Bell v. Secretary, Florida Department of Corrections et al
ORDER denying second amended petition, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 12/4/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 3:15-cv-987-J-39JBT
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
conviction for first degree felony murder.
See Second Amended
Petition for Writ of Habeas Corpus (Petition) (Doc. 18).
represented by counsel.
Petitioner raises three claims for habeas
relief, claiming he received the ineffective assistance of trial
This Court must be mindful that in order to prevail on
this Sixth Amendment claim, Petitioner must satisfy the two-pronged
test set forth in Strickland v. Washington, 466 U.S. 668, 688
(counsel's representation fell below an objective standard of
reasonableness) and prejudice (there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different).
Respondents filed an Answer to Second Amended Petition for
Writ of Habeas Corpus (Response) (Doc. 25).
In support of their
Response, they submitted an Appendix (Doc. 25).1
a Response to Order to Show Cause (Doc. 29), stating his intent to
rely upon the previously submitted Petition.
CLAIMS OF PETITION
Petitioner raises three grounds in his Petition.
(1) the ineffective assistance of trial counsel for failure to
object contemporaneously to the prosecution's misstatement that
"Antonio Bell gave correct information," resulting in the jury
being mislead and Petitioner being prejudiced by the implication
assistance of trial counsel for failure to challenge Juror Reed for
cause, resulting in at least one actually biased juror serving on
the jury; and (3) the ineffective assistance of trial counsel for
failure to adequately preserve a Batson2 claim for appellate review
with respect to Juror Marquiss Gibson.
Petition at 5, 9, 13.
The Court hereinafter refers to the exhibits contained in
the Appendix as "Ex." Where provided, the page numbers referenced
in this opinion are the Bates stamp numbers at the bottom of each
page of the exhibit. Otherwise, the page number on the particular
document will be referenced. The Court will reference the page
numbers assigned by the electronic docketing system where
Batson v. Kentucky, 476 U.S. 79, 89 (1986).
- 2 -
Respondents contend that ground one presents a new claim not
Response at 14.
Respondents also assert that grounds
two and three were not properly exhausted because Petitioner failed
to appeal the denial of these two claims of ineffective assistance
of trial counsel.
The Court will address Petitioner's three
grounds, see Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992),
but no evidentiary proceedings are required in this Court.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (AEDPA)
governs a state prisoner's federal petition for habeas corpus. See
Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert.
denied, 137 S.Ct. 1432 (2017).
"AEDPA limits the scope of federal
habeas review of state court judgments[.]"
Pittman v. Sec'y, Fla.
Dep't of Corr., 871 F.3d 1231, 1243 (11th Cir. 2017).
AEDPA ensures that federal habeas relief is limited to extreme
malfunctions, and not used as a means to attempt to correct state
Ledford, 818 F.3d at 642 (quoting Greene v. Fisher,
132 S.Ct. 38, 43 (2011)).
The Eleventh Circuit recently outlined the parameters of
Thus, under AEDPA, a person in custody
pursuant to the judgment of a state court
shall not be granted habeas relief on a claim
"that was adjudicated on the merits in State
- 3 -
court proceedings" unless the state court's
decision was "contrary to, or involved an
established Federal law as determined by the
Supreme Court of the United States; or ... was
based on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding." 28 U.S.C. §
2254(d). "For § 2254(d), clearly established
federal law includes only the holdings of the
Supreme Court—not Supreme Court dicta, nor the
opinions of this Court." Taylor v. Sec'y, Fla.
Dep't of Corr., 760 F.3d 1284, 1293–94 (11th
As for the "contrary to" clause, "a
federal habeas court may grant the writ if the
state court arrives at a conclusion opposite
to that reached by [the Supreme Court] on a
question of law or if the state court decides
a case differently than [the Supreme Court]
has on a set of materially indistinguishable
facts." Terry Williams v. Taylor, 529 U.S.
362, 412–13, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000). Under the "unreasonable application"
clause, a federal habeas court may "grant the
writ if the state court identifies the correct
governing legal principle from [the Supreme
Court's] decisions but unreasonably applies
that principle to the facts." Id. at 413, 120
S.Ct. 1495. "In other words, a federal court
may grant relief when a state court has
misapplied a 'governing legal principle' to 'a
set of facts different from those of the case
in which the principle was announced.'"
Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct.
2527, 156 L.Ed.2d 471 (2003) (quoting Lockyer
v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166,
155 L.Ed.2d 144 (2003)). And "an 'unreasonable
application of' [Supreme Court] holdings must
be objectively unreasonable, not merely wrong;
even clear error will not suffice." Woods v.
Donald, ––– U.S. ––––, 135 S.Ct. 1372, 1376,
191 L.Ed.2d 464 (2015) (per curiam) (quotation
omitted). To overcome this substantial hurdle,
"a state prisoner must show that the state
court's ruling on the claim being presented in
federal court was so lacking in justification
- 4 -
that there was an error well understood and
comprehended in existing law beyond any
possibility for fairminded disagreement."
Harrington v. Richter, 562 U.S. 86, 103, 131
S.Ct. 770, 178 L.Ed.2d 624 (2011). This is
"meant to be" a difficult standard to meet.
Id. at 102, 131 S.Ct. 770.
Pittman, 871 F.3d at 1243-44.
There is a presumption of correctness of state court's factual
28 U.S.C. § 2254(e)(1).
The standard of
proof is demanding, requiring that a claim be highly probable.
Bishop v. Warden, GDCP, 726 F.3d 1243, 1258 (11th Cir. 2013), cert.
denied, 135 S.Ct. 67 (2014). Also, the trial court's determination
will not be superseded if reasonable minds might disagree about the
Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015).
Also of note, "[t]his presumption of correctness applies equally to
factual determinations made by the state trial and appellate
Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284
(11th Cir. 2012) (quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th
Cir. 2003)), cert. denied, 568 U.S. 1233 (2013).
In applying AEDPA deference, the first step is to identify the
last state court decision that evaluated the claim on its merits.
Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th
Once identified, the Court reviews the state court's
As suggested by the Eleventh Circuit in Butts v. GDCP
Warden, 850 F.3d 1201, 1204 (11th Cir. 2017), petition for cert.
filed, (U.S. Sept. 29, 2017) (No. 17-512), in order to avoid any
- 5 -
decision, "not necessarily its rationale."
Pittman, 871 F.3d at
1244 (quoting Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 785
(11th Cir. 2003) (citation omitted)).
Regardless of whether the last state court provided a reasoned
opinion, "it may be presumed that the state court adjudicated the
claim on the merits in the absence of any indication or state-law
procedural principles to the contrary." Harrington v. Richter, 562
U.S. 86, 99 (2011). "The presumption may be overcome when there is
reason to think some other explanation for the state court's
decision is more likely." Richter, 562 U.S. at 99-100 (citing Ylst
v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the last adjudication on the merits is unaccompanied by
an explanation, the petitioner must demonstrate there was no
reasonable basis for the state court to deny relief.
Id. at 98.
supported or, as here, could have supported, the state court's
decision; and then it must ask whether it is possible fairminded
inconsistent with the holding in a prior decision of [the] Court."
Richter, 562 U.S. at 102; Marshall, 828 F.3d at 1285.
complications if the United States Supreme Court decides to
overturn Eleventh Circuit precedent as pronounced in Wilson v.
Warden, Ga. Diagnostic Prison, 834 F.3d 1227 (11th Cir. 2016) (en
banc), cert. granted, 137 S.Ct. 1203 (2017), this Court, will
employ "the more state-trial-court focused approach in applying §
2254(d)[,]" where applicable.
- 6 -
Although the § 2254(d) standard is difficult to meet, it was
meant to be difficult.
Rimmer v. Sec'y, Fla. Dep't of Corr., No.
15-14257, 2017 WL 5476795, at *11 (11th Cir. Nov. 15, 2017)
(opining that to reach the level of an unreasonable application of
federal law, the ruling must be objectively unreasonable, not
merely wrong or even clear error).
Indeed, in order to obtain
habeas relief, "a state prisoner must show that the state court's
ruling on the claim being presented . . . was so lacking in
comprehended in existing law beyond any possibility for fairminded
Richter, 562 U.S. at 103.
