Thomas v. Secretary, Department of Corrections et al

Filing 15

ORDER deny 1 petition; dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 2/14/2020. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
SHERMAN THOMAS,
Petitioner,
vs.

Case No. 3:17-cv-1271-J-39PDB

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

INTRODUCTION

This cause is before the Court on a Petition for Writ of
Habeas Corpus (Petition) (Doc. 1).

Petitioner, Sherman Thomas,

proceeding pro se, challenges his state court (Duval County)
conviction

for

attempted

murder

burglary, and armed robbery.

in

the

first

degree,

armed

In their Answer to Petition for Writ

of Habeas Corpus (Response) (Doc. 10), Respondents address the
four grounds raised in the Petition.1

Petitioner filed a notice

that he will rely on his Petition (Reply) (Doc. 13).

The Court will hereinafter refer to the exhibits in the Appendix
(Doc. 10) as "Ex." Where provided, the page numbers referenced
in this opinion are the Bates stamp numbers at the bottom of each
page of the exhibit. Otherwise, the page number on the document
will be referenced.
1

II.
“In

a

habeas

EVIDENTIARY HEARING

corpus

proceeding,

the

burden

is

on

the

petitioner to establish the need for an evidentiary hearing.”
Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318 (11th
Cir. 2016) (citations omitted), cert. denied, 137 S. Ct. 2245
(2017).

See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057,

1060 (11th Cir. 2011) (opining a petitioner bears the burden of
establishing the need for an evidentiary hearing with more than
speculative and inconcrete claims of need), cert. denied, 565 U.S.
1120 (2012); Dickson v. Wainwright, 683 F.2d 348, 351 (11th Cir.
1982) (same).

A petitioner must make a specific factual proffer

or proffer evidence that, if true, would provide entitlement to
relief.

Jones, 834 F.3d at 1319 (citations omitted).

allegations will not suffice.

Conclusory

Id.

In this case, the pertinent facts are fully developed in this
record or the record otherwise precludes habeas relief; therefore,
the Court can "adequately assess [Petitioner's] claim[s] without
further factual development," Turner v. Crosby, 339 F.3d 1247,
1275

(11th

Cir.

2003),

cert.

denied,

541

U.S.

1034

(2004).

Petitioner has not met his burden as the record refutes the
asserted factual allegations or otherwise precludes habeas relief.
Thus, the Court finds Petitioner is not entitled to an evidentiary
hearing.

Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
2

III.

THE PETITION

The Petition is timely filed.

Response at 2-6.

In the

Petition, Petitioner raises four grounds for habeas relief:

(1)

the ineffective assistance of trial counsel for failure to call
two

defense

witnesses,

Shana

and

Rob;

(2)

the

ineffective

assistance of trial counsel for failure to file a motion to
suppress the out-of-court identification made by Joshua Gerry and
by Charlene Tipton; (3) the ineffective assistance of trial counsel
for failure to

object and move to exclude inadmissible bank

documents; and, (4) the ineffective assistance of trial counsel
for failure to object to the state’s presentation of the false
testimony of Mr. Gerry and Ms. Tipton.
Petitioner acknowledges he presents this Court with a mixed
petition, but he asks that he be excused from exhausting his
unexhausted grounds because he did not have counsel to advise him
in his post-conviction proceeding.

Petition at 6-7.

See Martinez

v. Ryan, 566 U.S. 1 (2012).
IV.
Petitioner

claims

he

HABEAS REVIEW
is

detained

“in

violation

Constitution or laws or treaties of the United States.”
§ 2241(c)(3).

of

the

28 U.S.C.

This Court recognizes its authority to award habeas

corpus relief to state prisoners “is limited-by both statute and
Supreme Court precedent.”

Knight v. Fla. Dep’t of Corr., 936 F.3d
3

1322, 1330 (11th Cir. 2019).

The Antiterrorism and Effective

Death Penalty Act (AEDPA) governs a state prisoner's federal
petition for habeas corpus and limits a federal court’s authority
to award habeas relief.

See 28 U.S.C. § 2254; Shoop v. Hill, 139

S. Ct. 504, 506 (2019) (per curiam) (recognizing AEDPA imposes
“important limitations on the power of federal courts to overturn
the judgments of state courts in criminal cases").

Thus, federal

courts may not grant habeas relief unless one of the claims:
"(1)'was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States,' or (2) 'was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.' 28 U.S.C. § 2254(d)."

Nance v.

Warden, Ga. Diagnostic Prison, 922 F.3d 1298, 1300-1301 (11th Cir.
2019), petition for cert. filed, (U.S. Dec. 9, 2019) (No. 196918).
In Knight, the Eleventh Circuit explained:
A decision is “contrary to” clearly
established federal law “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.”
Williams [v. Taylor, 529 U.S. 362 (2000)] at
413, 120 S. Ct. 1495. A state court decision
involves an unreasonable application of
federal law “if the state court identifies the
correct governing legal principle from [the
4

Supreme] Court’s decisions but unreasonably
applies that principle to the facts of the
prisoner’s case.” Id. To justify issuance of
the writ under the “unreasonable application”
clause, the state court’s application of
Supreme Court precedent must be more than just
wrong in the eyes of the federal court; it
“must
be
‘objectively
unreasonable.’”
Virginia v. LeBlanc, ––– U.S. ––––, 137 S. Ct.
1726, 1728, 198 L.Ed.2d 186 (2017)(quoting
Woods v. Donald, ––– U.S. –––, 135 S. Ct. 1372,
1376, 191 L.Ed.2d 464 (2015)); see also Bell
v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843,
152 L.Ed.2d 914 (2002) (explaining that “an
unreasonable application is different from an
incorrect one.”).
Knight, 936 F.3d at 1330–31.
To

obtain

habeas

relief,

the

state

court

decision

must

unquestionably conflict with Supreme Court precedent, not dicta.
Harrington v. Richter, 562 U.S. 86, 102 (2011).

If some fair-

minded jurists could agree with the lower court's decision, habeas
relief must be denied.

Meders v. Warden, Ga. Diagnostic Prison,

911 F.3d 1335, 1351 (11th Cir. 2019), cert. denied, 140 S. Ct. 394
(2019).

Unless the petitioner shows the state-court's ruling was

so lacking in justification that there was error well understood
and comprehended in existing law beyond any possibility for fairminded disagreement, there is no entitlement to habeas relief.
Burt v. Titlow, 571 U.S. 12, 19-20 (2013).
The reviewing federal court must accept that a state court's
finding of fact, whether a state trial court or appellate court,
5

is entitled to a presumption of correctness under 28 U.S.C. §
2254(e)(1).

This presumption of correctness, however, applies

only to findings of fact, not mixed determinations of law and fact.
Brannan v. GDCP Warden, 541 F. App'x 901, 903-904 (11th Cir. 2013)
(per curiam) (recognizing the distinction between a pure question
of fact from a mixed question of law and fact), cert. denied, 573
U.S. 906 (2014).

Where there has been one reasoned state court

judgment rejecting a federal claim followed by an unexplained order
upholding that judgement, federal habeas courts employ a "look
through" presumption: "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."

Wilson v.

Sellers, 138 S. Ct. 1188, 1192 (2018) (Wilson).
Application of the AEDPA standard ensures that habeas corpus
is a guard against extreme malfunctions in the state criminal
justice systems, and not a mechanism for ordinary error correction.
Richter,
omitted).

562

U.S.

at

102-103

(citation

and

quotation

marks

Consequently, state-court judgments will not easily be

set aside due to the applicability of the highly deferential AEDPA
standard that is intentionally difficult to meet.
562 U.S. at 102.

See Richter,

Although this high standard does not impose a

6

complete bar to issuing a writ, it severely limits those occasions
to those "where there is no possibility fairminded jurists could
disagree that the state court's decision conflicts" with Supreme
Court precedent.

Id.
V.

EXHAUSTION AND PROCEDURAL DEFAULT

The doctrine of procedural default requires the following:
Federal habeas courts reviewing the
constitutionality of a state prisoner's
conviction and sentence are guided by rules
designed to ensure that state court judgments
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 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

7

of federal law. See Coleman, 501 U.S., at 750,
111 S. Ct. 2546.
Martinez, 566 U.S. at 9-10.
A petition for writ of habeas corpus should not be entertained
unless the petitioner has first exhausted his state court remedies.
Castille v. Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy, 455
U.S.

509

(1982).

A

procedural

default

arises

"when

'the

petitioner fails to raise the [federal] claim in state court and
it is clear from state law that any future attempts at exhaustion
would be futile.'"

Owen v. Sec'y, Dep't of Corr., 568 F.3d 894,

908 n.9 (11th Cir. 2009) (quoting Zeigler v. Crosby, 345 F.3d 1300,
1304 (11th Cir. 2003)), cert. denied, 558 U.S. 1151 (2010).
There are, however, allowable exceptions to the procedural
default doctrine; "[a] prisoner may obtain federal review of a
defaulted claim by showing cause for the default and prejudice
from a violation of federal law."

Martinez, 566 U.S. at 10

(citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

To

demonstrate cause, a petitioner must show that some objective
factor external to the defense impeded his effort to properly raise
the claim in state court.

Wright v. Hopper, 169 F.3d 695, 703

(11th Cir.), cert. denied, 528 U.S. 934 (1999).
established,

a

petitioner

must

demonstrate

If cause is

prejudice.

To

demonstrate prejudice, a petitioner must show "there is at least
8

a reasonable probability that the result of the proceeding would
have

been

occurred."

different

had

the

constitutional

violation

not

Owen, 568 F.3d at 908.

Alternatively,

a

petitioner

may

obtain

review

of

a

procedurally barred claim if he satisfies the actual innocence
“gateway” established in Schlup v. Delo, 513 U.S. 298 (1995).

The

gateway exception is meant to prevent a constitutional error at
trial from causing a miscarriage of justice and conviction of the
actually innocent.

Kuenzel v. Comm’r, Ala. Dep’t of Corr., 690

F.3d 1311, 1314 (11th Cir. 2012) (per curiam) (quoting Schlup, 513
U.S. at 324), cert. denied, 569 U.S. 1004 (2013).
VI.

GROUNDS FOR RELIEF
A.

Ground One

In ground one, Petitioner raises a claim of ineffective
assistance of counsel for failure to call two defense witnesses,
Shana and Rob.

Petition at 7.

He exhausted this claim by raising

it in ground four of the amended and initial Rule 3.850 motions.
Ex. M at 13-16, 75-78.
Initially, in addressing the post-conviction motion, the
trial court set forth the Strickland v. Washington, 466 U.S. 668
(1984) standard.

Ex. M at 29-30.

Thus, to prevail on a Sixth

Amendment claim, Petitioner must satisfy the two-pronged test set

9

forth in Strickland, 466 U.S. at 688, requiring that he show both
deficient performance (counsel's representation fell below an
objective standard of reasonableness) and prejudice (there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different).
See Brewster v. Hetzel, 913 F.3d 1042, 1051-52 (11th Cir. 2019)
(reviewing court may begin with either component).

To obtain

habeas relief, a counsel's errors must be so great that they
adversely affect the defense.

To satisfy this prejudice prong,

the reasonable probability of a different result must be "a
probability sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694.
The standard created by Strickland is a highly deferential
one, requiring a most deferential review of counsel's decisions.
Richter, 562 U.S. at 105.
mandated

one

layer

of

Not only is there the "Strickland

deference

to

the

decisions

of

trial

counsel[,]" there is the added layer of deference required by
AEDPA: the one to a state court's decision.
1303.

Nance, 922 F.3d at

Thus,
Given the double deference due, it is a "rare
case in which an ineffective assistance of
counsel claim that was denied on the merits in
state court is found to merit relief in a
federal habeas proceeding." Johnson v. Sec'y,
DOC, 643 F.3d 907, 911 (11th Cir. 2011). And,
10

for the reasons we have already discussed, it
is rarer still for merit to be found in a claim
that challenges a strategic decision of
counsel.
Nance, 922 F.3d at 1303.
The court applied the Strickland standard and denied relief,
finding Petitioner failed to satisfy the prejudice prong.
at 34.

Ex. M

In doing so, the trial court first found Petitioner made

a facially sufficient claim of failure to investigate and interview
witnesses, but then denied the claim of ineffective assistance of
counsel based on the following factors: (1) the security camera
footage corroborated the co-defendant’s testimony and directly
refuted what Petitioner’s claims Shana and Rob would have testified
about as witnesses at trial, and (2) the content of the alleged
testimonies of Shana and Rob (who were not allegedly present at
the time of the commission of the offenses),2 viewed alongside the
other

evidence

presented

at

trial,

including

the

eyewitness

identifications made by Mr. Gerry and Ms. Tipton, provides no
reasonable probability of a different outcome.

