Kaiser v. Secretary, Florida Department of Corrections et al
ORDER denying the Petition and dismissing case with prejudice; with directions to the Clerk. Signed by Judge Timothy J. Corrigan on 9/10/2020. (JND)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
AARON L. KAISER,
Case No. 3:17-cv-387-J-32PDB
CORRECTIONS, et al.,
Petitioner, Aaron L. Kaiser, an inmate of the Florida penal system,
initiated this action by filing a pro se Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. See Doc. 1. He challenges a state court (Duval
County, Florida) judgment of conviction for manslaughter, for which he is
currently serving a fifteen-year term of incarceration. Respondents have
responded. See Doc. 19; Response.1 Petitioner declined to file a reply and
instead relies on the allegations as set forth in his Petition. See Doc. 20. This
case is ripe for review.
Attached to the Response are numerous exhibits. See Doc. 19-1 through
Doc. 19-8. The Court cites to the exhibits as “Resp. Ex.”
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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). “‘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
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argued to the state supreme court or obvious in the
record it reviewed.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
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
state-court 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
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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
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
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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).
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, supra, at 747–
748, 111 S. Ct. 2546; Sykes, supra, at 84–85, 97 S. Ct.
2497. A state court’s invocation of a procedural rule to
Coleman v. Thompson, 501 U.S. 722 (1991).
Wainwright v. Sykes, 433 U.S. 72 (1977).
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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 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
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). 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).
Murray v. Carrier, 477 U.S. 478 (1986).
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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.
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,
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allegations of actual innocence are ultimately summarily rejected. Schlup, 513
U.S. at 324.
C. Ineffective Assistance of Trial 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 Amendment violation, “a court need not address the
performance prong if the petitioner cannot meet the prejudice prong, and viceversa.” 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
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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).
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Petitioner argues that the trial court’s erroneous jury instruction on
justifiable use of deadly force amounted to fundamental error.5 Doc. 1 at 5. In
support of that argument, Petitioner contends the trial court’s use of Florida
Standard Jury Instruction 3.6(f) provided conflicting directions with respect to
Petitioner’s duty to retreat. Id.; see also Resp. Ex. E.
Petitioner, with the help of appellate counsel, raised this issue as his sole
claim on direct appeal. Resp. Ex. C. The state filed an answer brief arguing the
First District Court of Appeal should not consider this claim because it was not
preserved for appellate review, and even if the claim were properly preserved,
it is nevertheless without merit. Resp. Ex. D. The First DCA per curiam
affirmed Petitioner’s judgment and sentence without a written opinion. Resp.
Respondents contend that Petitioner failed to fairly present the federal
nature of this claim in the state court, and as such, his claim is unexhausted
and procedurally defaulted. Resp. at 19-21. They also assert that this claim is
not cognizable on federal habeas review.
Petitioner also briefly lists five ineffective assistance of trial counsel
claims. Doc. 1 at 5. The Court addresses those claims in Ground Two infra.
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Initially, to the extent Petitioner urges that the state court erred under
Florida law when it instructed the jury on the standard instruction for
justifiable use of deadly force, this assertion is not cognizable on federal habeas
review. The Eleventh Circuit has explained:
Federal habeas relief is unavailable “for errors of state
law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991)
(quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). A
jury instruction that “was allegedly incorrect under
state law is not a basis for habeas relief,” id. at 71-72,
because federal habeas review “is limited to deciding
whether a conviction violated the Constitution, laws, or
treaties of the United States.” Id. at 68. Unlike 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.’” Id.
at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147
Jamerson v. Sec’y for Dep’t of Corr., 410 F.3d 682, 688 (11th Cir. 2005) (quoting
Estelle, 502 U.S. at 72).
Further, to the extent Ground One can be liberally construed as a federal
constitutional challenge, this claim is unexhausted because Petitioner did not
present the federal nature of this claim to the state appellate court. When
briefing this issue, Petitioner did not state or even suggest that it was a federal
claim about due process or any other federal constitutional guarantee. Resp.
