Carter v. Secretary, Department of Corrections et al
Filing
37
ORDER denying 7 Amended Petition, denying 31 Second Motion to Amend, and dismissing case with prejudice, with instructions to the Clerk. Signed by Judge Marcia Morales Howard on 5/21/2020. (ACT)
Case 3:17-cv-00709-MMH-PDB Document 37 Filed 05/21/20 Page 1 of 32 PageID 2191
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GERALD JAMES CARTER,
Petitioner,
v.
Case No. 3:17-cv-709-J-34PDB
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner Gerald Carter, an inmate of the Florida penal system, initiated this action
on June 2, 2017,1 by filing a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254
(Petition; Doc. 1). Carter is proceeding on an amended petition (Amended Petition; Doc.
7). In the Amended Petition, Carter challenges a 2011 state court (Bradford County,
Florida) judgment of conviction for shooting into an occupied dwelling and possession of
a firearm by a convicted felon, and a 2014 judgment of conviction for attempted seconddegree murder with a firearm. Carter raises three grounds for relief. See Amended
Petition at 5-10.2 Respondents have submitted an answer in opposition to the Amended
Petition. See Answer to Amended Petition for Writ of Habeas Corpus (Response; Doc.
1
See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).
For purposes of reference, the Court will cite the page number assigned by the
Court’s electronic docketing system.
2
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18) with exhibits (Resp. Ex.).3 Carter filed a brief in reply and a supplement to his reply
brief. See Reply to Petition Amended Writ of Habeas Corpus (Reply; Doc. 20);
Supplementation of Application (Supp. Reply; Doc. 29). On November 8, 2019, Carter
filed, by mailbox rule, a motion to amend or supplement his petition (Motion; Doc. 31),
which the Court will address below. On December 4, 2019, the Court directed
Respondents to supplement the records of their Response with portions of the trial
transcript that originally were not included as an exhibit. See Doc. 33. Respondents
provided the Court with the supplemental records on December 5, 2019.4 This case is
ripe for review.
II. Relevant Procedural History
On September 15, 2011, the State of Florida (State) charged Carter with attempted
first-degree murder (count one), shooting into an occupied building (count two), and
possession of a firearm by a convicted felon (count three). Resp. Ex. A at 28-29. Carter
proceeded to a jury trial, at the conclusion of which the jury found Carter guilty of the
lesser-included offense of attempted second-degree murder, with a specific finding that
he possessed, discharged, and caused serious bodily injury to the victim; and guilty as
charged as to counts two and three, with a specific finding as to count three that he
actually possessed a firearm. Id. at 56-60. On November 2, 2011, the circuit court
sentenced Carter to a term of incarceration of life in prison as to count one, with a twenty-
3
Respondents filed exhibits to their response to the original Petition and added
additional exhibits in their response to the Amended Petition. The Court will refer to both
sets of exhibits as Resp. Ex. __.
4 The Court will refer to these records as Supp. Resp. Ex. __.
2
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five-year minimum mandatory; fifteen years in prison as to count two; and three years in
prison as to count three, with a three-year minimum mandatory. Id. at 61-68.
Carter appealed his convictions and sentences to Florida’s First District Court of
Appeal (First DCA). Id. at 75. In his initial brief, Carter, with the assistance of counsel,
raised two issues: (1) the circuit court fundamentally erred in giving an incorrect jury
instruction on attempted voluntary manslaughter; and (2) the prosecutor’s misconduct
during closing arguments rose to the level of fundamental error and denied him the right
to a fair trial. Resp. Ex. C. The State filed an answer brief. Resp. Ex. D. On March 6,
2013, the First DCA issued an opinion affirming the conviction and sentence in part and
reversing it in part. Resp. Ex. E. Specifically, the First DCA reversed Carter’s conviction
for attempted second-degree murder based on Williams v. State, 38 Fla. L. Weekly S99,
S100 (Fla. Feb. 14, 2014) and remanded for a new trial on count one but affirmed his
convictions and sentences for counts two and three. Resp. Ex. E. The First DCA issued
the Mandate on March 22, 2013. Id.
On April 15, 2013, Carter filed a motion to mitigate sentence pursuant to Florida
Rule of Criminal Procedure 3.800(c), Resp. Ex. F, which the circuit court denied on April
26, 2013. Resp. Ex. G. Following remand, the State filed an amended Information
charging Carter with one count of attempted second-degree murder. Resp. Ex. H at 7.
On September 18, 2014, following a second jury trial, the jury found Carter guilty as
charged and made specific findings that Carter actually possessed and discharged a
firearm, causing great bodily injury to the victim. Id. at 28-29. That same day, the circuit
court sentenced Carter to a term of incarceration of life in prison, with a minimum
mandatory sentence of twenty-five years to life. Id. at 30-34.
3
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Carter again appealed his conviction and sentence to the First DCA. Id. at 42. In
his initial brief, Carter raised two issues: (1) the circuit court erred in denying his request
to question the victim on his prior acts of aggression and prior convictions for violent
offenses; and (2) the circuit court fundamentally erred by giving an instruction on the
justifiable use of deadly force that contained conflicting provisions on the duty to retreat.
Resp. Ex. J. The State filed an answer brief. Resp. Ex. K. On March 30, 2016, the First
DCA per curiam affirmed Carter’s conviction and sentence without issuing a written
opinion and on April 15, 2016, it issued the Mandate. Resp. Ex. M.
