Shaabazz v. Secretary, Department of Corrections et al
ORDER denying the Petition, and dismissing the action with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 6/7/2021. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
HASSAN W. SHAABAZZ, 1
Case No. 3:18-cv-506-MMH-JRK
DEPARTMENT OF CORRECTIONS,
Petitioner Hassan W. Shaabazz, an inmate of the Florida penal system,
initiated this action on April 13, 2018, 2 by filing a Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1). 3 In the Petition, Shaabazz
challenges a 2013 state court (Duval County, Florida) judgment of conviction
for burglary of an occupied dwelling. He raises four grounds for relief. See
The state-court record refers to Petitioner as “Shabazz.” However, since
Petitioner refers to himself as “Shaabazz” in this proceeding, the Court will
refer to him as “Shaabazz.”
See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).
For purposes of reference to pleadings and exhibits, the Court will cite
the document page numbers assigned by the Court’s electronic docketing
Petition at 3-13. Respondents have submitted a memorandum in opposition to
the Petition. See Answer (Response; Doc. 18). They also submitted exhibits.
See Docs. 18-1 through 18-16. Shaabazz filed a brief in reply. See Reply (Doc.
24). This action is ripe for review.
II. Relevant Procedural History
On March 2, 2012, the State of Florida charged Shaabazz, by Information
in case number 16-2012-CF-001355-AXXX-MA, with burglary of an occupied
dwelling. See Doc. 18-1 at 19. At the conclusion of a trial on July 16, 2013, a
jury found Shaabazz guilty, as charged. See Docs. 18-1 at 103-04, Verdict; 182 through 18-5, Transcripts of the Trial Proceedings (Tr.), at 466-67. 4 The
circuit court sentenced Shaabazz to a term of imprisonment of twenty-three
years, as a habitual felony offender (HFO), with a minimum mandatory term
of fifteen years imposed as a prison releasee reoffender (PRR) on August 20,
2013. See Doc. 18-1 at 111-17, Judgment; 125-71, Transcript of the Nelson 5
and Sentencing Hearing (Sentencing Tr.).
Shaabazz, with the benefit of counsel, filed a motion to correct sentencing
error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) (Rule 3.800
The Court will cite the page number in the upper-righthand corner of
In Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), the Fourth
District Court of Appeal held that if an indigent defendant expresses a desire
to discharge court-appointed counsel because of counsel’s ineffectiveness, the
motion) on January 27, 2014. See Doc. 18-6 at 3-12. In the Rule 3.800 motion,
Shaabazz asked that the court remove the PRR designation, the fifteen-year
PRR minimum mandatory sentence, and the $100.00 Sheriff’s Office
investigative cost. On March 24, 2014, the court granted the Rule 3.800 motion
as to the Sheriff’s investigative cost, and denied the motion with respect to
Shaabazz’s assertions relating to his PRR sentence. See id. at 13-19; see also
id. at 27-33, Amended Judgment.
On direct appeal, Shaabazz, with the benefit of counsel, filed an initial
brief, arguing that the trial court imposed the PRR sentence in violation of
Alleyne v. United States, 570 U.S. 99 (2013), where the facts necessary to
impose such sanctions were not found by a jury beyond a reasonable doubt and
where the State’s intent to seek such sanctions was not alleged in the
Information. See Doc. 18-7. The State filed an answer brief, see Doc. 18-8, and
Shaabazz filed a reply brief, see Doc. 18-9. On July 8, 2014, the appellate court
(First DCA) affirmed Shaabazz’s conviction and sentence per curiam without
issuing a written opinion, see Doc. 18-10, at 1, and denied Shaabazz’s motion
for rehearing on August 19, 2014, see id. at 2-6. The court issued the mandate
on September 4, 2014. See id. at 9.
trial court must hold a hearing to determine whether there is reasonable cause
to believe that the court-appointed counsel is not rendering effective assistance
to the defendant.
Shaabazz filed a pro se motion for postconviction relief pursuant to
Florida Rule of Criminal Procedure 3.850 (Rule 3.850 motion) on August 21,
2015, see Doc. 18-11 at 1-62, and a substantially similar Rule 3.850 motion on
June 13, 2016, see Doc. 18-12 at 1 n.2. In his request for postconviction relief,
Shaabazz asserted that his trial counsel was ineffective because he failed to:
attack a deficient charging document and erroneous jury instructions (ground
one), see Doc. 18-11 at 5-9; suppress Shaabazz’s statements to police (ground
two), see id. at 9-13; properly advise Shaabazz of the benefits and
disadvantages of testifying as a convicted felon (ground four), see id. at 15-17;
object to the State’s bolstering and character attacks at trial (ground five), see
id. at 17-19; attack the sufficiency of the Information by moving for an arrest
of judgment (ground six), see id. at 19-21; and present mitigation evidence
relating to Shaabazz’s drug addiction at sentencing (ground seven), see id. at
21-22. He also asserted that trial counsel was ineffective because he conceded
Shaabazz’s guilt (ground three). See id. at 13-15. On July 11, 2016, the circuit
court struck grounds one, two, three, and six, and granted Shaabazz an
opportunity to amend his claims. See Doc. 18-12.
Shaabazz filed a pro se amended Rule 3.850 motion on January 28, 2017.