Ex. C. Instead, Petitioner argued, in terms of state law only, that the trial
court’s instructions on justifiable use of deadly force were analogous to those
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the First DCA found to be erroneous in Floyd v. State, 151 So. 3d 452 (Fla. 1st
DCA 2014). Resp. Ex. C; see also Resp. Ex. E. According to Petitioner, the use
of Standard Instruction 3.6(f) inconsistently informed the jury “that [Petitioner]
did, and did not have, a duty to retreat”; and instead, “the jury should have been
instructed that [he] did not have a duty to retreat if the use of deadly force was
reasonably necessary to prevent death or great bodily harm to himself.” Resp.
Ex. C (citing Ch. 2005-27, Laws of Florida; McWhorter v. State, 971 So. 2d 154
(Fla. 4th DCA 2007); Richards v. State, 39 So. 3d 431 (Fla. 2d DCA 2010);
Williams v. State, 982 So. 2d 1190 (Fla. 4th DCA 2008)). Petitioner failed to
articulate and fairly present a federal constitutional claim in state court. As
such, Ground One is unexhausted and procedurally defaulted, and Petitioner
has failed to show cause for or prejudice from this procedural bar. He also has
failed to demonstrate a fundamental miscarriage of justice.
In any event, assuming the federal nature of this claim was exhausted, it
is still without merit. “Unlike 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,
410 F.3d at 688 (citation omitted). “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 jury was properly guided in its deliberations,’ and reversal may
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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)). Petitioner’ sole defense at trial was that the killing
of Neville Barrett was excusable and was a justifiable use of deadly force. As
such, upon defense counsel’s request, the trial court instructed the jury using
the standard instructions for justifiable use of force. Resp. Ex. B at 740-41, 834.
While the First DCA found Standard Jury Instruction 3.6(f) conflicting and thus
improper, the Florida Supreme Court quashed the First DCA’s decision in
Floyd, finding Standard Jury Instruction 3.6(f) accurately and correctly
explains the “use of force by aggressor” exception to the justifiable use of deadly
force defense. State v. Floyd, 186 So.3d 1013 (Fla. 2016). As such, the
instruction was proper, and the Court cannot find that it so infected the entire
trial that Petitioner’s resulting conviction amounted to a due process violation.
Ground One is due to be denied.
B. Ground Two
Petitioner raises claims of ineffective assistance of trial counsel. Doc. 1 at
5, 7. For ease of reading, the Court groups the claims into three subsections.
i. Prosecutorial Misconduct
First, Petitioner argues his trial attorney was ineffective for failing to
object to the prosecutor’s closing arguments regarding facts not in evidence; his
personal opinion as to his witnesses’ testimony; and shifting the burden of proof.
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Doc. 1 at 5, 7; see also Resp. Ex. L at 1-29.6 According to Petitioner, he was
prejudiced by trial counsel’s failure to object because it resulted in these errors
not being preserved for appellate review. Id.
Petitioner raised these claims in grounds one and two of his Florida Rule
of Criminal Procedure 3.850 motion for postconviction relief. Resp. Ex. L. The
state court denied the claims, finding in pertinent part:
In claims one and two, Defendant contends that
counsel was ineffective for failing to object to the State’s
misconduct during closing arguments. Defendant
argues that, but for counsel’s failure to object to the
alleged misconduct, the issues would have been
preserved for appeal, and there is a reasonable
probability that the outcome would have been different.
Claims of prosecutorial misconduct could and
should have been raised on direct appeal and are
procedurally barred from consideration in a
postconviction motion. Spencer v. State, 842 So. 2d 52,
60 (Fla. 2003). Moreover, to the extent Defendant
alleges prejudice by losing his right to appellate review,
“failure to preserve issues for appeal does not show the
necessary prejudice under Strickland.” Strobridge v.
State, 1 So. 3d 1240, 1242 (Fla. 4th DCA 2009).
Prejudice must be assessed “based upon its effect on the
results of the trial, not on its ·effect on appeal.” Id.