Id.

The trial court denied the claim, and the First District Court
of Appeal (1st DCA) affirmed per curiam without an opinion and

The trial court found the footage viewed at trial did not show
Shana, Rob, or Johnny Lee Warren in the Wal-Mart parking lot
interacting with Petitioner and his co-defendant. Ex. M at 34.
2

11

explanation.

Ex.

N.

The

1st

DCA’s

decision,

unexplained, is entitled to AEDPA deference.

although

Applying the look

through presumption described in Wilson, the state court’s ruling
is

based

on

a

reasonable

determination

of

the

facts

and

a

reasonable application of the law.
The Florida court’s decision is not inconsistent with Supreme
Court

precedent,

including

Strickland,

and

the

state

court’s

adjudication of the claim is not contrary to or an unreasonable
application

of

Strickland

determination of the facts.

or

based

on

an

unreasonable

Accordingly, ground one is due to be

denied.
B.

Ground Two

In ground two, Petitioner raises a claim of the ineffective
assistance of trial counsel for failure to file a motion to
suppress the out-of-court identification made by Joshua Gerry and
by Charlene Tipton.

Petition at 14.

In this ground, Petitioner

questions the witnesses’ ability to make identifications as they
were using drugs prior to, and right up to the day of the robbery.
Id. at 16.

He also claims the victims, Mr. Gerry and Ms. Tipton,

suffered extensive physical and/or emotional trauma during the
robbery and were gravely affected by it, to the extent they were
too traumatized to accurately remember what happened, bringing

12

into

doubt

their

trial

testimony.

Id.

at

15-16.

Finally,

Petitioner asserts his counsel was ineffective for failure to
obtain an expert on mistaken eyewitness identifications to support
the

filing

of

identifications.

a

motion

to

suppress

the

out-of-court

Id. at 18.

Petitioner raised similar grounds in his post-conviction
motion, except he did not claim his counsel was ineffective for
failure to obtain an expert on mistaken eyewitness identifications
to

support

the

filing

identifications.

of

a

motion

to

suppress

See Ex. M at 7-12, 69-74.

out-of-court

Instead, he claimed

his counsel was ineffective for failure to present an expert on
the hallucinogenic effect of marijuana and an expert on the effect
trauma can have on a victim’s ability to identify perpetrators.
Id.
As

previously

noted,

the

trial

court

referenced

the

Strickland standard before addressing Petitioner’s claims.

The

court, assuming arguendo counsel’s performance was deficient,
found

Petitioner

Strickland.

failed

to

Ex. M at 32.

satisfy

the

prejudice

prong

of

Without satisfying the prejudice

component, Petitioner cannot prevail on his claim of ineffective
assistance

of

counsel.

The

trial

court

explained

that

the

witnesses had met Petitioner on multiple occasions prior to the

13

incident, thus increasing their ability to identify Petitioner,
and both testified that the marijuana they consumed did not affect
their ability to remember what happened, making it unlikely the
jury would have given any weight to expert testimony speaking in
generalities.

Id. at 33.

Petitioner appealed the denial of his Rule 3.850 motion.
Pursuant to Wilson, it is assumed the 1st DCA adopted the reasoning
of the trial court in denying the motion.
attempted to rebut this presumption.

The state has not

Deference under AEDPA should

be given to the last adjudication on the merits provided by the
1st DCA.

Ex. N.

Upon review, the Florida court’s decision is not

inconsistent with Supreme Court precedent, including Strickland
and its progeny.
claim

is

not

Moreover, the state court’s adjudication of this

contrary

to

or

an

unreasonable

application

of

Strickland or based on an unreasonable determination of the facts.
As such, ground two is due to be denied.
To the extent Petitioner expanded the claim and adds a new
claim not previously exhausted, asserting counsel was ineffective
for failure to obtain the assistance of an expert on mistaken
eyewitness identifications to support the filing of a motion to
suppress out-of-court identifications, Respondents contend the

14

claim of ineffective assistance of counsel is unexhausted and
procedurally defaulted.

Response at 22-24.

Petitioner has failed to show cause, and he does not meet the
prejudice or manifest injustice exceptions.

Although a petitioner

may obtain review of the merits of a procedurally barred claim if
he satisfies the actual innocence gateway, Petitioner has not done
so.

