Franklin v. Secretary, Florida Department of Corrections et al (Duval County)

Filing 12

ORDER denying 1 the Petition, and dismissing the action with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 9/25/2024. (SM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JASON MICHAEL FRANKLIN,
Petitioner,
v.

Case No. 3:21-cv-806-MMH-SJH

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
___________________________________
ORDER
I. Status
Petitioner Jason Michael Franklin, an inmate of the Florida penal
system, initiated this action on August 17, 2021, by filing a Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1). 1 He challenges a 2015
state court (Duval County, Florida) judgment of conviction for first-degree
murder. Franklin raises eleven grounds for relief. See id. at 6−26. Respondents
have submitted a memorandum opposing the Petition. See Response
(Response; Doc. 7). They also submitted exhibits. See Response Exs. 1−37.
Franklin filed a Reply. See Reply (Reply; Doc. 9). This action is ripe for review.

For purposes of reference to pleadings and exhibits, the Court will cite the
document page numbers assigned by the Court’s electronic docketing system.
1

II. Relevant Procedural History
On August 16, 2013, the state charged Franklin with one count of seconddegree murder. State v. Franklin, No. 16-2013-CF-7224-AXXX-MA, (Fla. 4th
Cir. Ct.) (Doc. 10). 2 A grand jury later returned an Indictment charging him
with one count of first-degree murder. Response Ex. 2 at 1−2. Franklin
proceeded to trial.
A. Trial Proceedings & Direct Appeal
The parties presented the following evidence and testimony.
On August 1, 2013, Franklin confronted the victim−his wife’s boss and
paramour−at the victim’s home. Franklin shot and killed the victim during
that confrontation. It was not disputed at trial that Franklin killed the victim,
but instead, Franklin disputed whether the murder was premeditated. He
alleged at trial that he acted in self-defense.
A neighbor of the victim, Kelli McGreevy, testified that she heard a noise
like firecrackers and flashes of light further down her street around 11:00 p.m.
on August 1, 2013. Response Ex. 11 at 35−36. She saw the flashes, with one
person standing and another person on the ground. Id. at 44. The person
standing was holding a firearm and aiming it low. Id. at 45. Another neighbor,

The Court takes judicial notice of Petitioner’s state court dockets. See
Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (“[D]ocket sheets are
public records of which the court could take judicial notice.”).
2

2

Dustin Free, heard a loud noise that same evening. Id. at 53. After hearing the
noise, he saw a white male walk to a parked car and drive off. Id. at 54−55.
Free saw a body on the ground. Id. at 55. He noticed the body lying face down
with severe trauma to the back of the head and alerted the victim’s wife. Id. at
57−58. Free testified that he observed a baseball bat on the ground near the
victim. Id. at 59.
Fire and Rescue determined the victim was dead from a gunshot wound
to the head. Id. at 90. Detective Andrew Kipple testified that the victim’s home
had motion sensor lights around it. Id. at 100. He recovered six shell casings
from the area. Id. at 102−04. He also located a live round and a baseball bat.
Id. at 108−09, 129. Additionally, law enforcement recovered video recordings
from security cameras the victim had installed at his home. Id. at 119.
Detective Kipple later heard that police were investigating a second crime
scene across town where Franklin was located. Id. at 126. Another detective
retrieved a firearm from Franklin at the second scene. Id. at 129.
Christine Burnell, Franklin’s former wife, testified that she and
Franklin have two children together. Id. at 150−51. Leading up to the time of
the incident, their marriage was falling apart. Id. at 151. The victim was her
boss and they had begun a romantic relationship in January 2013. Id. at
151−52. Franklin learned of the affair and confronted her. Id. at 152−53. A
second romantic encounter between Burnell and the victim took place in
3

February 2013. Id. at 154. Again, Franklin learned of the encounter and had
another altercation with Burnell. Id. In February, shortly after he learned of
the continued affair, Franklin and the victim agreed to meet and engage in a
physical fight. Id. at 155. Afterwards, both displayed signs that they had been
in a fight. Id. at 155−56. On a separate occasion, Franklin told Burnell that he
had slashed the victim’s tires. Id. at 156. Burnell testified that on the night of
August 1, 2013, there were several other people present in the home she shared
with Franklin when Franklin saw text messages from the victim on her phone
that upset him. Id. at 156−59. He slapped the phone out of her hand. Id. at 159.
Franklin also got into an altercation with Scott Franklin, his brother, who was
present, and struck him. Id. at 159−60. Burnell called the police at about 9:23
p.m.; afterwards, she heard the front door close. Id. at 160−61. When Franklin
returned to the house, he said he had killed the victim, and Burnell called the
police again. Id. at 161−62. He did not say anything to her about a bat. Id. at
163.
Trial counsel made a proffer outside the presence of the jury of testimony
Burnell would present. Id. at 164. Specifically, trial counsel sought to offer
evidence about Franklin’s troubled childhood. Id. at 164−65. The trial court
permitted testimony that Franklin generally came from an unstable
environment and had no relationship with his mother, since it was within
Burnell’s personal knowledge, as she had known Franklin since age 14. Id. at
4

168−71. Burnell testified that Franklin felt she and their children were
everything to him, and when he learned she had cheated, he was heartbroken.
Id. at 173−74. Burnell further testified that after Franklin and the victim
fought in February 2013, he told Burnell that the victim instigated the fight
and won. Id. at 184. The victim punched Franklin, resulting in a black eye. Id.
at 185. Franklin told Burnell that he slashed the victim’s tires because he
wanted the victim’s wife to know about the affair. Id. at 185. Burnell told
Franklin she would try to work on their marriage, but she continued her affair
with the victim. Id. at 186. When Franklin saw the text messages on August 1,
2013, he became very upset and angry. Id. at 187. Burnell did not see Franklin
leave the house with a gun and never saw him with a gun in the house. Id. at
188. Burnell called the victim to tell him Franklin had seen the text messages.
Id. at 188. The victim was angry. Id. at 189. Later that night when Franklin
came home, Burnell heard him say he killed the victim, and he told her to call
the police. Id. He had the gun with him then, and the police collected it as
evidence. Id. at 190.
Franklin’s ten-year-old daughter, V.F., was called to testify. Response
Ex. 12 at 6. V.F. testified that she was in her bed on the night the incident
occurred. Id. at 9. She recalled that her father came into the room, got out a
duffle bag, and put it on the bed. Id. at 10. It was dark so she could not see, but
she saw him grab something big and a bunch of smaller things and put them
5

in his pocket. Id. She then heard Franklin leave the house. Id. Later, he came
into the room and said he had murdered someone and was going to jail. Id. at
11. She heard him talking to her mother and uncle, saying he shot him four
times in the chest and two in the head to make sure he was dead. Id.
Detective Dennis Sullivan testified that he was the lead detective on this
homicide investigation. Id. at 30. When he observed Franklin at the police
station after his arrest, he did not see any injuries. Id. at 32. When Franklin
was searched, two live rounds were found in a pocket. Id. at 33. Detective
Sullivan further testified that the drive from Franklin’s house to the victim’s
house was approximately twenty miles and took about thirty minutes. Id. at
36−37. Sullivan reviewed the surveillance video from the victim’s home for the
jury which showed an individual approach the victim’s house close to 11 p.m.
Id. at 38−39; 43−48. On cross-examination, Detective Sullivan admitted that
he did not document Franklin’s lack of injuries. Id. at 51. He also did not
photograph Franklin or ask him to remove any clothing. Id.
As to the physical evidence, there was testimony that no useful DNA
evidence was located. Id. at 68−71. The bat did not appear to have blood on it
and there were no DNA results for it. Id. at 71. The firearms examiner
determined the rounds found at the scene of the shooting were fired from the
gun that was recovered from Franklin. Id. at 81.

6

The medical examiner testified there were four gunshot wounds on the
victim: three passed through the body, one wound to the side, and another
possible wound to the thigh. Id. at 96. There were gunshot wounds behind the
victim’s right ear and one to the back of his head. Id. at 99. Either shot to the
head would have been fatal. Id. at 102. Another gunshot wound located on the
victim’s neck area also would have been fatal. Id. at 104−05. The cause of death
was the gunshot wounds to the head and neck. Id. at 110. The medical
examiner could neither say the relative positions of the shooter and victim nor
which shot was fired first. Id. at 111.
At the close of the state’s case, trial counsel moved for a judgment of
acquittal on the issue of premeditation, and the trial court denied the motion.
Id. at 114−17. The defense presented two witnesses. Detective Green testified
that McGreevy did not previously tell him that she could see an arm aiming
down, that she saw someone lying on the ground, or that the flashes she saw
were low. Id. at 135. She just said she saw a flash from the direction where the
victim lived. Id. He said she may have given other details to another officer. Id.
at 137.
Franklin testified that he did not have a stable home life growing up,
and had no relationship with his mother. Id. at 141. He met his wife in high
school and had more stability in his life with her than he had experienced
before. Id. at 141−42. He felt it was a happy marriage. Id. at 142. In January
7

2013, he learned his wife had been engaged in an extramarital affair. Id.
142−43. Despite agreeing to work on the relationship, Franklin later learned
that his wife continued her affair with the victim. Id. at 145. Franklin went to
the store where Burnell and the victim worked, and the victim said they could
settle it after work. Id. at 146. Franklin testified the victim was cocky and
wanted to fight. Id. Franklin testified that he returned to the store later,
explaining that he did not think they would actually fight. Id. at 147. But, the
two did get into a physical altercation. Id. Franklin testified that he ultimately
pulled out a pocket-knife, and the victim backed off and left. Id.
When Franklin got home, he told his wife about the fight, and she agreed
to work on the marriage. Id. at 149. She also told Franklin that the victim was
married. Id. at 149−50. Franklin testified that he went by the victim’s
house−after finding his address in public records−and slashed his tires so that
the victim would have to explain what happened to his wife. Id. at 150.
However, Burnell later told him the victim did not tell his wife. Id. at 151.
Franklin also went to the victim’s supervisor at work to report the affair he
was having with a subordinate employee in the hopes the employer would
separate them in the workplace. Id. at 188.
Between February and August 2013, Franklin thought things had
improved in his marriage to Burnell. Id. at 153. But on August 1, 2013, he
found text messages on her phone and learned the affair was still ongoing. Id.
8

at 152−53, 155−56. He snapped and slapped his wife, and then his brother
tackled him. Id. at 157. Franklin got his gun, loaded it, and went to confront
the victim. Id. at 158, 160. Franklin testified he knew the victim was violent
because of their prior physical altercation and he did not want another fight.
Id. at 158−59. Franklin testified that he took the gun to protect himself because
he did not think the victim would attack if he saw the gun. Id. at 159.
Franklin told his brother he was going to confront the victim. Id. at 161.
He did not go straight across town, however, instead, he chose to drive around
in an attempt to calm down. Id. Franklin testified that he stopped at the home
of a relative, and while there, he called his own home and learned the police
had been called because he had slapped his wife. Id. at 162. He hung up and
went to victim’s house. Id. at 163.
Franklin parked near the victim’s house, grabbed his gun, and walked to
the front door. Id. 163−64. No one came to the door, but he heard the victim
say, “[b]ack here, Franklin.” Id. at 165. Franklin testified that when he walked
around to the side of the house, the victim jumped out from behind the AC unit
and hit Franklin in the head with a metal baseball bat. Id. 165−66. Franklin
testified that he was abused by a baseball bat when he was younger and
sustained severe injuries as result. Id. at 166. Franklin stated that being
struck by the bat caused him to panic and think the victim was trying to kill
him with the bat. Id. at 166−67. Franklin stumbled back after being hit with
9

the bat, and pulled the trigger. Id. at 168. Franklin did not know initially where
he had hit the victim, but then realized he had killed the victim. Id.
Franklin testified that he drove home still dazed from being hit by the
bat. Id. at 168. He did not recall what he said but did recall saying goodbye to
his daughter. Id. at 168−69. Franklin also testified that he felt shocked and
was trying to save his family. Id. at 169−70. According to Franklin, he waited
for the police to arrive and take the gun. Id. at 170. He told the detective that
he got hit in the head with a baseball bat, and testified that he did not intend
to kill the victim. Id. at 177−78.
On cross-examination, the state elicited testimony from Franklin that he
slapped his wife in January, after learning of the affair. Id. at 179. And the
state brought out testimony that on other occasions he grabbed her hair, broke
a table, and stuck a gun in her face. Id. at 179−80. Franklin admitted to hitting
his wife again on the night of the murder. Id. at 180. When Franklin went to
the victim’s house, he testified that they did not speak as the victim jumped
out from behind the AC unit and hit him with the bat. Id. at 185. Franklin then
began firing blindly, stating it happened quickly and reflexively. Id. at 186.
Following the testimony of Franklin, the trial court denied defense motions for
judgment of acquittal on the questions of premeditation and self-defense. Id.
at 194−95.

10

The jury found Franklin guilty as charged in the Indictment. Response
Ex. 15 at 1−2. The jury further found Franklin discharged and actually
possessed a firearm causing death or great bodily harm during the commission
of the offense. Id. On September 29, 2015, the trial court sentenced Franklin
to life in prison with a twenty-five-year minimum mandatory pursuant to
section 775.087(2)(a), Florida Statutes. Response Ex. 16 at 3, 5. On September
29, 2016, the First District Court of Appeal (“First DCA”) per curiam affirmed
without a written opinion Franklin’s conviction and sentence, and on October
17, 2016, it issued the mandate. Response Ex. 20 at 1−2.
B. Postconviction Proceedings
Franklin filed a pro se motion to correct illegal sentence under Florida
Rule of Criminal Procedure 3.800(a) on April 18, 2017. Response Ex. 21 at 1−4.
He alleged that his sentence was illegal because the trial court imposed a
twenty-five-year minimum mandatory sentence pursuant to the 10-20-life
statute and, as a result, had no statutory authority for imposing the life
sentence. Id. The trial court summarily denied relief on May 23, 2017, finding
Franklin’s sentence permissible under the relevant statutory authority.
Response Ex. 22 at 1−2. The First DCA per curiam affirmed the trial court’s
denial without a written opinion, and on December 12, 2017, it issued the
mandate. Response Ex. 23 at 1−2.

11

On January 22, 2018, Franklin filed a petition for a writ of habeas corpus
with the First DCA, alleging his appellate counsel was ineffective for failing to
raise on direct appeal one issue of fundamental error related to the jury
instructions. Response Ex. 24 at 2−13. The First DCA denied Franklin’s
petition with a written opinion on June 13, 2018. Response Ex. 25 at 1−2.
Franklin filed a pro se initial motion for postconviction relief under
Florida Rule of Criminal Procedure 3.850 on August 22, 2018, raising twelve
grounds. Franklin, No. 16-2013-CF-7224-AXXX-MA, (Doc. 428). On January
14, 2019, the trial court dismissed Franklin’s Rule 3.850 motion for failing to
comply with procedural requirements and granted him leave to amend. Id. at
Doc. 444. On March 4, 2019, Franklin filed a timely Amended Rule 3.850
Motion raising sixteen grounds for relief. Response Ex. 26 at 1−43. Specifically,
Franklin alleged: (1) ineffective assistance of trial counsel for failing to obtain
arrest photos; (2) ineffective assistance of trial counsel for failing to call a
witness; (3) a Brady 3 violation; (4) trial court error related to evaluating trial
counsel’s performance; (5) ineffective assistance of trial counsel for failing to
depose a witness; (6) ineffective assistance of trial counsel for failing to
challenge witness testimony; (7) ineffective assistance of trial counsel for
failing to effectively cross-examine detectives; (8) ineffective assistance of trial

3

Brady v. Maryland, 373 U.S. 83 (1963).

12

counsel for failing to ask for a jury instruction; (9) ineffective assistance of trial
counsel for failing to object to the trial court’s failure to read certain jury
instructions; (10) ineffective assistance of trial counsel for failing to familiarize
herself with relevant law; (11) ineffective assistance of trial counsel for
removing a relevant prong of the self-defense instructions; (12) ineffective
assistance of trial counsel for failing to impeach a state witness; (13) ineffective
assistance of trial counsel for failing to provide a defense at trial; (14)
ineffective assistance of trial counsel for failing to investigate exculpatory text
messages; (15) illegal sentence; and (16) cumulative error. Id.
On July 8, 2019, the trial court directed the state to respond to grounds
three, eight, and nine of Franklin’s Amended Rule 3.850 Motion. Franklin, No.
16-2013-CF-7224-AXXX-MA, (Doc. 461). The state filed its response on October
15, 2019. Response Ex. 28 at 1−39. The trial court summarily denied relief on
all grounds. Response Ex. 31 at 1−27. The First DCA per curiam affirmed the
trial court’s denial without a written opinion, and on June 11, 2021, it issued
the mandate. Response Ex. 37 at 1−2, 19.
III. One-Year Limitations Period
This action was timely filed within the one-year limitations period. See
28 U.S.C. § 2244(d).

13

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
13applicant’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 [Petitioner’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
14

as a guard against extreme malfunctions in the state criminal justice systems,
and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S.
34, 38 (2011) (quotation marks omitted)). As such, federal habeas review of
final state court decisions is “‘greatly circumscribed’ and ‘highly deferential.’”
Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation
marks omitted)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec’y,
Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need
not issue a written opinion explaining its rationale in order for the state court’s
decision to qualify as an adjudication on the merits. See Harrington v. Richter,
562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is
unaccompanied by an explanation, the United States Supreme Court has
instructed:
[T]he federal court should “look through” the
unexplained decision to the last related state-court
decision that does provide a relevant rationale. It
should then presume that the unexplained decision
adopted the same reasoning.
Wilson v. Sellers, 584 U.S. 122, 125 (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

15

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
claims
of
state
courts’
erroneous
factual
determinations. Section 2254(d)(2) allows federal
16

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.’” 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,
571 U.S. 12, 19 (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

17

fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,
562 U.S. at 102−03). This standard is “meant to be” a “difficult” one to meet.
Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s claims were
adjudicated on the merits in the state courts, they must be evaluated under 28
U.S.C. § 2254(d).
B. Exhaustion/Procedural Default
There are prerequisites to federal habeas review. Before bringing a §
2254 habeas action in federal court, a petitioner must exhaust all state court
remedies that are available for challenging his state conviction. See 28 U.S.C.
§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly
present[]” every issue raised in his federal petition to 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
18

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To
provide the State with the necessary “opportunity,”
the prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme
court with powers of discretionary review), thereby
alerting that court to the federal nature of the claim.
Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan
v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144
L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner’s failure to properly exhaust available state remedies
results in a procedural default which raises a potential bar to federal habeas
review. The United States Supreme Court has explained the doctrine of
procedural default as follows:
Federal habeas courts reviewing the constitutionality
of a state prisoner’s conviction and sentence are guided
by rules designed to ensure that state-court judgments
are accorded the finality and respect necessary to
preserve the integrity of legal proceedings within our
system of federalism. These rules include the doctrine
of procedural default, under which a federal court will
not review the merits of claims, including
constitutional claims, that a state court declined to
hear because the prisoner failed to abide by a state
procedural rule. See, e.g., Coleman,[ 4] supra, at 747–
748, 111 S. Ct. 2546; Sykes,[ 5] 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.,
4
5

Coleman v. Thompson, 501 U.S. 722 (1991).
Wainwright v. Sykes, 433 U.S. 72 (1977).

19

Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–
1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558
U.S. --, --, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417
(2009). The doctrine barring procedurally defaulted
claims from being heard is not without exceptions. A
prisoner may obtain federal review of a defaulted
claim by showing cause for the default and prejudice
from a violation of federal law. See Coleman, 501 U.S.,
at 750, 111 S. Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9−10 (2012). Thus, procedural defaults may be
excused under certain circumstances. Notwithstanding that a claim has been
procedurally defaulted, a federal court may still consider the claim if a state
habeas petitioner can show either (1) cause for and actual prejudice from the
default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d
1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,
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).[ 6]
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).

6

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

20

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.
21

C. Ineffective Assistance of Trial Counsel 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.
2052.

22

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
697.
A state court’s adjudication of an ineffectiveness claim is accorded great
deference.
“[T]he standard for judging counsel’s representation is
a most deferential one.” Richter, 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
23

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).
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.[ 7] 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
performance will be deemed prejudicial if we find that
“the neglected claim would have a reasonable
probability of success on appeal.” Id.

7

Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991).

24

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.
VI. Findings of Fact and Conclusions of Law
The Court addresses each of Franklin’s eleven grounds for relief−each
with various subclaims−below. To the extent Franklin raises new arguments
for the first time in his Reply, those arguments are not properly before the
Court. And thus, the Court does not consider those arguments here. See
Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) (“As we
repeatedly have admonished, ‘[a]rguments raised for the first time in a reply
brief are not properly before a reviewing court.’”) (citation omitted).
A. Ground One
As Ground One, Franklin alleges rulings made by the trial court
impacted his ability to receive a fair trial. Petition at 6. He identifies three
instances, arguing that the trial court erred by: (1) allowing the admission of
bad character evidence; (2) prohibiting Franklin from testifying about certain
events; and (3) denying his motions for judgment of acquittal. Id. at 6−7.
(1) Admission of Character Evidence
Franklin argues he was denied a fair trial because the trial court allowed
the admission of certain bad character evidence involving incidents that
occurred six months prior to the charged offense. Petition at 6. The state sought
25

to include evidence that: (1) Franklin slapped Burnell upon learning of the
affair with the victim; (2) on a second occasion, he grabbed Burnell’s hair,
punched a table, and held a gun to her face; and (3) Franklin approached the
victim, engaged in a mutual fight, and slashed his tires. Id. Franklin contends
the evidence of violence towards his wife did not shed light on the issue of
premeditation, and these encounters between him and the victim occurred
months prior to the murder. Id. He also argues the evidence was not relevant
to the issue of premeditation and served only to inflame the emotions of the
jury. Id.
This claim is unexhausted because Franklin did not present the federal
nature of this claim to the state court. On direct appeal, with the help of
appellate counsel, Franklin argued that the trial court erred under Florida law
in admitting evidence of previous bad acts that were not relevant to the issue
of premeditation; specifically, acts of violence toward Burnell, who was not the
victim of an alleged crime in the case, and the slashing of the victim’s tires.
Response Ex. 17 at 19−25. The state filed an answer in opposition, and
Franklin filed a reply brief. Response Exs. 18; 19. The First DCA per curiam
affirmed the trial court’s denial without a written opinion. Response Ex. 20.
When briefing this issue, however, Franklin did not state or suggest that he
was raising a federal claim about due process or any other federal
constitutional guarantee. Response Ex. 17 at 19−25. As such, this claim in
26

Ground One is unexhausted and procedurally defaulted, and Franklin has
shown neither cause and prejudice nor a miscarriage of justice to overcome this
procedural bar.
To the extent Franklin asserts that the trial court erred under Florida
law when it admitted certain evidence of prior bad acts, the claim presents an
issue purely of state law not cognizable on federal habeas review. As a general
rule, a federal court in a habeas corpus case will not review the trial court’s
actions concerning the admissibility of evidence,” because the state court “has
wide discretion in determining whether to admit evidence at trial[.]” Alderman
v. Zant, 22 F.3d 1541, 1555 (11th Cir. 1994); see also Baxter v. Thomas, 45 F.3d
1501, 1509 (11th Cir. 1995) (federal habeas corpus is not the proper vehicle to
correct evidentiary rulings); Boykins v. Wainwright, 737 F.2d 1539, 1543 (11th
Cir. 1984) (federal courts are not empowered to correct erroneous evidentiary
rulings in state court except where rulings deny petitioner fundamental
constitutional protections). Thus, insofar as Franklin alleges that the trial
court’s evidentiary ruling violated Florida law, this claim provides no basis for
federal habeas relief.
But to the extent this claim is properly presented to the Court, the state
court’s adjudication is entitled to deference. And in applying such deference,
the Court finds the state court’s evidentiary ruling did not “‘so infuse[ ] the
trial with unfairness as to deny due process of law.’” Smith v. Jarriel, 429 F.
27

App’x 936, 937 (11th Cir. 2011) (quoting Felker v. Turpin, 83 F.3d 1303,
1311−12 (11th Cir. 1996)). 8 Accordingly, the Court finds that the state court’s
adjudication of this claim was not contrary to clearly established federal law,
did not involve an unreasonable application of clearly established federal law,
and was not based on an unreasonable determination of the facts given the
evidence presented in the state court proceedings. This subclaim is due to be
denied.
(2) Franklin’s Testimony
Next, Franklin alleges the trial court denied him due process by ruling
that he could not inform the jury about his encounter with the detectives on
the night the incident occurred. Petition at 6. Specifically, Franklin wanted to
testify that he told detectives that the victim hit him with a baseball bat. Id.
Franklin maintains that because he could not present this testimony, he was
precluded from a full presentation of his defense to defend against the state’s
accusations. Id.
On direct appeal, with the assistance of appellate counsel, Franklin
argued that the trial court erred in ruling that he could not testify as to what

The Court does not rely on unpublished opinions as binding precedent;
however, they may be cited in this Order when the Court finds them persuasive on a
particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022);
see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not
considered binding precedent, but they may be cited as persuasive authority.”).
8

28

he told the detective about the circumstance of the shooting, denying him a
right to fair trial. Response Ex. 17 at 26−30. The state filed an answer in
opposition, and Franklin filed a reply brief. Response Exs. 18; 19. The First
DCA per curiam affirmed the trial court’s denial without a written opinion.
Response Ex. 20. To the extent Franklin asserts that the trial court erred
under Florida law when it refused to allow certain testimony, his claim again
presents an issue purely of state law not cognizable on federal habeas review.
See Estelle, 502 U.S. at 67–68; Osborne, 720 F.2d at 1238 (“As a general rule,
a federal court in a habeas corpus case will not review the trial court’s actions
in the admission of evidence.”) (citation omitted).
Nevertheless, assuming arguendo Franklin raises a federally cognizable
claim, the Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. Doing so, the
Court finds that the state court’s adjudication of this claim was not contrary to
clearly established federal law, did not involve an unreasonable application of
clearly established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceedings. As such, Franklin is not entitled to federal habeas relief on this
subclaim of Ground One.

29

(3) Judgment of Acquittal
As for this subclaim of Ground One, Franklin alleges the trial court’s
denial of his motions for judgment of acquittal violated his due process and
equal protection rights. Petition at 6. He maintains the state, by relying on
circumstantial evidence of premeditation, did not meet its burden of presenting
evidence to refute Franklin’s reasonable theory of innocence. Id. at 7. According
to Franklin, the state did not prove premeditation or disprove that he acted in
self-defense. Id.
Franklin, through appellate counsel, raised a similar claim on direct
appeal. Response Ex. 17 at 31−38. In arguing the motions for judgment of
acquittal to the trial court, defense counsel did not reference federal law and
made no mention of any federal constitutional guarantee. Response Ex. 12 at
114−15, 193−94. Likewise, in the appellate briefs, neither side cited any federal
cases or constitutional provisions. Response Exs. 17 at 31−39; 18 at 40−48. As
such, Franklin did not alert the state courts to the federal nature of the claim
he now asserts. This claim, therefore, was not fairly presented as a federal
claim and is unexhausted. See Baldwin, 541 U.S. at 32 (holding that
“ordinarily a state prisoner does not ‘fairly present’ a claim to a state court if
that court must read beyond a petition or a brief (or similar document) that
does not alert it to the presence of a federal claim in order to find material,
such as a lower court opinion in the case, that does so”); Preston v. Sec’y, Fla.
30

Dep’t of Corr., 785 F.3d 449, 457 (11th Cir. 2015) (“The crux of the exhaustion
requirement is simply that the petitioner must have put the state court on
notice that he intended to raise a federal claim.”).
Because Franklin never raised this claim in the trial court or on direct
appeal, he cannot return to state court to properly exhaust this claim through
a second direct appeal. See Hall v. State, 823 So. 2d 757, 763 (Fla. 2002)
(stating issue not raised in an initial brief is procedurally barred) abrogation
on other grounds by State v. Johnson, 122 So. 3d 856, 862 (Fla. 2013). Thus,
the claim is unexhausted and procedurally barred in federal court. Snowden v.
Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (“[W]hen it is obvious that the
unexhausted claims would be procedurally barred in state court due to a statelaw procedural default, we can forego the needless ‘judicial ping-pong’ and just
treat those claims now barred by state law as no basis for federal habeas
relief.”). Franklin has alleged neither cause and prejudice nor a miscarriage of
justice to overcome his failure to exhaust.
Nevertheless, even assuming Franklin did exhaust the federal nature of
this claim, it still lacks merit because the state court’s adjudication is entitled
to deference. The state presented sufficient evidence, viewed in the light most
favorable to the prosecution, for the jury to conclude Franklin committed firstdegree murder. Under § 2254, habeas relief on a claim of insufficient evidence
is appropriate only “if it is found that upon the record evidence adduced at trial
31

no rational trier of fact could have found proof of guilt beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). In reviewing the denial
of a judgment of acquittal motion, “[t]he question is whether reasonable minds
could have found guilt beyond a reasonable doubt, not whether reasonable
minds must have found guilt beyond a reasonable doubt.” United States v.
Bacon, 598 F.3d 772, 775 (11th Cir. 2010) (quoting United States v. Ellisor, 522
F.3d 1255, 1271 (11th Cir. 2008)) (emphasis in original). Notably, in moving
for a judgment of acquittal, the movant admits every conclusion favorable to
the adverse party that a jury might fairly infer from the evidence. Lynch v.
State, 293 So. 2d 44, 45 (Fla. 1974). Accordingly,
[i]t is not necessary for the evidence to exclude every
reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt.
. . . The jury is free to choose between or among the
reasonable conclusions to be drawn from the evidence
presented at trial, and the court must accept all
reasonable inferences and credibility determinations
made by the jury.
United States v. Garcia, 447 F.3d 1327, 1334 (11th Cir. 2006) (internal
quotations and citations omitted). Indeed, the Eleventh Circuit has instructed,
we are “bound by the jury’s credibility determinations, and by its rejection of
the inferences raised by the defendant.” United States v. Peters, 403 F.3d 1263,
1268 (11th Cir. 2005).

32

Here, the state presented sufficient evidence of premeditation. For
months before the murder, Franklin was upset about the affair between his
wife and the victim. Franklin confronted the victim, physically fought with the
victim, and slashed the victim’s tires, all before committing the murder.
Response Ex. 11 at 154−56, 174, 185. Just prior to the murder, Franklin armed
himself and drove nearly twenty miles with a loaded firearm to confront the
victim. Response Ex. 12 at 37, 180. Not only did Franklin shoot the victim
through the front of the neck, he also shot him twice in the back of the head.
Response Exs. 11 at 111, 113; 12 at 83, 96−97, 99, 191. McGreevy, a neighbor
who witnessed the murder, testified that Franklin stood over the victim who
was lying on the ground, and fired his gun downward. Response Ex. 11 at 39,
44.
As to Franklin’s claim of self-defense, the victim suffered multiple
gunshot wounds, including wounds that entered through the back of his head
and exited through his face. Response Exs. 11 at 111, 113; 12 at 83, 96−97, 99,
100, 191. Franklin suffered no visible wounds from a baseball bat and admitted
that he shot the victim. Response Ex. 12 at 32, 168.
Based on the foregoing, the trial court did not err in denying Franklin’s
judgment of acquittal motions and allowing the first-degree murder charge to
go to the jury. Franklin has not shown that the state court’s rejection of this
claim involved an unreasonable application of clearly established federal law
33

or that it was based on an unreasonable determination of the facts. See 28
U.S.C. § 2254(d)(1)-(2). Accordingly, relief on this subclaim in Ground One is
due to be denied.
B. Ground Two
As Ground Two, Franklin maintains the trial court erred in denying his
Rule 3.800(a) motion. Petition at 8. Franklin asserts that the trial court
imposed an additional term of years above the statutory mandatory minimum
of twenty-five years under the 10-20-life statute. Id. He alleges this additional
term of years is impermissible because once a mandatory minimum sentence
is imposed under the 10-20-life statute, it prevails over the general sentencing
maximum. Id. In essence, Franklin argues it was illegal to impose both a life
sentence and a twenty-five-year minimum mandatory on Count One. Id.
On April 18, 2017, Franklin filed a Rule 3.800(a) motion raising this
claim. Response. Ex. 21 at 1−4. The trial court denied the claim, stating:
Defendant was convicted of first degree murder, a capital felony,
contrary to section 782.04(1)(a), Florida Statutes. In that the State
did not seek the death penalty, only one lawful sentence could be
imposed: Life without the possibility of parole. Section 775.082(1)(a),
Florida Statutes. Further, the jury made a specific finding that in
committing the offense, Defendant discharged and actually
possessed a firearm causing death or great bodily harm. This
finding by the jury required the Court to impose a 25-year mandatory
minimum sentence pursuant to section 775.087(2)(a)(3), Florida
Statutes. The sentence the Court imposed was not illegal; it was the
only legal sentence the Court could impose and, therefore,
Defendant is not entitled to relief.
34

Response Ex. 22 at 1−2. The First DCA per curiam affirmed without opinion
the trial court’s denial. Response Ex. 23 at 1−2.
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. After a review of
the record and the applicable law, the Court concludes that the state court’s
adjudication of this claim was not contrary to clearly established federal law,
did not involve an unreasonable application of clearly established federal law,
and was not based on an unreasonable determination of the facts given the
evidence presented in the state court proceedings. Franklin is therefore not
entitled to relief on the basis of this claim.
That said, even if the state court’s adjudication of this claim is not
entitled to deference, Franklin’s claim lacks merit. The Florida Supreme Court
has determined that the “25 to life” provision in the 10–20–Life statute
provides trial courts with discretion to impose a mandatory minimum sentence
between twenty-five years to life. Mendenhall v. State, 48 So. 3d 740, 750 (Fla.
2010). This is true even if that mandatory minimum exceeds the statutory
maximum for the crime. Id. The Florida Supreme Court has also determined
that the same “25 to life” provision does not provide trial courts with discretion
to impose a sentence greater than the mandatory minimum selected by the
trial court. Hatten v. State, 203 So. 3d 142, 146 (Fla. 2016). To illustrate, the
court in Hatten explained:
35

[T]he trial court could have imposed the total 40–year sentence as
a mandatory minimum sentence pursuant to the 10–20–Life
statute, even though it would exceed the 30–year maximum under
the general sentencing statute, pursuant to Mendenhall. However,
the sentence imposed was the following: “For a term of 40 years
(25 yr. min. mand.).” There is no statutory authority for the
additional term of years beyond the selected mandatory minimum
(of
25
years)
under
the
10–20–Life
statute.
Id. at 145–46 (Fla. 2016). To do that, the trial court must have additional
statutory authority. Id. at 146.
Here, the trial court did not run afoul of Mendenhall or Hatten. The trial
court imposed a life sentence, which was the only available sentence for capital
first-degree murder, along with a minimum mandatory for the use of a firearm.
This is not an illegal sentence as the trial court had the statutory authority to
impose the life sentence in addition to the minimum mandatory term of
imprisonment. Accordingly, relief on the claim raised in Ground Two is due to
be denied.
C. Ground Three
As Ground Three, Franklin maintains: “the per curiam opinion affirms
the appellate court neglected its ministerial quasi-judicial function, which
denied available state corrective process.” Petition at 9. To support this claim,
he alleges: (1) appellate counsel failed to recognize fundamental error on the
face of the record; and (2) the First DCA’s per curiam affirmance on direct
appeal does not establish a determination on the merits. Id. at 9−10.
36

(1) Appellate Counsel
Franklin alleges appellate counsel was ineffective for failing to recognize
fundamental error in the record and raise that claim on direct appeal. Id. at 9.
Specifically, Franklin alleges the jury instructions as given placed the burden
on him to prove he was not the aggressor and relieved the state of its burden.
Id. According to Franklin, the state requested a jury instruction for the
language contained in section 776.041, Florida Statutes, which states that if
you are the aggressor, you have a duty to retreat. Id. at 10. And the defense
asked for the instruction related to section 776.012, Florida Statutes, which
states that you do not have a duty to retreat if you are attacked at a location
in which you are legally present. Id. Franklin argues that appellate counsel
should have raised on direct appeal a claim of ineffective assistance of trial
counsel for failing to alert the trial court about the improper burden shifting
in the jury instructions. Id.
Franklin raised a substantially similar claim in his petition for writ of
habeas corpus filed with the First DCA. Response Ex. 24 at 2−12. The First
DCA denied the claim on the merits. Response Ex. 25 at 1. As such, the First
DCA’s adjudication of this claim is entitled to AEDPA deference. Upon a
thorough review of the record and the applicable law, the Court finds that the
state court’s decision to deny Franklin’s claim was neither contrary to nor an
unreasonable application of Strickland, and it was not based on an
37

unreasonable determination of the facts given the evidence presented to the
state court. See 28 U.S.C. § 2254(d). Accordingly, the relief sought in this
subclaim of Ground Three is due to be denied. 9
(2) Per Curiam Affirmance
Franklin maintains that because the First DCA per curiam affirmed his
judgment and sentence without a written opinion on direct appeal, the decision
neither establishes a determination on the merits nor whether the trial court
departed from the essential requirements of law. Petition at 10. By doing so,
Franklin asserts that the First DCA has exhibited deliberate indifference to its
judicial function which rises to the level of a “federal violation.” Id.
Contrary to Franklin’s assertions, “a per curiam affirmance without
opinion is not an indication that the case was not considered on the merits.”
Bryant v. Sec’y, Fla. Dep’t of Corr., No. 1:15-cv-158-WTH-GRJ, 2018 WL
3245015, at *4 (N.D. Fla. May 7, 2018), report and recommendation adopted
sub nom. 2018 WL 3244088 (N.D. Fla. July 3, 2018). Florida courts have
recognized this principle. Crittenden v. State, 67 So. 3d 1184, 1185 n. 1 (Fla.
5th DCA 2011) (“We reiterate that a per curiam affirmance without opinion is
not an indication that the case was not considered on the merits. Each and
every appeal receives the same degree of attention.”); Elliott v. Elliott, 648 So.

9

The Court further addresses the jury instructions in Ground Eleven.

38

2d 137, 139 (Fla. 4th DCA 1994) (“Perhaps the court needs simply to restate
the fundamental proposition that each and every appeal receives the same
degree of attention and that a per curiam affirmance without opinion is not an
indication of any kind of lesser treatment.”). Accordingly, the relief sought on
this subclaim in Ground Three is due to be denied.
D. Ground Four
As Ground Four, Franklin alleges the trial court erred in denying the
claim of cumulative error in his amended Rule 3.850 motion. Petition at 11.
Franklin raised a claim of cumulative error as ground sixteen in his
amended Rule 3.850 motion. Response Ex. 26 at 38−40. The trial court denied
the claim, stating:
Defendant asserts the aggregate effect of the above errors
amounts to cumulative error. “Claims of cumulative error do not
warrant relief where each individual claim of error is either
‘meritless, procedurally barred, or [does] not meet the
Strickland standard for ineffective assistance of counsel.’”
Schoenwetter v. State, 46 So. 3d 535, 562 (Fla. 2010) (quoting
Israel v. State, 985 So. 2d 510. 520 (Fla 2008)). Having found
that all of Defendant’s previous claims were either meritless,
procedurally barred, or did not meet the Strickland standard of
ineffective assistance of counsel, Defendant is not entitled to relief.
Response Ex. 31 at 26. The First DCA per curiam affirmed without opinion the
trial court’s order. Response Ex. 37 at 1−2, 19. The Court addresses the claim
in accordance with the deferential standard for federal court review of state
court adjudications.
39

The Eleventh Circuit addresses “claims of cumulative error by first
considering the validity of each claim individually, and then examining any
errors that [it] find[s] in the aggregate and in light of the trial as a whole to
determine whether the appellant was afforded a fundamentally fair trial.”
Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). Indeed,
the Eleventh Circuit has explained that where there is no individual merit to
individual claims, the argument that cumulative error requires reversal is
baseless. United States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005); see
also United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004); United
States v. Barshov, 733 F.2d 842, 852 (11th Cir. 1984). Here, because the Court
has determined that none of Franklin’s individual claims of error or prejudice
have merit, 10 Franklin’s cumulative error claim cannot stand. See Taylor, 417
F.3d at 1182 (“There being no error in any of the district court’s rulings, the
argument that cumulative trial error requires that this Court reverse [the
defendant’s] convictions is without merit.”).
On this record, the Court finds that the state court’s adjudication of this
claim was not contrary to clearly established federal law, did not involve an
unreasonable application of clearly established federal law, and was not based
on an unreasonable determination of the facts in light of the evidence

10

The Court addresses each of the claims throughout this order.

40

presented in the state court proceedings. The relief sought in Ground Four is
due to be denied.
E. Ground Five
As Ground Five, Franklin alleges the trial court erred in denying
grounds one, four, and thirteen of his amended Rule 3.850 motion. Petition at
14−17.
(1) Ground One of Rule 3.850 Motion
Franklin alleges counsel was ineffective for failing to introduce his arrest
and booking photographs at trial. Petition at 16. He maintains the photographs
were taken shortly after his arrest and showed defensive wounds. Id. By failing
to introduce these photographs, Franklin argues trial counsel deprived him of
a fair opportunity to defend against the charges and challenge the credibility
of state witnesses that claimed he had no injuries. Id.
Franklin raised a substantially similar claim in ground one of his
amended Rule 3.850 motion. Response Ex. 26 at 5−7. The trial court denied
the claim, stating:
At trial, the detective who spoke to Defendant that night testified
he saw no injuries to Defendant, or he would have notified the
medical staff and had photographs taken. Moreover, no blood or
DNA was found on the metal baseball bat Defendant alleges the
victim used to strike him. Defendant agreed the police took no
pictures of him, but stated that he did have injuries of lumps on his
head from where the victim allegedly hit him with the bat and that
he told police about those injuries.
41

Even if his booking photographs showed lumps on Defendant’s head,
this Court finds no reasonable probability the result of the
proceeding would have been different. This is particularly true
based on the evidence of premeditation presented by the State.
The State presented evidence that Defendant had tried to stop the
affair between the victim and Defendant’s wife before, by
confronting and fighting the victim, slashing the victim’s tires, and
reporting the affair to a supervisor at the victim and Defendant’s
wife’s workplace, but those methods failed. Additionally, when
Defendant found out the affair was ongoing, he loaded his gun, drove
around town for awhile while planning to go to the victim’s home,
and then shot him. There was evidence Defendant shot the victim
in the back of the head and shot him while he stood over the victim
lying on the ground, including Defendant’s own admission that he
shot the victim but did not remember how. Accordingly,
Defendant’s first ground is without merit.
Response Ex. 31 at 2−3 (record citations omitted). The First DCA per curiam
affirmed the trial court’s denial without a written opinion. Response Ex. 37 at
1−2, 19.
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. After a review of
the record and the applicable law, the Court concludes that the state court’s
adjudication of this claim was not contrary to clearly established federal law,
did not involve an unreasonable application of clearly established federal law,
and was not based on an unreasonable determination of the facts given the
evidence presented in the state court proceedings. Franklin is therefore not
entitled to relief on the basis of this subclaim.

42

(2) Ground Four of Rule 3.850 Motion
Franklin alleges his trial counsel was ineffective for failing to develop a
working relationship with him and allow him to participate in his case. Petition
at 15. He alleges he filed letters, motions to counsel, and informed the trial
court of issues with his counsel. Id. Franklin contends counsel failed to pursue
certain evidence, including 911 calls, which deprived him of an opportunity to
hear all evidence. Id. at 16. And on the occasions she did visit him, trial counsel
allegedly misinformed Franklin about the “heat of passion” and self-defense
defenses. Id. Franklin also maintains counsel’s failure to visit him in the jail
left him uninformed of the facts and hindered his ability to prepare for his trial.
Id.
Franklin raised a substantially similar claim in ground four of his
amended Rule 3.850 motion. Response Ex. 26 at 12−14. The trial court denied
the claim, stating:
In this ground, Defendant avers the trial court erred in failing to
look into the facts alleged by Defendant during his Nelson
hearings. “[A]llegations of trial court error are not cognizable by
motion under rule 3.850.” Grimsley v. Jones, 215 So. 3d 353, 354
(Fla. 2016) (citations omitted). Therefore, Defendant is not
entitled to relief on this ground to the extent this ground raises
such a claim.
However, within this ground, Defendant also alleges counsel was
ineffective for only visiting Defendant twice. Defendant states
counsel failed to obtain 911 calls, which would have shown the
victim to be the aggressor. Moreover, he vaguely states that
counsel did not put forth investigation into the evidence presented
43

and available evidence because she had different views than
Defendant.
Even assuming arguendo that counsel did only visit Defendant
twice, he does not allege sufficient prejudice to warrant relief on
this basis as he does not explain how meeting with him more often
would have changed the outcome of the proceeding. Moreover,
Defendant’s vague assertions regarding counsel not putting forth
investigation into evidence and having a conflict with Defendant
are also insufficiently pled in that he does not specifically identify
what investigation counsel did not conduct or how that
investigation or getting along with Defendant would have changed
the outcome of the proceeding. This Court granted Defendant
leave to amend this ground previously and is not required to do
so again. See Fla. R. Crim. P. 3.850(f)(3); Spera v. State, 971 So.
2d 754, 761 (Fla. 2007) (holding “the trial court abuses its
discretion when it fails to allow the defendant at least one
opportunity to amend the motion.”) (emphasis added).
As for the 911 calls, this Court also finds Defendant’s allegations to
be insufficiently pled. While Defendant states the calls would have
shown the victim to be the aggressor, Defendant does not explain
who made these alleged calls and how they would have shown the
victim to be the aggressor. Moreover, this Court finds that the
record refutes Defendant’s allegations that counsel failed to procure
such records. While Defendant states counsel simply did not want the
call, she stated she had gone over all the 911 calls turned over to her by
the State and although she was not sure whether the 911 call
Defendant was referring to even existed, she did not know if she would
want it because she thought it may hurt Defendant’s case. After that,
the State addressed the trial court to ensure that counsel had received
all the 911 calls associated with the case. Counsel also stated she had
someone from her office review with Defendant the entirety of every
disk counsel possessed. Accordingly, this Court finds Defendant is not
entitled to relief on this ground.
Response Ex. 31 at 8−9 (record citations omitted). The First DCA per curiam
affirmed the trial court’s denial without a written opinion. Response Ex. 37
at 1−2, 19.
44

The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. After a review of
the record and the applicable law, the Court concludes that the state court’s
adjudication of this claim was not contrary to clearly established federal law,
did not involve an unreasonable application of clearly established federal law,
and was not based on an unreasonable determination of the facts given the
evidence presented in the state court proceedings. Franklin is therefore not
entitled to relief on the basis of this subclaim.
That said, even if the state court’s adjudication of this claim is not
entitled to deference, Franklin’s claim lacks merit. Franklin makes a
conclusory statement that because trial counsel did not meet with him on more
occasions, he was left uninformed about the facts of the case and that it
detrimentally impacted his case. But Franklin fails to identify what further
information he could have told counsel, and the trial record shows counsel was
well informed about Franklin’s version of events, as detailed by her
presentation during trial. Further, trial counsel stated that she reviewed all of
the discovery provided by the state with Franklin. Franklin, No. 16-2013-CF7224-AXXX-MA, (Doc. 399 at 7−8). Of note, the state obtained 911 calls and
provided them to the defense as part of its discovery package. Franklin, No.
16-2013-CF-7224-AXXX-MA, (Doc. 400 at 27). And while trial counsel
admitted there may be an additional 911 call not included, she explained that
45

she was hesitant to obtain it because she thought it might be detrimental to
the defense. Id.
Also, trial counsel presented a self-defense theory at trial. And as for a
“heat of passion” defense, the Court finds the trial evidence, including
Franklin’s own testimony, would not have supported such a defense. Franklin
testified that he did not take a direct route to the victim’s home because he was
upset. Response Ex. 12 at 161−63. Detective Sullivan estimated a direct route
would have taken thirty minutes. Id. at 36−37. Given Franklin’s testimony
that he did not go directly there, it is clear it would have taken him longer
if he “went around town” and made stops on the way to the victim’s house. Id.
at 161−63. Under either scenario, and based on Franklin’s own statements, a
reasonable person would have sufficient time to “cool off,” defeating any
possibility of presenting a “heat of passion” defense. See Fla. Std. Jury Instr.
(Crim.) 7.2. To the extent Franklin maintains counsel did not inform him of this
defense, this Court finds no error as such a defense was inconsistent with the
evidence.
In sum, the Court finds there is no threshold number of meetings with a
client that make a trial counsel effective. Trial counsel routinely communicated
with Franklin, reviewed discovery, took depositions, and presented a defense
theory at trial that fit the evidence presented. The Court cannot find trial
counsel acted ineffectively for failing to meet with Franklin on more occasions,
46

request certain evidence that may be detrimental to his case, or pursue a
defense that was not supported by the evidence. See, e.g., Williamson v. Moore,
221 F.3d 1177, 1181 (11th Cir. 2000). For these reasons, relief on this subclaim
is due to be denied.
(3) Ground Thirteen of Rule 3.850 Motion
As this subclaim, Franklin alleges trial counsel raised a theory of selfdefense at trial but failed to prepare a defense that would negate the state’s
evidence of premeditation. Petition at 15. He maintains the affair “devastated
his rational thinking” and led him to take irrational actions. Id. Franklin
asserts the proper defense should have been “heat of passion” and self-defense.
Id.
Franklin raised a substantially similar claim in ground thirteen of his
amended Rule 3.850 motion. Response Ex. 26 at 34−35. The trial court denied
the claim, stating:
The heat of passion defense may negate the intent element of
premeditation for first degree murder or the depraved heart
element of second degree murder. Wheeler v. State, 4 So. 3d 599,
604 (Fla. 2009); Palmore v. State, 838 So. 2d 1222, 1224 (Fla. 1st
DCA 2003). For the jury to find in favor of a heat of passion
defense, they must find:
a. there must have been a sudden event that would have
suspended the exercise of judgment in an ordinary
reasonable person; and
b. a reasonable person would have lost normal selfcontrol and would have been driven by a blind and
unreasoning fury; and
47

c. there was not a reasonable amount of time for a
reasonable person to cool off; and
d. a reasonable person would not have cooled off
before committing the act that caused death; and
e. Defendant was, in fact, so provoked and did not cool off
before he committed the act that caused the death of
the victim.
Fla. Std. Jury Instr. (Crim.) 7.2.
At trial, the State presented evidence that on the day of the
shooting, Defendant found out his wife was continuing to have an
affair that he believed had ended six months before. After hitting
his wife, Defendant got into an altercation with his brother, then
grabbed his gun, loaded it, and headed for the victim’s house.
Detective Dennis Sullivan stated that he measured the distance
between Defendant’s residence and the victim’s residence and
that it was approximately twenty miles and would take
approximately thirty minutes to drive. However, Defendant
testified that he did not take a direct route to the victim’s house
because he “went around town to try to calm down before [he] went
to [the victim’s] house, because [he] didn’t want to go to [the
victim’s] house with rage in [himself] or anything, because [he]
knew [he] wasn’t mentally stable at that point.” Defendant stated
he not only drove around town, but also stopped at a family
member’s house to try to call his daughter, but that he was not
allowed to talk to her. Defendant testified he then went to the
victim’s house, but “drove the long way because [he] was upset.”
Based on this evidence, this Court finds no reasonable probability
the result of the proceeding would have been different, even had
counsel advised him the heat of passion defense was available and
presented that defense. Initially, this Court notes that it would be
difficult to argue this was a “sudden event that would have
suspended the exercise of judgment in an ordinary reasonable
person” since Defendant had previously known of the affair. Even
more, it would be difficult to argue “there was not a reasonable
amount of time for a reasonable person to cool off,” “a reasonable
person would not have cooled off before committing the act that
caused death,” and that he acted out of a “blind and unreasoning
fury.” Defendant specifically testified that he did not take a direct
48

route to the victim’s house at all because he recognized he was
upset and did not want to proceed to the victim’s house in a rage.
Detective Sullivan estimated a direct route would have taken
thirty minutes, so it is clear it would have taken Defendant much
longer if he “drove around town” and made stops on the way to the
victim’s house, giving a reasonable person sufficient time to cool
off. Accordingly, this Court finds Defendant is not entitled to
relief on this ground.
Response Ex. 31 at 22−24 (record citations omitted). The First DCA per
curiam affirmed the trial court’s denial without a written opinion. Response
Ex. 37 at 1−2, 19.
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. After a review of
the record and the applicable law, the Court concludes that the state court’s
adjudication of this claim was not contrary to clearly established federal law,
did not involve an unreasonable application of clearly established federal law,
and was not based on an unreasonable determination of the facts given the
evidence presented in the state court proceedings. Franklin is therefore not
entitled to relief on the basis of this subclaim.
F. Ground Six
As Ground Six, Franklin alleges the trial court erred in denying grounds
one, seven, and fourteen of his amended Rule 3.850 motion. Petition at 17−19.

49

(1) Ground One of Rule 3.850 Motion
Franklin alleges counsel was ineffective for failing to effectively crossexamine Detective Sullivan. Petition at 18. At trial, Detective Sullivan testified
about the proper policy and procedure once they are informed that a defendant
has physical injuries. Id. Franklin alleges counsel failed to cross-examine
Detective Sullivan on whether he followed those procedures when Franklin
was arrested and had injuries. Id. He maintains that he had defensive wounds
from the baseball bat and the jury was left uninformed of the “true
circumstances of the events.” Id.
Franklin raised a substantially similar claim within ground one of his
amended Rule 3.850 motion. Response Ex. 26 at 5−7. The trial court denied
the claim, stating:
At trial, the detective who spoke to Defendant that night testified
he saw no injuries to Defendant, or he would have notified the
medical staff and had photographs taken. Moreover, no blood or
DNA was found on the metal baseball bat Defendant alleges the
victim used to strike him. Defendant agreed the police took no
pictures of him, but stated that he did have injuries of lumps on his
head from where the victim allegedly hit him with the bat and that
he told police about those injuries.
Even if his booking photographs showed lumps on Defendant’s head,
this Court finds no reasonable probability the result of the
proceeding would have been different. This is particularly true
based on the evidence of premeditation presented by the State.
The State presented evidence that Defendant had tried to stop the
affair between the victim and Defendant’s wife before, by
confronting and fighting the victim, slashing the victim’s tires, and
reporting the affair to a supervisor at the victim and Defendant’s
50

wife’s workplace, but those methods failed. Additionally, when
Defendant found out the affair was ongoing, he loaded his gun, drove
around town for awhile while planning to go to the victim’s home,
and then shot him. There was evidence Defendant shot the victim
in the back of the head and shot him while he stood over the victim
lying on the ground, including Defendant’s own admission that he
shot the victim but did not remember how. Accordingly,
Defendant’s first ground is without merit.
Response Ex. 31 at 2−3 (record citations omitted). The First DCA per curiam
affirmed the trial court’s denial without a written opinion. Response Ex. 37 at
1−2, 19.
While the trial court did not discuss Franklin’s specific argument that
trial counsel failed to cross-examine Detective Sullivan about procedures in its
order, Franklin did raise this issue within his Rule 3.50 motion. If the First
DCA considered and decided this issue on the merits despite the omission from
the trial court’s order, the Court addresses the claim in accordance with the
deferential standard for federal court review of state court adjudications. After
a review of the record and the applicable law, the Court concludes that the
state court’s adjudication of this claim was not contrary to clearly established
federal law, did not involve an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of the facts
given the evidence presented in the state court proceedings. Franklin is
therefore not entitled to relief on the basis of this claim.

51

To the extent that the First DCA did not consider this claim, the Court
finds Franklin is still not entitled to relief. The evidence here supports the
jury’s verdict that Franklin did not act in self-defense, but instead went to the
victim’s home to confront him with a deadly weapon. Injuries he may have
sustained would not refute the circumstances surrounding the offense. And
testimony about whether law enforcement followed certain procedures also
would not refute the evidence that Franklin obtained a firearm and
ammunition, drove more than twenty minutes, and confronted the victim on
the victim’s property. It also would not refute the evidence that Franklin shot
the victim in the back of the head and shot the victim while the victim was lying
on the ground. Response Exs. 11 at 43, 57−58; 12 at 99.
As for the defense strategy, Detective Sullivan testified that Franklin
had no injuries. Response Ex. 12 at 32−33. On cross-examination, trial counsel
chose to highlight that law enforcement had no documentation to support the
testimony that Franklin had no injuries upon his arrival in custody. Id. at 51.
The Court finds trial counsel cannot be held ineffective for failing to pursue the
cross-examination suggested by Franklin here given the circumstances of this
case. The cross-examination strategy used by trial counsel supported the
defense theory and was reasonable. For these reasons, relief on this subclaim
is due to be denied.

52

(2) Ground Seven of Rule 3.850 Motion
Franklin maintains trial counsel was ineffective for allowing tainted
evidence to be introduced at trial. Petition at 18. He contends the bat recovered
from the crime scene was not properly tested and law enforcement exhibited
misconduct in the collection and handling of the evidence. Id. He further
laments that the state insinuated to the jury that his DNA should be on the
bat if he was struck with it. Id.
Franklin raised a substantially similar claim in ground seven of his
amended Rule 3.850 motion. Response Ex. 26 at 21−24. The trial court denied
the claim, stating:
The crime scene detective who processed the scene of the shooting,
Detective Andrew F. Kipple, testified that a bat was found near the
victim. Detective Kipple testified that he did not swab or test the
bat, but collected it and preserved it for potential testing by Florida
Department of Law Enforcement (“FDLE”). On cross-examination,
defense counsel made sure to highlight that the detective did not
swab it, test it for fingerprints, or use luminol to determine the
presence of blood. The bat was submitted to FDLE for analysis, but
a visual search as well as luminol testing revealed no presence of
blood. FDLE also swabbed the bat for DNA, but no DNA results
were found. In her closing argument, counsel specifically used this
testimony to discredit any FDLE results and the State’s arguments
regarding no DNA being found on the bat by stating the detective
failed to test the bat that night and that no DNA was found on any
evidence submitted in this case. Thus, it is clear from the record
that counsel was familiar with the crime scene evidence and the
limitations of that evidence, using the facts to Defendant’s
advantage. Accordingly, this Court finds counsel was not deficient
in this regard and Defendant is not entitled to relief on this ground.
Response Ex. 31 at 14 (record citations omitted). The First DCA per curiam
53

affirmed the trial court’s denial without a written opinion. Response Ex. 37
at 1−2, 19.
To the extent that the First DCA decided this issue on the merits, the
Court addresses the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts given the evidence
presented in the state court proceedings. Franklin is therefore not entitled to
relief on the basis of this subclaim.
Regardless, even if the state court’s adjudication of this claim is not
entitled to deference, Franklin’s claim lacks merit. Franklin acknowledges in
his Petition that trial counsel did highlight for the jury law enforcement’s
alleged negligence in collecting and handling of the evidence, but argues that
this does not change the fact that the state ultimately used tainted evidence.
Petition at 18. Trial counsel employed a reasonable strategy in challenging the
state’s evidence here. Because that strategy was ultimately unsuccessful does
not render that strategy ineffective. Trial counsel cross-examined Detective
Kipple on his evidence collection to bring attention to the deficiencies, and in
turn, used that testimony to discredit any subsequent FDLE test results and
54

the state’s arguments regarding no DNA being found on the bat. Response Exs.
11 at 129−30; 13 at 86−87. Thus, the record shows trial counsel did address the
allegedly tainted evidence at trial. Although the Court, in hindsight, could
speculate that a different strategy may have been more effective, counsel’s
decision to cross-examine Detective Kipple and use his testimony to cast doubt
on the state’s evidence is not deficient simply because it failed to convince the
jury. See Strickland, 466 U.S. at 689 (“Judicial scrutiny of counsel’s
performance must be highly deferential . . . [a] fair assessment of attorney
performance requires that every effort be made to eliminate the distorting
effects of hindsight . . . .”). As such, relief on the subclaim presented here is due
to be denied.
(3) Ground Fourteen of Rule 3.850 Motion
Franklin next alleges trial counsel was ineffective for allowing tainted
evidence to be introduced to the jury. Petition at 18. He alleges trial counsel
did not challenge the state’s misconduct in failing to collect all evidence from
his wife’s cell phone. Id. And, as a result, he was denied an opportunity to view
all of the applicable evidence in his case. Id.
Franklin raised a substantially similar claim in ground fourteen of his
amended Rule 3.850 motion. Response Ex. 26 at 35−36. The trial court denied
the claim, stating:
On January 14, 2019, this Court granted Defendant leave to
55

amend his original motion to render his motion, and all the
grounds within it, sufficient for review. This Court finds this claim
is insufficiently pled. Defendant does not explain what he believes
were in the additional text messages not shown by the State or
procured by counsel and how these text messages would have
changed the outcome of the proceeding. Defendant simply alleges
counsel’s failure to procure all the text messages, and asserts the
outcome of the trial would have been different. In Defendant’s
Original Motion, Defendant stated that “if [it] is true that Mrs.
Franklin might have been texting [the victim], it would have
shown beyond a reasonable doubt that [the victim] was the true
aggressor.” However, this Court finds such allegation is also
conclusory because Defendant does not explain what the text
messages would be or how they would show the victim to be the
aggressor. Such mere conclusory allegations are insufficient to
warrant relief. See Freeman v. State, 761 So. 2d 1055. 1061 (Fla.
2000)(“The defendant bears the burden of establishing a prima
facie case based upon a legally valid claim. Mere conclusory
allegations are not sufficient to meet this burden.”); Jones v.
State, 998 So. 2d 573, 584 (Fla. 2003). Moreover, as Defendant’s
allegations are sprinkled with uncertainty of what the text
messages would contain, if anything, the allegations here are
based on speculation that cannot warrant relief. See Maharaj,
778 So. 2d at 951. To the extent to which Defendant alleges
that his wife’s text messages would show that the victim had been
warned Defendant was coming over, or that the victim intended to
attack Defendant, those claims are disposed of in this Court’s
analysis of Grounds Two and Three, above.
In Defendant’s Original Motion, he also alleged counsel was
ineffective for failing to obtain all of the victim’s text messages.
However, this allegation is not raised in the Amended Motion.
Thus, Defendant either intended to withdraw the claim or it
remains insufficiently pled; either way, it cannot be the basis for
relief. Because this Court already granted Defendant leave to
amend and this claim remains insufficiently pled, this Court
finds it is subject to summary denial. See Fla. R. Crim. P. 3.850
(f)(3); Spera, 971 So. 2d at 761. Accordingly, this ground is without
merit.
Response Ex. 31 at 24−25 (record citations omitted). The First DCA per
56

curiam affirmed the trial court’s denial without a written opinion. Response
Ex. 37 at 1−2, 19.
Contrary to Respondents’ arguments here, the trial court’s ruling that
this claim is insufficiently pled is not an independent and adequate state
ground that precludes federal review. See Pope v. Sec’y for Dep’t of Corr., 680
F.3d 1271, 1286 (11th Cir. 2012) (“[J]ust as under our federal procedural rules,
a Florida state court’s dismissal of a post-conviction claim for facial
insufficiency constitutes—at least for purposes of the procedural default
analysis—a ruling ‘on the merits’ that is not barred from our review.”).
Franklin’s claim is not barred from federal habeas review. See Owen v. Sec’y
for Dep’t of Corr., 568 F.3d 894, 913 (11th Cir. 2009).
Thus, the Court applies deference to the state court’s adjudication. And
in doing so, the Court applies deference to the state court’s finding that
Franklin’s ineffective assistance of counsel claim was vague, conclusory, and
speculative. After a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of this claim was not contrary to
clearly established federal law, did not involve an unreasonable application of
clearly established federal law, and was not based on an unreasonable
determination of the facts given the evidence presented in the state court
proceedings. Indeed, the Court sees nothing in the trial court’s order−which

57

the First DCA affirmed−that violates Strickland. Thus, habeas relief is not
warranted on this subclaim.
G. Ground Seven
As Ground Seven, Franklin alleges the trial court erred in denying
grounds two, five, and twelve of his amended Rule 3.850 motion. Petition at
19−21. As the basis for these grounds, Franklin alleges trial counsel was
ineffective by not being prepared for trial in the following ways. Each is
addressed in turn.
(1) Ground Two of Rule 3.850 Motion
Franklin maintains trial counsel failed to present testimony from his
brother, Scott Franklin, at trial. Petition at 20. Franklin maintains Scott
Franklin had firsthand knowledge of the “emotional devastation” he was
experiencing. Id. Scott Franklin also knew about prior events and
circumstances of what occurred between Franklin, Burnell, and the victim,
which Franklin maintains would show the intent was not premeditation to
murder the victim. Id. Franklin further alleges that Scott Franklin spoke to
the victim and knew the victim had plans to attack Franklin on the night of
the murder. Id.
Franklin raised a substantially similar claim as ground two in his
amended Rule 3.850 motion. Response Ex. 26 at 8−9. The trial court denied
the claim, stating:
58

Defendant maintains counsel acted deficiently by failing to call
Defendant’s brother, Scott Franklin (“Franklin”). Defendant
suggests Franklin would have testified that he called the victim to
tell him Defendant was coming to confront him and advised the
victim to call the police and stay inside, but that the victim
responded with his intent to “combat[] the armed Defendant.”
Defendant avers this testimony would have shown the victim’s
intent to attack Defendant and would have rebutted the State’s
theory of premeditation by Defendant.
However, even assuming arguendo that counsel had called Scott
Franklin to testify that he specifically told the victim Defendant
was headed to the victim’s home and the victim’s reaction thereto,
there is no reasonable probability the result of the proceeding would
have been different. This is especially true considering the evidence
of premeditation as outlined in Ground One. Moreover, evidence
was presented that the victim came out to meet Defendant armed
with a metal baseball bat, showing his intent to meet Defendant
outside armed. Defendant’s wife testified that after Defendant left
the residence that night, she called the victim to let him know
Defendant had seen the text messages between them and was mad
about them. Therefore, there was evidence presented at trial that
the victim at least knew Defendant was angry about his affair with
Defendant’s wife before Defendant arrived at his house that night.
In closing, defense counsel argued that the victim knew Defendant
had found out about the text messages, as shown by Defendant’s
wife’s testimony that she informed the victim of that fact, so the
victim was waiting for the Defendant. However, despite this
evidence and argument, the jury still did not find Defendant acted
in self-defense or was justified in doing so. This Court, thus, finds
Defendant is not entitled to relief on this ground.
Response Ex. 31 at 4 (record citations omitted). The First DCA per curiam
affirmed the trial court’s denial without a written opinion. Response Ex. 37 at
1−2, 19.
To the extent that the First DCA decided this issue on the merits, the
Court addresses the claim in accordance with the deferential standard for
59

federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts given the evidence
presented in the state court proceedings. Franklin is therefore not entitled to
relief on the basis of this subclaim.
Even if the state court’s adjudication of this claim is not entitled to
deference, Franklin’s claim lacks merit. Complaints about uncalled witnesses
are not favored, because the presentation of testimony involves trial strategy
and “allegations of what a witness would have testified are largely
speculative.” Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978).
Indeed, counsel’s decision on which witnesses to call “is the epitome of a
strategic decision, and it is one that [courts] will seldom, if ever, second guess.”
Rhode v. Hall, 582 F.3d 1273, 1284 (11th Cir. 2009).
Here, Franklin has not established that no competent lawyer would have
chosen not to call the witness. The court record shows Scott Franklin was a
Category A witness and that counsel took his deposition. Franklin, No. 162013-CF-7224-AXXX-MA, (Docs. 41; 96; 400 at 29−30). There are many
reasons to decline to call this witness, including the fact that the state could
attack his credibility as biased based on the fact he is Franklin’s brother.
60

Notably, refusing to call a witness is the kind of tactical decision that lawyers
make, and based on the record here, it was not so egregious that no competent
lawyer would make the same decision.
As to the second prong of the Strickland test, to prove prejudice, Franklin
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694. It is not enough for him to show that the error had
some conceivable effect on the outcome of the proceeding. Id. at 693. And,
courts must consider the totality of the evidence before the jury in making the
prejudice determination. Id. at 695. “The likelihood of a different result must
be substantial, not just conceivable.” Evans v. Sec’y, Dep’t of Corr., 703 F.3d
1316, 1327 (11th Cir. 2013) (citation omitted).
Franklin has failed to satisfy his burden on the prejudice prong. Even if
Scott Franklin testified about what he told the victim, the Court finds the
outcome of these proceedings would not have been different. There was evidence
at trial that the victim came out to meet Franklin armed with a metal baseball
bat. Response Exs. 11 at 59; 12 at 165−66. Burnell testified that after Franklin
left the residence that night, she called the victim to let him know Franklin had
seen the text messages between them. Response Ex. 11 at 188−89. Thus, the
jury heard evidence that the victim knew Franklin was upset about his affair

61

with Burnell. And, the victim’s neighbor−upon discovering the body−saw the
baseball bat on the ground nearby. Id. at 59.
Yet the state presented evidence that Franklin had tried to stop the
affair between the victim and Burnell in the months leading up to the murder,
by confronting and fighting the victim, slashing the victim’s tires, and reporting
the affair to a supervisor at the victim’s workplace. Response Exs. 11 at
155−56; 12 at 188. The jury further heard that when Franklin found out the
affair was ongoing, he armed himself, loaded the gun, and drove around town
while planning to go to the victim’s home. Response Exs. 11 at 156−59; 12 at
158−59, 161−63. The state presented evidence that Franklin shot the victim in
the back of the head and shot him while he stood over the victim lying on the
ground. Response Exs. 11 at 44, 57−58; 12 at 99. Testimony from Scott
Franklin that the victim knew Franklin was coming and was prepared to fight
him does not shake the Court’s confidence in the outcome of these proceedings
given the evidence and testimony presented to the jury.
For these reasons, relief on this subclaim is due to be denied.
(2) Ground Five of Rule 3.850 Motion
Franklin maintains the state committed a discovery violation by listing
the victim’s wife, Kelly Gonzalez, as a Category B witness instead of a Category
A witness. Petition at 20. By doing so, Franklin alleges he was deprived of an
opportunity to depose the witness. Id. He maintains trial counsel’s failure to
62

investigate Gonzalez as a potential witness was deficient because she had
firsthand knowledge of prior events and was in the home moments before the
victim exited to meet Franklin in the yard. Id. at 20−21. Franklin further
alleges Gonzalez tampered with evidence by moving the victim’s body,
removing items from his pockets, and going through the victim’s phone. Id. at
21.
Franklin raised a substantially similar claim as ground five in his
amended Rule 3.850 motion. Response Ex. 26 at 15−17. The trial court denied
the claim, stating:
At the beginning of jury selection, Defendant told the trial judge
that he had wanted to depose the victim’s wife, but that “they”
did not want Defendant to do so. The State mentioned that she
was listed by the State, but only as a Category B witness as she
did not witness the shooting and could not provide any
information about what happened outside of the home.
Defendant, however, argued that “[s]he kn[e]w what happened
before . . . and what might have lead up” to the incident.
Florida Rule of Criminal Procedure 3.220(h)(l)(B) states that
“[n]o party may take the deposition of a witness listed by the
prosecutor as a Category B witness except upon leave of court
with good cause shown.” Category A witnesses include:
(1) eye witnesses, (2) alibi witnesses and rebuttal to
alibi witnesses, (3) witnesses who were present
when a recorded or unrecorded statement was
taken from or made by a defendant or codefendant,
which shall be separately identified within this
category, (4) investigating officers, (5) witnesses
known by the prosecutor to have any material
information that tends to negate the guilt of the
defendant as to any offense charged, (6) child
63

hearsay witnesses, (7) expert witnesses who have
not provided a written report and a curriculum vitae
or who are going to testify, and (8) informant
witnesses.
Fla. R. Crim. P. 3.220(b)(l)(A)(i). As the prosecutor stated on the
record that the victim’s wife was not a witness to the shooting
and could not provide information about what occurred outside
the home, the witness was not one “known by the prosecutor to
have any material information that tend[ed] to negate the guilt
of the defendant” and did not meet any other category to be
considered Category A. Accordingly, counsel would have been
required to show good cause to be entitled to depose this witness.
Testimony regarding the victim’s affair with another woman
would likely be found irrelevant and prejudicial and, therefore,
inadmissible. It is unclear how the victim’s wife would have firsthand knowledge that the victim covered up Defendant’s bite mark
as a muffler burn or that Defendant was the one to slash the
victim’s tires if the wife did not know of Defendant, or the victim’s
affair with Defendant’s wife, until after the victim’s death.
Additionally, it was clear from the evidence presented at trial that
the victim’s wife was unaware of the affair despite the fight and
slashing of the victim’s tires. Similarly, it is difficult to see how the
victim’s wife would have known about the calls from Defendant’s
wife or brother because the victim had two cell phones, one of
which was in part to conceal his affair with Defendant’s wife from
the victim’s wife. Moreover, Defendant’s wife testified at trial that
she called the victim to tell him Defendant found the text
messages and was mad. Thus, that matter was already presented
and did not require further evidence.
As for whether the victim’s wife “tampered with the crime
scene” and removed the victim’s phone from his pocket, there was
testimony presented at trial that the victim’s body was moved
before police arrived. Whether the victim’s wife removed the
victim’s phone is of no relevance.
Defendant also suggests the victim’s wife would have been able to
testify that the victim had Borderline Personality Disorder,
engaged in cutting his body, and that she had witnessed the
64

victim’s “aggressive and spontaneous behavior patterns.” This
evidence, the existence of which is based on Defendant’s
speculation, would only have become relevant to Defendant’s case
and self-defense theory if he was able to show that he knew of this
information before the time of the shooting and it contributed to his
fear of the victim, which Defendant does not suggest was the case.
See Hedges v. State, 667 So. 2d 420, 422 (Fla. 1st DCA 1996) (“To
prove the victim’s dangerous character, evidence either of the
victim’s reputation for violence or specific prior acts of violence is
admissible, when the defendant knew of the victim’s violent acts or
of his violent reputation at the time of the alleged offense.” (emphasis
added)). Moreover, the victim’s diagnosis and cutting of his body
would likely be inadmissible under 90.403 due to limited relevancy
and high risk of prejudice. Based on the above, this Court finds it
unlikely that the Court would have granted a request to depose this
witness and that even if the witness had been deposed and called
at trial, this Court finds there is no reasonable probability the
result of the proceeding would have been different. Defendant is,
therefore, not entitled to relief on this ground.
Response Ex. 31 at 10−12 (record citations omitted). The First DCA per curiam
affirmed the trial court’s denial without a written opinion. Response Ex. 37 at
1−2, 19.
To the extent that the First DCA decided this issue on the merits, the
Court addresses the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts given the evidence

65

presented in the state court proceedings. Franklin is therefore not entitled to
relief on the basis of this claim.
That said, even if the state court’s adjudication of this claim is not
entitled to deference, Franklin’s claim lacks merit. Most of the testimony
Franklin alleges Gonzalez would give about the affair and phone calls is
entirely speculative. Campbell v. Sec’y, Fla. Dep’t of Corr., No. 2:19-cv-334JES-NPM, 2022 WL 1321144, at *6 (M.D. Fla. May 3, 2022), certificate of
appealability denied, No. 22-11904-J, 2023 WL 3862150 (11th Cir. Feb. 17,
2023) (“Mere speculation that favorable evidence may exist is insufficient to
show either deficient performance or prejudice”). Moreover, the record
establishes that Gonzalez did not have knowledge of the affair. Further, she
did not have direct knowledge of what the victim did leading up to the August
1, 2013 altercation with Franklin. At the sentencing hearing, the state read a
statement from Gonzalez, in which she stated she went to bed at 10:00 p.m.
and did not get out of bed until right before the gunshots rang out at 11:00 p.m.
Franklin, No. 16-2013-CF-7224-AXXX-MA, (Doc. 386 at 19). There was also
testimony from a neighbor that upon discovering the victim’s body, Gonzalez
became upset and went to hold the body, thereby moving it from its original
position. Response Ex. 11 at 58. Thus, the jury heard that Gonzalez moved the
body.

66

Even if counsel had deposed this witness, her statements during
sentencing are indicative of what she would have said in a deposition. And it
is evident that she would not have provided the testimony Franklin now
contends she would have given. Also, to the extent Franklin alleges
prosecutorial misconduct or a discovery violation for the state failing to list
Gonzalez as a Category A witness, her statements at sentencing establish that
she did not meet the criteria for being a Category A witness. See Fla. R. Crim.
P. 3.220(b)(l)(A)(i). As such, the state did not engage in misconduct by listing
her as a Category B witness.
Because

Franklin’s

allegations

are

based

on

speculation

and

contradicted by the record, he is not entitled to the relief he seeks in this
subclaim.
(3) Ground Twelve of Rule 3.850 Motion
In this claim, Franklin alleges trial counsel was ineffective for failing to
order the deposition transcript of McGreevy. Petition at 19. Franklin alleges
trial counsel called Detective Green “on the fly” to fix her error in failing to
impeach McGreevy with her own deposition testimony. Id. Franklin further
alleges the state took “full advantage of counsel’s poor performance” by
admitting evidence at trial that McGreevy saw him shoot the victim in the back
of the head when there was no such testimony. Id.

67

Franklin raised a substantially similar claim as ground twelve in his
amended Rule 3.850 motion. Response Ex. 26 at 31−34. The trial court denied
the claim, stating:
At trial, McGreevy testified that she saw flashes occurring near a
house and could see a person but could not see a person’s face.
McGreevy continued to say she saw two people, one standing over
another on the ground. Counsel objected to this testimony,
believing McGreevy never mentioned seeing a person in her
deposition. At sidebar, however, the State presented McGreevy’s
deposition in which she said, “I could see someone laying down and
someone firing the shots. I could see the sparks, or whatever you
call it.” Thus, it was clear from her deposition testimony that she
indeed saw two people, and saw the flashes coming from one
person as he shot the person lying on the ground. Accordingly, this
Court finds any alleged impeachment from the deposition would
have been inadmissible because it was not inconsistent. Defendant
fails to show prejudice because, even to the extent anything was
inconsistent, the witness’ pretrial statements would not have
affected the outcome of the trial.
Additionally, counsel indeed called Detective Derrick Green to
impeach McGreevy. Detective Green testified McGreevy told him
she saw flashes coming from the direction of the Gonzalez
residence, but did not say the flashes were low or that she could
see someone lying on the ground or an arm aiming down at the
person on the ground. Counsel highlighted this testimony during
closing to discredit McGreevy’s testimony. Accordingly, this
Court finds counsel was not deficient in her impeachment of
McGreevy and used the means available to her to show
inconsistency.
This Court further reiterates that any
impeachment from the deposition would have been minimal and
would not have changed the outcome of the proceeding. This Court,
therefore, finds this ground to be without merit.
Response Ex. 31 at 21−22 (record citations omitted). The First DCA per
curiam affirmed the trial court’s denial without a written opinion. Response
68

Ex. 37 at 1−2, 19.
To the extent that the First DCA decided this issue on the merits, the
Court addresses the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts given the evidence
presented in the state court proceedings. Franklin is therefore not entitled to
relief on the basis of this claim.
Regardless, even if the state court’s adjudication of this claim is not
entitled to deference, Franklin’s claim lacks merit. Trial counsel was not
ineffective for failing to order copies of the deposition transcript. As she stated
at trial, she took notes at the deposition with McGreevy. Response Ex. 11 at
42. The Court cannot say counsel’s strategic decision to take notes instead of
ordering the transcript was unreasonable. Floyd v. State, 257 So. 3d 1148, 1154
(Fla. 1st DCA 2018) (finding counsel was not ineffective for failing to make
deposition transcripts available to defendant who went pro se before trial;
counsel determined she did not need the transcripts and did not order them);
see generally Dismuke v. State, 388 So. 2d 1324, 1325 (Fla. 5th DCA 1980)
(affirming trial court order that found “[t]he fact that defense counsel chose to
69

interview witnesses as opposed to taking formal depositions was a matter of
trial strategy and in no way constitutes ineffective counsel.”).
As to her introduction of Detective Green’s testimony, Detective Green
spoke to McGreevy around 2:00 a.m., shortly after she witnessed the 11:00 p.m.
murder. Response Ex. 12 at 136. Detective Green’s notes of this interaction
with McGreevy−recorded within hours of the murder−was what he testified to
at trial. Id. Whereas McGreevy gave her deposition much later. Trial counsel’s
decision to introduce the testimony of Detective Green who had recorded what
McGreevy said when the events were fresh in her mind is, again, the epitome
of a strategic decision. Rhode, 582 F.3d at 1284.
Moreover, as to Franklin’s challenge to the state’s comment it made in
response to Franklin’s judgment of acquittal, that comment was not improper.
McGreevy testified that she saw someone laying down and someone firing
shots. Response Ex. 11 at 44−45. The medical examiner testified that the
victim was shot in the head from behind. Response Ex. 12 at 99. Thus, the
state’s argument that McGreevy saw Franklin shoot the victim in the back of
the head is a reasonable interpretation of the evidence the state presented
during its case in chief. And contrary to Franklin’s claim, the state did not
present this statement as evidence, but rather as argument in response to
Franklin’s motion for judgment of acquittal. Response Ex. 12 at 116.
For these reasons, relief on this claim is due to be denied.
70

H. Ground Eight
As Ground Eight, Franklin alleges the trial court erred when it found
counsel was not ineffective for refusing to cross-examine a minor witness, V.F.,
on her alleged change in testimony. Petition at 21. Franklin argues that V.F.
changed the word “killed” to “murder” in her trial testimony and, because trial
counsel did not cross-examine her on this change, the jury was unable to
accurately weigh her testimony as a result. Id. at 21. As Franklin contends,
this change in language could mean the difference between premeditated firstdegree murder, second-degree murder, or self-defense. Id. In addition,
Franklin argues that the state used this allegedly false testimony from V.F. to
claim that he admitted guilt. Id. at 22. He further argues that the state
improperly inflamed the jury by yelling loudly and pointing at Franklin, saying
he murdered the victim. Id. And that counsel did not object to this. Id. Franklin
lastly alleges counsel was ineffective for conceding his guilt without his
consent. Id.
Franklin raised a substantially similar claim in ground six of his
amended Rule 3.850 motion. Response Ex. 26 at 18−21. The trial court denied
the claim, stating:
This Court notes that the entirety of Defendant’s daughter’s
testimony at trial was very brief Moreover, the contested comment
that Defendant told her he “murdered somebody” was mentioned
only once in a brief manner. Initially, this Court notes that the
daughter’s previous statement that Defendant admitted to killing
71

someone is not inconsistent with saying that he admitted to
murdering someone and would likely not have been admissible
impeachment evidence. Moreover, this Court finds there is no
reasonable probability this small difference in verbiage would have
affected the outcome of the trial. This is particularly true based on
the testimony of the Defendant’s then-wife who also testified
Defendant admitted to shooting and killing the victim when he
returned home. In closing argument, defense counsel, addressing
Defendant’s statement to his daughter that he murdered someone,
pointed out that murder is a legal term of art, to kill, and it can be
justified. This Court finds that closing argument to be a reasonable
strategy and likely to be more effective than cross-examining the
minor witness about legal distinctions, which may have been
fruitless and would certainly have emphasized the statement
rather than leaving it as a brief statement within a nearly weeklong trial. Accordingly, this Court finds Defendant is not entitled to
relief on this ground.
Response Ex. 31 at 12−13 (record citations omitted). The First DCA per
curiam affirmed the trial court’s denial without a written opinion. Response
Ex. 37 at 1−2, 19.
To the extent that the First DCA decided this issue on the merits, the
Court addresses the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts given the evidence
presented in the state court proceedings. Franklin is therefore not entitled to
relief on the basis of this claim.
72

Even if the state court’s adjudication of this claim is not entitled to
deference, Franklin’s claim lacks merit for the reasons set forth below.
(1) Failing to impeach V.F.
Franklin alleges counsel should have impeached V.F. with the change in
her verbiage. Petition at 21. He also alleges the trial court erred by failing to
hold an evidentiary hearing on this ground. Id.
Counsel will not be found ineffective merely because a witness may have
provided other testimony. Fugate v. Head, 261 F.3d 1206, 1220 (11th Cir.
2001). “The decision as to whether to cross-examine a witness is ‘a tactical one
well within the discretion of a defense attorney.’” Id. at 1219. Importantly, even
if counsel may have been deficient in failing to impeach a witness, the
petitioner must still show prejudice resulted from the deficient crossexamination. Id. at 1220.
V.F.’s previous statement that Franklin admitted to “killing” someone is
not inconsistent with saying that he admitted to “murdering” someone and
would not have been proper impeachment for trial counsel. “Murder” is a legal
term, and cross-examining a child witness on the distinction between the legal
meaning and lay meaning of a word would have brought more attention to this brief
testimony of the child. Instead, as seen in the trial record, trial counsel discussed the
term in her closing argument to the jury. Response Ex. 13 at 83−84.

73

Even assuming arguendo that trial counsel was deficient for failing to impeach
V.F. with the terms she used, there is no prejudice. Burnell also testified that
Franklin admitted to shooting and killing the victim when he returned home.
Response Ex. 11 at 161−62. And the trial court properly instructed the jury on
homicide, including justifiable and excusable homicide, first-degree murder,
second-degree murder, and manslaughter. Response Ex. 14. The Court is
unconvinced that the terminology used by a child during her brief
testimony−in light of all the other evidence presented at trial−so greatly
influenced the jury as to cast doubt on the confidence of the verdict.
To the extent Franklin challenges the trial court’s decision to summarily
deny this claim without a hearing, such a claim is not cognizable here. Carroll
v. Sec’y, DOC, 574 F.3d 1354, 1365 (11th Cir. 2009) (“[I]t is ‘beyond debate’ that
a state court’s failure to conduct an evidentiary hearing on a post-conviction
motion does not constitute a cognizable claim for habeas relief.”). Relief on this
subclaim is due to be denied.
(2) Giglio 11 violation
Franklin alleges a Giglio claim, arguing that the state knowingly used
V.F.’s allegedly false testimony to claim that he admitted guilt. Petition at 22.

11

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

74

He argues the state coached V.F. to make false statements during her
testimony. Id.
Franklin mentioned Giglio in a footnote of his amended Rule 3.850
motion. Response Ex. 26 at 19. However, the state court did not address the
Giglio claim when summarily denying the Rule 3.850 motion. Regardless,
Franklin is still not entitled to relief. For a Giglio claim to be successful, a
petitioner must establish that the prosecutor “knowingly used perjured
testimony, or failed to correct what he subsequently learned was false
testimony and that the falsehood was material.” Brown v. Head, 272 F.3d 1308,
1317 (11th Cir. 2001) (citations omitted). For Giglio purposes, the falsehood is
deemed to be material if “there is any reasonable likelihood that the false
testimony could have affected the judgment.” Ferguson v. Sec’y for Dep’t of
Corr., 580 F.3d 1183, 1208 (11th Cir. 2009) (quotation omitted) (citation
omitted).
To demonstrate willfully offered perjury, Franklin must show more than
mere inconsistencies due to memory lapse, unintentional error, or oversight.
Maharaj v. State, 778 So. 2d 944, 956 (Fla. 2000). Indeed, “[i]n the Giglio
context, the suggestion that a statement may have been false is simply
insufficient; the defendant must conclusively show that the statement was
actually false.” Maharaj v. Sec’y for Dep’t of Corr., 432 F.3d 1292, 1313 (11th
Cir. 2005).
75

The record reflects that the child witness used similar words−during her
deposition and trial testimony−to explain what Franklin said to her on the
night these events transpired. These semantics, at most, are the result of
unintentional error or oversight on the part of the child witness. Not a knowing
or intentional presentation of false testimony by the state. Franklin also fails
to establish how this discrepancy in verbiage is material, as the Court is not
persuaded that the witness’s word choice was of such magnitude that it altered
the outcome of this case. For these reasons, Franklin does not establish a Giglio
violation and is not entitled to relief on this subclaim.
(3) Prosecutorial Misconduct
Franklin alleges the state engaged in prosecutorial misconduct and
attempted to influence the jury’s emotions. Petition at 22. According to
Franklin, the state took “every opportunity” to elaborate on his alleged
confession to V.F., going so far as to point at Franklin and yell loudly that he
murdered the victim. Id.
Even if the state court’s denial of relief on this claim is not entitled to
deference, he is still not entitled to relief. “To find prosecutorial misconduct, a
two-pronged test must be met: (1) the remarks must be improper, and (2) the
remarks must prejudicially affect the substantial rights of the defendant.”
United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir.1991). The Supreme
Court has instructed that relief is warranted only if the prosecutor’s comments
76

“so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(quotation marks and citation omitted); see also Romine v. Head, 253 F.3d
1349, 1366 (11th Cir. 2001) (“[H]abeas relief is due to be granted for improper
prosecutorial argument at sentencing only where there has been a violation of
due process, and that occurs if, but only if, the improper argument rendered
the sentencing stage trial fundamentally unfair.”).
Indeed, due process is denied only “when there is a reasonable
probability,” or “a probability sufficient to undermine confidence in the
outcome,” that, but for the offending remarks, “the outcome of the proceeding
would have been different.” Eyster, 948 F.2d at 1206−07 (citations and internal
punctuation omitted). If the misconduct fails to render the trial fundamentally
unfair, habeas relief is not available. Land v. Allen, 573 F.3d 1211, 1220 (11th
Cir. 2009). Courts consider “the degree to which the challenged remarks have
a tendency to mislead the jury and to prejudice the accused,” and “the strength
of the competent proof to establish the guilt of the accused.” Davis v. Zant, 36
F.3d 1538, 1546 (11th Cir. 1994). Thus, where the evidence of guilt is
overwhelming, an improper comment by a prosecutor usually does not render
the trial fundamentally unfair in violation of the Constitution. See Land, 573
F.3d at 1220.

77

Here, Franklin has failed to show that the prosecutor’s actions were even
remotely enough to render Franklin’s trial fundamentally unfair. The
statement was an isolated comment during the state’s closing argument. Given
the overwhelming evidence of guilt, this comment, even if improper, did not
render the trial fundamentally unfair. For these reasons, the requested relief
in this claim is due to be denied.
(4) Conceding Guilt
Franklin alleges the trial court failed to address his claim that counsel
was ineffective for conceding his guilt at trial without his consent. Petition at
22. Specifically, Franklin maintains trial counsel was ineffective for stating
that Franklin admitted to V.F. that he murdered the victim. Id.
While the trial court did not specifically discuss counsel’s concession of
Franklin’s guilt in its order, Franklin did raise this issue within his Rule 3.850
motion. If the First DCA considered and decided this issue on the merits
despite the omission from the trial court’s order, the Court addresses the claim
in accordance with the deferential standard for federal court review of state
court adjudications. After a review of the record and the applicable law, the
Court concludes that the state court’s adjudication of this claim was not
contrary to clearly established federal law, did not involve an unreasonable
application of clearly established federal law, and was not based on an
unreasonable determination of the facts given the evidence presented in the
78

state court proceedings. Franklin is therefore not entitled to relief on the basis
of this claim.
To the extent that the First DCA did not consider this claim, the Court
finds Franklin is still not entitled to relief. During closing argument, trial
counsel summarized the defense theory of the case. Response Ex. 13 at 71−89.
She painted a detailed picture of what happened from Franklin’s perspective
in the months leading up to the offense and right after. Id. Franklin now takes
issue with trial counsel’s statements during closing argument. Trial counsel
stated,
The State has argued that Mr. Franklin went home and he said to
his daughter, I murdered somebody, I’m going to jail for a long
time. Well, that’s true, he did, he did say that, and that’s what
happened.
Id. at 82. But Franklin presented a theory of self-defense at trial. Response Ex.
11 at 30−34. Because the very nature of this defense required Franklin to
admit to the commission of the criminal act, trial counsel was not deficient for
acknowledging to the jury that Franklin killed the victim. See Martinez v.
State, 981 So. 2d 449, 453 (Fla. 2008) (“[W]hen a defendant asserts a claim of
self-defense, he admits the commission of the criminal act with which he was
charged but contends that the act was justifiable.”). By presenting this theory,
trial counsel was not admitting an intent to kill, but rather admitting that the
killing occurred for a justifiable reason.
79

Importantly, contrary to his allegations here, Franklin’s own testimony
at trial demonstrates he supported the theory presented to the jury. Franklin
testified he did not intend to kill the victim. Response Ex. 12 at 178. Rather,
he explained he went to confront the victim about the affair, and when the
victim attacked him with a bat, he discharged the firearm out of fear. Id. at
163−169. Given this testimony, it is clear Franklin agreed to a theory of selfdefense and it was not error for trial counsel to admit during closing argument
that Franklin killed the victim. See Dill v. Allen, 488 F.3d 1344, 1357 (11th
Cir. 2007) (“In light of the reasonableness standard set forth by the Strickland
Court, our circuit maintains that constitutionally sufficient assistance of
counsel does not require presenting an alternative-not to mention unavailing
or inconsistent-theory of the case.”); see Williamson, 221 F.3d at 1180 (finding
no ineffective assistance of counsel where a reasonable attorney could have
deemed an alternative theory “inconsistent with Petitioner’s own description
of the killing”). Franklin is therefore not entitled to relief.
I. Ground Nine
As Ground Nine, Franklin alleges the trial court erred when it denied
his claim of a double jeopardy violation. Petition at 22−23. Franklin contends
that he was illegally charged and convicted of section 775.087, Florida’s 10-20life statute, because there was no underlying felony to enhance as he was
already charged with a capital felony. Id. at 22. As to his double jeopardy claim,
80

Franklin’s argument is twofold. First, he raises a double jeopardy violation
that he was convicted of the murder of the victim twice−once for the
premeditated design and again by use of the firearm. Id. Second, Franklin
alleges he was sentenced twice for the offense because he received a life
sentence and a twenty-five-year minimum mandatory. Id. at 23.
Franklin raised a substantially similar claim in ground fifteen of his
amended Rule 3.850 motion. Response Ex. 26 at 36−38. The trial court denied
the claim, stating:
Defendant’s offense is enumerated under section 782.04(1)(a),
which provides that the crime is a capital felony, without needing
to be enhanced to such a classification through any other means.
Section 775.087(2)(a)(3) provides an additional enhancement to
certain crimes when the perpetrator uses a firearm during the
commission of that offense and causes death or great bodily harm.
It is clear that section 775.087’s enhancement is in addition to any
other penalty, by the legislature’s stated intent that “offenders
who actually possess, carry, display, use, threaten to use, or
attempt to use firearms . . . be punished to the fullest extent of
the law . . .” §775.087(2)(d), Fla. Stat. This Court finds Defendant’s
sentence is not illegal in this regard and does not violate double
jeopardy. Moreover, as this Court finds no error with the interplay
of the statutes, this Court finds counsel cannot be deemed deficient
for failing to bring this to the trial court’s attention. Accordingly,
Defendant is not entitled to relief on this ground.
Response Ex. 31 at 26 (record citations omitted). The First DCA per curiam
affirmed the trial court’s denial without a written opinion. Response Ex. 37
at 1−2, 19.

81

To the extent that the First DCA decided this issue on the merits, the
Court addresses the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts given the evidence
presented in the state court proceedings. Franklin is therefore not entitled to
relief on the basis of this claim.
That said, even if the state court’s adjudication of this claim is not
entitled to deference, Franklin’s claim lacks merit. The Supreme Court has
explained that the Double Jeopardy Clause of the Fifth Amendment provides
that no person shall “be subject for the same offence to be twice put in jeopardy
of life or limb.” Brown v. Ohio, 432 U.S. 161, 164 (1977). The Double Jeopardy
Clause “protects against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for the same offense.”
Id. (citation omitted).
In the Indictment the state charged Franklin with a violation of section
782.04−first-degree murder−and charged a sentencing enhancement under
section 775.087−possession or use of a weapon. Contrary to Franklin’s
82

contention, he did not receive two sentences for the same offense. Instead, the
trial court imposed the only available sentence for first-degree murder, which
was life imprisonment. The minimum mandatory imposed came from the
enhancement for the use of a firearm. The trial court’s actions were permissible
as the relevant statutory authority allowed for this sentence. Hatten, 203 So.
3d at 146; Mendenhall, 48 So. 3d at 750.
As for the second double jeopardy claim, that adjudicating him guilty
based on premeditation and the use of the firearm violates the Double
Jeopardy Clause, this claim is unexhausted. In his underlying Rule 3.850
motion, Franklin did not challenge the premeditation and the use of a firearm
as double jeopardy violations. As such, he deprived the state court of a
meaningful opportunity to review the claim. Therefore, the Court finds this
claim unexhausted and procedurally defaulted. Franklin has alleged neither
cause and prejudice nor a miscarriage of justice to overcome his failure to
exhaust. Therefore, relief on this claim is due to be denied.
Nevertheless, even if Franklin’s claim is not procedurally barred, he is
still not entitled to relief. Again, Franklin’s claim does not rise to a double
jeopardy violation. He was charged with one count of premeditated first-degree
murder and the jury returned a verdict of guilty on that count. The jury also
made a separate finding that he actually possessed and discharged a firearm

83

during the murder, qualifying him for the firearm enhancement charged by the
state. This does not run afoul of double jeopardy principles.
For these reasons, the relief Franklin seeks in this claim of Ground Nine
is due to be denied.
J. Ground Ten
As Ground Ten, Franklin maintains the trial court erred in denying his
claim of a Brady violation. Petition at 23−24. He alleges that he requested text
message data from the victim’s cell phone, but the state argued it could not
download this information from the Metro PCS cell phone. Id. Franklin alleges
that he learned after trial that the state disclosed some of this information to
trial counsel a few days before trial, preventing trial counsel from having
adequate time to incorporate this information into her strategy. Id.
Franklin raised a substantially similar claim in ground three of his
amended Rule 3.850 motion. Response Ex. 26 at 10−12. The trial court denied
the claim, stating:
To establish a Brady claim, Defendant must show: (1) the evidence
was favorable to him for exculpatory or impeachment purposes; (2) the
State willfully or inadvertently suppressed the evidence; and (3)
Defendant was prejudiced by the suppression. Taylor v. State, 848 So.
2d 410, 412 (Fla. 1st DCA 2003). “There is no Brady violation
where the information is equally accessible to the defense and the
prosecution, or where the defense either had the information or
could have obtained it through the exercise of reasonable
diligence.” Freeman v. State, 761 So. 2d 1055, 1062 (Fla. 2000)
(quoting Provenzano v. State, 616 So. 2d 428, 430 (Fla. 1993)). The
materiality of the suppressed evidence must not be speculative.
84

In order to be entitled to relief on a Brady claim, the
defendant must also show that the evidence “is
material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.”
Gorham v. State, 521 So. 2d 1067, 1069 (Fla.1988). .
. . The mere possibility that undisclosed items of
information may have been helpful to the defense in
its own investigation does not establish constitutional
materiality.
Wright v. State, 857 So. 2d 861,870 (Fla. 2003). It must be noted that
the exculpatory character of both the photographs and text
messages is purely speculative and therefore cannot entitle
Defendant to relief. See Maharaj v. State, 778 So. 2d 944, 951 (Fla.
2000) (“Postconviction relief cannot be based on speculation or
possibility.”).
In addition, courts have instructed on admissibility of evidence of a
victim’s reputation and conduct when a defendant claims self-defense:
There is, to be sure, “a distinction between reputation
evidence and evidence of specific acts admitted under
section 90.404(1)(b).” Grace v. State, 832 So. 2d 224,
226 (Fla. 2d DCA 2002). “While reputation evidence
may be offered to corroborate the defendant’s
testimony by showing the victim’s propensity toward
violence, specific act evidence is only admissible to
prove the reasonableness of the defendant’s
apprehension. State v. Smith, 573 So. 2d 306, 318
(Fla. 1990); Smith v. State, 606 So. 2d 641, 643 (Fla.
lst DCA 1992); Williams v. State, 252 So. 2d 243, 24647 (Fla. 4th DCA 1971).” Grace, 832 So. 2d at 226.
Savage v. State, 99 So. 3d 1001, 1002 (Fla. 1st DCA 2012).
Evidence of prior specific acts of violence by the victim
is admissible, if known by the defendant, because it is
relevant “to reveal the reasonableness of the
defendant’s apprehension at the time of the incident.”
Hedges v. State, 667 So. 2d 420, 422 (Fla. 1st DCA
85

1996) (quoting Smith, 606 So. 2d at 642-43). “[S]pecific
acts of aggression and violence by the victim are
inadmissible to prove that the victim was the
aggressor and that the defendant acted in selfdefense.” Ehrhardt, supra, § 405.3. For this category
of evidence, a defendant’s knowledge of a
Victim’s specific acts of violence is a precondition to
admissibility. See Singh v. State, 36 So. 3d 848, 851
(Fla. 4th DCA 20 l0); Shreiteh v. State, 987 So. 2d 761,
763 (Fla. 4th DCA 2008).
Antoine v. State, 138 So. 3d l064, 1075-76 (Fla. 4th DCA 2014).
If, as Defendant speculates, the victim’s phone contained text
messages showing the victim’s intention to attack Defendant, that
would not be reputation evidence, but evidence of a specific act of
violence, albeit an act only planned, not yet carried out. Defendant
avers he has seen no such text messages, and it is undisputed that
he knew of no such text messages on the night of the crime. Any
such text messages would be inadmissible to prove that the victim
was the aggressor and, because Defendant did not know about
them, would also be inadmissible to show the reasonableness of
Defendant’s apprehension of the victim.
Regarding the photos of the victim with cuts and scars on his torso,
Defendant posits that they “show evidence of a possible ‘impulsive
reaction and/or aggressive personality disorder’ that would have
been beneficial to bolster Defendant’s self-defense claim.” Similar
to the purported text messages, the photos would have been
inadmissible at trial to show the victim’s reputation for violence
and, as evidence of specific acts of violence, they would have been
inadmissible because Defendant did not know about them on the
night of the crime. This analysis is not affected by the truth or
falsity of Defendant’s speculation that, given sufficient time, he
could have developed expert testimony to support his self-defense
theory based on the photographs. An expert could not have
determined the victim’s reputation for violence from the
photographs, and an opinion that a person who cut himself would
have a propensity for aggression or violence would be inadmissible.

86

Defendant has failed to establish the materiality of either the photos
or the text messages. The third ground is without merit.
Response Ex. 31 at 5−7 (record citations omitted). The First DCA per curiam
affirmed the trial court’s denial without a written opinion. Response Ex. 37
at 1−2, 19.
To the extent that the First DCA decided this issue on the merits, the
Court addresses the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts given the evidence
presented in the state court proceedings. Franklin is therefore not entitled to
relief on the basis of this claim.
Regardless, even if the state court’s adjudication of this claim is not
entitled to deference, Franklin’s claim lacks merit. In Brady, the Supreme
Court held that “the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material
either to guilt or to punishment.” 373 U.S. at 87, 83. But “the Constitution is
not violated every time the government fails or chooses not to disclose evidence
that might prove helpful to the defense.” Kyles v. Whitley, 514 U.S. 419, 436–
87

37 (1995). To prevail on a Brady claim, the defendant must establish: “(1) the
evidence at issue is favorable to the accused, either because it is exculpatory
or because it is impeaching; (2) the evidence was suppressed by the State,
either willfully or inadvertently; and (3) the defendant incurred prejudice.”
Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
Brady’s prejudice prong, also referred to as the “materiality prong,” is
met when “there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different.” Kyles, 514 U.S. at 433 (quotation marks omitted). A defendant
cannot meet the second prong when, “prior to trial, [he] had within [his]
knowledge the information by which [he] could have ascertained the alleged
Brady material.” Maharaj, 432 F.3d at 1315 (quotation marks omitted). In such
cases where the defendant has equal access to the evidence, there is no
suppression by the government and disclosure is not warranted. Id. at 1315 &
n. 4.
Franklin’s own allegations defeat his theory that the state withheld
exculpatory

evidence.

First,

through

Franklin’s

own

admission,

he

acknowledges trial counsel received this material during discovery. In his Rule
3.850 motion, Franklin discusses how he sought the records after trial from the
Office of the Criminal Conflict Division, the agency that represented him at
trial. Response Ex. 26 at 10−11. As such, his Brady claim essentially rests not
88

on the fact that the defense did not receive the evidence, but that he himself
did not see it prior to trial. This does not amount to a Brady violation.
In his underlying Rule 3.850 motion, Franklin cites to Detective
Sullivan’s deposition to support his Brady claim. But contrary to Franklin’s
assertions, the Detective’s deposition is not inconsistent with the statements
the state made about the phone data during the hearing on this matter.
Detective Sullivan testified during his deposition that they were able to do a
data dump of one phone, but only viewed photographs and messages on the
other. Response Ex. 27 at 127. At a hearing on this matter prior to trial, the
state acknowledged that the victim had two phones. 12 Franklin, No. 16-2013CF-7224-AXXX-MA, (Doc 401 at 31−34). In discovery, the state disclosed the
contents from the phone from which it was able to download the contents. Id.
From the other phone−the one that the state could not download the
contents−the state turned over photographs of the text message conversations
displayed on the phone screen. Id. The state’s representations to the trial court
are entirely consistent with the Detective’s deposition. The state met its
obligation by disclosing the information to the defense, and there is no evidence
that the state withheld information or evidence in violation of Brady.

The victim had an iPhone, which the state downloaded data from, and a
Metro PCS phone, from which the state was unable to download data. Franklin, No.
16-2013-CF-7224-AXXX-MA, (Doc. 521 at 4).
12

89

And even assuming arguendo the state did not disclose certain text
messages from the phone, this Brady claim fails because Franklin only
speculates that the material at issue would have led to exculpatory
information. See Maharaj, 432 F.3d at 1314−16 (The petitioner’s Brady claim
that undisclosed materials would have led him to “other evidence, which in
turn may have shown that the [victims] were killed by a Colombian [drug]
cartel” failed because the “highly speculative chain” was insufficient). The
state court’s conclusions as to the non-exculpatory nature of these items were
not unreasonable applications of Brady. As the trial court pointed out, any such
text messages would be inadmissible to prove that the victim was the aggressor
and, because Franklin did not know about them, would also be inadmissible to
show the reasonableness of his apprehension of the victim. This same logic
applies to the photographs.
In sum, the record supports the state court’s fact findings regarding the
alleged text messages and photographs. For all of these reasons, relief on the
claim in Ground Ten is due to be denied.
K. Ground Eleven
As Ground Eleven, Franklin alleges the trial court erred in denying
grounds eight, nine, and ten of his amended Rule 3.850 motion. Petition at
24−26.

90

(1) Grounds Eight & Nine of Rule 3.850 Motion
Franklin argues counsel was ineffective when she failed to “inform the
trial court” that Florida Standard Jury Instruction 3.6(f) included no “duty to
retreat language.” Id. at 25. He also contends that counsel was ineffective when
she failed to object to the omission of “all applicable jury instruction language
[in] 3.6(f).” Response Ex. 26 at 26. Specifically, Franklin asserts the trial court
should have read the following instruction:
A person is justified in using or threatening to use force, except
deadly force against another when and to the extent the person
reasonably believe[s] that such conduct is necessary to defend
himself or herself or another against the other’s imminent use of
unlawful force . . . A person who uses or threatens to use force in
accordance with this subsection does NOT have a duty to retreat
before using or threatening to use such force.
Id. (emphasis in original).
Franklin raised a substantially similar claim in grounds eight and nine
of his Rule 3.850 Motion. Response Ex. 26 at 24−27. The trial court denied the
claim, stating:
In Ground Eight, Defendant suggests counsel was ineffective for
failing to advise the trial court on the necessity of an instruction
that Defendant had no duty to retreat as outlined in Florida
Standard Jury Instruction 3.6(f). He asserts that the instruction as
read required him to prove his innocence, instead of requiring the
State to prove its case. He argues that, by failing to instruct the jury
that he had no duty to retreat, the instructions implied that he had
such a duty. In Ground Nine, Defendant asserts counsel was
ineffective for failing to object to the court's failure to read all
applicable portions of 3.6(f), particularly the portion regarding no
duty to retreat. Defendant asserts that, had the jury been
instructed he had no duty to retreat, there is a reasonable
91

possibility the jury would have seen that Defendant was justified
in using deadly force to defend himself.
The jury was instructed:
An issue in this case is whether the defendant acted in
self-defense. It is a defense to the offense with which
Jason Franklin is charged if the death of Edward
Gonzalez [the victim] resulted from the justifiable use of
deadly force.
Deadly force means force likely to cause death or great
bodily harm.
A person is justified in using deadly force if he
reasonably believes that such force is necessary to
prevent imminent death or great bodily harm to himself
or another.
However, the use of deadly force is not justifiable if you
find Jason Franklin initially provoked the use of force
against himself unless:
(a)
the force asserted towards -- toward the
defendant was so great that he reasonably believed
that he was imminent danger of death or great bodily
harm and had exhausted every reasonable means to
escape the danger, other than using deadly force on
Edward Gonzalez, or
(b)
in good faith the defendant withdrew from
physical contact with Edward Gonzalez and clearly
indicated to Edward Gonzalez that he wanted to
withdraw and stop the use of deadly force, but Edward
Gonzalez continued or resumed the use of force.
In deciding whether the defendant was justified
in the use of deadly force, you must judge him by the
circumstances by which he was surrounded at the time
the force was used. The danger facing the defendant
need not have been actual; however, to justify the use
of deadly force, the appearance of danger must have
been so real that a reasonably cautious and prudent
person under the same circumstances would have
believed that the danger could be avoided only through
the use of that force. Based upon appearances, the

92

defendant must have actually believed that the danger
was real.
In considering the issue of self-defense, you may
take into account the relative physical abilities and
capacities of the defendant and Edward Gonzalez.
If in your consideration of the issue of self-defense
you have a reasonable doubt on the question of whether
the defendant was justified in the use of deadly force,
you should find the defendant not guilty.
However, if from the evidence you are convinced
that the defendant was not justified in the use of
deadly force, you should find him guilty if all the
elements of the charge have been proved.
In his Reply concerning Ground Eight, Defendant alleges that
defense counsel asked for a jury instruction that Defendant had no
duty to retreat, citing section 776.012(2), Florida Statutes, and
alleges it was not read even though counsel asked for it. He alleges
further that his counsel, the State, and this Court “all agreed to
Fla. Stat §776.012(2).” Defendant appears to confuse the
Standard Jury Instructions, which refer to the statutes as
authority, with the statutes themselves. At the charge conference,
defense counsel did not request that the Court read from the
statute, section 776.012, but from the portion of standard
instruction 3.6(f) which references section 776.012.
The portion of standard instruction 3.6(f) which cites section
776.012, Florida Statutes, speaks of the circumstances under
which a person is justified in using deadly force, but does not speak
to any duty, or lack of duty, to retreat. 27 So. 3d at 642-43. The
numbered paragraphs referred to during the charge conference
are not subsections (1) and (2) of section 776.012 (which do
address a duty to retreat), but paragraphs of standard instruction
3.6(f)(which do not). Therefore, Defendant is mistaken about the
content of the instruction requested and agreed to at the charge
conference. Counsel did not “fail[] to remind the trial court of its
failing to read the jury instruction on no duty to retreat Fla, Stat.
776.012, after being agreed to and accepted by the Defense, the
State, and the court itself.” In fact, there was no request for,
agreement to, or ruling on, an instruction other than a portion of
93

the instruction citing section 776.012, which instruction is silent
on a duty to retreat.
The implied duty to retreat which Defendant sees in the
instructions given to the jury appears in the portion addressing the
law which would apply if the jury found that Defendant provoked
the use of force against himself. Under those circumstances, use
of deadly force is not justifiable. An exception to that rule, by
which use of deadly force may be justified, requires that the
Defendant exhaust every reasonable means to escape the danger.
That was a correct statement of the law. § 776.041(2)(a), Fla. Stat.
(2013). A duty to retreat appears in the instructions, not because
of the failure of counsel to request a no-duty-to-retreat instruction
(or the failure of the Court to read one that had been agreed upon),
but because, after hearing argument at the charge conference, this
Court ruled in favor of the State’s request to read the instruction
on “Aggressor,” citing section 776.041, Florida Statutes.
Defendant alleges in his Reply that the State in closing argument
“repeatedly emphasized” that Defendant must have exhausted
every reasonable means to escape danger, other than using deadly
force, which implied a duty to retreat. Actually, it was only in the
context of the law applicable to defendant-as-aggressor that the
State argued Defendant had a duty to retreat, and it was not
unduly emphasized. The State did not argue that Defendant had
a duty to retreat, or to exhaust every reasonable means of escape,
except in the context of the State's theory that Defendant provoked
the use of force against himself.
In his Ground Nine, Defendant purports to quote from Florida
Standard Jury Instructions (Criminal) 3.6(f). He actually quotes
from section 776.012(1), Florida Statutes (2014), a version of the
statute which Defendant recognizes, in his Reply, does not apply
to the instant case, where the crime was committed on August 1,
2013. Section 776.012(1), by its terms, applies to the use of “force,
except deadly force . . .” The last sentence of subsection (1), then,
applies to the use of non-deadly force: “A person who uses or
threatens to use force in accordance with this subsection does not
have a duty to retreat before using or threatening to use such
force.” § 776.012(1), Fla. Stat. (2014) (emphasis added) There
is simply no part of Standard Instruction 3.6(f), as it existed at
94

the time of the offense, which reads as Defendant alleges. It is
undisputed that Defendant shot the victim to death with a firearm,
i.e., with deadly force. On Ground Nine, then, Defendant appears
to be mistaken about the applicable law.
This Court disagrees with Defendant’s assessment of the trial
record. Under Defendant’s theory of the case, the victim “jumped”
him as he came around the side of the house and immediately
struck him in the head with a metal baseball bat. Defendant
testified that he was “super scared,” and that he stumbled
backward when the victim hit him with the baseball bat.
Defendant testified that he pulled the trigger, expressing the belief
at trial that his first shot hit the roof of the house, then that he
pulled the trigger a couple of more times, then was hit again by the
victim. On cross-examination, Defendant testified that the victim
hit him so hard in the head that it caused him to stumble, and
that he began firing blindly. Under Defendant’s version of events,
with him stumbling and being hit again with the metal baseball
bat, retreat would have been difficult, if not impossible. Defendant
also testified that, after knocking on the front door of the victim’s
house with the gun at his side, he realized he might scare the
victim’s wife if she answered the door, so he put the gun behind
his back. When asked on cross-examination, “You didn't decide to
put the gun in your pocket?” he answered, “I was taught not to do
it if you might - if you plan - ah, no, sir, I did not.” He went on
to explain, “If I was going to show him, I couldn't show him if
it was in my pocket, sir, if he attacked me.” The jury’s verdict of
guilty was more likely based on their acceptance of evidence
of premeditation, and their discrediting Defendant’s testimony,
than on a misapprehension regarding whether Defendant had a
duty to retreat. Having found the use of deadly force was
premeditated, the jury could not also have found the same force to
be that which “a reasonably cautious and prudent person under
that same circumstances would have believed” was the only way
to avoid danger. 27 So. 3d at 643. Had the jury been instructed that
Defendant had no duty to retreat, and bearing in mind the other
evidence of premeditation set forth in this Court’s analysis of
Ground One of the instant Motion, there is no reasonable
likelihood that the result of the trial would have been different.
Grounds Eight and Nine are without merit.
95

Response Ex. 31 at 14−19 (record citations omitted). The First DCA per curiam
affirmed the trial court’s denial without a written opinion, and on June 11,
2021, it issued the mandate. Response Ex. 37 at 1−2, 19.
To the extent that the First DCA decided this issue on the merits, the
Court addresses the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts given the evidence
presented in the state court proceedings. Franklin is therefore not entitled to
relief on the basis of this claim.
Even if the state court’s adjudication of this claim is not entitled to
deference, Franklin’s claim lacks merit. As the postconviction court noted in
its order denying relief, Franklin appears to conflate section 776.012, Florida
Statutes (2013), with Florida Standard Jury Instruction 3.6(f). The trial court
read the instruction that corresponded to section 776.012. Compare Response
Ex. 14 at 13 with In re Standard Jury Instructions In Crim. Cases-Rep. No.
2009-01, 27 So. 3d 640, 642 (Fla. 2010). However, the standard instruction at
the time did not include the “no duty to retreat” language that the statute
included. And any instruction regarding the use of nondeadly force would not
96

have applied to Franklin’s case based on the evidence presented at trial. See,
e.g., Mathis v. State, 973 So. 2d 1153, 1157 (Fla. 1st DCA 2006) (“When the
evidence presented at trial does not establish as a matter of law whether the
force used by the defendant was deadly or non-deadly, . . . the defendant is
entitled to jury instructions on the justifiable use of both types of force. The
only type of force that has been held to be deadly as a matter of law is the
discharge of a firearm.”) (internal citations omitted).
To the extent Franklin argues counsel was ineffective when she failed to
object to the standard instruction or request a modified instruction, he is not
entitled to relief. The postconviction court concluded that the instruction
provided to the jury was consistent with Florida law. A federal habeas court is
bound by a state court’s interpretation of state law. See, e.g., Chamblee v.
Florida, 905 F.3d 1192, 1196 (11th Cir. 2018). And, under Florida law, “[t]he
standard jury instructions are presumed correct and are preferred over special
instructions.” 13 Stephens v. State, 787 So. 2d 747, 755 (Fla. 2001). On this
record, Franklin does not establish that counsel acted outside the wide range
of professionally competent assistance when she failed to object to the standard

Notably, when the State suggested modifying a standard instruction during
the charge conference, the trial court cautioned, “I should start by saying that
obviously we need to stick to the standards approved and certified by the Supreme
Court, and any deviation from that, any special requested changes in that generally
has to be proposed in writing.” Response Ex. 13 at 23.
13

97

instruction or request a modified instruction. See Parker v. Sec’y Fla. Dep’t of
Corrs., 555 F. App’x 870, 875 (11th Cir. 2014) (per curiam) (finding petitioner
failed to show counsel was deficient when he did not object to the standard jury
instruction or request a modified jury instruction because the court “cannot
conclude that no reasonable trial attorney would have failed to object to the
standard jury instruction that had yet to be questioned, much less disparaged,
by any state appellate court”).
Even assuming arguendo counsel performed deficiently, Franklin can
show no resulting prejudice for the reasons detailed by the postconviction
court. Indeed, the record reflects overwhelming evidence that Franklin
murdered the victim with premediated intent, not in self-defense. Before the
shooting, Franklin found text messages between his wife and the victim,
Response Ex. 11 at 158–59; he knew that they previously had an affair,
Response Ex. 12 at 142–44. Franklin then left the house with a gun to confront
the victim. Response Exs. 11 at 161–62; 12 at 158. A neighbor testified that
she saw flashes and heard a popping noise while she unloaded her vehicle that
evening. Response Ex. 11 at 36–37. She explained that when she looked in the
direction of the noise, she saw one person lying on the ground and a second
person with a gun standing and aiming his arm at the person on the ground.
Id. at 44–45. The victim sustained multiple gunshot wounds, including a
wound that entered the back of his head and exited through his face. Response
98

Ex. 12 at 96, 99–100. Considering this evidence, no reasonable probability
exists that the outcome of the proceeding would have been different if the jury
had received the proposed self-defense instruction. Therefore, Franklin is not
entitled to federal habeas relief on these claims.
(2) Ground Ten of Rule 3.850 Motion
Franklin argues counsel was ineffective when she failed to “familiarize
herself” with the statutory section underlying the aggressor instruction before
the State requested it. Petition at 24. Franklin alleges the State requested an
aggressor instruction, which provided that the use of deadly force is not
justifiable if the jury found Franklin initially provoked the use of force against
himself Id.; see also Response Ex. 14 at 13. According to Franklin, counsel
mistakenly believed the aggressor instruction applied only if the State charged
a defendant with an independent forcible felony. Response Ex. 26 at 27.
Franklin appears to suggest that as a result of counsel’s erroneous objection,
the trial court granted the State’s request for the instruction. Id. at 28.
According to Franklin, the aggressor instruction eliminated his only defense
because it “states [there is] a duty to retreat if you are the aggressor.” Petition
at 24.

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Franklin raised a substantially similar claim in ground ten of his Rule
3.850 Motion. Response Ex. 26 at 27−30. The trial court denied the claim,
stating:
Under section 776.041, Defendant only had a duty to “exhaust
every reasonable means to escape” if the jury found Defendant
initially provoked the use or threatened use of force against
himself. Thus, it was a question for the jury to decide whether that
portion of the instructions would apply. Counsel, however, did
indeed argue during the charge conference that this portion of the
instructions not be included, but the judge included it based on the
State’s arguments. For these reasons, this Court does not find
counsel was deficient in this regard. Counsel’s alleged deficiency
for her failure to ensure the jury was instructed regarding the no
duty to retreat provision is addressed above and need not be
addressed here. Defendant is, therefore, not entitled to relief on
this ground.
Response Ex. 31 at 19 (record citations omitted). The First DCA per curiam
affirmed the trial court’s denial without a written opinion. Response Ex. 37 at
1−2, 19.
To the extent that the First DCA decided this issue on the merits, the
Court addresses the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts given the evidence

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presented in the state court proceedings. Franklin is therefore not entitled to
relief on the basis of this claim.
That said, even if the state court’s adjudication of this claim is not
entitled to deference, Franklin’s claim is without merit. The record reflects that
counsel objected to the State’s request for the aggressor instruction, arguing
that the trial court could give the aggressor instruction only if Franklin was
charged with an independent forcible felony. Response Ex. 13 at 17, 20–21. The
trial court granted the State’s request, id. at 21, recognizing that Florida law
authorized the aggressor instruction even if Franklin was not charged with a
forcible felony, id. at 25. The trial court further explained that the State had
presented sufficient evidence to warrant the instruction. