Bell v. Secretary, Florida Department of Corrections et al

Filing 21

ORDER denying Petition and dismissing case with prejudice; with directions to the Clerk. Signed by Judge Timothy J. Corrigan on 5/15/2019. (JND)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JONATHAN CHRISTOPHER BELL,
Petitioner,
v.

Case No. 3:16-cv-1084-J-32JRK

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et. al.,
Respondents.
________________________________
ORDER
I.

Status
Petitioner, Jonathan Christopher Bell, an inmate of the Florida penal system,

initiated this case by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus by a Person in State Custody. See Doc. 1 (Petition). Petitioner challenges a
state court (Duval County, Florida) judgment of conviction for armed burglary and
resisting an officer without violence. Doc. 1 at 1. He is currently serving a twenty-fiveyear term of incarceration with a fifteen-year minimum mandatory as a Habitual
Violent Felony Offender. Respondents filed a Response (Doc. 16; Resp.)1 and Petitioner
declined to file a reply (Doc. 20). This case is ripe for review.

Respondents also filed exhibits. Docs. 16-1 to 16-4. The Court refers to the
exhibits as “Resp. Ex.”
1

II.

Governing Legal Principals
A. Standard Under AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a

state prisoner’s federal habeas corpus petition. 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)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the petitioner’s claims on the merits. See Marshall v.
Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). 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 Harrington v. Richter, 562 U.S. 86, 100
(2011). Where the state court’s adjudication on the merits is unaccompanied by an
explanation,
the federal court should “look through” the unexplained
decision to the last related state-court decision that does
provide a relevant rationale. It should then presume that
the unexplained decision adopted the same reasoning. But
the State may rebut the presumption by showing that the
unexplained affirmance relied or most likely did rely on
different grounds than the lower state court’s decision, such
as alternative grounds for affirmance that were briefed or
argued to the state supreme court or obvious in the record
it reviewed.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

2

When a state court has adjudicated a petitioner’s claims on the merits, a federal
court cannot grant habeas relief unless the state court’s adjudication of the claim was
“contrary to, or involved an unreasonable application of, clearly 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)(1), (2). A state court’s factual findings are
“presumed to be correct” unless rebutted “by clear and convincing evidence.” Id. §
2254(e)(1).
AEDPA “imposes a highly deferential standard for
evaluating state court rulings” and “demands that statecourt decisions be given the benefit of the doubt.” Renico v.
Lett, 559 U.S. 766, 773 (2010) (internal quotation marks
omitted). “A state court’s determination that a claim lacks
merit precludes federal habeas relief so long as fairminded
jurists could disagree on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)
(internal quotation marks omitted). “It bears repeating that
even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id. [at 102] (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The Supreme
Court has repeatedly instructed lower federal courts that an
unreasonable application of law requires more than mere
error or even clear error. See, e.g., Mitchell v. Esparza, 540
U.S. 12, 18 (2003); Lockyer, 538 U.S. at 75 (“The gloss of
clear error fails to give proper deference to state courts by
conflating error (even clear error) with unreasonableness.”);
Williams v. Taylor, 529 U.S. 362, 410 (2000) (“[A]n
unreasonable application of federal law is different from an
incorrect application of federal law.”).
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal citations
modified).

3

B. Exhaustion and 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); see also Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel
applies to the state collateral review process as well as the direct appeal process.”).
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.
838, 845, 119 S. Ct. 1728, 144 L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).

4

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,[2] supra, at 747–748,
111 S. Ct. 2546; Sykes,[3] 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
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). 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

2

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

3

Wainwright v. Sykes, 433 U.S. 72 (1977).
5

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 order for
a petitioner to establish cause and prejudice,
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).[4] Under the prejudice prong, [a petitioner] must
show that “the errors at trial actually and substantially
disadvantaged his defense so that he was denied
fundamental fairness.” Id. at 1261 (quoting Carrier, 477
U.S. at 494, 106 S. Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In the absence of a showing of cause and prejudice, a petitioner may receive
consideration on the merits of a procedurally defaulted claim if the petitioner 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).

4

Murray v. Carrier, 477 U.S. 478 (1986).
6

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). With the rarity
of such evidence, in most cases, allegations of actual innocence are ultimately
summarily rejected. Schlup, 513 U.S. at 324.
C. 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
ineffective assistance, a person must show that: (1) counsel’s performance was outside
the wide range of reasonable, professional assistance; and (2) counsel’s deficient
performance prejudiced the challenger in that there is a reasonable probability that
the outcome of the proceeding would have been different absent counsel’s deficient
performance. Strickland, 466 U.S. at 687.
Notably, there is no “iron-clad rule requiring a court to tackle one prong of the
Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir. 2010).
Since both prongs of the two-part Strickland test must be satisfied to show a Sixth

7

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.
“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 (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). “Reviewing courts apply a ‘strong
presumption’ that counsel’s representation was ‘within the wide range of reasonable
professional assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262
(11th Cir. 2016) (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).

8

III.

Analysis

Grounds One through Fifteen5
In Grounds One, Two, Three, Four, Five, Seven, Ten, and Eleven, Petitioner
asserts that trial counsel was ineffective for failing to object to various arguments that
the prosecutor made during his opening and closing arguments. He raised identical
claim in grounds one, two, three, four, five, seven, ten, and eleven of his amended
motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.6
Resp. Ex. C1 at 133-35. The trial court addressed them collectively as follows:
In Grounds One, Two, Three, Four, Five, Seven, Ten,
and Eleven, Defendant argues counsel rendered deficient
performance for failing to object to several arguments the
prosecutor made throughout the course of trial. This
Court specifically addresses each issue herein.
As to the merits of the comments at issue, the
proper method for reviewing the effect, and therefore, the
prejudice of the prosecutor’s comments, is to place them
in context. Rose v. State, 985 So. 2d 500, 508 (Fla. 2008);
Ham v. State, 580 So. 2d 868 (Fla. 1991). Further,
attorneys are allowed wide latitude to argue to the jury
during closing argument. Breedlove v. State, 413 So. 2d
1, 8 (Fla. 1982). Attorneys may also draw logical
inferences and advance legitimate arguments in their
closing statements. Thomas v. State, 748 So. 2d 970, 984
(Fla. 1984). Therefore, when a defendant claims a
prosecutor has made an improper comment during
Respondents argue that Petitioner failed to exhaust Grounds One through
Fifteen because he did not present the federal constitutional nature of these claims in
state court. Resp. at 6-50. However, because Grounds One through Fifteen are
premised upon claims of ineffective assistance of counsel as set forth in Strickland,
and Petitioner raised these claims in his Rule 3.850 motion and appealed the denial
therefrom, the Court finds that Petitioner did exhaust Grounds One through Fifteen
in state court.
5

The trial court dismissed Petitioner’s initial Rule 3.850 motion and directed
Petitioner to file an amended motion. Resp. Ex. C1 at 131.
6

9

closing argument such that a new trial is required, the
defendant must show
the comments must either deprive the
defendant of a fair and impartial trial,
materially contribute to the conviction, be so
harmful or fundamentally tainted as to
require a new trial, or be so inflammatory
that they might have influenced the jury to
reach a more severe verdict than that it
would have otherwise.
Walls v. State, 926 So. 2d 1156, 1167 (Fla. 2006) (citing
Spencer v. State, 645 So. 2d 377, 383 (Fla. 1994)).
Ultimately, “trial counsel cannot be deemed ineffective
for failing to object to arguments that are proper.” Rogers
v. State, 957 So. 2d 539, 549 (Fla. 2007).
In the instant case, this Court finds the
prosecutorial arguments at issue, taken as a whole and
placed in context, were not improper, such to warrant
objections from counsel. (Ex. F at 219-228, 416-34, 454 69.) The comments argued to the jury the evidence and
inferences made from the evidence. See id. The
arguments summarized the evidence anticipated and
presented during trial, and offered a conclusion, based on
the evidence, that supported the State’s theory of the
case. As such, counsel was not ineffective for failing to
object to the prosecutorial comments. See Rogers, 957 So.
2d at 549. Moreover, this Court finds it is not reasonably
likely that, had counsel objected to the arguments at
issue, the outcome of Defendant’s trial would have been
different. Because Defendant has failed to establish the
requirements of Strickland, Grounds One, Two, Three,
Four, Five, Seven, Ten, and Eleven are denied . . . .
Resp. Ex. C1 at 258-59. The trial court then addressed each claim individually. Id. As
described below, the Court finds that the state court’s adjudication of these claims is
entitled to deference.