(citing Carratelli v. State, 961 So. 2d 312, 323 (Fla.
2007)). Defendant may not seek to avoid these
procedural bars by couching his allegations in terms of
ineffective assistance of counsel. See Arbelaez v. State,
775 So. 2d 909 (Fla. 2000) (“Arbelaez may not relitigate
procedurally barred claims by couching them in terms
The claims are articulated in grounds one and two of Petitioner’s Rule
3.850 motion. Resp. Ex. L.
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of ineffective assistance of counsel.”) Thus, claims one
and two are denied.
Resp. Ex. L at 47. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. O. Applying deference to the First DCA’s
adjudication, the Court finds that the state court’s denial of Petitioner’s
ineffective assistance of counsel claims, is not contrary to, nor an unreasonable
application of Strickland. See Carratelli v. Stepp, 382 F. App’x 829, 832 (11th
Cir. 2010) (“[T]here is no clearly established federal law by the Supreme Court
specifically addressing whether the federal court should examine the prejudice
on appeal rather than at trial in a case [where the alleged prejudice pertains to
the appeal rather than at trial].”). Nor did the state court unreasonably
determine the facts in light of the evidence presented to the court.
Nevertheless, even if the First DCA’s adjudication is not entitled to
deference, this claim is still without merit. 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
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by doing so can it be determined whether the prosecutor’s conduct affected the
fairness of the trial.”).
First, Petitioner argues trial counsel should have objected when the
prosecutor, speaking about eyewitness Mercedes Wright’s testimony, stated
during closing arguments, “You saw a picture where you could see from her
doorstep straight out to the street, and she goes up to the end of the streetlight
out there.” Resp. Ex. B at 762. Petitioner contends these were facts not in
evidence as Wright never testified she went all the way outside to the
At trial, Wright testified that around 8:00 p.m. on the night of the
incident, she was sitting in her apartment when she heard an argument
transpiring outside. Resp. Ex. B at 333. While she testified, the prosecutor
showed her pictures of her apartment complex, and Wright explained she
opened the front door and stood in the open doorway to get a better view of who
was arguing. Id. at 335. She stated that from her doorway, she could clearly see
Petitioner and another neighbor, Neville Barrett, arguing outside. Id. at 33638. Wright testified Petitioner and Barrett were not physically fighting or
touching one another as they argued. Id. at 339. She stated that Barrett started
to walk away but then turned back around once Petitioner continued yelling.
Id. Wright said that Barrett’s girlfriend, Sabra Vaughan, then attempted to
stop the altercation, but when she was unsuccessful, Vaughan went back inside.
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According to Wright, she then saw Petitioner pull out a gun and shoot Barrett
three times. Id. at 340. After being shot, Barrett began walking toward Wright
and asked her to call 911 while Petitioner turned around and walked home. Id.
at 343-45. Wright testified she was outside for the entire incident. Id. at 341.
While there was no evidence that Wright walked all the way to the streetlight
once she walked outside, the record did support the prosecutor’s argument that
she had a clear view of the shooting because she was standing in the open
doorway of her apartment. Based on this testimony, the Court finds the
prosecutor’s closing statements were a proper summary of Wright’s testimony,
and any isolated misstatement did not render Petitioner’s trial unfair.
Next, Petitioner argues that trial counsel should have objected when the
prosecutor improperly stated during closing that Petitioner testified he and the
victim “fell” when Petitioner never made such a statement. Resp. Ex. L at 11;
Resp. Ex. B at 780. However, at trial Petitioner testified Barrett “rushed” him
and “[o]nce [Petitioner] fell back, just a little bit, [Petitioner] discharged [his]
weapon.” Resp. Ex. B at 669. The prosecutor’s closing merely summarized
Petitioner’s trial testimony; and thus, counsel was not deficient for failing to
Petitioner also argues trial counsel should have objected to the
prosecutor’s closing statement that Wright “has no reason to take the stand and
make stuff up willy-nilly.” Resp. Ex. L at 13. According to Petitioner, this
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argument improperly bolstered Wright’s credibility. Improper bolstering occurs
when a prosecutor makes personal assurances about a state witness’ credibility
or implies that facts not before the jury support the state witness’ testimony.