On September 23, 2016, Carter filed a motion for postconviction relief pursuant to
Florida Rule of Criminal Procedure 3.850 (Rule 3.850 Motion). Resp. Ex. N at 11-24. In
his Rule 3.850 Motion, Carter alleged that: (1) he was convicted of a crime (count two)
not charged; (2) he was convicted of a crime (count three) not charged; (3) counsel failed
to adequately investigate his case; (4) counsel failed to investigate the victim’s medical
documentation; (5) counsel misadvised him not to testify at trial; and (6) counsel failed to
call an alibi witness and request an alibi instruction. Id. The circuit court denied the Rule
3.850 Motion on November 15, 2016. Id. at 25-34. On August 25, 2017, the First DCA per
curiam affirmed the denial of relief. Resp. Ex. O. Carter moved for rehearing, which the
First DCA denied on October 6, 2017. Resp. Ex. P. The First DCA issued the Mandate
on October 27, 2017. Resp. Ex. T. Carter sought to appeal the First DCA’s decision to
the Florida Supreme Court; however, the Florida Supreme Court dismissed the appeal
for lack of jurisdiction. Resp. Ex. U.
In early 2017, the Florida Department of Corrections (DOC) sent the circuit court a
letter requesting clarification concerning the length of the minimum mandatory sentence
4
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imposed as to count one because the judgment and sentence form stated the minimum
sentence was twenty-five years to life. Resp. Ex. Q at 12. On March 1, 2017, in response
to the DOC’s letter, the circuit court ordered the clerk to amend the judgment and
sentence to comport with the oral pronouncement to reflect a minimum mandatory life
sentence and to amend the crime and statute numbers to reflect that count one was a
first-degree felony. Id. at 13-21.
On March 13, 2017, Carter filed another motion for postconviction relief pursuant
to Rule 3.850 (Second Rule 3.850 Motion), in which he argued his counsel was ineffective
for failing to object to the self-defense jury instructions. Id. at 22-37. The circuit court
denied the motion on May 3, 2017. Id. at 38-41. On August 28, 2017, the First DCA per
curiam affirmed the denial of this motion without a written opinion and issued the Mandate
on September 2017. Resp. Ex. R.
On October 11, 2017, Carter filed a motion to correct illegal sentence pursuant to
Florida Rule of Criminal Procedure 3.800(a) (Rule 3.800(a) Motion), in which he argued
his sentence on count one exceeded the statutory maximum. Resp. Ex. V at 12-16. The
circuit court denied the Rule 3.800(a) Motion on October 27, 2017. Id. at 19-21. On April
3, 2018, the First DCA per curiam affirmed the denial of relief and it issued the Mandate
on May 1, 2018. Resp. Ex. W.
On November 14, 2017, Carter filed another successive motion for postconviction
relief pursuant to Rule 3.850 (Third Rule 3.850 Motion). Resp. Ex. Y at 103-17. In the
motion, he raised the following grounds for relief: (1) counsel failed to request a jury
instruction for a lesser-included offense; (2) the verdict form was improper; (3) he was not
given twenty-four hours notice of an amendment to the Information; (4) counsel failed to
5
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properly move for a judgment of acquittal; and (5) counsel misadvised him to testify at
trial. Id. On November 28, 2017, Carter moved to amend his Third Rule 3.850 Motion.
Resp. Ex. X at 12. On December 6, 2017, the circuit court entered an order denying
Carter’s Third Rule 3.850 Motion, id. at 14-20, and on December 11, 2017, it denied as
moot Carter’s motion to amend. Id. at 74. On April 3, 2018, the First DCA per curiam
affirmed the denial of relief without a written opinion and on May 1, 2018, issued the
Mandate. Resp. Ex. BB.
Carter filed yet another Rule 3.850 motion for postconviction relief (Fourth Rule
3.850 Motion) on December 22, 2017. Resp. Ex. CC at 12-20. In the Fourth Rule 3.850
Motion, Carter raised the following claims: (1) postconviction counsel was ineffective for
failing to file a timely Rule 3.850 motion; (2) the circuit court committed fundamental error
by instructing the jury on a crime not charged in the Information; (3) the State failed to
allege the essential elements of the crime in the body of the Information; and (4) trial
counsel was ineffective for failing to adequately investigate. Id. The circuit court denied
the Fourth Rule 3.850 Motion on January 16, 2018. Id. at 27-35. On December 14, 2018,
the First DCA per curiam affirmed the denial of the motion without a written opinion. See
Carter v. State, 259 So. 3d 80 (Fla. 1st DCA 2018).
On August 24, 2018, Carter filed a pro se petition for writ of habeas corpus with
the First DCA, in which he argued that his appellate counsel should have raised a Batson5
claim on direct appeal. Resp. Ex. FF. The First DCA denied the petition on the merits on
January 14, 2019. See Carter v. State, 262 So. 3d 264 (Fla. 1st DCA 2019). Carter sought
review in the Florida Supreme Court, but on February 1, 2019, the Florida Supreme Court
5
Batson v. Kentucky, 476 U.S. 79 (1986).
6
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dismissed the appeal for lack of jurisdiction. See Carter v. State, Case No. SC19-165,
2019 WL 413719 (Fla. February 1, 2019).
III. One-Year Limitations Period
This proceeding was timely filed within the one-year limitations period. See 28
U.S.C. § 2244(d).
IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner to establish the
need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d
1057, 1060 (11th Cir. 2011). “In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an applicant to prove
the petition’s factual allegations, which, if true, would entitle the applicant to federal
habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t
of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017).
“It follows that if the record refutes the applicant’s factual allegations or otherwise
precludes habeas relief, a district court is not required to hold an evidentiary hearing.”
Schriro, 550 U.S. at 474. The pertinent facts of this case are fully developed in the record
before the Court. Because the Court can “adequately assess [Carter’s] claim[s] without
further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an
evidentiary hearing will not be conducted.
V. Governing Legal Principles
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a
state prisoner’s federal petition for habeas corpus. See Ledford v. Warden, Ga.
7
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Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137
S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure that federal habeas relief
functions as a guard against extreme malfunctions in the state criminal justice systems,
and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38
(2011) (quotation marks omitted)). As such, federal habeas review of final state court
decisions is “‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting Hill v. Humphrey,
662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).