The fundamental miscarriage of justice exception is only

available in extraordinary cases upon a showing of "'actual'
innocence" rather than mere "'legal' innocence."

Johnson v. Ala.,

256 F.3d 1156, 1171 (11th Cir. 2001) (citations omitted), cert.
denied, 535 U.S. 926 (2002).

Petitioner has failed to identify

any fact warranting the application of the fundamental miscarriage
of justice exception.
In conclusion, the Court finds the additional claim raised in
ground

two

is

unexhausted

and

procedurally

defaulted.

As

Petitioner has failed to establish cause and prejudice or any
factors warranting the application of the fundamental miscarriage
of justice exception to overcome the default, the court deems the
additional claim raised in ground two procedurally defaulted, and
Petitioner is procedurally barred from raising the unexhausted
portion of ground two in this proceeding.

15

To the extent Petitioner claims his procedural default should
be excused based on the narrow exception under Martinez, Petitioner
must

demonstrate

substantial.3
some merit.

the

underlying

ineffectiveness

claim

is

Indeed, Petitioner must demonstrate the claim has
Martinez, 566 U.S. at 14.

In this instance, the

underlying ineffectiveness claim raised in ground two lacks merit;
therefore, Petitioner has not demonstrated he can satisfy an
exception to the procedural bar.

To explain, the Court provides

a merits analysis.
Petitioner asserts his defense counsel was ineffective for
failure

to

eyewitness

obtain

the

assistance

identifications

to

of

provide

an

expert

expertise

on
and

mistaken
to

help

counsel demonstrate at a suppression hearing that the testimony of
eyewitnesses tends to be distorted and unreliable, especially
under the stressful and violent circumstances described in this
attempted murder and robbery.
This
deficiently

Court
by

is

not

failing

Petition at 19-20.

convinced
to

obtain

that
an

counsel
expert

on

performed
mistaken

identification to testify that the out-of-court identifications
should be suppressed.

Indeed, the Court is not convinced that

The record demonstrates Petitioner did not have counsel for the
filing of his post-conviction Rule 3.850 motion. Ex. M.
3

16

this ground has some merit.

Mr. Gerry, the shooting victim,

identified Petitioner and his co-defendant, Youncher Washington,
as the two perpetrators.

Ex. C at 36-37.

Mr. Gerry described

Petitioner as having a lazy eye and two tattoos on his neck.
at 38.

Id.

Petitioner and Mr. Washington were not strangers to Mr.

Gerry, as Mr. Gerry had been purchasing drugs from the defendants
for several months.

Id. at 30-31. Ms. Tipton testified she got a

good look at Petitioner and she knew him as Chris.
93.

Id. at 89-90,

Significantly, Petitioner’s co-defendant, Mr. Youncher, took

the stand and testified concerning Petitioner’s participation in
the crimes.

Id. at 171, 176-77, 183-92.

As noted by Respondents, at best, an expert on mistaken
identifications would have been able to give a general opinion
about mistaken identifications or, as Petitioner puts it, the
“tendency

of

[witnesses]

yielding

unreliable

stressful, violent, and various other conditions.
However,

the

expert

would

not

be

able

to

results”

Petition at 18.

opine

witnesses, Mr. Gerry and Ms. Tipton, were mistaken.
28.

under

that

these

Response at

The expert’s testimony would go to weight, not admissibility,

meaning there would be no basis to exclude the identification
testimony of Mr. Gerry and Ms. Tipton and a motion to suppress
would

have

been

unsuccessful.

17

Id.

at

28-29.

Therefore,

Petitioner’s counsel’s performance was not deficient for failing
to acquire such an expert and file a motion to suppress relying on
the expert’s opinion.

As such, Petitioner’s underlying claim does

not have some merit.
Based on the above, Petitioner has failed to show he falls
within the narrow parameters of the ruling in Martinez, in which
the Supreme Court recognized a narrow exception for ineffective
assistance

of

counsel/absence

collateral proceedings.
underlying

ineffective

of

counsel

at

initial-review

As Petitioner failed to demonstrate the
assistance

of

counsel

claim

is

a

substantial one, he does not fall within this narrow exception.
Thus, he has failed to establish cause for the procedural default
of his claim of ineffective assistance of trial counsel raised in
ground two.
C.

Ground Three

In his third ground for post-conviction relief, Petitioner
raises a claim of ineffective assistance of trial counsel for
failure to object and move to exclude inadmissible bank documents.
Petition

at

23.