See United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991). Improper
bolstering violates due process if its admission renders the trial fundamentally
unfair. Snowden v. Singletary, 135 F.3d 732, 737 (11th Cir. 1998). “A denial of
fundamental fairness occurs whenever the improper evidence ‘is material in the
sense of a crucial, critical, highly significant factor.’” Id. (quoting Osborne v.
Wainwright, 720 F.2d 1237, 1238 (11th Cir. 1983)). Here, the prosecutor made
this comment in his closing before he summarized Wright’s trial testimony.
Resp. Ex. B at 761-62. The prosecutor’s argument was also in response to
defense counsel’s cross-examination of Wright, in which he challenged her
credibility about whether she could clearly see what transpired between
Petitioner and Barrett. Id. at 352. In context, the record reveals that the
prosecutor’s statements were neither patently improper nor prejudicial, thus,
counsel was not ineffective for failing to object.
Finally, Petitioner argues the prosecutor made the following improper
statement during his first closing argument: “I get one more argument after
counsel goes, about self-defense. He has to exhaust every reasonable means to
assert self-defense.” Resp. Ex. B. at 757. Petitioner also argues the prosecutor
made the following improper statement during his rebuttal: “I spoke to you in
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my first argument. I said exhaust every reasonable means. Did he – let’s – ask
yourself the question, did he exhaust every reasonable means?” Petitioner
acknowledges that trial counsel objected to each of these statements as being a
“misstatement of the law,” and he recognizes that after each objection, the trial
court gave a curative instruction that what the attorneys argue during closing
is not evidence and that it will instruct the jury on the law. Id. at 757, 820.
However, Petitioner argues counsel should have also argued that the
statements were an improper shifting of the burden of proof. Nevertheless, the
statement which Petitioner now challenges was a direct quote of the initial
aggressor instruction for justifiable use of deadly force. Resp. Ex. B at 842. In
context, the Court finds that the prosecutor’s comments were not an improper
shifting of the burden of proof, but rather directly related to Petitioner’s defense
at trial. The record reveals that the prosecutor’s statements were neither
patently improper nor prejudicial and this claim is due to be denied.
ii. Victim’s Clothing
Petitioner argues his trial counsel was ineffective for failing to test the
victim’s clothing as evidence to support Petitioner’s defense. Doc. 1 at 5. He
raised this claim in his Rule 3.850 motion. Resp. Ex. L at 18-23. After providing
an in-depth summary of the evidence presented at trial, the trial court
summarily denied the claim as follows:
Case 3:17-cv-00387-TJC-PDB Document 22 Filed 09/10/20 Page 20 of 28 PageID 2038
In claim three, Defendant contends that, but for
counsel’s failure to investigate the victim’s clothing for
evidence of gunshot residue, there is a reasonable
probability that the result of the trial would have been
different. Defendant argues that evidence of gunshot
residue on the victim’s clothes would have supported
his theory of self-defense because it would show that he
shot the victim at close range after being attacked by
the victim. Defendant avers that the gunpowder
residue evidence would have been critical to his selfdefense theory because his trial testimony (that the
victim attacked him) was not corroborated by other
witnesses, and it conflicted with the testimony of State
witness Mercedes Wright that she saw Defendant shoot
the victim and the victim had not physically attacked
Initially, this Court notes that Defendant’s claim
merely speculates that an investigation of the victim’s
clothing would lead to a finding of gunpowder residue.
Speculation cannot form the basis for postconviction
relief. See Spencer v. State, 842 So. 2d 52, 63 (Fla.
2003); see also Bass v. State, 932 So. 2d 1170, 1172 (Fla.