The first task of the federal habeas court is to identify the last state court decision,
if any, that adjudicated the claim on the merits. See Marshall v. Sec’y, Fla. Dep’t of Corr.,
828 F.3d 1277, 1285 (11th Cir. 2016). The state court need not issue a written 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 United States
Supreme Court has instructed:
[T]he 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.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be rebutted by
showing that the higher state court’s adjudication most likely relied on different grounds
than the lower state court’s reasoned decision, such as persuasive alternative grounds
that were briefed or argued to the higher court or obvious in the record it reviewed. Id. at
1192, 1196.
If the claim was “adjudicated on the merits” in state court, § 2254(d) bars relitigation
of the claim unless the state court’s decision (1) “was contrary to, or involved an
8
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unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States;” or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited
scope of federal review pursuant to § 2254 as follows:
First, § 2254(d)(1) provides for federal review for claims of
state courts’ erroneous legal conclusions. As explained by the
Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct.
1495, 146 L.Ed.2d 389 (2000), § 2254(d)(1) consists of two
distinct clauses: a “contrary to” clause and an “unreasonable
application” clause. The “contrary to” clause allows for relief
only “if the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the
state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.” Id. at
413, 120 S. Ct. at 1523 (plurality opinion). The “unreasonable
application” clause allows for relief only “if the state court
identifies the correct governing legal principle from [the
Supreme] Court's decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id.
Second, § 2254(d)(2) provides for federal review for claims of
state courts’ erroneous factual determinations. Section
2254(d)(2) allows federal courts to grant relief only if the state
court’s denial of the petitioner’s claim “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2). The Supreme Court has not yet defined §
2254(d)(2)’s “precise relationship” to § 2254(e)(1), which
imposes a burden on the petitioner to rebut the state court’s
factual findings “by clear and convincing evidence.” See Burt
v. Titlow, 571 U.S. ---, ---, 134 S. Ct. 10, 15, 187 L.Ed.2d 348
(2013); accord Brumfield v. Cain, 576 U.S. ---, ---, 135 S. Ct.
2269, 2282, 192 L.Ed.2d 356 (2015). Whatever that “precise
relationship” may be, “‘a state-court factual determination is
not unreasonable merely because the federal habeas court
would have reached a different conclusion in the first
9
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instance.’”[6] Titlow, 571 U.S. at ---, 134 S. Ct. at 15 (quoting
Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849, 175
L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert. denied, 137 S. Ct. 2298
(2017). Also, deferential review under § 2254(d) generally is limited to the record that was
before the state court that adjudicated the claim on the merits. See Cullen v. Pinholster,
563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1)’s “requires an examination
of the state-court decision at the time it was made”).
Thus, “AEDPA erects a formidable barrier to federal habeas relief for prisoners
whose claims have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16
(2013). “Federal courts may grant habeas relief only when a state court blundered in a
manner so ‘well understood and comprehended in existing law’ and ‘was so lacking in
justification’ that ‘there is no possibility fairminded jurists could disagree.’” Tharpe, 834
F.3d at 1338 (quoting Richter, 562 U.S. at 102-03). This standard is “meant to be” a
“difficult” one to meet. Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s
claims were adjudicated on the merits in the state courts, they must be evaluated under
28 U.S.C. § 2254(d).
B. Exhaustion/Procedural Default
There are prerequisites to federal habeas review. Before bringing a § 2254 habeas
action in federal court, a petitioner must exhaust all state court remedies that are available
for challenging his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To exhaust state
remedies, the petitioner must “fairly present[]” every issue raised in his federal petition to
6
The Eleventh Circuit has described the interaction between § 2254(d)(2) and §
2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3 (11th
Cir. 2016), cert. denied, 137 S. Ct. 1103 (2017).
10
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the state’s highest court, either on direct appeal or on collateral review. Castille v.
Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust a claim,
“state prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate
review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In addressing exhaustion, the United States Supreme Court explained:
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U.S.C. §
2254(b)(1), thereby giving the State the “‘“opportunity to pass
upon and correct” alleged violations of its prisoners’ federal
rights.’” Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887,
130 L.Ed.2d 865 (1995) (per curiam) (quoting Picard v.
Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438
(1971)). To provide the State with the necessary “opportunity,”
the prisoner must “fairly present” his claim in each appropriate
state court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the federal
nature of the claim. Duncan, supra, at 365-366, 115 S. Ct.
887; O’Sullivan v. Boerckel, 526 U.S. 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.
11
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See, e.g., Coleman,[7] supra, at 747–748, 111 S. Ct. 2546;
Sykes,[8] supra, at 84–85, 97 S. Ct. 2497. A state court’s
invocation of a procedural rule to deny a prisoner’s claims
precludes federal review of the claims if, among other
requisites, the state procedural rule is a nonfederal ground
adequate to support the judgment and the rule is firmly
established and consistently followed. See, e.g., Walker v.
Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–1128, 179
L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct.
612, 617–618, 175 L.Ed.2d 417 (2009). The doctrine barring
procedurally defaulted claims from being heard is not without
exceptions. A prisoner may obtain federal review of a
defaulted claim by showing cause for the default and
prejudice from a violation of federal law. See Coleman, 501
U.S., at 750, 111 S. Ct. 2546.
Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may be
excused under certain circumstances. Notwithstanding that a claim has been procedurally
defaulted, a federal court may still consider the claim if a state habeas petitioner can show
either (1) cause for and actual prejudice from the default; or (2) a fundamental miscarriage
of justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). In order for a petitioner to
establish cause,
the procedural default “must result from some objective factor
external to the defense that prevented [him] from raising the
claim and which cannot be fairly attributable to his own
conduct.” McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir.
1992) (quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[9]
Under the prejudice prong, [a petitioner] must show that “the
errors at trial actually and substantially disadvantaged his
defense so that he was denied fundamental fairness.” Id. at
1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
7
Coleman v. Thompson, 501 U.S. 722 (1991).