See Doc. 18-13 at 1-13. In his amended request for postconviction relief, he
voluntarily withdrew grounds one, two, three, and six. See id. at 2.
Additionally, he added two claims, asserting that trial counsel was ineffective
because he failed to: inform Shaabazz that the State offered a ten-year plea
(ground eight), see id. at 2-8; and file a motion to suppress relating to an illegal
search of Shaabazz’s cellular phone (ground nine), see id. at 9-12. The circuit
court denied grounds four, five, and seven on February 10, 2017. See Doc. 1814 at 3-8. Additionally, the court stated that grounds eight and nine “are new
claims raised outside the two-year filing period,” and therefore, “are
procedurally barred as untimely.” Id. at 8. Alternatively, the court stated that
Shaabazz was “not entitled to relief” on either ground. Id. On appeal, Shaabazz
did not file a brief despite the fact that the First DCA granted him an extension
of time to do so. The First DCA affirmed the circuit court’s denial of Shaabazz’s
amended Rule 3.850 motion per curiam without issuing a written opinion on
February 5, 2018, see Doc. 18-16 at 1, and issued the mandate on March 5,
2018, see id. at 3.
III. One-Year Limitations Period
This action 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). “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 [Shaabazz’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. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016). “‘The purpose of AEDPA is to ensure that federal habeas relief functions
as a guard against extreme malfunctions in the state criminal justice systems,
and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S.
34, 38 (2011) (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
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
[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 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
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 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). 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) “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. A district court’s obligation is “to train its attention”
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).
on the legal and factual basis for the state court’s ruling, not to “flyspeck the
state court order or grade it.” Meders v. Warden, Ga. Diagnostic Prison, 911
F.3d 1335, 1349 (11th Cir. 2019) (citing Wilson, 138 S. Ct. at 1191-92), cert.
denied, 140 S. Ct. 394 (2019). Thus, to the extent that a 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 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:
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,[ 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,
Coleman v. Thompson, 501 U.S. 722 (1991).
Wainwright v. Sykes, 433 U.S. 72 (1977).
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. 307, 316, 131 S. Ct. 1120,
1127-1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler,
558 U.S. 53, 60-61, 130 S. Ct. 612, 617-618, 175
L.Ed.2d 417 (2009). The doctrine barring procedurally
defaulted claims from being heard is not without
exceptions. A prisoner may obtain federal review of a
defaulted claim by showing cause for the default and
prejudice from a violation of federal law. See Coleman,
501 U.S., at 750, 111 S. Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be
excused under certain circumstances. Notwithstanding that a claim has been
procedurally defaulted, a federal court may still consider the claim if a state
habeas petitioner can show either (1) cause for and actual prejudice from the
default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d
1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,
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).
Murray v. Carrier, 477 U.S. 478 (1986).
In Martinez, the Supreme Court recognized an exception to the general
procedural default rule. 566 U.S. at 9. The Court held that where a claim of
ineffective assistance of trial counsel must be raised in an initial-review
collateral proceeding under state law, “a procedural default will not bar a
federal habeas court from hearing a substantial claim of ineffective assistance
at trial if, in the initial-review collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective.” Id. at 17. Thus, to demonstrate
cause under Martinez, a petitioner must establish: (1) a substantial claim of
ineffective assistance of trial counsel; (2) he had no counsel or had ineffective
assistance of counsel during the initial-review collateral proceeding; (3) the
state collateral proceeding was the initial review proceeding with respect to
the ineffective-assistance-of-trial-counsel claim; and (4) the state’s law
required the petitioner to raise the ineffective-assistance-of-trial counsel claim
in the initial collateral proceeding. 10 Clark v. Commissioner, Ala. Dep’t of
Corr., 988 F.3d 1326, 1330 (2021) (citing Trevino v. Thaler, 569 U.S. 413, 423
(2013)); see Fifield v. Sec’y, Dep’t of Corr., No. 19-13096, 2021 WL 915768, at
*2 (11th Cir. Mar. 10, 2021). A substantial claim is one that has “some merit.”
Florida law generally requires ineffective assistance claims to be
raised on collateral review and to be raised within two years after the judgment
and sentence becomes final. Fla. R. Crim. P. 3.850(b); see Sullivan v. Sec’y, Fla.
Dep’t of Corr., 837 F.3d 1195, 1199 (11th Cir. 2016); Rigg v. Warden,
Blackwater River Corr. Facility, 685 F. App’x 812, 816 (11th Cir. 2017); see
also Robards v. State, 112 So.3d 1256, 1266-67 (Fla. 2013).
Martinez, 566 U.S. at 13-14 (comparing the substantiality requirement to the
standard required for a certificate of appealability).
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 and Appellate 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 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.
Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of
any iron-clad 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
Claims of ineffective assistance of appellate counsel are governed by the
same standards applied to trial counsel under Strickland. See Tuomi v. Sec’y,
Fla. Dep’t of Corr., 980 F.3d 787, 795 (11th Cir. 2020); Philmore v. McNeil, 575
F.3d 1251, 1264 (11th Cir. 2009). The Eleventh Circuit has instructed:
In assessing an appellate attorney’s performance, we
are mindful that “the Sixth Amendment does not
require appellate advocates to raise every nonfrivolous issue.” Id. at 1130-31.[ 11] Rather, an effective
attorney will weed out weaker arguments, even
though they may have merit. See id. at 1131. In order
to establish prejudice, we must first review the merits
of the omitted claim. See id. at 1132. Counsel’s
Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991).
performance will be deemed prejudicial if we find that
“the neglected claim would have a reasonable
probability of success on appeal.” Id.