2d DCA 2006) (“[P]ure speculation cannot be a basis for
postconviction relief.”). Generally, a court must grant
leave to amend a facially or legally insufficient claim
within a reasonable period of time. Spera v. State, 971
So. 2d 754 (Fla. 2007). However, Spera does not apply
if the court determines that the record conclusively
refutes Defendant’s claim. See Taylor v. State, 120 So.
3d 540, 551 (Fla. 2013) (“[B]ecause the record
conclusively refutes Taylor’s claim, Spera does not
apply.”). Nor does it apply when the defect cannot be
remedied by amendment. See Harris v. State, 10 So. 3d
714, 715 (Fla. 2d DCA 2009)(affirming summary denial
of post-conviction motion, despite the post-conviction
court’s failure to grant leave to amend, because the
record conclusively showed that Harris would not be
entitled to relief even if he were permitted to amend his
Case 3:17-cv-00387-TJC-PDB Document 22 Filed 09/10/20 Page 21 of 28 PageID 2039
Here, this Court need not grant Defendant leave
to amend his claim because he would not be entitled to
relief even if he were permitted to amend his motion.
Assuming arguendo that the victim’s clothes would
have tested positive for gunpowder residue, such
evidence would not reasonably have changed the
outcome of the trial because it would not have given any
weight to Defendant’s testimony that the victim
attacked him first. It would have only supported the
notion that the gun was fired relatively close to the
victim. Medical Examiner Aurelian Nicolaescu testified
about gunpowder residue and stippling. He testified as
follows: stippling normally occurs when the barrel of a
gun is within two to three feet of the gunshot wound,
but the most accurate distance would be known after a
test firing of the same gun with the same ammunition;
he did not see evidence of stippling or soot on the body;
he did not see any stippling on either of the victim’s
wounds to his hand or groin; clothing would prevent
stippling from appearing on the body; the victim’s hand
was not covered by clothing; he did not examine the
victim’s bloody clothes that covered the gunshot to the
victim’s groin; he did not see evidence that either of the
victim’s hands had been used to strike anything; he
could not give any opinion as to the distance between
Defendant and the victim, during the shooting, if one of
them were moving at the time the gun was fired. (Ex.
B at 579-89.) Therefore, had the victim’s clothes tested
positive for gunpowder residue, it would have shown
only that the gun was fired at close range. It would not
have overcome eyewitness testimony that the victim
did not physically attack Defendant just prior to the
[Sabra] Vaughan, the victim’s fiancé and
Defendant’s neighbor at the time of the shooting,
testified as follows: she saw Defendant and the victim
arguing in the parking lot outside her apartment; they
were facing each other and far apart from each other;
after failing to separate the two, she returned to her
apartment to call 911 but heard gunfire before she
Case 3:17-cv-00387-TJC-PDB Document 22 Filed 09/10/20 Page 22 of 28 PageID 2040
could reach her cell phone; and she did not see either of
the men throw a punch or kick. (Ex. B at 239-42, 25059.)
Jeremy Hamlin, [Sabra] Vaughan’s nephew and
Defendant’s neighbor at the time of the shooting,
testified as follows: he saw Defendant and the victim
arguing outside his apartment; Defendant was
following the victim as he walked around; at no point
did he see Defendant and the victim fighting; they were
more than twenty feet away from each other when Mr.
Hamlin turned away and walked back inside; seconds
later, he heard three gunshots; he did not hear
footsteps or the sound of someone running or any sound
of physical altercation between them. (Ex. B at 277,
Obneil Vertus testified as follows: he was helping
move furniture when he heard a man and woman
arguing; shortly after, he heard three gunshots; he did
not see the actual shooting take place; and he did not
hear any sounds of fighting. (Ex. B at 316-25.)
Mercedes Wright, Defendant’s neighbor at the
time of the shooting, testified as follows: she saw
Defendant and the victim arguing; they were not
fighting or touching in any manner; she saw Defendant
pull out a gun and shoot the victim; Defendant and the
victim were never closer than five-to-six feet apart and
were further away from each other than the length of
two arms; she heard three gunshots; she watched the
entire incident; and the victim had not rushed up to
Defendant just prior to the shooting. (Ex. B at 330-53.)