Wainwright v. Sykes, 433 U.S. 72 (1977).
9 Murray v. Carrier, 477 U.S. 478 (1986).
8
12
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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).
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 Trial Counsel
“The Sixth Amendment guarantees criminal defendants the effective assistance of
counsel. That right is denied when a defense attorney’s performance falls below an
objective standard of reasonableness and thereby prejudices the defense.” Yarborough
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v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521
(2003), and Strickland v. Washington, 466 U.S. 668, 687 (1984)).
To establish deficient performance, a person challenging a
conviction must show that “counsel’s representation fell below
an objective standard of reasonableness.” [Strickland,] 466
U.S. at 688, 104 S. Ct. 2052. A court considering a claim of
ineffective assistance must apply a “strong presumption” that
counsel’s representation was within the “wide range” of
reasonable professional assistance. Id., at 689, 104 S. Ct.
2052. The challenger’s burden is to show “that counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id., at 687, 104 S. Ct. 2052.
With respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id., at 694, 104 S. Ct.
2052. It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id., at
693, 104 S. Ct. 2052. Counsel’s errors must be “so serious as
to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id., at 687, 104 S. Ct. 2052.
Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of any ironclad rule requiring a court to tackle one prong of the Strickland test before the other.”
Ward, 592 F.3d at 1163. Since both prongs of the two-part Strickland test must be
satisfied to show a Sixth Amendment violation, “a court need not address the performance
prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id. (citing
Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at
697.
14
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A state court’s adjudication of an ineffectiveness claim is accorded great
deference.
“[T]he standard for judging counsel’s representation is a most
deferential one.” Richter, - U.S. at -, 131 S. Ct. at 788. But
“[e]stablishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is
doubly so.” Id. (citations and quotation marks omitted). “The
question is not whether a federal court believes the state
court’s determination under the Strickland standard was
incorrect but whether that determination was unreasonable a substantially higher threshold.” Knowles v. Mirzayance, 556
U.S. 111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)
(quotation marks omitted). If there is “any reasonable
argument that counsel satisfied Strickland’s deferential
standard,” then a federal court may not disturb a state-court
decision denying the claim. Richter, - U.S. at -, 131 S. Ct. at
788.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v. Mirzayance,
556 U.S. 111, 123 (2009). In other words, “[i]n addition to the deference to counsel’s
performance mandated by Strickland, the AEDPA adds another layer of deference--this
one to a state court’s decision--when we are considering whether to grant federal habeas
relief from a state court’s decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.
2004). As such, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010).
VI. Findings of Fact and Conclusions of Law
A. Ground One
As Ground One, Carter alleges that the circuit court violated his right to due
process and to confront the witnesses against him under the Sixth and Fourteenth
Amendments to the United States Constitution when it denied his request to cross-
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examine the victim on prior acts, incidents of aggression, and convictions for violent
offenses. Amended Petition at 5. According to Carter, this testimony was relevant to his
self-defense theory as it would have shown that the victim was the aggressor. Id.
Respondents contend that Carter failed to exhaust this claim because, although
he raised a similar claim on direct appeal following his second trial, he did not raise this
claim as a violation of his federal constitutional rights. Response at 19-27. Instead,
Respondents maintain that Carter argued only in terms of state law, which renders the
claim procedurally defaulted. Id. Carter asserts that the state courts inadvertently
overlooked his federal claim through no fault of his own. Supp. Reply at 6-8. According to
Carter, his appellate brief specifically cited to and relied upon Chambers v. Mississippi,
410 U.S. 284 (1973). Supp. Reply at 6-8. Carter further contends that, even if procedurally
defaulted, the Court should review the merits of his claim because he is innocent and to
do otherwise would constitute a fundamental miscarriage of justice. Id.
The record reflects that Carter’s trial counsel argued, without any reference to
federal law, in a motion for new trial that “Defendant was not allowed to fully cross
examine the alleged victim witness at trial.” Resp. Ex. H at 38. In his initial brief on direct
appeal following his second trial, Carter’s appellate counsel raised a similar claim. Resp.
Ex. J at 14-16. Counsel framed this argument as an abuse of discretion on a ruling
regarding the admissibility of evidence and cited extensively to Florida statutes and case
law. While counsel cited to Chambers for the proposition that an accused has a
fundamental right to present witnesses in his own defense, he only did so to make an
analogous argument that “[c]ertainly this principal includes other forms of evidence as
well.” Id. at 16. The Court finds that Carter failed to fairly present a federal constitutional
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challenge to the circuit court and this lone citation to a federal case on appeal did not
fairly present this claim to the First DCA to provide that court a meaningful opportunity to
review Carter’s federal constitutional claim as alleged here. See McNair v. Campbell, 416
F.3d 1291, 1303-04 (11th Cir. 2005) (citing a single federal case and a brief mention of
federal constitutional provisions in a brief, are the types of “needles in the haystack” that
do not satisfy the exhaustion requirement). As such, the claim in Ground One is not
exhausted. Carter’s allegation concerning a fundamental miscarriage of justice is
insufficient to overcome this procedural default because he has not alleged any new facts
to demonstrate his innocence. See Calderon, 523 U.S. at 559; Ward, 592 F.3d at 1157.
Accordingly, relief on this claim is due to be denied as it is unexhausted.
Nevertheless, even if properly exhausted this claim is meritless. Generally, claims
related to the admissibility of evidence are not cognizable in a § 2254 petition unless the
error would result in the denial of fundamental fairness in the criminal trial. See Tidwell v.