See Philmore, 575 F.3d at 1264. Thus, appellate counsel’s performance is
prejudicial if the omitted claim would have a reasonable probability of success
on appeal. Id. at 1265.
Additionally, the United States Supreme Court has long recognized that
Strickland’s two-part inquiry applies to ineffective-assistance-of-counsel
claims arising out of the plea process. See Hill v. Lockhart, 474 U.S. 52, 57
(1985). In companion decisions in Missouri v. Frye, 566 U.S. 134 (2012), and
Lafler v. Cooper, 566 U.S. 156 (2012), the Supreme Court clarified that the
Sixth Amendment right to the effective assistance of counsel extends
specifically “to the negotiation and consideration of plea offers that lapse or are
rejected.” In re Perez, 682 F.3d 930, 932 (11th Cir. 2012) (per curiam) (footnote
omitted). The Court articulated a four-part test to prove prejudice in the
context of a foregone guilty plea. Lafler, 566 U.S. at 164; see Frye, 566 U.S. at
A state court’s adjudication of an ineffectiveness claim is accorded great
“[T]he standard for judging counsel’s representation is
a most deferential one.” Richter, 562 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, 562 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. Grounds One and Three
As ground one, Shaabazz asserts that trial counsel (Assistant Public
Defender Jason Barrett Snyder) was ineffective because he failed to convey the
State’s ten-year plea offer. See Petition at 3-5. He states in pertinent part:
Counsel Jason Snyder was ineffective for failing to
convey a favorable plea offer of ten (10) years [to be
served in the] Florida Department of Corrections as a
Prison Releasee Reoffender. Had Counsel properly
conveyed the favorable plea offer of ten (10) years[,]
Petitioner would have accepted the plea, especially
where the Petitioner was facing a possible 30 year
sentence as a habitual offender. The prosecutor would
have accepted the plea and would not have withdrawn
the offer. The Fourth Judicial Circuit would have
accepted the favorable plea offer. Finally, the
Petitioner’s sentence would have been less severe had
Counsel properly conveyed the ten (10) year plea offer.
As it stands, the Petitioner was prejudiced by
Counsel’s actions because he did not have the
opportunity to make an informed decision and accept
the favorable plea offer. Petitioner was further
prejudiced because he received a twenty-three (23)
year habitual offender sentence (15 minimum
mandatory PRR), which is thirteen (13) years more
than the favorable plea offer. Absent Counsel’s
errors[,] there exists a reasonable probability that the
outcome of the proceedings would have been different.
Strickland v. Washington, 466 U.S. 668 (1984).
Petition at 5. Additionally, as ground three, Shaabazz asserts that subsequent
trial counsel (Assistant Public Defender Thomas Martin Murphy) was
ineffective because he failed “to properly secure” the State’s fifteen-year plea
offer. Id. at 9. According to Shaabazz, the following events transpired when the
State offered the fifteen-year plea.
At jury selection, Counsel advised Petitioner of a plea
agreement for 15-years. Petitioner asked Counsel to
tender a counteroffer of 3-years. Petitioner advised
Counsel that if the State would not negotiate, he would
accept the 15-year plea. Counsel relayed the offer to
the State. However, Petitioner never heard back
regarding the plea. At the beginning of trial, Petitioner
asked Counsel about the plea negotiations. Counsel
advised Petitioner that they were going to trial.
Petitioner again asked Counsel about the 15-year plea
offer. Counsel again stated that they were going to
Shaabazz raised the ineffectiveness claim in ground one (relating to the
ten-year plea offer) in his amended Rule 3.850 motion. See Doc. 18-13 at 2-8
(ground eight). In the request for postconviction relief, he alleged in pertinent
At no point did counsel from the public defender
relay any plea offer to the Defendant (of whom was
housed in the county jail pending disposition of this
case) as was extended by the state prosecutor before
arraignment on the 7th day of May, 2012. Due to
initial counsel Jason Snyder not extending the
original ten-year offer to the Defendant on the
burglary charge with the State of Florida
agreeing to waive enhancement as a habitual
felony offender, but insist on prison releasee
reoffender. And, without any reservation, the
Defendant would have taken such offer as he did
receive a 23-year sentence as a habitual felony
offender, and a 15-year minimum mandatory
component as a prison releasee reoffender. Under such
guise and ineffective representation of counsel, the
state prosecutor was under the impression that the
Defendant rejected the offer.
But, the truth of the matter was that [Shaabazz]
only learned of such plea from successor counsel
during a latter hearing sidebar with Tom
Murphy whe[n] it c[a]me about [in] an argument of
why he did not accept the state prosecution’s lone offer.