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Ground One
Petitioner alleges that trial counsel was ineffective for failing to object and move
for a mistrial when the state, during opening arguments, told the jury that Petitioner’s
co-defendant Donte Shoats was already convicted of the same charges for which
Petitioner was on trial. Doc. 1 at 4. He argues that this comment was prejudicial to
Petitioner because the state prosecuted Petitioner on a principal theory. Id.
Petitioner raised this claim as claim one of his Rule 3.850 motion. Resp. Ex. C1
at 133-35. The trial court denied the claim, finding in relevant part:
First, Defendant argues counsel should have
objected and/or moved for a mistrial when the State told
the jurors during opening argument that Defendant’s codefendant “was already convicted of the same charges in
this case that the Defendant was on trial for.” The entire
context of the argument in question follows, with the
portion at issue emphasized:
Now, members of the jury, I also expect that
you may hear from Mr. Shoats. He may get
on the stand and testify before you today. I
want to make something clear right
now, he’s convicted of the same charge
as this defendant. He’s just as guilty as
this defendant. He is by no means a model
citizen of our society. He is a convicted felon.
He has a crime of dishonesty in his past.
I don’t really know what he’s going to tell you
about his involvement in the burglary.
Frankly I don’t really care because I do know
two things he will tell you is that on January
4th, 2011 he was with this defendant,
Jonathan Bell, and the other defendant,
Ernest Smith, the one who was in his boxer
shorts and socks. He will tell you those two and then all three of those individuals then
went into the back yard of that house. He
11

will tell you those two things.
(Ex. F at 226-27.)
Initially, this Court notes the two cases upon which
Defendant seeks to rely, Thomas v. State, 202 So. 2d
883, 884 (Fla. 3d DCA 1967), and Moore v. State, 186
So. 2d 56 (Fla. 3d DCA 1966), were overruled by the
Florida Supreme Court in Bell v. State, 965 So. 2d 48,
56 (Fla. 2007). Furthermore, the trial record indicates
Mr. Shoats testified as a State witness against
Defendant during trial. (Ex. F at 286.) The
prosecutor’s opening argument that Mr. Shoats had
previously been convicted of the instant crime properly
anticipated Mr. Shoats’s direct and cross-examination
testimony, and reached to Mr. Shoats’s credibility or
bias as a witness. See Bell, 965 So. 2d at 56 (citing §
90.608, Fla. Stat. (1995)); Williamson v. State, 511 So.
2d 289, 291 (Fla. 1997). Indeed, the prosecutor’s
argument commented on evidence he anticipated the
State would present during trial, and offered the
jurors a suggestion as to how the jurors should weigh
Mr. Shoats’s testimony. As such, this Court finds
counsel did not render deficient performance for
failing to object to a proper argument. See Rogers, 957
So. 2d at 549. Accordingly, Ground One is denied.
Resp. Ex. C1 at 259-60. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. C4.
To the extent that the First DCA affirmed the trial court’s denial on the merits,7
the Court will address the claim in accordance with the deferential standard for
federal court review of state court adjudications. “Where, as here, the codefendant is
a witness at trial, subject to the rigors of cross-examination, disclosure of [a
codefendant’s guilt] to blunt the impact of attacks on [his] credibility serves a

In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumes that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
7

12

legitimate purpose and is permissible.” U.S. v. Melton, 739 F.2d 576 (11th Cir. 1984)
(quoting U.S. v. Veltre, 591 F.2d 347, 3499 (5th Cir. 1979)).
During opening statements, the prosecutor noted each witness the state
intended to present and summarized their respective testimony, including codefendant Shoats. Resp. Ex. B3 at 226.

In summarizing Shoats’ testimony, the

prosecutor stated that Shoats “was convicted of the same charge” as Petitioner. Id.
However, a review of Shoats’s trial court docket shows that while Shoats had been
charged with the armed burglary and resisting officer offenses at the same time as
Petitioner, Shoats had not yet been adjudicated guilty of the crimes at the time of
Petitioner’s trial. See State v. Shoats, 2011-CF-154-AXXX (Fla. 4th Cir. Ct.). Shoats
testified at Petitioner’s trial on October 20, 2011, and he entered pleas of guilty to the
crimes and was sentenced on November 1, 2012. Id.
Nevertheless, while the prosecutor’s opening argument may have been a
misstatement, the prosecutor merely wanted to acknowledge that Shoats’ trial
testimony would show that he participated in the crimes, but that guilt or culpability
should not influence his credibility with the jury. Indeed, Shoats testified at trial that
he, along with Petitioner, burglarized a home and were subsequently charged with
armed burglary and resisting an officer without violence. Id. at 287-91. He further
testified that he had one prior felony conviction and a conviction for a crime of
dishonesty. Id. Thereafter, trial counsel was able to cross-examine Shoats at length.
Id. at 292-308.

13

Upon thorough review of the record and the applicable law, the Court concludes
that the state court’s decision to deny Petitioner’s claim was neither contrary to nor
an unreasonable application of Strickland, and it is not based on an unreasonable
determination of the facts in light of the evidence presented to the state court. See 28
U.S.C. § 2254(d). Applying AEDPA deference, the claims in Ground One are due to be
denied.
Ground Two and Ground Eleven
In Ground Two, Petitioner contends that trial counsel was ineffective for failing
to object when the prosecutor argued the principal theory to the jury and the trial
court instructed the jury on the principal theory. Doc. 1 at 6-7. In Ground Eleven,
Petitioner again asserts that counsel was ineffective for failing to object and move for
a mistrial when the state, during closing arguments, argued that Petitioner was guilty
under the principal theory, which led the jury to believe that it could find that
Petitioner actually possessed a firearm under the principal theory. See id. at 23.
Petitioner raised these claims in grounds two and eleven of his Rule 3.850
motion. Resp. Ex. C1 at 137-38, 158-59. The trial court denied the claims, finding in
pertinent part:
In his second and eleventh grounds for relief,
Defendant argues counsel should have objected and/or
moved for a mistrial when the State argued the
principal theory to jury. In support, Defendant
contends the State did not charge him as a principal to
the crime in the charging information, as it fails to cite
section 777.011, Florida Statutes, even though the
principal theory was an essential element. Thus, he
contends, he was convicted of an uncharged offense,
and counsel should have objected. In both Grounds,
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Defendant avers counsel failed to object/move for a
mistrial when the judge provided the jurors with
instruction on the principal theory.
This Court finds Defendant is not entitled to
relief. Foremost, “[t]he purpose of an information is to
fairly apprise defendant of the offense with which he is
charged.” Leeman v. State, 357 So. 2d 703, 705 (Fla.
1978). Further, Florida law dictates the following with
respect to a charging information filed by the State:
(o) Defects and Variances. No indictment
or information, or any count thereof, shall be
dismissed or judgment arrested, or new trial
granted on account of any defect in the form
of the indictment or information or of
misjoinder of offenses or for any cause
whatsoever, unless the court shall be of the
opinion that the indictment or information is
so vague, indistinct, and indefinite as to
mislead the accused and embarrass him or
her in the preparation of a defense or expose
the accused after conviction or acquittal to
substantial danger of a new prosecution for
the same offense.
Fla. R. Crim. P. 3.140(0) (2010). See Baker v. State, 4 So.
3d 758, 760-61 (Fla. 1st DCA 2009) see also Miller v.
State, 42 So. 3d 204, 216-17 (Fla. 2010), reh’g denied
(Aug. 9, 2010), cert. denied, 131 S. Ct. 935 (2011); State
v. Taylor, 283 So. 2d 882, 885 (Fla. 4th DCA 1973).
The charging information shows the State charged
Defendant with Armed Burglary. (Ex. G.) This Court
finds the face of the information shows it was not so
vague, indistinct, and indefinite, such that it misled
Defendant and embarrassed him in his trial preparation.
Therefore, an objection to the information would have
lacked merit.
Further, Defendant was not convicted of an
uncharged crime. Despite Defendant’s contentions, the
principal theory is not an element of Armed Burglary. See
§ 810.02(2)(b), Florida Statutes (2010). Thus, the law did
15

not require the State to allege the principal theory in the
charging information. Therefore, because the information
was not deficient, had counsel objected or moved for a
mistrial based on the State arguing the principal theory
during trial, or the jury receiving such instructions, such
challenges would have been without merit and denied.
Counsel was not ineffective for refraining from raising a
non-meritorious objection or motion. See Willacy v. State,
967 So. 2d 131, 140 (Fla. 2007) (citing Maxwell v.
Wainwright, 490 So. 2d 927, 932 (Fla. 1986)) (stating
“counsel is not ineffective for failing to make a futile
objection”); Branch v. State, 952 So. 2d 470, 476 (Fla.
2006) (holding counsel cannot be ineffective for failing
to file motion which would have been properly denied).
Ground Two and Ground Eleven are denied.
Resp. Ex. C1 at 260-62. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. C4.
To the extent that the First DCA affirmed the trial court’s denial on the merits,8
the Court will address the claim in accordance with the deferential standard for federal
court review of state court adjudications. In so far as Petitioner takes issue with the
reading of the principal theory generally, “[u]nlike state appellate courts, federal courts
on habeas review are constrained to determine only whether the challenged
instruction, viewed in the context of both the entire charge and the trial record, ‘so
infected the entire trial that the resulting conviction violate[d] due process.’” Jamerson
v. Sec’y for Dep’t of Corr., 410 F.3d 682, 688 (11th Cir. 2005) (quoting Estelle v.
McGuire, 502 U.S. 62, 72 (1991)). “If there is no basis in the record for the instruction
given, such error may raise a ‘substantial and ineradicable doubt as to whether the

In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumes that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
8

16

jury was properly guided in its deliberations,’ and reversal may be required.”
Pesaplastic, C.A. v. Cincinnati Milacron Co., 750 F.2d 1516, 1525 (11th Cir. 1985)
(quoting McElroy v. Firestone Tire & Rubber Co., 894 F.2d 1504, 1509 (11th Cir. 1990)).
“Aiding and abetting need not be specifically alleged in the indictment; assuming the
evidence supports it, the accused can be convicted of aiding and abetting so long as the
jury is instructed on it.” United States v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984).
Here, the victim’s neighbor, Ann Smith, testified that she was making lunch in
her kitchen when she looked out the window and saw three black males in their
twenties or thirties, wearing black shirts and caps, standing near the victim’s fence.
Resp. Ex. B3 at 236-40. She saw all three men jump the victim’s fence, rip the screen
off the back door, and enter the victim’s home. Id. at 240-42. She stated that the men
were inside the victim’s home for approximately three minutes when one of the men
exited and stood as an apparent lookout for the other two males. Id. at 243-44. Smith
called 911 and while she was on the phone, the three men ran out of the victim’s home
and across Smith’s yard. Id. A recording of Smith’s 911 call was played for the jury. Id.
at 247-55. Further, another one of the victim’s neighbors, Linda Varmecky, testified
that her surveillance cameras recorded the men crossing her yard. Id. at 275. The
surveillance video was played during co-defendant Shoats’ trial testimony and Shoats
identified Petitioner as one of the individuals depicted in the video footage. Id. at 290.
Officer Charles Ray testified that he responded to the 911 call and as he was
entering the neighborhood, Richard Sonnenberg, another neighbor, flagged Officer Ray
down and advised that the three men were in his backyard. Id. at 282. Officer Ray got

17

out of his vehicle and as soon as the three men saw him, they began to run. Id. at 32526. Officer Ray commanded that the men stop, but they refused. Id. at 326. Officer Ray
chased them into a muddy retention pond where he finally apprehended Petitioner. Id.
at 329.
Officer Brian Myers testified that he when he arrived at the victim’s home, he
noticed damage to the victim’s back door. Id. at 312. Officer Myers saw a firearm lying
on the ground of the victim’s sunroom. Id. He also saw a second firearm leaning against
the privacy fence dividing the victim and Smith’s backyards. Id. at 312-15. The victim,
George Meyers, testified that he was out of town at the time of the burglary and no one
had permission to enter his home while he was gone. Id. at 264. The victim explained
that his back door was broken into, his firearm had been moved, and his personal items
had been ransacked. Id. at 266-69. The victim stated that his watch, class ring, and a
pocketknife were missing from his bedroom, and he stated that his ammunition was
found in the backyard. Id. at 266-71.
Upon review of the record, this Court concludes that the state court’s
adjudication of this claim was not contrary to clearly established federal law, did not
involve an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light of the evidence presented

18

in the state court proceedings.9 There was sufficient evidence showing that Petitioner
participated in and assisted his co-defendants during the armed burglary. As such,
counsel was not deficient in failing to object to the use of the principal theory
instruction. Grounds Two and Eleven are due to be denied.
Ground Three
Petitioner maintains that trial counsel was ineffective for failing to object
and move for a mistrial when the prosecutor, during closing arguments, stated
that “what this case comes down to is whom was the jury going to believe,
Petitioner or the State’s witnesses in determining whether Petitioner was guilty
or not guilty.” Doc. 1 at 8.
Petitioner raised this claim as ground three of his Rule 3.850 motion. Resp.
Ex. C1 at 139-40. The trial court denied the claim as follows:
Third, Defendant argues counsel should have
objected when the State argued “what this case comes
down to is whom was the jury going to believe.”
Defendant contends the State’s argument improperly
distorted the burden of proof. In support of his
argument, Defendant cites Cole v. State, 866 So. 2d
761 (Fla. 1st DCA 2004).
Here, this Court finds, placed in context, the
instant argument was not improper, such to warrant
an objection from counsel. Rather, placed in context,
this argument was made during rebuttal argument,
and demonstrates the prosecutor summarized the
In Florida, possession of a firearm “at any time during the course of a criminal
endeavor” comports with the statutory requirements of armed burglary. Williams v.
State, 517 So. 2d 681, 682 (Fla. 1988); see also Jones v. State, 599 So. 2d 741 (Fla. 3d
DCA 1992) (affirming armed burglary conviction of defendant who was unarmed prior
to entering dwelling and took possession of the victim’s firearm for a brief time, with
intent to pawn firearm, but left the gun inside burglarized home).
9

19

evidence placed before the jurors. (Ex. F at 454-69.)
The prosecutor’s argument was consistent with one
theme: how the jurors should evaluate the evidence
presented, by making credibility determinations.
Therefore, counsel was not ineffective for failing to
object to proper argument, especially since prosecutors
are allowed wide latitude in making their closing
arguments. Ground Three is denied.
Resp. Ex. C1 at 262. The First DCA per curiam affirmed the trial court’s denial without
a written opinion. Resp. Ex. C4.
To the extent that the First DCA affirmed the trial court’s denial on the
merits,10 the Court will address the claim in accordance with the deferential standard
for federal court review of state court adjudications. A reviewing court must evaluate
an allegedly improper comment in the context of both the prosecutor’s entire closing
argument and the trial as a whole, because “[c]laims of prosecutorial misconduct are
fact-specific inquiries which must be conducted against the backdrop of the entire
record.” United States v. Hall, 47 F.3d 1091, 1098 (11th Cir.1995); accord United
States v. Young, 470 U.S. 1, 11 (1985) (“[A] criminal conviction is not to be lightly
overturned on the basis of a prosecutor’s comments standing alone, for the statements
or conduct must be viewed in context; only by doing so can it be determined whether
the prosecutor’s conduct affected the fairness of the trial.”). In context, the Court finds
that the prosecutor’s comments were not an improper shifting of the burden of proof,
but rather were a summary of the evidence given in rebuttal to Petitioner’s closing

In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumed that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
10

20

argument. Resp. Ex. B4 at 456. Notably, the state presented an ample amount of
evidence that Petitioner participated in the armed burglary (Resp. Ex. B3 at 290) and
Petitioner wholly denied involvement during his trial testimony (Resp. Ex. B4 at 39293). As such, counsel was not deficient for failing to object.
Accordingly, upon review of the record, this Court finds that the state court’s
adjudication of this claim was not contrary to clearly established federal law, did not
involve an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light of the evidence presented
in the state court proceedings. Ground Three is due to be denied.
Ground Four
Petitioner asserts that trial counsel was ineffective for failing to object and
move for a mistrial when the state, during closing arguments, vouched for the
credibility of state witness Officer Ray. Doc. 1 at 9.
Petitioner raised this claim as ground four of his Rule 3.850 motion. Resp. Ex.
C1 at 141. The trial court denied the claim as follows:
Fourth, Defendant avers counsel should have
objected/moved for a mistrial when the State, in its
closing argument, improperly vouched for the veracity
of Officer Ray. Specifically, Defendant contends the
State improperly argued “Officer Ray is still a Officer
and that Officer Ray has no reason to lie, Officer Ray
was just doing his job.” In the alternative, Defendant
argues the effect of this argument, when viewed
cumulatively with the argument the State made in
Ground Three, constitutes harmful error.
The Fifth District Court of Appeal recently found
counsel did not render ineffective assistance of counsel
for failing to object to a prosecutor’s statement, made
21

during closing argument, that a version of events
offered by police officers was “true and correct.” Moore
v. State, 74 So. 3d 547, 550 (Fla. 5th DCA 2011). The
court reasoned that because the prosecutor followed
said statement by arguing it was [the] jury’s job to
determine the facts, an objection to the prosecutor’s
statement would not have warranted a mistrial. Id.
Here, placed in context, this Court finds the
prosecutor’s argument was not improper. (Ex. F at 45658, 463-67.) The prosecutor summarized the evidence
placed before the jurors, including the testimony
provided by Officer Ray, and drew logical inferences
from said evidence. The prosecutor did not focus only
on Officer Ray’s testimony through his argument. (Ex.
F at 456-58, 463-67.) As such, this Court adopts its
findings supra denying Ground Three, and adopts
them herein. Ground Four is denied.
Resp. Ex. C1 at 292-63. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. C4.
To the extent that the First DCA affirmed the trial court’s denial on the
merits,11 the Court will address the claim in accordance with the deferential standard
for federal court review of state court adjudications. Again, in mentioning Officer Ray’s
testimony, the prosecutor was merely summarizing the evidence presented at trial.
Resp. Ex. B4 at 456-58. Notably, the prosecutor distinguished Officer Ray’s testimony
that Petitioner immediately began running when he commanded Petitioner to stop
(Resp. Ex. B3 at 330), and Petitioner’s trial testimony that Officer Ray never made
such demands or engaged in a foot chase that ended in a retention pond (id. at 396-

In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumes that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
11

22

97). As such, upon review of the record, this Court concludes that the state court’s
adjudication of this claim was not contrary to clearly established federal law, did not
involve an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light of the evidence presented
in the state court proceedings. Ground Four is due to be denied.
Ground Five
Petitioner argues that trial counsel was ineffective for failing to object and move
for a mistrial when the state, during closing arguments, commented on Petitioner’s
right to remain silent. Doc. 1 at 11.
Petitioner raised this claim as ground five of his Rule 3.850 motion. Resp. Ex.
C1 at 143. The trial court denied the claim, reasoning in relevant part:
In his fifth argument, Defendant asserts counsel
should have objected/moved for a mistrial when the
State commented on his right to remain silent when an
officer encountered him after the crime occurred and
Defendant said nothing to the officer. Defendant
argues harmful error occurred through the State’s
argument because “[t]he State’s evidence of the
Defendant’s case is far from conclusive. Where the
State had no physical evidence placing the Defendant
at the scene of the crime and as a participant in the
events.”
To the extent Defendant seeks to challenge the
sufficiency of the evidence presented against him to
prove he committed Armed Burglary, couched in terms
of ineffective assistance of counsel for refraining from
objecting to the argument discussed, such a claim is
procedurally barred. See Johnson v. State, 985 So. 2d
1215, 1215 (Fla. 1st DCA 2008) (finding claim alleging
“insufficiency of the evidence to prove escape . . . [is] not
cognizable in a collateral postconviction motion”); Betts
v. State, 792 So. 2d 589, 590 (Fla. 1st DCA 2001) (citing
23

Jackson v. State, 640 So. 2d 1173 (Fla. 2d DCA 1994)
(stating, with respect to defendant’s postconviction
challenge to factual basis and sufficiency of evidence
presented against him, “such claims cannot be raised in
a Rule 3.850 motion”)); Jackson v. State, 640 So. 2d 1173,
1174 (Fla. 2d DCA 1994) (citing Morris v. State, 422 So.
2d 338 (Fla. 3d DCA 1982) (holding “it is well-settled that
insufficiency of the evidence cannot be raised under rule
3.850, especially when a direct appeal has been taken”)).
Indeed, Defendant appears to disagree with the
prosecutor’s comments because he takes issue with the
State’s theory of the case and the evidence the State
presented against him in support of its theory.
Assuming arguendo Defendant’s argument was not
procedurally barred, it still fails. Placed in context, the
argument sought to summarize for the jurors the
meaning of the term “reasonable doubt.” The entire
argument follows, with the portion with which Defendant
takes issue highlighted:
Reasonable doubt, it’s not a mere possible,
speculative, imaginary or forced doubt. Such
a doubt must not influence you to return a
verdict of not guilty. If you have an abiding
conviction of guilt, members of the jury, you
would have to force yourself to believe that
there was another man in all black running
around with them who happened to not get
caught with all the canine and all the police
present in that area, with the air units and
everything, and they were there for a good
three hours. You would have to believe that
there was another person that just happened
to get away.
And this defendant per what he said, he said
he wasn’t even there. He wasn’t even behind
the house. He said that he’s just walking
around the neighborhood and the officer came
up to him. He didn’t admit anything. He
didn’t say that, oh, yeah, I did run across
the woods. I did hide in the ditch. I did go
in the mud and the swamp.
24

As Officer Ray testified he said he wasn’t
even there. That makes no sense, members
of the jury, none at all, and I would say you
should [not] believe that because you would
have to force yourself to believe his story
over Officer Ray’s testimony.
(Ex. F at 466-67.) Placed in context, this Court finds the
prosecutor’s highlighted comment would not have been
viewed by [the] jury as a comment on defendant’s right to
remain silent. Specifically, the prosecutor went on to
argue what Defendant did say and how Defendant did
not remain silent. Moore v. State, 74 So. 3d 547, 550 (Fla.
5th DCA 2011) (finding because prosecutorial comment,
placed in context, would not have been viewed by jury as
comment on defendant’s right to remain silent, counsel
was not ineffective for failing to object to comment); see
also Green v. State, 27 So. 3d 731, 736-37 (Fla. 2d DCA
2010) (finding improper prosecutor’s argument telling
jurors defendant exercised right to remain silent prior to
and after arrest). Ground [Five] is denied.
Resp. Ex. C1 at 263-65. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. C4.
To the extent that the First DCA affirmed the trial court’s denial on the
merits,12 the Court will address the claim in accordance with the deferential standard
for federal court review of state court adjudications. This argument, taken in its proper
context, was not an impermissible comment on Petitioner’s right to remain silent. See
United States v. Blankenship, 382 F.3d 1110, 1128 (11th Cir. 2004) (a prosecutor’s
statement violates a defendant’s right to remain silent if it was “manifestly intended

In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumes that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
12

25

to be a comment on the defendant’s failure to testify” or was “of such a character that
a jury would naturally and necessarily take it to be a comment” on the defendant’s
failure to testify). Instead, the prosecutor was again comparing Petitioner’s trial
testimony to Officer Ray’s testimony. Reasonable competent counsel could have
concluded that objecting to the comment would have been futile. Thus, upon review of
the record, this Court concludes that the state court’s adjudication of this claim was
not contrary to clearly established federal law, did not involve an unreasonable
application of clearly established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceedings. Ground Five is due to be denied.
Ground Seven
Petitioner claims that trial counsel was ineffective for failing to object/move for
a mistrial when the state made comments shifting the burden of proof during closing
arguments. Doc. 1 at 16. He argues that the state improperly indicated that the jury
could reach its verdict by “guess work” or “assumption.” Id.
Petitioner raised this allegation in ground seven of his Rule 3.850 motion. Resp.
Ex. C1 at 149. The trial court denied the claim as follows:
In his seventh argument, Defendant avers counsel
should have objected/moved for a mistrial when the State
misled the jurors by distorting the burden of proof during
its closing argument. Specifically, Defendant takes issue
with the State’s argument analogizing reasonable doubt
with a jigsaw puzzle which, Defendant alleges, indicated
the jurors may resort to “guess work or assumption” in
reaching their verdict.

26

The argument with which Defendant takes issue,
placed in context, follows:
The state does have a high – a burden of
proving every element beyond a reasonable
doubt and you are instructed to rely upon
your common sense in deciding whether the
defendant is guilty or not guilty, whether his
story holds water or whether the evidence
proves beyond a reasonable doubt he is, in
fact, guilty, and reasonable doubt is not 100
percent certainty. It’s not proof beyond all
possible doubt. It’s proof beyond a
reasonable doubt.
And in jury selection the example was given
of anybody who has done a jigsaw puzzle as
a child that you can complete part of the
puzzle, see what the image is and know
what it is without seeing all the pieces,
so again if you have a question about a
piece of evidence and it doesn’t go to the
elements [it] shouldn’t influence you to
return a verdict of not guilty.
Ladies and gentlemen, the state appreciates
your time and again we ask that you rely
upon your common sense, that your verdict
not be based on bias, prejudice, or sympathy.
It’s perfectly natural for a juror to feel bad
for the position the defendant is in. However,
it is not the role of juror to decide what a
sentence is going to be, to feel bad for a
defendant, simply to look at the evidence,
apply your common sense and come up with
a just verdict and the state trusts that you
will, that the defendant is guilty of both
armed burglary as well as resisting an
officer without violence.
(Ex. F at 432-34) (emphasis added). This Court finds
that, with the instant argument, the State explained the
concept of reasonable doubt to the jurors. This argument
was not improper. Therefore, counsel was not ineffective
27

for refraining from objecting to it. Ground Seven is
denied.
Resp. Ex. C1 at 265-66. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. C4.
To the extent that the First DCA affirmed the trial court’s denial on the
merits,13 the Court will address the claim in accordance with the deferential standard
for federal court review of state court adjudications. In doing so, and viewing the
prosecutor’s argument in context, the Court does not find that this statement
improperly shifted the burden of proof. As such, the state court’s adjudication denying
relief is neither contrary to nor an unreasonable application of Strickland because
Petitioner cannot demonstrate deficient performance or prejudice from counsel’s
failure to object. Also, the state court’s adjudication was not based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceedings. The claim in Ground Seven is due to be denied.
Ground Ten
Petitioner asserts that trial counsel was ineffective for failing to object/move for
a mistrial when the prosecutor, during closing arguments, improperly stated that “one
of the defendants in this case was in possession of a firearm, and that therefore
constitutes the armed burglary, and that therefore the defendants all are guilty of
armed burglary.” Doc. 1 at 21. According to Petitioner, this statement presented facts

In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumed that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
13

28

not in evidence. Petitioner also alleges that the DNA expert Jeannelyn Adona’s opinion
testimony that a lack of DNA evidence does not mean that the suspects in this case
did not possess the subject firearms bolstered the state’s improper comments. Id.
Petitioner raised this claim as ground ten of his Rule 3.850 motion. Resp. Ex.
C1 at 155-57. The trial court summarily denied the claim as follows:
Tenth, Defendant argues counsel should have
objected/moved for a mistrial when the State commented
on facts not in evidence. Similarly, Defendant avers
counsel should have objected/moved for a mistrial when
State witness Ms. Jeannelyn Adona’s opinion “bolstered”
the State’s improper commentary on facts not in evidence,
which resulted in a discovery violation. Defendant argues
the cumulative effect of counsel’s errors in this argument
and eleven of his other arguments amounted to harmful
error that deprived him of a fair trial.
As to Defendant’s first allegation that the State
argued facts [not] in evidence, this Court finds this
allegation to be without merit. Pursuant to prevailing
Florida case law, prosecutors are permitted to draw
logical inferences from the evidence presented. The
prosecutor in the instant case, with the instant argument
at issue, argued within said parameters. (Ex. F at 42126.) This Court finds that, placed in context, the
prosecutor properly summarized the evidence provided
by Ms. Adona, and offered a logical conclusion based on
the evidence. (Ex. F at 421-26.) Therefore, had counsel
objected to this argument, such an objection would have
been without merit and denied.
As to Defendant’s latter argument regarding Ms.
Adona’s testimony, this Court also finds this argument
fails. The State disclosed Ms. Adona as a State witness
through its First Supplemental Discovery Exhibit, filed
May 13, 2011. (Ex. H.) As such, this Court finds, the State
did not commit a discovery violation.
As for Defendant’s argument that Ms. Adona
improperly bolstered the State’s comments, this Court
29

finds Ms. Adona properly offered her opinion as an expert
DNA [analyst]. At the time of her trial testimony, Ms.
Adona had qualified to testify about a certain type of
DNA test, STR DNA testing, approximately seven times
in Florida courts. (Ex. F at 359-61.) Ms. Adona conducted
STR DNA testing in Defendant’s case, specifically of a
handgun and a handgun magazine found at the crime
scene, both of which she swabbed for DNA. (Ex. F at 36164.) Ms. Adona received complete DNA profiles from
Defendant and his two co-defendants, which she
compared to her analysis of the handgun swabs and
magazine swabs. (Ex. F at 364.) She testified she was
able to exclude the defendants as being contributors to
the DNA swab obtained from the handgun. (Ex. F at 365.)
However, Ms. Adona testified, this does not mean
Defendant or the other co-defendants did not handle or
touch the handgun. (Ex. F at 366.) Specifically, Ms.
Adona explained that a person may touch an item
without leaving DNA on it. (Ex. F at 366.) As such, the
fact that Ms. Adona’s opinion supported the State’s
argument does not make her opinion improper. Therefore,
had counsel objected to the State’s argument summarizing
Ms. Adona’s testimony, such an objection would have been
non-meritorious and denied. Ground Ten is denied.
Resp. Ex. C1 at 266-67. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. C4. To the extent that the First DCA affirmed
the trial court’s denial on the merits,14 the Court will address the claim in accordance
with the deferential standard for federal court review of state court adjudications.
Evidence supported the state’s position that the victim’s firearm was moved
during the burglary, and vicarious possession through his co-defendants is sufficient
to sustain Petitioner’s conviction for armed burglary. As such, upon thorough review

In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumes that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
14

30

of the record and the applicable law, the Court concludes that the state court’s decision
is neither contrary to nor an unreasonable application of Strickland, and is not based
on an unreasonable determination of the facts in light of the evidence presented to the
state court. See 28 U.S.C. § 2254(d). Ground Ten is due to be denied.
Remaining Grounds for Relief
Ground Six
Petitioner alleges that trial counsel was ineffective for failing to object/move for
a mistrial after the victim, George Meyers, gave expert opinion testimony despite the
state failing to list the victim as an expert. Doc. 1 at 13. He further argues that counsel
should have objected when the state improperly alluded to the victim’s improper
opinion testimony during jury selection.
Petitioner raised this claim as ground six of his Rule 3.850 motion. Resp. Ex.
C1 at 146-48. The trial court denied the claim in pertinent part:
Sixth, Defendant argues counsel was ineffective for
failing to object/move for a mistrial when a State witness,
Mr. George Meyers, improperly gave his opinion.
Specifically, Defendant argues Mr. Meyers’s testimony
describing what tool caused the damage to his home after
it was burglarized, i.e., a [crow] bar, constituted improper
expert testimony. (Ex. F at 267.) Defendant contends the
State never listed Mr. Meyers as an expert, but only as a
Category A witness, which amounted to a discovery
violation, and counsel should have objected.
The Florida Evidence Code provides that:
If a witness is not testifying as an expert, the
witness’s testimony about what he or she
perceived may be in the form of inference
and opinion when:

31

(1)
The witness cannot readily, and
with equal accuracy and adequacy,
communicate what he or she has perceived
to the trier of fact without testifying in
terms of inferences or opinions and the
witness’s use of inferences or opinions will
not mislead the trier of fact to the
prejudice of the objecting party; and
(2)
The opinions and inferences do not
require a special knowledge, skill,
experience, or training.
§ 90.701, Fla. Stat. (2010). See Alvarez v. State, 147 So.
3d 537, 542 (Fla. 4th DCA 2014) (citation omitted)
(holding “[a]cceptable lay opinion testimony typically
involves matters such as distance, time, size, weight,
form and identity” . . . “Opinion testimony of a lay
witness is only permitted if it is based on what the
witness has personally perceived”); see also Wade v.
State, 156 So. 3d 1004, 1023-24 (Fla. 2014) (detective’s
identification of duct tape, after detective observed it, not
improper opinion testimony because “[t]he observation . .
. is within the knowledge of an average person”).
Here, this Court notes the State, in its Discovery
Exhibit and Demand for Reciprocal Discovery filed February
16, 2011, listed George Henry Meyers as a Category A
witness. (Ex. I.) However, pursuant to the above authority,
the State was not required to list Mr. Meyers as an expert
witness. The context in which Mr. Meyers testified shows
he gave a lay opinion as to the damage he personally
perceived to the sliding door at his home; Mr. Meyers’s
testimony was based on his personal observations. (Ex. F
at 262-68.) His opinion did not require a special
knowledge, skill, experience, or training. Because Mr.
Meyers did not offer expert opinion testimony, had
counsel made an objection on that basis, the objection
would have lacked merit and been denied. Because
Defendant has failed to establish counsel rendered
deficient performance, Ground Six is denied.
Resp. Ex. C1 at 268-69. The First DCA per curiam affirmed the trial court’s denial

32

without a written opinion. Resp. Ex. C4.
To the extent that the First DCA affirmed the trial court’s denial on the
merits,15 the Court will address the claim in accordance with the deferential standard
for federal court review of state court adjudications. Here, Petitioner challenges the
victim’s testimony about the damage to his sliding door. See Resp. Ex. B3 at 267. He
explained that the door had been pried with considerable force and the track was bent
down. Id. Such testimony did not amount to an expert opinion. Likewise, the state
properly explained during jury selection that a burglary occurs if an individual breaks
into a dwelling with an intent to commit a crime even if no items are stolen. Id. at 182.
Nevertheless, in this case, Petitioner and his co-defendants did steal personal items
from the victim. Thus, upon thorough review of the record and the applicable law, the
Court concludes that the state court’s decision to deny Petitioner’s claims is neither
contrary to nor an unreasonable application of Strickland, and it is not based on an
unreasonable determination of the facts in light of the evidence presented to the state
court. See 28 U.S.C. § 2254(d). Ground Six is denied.
Ground Eight
Petitioner asserts that trial counsel was ineffective for failing to object/move for
a mistrial after Officer Myers gave expert opinion testimony regarding the physical
appearance of the victim’s home and the location of the firearm. Doc. 1 at 17. According
to Petitioner, the state failed to list Officer Myers as an expert witness, resulting in a

In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumes that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
15

33

discovery violation.
Petitioner raised this claim as ground eight of his Rule 3.850 motion. Resp. Ex.
C1 at 150-52. The trial court denied the claim as follows:
Eighth, Defendant contends counsel was ineffective
for failing to object/move for a mistrial when Officer Brian
Myers offered his opinion that, when he walked through
the crime scene, he observed a firearm that appeared to
have been dropped or misplaced. Defendant also argues
Officer Myers improperly provided an expert opinion that
no DNA or fingerprint evidence was obtained in the
instant case. Defendant argues because the State did not
list Officer Myers as an expert, but as a Category A
witness, the State committed a discovery violation.
Defendant also avers counsel should have objected when
Officer Myers offered this opinion because he did not offer
such an opinion during his deposition.
Here, this Court notes the State, in its Discovery
Exhibit and Demand for Reciprocal Discovery filed
February 16, 2011, listed B.A. Myers, Jacksonville
Sheriff’s Office, as a Category A witness. (Ex. I.)
However, as demonstrated from the face of the record and
pursuant to the above case law denying Ground Six,
Ground Eight is similarly denied. (Ex. F at 310-12.)
Officer Myers testified as a lay witness about his personal
observation of the firearm, not as an expert. Indeed, his
opinion did not require a special knowledge, skill,
experience, or training. Despite Defendant’s contentions,
Officer Myers did not testify as an expert about DNA or
fingerprint evidence found at the crime scene. (Ex. F at
309-22.)
As to Defendant’s argument alleging counsel
should have objected when Officer Myers testified about
his observation of the firearm, in that the Officer did not
offer this testimony during his deposition, Defendant
cannot show he suffered prejudice in this respect. The
record shows Officer Myers also testified about a
different, second firearm he observed at the crime scene.
(Ex. F at 313-14.) Therefore, because the jurors heard
evidence about another firearm, sufficient to establish
34

the crime of Armed Burglary, this Court finds the outcome
of Defendant’s trial would not have been different had
counsel objected as suggested by Defendant. Because
Defendant cannot fulfill his Strickland burdens, Ground
Eight is denied in its entirety.
Resp. Ex. C1 at 269-70. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. C4.
To the extent that the First DCA affirmed the trial court’s denial on the
merits,16 the Court will address the claim in accordance with the deferential standard
for federal court review of state court adjudications. Officer Myers’ testimony that the
victim’s home looked ransacked and there was a firearm that appeared to be dropped
or misplaced in the victim’s home was merely his personal observation of the home.
Resp. Ex. B3 at 312. Nevertheless, even assuming this testimony was improper, the
victim also testified that his firearm had been moved and thrown on the floor. As such,
if Officer Myers’ testimony had been omitted, the jury would have still been presented
with evidence that Petitioner and/or the co-defendants were in possession of the
victim’s firearm during the burglary. Further, Officer Myers also testified that he
observed a second firearm in the victim’s backyard. Id. at 313. Petitioner cannot show
that but for this challenged testimony, the outcome of the trial would have been
different.
Upon thorough review of the record and the applicable law, the Court concludes
that the state court’s decision to deny Petitioner’s claims is neither contrary to nor an

In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumes that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
16

35

unreasonable application of Strickland, and it is not based on an unreasonable
determination of the facts in light of the evidence presented to the state court. See 28
U.S.C. § 2254(d). Ground Eight is denied.
Ground Nine
Petitioner argues that trial counsel was ineffective for failing to depose
Officer Ray prior to trial and failing to move for a mistrial when Officer Ray
testified without being previously deposed. Doc. 1 at 19. According to Petitioner,
the state’s presentation of Officer Ray’s testimony was a discovery violation.
Petitioner raised this issue as ground nine of his Rule 3.850 motion. Resp.
Ex. C1 at 153-54. The trial court denied this claim, finding in relevant part:
In his ninth ground for relief, Defendant alleges
counsel failed to depose Officer C.C. Ray prior to trial.
Thus, Defendant argues, counsel should have
objected/moved for a new trial when the State committed
a discovery violation by presenting Officer Ray as a
witness during trial. Defendant contends this failure by
counsel, coupled with counsel’s actions in Grounds Three
and Four, demonstrate harmful error occurred, which
deprived him of his due process rights.
The record shows the State, in its Discovery Exhibit
and Demand for Reciprocal Discovery filed February 16,
2011, listed C.C. Ray, Jacksonville Sheriff’s Office, as a
Category A witness. (Ex. I.) Because the State properly
placed counsel on notice that Officer Ray would
potentially testify as a witness during trial, the State did
not commit a discovery violation. Therefore, had counsel
objected when Officer Ray testified, on grounds of a
discovery violation, such an objection would have been
unfounded, meritless, and been denied.
To the extent Defendant argues counsel failed to
depose Officer Ray prior to trial, this Court finds
Defendant’s argument is refuted by the record. On June
36

28, 2011, counsel filed a Notice of Taking Deposition of
Officer C.C. Ray. (Ex. J.) On June 29, 2011, counsel filed
a Return of Service for Officer Ray’s Subpoena for
Deposition. (Ex. K.) The Clerk’s Online Docket contains
no indication that counsel failed to follow through with
his notice of deposing Officer Ray. (Ex. L.)
Assuming arguendo counsel did not depose Officer
Ray, this Court finds Defendant has failed to establish he
suffered prejudice in this respect. Counsel conducted a
meaningful cross-examination of Officer Ray during
trial. (Ex. F at 322, 331-33.) Defendant cannot
demonstrate he suffered prejudice in this respect, such
that the outcome of his trial would have been different
had counsel deposed Officer Ray. Accordingly, Ground
Nine is denied.
Resp. Ex. C1 at 270-71. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. C4.
To the extent that the First DCA affirmed the trial court’s denial on the
merits,17 the Court will address the claim in accordance with the deferential standard
for federal court review of state court adjudications. As the trial court pointed out, trial
counsel effectively cross-examined Officer Ray regarding his limited interaction with
Petitioner at the time of the arrest. Resp. Ex. B3 at 331-33. Officer Ray’s testimony
was primarily introduced to prove the charge of resisting arrest, and Petitioner’s own
trial testimony that he never ran from Officer Ray sufficiently challenged such.
Therefore, upon thorough review of the record and the applicable law, the Court
concludes that the state court’s decision to deny Petitioner’s claims is neither contrary

In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumed that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
17

37

to nor an unreasonable application of Strickland, and it is not based on an
unreasonable determination of the facts in light of the evidence presented to the state
court. See 28 U.S.C. § 2254(d). Ground Nine is denied.
Ground Twelve
Petitioner contends that trial counsel was ineffective for failing to object/move
for a mistrial when the state knowingly presented false testimony from Shoats. Doc. 1
at 24-25. In support of this argument, Petitioner claims that Shoats testified at trial
that during the burglary, he stayed outside as a lookout while Petitioner and codefendant Ernest Smith went into the victim’s home. Petitioner asserts, however, that
Ann Smith testified at trial that she saw all three of the suspects enter the victim’s
home.
Petitioner raised this claim as ground twelve of his Rule 3.850 motion. Resp.
Ex. C1 at 160-62. The trial court denied the claim, finding in pertinent part:
In his twelfth argument, Defendant contends the State
knowingly used the false, perjured testimony of codefendant Donte Shoats. Defendant argues Mr. Shoats’s
testimony conflicted with Ms. Ann Smith’s testimony,
and therefore counsel should have objected because the
State knowingly presented false, perjured testimony
through Mr. Shoats. This Court construes this claim as
alleging a Giglio[18] violation.
To establish a Giglio violation, a defendant must
show: (1) the testimony given was false; (2) the
prosecutor knew the testimony was false; and (3) the
statement was material. Guzman v. State, 868 So. 2d
498, 505 (Fla. 2003) (citing Ventura v. State, 794 So.
2d 553, 564-65 (Fla. 2001)). See Walton v. State, 3 So.
3d 1000, 1001 (Fla. 2009) (affirming trial court’s denial of
18

Giglio v. United States, 405 U.S. 150 (1972).
38

Giglio claim where “there is no reasonable possibility
that it could have affected the jury’s verdict or
recommendation of a death sentence”).
This Court finds Defendant has failed to fulfill the
three requirements of establishing a Giglio violation. He
has failed to establish the first prong, that the
testimony given was false. The fact that Mr. Shoats’s
testimony conflicted with that of an eyewitness to the
burglary, Ms. Ann Smith, does not render Mr. Shoats’s
testimony false and perjured. (Ex. F at 234-62, 286309.) Indeed, Defendant has presented a purely
speculative claim that because Mr. Shoats’s testimony
contradicted with that of Ms. Smith, Mr. Shoats’s
testimony was perjured and the State knowingly
presented such testimony. Postconviction relief is not
warranted based on “mere speculation.” Crain v. State,
78 So. 3d 1025, 1038 (Fla. 2011). See Davis v. State,
736 So. 2d 1156, 1159 (Fla. 1999) (holding defendant
cannot prevail in postconviction context on basis of
“tenuous speculation”); Brown v. State, 827 So. 2d 1054,
1056 (Fla. 2d DCA 2002) (stating, in postconviction text,
defendant may not prevail on “speculative, attenuated,
and too fanciful” reasoning). Ground Twelve is denied.
Resp. Ex. C1 at 271-72. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. C4.
To the extent that the First DCA affirmed the trial court’s denial on the
merits,19 the Court will address the claim in accordance with the deferential standard
for federal court review of state court adjudications. Shoats’ testimony does not
amount to a Giglio violation. Further, trial counsel adequately cross-examined Ann
Smith and Shoats about whether Shoats entered the house and highlighted the

In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumed that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
19

39

discrepancies in their testimony. Resp. Ex. B3 at 261, 303-05. Upon thorough review
of the record and the applicable law, the Court concludes that the state court’s decision
to deny Petitioner’s claims is neither contrary to nor an unreasonable application of
Strickland, and it is not based on an unreasonable determination of the facts in light
of the evidence presented to the state court. See 28 U.S.C. § 2254(d). Accordingly,
Ground Twelve is denied.
Ground Thirteen
Petitioner claims that trial counsel was ineffective for failing to object/move
to suppress/move for a mistrial when Officer Myers, during his trial testimony,
misidentified the clothes that Petitioner was allegedly wearing at the time of the
crimes. Doc. 1 at 26-27.
Petitioner raised this claim as ground thirteen of his Rule 3.850 motion.
Resp. Ex. C1 at 162-63. The trial court denied that claim as follows:
In his thirteenth ground for relief, Defendant
alleges counsel should have objected/moved to
suppress/moved for a mistrial when, on pages 315 and
316 of the trial transcripts, Officer Brian Myers
misidentified the clothes the State alleged Defendant
wore during the burglary. Specifically, Defendant
contends “[i]t is therefore clear Officer Myers’s
identification was material and therefore materially
contribute to the jury’s verdict.” As such, Defendant
argues, counsel was ineffective.
This claim is refuted by the record. During Mr.
Shoa[ts’s] testimony, he identified Defendant in the
video surveillance tape. (Ex. F at 289-90.) During
Officer Myers’s testimony, the prosecutor initially
showed co-defendant Ernest Smith’s clothing to
Officer Myers by mistake. (Ex. F at 315-16.)
Immediately following this mistake, however, the
40

prosecutor corrected his mistake and provided Officer
Myers the correct clothing belonging to Defendant. (Ex.
F at 316-17.) Therefore, had counsel objected and
moved to suppress said evidence or moved for a
mistrial, on grounds of misidentification, such motions
would have lacked merit and been denied. Because
Defendant has failed to establish counsel was deficient
in this respect, Ground Thirteen is denied.
Resp. Ex. C1 at 272-73. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. C4.
To the extent that the First DCA affirmed the trial court’s denial on the
merits,20 the Court will address the claim in accordance with the deferential standard
for federal court review of state court adjudications. During cross-examination, trial
counsel questioned Officer Myers about his mistake. Resp. Ex. B3 at 318. Officer
Myers confirmed that he immediately labeled and initialed Petitioner’s clothing at the
time of his arrest, so despite his lapse in memory, he ultimately correctly identified
Petitioner’s clothing through his prior documentation. Id. Upon thorough review of the
record and the applicable law, the Court concludes that the state court’s decision to
deny Petitioner’s claims because he had not demonstrated any deficient performance
by his counsel is neither contrary to nor an unreasonable application of Strickland,
and it is not based on an unreasonable determination of the facts in light of the
evidence presented to the state court. See 28 U.S.C. § 2254(d). Ground Thirteen is due
to be denied.

In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumed that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
20

41

Ground Fourteen
Petitioner argues that trial counsel was ineffective for failing to further
question two biased jurors during jury selection. Doc. 1 at 28-29. Petitioner raised this
issue in ground fourteen of his Rule 3.850 motion. Resp. Ex. C1 at 163. The trial court
denied the claim as follows:
Fourteenth, Defendant avers counsel failed to
further inquire of two prospective jurors during voir dire.
Specifically, Defendant identifies the jurors as
prospective juror 22 (on pages 65-66 of the trial
transcripts) and prospective juror 38 (on pages 180-81 of
the trial transcripts), who stated they or a family member
had been victims of burglary. Defendant asserts these
two jurors actually served on his jury and rendered a
verdict against him. Because of counsel’s failure to fully
question jurors 22 and 38, Defendant contends his right
to a fair trial before an impartial jury was violated.
The Florida Supreme Court has enunciated the
burden a defendant holds when raising such a
postconviction claim:
“The
test
for
determining
juror
competency is whether the juror can lay
aside any bias or prejudice and render his
verdict solely upon the evidence presented
and the instructions on the law given to
him by the court.” Lusk v. State, 446 So.
2d 1038, 1041 (Fla. 1984) (citing Singer v.
State, 109 So. 2d 7, 24 (Fla. 1959)). When a
party seeks to strike a potential juror for
cause, the trial court must allow the strike
when “there is basis for any reasonable
doubt” that the juror had “that state of mind
which w[ould] enable him to render an
impartial verdict based solely on the evidence
submitted and the law announced at the
trial.” Singer, 109 So. 2d at 23-24; see also
Ault v. State, 866 So. 2d 674, 683 (Fla. 2003)
(same). Courts have held that ambiguities or
42

uncertainties about a juror’s impartiality
should be resolved in favor of excusing the
juror. See Cottrell v. State, 930 So. 2d 827,
829 (Fla. 4th DCA 2006) (quoting Huber v.
State, 669 So. 2d 1079, 1081 (Fla. 4th DCA
1996) (“This court has held that it is error
not to grant a challenge for cause when there
is a basis for any reasonable doubt as to the
juror’s ability to render an impartial verdict,
and that close cases should be resolved in
favor of excusing the juror rather than
leaving doubt.”)); Smith v. State, 907 So. 2d
582, 585 (Fla. 5th DCA 2005) (same).
Carratelli v. State, 961 So. 2d 312, 318 (Fla. 2007).
This Court finds Defendant has failed to fulfill his
postconviction burdens of establishing juror 22 and juror
38 were “actually biased” against Defendant, such that
Defendant’s conviction should be reversed and he should
be granted postconviction relief. Juror number 22 did
indicate his parents were the victims of a home invasion
robbery. (Ex. F at 65-66, 137.) However, the prosecutor
later questioned juror number 22, specifically asking if he
“[w]ould be able to put that experience and what [he
knew] concerning that case aside and be fair and
impartial in this case.” (Ex. F at 137.) In response, juror
number 22 responded he would be able to be fair and
impartial in hearing Defendant’s case. (Ex. F at 137.)
Later during voir dire, the prosecutor asked the
prospective jurors if there was anybody who had “been a
victim of a burglary that [thought] this isn’t the case for
them.” (Ex. F at 180.) The record indicates no prospective
juror, including jurors 22 and 38, rose his/her hand. (Ex.
F at 180.) Upon further questioning, juror 38 merely
acknowledged his vehicle had been broken into; he did not
state that because of this experience, he would not be fair
and impartial in adjudicating Defendant’s case. (Ex. F at
180-81.) Indeed, all the jurors, including juror 38,
immediately stated they agreed to follow the law. (Ex. F
at 182.) Through their responses to subsequent
questioning, this Court finds both juror 22 and juror 38

43

were rehabilitated, such that they were fair and impartial
arbiters of Defendant’s case.
Moreover, this Court finds Defendant has failed to
fulfill his burden of establishing prejudice under
Strickland. As noted supra, postconviction relief is not
warranted based on “mere speculation.” Crain, 78 So. 3d
at 1038. See Davis, 736 So. 2d at 1159 (holding defendant
cannot prevail in postconviction context on basis of
“tenuous speculation”). Indeed, a defendant may not
prevail on “speculative, attenuated, and too fanciful”
reasoning in seeking to demonstrate prejudice. Brown,
827 So. 2d at 1056. Here, this Court finds Defendant’s
assertions of prejudice are based upon purely speculative
reasoning: Defendant seeks to argue that because the
two jurors were victims of burglary or had family
members who had been, they were automatically biased
against Defendant and would not be fair in hearing his
case. In light of the foregoing and the record before it, this
Court finds Defendant is not entitled to postconviction
relief and Ground Fourteen is denied.
Resp. Ex. C1 at 273-75. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. C4.
To the extent that the First DCA affirmed the trial court’s denial on the
merits,21 the Court will address the claim in accordance with the deferential standard
for federal court review of state court adjudications. Although a juror may make initial
statements during voir dire suggesting potential bias, subsequent responses may
establish that the juror can be impartial, especially when combined with appropriate
court instructions to the venire. See Bell v. United States, 351 F. App’x 357, 359 (11th
Cir. 2009) (holding the petitioner did not show that juror was actually biased, and

In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumes that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
21

44

thus, counsel was not deficient for failing to strike juror). “Assessing jurors during voir
dire also requires an evaluation of demeanor and credibility. Review of counsel’s
performance is highly deferential in any case, but the case for deference is even greater
when counsel is evaluating credibility.” Id. at 360.
Here, despite their experience with similar crimes, juror 22 and juror 38
confirmed that they could put that experience aside and be fair and impartial in
Petitioner’s case. Resp. Ex. B2 at 137, 179-82. Thus, upon thorough review of the
record and the applicable law, the Court concludes that the state court’s decision to
deny Petitioner’s claims is neither contrary to nor an unreasonable application of
Strickland, and it is not based on an unreasonable determination of the facts in light
of the evidence presented to the state court. See 28 U.S.C. § 2254(d). Ground Fourteen
is due to be denied.
Ground Fifteen
Petitioner asserts that trial counsel was ineffective for failing to file a
motion for mistrial because the weight of the evidence did not support a
conviction for armed burglary. Doc. 1 at 30. According to Petitioner, the state
did not present any physical or eyewitness testimony that Petitioner was in
possession of a firearm.
Petitioner raised this claim as ground fifteen of his Rule 3.850 motion.
Resp. Ex. C1 at 165-67. The trial court denied the claim as follows:
Finally, Defendant argues counsel should have
objected or moved for a mistrial by arguing the weight of
the evidence did not support a conviction for Armed
Burglary. Specifically, Defendant takes issue with Ms.
45

Adona’s testimony describing her DNA findings
regarding the firearm at the crime scene. This Court
adopts its reasoning denying Ground Ten, and adopts it
herein. Further, in this argument, this Court finds
Defendant is seeking to challenge the sufficiency of the
evidence presented against him to prove he committed
Armed Burglary, couched in terms of ineffective
assistance of trial counsel. This Court finds such a claim
is procedurally barred because it is not cognizable in the
instant postconviction motion. See Johnson, 985 So. 2d
at 1215; Betts, 792 So. 2d at 590; Jackson, 640 So. 2d at
1174. Accordingly, Ground Fifteen is denied.
Resp. Ex. C1 at 275-76. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. C4.
To the extent that the First DCA affirmed the trial court’s denial on the
merits,22 the Court will address the claim in accordance with the deferential standard
for federal court review of state court adjudications. Here, the prosecutor argued that
Petitioner committed an armed burglary because he and/or a co-defendant entered the
home with a firearm or armed themselves while in the home. Resp. Ex. B4 at 423.
Evidence supported the state’s position that the victim’s firearm was moved during
the burglary and a second firearm was found in the victim’s backyard. As such, upon
thorough review of the record and the applicable law, the Court concludes that the
state court’s decision is neither contrary to nor an unreasonable application of
Strickland, and is not based on an unreasonable determination of the facts in light of
the evidence presented to the state court. See 28 U.S.C. § 2254(d). Ground Fifteen is

In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumed that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
22

46

due to be denied.
Ground Sixteen
Petitioner alleges that the trial court erred in sentencing Petitioner for armed
burglary because the jury did not make a special finding that Petitioner actually
possessed a firearm. Doc. 1 at 32. Petitioner appears to argue that the jury was
required to make such a finding pursuant to section 775.087(2), Florida Statutes,
before Petitioner could be sentenced for armed burglary. Id. As such, Petitioner argues
that this sentencing error is in violation of the principles outlined in Apprendi v. New
Jersey, 530 U.S. 466 (2000).
Respondents initially assert that Petitioner failed to exhaust this claim because
Petitioner failed to object to the jury instructions and verdict form during trial. Resp.
at 50-54. The Court disagrees. Although Respondents correctly note that Petitioner
did not object to the verdict form and instructions, the record reveals that Petitioner,
through appellate counsel, raised this issue in a motion to correct sentencing error
under Florida Rule of Criminal Procedure 3.800(b)(2) prior to filing his initial brief on
direct appeal. Resp. Ex. B5 at 4. The trial court denied the claim as follows:
In the instant Motion Defendant alleges that
because he was convicted under a principal theory of
prosecution, the trial court erred in sentencing him to
twenty-five years incarceration on the basis of being
“armed” during the course of the burglary. Specifically,
Defendant argues that given the principal theory of
prosecution, the jury’s finding that he was “armed with
a firearm during the commission of the offense,” does
not reflect a finding that he actually or personally
possessed a firearm during the commission of the
offense. Thus, according to Defendant, his conviction
should have been treated as the second-degree felony
47