Butler, 415 F. App’x 979, 980 (11th Cir. 2011) (citing Osborne v. Wainwright, 720 F.2d
1237, 1238 (11th Cir. 1983)); Baxter v. Thomas, 45 F.3d 1501, 1509 (11th Cir. 1995). The
Court finds that the state court’s decision to limit cross-examination of the witness
regarding his propensity for violence or his previous bad acts did not deny Carter a
fundamentally fair trial, particularly in light of the fact that Carter was able to discuss prior
violent encounters he had with the victim and the victim’s alleged violent and dangerous
behavior during Carter’s direct testimony. Supp. Resp. Ex. 2 at 156-58. The jury heard
this testimony, yet still found Carter’s self-defense theory unavailing. As such, the state
court’s evidentiary ruling did not violate Carter’s constitutional rights. See Tidwell, 415 F.
App’x at 980 (holding that “district court did not err in finding the claim was not cognizable
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on federal habeas review because the admission of evidence concerning Tidwell's prior
bad acts was a question of state law that did not call into question the fundamental
fairness of Tidwell's trial.”). In light of the above analysis, relief on Carter’s claim in Ground
One is due to be denied.
B. Ground Two
In Ground Two, Carter asserts that he was initially charged with attempted seconddegree murder causing serious bodily injury. Amended Petition at 7. However, less than
twenty-four hours before his trial, the State amended the Information, deleting “serious
bodily injury” and replacing it with “great bodily harm.” Id. Carter maintains that this added
an element to the offense and surprised the defense on the eve of trial, which resulted in
Carter not having a sufficient opportunity to prepare a defense. Id. According to Carter,
this was a double jeopardy violation and a due process violation. Id.
Respondents contend this claim is unexhausted because he did not raise this as
a federal constitutional issue in state court. Response at 27-35. Carter counters that the
state court overlooked the federal claim he raised. Supp. Reply at 9-10. Additionally, he
asserts that even if technically unexhausted, his counsel’s failure to raise this issue on
appeal constitutes cause to overcome this procedural default, and the Court should also
address the merits of the claim because he is actually innocent. Id. at 10-14.
The record reflects that Carter raised a similar claim as ground three of his Third
Rule 3.850 Motion. Resp. Exs. V at 37; Y at 107. However, Carter did not assert a double
jeopardy or due process violation; instead, he generally alleged a violation of his right to
a fair trial. Id. In denying relief on this claim, the state circuit court first found the claim
was not cognizable in a Rule 3.850 Motion and alternatively found the claim was meritless
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because the record reflected Carter was on notice that the State intended to pursue a
sentencing enhancement, which was the basis for the amended information. Resp. Ex. X
at 17. Carter appealed the denial of his Third Rule 3.850 Motion but did not argue this
claim in terms of federal constitutional law, as he relied exclusively on Florida law in
support of reversal. Resp. Ex. Z at 8-9. The First DCA per curiam affirmed the denial of
relief without a written opinion. Resp. Ex. BB. Based on this record, it is readily apparent
that the state courts did not overlook Carter’s federal claims; instead, he never raised a
federal claim with the circuit court or First DCA. Therefore, this claim is unexhausted
because Carter never afforded the state courts a fair opportunity to address the merits of
his constitutional claim.
Regarding Carter’s contention that cause exists to overcome his failure to exhaust
this claim, “a claim for ineffective assistance of counsel, if both exhausted and not
procedurally defaulted, may constitute cause.” Henry v. Warden, Ga. Diag. Prison, 750
F.3d 1226, 1230 (11th Cir. 2014); see also Carrier, 477 U.S. at 488; Philmore v. McNeil,
575 F.3d 1251, 1264 (11th Cir. 2009) (citing Edwards v. Carpenter, 529 U.S. 446, 451
(2000)) (“An attorney’s constitutional ineffectiveness in failing to preserve a claim for
review in state court may constitute ‘cause’ to excuse a procedural default.”). But the
petitioner must first present his or her ineffective assistance claim to the state courts as
an independent claim before he may use it to establish cause to excuse the procedural
default of another claim. Carrier, 477 U.S. at 488; see also Henderson v. Campbell, 353
F.3d 880, 896 n.22 (11th Cir. 2003). If the secondary ineffective assistance claim is itself
procedurally defaulted, the “procedurally defaulted ineffective assistance of counsel claim
can serve as cause to excuse the procedural default of another habeas claim only if the
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habeas petitioner can satisfy the ‘cause and prejudice’ standard with respect to the
ineffective assistance claim itself.” Henderson, 353 F.3d at 897 (citing Edwards, 529 U.S.
at 446 and Carrier, 477 U.S. at 478). Here, Carter never raised a claim of ineffective
assistance of appellate counsel in state court; therefore, it is also unexhausted and he
has failed to demonstrate cause and prejudice to overcome the procedural default of his
ineffective assistance of appellate counsel claim. As such, Carter has failed to establish
cause to overcome his failure to exhaust the claim in Ground Two. See id. Additionally,
Carter’s claim of actual innocence fails because he has not alleged any new facts in
support of this contention. See Calderon, 523 U.S. at 559; Ward, 592 F.3d at 1157.
Therefore, relief on his claim in Ground Two is due to be denied as the claim is
unexhausted.
Nevertheless, even if the claim in Ground Two were properly exhausted, it is
without merit. The record reflects that the State amended the Information to allege “great
bodily injury” instead of “serious bodily injury.” Resp. Exs. A at 28; H at 7. In Florida, a
finding that a defendant discharged a firearm that caused “great bodily harm” mandates
the imposition of a twenty-five-year to life minimum mandatory sentence. §
775.087(2)(a)3, Fla. Stat. However, the amendment to the charging document had no
impact on Carter’s defense or sentencing possibilities because under Florida law the
terms “serious bodily injury” and “great bodily injury” are synonymous for purposes of
section 775.087. See Mendenhall v. State, 999 So. 2d 665, 667 (Fla. 5th DCA 2008)
(“There is no significant difference between the terms ‘great bodily harm’ and ‘serious
bodily injury.’ Accordingly, the trial court did not err in enhancing the defendant's sentence
pursuant to the terms of the statute and the jury's finding.”). As such, the amendment did
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not change any of the essential elements of the crime or Carter’s potential sentence.
Moreover, the record reflects that the victim suffered a gunshot wound, Resp. Ex. I1 at
63, 66, which caused significant damage to the victim’s arm, Supp. Resp. Ex. 1 at 13-26,
a fact that did not change from the first trial to the second trial. Therefore, Carter’s
allegation that this constituted a “surprise” is without merit. Based on the above analysis,
relief on the claim in Ground Two is due to be denied.
C. Ground Three
Carter alleges that his counsel was ineffective during his first trial for: (1) failing to
object to improper closing arguments where the prosecutor commented on the right of
the defendant not to dispute the allegations; and (2) failing to request an alibi jury
instruction. Amended Petition at 8.
Closing Arguments
Carter raised this claim in ground four of his Fourth Rule 3.850 Motion. Resp. Ex.
CC at 17. However, the circuit court did not address the merits of this claim; instead, the
court only addressed two other claims of deficient performance that Carter also raised in
ground four. Id. at 34-35. The First DCA per curiam affirmed the denial of relief without a
written opinion. See Carter, 259 So. 3d 80. Based on this record, the Court finds Carter
properly exhausted this claim. See Ogle v. Johnson, 488 F.3d 1364, 1369 (11th Cir. 2007)
(“A habeas petitioner exhausts available state remedies when he fairly presents his claim
for a state remedy even if the state never acts on his claim.”). Because the state court did
not adjudicate this portion of Carter’s claim on the merits, the Court must conduct a de
novo review of this sub-claim instead of a deferential review. See Mason v. Allen, 605
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F.3d 1114, 1119 (11th Cir. 2010) (“When, however, a claim is properly presented to the
state court, but the state court does not adjudicate it on the merits, we review de novo.”).
As an initial matter, the Court finds this claim fails as it is entirely conclusory
because Carter has failed to identify any specific comment to which he asserts counsel
should have objected nor does he give a citation to the portion of the record where it could
be found. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (recognizing that
vague, conclusory, speculative, or unsupported claims cannot support an ineffective
assistance of counsel claim). Nevertheless, in ground four of his Fourth Rule 3.850
Motion, Carter asserted that the prosecutor made the following comment:
Now, you’re also going to be asked to make a finding of guilty
or not guilty on shooting of an occupied dwelling. I’m not going
to spend a whole lot of time on that. I’d just ask you to rely on
your own recollections. The State would argue it was
completely undisputed in this case.
Resp. Ex. CC at 17. During closing arguments “a prosecutor may ‘assist the jury in
analyzing, evaluating, and applying the evidence’ and, therefore, may ‘urge[ ] the jury to
draw inferences and conclusions from the evidence produced at trial.” United States v.
Adams, 339 F. App’x 883, 886 (11th Cir. 2008) (quoting United States v. Johns, 734 F.2d
657, 663 (11th Cir.1984)). The Eleventh Circuit has explained:
Prosecutorial reference to the “uncontradicted” state of
evidence constitutes impermissible comment on the
defendant's exercise of the right to remain silent only if: (1) the
prosecutor's manifest intention was to comment upon the
defendant's failure to testify; or (2) the remark was such that
the jury would naturally and necessarily take it to be a
comment on the failure of the defendant to testify. United
States v. Garcia, 655 F.2d 59, 64 (5th Cir. 1981); United
States v. Magana-Arevalo, 639 F.2d 226, 229 (5th Cir. 1981).
To determine the manifest intent and the natural and
necessary effect of allegedly impermissible comments, we
must examine the comments in the context within which they
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were made. United States v. Garcia, 655 F.2d at 64; United
States v. Sorzano, 602 F.2d 1201, 1202 (5th Cir. 1979), cert.
denied, 444 U.S. 1018, 100 S.Ct. 672, 62 L.Ed.2d 648 (1980).
Williams v. Wainwright, 673 F.2d 1182, 1184 (11th Cir. 1982).
The record reflects that following this statement, the prosecutor commented on the
victim’s children’s testimony regarding the shot fired into their home and the forensic
evidence demonstrating the presence of a bullet fragment in the home. Resp. Ex. B at
323-24. Based on the context of this statement, the Court finds that the prosecutor’s
comment was not an impermissible comment on Carter’s right to remain silent. No where
in the closing arguments does the prosecutor comment upon or suggest that evidence
was lacking because of Carter’s refusal to take the stand. Moreover, the comment did not
naturally and necessarily refer to Carter’s failure to testify. Instead, the prosecutor relied
on the fact that the forensic evidence and the children’s testimony supported this
conclusion and there was no evidence to refute it. See Williams, 673 F.2d at 1185 (“the
prosecutor's use of the word ‘uncontradicted,’ when viewed in context, was addressed to
the testimony of the victim,” and “[t]he remark simply referred to one area of that testimony
that was not disputed. No direct mention was made of the petitioner's failure to testify. We
cannot say that the jury necessarily would have taken the challenged statements to be a
comment on petitioner's failure to testify.”). Thus, any objection to the prosecutor’s
comment would have been meritless. As such, counsel cannot be deemed deficient. See
Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136, 1142 (11th Cir. 2005) (holding counsel
cannot be ineffective for failing to raise a meritless argument); Bolender v. Singletary, 16
F.3d 1547, 1573 (11th Cir. 1994) (noting that “it is axiomatic that the failure to raise
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nonmeritorious issues does not constitute ineffective assistance.”). Therefore, relief on
this claim is due to be denied.