He

contends

his

counsel’s

performance

was

deficient for failing to object to the admission of unauthenticated
bank statements introduced during the trial.

Petitioner asserts

that had counsel been successful in keeping out the unauthenticated

18

bank statements, this would have made the video surveillance of
Petitioner and his co-defendant at Wal-Mart inadmissible because
the surveillance footage would have been deemed irrelevant without
the bank statements.

Id. at 24.

Petitioner exhausted part of this claim, raising the claim
that his counsel’s performance was deficient for failure to object
to the admission of the unauthenticated bank statements in the
state court.

Ex. M at 16-18, 78-80.

The trial court, in denying

this post-conviction claim, assumed arguendo counsel’s performance
was deficient for failing to object to the introduction of the
victim’s bank statements, but found Petitioner’s alleged prejudice
did not amount to the level of prejudice required under Strickland.
Ex. M at 35.

The court found the admission of the bank statements

harmless as the unauthorized use of the bank card did not go to
any element of proof for the offenses charged.
even

if

the

bank

records

were

excluded,

the

Id.

Moreover,

co-defendant’s

testimony that the card used on the security camera footage was
the victim’s debit card would have been admissible.
The 1st DCA affirmed the decision of the trial court.
N.

Ex.

The 1st DCA’s decision, although unexplained, is entitled to

AEDPA deference.

Applying the look through presumption described

in Wilson, the state court’s ruling is based on a reasonable

19

determination of the facts and a reasonable application of the
law.

Thus, the Florida court’s decision is not inconsistent with

Supreme

Court

precedent,

court’s

adjudication

of

including
the

claim

Strickland,
is

not

and

contrary

the
to

state
or

an

unreasonable application of Strickland or based on an unreasonable
determination of the facts.

Thus, ground three is due to be

denied.
To the extent Petitioner blames his failure to properly
exhaust the new portion of ground three on the fact that he had no
counsel

to

prepare

his

Rule

3.850

motion,

the

Court

is

not

convinced that the remaining part of ground three has some merit.
An explanation follows.
Even if counsel had objected and the bank statements had been
excluded, the security footage from Wal-Mart would have remained
relevant and admissible to corroborate Mr. Washington’s and the
victim’s testimony concerning the taking of the debit card and Mr.
Washington’s testimony concerning the use of the debit card shortly
after the commission of the crimes.

The taking of the debit card

was certainly relevant to the charged crime of armed robbery.
A at 9.

Ex.

The information charged Petitioner and his co-defendant

with carrying a firearm and, by force, violence, assault, or
putting in fear, taking the money or other property of Mr. Gerry

20

with the intent to permanently or temporarily deprive him of the
money or other property, and during the commission of the offense,
Petitioner possessed and discharged a firearm, inflicting great
bodily harm upon Mr. Gerry.

Id.

The video footage revealed

Petitioner and his co-defendant using the debit card, described by
Mr. Washington as the victim’s debit card, and this evidence is
certainly relevant to prove or disprove a material fact.
Stat. § 90.401.

Fla.

As such, Petitioner’s unexhausted claim of

ineffective assistance of counsel (part of ground three) is not
substantial.
Petitioner has failed to show he falls within the narrow
parameters of the ruling in Martinez.

As he has failed to

demonstrate that his underlying claim of ineffective assistance of
counsel

is

a

substantial

one,

he

does

not

meet

the

narrow

exception.

Therefore, he has failed to establish cause for the

procedural

default

of

his

unexhausted

claim

of

ineffective

assistance of trial counsel raised in ground three.
D.

Ground Four

In his final claim for post-conviction relief, Petitioner
raises a claim of ineffective assistance of trial counsel for
failure

to

testimony

object
of

Mr.

to

the

Gerry

state’s

and

Ms.

21

presentation
Tipton.

of

the

Petition

at

false
25.

Petitioner contends Mr. Gerry and Ms. Tipton presented false
testimony that Mr. Gerry had been in a coma after being shot
multiple

times.

Petitioner

asserts

the

testimony

was

false

because Mr. Gerry, as evidenced by the hospital records, was never
in a coma, and, if counsel had objected, Petitioner would have
been re-tried or at the very least, the testimony of Mr. Gerry and
Ms. Tipton would have been properly impeached.

Id. at 26-27.