Respondents provide an in-depth procedural history in their
Response at 2-8.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Petitioner in his first ground claims his trial counsel was
information," resulting in the jury being mislead and Petitioner
being prejudiced by the implication that he made a statement on the
Petition at 5.
The record shows the prosecutor made the
following statement in closing argument:
The shooting occurred at 2:30 a.m. and by
12:00 noon Antonio Robinson was knocking on
the front door of the Jacksonville Sheriff's
- 7 -
Office. He came from Riverside to downtown on
a Saturday on Florida Georgia weekend.
fought the crowds, fought the bustle to make
sure that he got down to the Police Memorial
Building so he could tell somebody about some
information he had on a homicide, to tell
about what Keyon Bell did, the joke that he
thought that Keyon Bell had made which wasn't
a joke but, in fact, a very deadly serious
confession to him. He tried me so I merked
Antonio Bell gave correct information.
The defendant gave false information.
defendant lied to the police.
Ex. B at 787-88 (emphasis added).
No objection was made to the
Response at 25-45.
They contend that
Petitioner has not demonstrated cause and prejudice, nor has he
shown that a fundamental miscarriage of justice will result if the
claim is not addressed on its merits.
In addressing the question of exhaustion, this Court must ask
whether Petitioner's claim was fairly raised in the state court
Before seeking § 2254 habeas relief in
federal court, a petitioner must exhaust all
state court remedies available for challenging
his conviction. See 28 U.S.C. § 2254(b), (c).
For a federal claim to be exhausted, the
petitioner must have "fairly presented [it] to
the state courts." McNair v. Campbell, 416
F.3d 1291, 1302 (11th Cir. 2005). The Supreme
Court has suggested that a litigant could do
so by including in his claim before the state
appellate court "the federal source of law on
which he relies or a case deciding such a
claim on federal grounds, or by simply
labeling the claim 'federal.'" Baldwin v.
- 8 -
Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158
L.Ed.2d 64 (2004). The Court's guidance in
Baldwin "must be applied with common sense and
in light of the purpose underlying the
exhaustion requirement"—namely, giving the
state courts "a meaningful opportunity" to
address the federal claim. McNair, 416 F.3d at
1302. Thus, a petitioner could not satisfy the
exhaustion requirement merely by presenting
the state court with "all the facts necessary
to support the claim," or by making a
"somewhat similar state-law claim." Kelley,
377 F.3d at 1343–44. Rather, he must make his
claims in a manner that provides the state
controlling legal principles to the facts
bearing upon (his) [federal] constitutional
claim." Id. at 1344 (quotation omitted).
Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351-52 (11th Cir.
2012), cert. denied, 568 U.S. 1104 (2013).
The doctrine of procedural default requires the following:
Federal habeas courts reviewing the
constitutionality of a state prisoner's
conviction and sentence are guided by rules
designed to ensure that state-court judgments
necessary to preserve the integrity of legal
proceedings within our system of federalism.
These rules include the doctrine of procedural
default, under which a federal court will not
review the merits of claims, including
constitutional claims, that a state court
declined to hear because the prisoner failed
to abide by a state procedural rule. See,
e.g., Coleman, supra, at 747–748, 111 S.Ct.
2546; Sykes, supra, at 84–85, 97 S.Ct. 2497. A
state court's invocation of a procedural rule
to deny a prisoner's claims precludes federal
review of the claims if, among other
requisites, the state procedural rule is a
nonfederal ground adequate to support the
judgment and the rule is firmly established
and consistently followed. See, e.g., Walker
v. Martin, 562 U.S. ––––, ––––, 131 S.Ct.
1120, 1127–1128, 179 L.Ed.2d 62 (2011); Beard
- 9 -
v. Kindler, 558 U.S. ––––, ––––, 130 S.Ct.
612, 617–618, 175 L.Ed.2d 417 (2009). The
doctrine barring procedurally defaulted claims
from being heard is not without exceptions. A
prisoner may obtain federal review of a
defaulted claim by showing cause for the
default and prejudice from a violation of
federal law. See Coleman, 501 U.S., at 750,
111 S.Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012).
In Martinez, the Supreme Court expanded the "cause" that may
excuse a procedural default.
