1) consists of two distinct clauses: a
"contrary to" clause and an "unreasonable
application" clause. The "contrary to" clause
allows for relief only "if the state court
arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question
of law or if the state court decides a case
differently than [the Supreme] Court has on a
set of materially indistinguishable facts."
Id. at 413, 120 S. Ct. at 1523 (plurality
opinion).
The
"unreasonable
application"

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.
8

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
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

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).
9

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

the

state

court's

adjudication

on

the

merits

is

"'unaccompanied by an explanation,' a petitioner's burden under
section 2254(d) is to 'show[] there was no reasonable basis for the
state court to deny relief.'" Wilson, 834 F.3d at 1235 (quoting
Richter, 562 U.S. at 98). Thus, "a habeas court must determine what
arguments or theories supported or, as here, could have supported,
the state court's decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of
[the] Court." Richter, 562 U.S. at 102; see also Wilson, 834 F.3d
at 1235. To determine which theories could have supported the state
appellate court's decision, the federal habeas court may look to a
state trial court's previous opinion as one example of a reasonable
application of law or determination of fact. Wilson, 834 F.3d at
1239; see also Butts v. GDCP Warden, 850 F.3d 1201, 1204 (11th Cir.
2017).3 However, in Wilson, the en banc Eleventh Circuit stated

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.
10

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
(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.,
No. 15-14257, 2017 WL 3140882, *11 (July 25, 2017) (quoting
Richter, 562 U.S. at 102). Thus, to the extent that Reed's claims
were adjudicated on the merits in the state courts, they must be
evaluated under 28 U.S.C. § 2254(d).
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).
11

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

round

of

the

State's

established

appellate

review

process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In addressing exhaustion, the United States Supreme Court
explained:
Before seeking a federal writ of habeas
corpus,
a
state
prisoner
must
exhaust
available
state
remedies,
28
U.S.C.
§
2254(b)(1), thereby giving the State the
"'"opportunity to pass upon and correct"
alleged violations of its prisoners' federal
rights.'" Duncan v. Henry, 513 U.S. 364, 365,
115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per
curiam) (quoting Picard v. Connor, 404 U.S.
270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438
(1971)). To provide the State with the
necessary "opportunity," the prisoner must
"fairly present" his claim in each appropriate
state court (including a state supreme court
with powers of discretionary review), thereby
alerting that court to the federal nature of
the claim. Duncan, supra, at 365-366, 115
S.Ct. 887; O'Sullivan v. Boerckel, 526 U.S.
12

838, 845,
(1999).

119

S.Ct.

1728,

144

L.Ed.2d

1

Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner's failure to properly exhaust available state
remedies results in a procedural default which raises a potential
bar to federal habeas review. The United States Supreme Court has
explained the doctrine of procedural default as follows:
Federal habeas courts reviewing the
constitutionality of a state prisoner's
conviction and sentence are guided by rules
designed to ensure that state-court judgments
are
accorded
the
finality
and
respect
necessary to preserve the integrity of legal
proceedings within our system of federalism.
These rules include the doctrine of procedural
default, under which a federal court will not
review the merits of claims, including
constitutional claims, that a state court
declined to hear because the prisoner failed
to abide by a state procedural rule. See,
e.g., Coleman,[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
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

7

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

8

Wainwright v. Sykes, 433 U.S. 72 (1977).
13

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.
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

9

Murray v. Carrier, 477 U.S. 478 (1986).
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
14

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
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).

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.
15

Id. at 1318-19.
In

the

petitioner

absence
may

of

receive

a

showing

of

cause

consideration

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.
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).

16

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.
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 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
17

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.
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
18