And, the truth is that the Defendant had no idea
of what he was rambling about in a rathe[r]
Doc. 18-13 at 3-4 (emphasis added). The circuit court denied the amended Rule
3.850 motion as to the ineffectiveness claim, stating it was a new claim “raised
outside the two-year filing period,” and therefore was “procedurally barred as
untimely.” Doc. 18-14 at 8. Additionally, the court concluded that the claim was
“refuted by the record, as the State only offered a fifteen year plea deal the day
of trial, which counsel conveyed to [Shaabazz].” Id. (citing Docs. 18-1 at 13132; 18-14 at 126-27). The First DCA affirmed the circuit court’s denial of
Shaabazz’s amended Rule 3.850 motion per curiam without issuing a written
opinion. See Doc. 18-16 at 1.
Respondents argue that Shaabazz did not properly exhaust these
ineffectiveness claims in the state courts, and thus, the claims are procedurally
barred. See Response at 16-17, 20. They contend that Shaabazz never raised
the ineffectiveness claim in ground three (relating to the fifteen-year plea offer)
in his amended Rule 3.850 motion. See id. at 20. Shaabazz asks that the Court
review the merits of his ineffectiveness claims under Martinez, 566 U.S. 1,
because he was not represented by counsel during the postconviction
proceeding, and the ineffectiveness claims are “of substantial magnitude.”
Petition at 5, 9; see Reply at 1-3. The Court agrees that the ineffectiveness
claims are procedurally barred since Shaabazz failed to raise the claims in a
procedurally correct manner. Shaabazz has not shown either cause excusing
the default or actual prejudice resulting from the bar. 12 Moreover, he has failed
to identify any fact warranting the application of the fundamental miscarriage
of justice exception.
Even assuming Shaabazz’s claims are not procedurally barred, Shaabazz
is not entitled to federal habeas relief on these ineffectiveness claims. A
chronology of relevant facts follows. Prior to jury selection on July 15, 2013,
Assistant State Attorney Brady, in Shaabazz’s presence, stated in pertinent
Before you bring the jurors in, I’d just like to put
on the record, that Mr. Shabazz is a 13 time convicted
felon.[ 13] He’s looking at 15 to 30 years. I have not
received any defense offers. I just wanted to put that
on the record, that Mr. Murphy has talked with his
client, and Mr. Shabazz is not making any offers
to the State at this time.
Tr. at 15 (emphasis added). Prior to the August 20, 2013 sentencing, Shaabazz
filed a pro se “Motion for Nelson Inquiry Hearing” (Nelson Motion). See Doc.
“To overcome the default, a prisoner must also demonstrate that the
underlying ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim has some
merit.” Martinez, 566 U.S. at 14. As discussed in the alternative merits
analysis that follows, these ineffectiveness claims lack any merit. Therefore,
Shaabazz has not shown that he can satisfy an exception to the bar.
At trial, Shaabazz stipulated that he had thirteen prior felonies,
including some burglaries. See Tr. at 306.
18-1 at 107-10. In the Nelson Motion, Shaabazz asked that the state circuit
court remove his attorney (Thomas Murphy) and replace him with another
attorney. See id. at 110. According to Shaabazz, Murphy was appointed in
December 2012, see id. at 107, and “ignored” Shaabazz’s request that Murphy
pursue “the possibility of a plea agreement,” id. at 108. Shaabazz also
complained about Murphy’s lack of communication and defense strategy,
among other things. See id. at 108-09. Shaabazz neither asserted that he had
discovered that there had been a prior ten-year offer, that the State had made
a fifteen-year offer, that he had made a three-year counteroffer, nor that
Murphy failed to tell the prosecutor that Shaabazz was willing to accept the
State’s fifteen-year offer if the State refused Shaabazz’s three-year
counteroffer. At the sentencing, Murphy advised the state circuit court that
Shaabazz had filed a pro se Nelson Motion, and the following colloquy ensued.
THE COURT: All right. For the record this is a
Nelson inquiry and I know it comes at this late stage.
We have already had Phase 1 of the sentencing
hearing and he was found guilty by the jury at the
I’m looking at Page 2 of 4 and it is Paragraph 3
and the first paragraph is just a general allegation
that I don’t believe requires any response.
MR. MURPHY: Your Honor, I believe that the
Nelson hearing at this point would only go to the
inability to complete the sentencing hearing.
THE COURT: Right. I think that sounds right to
me. To the extent it is a Nelson request. He’s asking
the Court to appoint another attorney to represent him
for the little bit that we have to do. The Phase 2, where
the Court would hear any mitigation and/or
aggravation and then sentence the defendant. Thank
you for reminding me [of] that counsel. You’re correct
to the extent that he might be complaining about past,
alleged wrongs. They may or may not be relevant.
But what’s really relevant is whether you can
proceed to competently represent him for the
remainder of his sentencing hearing, which we have
already been through the first phase.
. . . .
THE COURT: . . . . All right. In 4-1.2a, under
Paragraph 3, the defendant in his pro-se motion
alleges . . . and I’ll read it word-for-word: “Lawyer to
abide by client’s decisions. The defendant constantly
requested that Mr. Murphy pursue the possibility of
a plea agreement and also requested to be heard as to
the defendant’s suggestions of defense’s strategy.
None was ever recognized by Mr. Murphy. He ignored
Mr. Murphy, I now ask you . . . is that true
that you never -- you ignored him and never
recognized his request to possibly plea bargain?