Id. at 9.
The Supreme Court
Allowing a federal habeas court to hear a
claim of ineffective assistance of trial
counsel when an attorney's errors (or the
absence of an attorney) caused a procedural
default in an initial-review collateral
proceeding acknowledges, as an equitable
matter, that the initial-review collateral
proceeding, if undertaken without counsel or
with ineffective counsel, may not have been
sufficient to ensure that proper consideration
was given to a substantial claim. From this it
follows that, when a State requires a prisoner
to raise an [ineffective assistance of trial
counsel] claim in a collateral proceeding, a
prisoner may establish cause for a default of
circumstances. The first is where the state
courts did not appoint counsel in the
initial-review collateral proceeding for a
claim of ineffective assistance at trial. The
second is where appointed counsel in the
initial-review collateral proceeding, where
the claim should have been raised, was
ineffective under the standards of Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). To overcome the
default, a prisoner must also demonstrate that
the underlying [ineffective assistance of
trial counsel] claim is a substantial one,
which is to say that the prisoner must
demonstrate that the claim has some merit. Cf.
- 10 -
Miller–El v. Cockrell, 537 U.S. 322, 123 S.Ct.
1029, 154 L.Ed.2d 931 (2003) (describing
standards for certificates of appealability to
Martinez v. Ryan, 566 U.S. at 14.
Respondents assert that this Court is procedurally barred from
reviewing this ground.
After giving due consideration to this
assertion, the Court finds that ground one is unexhausted because
Petitioner failed to fairly raise his claim in the state court
system, thus the trial court never considered the merits of this
circumstances; "[a] petitioner who fails to exhaust his claim is
procedurally barred from pursuing that claim on habeas review in
federal court unless he shows either cause for and actual prejudice
from the default or a fundamental miscarriage of justice from
applying the default."
Lucas, 682 F.3d at 1353 (citing Bailey v.
Nagle, 172 F.3d 1299, 1306 (11th Cir. 1999) (per curiam)).
fundamental miscarriage of justice exception is only available in
extraordinary cases upon a showing of "'actual' innocence" rather
than mere "'legal' innocence."
Johnson v. Ala., 256 F.3d 1156,
1171 (11th Cir. 2001) (citations omitted), cert. denied, 535 U.S.
Petitioner did not fairly and/or properly present this federal
constitutional claim to the state courts.
Any further attempts to
seek post conviction relief in the state courts on this ground will
- 11 -
As such, he has procedurally defaulted this claim
of ineffective assistance of counsel.
In the Petition, Petitioner contends that this procedural
default should be excused because he received the ineffective
assistance of counsel for his post conviction proceedings in state
court, but he recognizes that in order to overcome his default, he
must also demonstrate that the underlying ineffectiveness claim is
Petition at 5.
Importantly, "[t]o 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, 566 U.S. at 14 (citation omitted).
Upon review of the record, Petitioner may not have had
representation at the inception of his post conviction proceeding,
but he was represented by William J. Sheppard, Esquire, and Matthew
conviction motions were filed.
Ex. I at 33-34.
entered a notice of appearance but did not amend or add any post
The trial court noted in a footnote that
apparently Mr. Sheppard adopted the grounds as stated in the
motions as he requested an evidentiary hearing on the motions. Id.
at 54 n.1.
Mr. Kachergus, Mr. Sheppard's law partner, appeared as
Petitioner's counsel at the Rule 3.850 evidentiary hearing. Ex. J.
As Petitioner had post conviction counsel, he could have asked
counsel to evaluate and assess whether additional claims should be
- 12 -
made during the post conviction proceeding. Apparently, Petitioner
did not make this inquiry as he neither alleges or shows that such
an inquiry was made.
Finally, the Court recognizes that Mr.
Sheppard represented Petitioner on appeal from the denial of post
Ex. M; Ex. O.
Petitioner has not alleged or demonstrated that Mr. Kachergus
and Mr. Sheppard's performances as post conviction counsel amounted
to ineffective assistance of counsel.