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).
VIII. Findings of Fact and Conclusions of Law
A. Ground One
As ground one, Reed asserts that the trial court erred when it
limited his cross-examination of RMA and Tisha in violation of the
Sixth and Fourteenth Amendments. See Petition at 6-7; Reply at 1-7.
Reed argued this issue on direct appeal, see Resp. Ex. 6 at 16-20;
the State filed an answer brief, see Resp. Ex. 7 at 6-24; and the
appellate court affirmed Reed's conviction per curiam without a
written opinion as to this issue, see Reed, 4 So.3d 1227. To the
extent Reed is raising, in ground one, the same claim he presented
on direct appeal, the claim is sufficiently exhausted.
In its appellate brief, the State addressed the claim on the
merits, see Resp. Ex. 7 at 8-24, and therefore, the appellate court
19

may have affirmed Reed's conviction based on the State's argument.
If the appellate court addressed the merits, the state court's
adjudication of this claim is entitled to deference under AEDPA.
After a review of the record and the applicable law, the Court
concludes that the state court's adjudication of this claim was not
contrary to clearly established federal law and did not involve an
unreasonable application of clearly established federal law. Nor
was

the

state

court's

adjudication

based

on

an

unreasonable

determination of the facts in light of the evidence presented in
the state court proceedings. Accordingly, Reed 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,11 Reed's claim is without merit. Reed
asserts that the trial court erred when it sustained the State's
objections during his cross-examination of RMA and Tisha. Defense
counsel sought to challenge their credibility in support of Reed's
defense theory that RMA and Tisha "manufactured this story to get
him out of the picture." Petition at 7. The excluded evidence
proffered outside the presence of the jury was as follows: Tisha's
new boyfriend moved in with Tisha after Reed's arrest, see Tr. at
62-66; after Reed's arrest, Tisha permitted RMA to move into the
apartment where Reed and Tisha had lived, see id. at 66-69, and

11

See Response at 23-27.
20

Tisha sent love letters and money to Reed to manipulate him into
agreeing to sign paperwork to finalize their divorce, see id. at
131-135.12
The Confrontation Clause of the Sixth Amendment guarantees the
right of a criminal defendant "an opportunity to cross-examine the
witnesses against him." Pointer v. Texas, 380 U.S. 400, 407 (1965).
However, "the Confrontation Clause guarantees only 'an opportunity
for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense
might wish.'" Kentucky v. Stincer, 482 U.S. 730, 739 (1987)
(quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). The
Confrontation Clause does not curtail the trial judge's discretion
to impose limits on defense counsel's inquiry into the potential
bias of a prosecution witness. Trial judges "retain wide latitude
insofar

as

the

Confrontation

Clause

is

concerned

to

impose

reasonable limits on such cross-examination based on concerns
about, among other things, harassment, prejudice, confusion of the
issues, the witness' safety, or interrogation that is repetitive or
only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986).
In the instant case, the trial judge permitted defense counsel
to adequately engage in cross-examination of RMA and Tisha in order
for the jury to determine their credibility. On this record, the

12

See Resp. Ex. 6 at 18.
21

trial court did not err when he limited the cross-examination of
RMA and Tisha as to the proffered evidence. See id. at 59-69, 13035. Accordingly, Reed is not entitled to federal habeas relief on
ground one.
B. Ground Two
As ground two, Reed asserts that the trial court erred when it
permitted Tisha and Phonicia to testify, over defense counsel's
objection, about RMA's prior consistent assertions of sexual abuse
to bolster RMA's credibility. See Petition at 8-9. Petitioner
concedes this issue. See Reply at 7. Therefore, the Court will not
address ground two.
C. Ground Three
As ground three, Reed asserts that the trial court erred when
it limited the cross-examination of Detective Leavens relating to
the failure to conduct a sexual assault examination. See Petition
at 10; Reply at 7-13. Reed argued this issue on direct appeal, see
Resp. Ex. 6 at 26-28; the State filed an answer brief, see Resp.
Ex. 7 at 40-47; and the appellate court affirmed Reed's conviction
per curiam without a written opinion as to this issue, see Reed, 4
So.3d 1227. To the extent Reed is raising, in ground three, the
same claim he presented on direct appeal, the claim is sufficiently
exhausted.
In its appellate brief, the State addressed the claim on the
merits, see Resp. Ex. 7 at 45-47, and therefore, the appellate

22

court may have affirmed Reed's conviction based on the State's
argument. If the appellate court addressed the merits, the state
court's adjudication of this claim is entitled to deference under
AEDPA. After a review of the record and the applicable law, the
Court concludes that the state court's adjudication of this claim
was not contrary to clearly established federal law and did not
involve an unreasonable application of clearly established federal
law.