First of all, is that true?
MR. MURPHY: No, Your Honor.
THE COURT: What, in fact, happened, if
MR. MURPHY: Well, Mr. Brady was the
State Attorney at that time,[ 14] and I know that
he had given me a -- the only thing that I
remember is that we couldn’t come to any sort of
resolution. I know at one point that Mr. Brady
had offered fifteen years and then I remember
on the day of the trial -THE COURT: Did – [if] Mr. Brady offered
fifteen years, would you have conveyed that to
MR. MURPHY: Yes, [a]nd I remember that
we did have the conversation on the day of jury
selection.[ 15] I know that Mr. Shabazz had
countered with the three years, which I
conveyed that to the State.
THE COURT: Okay. I can see that’s a false
allegation. . . .
Sentencing Tr. at 129-32 (emphasis added).
In his amended Rule 3.850 motion, Shaabazz asserted that he learned
from Murphy at a sidebar that the State had made a ten-year plea offer (with
the State agreeing to waive enhancement as a habitual felony offender, 16 but
The record reflects that Assistant State Attorney Brian Daniel Brady
was assigned to the case on or about January 2, 2013. See Doc. 18-1 at 5.
See Tr. at 15.
See Doc. 18-1 at 21, Notice of Intent to Classify Defendant as an
Habitual Felony Offender (“The State, in conformity with Section 775.084,
Florida Statutes, will seek to have the Defendant sentenced to thirty (30) years
imprisonment.”), filed March 7, 2012.
“insist[ing] on prison releasee reoffender”) at the arraignment, but Snyder (his
attorney at the March 7, 2012 arraignment) 17 failed to convey it to Shaabazz.
Doc. 18-1 at 3. Notably, Shaabazz acknowledged that the State would still seek
to have the Defendant sentenced as a prison releasee reoffender, which
required a fifteen-year minimum mandatory sentence. 18 As the circuit court
stated in denying Shaabazz’s amended Rule 3.850 motion, “the State only
offered a fifteen year plea deal the day of trial, which counsel conveyed to
[Shaabazz].” Doc. 18-14 at 8 (citing Docs. 18-1 at 131-32; 18-14 at 126-27). At
sentencing, Murphy recalled that the State had made a fifteen-year plea offer
“at one point” in the proceedings, Shaabazz made a three-year counteroffer
that Murphy conveyed to the State, and that the parties could not “come to any
sort of resolution” on the day of jury selection, and therefore Shaabazz
proceeded to trial. Sentencing Tr. at 132. The state trial judge found that
Shaabazz had made “false” assertions related to Murphy’s failure to pursue a
plea agreement. Id.
See Doc. 18-1 at 4.
See Doc. 18-1 at 20, Notice of Intent to Classify Defendant as a Prison
Release Re-Offender (“The State, in conformity with Section 775.082, Florida
Statutes, will seek to have the Defendant sentenced to fifteen (15) years
imprisonment.”), filed March 7, 2012; see also Sentencing Tr. at 46.
A counsel’s failure to convey a plea offer can constitute deficient
performance. Frye, 566 U.S. 134 (addressing counsel’s failure to communicate
to defendant the prosecutor’s written plea offer before it expired); Lafler, 566
U.S. 156 (addressing counsel’s performance in advising defendant to reject a
plea offer and proceed to trial). In order to establish that a failure to convey a
plea offer was prejudicial, a petitioner must demonstrate that (1) he “would
have accepted the plea”; (2) “the prosecution would not have withdrawn it in
light of intervening circumstances”; (3) “the court would have accepted its
terms”; and (4) “the conviction or sentence, or both, under the offer’s terms
would have been less severe than under the judgment and sentence that in fact
were imposed.” Lafler, 566 U.S. at 164; see Frye, 566 U.S. at 147; Carmichael
v. United States, 966 F.3d 1250, 1259 (11th Cir. 2020).
The record refutes Shaabazz’s assertions in the Petition. He described
the circumstances surrounding his discovery of the ten-year plea offer as
confusing, stating he had “no idea” what Murphy was “rambling” about at the
sidebar when an offer by the State was mentioned. See Doc. 18-13 at 3-4.
Notably, the record reflects that the State consistently pursued a term of
imprisonment of fifteen years due to Shaabazz’s lengthy criminal record that
included prior burglaries. See Sentencing Tr. at 132; Docs. 18-14, Order
Denying Defendant’s Motions for Postconviction Relief, at 8 (“[T]he State only
offered a fifteen year plea deal the day of trial, which counsel conveyed to
Defendant.”); 18-13 at 3 (acknowledging that the State insisted on a fifteenyear PRR designation and sentence). At sentencing, defense counsel asked the
court to sentence Shaabazz to fifteen years of imprisonment. See Sentencing
Tr. at 166 (stating “we’re coming back essentially to ask for the minimum the
Court can give based on some of the mitigation we’ve proffered [and] ask that
you sentence him only to fifteen years.”).
Additionally, Shaabazz has not shown, under the Lafler/Frye first prong,
that but for counsel’s alleged failure to advise him of the offer, he would have
accepted a ten-year plea offer at the March 7, 2012 arraignment or a fifteenyear plea offer just before the jury selection on July 15, 2013. See Lafler, 566
U.S. at 164; Frye, 566 U.S. at 147. Shaabazz’s consistent denial of guilt is a
relevant consideration as to whether he would have accepted a plea offer by
the State. The record reflects that Shaabazz minimized his guilt throughout
the proceedings. At trial, Shaabazz testified that he was homeless and looking
for a place to sleep, but never planned to steal anything inside the house. See
Tr. at 319-20. His proclamation of innocence weighs against any claim that he
would have accepted a ten or fifteen-year plea offer. See Osley v. United States,
751 F.3d 1214, 1224-25 (11th Cir. 2014) (citing cases). The record reflects his
desire to proceed to trial (to testify about his version of the facts that he opined
amounted to, at most, trespass) or enter a plea for three years of incarceration.
Thus, Shaabazz fails to show a reasonable probability that he would have
accepted a ten or fifteen-year plea offer by the State. His conclusory assertion
that he would have accepted a plea offer of ten or fifteen years of imprisonment,
without more, is insufficient to satisfy the first prong of the prejudice test.
Rosin v. United States, 786 F.3d 873, 879 (11th Cir. 2015) (stressing that the
record evidence that the defendant “had absolutely no interest in” pleading
guilty contradicted his later claim that he would have done so); see also Diaz
v. United States, 930 F.2d 832, 835 (11th Cir. 1991).
Additionally, as to the third prong, Shaabazz has not shown that the
circuit court would have accepted the terms of a ten or fifteen-year plea offer
by the State. At trial, Shaabazz’s defense was that his actions amounted to no
more than trespass, and he stipulated that he had thirteen prior felonies,
including some burglaries. 19 See Tr. at 306. At the sentencing, he continued to
minimize his guilt. See Sentencing Tr. at 143-57. Nevertheless, the circuit
court judge declared that he did not believe Shaabazz’s trial testimony, stating:
“[w]ith your history, I think you were trying to commit a burglary.” Sentencing
Tr. at 169. Given Shaabazz’s “horrible” criminal record with five prior
burglaries, id. at 167, 170, and his terrorizing the victim who occupied the
house that morning, see id. at 140-41, the circuit court judge found that
At sentencing, the court stated that Shaabazz’s conviction for burglary
of an occupied dwelling was his sixteenth felony. See Sentencing Tr. at 168.
The prosecutor added that it was his sixth burglary. See id.
Shaabazz was a danger to the community and qualified for HFO and PRR
sentencing, see id. at 170.
Shaabazz’s ineffectiveness claims under grounds one and three are without
merit since he has not shown the required Lafler/Frye resulting prejudice. As
such, he is not entitled to federal habeas relief on these ineffectiveness claims.
B. Ground Two
Next, Shaabazz asserts that counsel was ineffective because he failed to
advise him, “a 13-time convicted felon,” about the advantages and
disadvantages of testifying at trial. See Petition at 6-7. He states in pertinent
Petitioner was prejudiced by Counsel’s failure to
discuss and advise as to the potential benefits and
disadvantages of testifying because Petitioner was not
able to make an informed decision whether to testify
or not. As a result, Petitioner testified during trial that
he was a 13-time convicted felon, which the State
utilized and highlighted during closing arguments.
Further damaging the defense’s case, Petitioner
during cross-examination admitted to lying to police
when he was initially interviewed. Petitioner also
disclosed that he broke the window in an attempt to
sleep in the home because he was homeless.
Accordingly, Counsel’s actions resulted in the
Petitioner incriminating himself, apprising the jury
that he was a burglar, a 13-time felon, and a liar. A
result which cannot be considered harmless.
Id. at 7.
Shaabazz raised the ineffectiveness claim in his Rule 3.850 motion. See
Doc. 18-11 at 15-17 (ground four). The postconviction court denied relief on this
claim, explaining in pertinent part:
Defendant contends his counsel was ineffective
for failing to advise him of the benefits and
disadvantages of testifying as a convicted felon.
According to Defendant, even though the Court
conducted a colloquy with Defendant about his right to
testify, this does not obviate counsel’s obligation to
correctly advise him.
“A court considering a claim of ineffectiveness of
counsel need not make a specific ruling on the
performance component of the test when it is clear
that the prejudice component is not satisfied.” Pagan
v. State, 29 So.3d 938, 948-49 (Fla. 2009) (quoting
Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.
The record reflects the Court conducted a
thorough colloquy with Defendant about his right to
testify. (Ex. D at 302-07.)[ 20] During the colloquy, the
Court specifically and elaborately discussed with
Defendant how his prior felony convictions could be
used against him if he testified. (Ex. D at 304-06.)
Defendant acknowledged to the Court that he
understood this information. (Ex. D at 304-0.)
Accordingly, the Court cured any prejudice that may
have resulted from counsel’s alleged deficiency. As
Defendant cannot demonstrate prejudice, he is not
entitled to relief on Ground Four. Id.
See Tr. at 302-07.
Doc. 18-14 at 3-4. The First DCA affirmed the postconviction court’s denial of
relief without issuing a written opinion. Doc. 18-16 at 1.
To the extent that the appellate court decided the claim on the merits, 21
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 the 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, Shaabazz is not entitled to
relief on the basis of this ineffectiveness claim.