See Martinez v. Ryan, 132
S.Ct. at 1320 ("Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an initial-review
collateral proceeding, a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective
assistance of counsel at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was
proceeding, this Court's inquiry is "whether, in light of all the
circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance."
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) (citations omitted).
The standard is
Petitioner has failed to show that Mr. Kachergus and Mr.
- 13 -
Sheppard's representation as post conviction counsel fell below an
objective standard of reasonableness.
Petitioner has also failed
to show that there was a reasonable probability that the results of
the post conviction proceeding would have been different but for
the actions and/or omissions of his counsel.
Petitioner has failed to show cause and
prejudice or that a fundamental miscarriage of justice will result
if the Court does not reach the merits of the claim.
Petitioner claims that his procedural default should be excused,
relying on Martinez, Petitioner has failed to show that he falls
within the narrow parameters of the ruling in Martinez, which
recognized a narrow exception for ineffective assistance of counsel
at initial-review collateral proceedings.4 As such, Petitioner has
Petitioner has failed to demonstrate that the underlying
ineffective assistance claim is a substantial one. Of note, twice
during the trial, the prosecutor misspoke, mixing up the names
Robinson and Bell. Ex. B at 407, 453. During closing argument,
the prosecutor blended two names, calling Antonio Robinson "Antonio
Post conviction counsel acknowledged the prosecutor's
misstatement in the Post Hearing Memorandum of Law. Ex. I at 72
("Antonio Bell [Robinson]").
The state also noted the
misstatement: "[t]he transcript reflects 'Antonio Bell gave correct
The undersigned attorney, who made the closing
argument, misspoke and conflated the names of witness Antonio
Robinson, and the Defendant, Keyon Bell." Ex. K at 984 n.2. The
state, in its Memorandum on Defendants' Motion for Postconviction
Relief, referred to "Antonio [Robinson]." Id. at 984. The trial
court also recognized the misstatement in its Order Denying
Defendant's Motion for Postconviction Relief and Supplemental Claim
for Postconviction Relief at 21 n.1, noting that at the evidentiary
hearing, the state acknowledged its closing argument misstatement.
Clearly, based on all of these notations and corrections, it was
well understood that the prosecutor was referring to Antonio
- 14 -
failed to establish cause for the procedural default of his claim
of ineffective assistance of trial counsel raised in ground one of
Even assuming Petitioner's claim is not procedurally barred,
he is not entitled to federal habeas relief.
He has failed to
carry his burden of showing that his trial counsel's representation
fell outside the range of reasonably professional assistance.
Moreover, even assuming deficient performance, Petitioner has not
shown resulting prejudice.
Indeed, he has not shown that a
reasonable probability exists that the outcome of the case would
have been different if trial counsel had objected contemporaneously
to the prosecution's misstatement that "Antonio Bell gave correct
Robinson when he referred to him as "Antonio Bell."
The prosecutor, in closing argument, pointed out that
Antonio Robinson, a witness, testified that Petitioner's statement
that he was not at De Real Ting on the night of the shooting was
untrue because Petitioner was at the café. Ex. B at 786. The
prosecutor continued to discuss Antonio Robinson's testimony,
reminding the jury that Robinson testified that he told the police
about the shooting and the content of the remarks made by
Petitioner after the shooting. Id. at 787-88. At that point, the
prosecutor apparently confused the name of the witness with the
name of the defendant and said, "Antonio Bell gave correct
information." Id. at 788. Of note, there was no witness named
Finally, the prosecutor said the defendant gave
false information and lied to the police. Id. The record reflects
that although Petitioner did not testify during the trial, during
rebuttal, Detective Meacham testified and played the police
interview of Petitioner, in which Petitioner stated that on the
night at issue, he was at the corner store of his house, and then
went home. Ex. B at 666, 724-25. In this interview, Petitioner
denied having gone to De Real Ting Café that evening. Id. at 74142.
Reviewing the prosecutor's mis-statement in context, the
- 15 -
As such, Petitioner's ineffectiveness claim is without merit
since he has shown neither deficient performance nor resulting
Thus, Petitioner is not entitled to relief on ground
Grounds Two and Three
In addition, Respondents contend that grounds two and three of
the Petition are unexhausted and procedurally defaulted because
Petitioner did not raise his claims on appeal of the denial of the
Rule 3.850 motion.