Nor

was

the

state

court's

adjudication

based

on

an

unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Accordingly, Reed 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,13 Reed's claim is without merit.
Detective

Leavens

testified

in

pertinent

part

on

examination:
Q Now you mentioned the sexual
response center [(SARC)], why are
taken there?

assault
victims

A Normally they are taken there within 72
hours of sexual assault and that's to collect
any DNA evidence that might be present, any
hair follicles that might be present and to
collect and make sure they don't have any
communicable disease that might have been
transferred by the perpetrator.

13

See Response at 41-44.
23

direct

Q In this case did you ask [the victim] to go
to SARC?
A No, ma'am.
Q Why not?
A Because of the time of the incident and the
time of the report was a several year gap,
there would be no reason to go to SARC because
there would be no evidence.
Tr. at 97. On cross-examination, defense counsel inquired as to why
Detective Leavens failed to ask the victim to go to SARC for a
medical examination.
Q You were questioned just briefly about SARC,
the Sexual Assault Response Center and you had
not asked [the victim] to go there because the
occurrence had been some time ago, that's
correct?
A That's correct.
Q And they would not necessarily yield
anything of evidentiary value, correct?
A That's correct.
Q But in fact, it could
yielded evidence, correct?

have

potentially

A Not very likely, after 72 hours[,] it's
standard practice of the Sexual Assault
Response Center not to give medical exams to
victims.
Q But we don't know, we don't know what would
have come from that, correct?
A There was a two year lapse between her, the
last incident and when she reported it. It's
highly unlikely that there would have been any
evidence of value.

24

Q But the sexual assault exam could have told
us if there were any anatomical changes to
[the victim] that would indicate whether or
not she –
[PROSECUTOR]: Objection, he's not a doctor to
know that information.
[DEFENSE COUNSEL]: Well -[PROSECUTOR]: Calls for speculation on his
part.
THE COURT: Sustained.
BY [DEFENSE COUNSEL]:
Q Detective, you are assigned specifically to
the sex crimes unit, correct?
A That's correct.
Q And what are, I'm sorry, you did testify as
to the purpose of a SARC exam, correct?
A Correct.
Q And what did you indicate were the purposes
of sending someone to a SARC exam?
A To obtain anything of evidentiary value, to
make sure that the victim wasn't given any
type of sexually transmitted disease, collect
any hair follicles that may be present not
belonging to the victim.
Q Is it also to look for anything that would
be of evidentiary value to corroborate any of
the things that they had told you about what
occurred, any physical diagnostics, is that
part [of] what is done during a SARC exam?
A I don't quite understand what you're asking
me.
Q It's a physical exam of her person, correct?
A Yes, ma'am, there's a physical exam.
25

Q Okay. But that was not done on Miss Jackson,
correct? I'm sorry, [the victim], correct?
A No, ma'am.
Id. at 105-07.
The trial court permitted defense counsel to adequately engage
in cross-examination of Detective Leavens as to why he did not
refer RMA to SARC for an examination. On this record, the trial
court did not err when he sustained the State's objection to
defense counsel's inquiry relating to whether a sexual assault
examination

of

the

victim

would

have

shown

any

"anatomical

changes."14 Accordingly, Reed is not entitled to federal habeas
relief on ground three.
D. Grounds Four, Five and Six
As ground four, Reed asserts that counsel was ineffective
because she failed to file a motion to suppress "known false
evidence" (the CD recording of the controlled telephone call
between Reed and Tisha). Petition at 12-13; Reply at 13-16. He
states that Detective Leavens edited the recording and omitted
portions that would have been helpful to the defense.15 See Petition
at 12. He also asserts that counsel was ineffective because she

14

See Tr. at 208 (defense counsel's closing argument); see
Resp. Ex. 6 at 27 (stating Reed, on cross-examination, "attempted
to elicit testimony that a sexual assault examination might reveal
whether [RMA] was still a virgin").
15