Mirnez Gazic and Geoffrey Liedke were officers
with the Jacksonville Sheriff’s Office and testified as
follows: they took Defendant into custody after the
shooting; Defendant was not disheveled; he showed no
signs of having been attacked; and he did not have any
bloody marks or abrasions (Ex. B at 622-27).
Case 3:17-cv-00387-TJC-PDB Document 22 Filed 09/10/20 Page 23 of 28 PageID 2041
Of all the trial witnesses, only Defendant
testified that he and the victim were close to each other
in distance just prior to the shooting and that the victim
had attacked him. Defendant testified as follows: the
victim physically pushed Defendant, hit him one time
(in the jaw), and repeatedly rushed at him; Defendant
fell back and fired his gun; the victim was roughly twoto-three feet from him at the time he fired his gun; and
the victim kept approaching, so Defendant kept
stepping back and firing. (Ex. B at 639; 662-70; 693;
Upon consideration of all the trial evidence, and
assuming arguendo that the victim’s clothing would
have tested positive for gunpowder residue, this Court
finds that the residue would have shown only that the
gun was fired at close range. Moreover, this Court finds
that gunpowder residue would not have conflicted with
the testimony of several witnesses who stated that the
victim was not attacking Defendant in any way prior to
the shooting. Therefore, Defendant cannot show
prejudice because it is unreasonable that the result of
the trial would have been different if counsel
investigated the gun residue. Accordingly, Defendant’s
third claim is denied.
Resp. Ex. L at 49-53. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. O.
Upon thorough review of the record and the applicable law, the Court
concludes that the state court’s decision to deny Petitioner’s claim because he
failed to demonstrate prejudice from any alleged deficiency 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 circuit court. See 28 U.S.C. § 2254(d). This claim is due to be denied.
Case 3:17-cv-00387-TJC-PDB Document 22 Filed 09/10/20 Page 24 of 28 PageID 2042
iii. Impeach Mercedes Wright’s Testimony
Petitioner also contends his trial counsel was ineffective for failing to
impeach Wright’s testimony with other photographs showing she did not see
the incident from her vantage point. Doc. 1 at 5. Petitioner raised this claim in
his Rule 3.850 motion. Resp. Ex. L at 23-27. The trial court denied the claim, in
pertinent part, as follows:
In claim four, Defendant contends that counsel
was ineffective for failing to fully develop evidence that
would contradict the testimony of State witness
Mercedes Wright. Defendant argues that the record
reflects that evidence was available to demonstrate
that Ms. Wright’s ability to observe the shooting from
her vantage point was impaired by a wall, shrubbery,
trees, and cars. Defendant argues that counsel should
have used aerial photographs to show how her line of
sight was obstructed. Defendant asserts that, but for
counsel’s failure to investigate, there is a reasonable
probability that the result of the trial would have been
Initially, this Court notes that there is nothing in
the record that corroborates Defendant’s claim that Ms.
Wright’s view was obstructed. Defendant’s argument,
that the State’s brief mention of a wall equates to
evidence that the wall obstructed Ms. Wright’s view, is
purely speculative. (Def.’s Mot. at 25; Ex. B at 334.)
photographs would show Ms. Wright’s view was
obstructed is based on mere speculation. Speculation
cannot form the basis for postconviction relief. As
stated above, a court need not grant a defendant leave
to amend a legally insufficient claim when the record
conclusively refutes that claim. See Taylor, 120 So. 3d
at 551. Moreover, if an amendment cannot remedy the
Case 3:17-cv-00387-TJC-PDB Document 22 Filed 09/10/20 Page 25 of 28 PageID 2043
defect, the court need not grant leave to amend. See
Harris, 10 So. 3d at 714, 715.