Response at 14.
Petitioner did not reply to
this assertion as he relies on his Petition.
Petitioner filed a pro se Rule 3.850 motion.
Ex. I at 1-30.
He filed a supplemental claim for post conviction relief.
Mr. Sheppard entered his appearance and requested an
Id. at 33-34, 52-53.
The circuit court
granted an evidentiary hearing as to ground six of the Rule 3.850
Id. at 54-65.
on December 16, 2013.
The court conducted an evidentiary hearing
Ex. J at 1399-1468.
After the filing of
post evidentiary hearing memoranda, Ex. I at 70-83 & Ex. K, the
prosecutor was referring to Antonio Robinson when he mistakenly
called him Antonio Bell. The prosecutor was asking the jury to
give weight to Robinson's testimony and to reject the content of
Petitioner's interview statement in which he said he was not at De
Real Ting Café on the evening of the offense. As to any suggestion
that the prosecutor was trying to suggest or impart that Petitioner
had confessed to the police, the jury heard Petitioner's statement
to the police, and it did not contain a confession. The reference
to "confession" concerned Keyon Bell's remarks to Robinson that the
victim had "started acting stupid[,]" so Bell "merked" or killed
the victim. Id. at 419, 788.
- 16 -
trial court entered an order denying post conviction relief as to
the motion and supplemental claim.
decision, raising two
The First District
Court of Appeal affirmed per curiam on January 16, 2015.
The mandate issued on February 3, 2015.
Here, Petitioner was required to file an appeal brief because
he received an evidentiary hearing on his Rule 3.850 motion.
9.141(b)(3)(C), Fla. R. App. P. Although he filed an appeal brief,
he did not brief the claims raised at bar, electing to brief
See Cortes v. Gladish, 216 F. App'x 897, 899
(11th Cir. 2007) (per curiam) (finding failure to address issues in
an appellate brief would constitute a waiver only if the Petitioner
received an evidentiary hearing on a Rule 3.850 motion); Rogers v.
Sec'y, Dep't of Corr., No. 8:07-CV-1375-T-30TGW, 2010 WL 668261, at
*53 (M.D. Fla. Feb. 19, 2010) (not reported in F.Supp.2d) (citing
Cortes and finding Rogers waived and defaulted his claim by not
briefing the claim, after receiving an evidentiary hearing on his
Rule 3.851 motion in state court); Johnson v. McNeil, No. 4:08-cv00221-MP-MD, 2009 WL 4042975, at *6 (N.D. Fla. Nov. 20, 2009) (not
reported in F.Supp.2d) (citing Cortes for the proposition that "had
Exhaustion requires that an appeal be taken from the denial
of a post conviction motion. Leonard v. Wainwright, 601 F.2d 807,
808 (5th Cir. 1979) (per curiam).
- 17 -
the petitioner received an evidentiary hearing on his Rule 3.850
motion, his failure to address issues in his appellate brief would
constitute a waiver of those issues, and they would be considered
procedurally defaulted"); Williams v. McDonough, No. 8:02-CV-965-T30MAP, 2007 WL 2330794, at *2 (M.D. Fla. Aug. 14, 2007) (not
reported in F.Supp.2d) (finding Petitioner received an evidentiary
hearing on his Rule 3.850 motion, and "[t]herefore, Petitioner was
required to file a brief, he did file a brief, and his failure to
address [the grounds] in his brief constitutes a waiver of those
As noted by this Court, an appeal following a post conviction
proceeding for which an evidentiary hearing was granted requires
briefs, and failure to include issues in the appeal brief is
abandonment of those claims:
In an unpublished opinion, the Eleventh
differentiated between a state postconviction
appeal following a summary denial and an
appeal following a postconviction proceeding
for which an evidentiary hearing was granted,
as it was in this case:
Cortes's appeal did not follow an
evidentiary hearing, and, therefore,
he was not required to file an
appellate brief. Furthermore, his
decision to do so and to address
only some of the issues does not
waive the remaining issues raised in
his Rule 3.850 motion. See Webb v.
State, 757 So.2d 608, 609 (Fla.
Dist. Ct. App. 2000). Therefore,
remedies prior to filing his § 2254
petition. In contrast, had Cortes
- 18 -
received an evidentiary hearing, his
failure to address issues in his
appellate brief would constitute a
waiver. (footnote omitted).
Cortes v. Gladish, 2007 U.S.App. LEXIS 2833,
216 Fed.Appx. 897 (11th Cir. 2007) (emphasis
added). The Eleventh Circuit correctly stated
that in Florida, in non-summary proceedings,
briefs are required and failure to include and
argue any preserved issue in the initial brief
acts as a waiver. See Coolen v. State, 696
So.2d 738, 742 n. 2 (Fla. 1997) (stating that
a failure to fully brief and argue points on
appeal "constitutes a waiver of these claims")
(quoted in Simmons v. State, 934 So.2d 1100,
1111 (Fla. 2006)). See also, Hall v. State,
823 So.2d 757, 763 (Fla. 2002) ("[A]n issue
not raised in an initial brief is deemed
abandoned and may not be raised for the first
time in a reply brief.").
Florida Rule of Appellate Procedure
9.141(b)(2) provides that in appeals from the
summary denial of a Rule 3.850 motion without
an evidentiary hearing, "[n]o briefs or oral
appellant's brief shall be filed within 15
days of the filing of the notice of appeal.
The court may request a response from the
appellee before ruling." Fla. R. App. P.
9.141(b)(2)(C). In contrast, in an appeal of a
Rule 3.850 order after an evidentiary hearing,
the movant is required to file an appellate
brief, and the movant waives a claim if he
does not include the claim in the brief
without argument on the claim. See, e.g.,
Shere v. State, 742 So.2d 215, 224 n. 6 (Fla.
1999) ("In a heading in his brief, Shere
asserts that the trial court erred by
summarily denying nineteen of the twenty-three
claims raised in his 3.850 motion. However,
for most of these claims, Shere did not
present any argument or allege on what grounds
the trial court erred in denying these claims.
We find that these claims are insufficiently
presented for review."); Duest v. Dugger, 555
So.2d 849 (Fla. 1990) ("Duest also seeks to
raise eleven other claims by simply referring
- 19 -
to arguments presented in his motion for
postconviction relief. The purpose of an
appellate brief is to present arguments in
support of the points on appeal. Merely making
reference to arguments below without further
elucidation does not suffice to preserve
issues, and these claims are deemed to have
Mathews v. Sec'y, Dep't of Corr., 8:08-cv-512-T-17MAP, 2008 WL
5111239, at *7 (M.D. Fla. Dec. 3, 2008) (not reported in F.Supp.2d)
(emphasis in original).
Here Petitioner received a non-summary proceeding, thus,
briefs were required, and Petitioner's failure to fully brief and
argue points on appeal constituted a waiver of those grounds.
a consequence, Petitioner waived the issues raised in grounds two
and three of the Petition and they are procedurally defaulted.
Petitioner has not shown cause and prejudice or that a fundamental
miscarriage of justice will result if the issues are not address on
Petitioner "cannot show valid cause to excuse his
default because his collateral appellate counsel elected not to
press the claim [Petitioner] now presents to this Court."
Furthermore, Petitioner "does not meet the prejudice or
manifest injustice exceptions to lift the independent and adequate
state bars applicable to his grounds."
Accordingly, it is now
ORDERED AND ADJUDGED:
The Second Amended Petition for Writ of Habeas Corpus
(Doc. 18) is DENIED, and this action is DISMISSED WITH PREJUDICE.
- 20 -
The Clerk of the Court shall enter judgment accordingly
and close this case.
If Petitioner appeals the denial of his Second Amended
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.
DONE AND ORDERED at Jacksonville, Florida, this 4th day of
Counsel of Record
This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
28 U.S.C. § 2253(c)(2).
To make this
substantial showing, Petitioner "must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
Upon due consideration, this Court will deny a
certificate of appealability.
- 21 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?