Reed asserts that Detective Leavens spliced four separate
telephone conversations that totaled 94 seconds into a single 79second conversation. See Petition at 12.
26

failed to: "alert" the trial court that the property storage card
for the CD recording showed an incorrect time as to when Detective
Leavens submitted the recording into the evidence room (ground
five), Petition at 15-16; Reply at 17-19, and challenge the
authenticity of the recording prior to its admission (ground six),
see Petition at 17-18; Reply at 19.
Petitioner presented issues relating to the recording in his
Rule 3.850 motion, see Resp. Ex. 11 at 8-16, and at the evidentiary
hearing. The post-conviction court ultimately denied the motion as
to the claims. In doing so, the court stated in pertinent part:
The Defendant's next claim involves three
subclaims. First, the Defendant claims the
compact disk ("CD") containing the controlled
telephone conversations between himself and
the victim's mother was false evidence in
violation of Giglio v. U.S., 92 S.Ct. 763
(1972), because the CD was placed in the
evidence property room before the phone calls
were made. Second, he alleges counsel was
ineffective for failing to raise objections
regarding the authenticity of the CD. Third,
the Defendant alleges counsel was ineffective
for failing to object to the chain of custody
of the CD.
As for the Defendant's first subclaim, a
Giglio violation is demonstrated when (1) the
prosecutor presented or failed to correct
false testimony; (2) the prosecutor knew the
testimony was false; and (3) the false
evidence was material. Guzman v. State, 941
So.2d 1045, 1050 (Fla. 2006). However, in the
instant case, the Defendant has failed to
allege that the prosecutor "knew" that the CD
was a false representation of the controlled
telephone
conversation.
Moreover,
after
thoroughly reviewing the trial record and
sitting throughout the pendency of the
27

evidentiary hearings on the instant Motion,
this Court finds that neither the property
storage card nor Officer Leavens' testimony
was
fabricated.
Notably,
the
Defendant
testified that it was his voice on the CD and
that he recalls the phone call. Therefore,
there is no evidence that Officer Leavens
fabricated
the
property
storage
card.
Accordingly, the Defendant's Giglio subclaim
is without merit and, therefore, denied.
The
Defendant's
second
and
third
subclaims are likewise denied. At trial,
defense counsel objected to the introduction
of the CD evidence.[16] That objection was
overruled because a sufficient predicate was
laid to establish the authenticity through the
testimony of one of the parties to the
telephone conversation, and, as to the method
in which the recording was made and preserved,
through the testimony of the detective
responsible for making the recording. The
Defendant's motion suggests the possibility
that the audiotape could have been edited or
altered, but the Defendant presented no
evidence at the evidentiary hearing to support
that claim. Counsel's efforts to prevent the
introduction of these recordings, which
contained critical recorded admissions by the
Defendant[,]
were
within
the
range
of
reasonable professional assistance even though
they were not successful.
Resp. Ex. 12 at 166-67. The court later denied Reed's motions for
rehearing. See Resp. Ex. 13 at 292-94. On Reed's appeal, the

16

Notably, the state circuit court's determination of fact
that counsel objected to the introduction of the CD evidence is
incorrect. See Response at 75-78. Counsel's only objection relating
to the controlled call was to Detective Leavens' testimony that
when he called the number that was the subject of the controlled
call, he believed that the person who answered was Reed. See Tr. at
96-97. When the State moved to admit the CD recording into evidence
during Tisha's testimony, defense counsel stated, "No objection."
Id. at 119.
28

appellate court affirmed the court's denial per curiam, see Reed,
145 So.3d 836, and denied Reed's motion for rehearing, see Resp.
Ex. 22. To the extent Reed is raising, in grounds four, five and
six, the same claims he presented in his Rule 3.850 motion, the
claims are sufficiently exhausted.
To the extent that the state appellate court affirmed the
trial court's denial on the merits, the Court will address these
claims in accordance with the deferential standard for federal
court review of state court adjudications. After a review of the
record and the applicable law, the Court concludes that the state
court's adjudication of these claims was not contrary to clearly
established

federal

law,

did

not

involve

an

unreasonable

application of clearly established federal law, and was not based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. Thus, Reed is
not entitled to relief on the basis of these ineffectiveness
claims.
Moreover, even assuming the claims are sufficiently exhausted
and the state appellate court's adjudication of the claims is not
entitled to deference, Reed's ineffectiveness claims are still
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 presumption that counsel's

29

performance was reasonable is even stronger when, as in this case,
defense counsel Ms. Eckels is an experienced criminal defense
attorney.17

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, Reed 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