of unarmed burglary to a dwelling for sentencing
purposes. As such, Defendant also argues his scoresheet
was incorrect in that his maximum sentence should
have been fifteen years for unarmed burglary of a
dwelling, and his maximum sentence was erroneously
increased in violation of Apprendi v. New Jersey, 530
U.S. 466 (2000).
In support of his position, Defendant presents a
two-fold argument. First, he states that actual possession
of a firearm is not required to sustain a conviction for
armed burglary or a conviction for armed robbery (i.e., a
conviction for either offense may be sustained on a
principal theory of prosecution). See State v. Retalic, 902
So. 2d 315, 316 (Fla. 2d DCA 1998) (armed burglary);
Powell v. State, 724 So. 2d 1207, 1207 (Fla. 5th DCA
2005) (armed burglary); Jones v. State, 648 So. 2d 1210,
1211 (Fla. 4th DCA 1995) (armed robbery); Stripling v.
State, 645 So. 2d 589, 590 (Fla. 3d DCA 1994) (armed
robbery).
Second,
he
compares
the
firearm
reclassification statute, section 775.087(1) - the
application of which requires proof of actual or personal
possession of a firearm - to the robbery “reclassification”
statute, section 8l2.l3(2)(a), and argues that the statutory
construction and reasoning in the case law is similar
enough to conclude that section 8 l 2.13(2)(a) also requires
proof of actual or personal possession of the firearm.
Compare State v. Rodriguez, 602 So. 2d 1270 (Fla. 1992 ),
Robins v. State, 602 So. 2d 1 272 (Fla. 1992), Willingham v.
State, 541 So. 2d 1240 (Fla. 2d DCA 1989), Ngai v. State,
556 So. 2d 1130 (Fla. 3d DCA 989), and Postell v. State,
383 So. 2d 1159 , 1162 (Fla. 3d DCA 1980), with State v.
Burris, 875 So. 2d 408 (Fla. 2004). Defendant then
concludes that because an armed robbery conviction can
be sustained on a principal theory but only “reclassified”
on the basis of being “armed” during the commission of
the robbery upon a finding of actual possession of a
firearm, the same must be true when simple burglary is
“reclassified” to armed burglary under section
810.02(2)(b).
Defendant’s argument fails because his conviction
was not actually reclassified from simple burglary to
armed burglary pursuant to the general enhancement
48

statute, section 775.087(1); rather, the offense with
which Defendant was originally charged and ultimately
convicted was Armed Burglary as provided in section
810.02(2)(b), a first-degree felony offense punishable by
life. Defendant was sentenced pursuant only to section
810.02(2)(b), which itself provides for a statutory
maximum sentence of life incarceration. See §
810.02(2)(b), Fla. Stat. (2011). Thus, Defendant’s
conviction for Armed Burglary was not a true
reclassification based on the use of a firearm as
reclassification is understood in section 775.087(1).
Moreover, Defendant does not sufficiently explain
how the same statutory provision can be interpreted one
way for purposes of conviction and a different way for
purposes of sentencing. He acknowledges that it is well
settled that a conviction under section 810.02(2)(b) can
be sustained based on a principal theory. See Retalic, 902
So. 2d at 316; Pow ell, 724 So. 2d at 1207. However, he urges
this Court to adopt the position that, although he was
properly convicted as a principal of Armed Burglary in
violation of section 810.02(2)(6), he was improperly
sentenced under that same statutory provision because, for
sentencing purposes only, section 810.02(2)(b) should be
construed as requiring proof of actual or personal possession
of a firearm. Defendant has presented no precedent, binding
or otherwise, which conclusively states that proof of actual
possession of a firearm is required to sentence a defendant
under section 810.02(2)(b). Instead, he attempts to
analogize the felony reclassification for use of a firearm
under section 775.087(1) with the “reclassification” of
simple robbery to armed robbery under section 812.13(2)(a),
and then extrapolate this comparison to the
“reclassification” of simple burglary to armed burglary
under section 810.02(2)(b). Such analogy is flawed because,
as stated supra, armed burglary is not actually a true
reclassification of simple burglary and because he has not
offered precedential support for the proposition that the
same statutory provision can be interpreted differently for
the purposes of conviction and sentencing. In the absence of
controlling authority, this Court declines to grant
Defendant’s requested relief.

49

Resp. Ex. B5 at 25-28. Petitioner, with the help of appellate counsel, challenged
the trial court’s denial on direct appeal. Resp. Ex. B7 at 11. The state filed an
answer brief arguing that Petitioner failed to preserve this issue and also
asserting that the claim was otherwise without merit. Resp. Ex. B8. In addressing
the merits, the state reiterated the trial court’s denial by arguing that Petitioner
was convicted and sentenced pursuant to section 810.02(2)(b), which does not
require a specific finding of actual possession. Id. at 11. Petitioner filed a reply
brief. Resp. Ex. B9. The First DCA per curiam affirmed Petitioner’s judgment and
convictions without a written opinion. Resp. Ex. B10.
In the event the state appellate court did adjudicate this claim on the merits,
the state court’s decision is entitled to deference. Petitioner’s conviction for armed
burglary on a principal theory was proper because the crime is “not dependent of proof
of . . . actual possession of . . . [a] gun.” State v. Retalic, 902 So. 2d 315, 316 (Fla. 5th
DCA 2005). Likewise, Petitioner’s armed burglary conviction was not subject to
reclassification under section 775.087, because the use of a firearm or weapon was an
essential element of the offense. § 775.087(1), Fla. Stat. (precluding reclassification if
the “use of a weapon or firearm is an essential element” of the offense). Accordingly,
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

50

in light of the evidence presented in the state court proceedings. Ground Sixteen is
due to be denied.
Ground Seventeen
Petitioner alleges that the state committed a “fraud upon the court” when the
prosecutor, during opening statements, erroneously told the jury that Shoats had
already been convicted of the same charges for which Petitioner was on trial. Doc. 1 at
35. According to Petitioner, he recently discovered that Shoats was not adjudicated
guilty of the crimes until after Petitioner’s trial. He alleges that this false
representation to the jury constituted a manifest injustice that violated his due process
rights. He also appears to claim that trial counsel was ineffective for failing to discover
this evidence and present it during trial.
Petitioner admits that he did not raise this claim in state court, and thus,
acknowledges that it is unexhausted and procedurally defaulted. Id. at 35. He,
however, attempts to overcome this procedural bar by claiming that a fundamental
miscarriage of justice will result if this claim is not addressed on the merits. Id.
A petitioner may obtain review of the merits of a procedurally barred claim to
remedy a fundamental miscarriage of justice if he satisfies the actual innocence
“gateway” established in Schlup, 513 U.S. at 298. “The ‘Schlup gateway’ is meant to
prevent a constitutional error at trial from causing a ‘miscarriage of justice’ and ‘the
conviction of one who is actually innocent.’” Kuenzel v. Comm’r, Ala. Dep’t of Corr.,
690 F.3d 1311, 1314 (11th Cir. 2012) (per curiam) (quoting Schlup, 513 U.S. at 324);
see Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (citations omitted)

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(recognizing that the fundamental miscarriage of justice exception is only available in
extraordinary cases upon a showing of “actual innocence” rather than mere “legal
innocence”). “To meet this standard, a petitioner must ‘show that it is more likely than
not that no reasonable juror would have convicted him’ of the underlying offense.”
Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v. Delo,
513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be credible,’ a claim of actual innocence
must be based on reliable evidence not presented at trial.” Calderon v. Thompson, 523
U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the rarity of such
evidence, in most cases, allegations of actual innocence are ultimately summarily
rejected. Schlup, 513 U.S. at 324.
Petitioner is correct that, as previously mentioned by the Court, Shoats did not
enter his pleas of guilty to the offenses until after Petitioner’s trial. However, while
the prosecutor misstated this fact during his opening arguments, the Court cannot
find that this error alone constitutes “new reliable evidence” that demonstrates no
reasonable juror would have found Petitioner guilty. Indeed, when Shoats testified
during Petitioner’s trial, he explained that he had been charged with the same offenses
as those for which Petitioner was on trial (Resp. Ex. B3 at 287), and he did not state
that he had been convicted of the offenses at that time (id. at 236-309). Regardless,
Shoats admitted to committing the armed burglary and explained that Petitioner also
participated in the crime. Id. The Court finds that this is not an “extraordinary” case
under the Schlup standard. As such, this claim is unexhausted and procedurally
defaulted. Petitioner has failed to show either cause and prejudice from the default, or

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that a fundamental miscarriage of justice will result if the claim is not addressed on
the merits. Therefore, he is not entitled to federal review of this claim. Ground
Seventeen is due to be denied.
Accordingly, it is
ORDERED AND ADJUDGED:
1.

The Petition (Doc. 1) is DENIED and this case is DISMISSED WITH

PREJUDICE.
2.

The Clerk shall enter judgment dismissing this case with prejudice,

terminate any pending motions, and close the file.
3.

If Petitioner appeals this denial, 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.23

The 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, 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 n.4 (1983)).
Here, after consideration of the record as a whole, the Court will deny a certificate of
appealability.
23

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DONE AND ORDERED at Jacksonville, Florida, this 15th day of May, 2019.

TIMOTHY J. CORRIGAN
United States District Judge

Jax-7
C:

Jonathan Christopher Bell, #J35129
Michael Brent McDermott, Esq.

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