Alibi Jury Instruction
Carter raised a similar claim that counsel failed to request an alibi instruction in his
Rule 3.850 Motion. Resp. Ex. N at 21-23. The circuit court initially denied this claim as
procedurally barred and moot. Id. at 30-32. In his Fourth Rule 3.850 Motion, Carter
alleged that he had hired postconviction counsel to file a Rule 3.850 motion, but counsel
failed to do so and, as a result, a number of claims, including this claim, were denied as
procedurally barred. Resp. Ex. CC at 14. The circuit court determined that postconviction
counsel did fail to timely file a motion due to a debilitating illness and addressed the merits
of this claim. Id. at 30. In denying relief on the claim, the circuit court explained:
In Ground Six, Defendant alleges ineffective
assistance of counsel for failing to call his sister as an alibi
witness at trial, and failing to request an alibi defense jury
instruction. The record refutes his first assertion, reflecting
that Defendant’s sister was called as a witness and provided
alibi testimony. Defendant is correct that the jury was not
provided an alibi defense jury instruction. A claim of ineffective
assistance of counsel for failure to request a jury instruction
on a defendant’s alibi defense is a cognizable claim for postconviction relief. See Moragne v. State, 761 So. 2d 440 (Fla.
2d DCA 2000). Although it was error to fail to request the alibi
jury instruction, any prejudice is speculative. The record
reflects that the jury was instructed on weighing the evidence
and evaluating witness testimony. An alibi defense is not
outside the common understanding of a jury, and the jury did
not accept his sister’s version of events. Further, this Court
notes that to the extent there was prejudice at the first trial for
failure to instruct the jury on an alibi defense, such prejudice
is negated by the fact that Defendant abandoned his alibi
defense at the second trial and admitted to shooting the
victim. Thus, this ground is without merit. Accordingly, claim 1
of Defendant’s instant motion is DENIED.
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Id. at 33 (record citations omitted). The First DCA per curiam affirmed the denial of relief
without a written opinion. See Carter, 259 So. 3d 80.
To the extent that the First DCA decided the claim on the merits,10 the Court will
address the claim in accordance with the deferential standard for federal court review of
state court adjudications. After a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of 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. Thus, Carter is not entitled to relief
on the basis of this claim.
Nevertheless, even if the First DCA’s adjudication of this claim is not entitled to
deference, this claim is meritless. The record reflects that at Carter’s first trial, the victim
testified that he personally knew Carter as they grew up in the same neighborhood and
had previously gotten into a fight. Resp. Ex. B at 113-14. The victim also identified Carter
as the shooter. Id. at 113-21. One of the victim’s daughters testified that she was in the
house when she heard a loud noise, which caused her to look outside a window to see
what happened. Id. at 132-33. She observed a man standing in the road holding his hand
up as if he had a gun in it and saw her father running towards their house holding his
bloody arm. Id. According to the victim’s daughter, she got a good enough look at the
shooter to make a positive identification to investigators and, at trial, she made an in-court
In looking through the appellate court’s per curiam 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.
10
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identification of Carter as the shooter. Id. at 133. She also testified that she observed
Carter leaving the scene in a black Grand Am. Id. at 134.
The State also called Adam Nickelson, who testified that he personally knew
Carter. Id. at 197-98. According to Nickelson, he met up with Carter the night before the
shooting. Id. at 198-99. Nickelson testified that he allowed Carter to borrow his black
Grand Am the morning of the shooting. Id. at 199-200. When Carter returned, he yelled
at Nickelson that he got in a fight and he needed to go to Gainesville, so the two of them
drove there. Id. at 200-02. While in the car, Nickelson testified that Carter made a phone
call to a person Nickelson thought was a child of Carter’s in which Carter said he loved
the child and that he was going to be going away for a while. Id. at 202-03. Several days
later, Nickelson read that Carter was a suspect in a shooting, at which time Nickelson
came forward to the police and told them about his interaction with Carter on the day of
the shooting. Id. at 203-05.
Another State witness, Cecil Coleman, testified that he knew of both Carter and
the victim, although he did not know either of them personally. Id. at 211-12. Coleman
testified that he saw Carter the morning of the incident with a handgun. Id. at 213-14.
According to Coleman, he later parked his car on the same street on which the victim
lived, and observed Carter and the victim begin to argue in the street. Id. at 215-16.
Coleman testified that he thought the argument was over as the parties began to walk
away from each other, but then he saw Carter turn around and start shooting at the victim.
Id. at 216-18.
Regarding Carter’s alibi defense, during cross-examination of Detective Kevin
Mueller, he testified that he interviewed Carter during his investigation and Carter told him
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that he was not at the location of the incident. Id. at 187. The defense called one witness
in support of an alibi defense, Carter’s sister, Toccara Carter. Id. at 246. According to Ms.
Carter, who had previously been convicted of filing a false report of a crime; Id. at 246,
253; she had picked up her brother the day before the incident and brought him to her
house in Gainesville, where Carter then stayed for a couple weeks. Id. at 246-48. Ms.
Carter testified that her brother never left her house and was in Gainesville the entire day
of the incident. Id. at 248. During cross-examination, Ms. Carter discussed receiving a
call from Carter while he was in jail. Id. at 262. She testified that she did not remember
Carter telling her “code” when he began talking with her, but that she did remember him
repeatedly saying “Wednesday at 6:00, Jackie Thursday morning,” although she claimed
she did not know what that meant. Id. at 262-63. During the conversation, Ms. Carter told
Carter that “they’re recording our conversations.” Id. at 263.
In rebuttal, the State recalled Mueller to discuss his interviews of Carter and Ms.
Carter, and his review of the jail call, which was introduced as evidence. Mueller testified
that on the jail call Carter repeatedly used the word “code” and told Ms. Carter that
“Wednesday at 6:00. That’s when you came and got me. Jackie, Thursday morning, when
she came by to see me.” Id. at 269. Carter also stated, “I just talked to Mueller and I want
to make sure we’re on the same page,” at which point Ms. Carter reminded him that the
phone call was being recorded. Id. Carter replied, “I know, that’s why I’m speaking in
code.” Id.