This Court will not grant Defendant leave to
amend his claim because he would not be entitled to
relief even if he were permitted to amend. Defendant’s
arguments are as much unreasonable as they are
speculative. The State used photographs of the
apartment complex at trial, and witnesses used a
computer to mark the digital photographs to explain to
the jury where and how events occurred. (Ex. B,
passim.) There was no evidence that Ms. Wright’s view
was obscured by trees, shrubs, cars, or a wall.
Furthermore, it is unreasonable that Ms. Wright’s
perspective and vantage point would have been better
represented by aerial photographs as opposed to
ground-based photographs. Thus, Defendant has failed
to show prejudice because it is unreasonable that aerial
photographs would have resulted in a different outcome
at trial. Accordingly, Defendant’s fourth claim is
Resp. Ex. L at 53-54. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. O.
Upon thorough review of the record and the applicable law, the Court
concludes that the state court’s decision to deny Petitioner’s claim 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
in the state circuit court proceeding. See 28 U.S.C. § 2254(d). This claim is due
to be denied.
Case 3:17-cv-00387-TJC-PDB Document 22 Filed 09/10/20 Page 26 of 28 PageID 2044
Petitioner argues that during his appeal of the trial court’s denial of his
Rule 3.850 motion, the trial court failed to provide the appellate court with
record attachments “refuting” his claims.7 Doc. 1 at 8. He also appears to argue
the trial court failed to provide the appellate court with photos “refuting” his
argument that Wright did not have a clear vantage point of the incident. Id.
To the extent Petitioner again argues that counsel should have
impeached Wright’s trial testimony with photos demonstrating she did not have
a clear view of where the attack occurred, the Court relies on its denial of
Ground Two supra. To the extent Petitioner argues the trial court failed to
attach portions of the record supporting its denial of Petitioner’s Rule 3.850
motion, such claim is not cognizable on federal habeas review. See Spradley v.
Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987) (argument that the state court
failed to attach relevant portions of the record to refute Rule 3.850 motion does
not undermine validity of the petitioner’s conviction, and thus, does not state a
basis for habeas relief). As such, Ground Three is due to be denied.
Lastly, Petitioner argues the postconviction court failed to provide him an
opportunity to file an amended Rule 3.850 motion before denying his claims.
The Court assumes Petitioner means to argue that the state court failed
to attach portions of the record supporting the denial of his claims.
Case 3:17-cv-00387-TJC-PDB Document 22 Filed 09/10/20 Page 27 of 28 PageID 2045
Doc. 1 at 7. The postconviction court denied Petitioner’s Rule 3.850 motion on
the merits and found that any amendment was not required under Florida law
because it would not have affected the outcome of his postconviction
proceedings. See generally Resp. Ex. L at 53-54 (citing Spera, 971 So. 2d at 754).
Petitioner’s claim that the Florida court made errors in his postconviction
proceedings solely addresses Florida law and does not include any federal
constitutional infirmity. Such claims that do not present a constitutional
challenge to the validity of Petitioner’s judgment and sentence are not
cognizable on federal habeas review. See, e.g., Rolack v. Jones, No. 15-CV22270-WILLLIAMS, 2016 WL 10707030, at *27 (S.D. Fla. Nov. 2, 2016) (holding
the petitioner’ claim that state postconviction court failed to allow him leave to
amend his Rule 3.850 motion not cognizable on § 2254 habeas review). As such,
Ground Four is due to be denied.
Accordingly, it is
ORDERED AND ADJUDGED:
The Petition (Doc. 1) is DENIED and this case is DISMISSED
The Clerk of Court shall enter judgment accordingly, terminate
any pending motions, and close this case.
If Petitioner appeals this Order, the Court denies a certificate of
Because the Court has determined that a certificate of
Case 3:17-cv-00387-TJC-PDB Document 22 Filed 09/10/20 Page 28 of 28 PageID 2046
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.8
DONE AND ORDERED at Jacksonville, Florida, this 10th day of
TIMOTHY J. CORRIGAN
United States District Judge
Aaron Kaiser, #549083
Anne Catherine Conley, Esq.
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.
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