Nevertheless, even if the appellate court’s adjudication of the claim is
not entitled to deference, the claim is without merit. Criminal defendants have
a constitutional right to testify on their own behalf. Rock v. Arkansas, 483 U.S.
44, 51-53 (1987). That right is personal and fundamental, meaning it cannot
be waived by either the court or counsel, but only by the defendant. United
States v. Teague, 953 F.2d 1525, 1532 (1992). Counsel gives ineffective
assistance with respect to a defendant’s right to testify where counsel “has
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 1192.
refused to accept the defendant’s decision to testify and refused to call him to
the stand, or where defense counsel never informed the defendant of his right
to testify and that the final decision belongs to the defendant alone.” Gallego
v. United States, 174 F.3d 1196, 1197 (11th Cir. 1999). “Where the defendant
claims a violation of his right to testify by defense counsel, the essence of the
claim is that the action or inaction of the attorney deprived the defendant of
the ability to choose whether or not to testify in his own behalf.” Teague, 953
F.2d at 1534. Notably, an attorney does not render deficient performance by
strategically advising a defendant not to take the stand. Id. at 1533 (“[I]f
defense counsel believes that it would be unwise for the defendant to testify,
counsel may, and indeed should, advise the client in the strongest possible
terms not to testify.”); United States v. Willis, 273 F.3d 592, 598 (5th Cir. 2001)
(counsel could reasonably advise defendant not to testify out of concern that he
would be impeached with prior convictions under Fed. R. Evid. 609).
The trial court held a thorough colloquy with Shaabazz after the State
rested, during which it advised Shaabazz that if he took the stand the jury
would know the number of his prior felony convictions, but not the nature of
the convictions. Tr. at 304-06. The trial court specifically informed Shaabazz
that he should listen to the advice provided by his attorney, but ultimately it
was his decision to choose whether or not to testify. Id. at 303. Shaabazz’s
exchange with the trial court establishes that he was aware of the manner in
which his prior convictions could be used and understood that it was his right
alone to decide whether or not to take the stand.
On this record, Shaabazz has failed to carry his burden of showing that
his counsel’s representation fell outside that range of reasonably professional
assistance. Even assuming arguendo deficient performance by defense counsel,
Shaabazz has not shown any resulting prejudice. Shaabazz has not shown that
a reasonable probability exists that the outcome of the case would have been
different if counsel had acted as Shaabazz claims he should have. His
ineffectiveness claim is without merit since he has shown neither deficient
performance nor resulting prejudice. Accordingly, Shaabazz is not entitled to
federal habeas relief on ground two.
C. Ground Four
As ground four, Shaabazz asserts that (a) trial counsel was ineffective
because he failed to object to the jury instruction on burglary, see Petition at
10-12, and (b) appellate counsel was ineffective because she failed to raise the
issue on direct appeal and argue fundamental error, see id. at 12. He states
that the jury instruction on burglary was “erroneous and confusing because it
misinformed the jury that it had to find [he] entered with an intent to commit
a crime, which the jury could have interpreted to be the charged offense of
burglary.” Id. at 10. He states that the jury was “never told that in order to
convict [him] of burglary, it had to find [he] entered the structure with the
intent to commit theft or an offense other than burglary.” Id. at 11 (emphasis
Respondents argue that Shaabazz did not properly exhaust these
ineffectiveness claims in the state courts, and thus, the claims are procedurally
barred. See Response at 21. They contend, and this Court agrees, that
Shaabazz raised the ineffectiveness claim in ground 4(a) in his initial Rule
3.850 motion, see Doc. 18-11 at 5-9 (ground one), and the circuit court struck
the ground as “legally insufficient” because the court could not “decipher”
counsel’s alleged deficiencies and “how those specific deficiencies” prejudiced
Shaabazz, Doc. 18-12 at 2-3. The circuit court permitted Shaabazz an
opportunity to amend the claim, see Doc. 18-12 at 2-3, however, Shaabazz
voluntarily withdrew it. See Doc. 18-13 at 2 (stating “the Defendant appends
this pleading with modifications, and a voluntary withdrawal of claim one”).
As to the ineffectiveness claim in ground 4(b), Respondents assert, and this
Court agrees, that Shaabazz failed to raise the claim in a state petition for writ
of habeas corpus. See Response at 21.
Shaabazz asks that the Court review the merits of his ineffectiveassistance-of-trial-counsel claim under Martinez because he was not
represented by counsel during the postconviction proceeding, and the claim is
“of substantial magnitude.” Petition at 12; see Reply at 34. Notably, Martinez
applies only to procedurally defaulted claims of ineffective assistance of trial
counsel. See Davila v. Davis, 137 S. Ct. 2058, 2065 (2017); Gore v. Crews, 720
F.3d 811, 816 (11th Cir. 2013).
The Court agrees that the ineffectiveness claims are procedurally barred
since Shaabazz failed to raise the claims in a procedurally correct manner.