Although defense counsel never requested an alibi instruction and the circuit court
did not read this instruction to the jury, Resp. Ex. A at 36-55, based on the record as laid
out above, the Court finds Carter cannot demonstrate prejudice. Florida’s alibi instruction
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reads, in pertinent part, “If you have a reasonable doubt that the defendant was present
at the scene of the alleged crime, it is your duty to find the defendant not guilty.” Fla. Std.
Jury Instr. (Crim.) 3.6(i) (2010). The evidence presented at trial did not establish a
reasonable doubt that Carter was not at the scene of the crime. The victim and his
daughter both positively identified Carter as the shooter, so too did an eyewitness who
observed the incident from down the street. Moreover, Nickelson’s testimony established
that Carter was not in Gainesville at the time of the shooting and that Carter drove his
car, the same car the witnesses described Carter entering after shooting the victim, on
the day of the incident. Carter’s alibi witness was less than credible, having previously
been convicted of making false statements and being impeached with a jail phone call
that showed Carter instructing her how to testify. Accordingly, even if counsel had
requested the alibi instruction, there is no reasonable probability the outcome of the trial
would have been different.11 Therefore, Carter is not entitled to relief, and his claims in
Ground Three are due to be denied.
VII. Motion to Amend Petition
In his Motion, Carter requests leave to file a second amended petition for writ of
habeas corpus in order to: (1) delete reference to “double jeopardy” in his claim in Ground
Two; (2) add additional facts to Ground Three; and (3) add a fourth ground for relief
alleging prosecutorial misconduct. Motion at 1-2. Carter attached a proposed second
amended petition to his Motion, which details the claims he seeks to raise. See Doc. 311. Federal Rule of Civil Procedure 15(a)(2) instructs, in part, that “[t]he court should freely
Notably, in Carter’s second trial, he abandoned his alibi defense and admitted
he shot the victim, but only did so in self-defense. Supp. Resp. Ex. 2 at 126-34.
11
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give leave [to amend] when justice so requires.” However, denial of a motion to amend is
justified if amendment would be futile because the amended petition would still be subject
to dismissal. See Hall v. United Ins. Co. of America, 367 F.3d 1255, 1262-63 (11th Cir.
2004). Here, the Court finds amendment would be futile; therefore, the Motion is due to
be denied.
Deleting reference to “double jeopardy” in Ground Two would not change the
Court’s analysis of his claim because it would remain unexhausted, and as explained
above, the amendment to the Information did not change the essential elements of the
crime charged. As to his amendment to Ground Three, the Court finds that, contrary to
Carter’s contentions, he did not add additional facts; instead, he made the claim
concerning prosecutorial misconduct even more conclusory by deleting any reference to
the actual comment he found objectionable. As such, his amended Ground Three would
be wholly conclusory and, therefore, insufficient to warrant federal habeas relief. See
Tejada, 941 F.2d at 1559. Moreover, nothing in the amended claim would change the
Court’s analysis of Ground Three as set forth above. Lastly, Carter’s additional claim as
raised in ground four of his proposed amended petition would likewise not entitle him to
federal habeas relief because it is also conclusory. Carter states “[p]rosecutorial
misconduct during closing argument[s] rose to the level of fundamental error and denied
appellant of [sic] his right to a fair trial.” That is the extent of his claim in ground four. As
noted above, Carter had two trials, but he fails to inform the Court which trial he is
discussing here, let alone describe with any factual detail the alleged misconduct.
Therefore, relief on this claim would be denied as the claim is conclusory because Carter
does not satisfy the heightened pleading requirements governing federal habeas
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petitions. See Mayle v. Felix, 545 U.S. 644, 648 (2005) (noting that Rule 2(c) of the Rules
Governing Habeas Corpus Cases requires a detailed statement that specifies all the
grounds for relief and states facts in support of each ground); McFarland v. Scott, 512
U.S. 849, 856 (1994) (explaining that Rule 2(c) of the Rules Governing Habeas Corpus
Cases mandates a heightened pleading requirement); Borden v. Allen, 646 F.3d 785, 810
(11th Cir. 2011) (Rules Governing Section 2254 Cases in the United States District Court
“mandate ‘fact pleading’ as opposed to ‘notice pleading.’”). In light of the fact that Carter’s
proposed amended petition does not raise any claims that would entitle him to federal
habeas relief, the Motion is due to be denied. See Hall, 367 F.3d at 1262-63.
VIII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Carter seeks issuance of a certificate of appealability, the undersigned opines
that a certificate of appealability is not warranted. 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, Carter
“must demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues
presented were ‘adequate to deserve encouragement to proceed further,’” Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983)).
Where a district court has rejected a petitioner’s constitutional claims on the merits,
the petitioner must demonstrate that reasonable jurists would find the district court’s
30
Case 3:17-cv-00709-MMH-PDB Document 37 Filed 05/21/20 Page 31 of 32 PageID 2221
assessment of the constitutional claims debatable or wrong. See Slack, 529 U.S. at 484.
However, when the district court has rejected a claim on procedural grounds, the
petitioner must show that “jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Id. Upon
consideration of the record as a whole, the Court will deny a certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Amended Petition (Doc. 7) is DENIED, and this action is DISMISSED
WITH PREJUDICE.
2.
Carter’s Second Motion to Amend (Doc. 31) is DENIED.
3.
The Clerk of the Court shall enter judgment denying the Amended Petition
and dismissing this case with prejudice.
4.
If Carter appeals the denial of the Amended Petition, the Court denies a
certificate of appealability. Because the 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.
31
Case 3:17-cv-00709-MMH-PDB Document 37 Filed 05/21/20 Page 32 of 32 PageID 2222
5.
The Clerk of the Court is directed to close this case and terminate any
pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 21st day of May, 2020.
Jax-8
C:
Gerald Carter #G11093
Counsel of record
32
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