Petitioner raised his claim of ineffective assistance of
counsel in his post-conviction motion.

Ex. M at 20-22, 82-84.

He

asserted, to perform effectively, counsel should have reviewed the
medical records that showed Mr. Gerry was never in a coma, and
armed with that information, counsel would have been prepared to
recognize

and

object

to

the

improper

presentation

of

this

testimony, relying on Giglio v. United States, 405 U.S. 150 (1972).
Ex. M at 21.

Further, Petitioner claimed the testimony about Mr.

Gerry being in a coma was used to incite the emotions of the jury.
Id. at 22.
The trial court, in denying this ground, assumed arguendo
deficient performance, but found Petitioner did not meet the
prejudice prong of Strickland.

Ex. M at 38.

The Court rejected

the notion that this testimony resulted in the state developing a
bias against Petitioner by gaining the jury’s sympathy through

22

stressing Mr. Gerry’s coma.

Id. at 38.

The court found that

while being in a coma may reflect serious injury, it was obvious
that Mr. Gerry suffered serious injuries as he was shot multiple
times, including once in the neck, and he was left to die on the
floor of his apartment.

Id.

The trial court concluded that any

claim of a coma pales in comparison to the injuries Mr. Gerry
suffered.

Id.

Of import, the trial court found the issue of Mr. Gerry’s
claim to be in a coma was not left unchallenged by defense counsel.
Id.

at

39.

Through

effective

cross

examination,

counsel

questioned Mr. Gerry’s contention he had not spoken with Ms. Tipton
because he had been in a coma.

Id.

The court concluded, “the

discussion of Joshua Gerry’s coma had very little prejudicial
effect, if any, and had counsel objected there is not a reasonable
probability of a different outcome.”

Id.

The court set forth the Strickland standard before addressing
this claim.

The court rejected the claim, finding Petitioner did

not satisfy the prejudice prong.
opinion and explanation.

The 1st DCA affirmed without an

Ex. N.

Pursuant to Wilson, it is

assumed the 1st DCA adopted the reasoning of the trial court in
denying the motion.

The state has not attempted to rebut this

presumption.

23

The Court concludes AEDPA deference is warranted.

The record

shows the 1st DCA affirmed the decision of the trial court, Ex. N,
and the Court presumes the appellate court adjudicated the claim
on its merits, as there is an absence of any indication of statelaw

procedural

adjudication

principles

is

to

the

unaccompanied

by

contrary.
an

Since

the

explanation,

last

it

is

Petitioner’s burden to show there was no reasonable basis for the
state court to deny relief.

He has failed in this endeavor.

Thus,

the Court finds the state court’s adjudication of this claim is
not contrary to or an unreasonable application of Strickland or
based on an unreasonable determination of the facts.

As such,

ground four is due to be denied.
Alternatively, based on the record, the Court is not convinced
defense counsel’s performance fell below an objective standard of
reasonableness.

Indeed, counsel’s actions were well within the

scope of permissible performance.
performance, not perfection.
omitted).

The standard is reasonable

Brewster, 913 F.3d at 1056 (citation

In addition, Petitioner has failed to show resulting

prejudice, the second prong of the Strickland standard.

There is

no reasonable probability that the outcome of the case would have
been different if trial counsel had taken the action suggested by
Petitioner.

24

The

record

demonstrates

the

following.

Defense

counsel

effectively cross examined Mr. Gerry, pointing out he could not
have been unconscious for eight days because he began undergoing
physical therapy on July 12th.

Defense counsel also effectively

cross examined Ms. Tipton about her lack of memory and sudden
ability to identify an assailant.

On cross examination, Mr. Gerry

testified he was unconscious for eight days.4

Ex. C at 72.

He

said he and Ms. Tipton did not discuss much because he had tubes
down his throat.

Id. at 73.

Ms. Tipton testified it took Mr.

Gerry seven to eight days to regain consciousness after surgery.
Id.

at

98.

Ms.

Tipton

said

she

was

not

able

to

have

any

communication with Mr. Gerry prior to the detectives coming on
July 13, 2007.

Id. at 104.

Ms. Tipton testified Petitioner was

conscious on July 13th, and she called the officers.

Id. at 113.

In closing argument, defense counsel noted Mr. Gerry started
physical

therapy

on

July

communicate on that date.

12th;

therefore,

Ex. E at 415.

he

was

able

to

Counsel asked the jury

to review the medical records to assess whether Mr. Gerry was
unable to communicate until July 13th.

Id.

Defense counsel also

pointed out that Ms. Tipton was able to speak with Mr. Gerry if he
was undergoing physical therapy and communicating with staff.

4

The shooting occurred on July 6, 2007.
25

Ex. A at 9.

Id.

at 415-16.

Defense counsel also emphasized the change in Ms.

Tipton’s story, that she could suddenly identify an assailant on
July 13th, but was unable to do so prior to that date.

Id. at

417.
Upon review, the medical records show Mr. Gerry was sent to
the operating room for general surgery on July 6, 2007.
45-46.

Ex. A at

On July 9, 2007, a resident described Mr. Gerry as

intubated and sedated.

Id. at 50.

On July 12th,5 the physical

therapist completed an inpatient evaluation/re-evaluation form and
recorded the patient’s goals were to get better.

Id. at 59.

The

physical therapist noted Mr. Gerry had a chest tube on that date.
Id.

On July 13th, Mr. Gerry

services.

participated in

rehabilitation

Id. at 60.

Thus, the medical records show Mr. Gerry received surgery for
very serious injuries, was intubated and sedated for some time,
and as late as July 12th, still had a chest tube.

Based on the

medical records, Mr. Gerry’s ability to communicate during the
week after surgery seemed severely limited by his medical condition
and the measures used to treat him, but, apparently, he was able
to communicate with medical staff on July 12, 2007.

It is difficult to discern the date, but it appears to be July
12, 2007.
5

26

As noted previously, counsel performed effectively by cross
examining these witnesses, bringing out the weaknesses in their
testimony and highlighting any exaggeration of the duration of
Petitioner’s

unconscious

state.

Also,

defense

closing argument to reinforce her points.

counsel

used

As such, defense

counsel’s performance did not fall below an objective standard of
reasonableness for failure to object to the testimony and for
failure to use the medical records to impeach the witnesses.6

In

the alternative, any error in counsel’s performance was not so
great that it adversely affected the defense.

Petitioner is not

entitled to habeas relief on ground four.
Finally, the trial court rejected any notion that there was
a Giglio violation that counsel failed to confront.
The

court

concluded

that

inconsistencies

between

Ex. M at 39.
a

witness’

recollection of events and documentation of those events is best

To the extent Petitioner is attempting to raise a new claim (the
ineffective assistance of counsel for failure to impeach the
witnesses with the medical records), the claim is unexhausted and
procedurally defaulted.
Petitioner has failed to demonstrate
cause and prejudice or that a fundamental miscarriage of justice
will result if the claim is not addressed on its merits. Moreover,
the claim does not have some merit. Martinez. “In light of all
of the evidence presented at trial, further impeachment by noting
a lack of reference to ‘coma’ in Gerry’s medical records would
have been inconsequential.”
Response at 42.
Petitioner has
failed to demonstrate the underlying ineffective assistance of
counsel claim is substantial; therefore, he has not overcome the
default.
6

27

brought out on cross examination, exactly what was done by defense
counsel in this case.

Id.

The court rejected Petitioner’s

contention the state knowingly presented false testimony.
The 1st DCA affirmed.

Ex. N.

Id.

The state court’s decision is

entitled to AEDPA deference, and Petitioner is not entitled to
habeas

relief

as

ineffectiveness

the

claim

state

is

court’s

not

contrary

adjudication
to

or

an

of

the

unreasonable

application of Supreme Court law or based on an unreasonable
determination of the facts.

Ground four is due to be denied.

Accordingly, it is now
ORDERED AND ADJUDGED:
1.

The Petition for Writ of Habeas Corpus (Doc. 1) is

DENIED.
2.

This action is DISMISSED WITH PREJUDICE.

3.

The Clerk shall enter judgment accordingly and close

this case.
4.

If Petitioner appeals the denial of his Petition for

Writ of Habeas Corpus (Doc. 1), the Court denies a certificate of
appealability.

7

Because

this

Court

has

determined

that

a

This Court should issue a certificate of appealability only if a
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
7

28

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.
DONE AND ORDERED at Jacksonville, Florida, this 14th day of
February.

sa 2/12
c:
Sherman Thomas
Counsel of Record

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)).
Upon due consideration, this Court will
deny a certificate of appealability.
29