Shaabazz has not shown either cause excusing the default or actual prejudice
resulting from the bar. 22 Moreover, he has failed to identify any fact
warranting the application of the fundamental miscarriage of justice
Even assuming Shaabazz’s claims are not procedurally barred, Shaabazz
is not entitled to federal habeas relief on these ineffectiveness claims. A
chronology of relevant facts follows. On March 2, 2012, the State charged
Shaabazz with burglary of an occupied dwelling in violation of Florida Statutes
section 810.02(3)(a), as follows:
HASSAN WALID SHABAZZ on February 7,
2012, in the County of Duval and the State of Florida,
did unlawfully enter or remain in a structure, to-wit:
a dwelling, the property of Paula Hannans, when
another human being, to-wit: Paula Hannans, was in
said structure, with the intent to commit an
offense therein, contrary to the provisions of Section
810.02(3)(a), Florida Statutes.
Doc. 18-1 at 19 (emphasis added). At trial, among other witnesses, Paula
As discussed in the alternative merits analysis that follows, these
ineffectiveness claims lack any merit.
Hannans (the victim) testified that she saw Shaabazz’s head and hands coming
through her window that had been broken, see Tr. at 243-70, and Shaabazz
testified in his own defense, maintaining that he was homeless and looking for
a place to sleep in what he thought was an abandoned house, see id. at 316-41.
In closing arguments, the prosecutor and defense counsel discussed the jury
instructions, specifically that the State had to prove that Shaabazz intended
to commit an offense inside the structure. See Tr. at 379-81, 424-26, 435
(prosecutor’s arguments); 401, 410 (defense counsel’s arguments).
After closing arguments, the court instructed the jury on burglary as
To prove the crime of burglary, the State must
prove the following two elements beyond a reasonable
doubt: Number one, that Hassan Walid Shabazz, the
defendant, entered a structure owned by or in the
possession of Paula Hannans and, two, at the time of
entering the structure, Hassan Walid Shabazz had
the intent to commit an offense in that structure.
Now, you may infer that the defendant had
the intent to commit a crime inside a structure
if the entering of the structure was done
stealthily and without the consent of the owner
or occupant.[ 23]
Florida Statutes section 810.07(1) states that “[i]n a trial on the charge
of burglary, proof of the entering of such structure or conveyance at any time
stealthily and without consent of the owner or occupant thereof is prima facie
evidence of entering with intent to commit an offense.” Fla. Stat. § 810.07(1).
Now, the entry necessary need not be the whole
body of the defendant. It is sufficient if the defendant,
with the intent to commit a crime, extends any part of
his body into the structure.
Now, the intent with which an act is done is an
operation of the mind and, therefore, is not always
capable of direct and positive proof. It may be
established by circumstantial evidence like any other
fact in a case.
Now, even though the -- an unlawful entering or
remaining in a structure is proven, if the evidence
does not establish that it was done with the
intent to commit an offense, the defendant must
be found not guilty of burglary.
Tr. at 438-39 (emphasis added). 24 The court also instructed the jury on the
lesser crimes of attempted burglary of an occupied dwelling and trespass in a
structure. See Tr. at 441-44.
Tracking the language of Florida Statutes sections 810.02(1)(b), (3)(a)
and 810.07(1), the court’s jury instructions on burglary were not improper. See
Toole v. State, 472 So.2d 1174, 1175-76 (Fla. 1985); State v. Waters, 436 So.2d
66, 73 (Fla. 1983) (“Indictments and informations charging the crime of
burglary or attempted burglary must allege that the accused committed the
unlawful act with the intent to commit an offense but need not always specify
the offense. Proof of the elements set out in section 810.07 is sufficient to
establish prima facie evidence of such intent in a trial on a charge of
See Sentencing Tr. at 161-64.
burglary.”); see also Joseph v. State, 965 So.2d 357, 358 (Fla. 4th DCA 2007)
(stating “[n]or must the judge instruct the jury on the underlying offense which
the defendant intended to commit”); Perreault v. State, 831 So.2d 784, 786 (Fla.
5th DCA 2002) (“Although it is not necessary to instruct the jury on the specific
offense which the defendant intended to commit within the structure, it is
necessary for the jury to find that the defendant entered the premises to
commit an offense therein.”) (citations omitted).
On this record, Shaabazz has failed to carry his burden of showing that
his defense counsel’s representation fell outside that range of reasonably
professional assistance. Moreover, even assuming arguendo deficient
performance by defense counsel for his failure to object to the jury instructions
on burglary, Shaabazz has not shown any resulting prejudice. He has not
shown that a reasonable probability exists that the outcome of the case would
have been different if defense counsel had objected to the jury instructions.
Additionally, as to ground 4(b), Shaabazz has not shown that a reasonable
probability exists that the claim would have been meritorious on direct appeal,
if appellate counsel had raised the claim in the manner Shaabazz suggests. His
ineffectiveness claims are without merit since he has shown neither deficient
performance nor resulting prejudice. Accordingly, Shaabazz is not entitled to
federal habeas relief on either ground 4(a) or ground 4(b).
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Shaabazz 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, Shaabazz “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 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
Therefore, it is now
ORDERED AND ADJUDGED:
The Petition (Doc. 1) is DENIED, and this action is DISMISSED
The Clerk of the Court shall enter judgment denying the Petition
and dismissing this case with prejudice.
If Shaabazz appeals the denial of the 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.
The Clerk of the Court is directed to close this case and terminate
any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 7th day of June,
Hassan W. Shaabazz, FDOC #112686
Counsel of Record
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