17

"When courts are examining the performance of an experienced
trial counsel, the presumption that his conduct was reasonable is
even stronger." Chandler v. United States, 218 F.3d 1305, 1316
(11th Cir. 2000); see Williams v. Head, 185 F.3d 1223, 1229 (11th
Cir. 1999). Ms. Eckels was admitted to the Florida Bar in 1994. See
http://www.floridabar.org. At the time of Reed's trial in 2007,
Eckels was an experienced trial lawyer. At the time of the 2011
evidentiary hearing, she had been practicing criminal defense law
for over sixteen years. See EH Tr. at 466.
30

citation omitted); Dingle v. Sec'y for Dep't of Corr., 480 F.3d
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, Reed has failed to carry his burden of showing
that his counsel's representation fell outside that range of
reasonably professional assistance.18

Even assuming arguendo

deficient performance by defense counsel, Reed 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 filed a motion to suppress or made arguments as to the
admissibility of the controlled telephone call in the manner he
suggests. Notably, Reed testified that he recalled the telephone
call with Tisha and that it was his voice on the recording. See Tr.
at 153-54, 157. His ineffectiveness claims are without merit since
he has shown neither deficient performance nor resulting prejudice.
Accordingly, Reed is not entitled to federal habeas relief on
grounds four, five and six.

18

The CD recording that was played for the jury was not 79
seconds in duration, as Reed asserts. The recording is 113 seconds
in duration from when Reed answered his phone until he ended the
call. See Resp. Ex. 35 (State's Exhibit 3, CD recording); see also
Tr. at 119, 120-22 (playing the CD for the jury); Resp. Ex. 11 at
66 (showing the date and time of the call as 5/31/2006 at 06:31:19
a.m. Pacific Standard Time), 68 (reflecting the date and time of
the property storage card as 5/31/2006 at 12:57:00 p.m.).
31

E. Ground Seven
As ground seven, Reed asserts that the post-conviction court
erred when it failed to grant him a new trial. See Petition at 1920; Reply at 20. He states that the post-conviction evidentiary
hearing

was

unfair

because

the

State

committed

prosecutorial

misconduct when the prosecutor told the court that the CD recording
was one telephone call, not three different calls spliced together.
See

Petition

at

20.

Reed

contested

the

prosecutor's

alleged

misrepresentation at the December 14, 2011 evidentiary hearing. See
EH Tr. at 527-29. He argued the issue in his initial appellate
brief, see Resp. Ex. 15; the State filed an answer brief, see Resp.
Ex. 17; Reed filed an amended reply brief, see Resp. Ex. 19; and
the appellate court affirmed the court's denial of post-conviction
relief per curiam, see Resp. Ex. 21, and denied Reed's motion for
rehearing, see Resp. Ex. 22.
To the extent that the state appellate court affirmed the
trial court's denial on the merits, the Court will address the
claim in accordance with the deferential standard for federal court
review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court's
adjudication of the claim was not contrary to clearly established
federal law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in

32

the state court proceedings. Thus, Reed is not entitled to relief
on the basis of the claim.
Moreover,

even

assuming

the

state

appellate

court's

adjudication of the claim is not entitled to deference, Reed's
claim is still without merit. The prosecutor's representation (that
it "was one telephone call that was testified to at trial")19 to the
court at the evidentiary hearing, see EH Tr. at 527, was accurate,
see Resp. Exs. 11 at 66; 35. Therefore, Reed is not entitled to
federal habeas relief on ground seven.
F. Ground Eight
As ground eight, Reed asserts that the state appellate court
erred when it failed to remand his Giglio claim to the trial court
with an instruction to strike the claim with leave to amend. See
Petition at 21-22. Petitioner concedes this issue. See Reply at 20.
Accordingly, the Court will not address ground eight.
G. Ground Nine
As ground nine, Reed asserts that the post-conviction court
erred when it would not allow him to present billing records as
evidence at the evidentiary hearing to prove that the controlled
call was a false representation. See Petition at 23-24; Reply at
20-21. To the extent that Reed raises challenges relating to the
state collateral proceeding, such challenges do not state a basis

19

The prosecutor did not testify at the December 14, 2011
evidentiary hearing, but instead made unsworn arguments to the
court as counsel for the State of Florida.
33

for federal habeas relief. The Eleventh Circuit Court of Appeals
"has repeatedly held defects in state collateral proceedings do not
provide a basis for habeas relief." Carroll v. Sec'y, Dep't of
Corr., 574 F.3d 1354, 1365 (11th Cir. 2009) (citations omitted).
"The

reasoning

behind

this

well-established

principle

is

straightforward: a challenge to a state collateral proceeding does
not undermine the legality of the detention or imprisonment--i.e.,
the conviction itself--and thus habeas relief is not an appropriate
remedy."

Id. (citations omitted). Therefore, Reed is not entitled

to federal habeas relief on ground nine.
H. Ground Ten
As ground ten, Reed asserts that counsel was ineffective
because she failed to cross-examine Detective Leavens about the
authenticity of the controlled telephone call. See Petition at 2728; Reply at 21. Respondents contend, see Response at 92-97, and
Petitioner

agrees,

see

Petition

at

27,

that

the

claim

is

procedurally barred. On this record, the Court agrees that the
claim has not been exhausted, and is therefore procedurally barred
since Reed failed to raise the claim in a procedurally correct
manner. Reed has not shown either cause excusing the default or
actual prejudice resulting from the bar.20 Moreover, he has failed

20

"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
34

to identify any fact warranting the application of the fundamental
miscarriage of justice exception.
Assuming Reed's claim is not procedurally barred, Reed is not
entitled to federal habeas relief. Reed 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, Reed 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

questioned

recording

or

cross-examined

the

Detective

authenticity

Leavens

in

the

of

the

manner

suggested by Reed. As previously stated, Reed testified that he
recalled the telephone call with Tisha and that it was his voice on
the recording. His ineffectiveness claim is without merit since he
has shown neither deficient performance nor resulting prejudice.
Accordingly, Reed is not entitled to federal habeas relief on
ground ten.
I. Ground Eleven
As ground eleven, Reed asserts that counsel was ineffective
because she failed to file a motion to suppress the CD recording of
the controlled telephone call between Reed and Tisha. See Petition
at 29-30; Reply at 21-22. Respondents contend, and this Court

analysis that follows, this ineffectiveness claim lacks any merit.
Therefore, Reed has not shown that he can satisfy an exception to
the bar.
35

agrees, that this appears to be the same ineffectiveness claim
presented in ground four of the instant Petition. Therefore, for
the reasons set forth in section VIII.D., Reed is not entitled to
federal habeas relief on ground eleven.
J. Ground Twelve
As ground twelve, Reed asserts that a manifest injustice
occurred when the prosecutor used false evidence (the CD recording
and the property storage card) to convict him and that he is
actually innocent of the offenses. See Memorandum; Reply at 22-35.
Petitioner argued manifest injustice in his April 29, 2015 amended
post-conviction motion. See Ex. 23 at 50-86. The circuit court
dismissed Reed's motion with prejudice as untimely and successive,
see id. at 87-126, and denied his motion for rehearing, see id. at
129-34; Resp. Ex. 24 at 18-19. The appellate court affirmed the
court's dismissal per curiam, see Reed, 211 So.3d 1033; Resp. Ex.
28, and denied Reed's motion for rehearing, see Resp. Ex. 29.
Even assuming the claim is sufficiently exhausted and timely
filed,21 Reed is not entitled to federal habeas relief. Actual
innocence is not itself a constitutional claim justifying federal
habeas relief, but instead is a gateway through which a habeas
petitioner must pass to have his otherwise procedurally barred

21

Respondents claim, see Response at 12, 107 n.34, and this
Court agrees, that ground twelve 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 the foregoing
analysis, this Court will assume Reed timely filed the claim.
36

constitutional claim considered on the merits. Herrera v. Collins,
506 U.S. 390, 404 (1993). Insofar as Reed intends for his actual
innocence to serve as a gateway for consideration of constitutional
claims procedurally defaulted in state court, he has failed to
identify any fact warranting the application of the fundamental
miscarriage of justice exception. Therefore, Reed is not entitled
to federal habeas relief on ground twelve.
IX. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Reed 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, Reed "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
37

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 Reed 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.

38

4.

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

terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 25th day of
August, 2017.

sc 8/25
c:
Ernest Reed
Counsel of Record

39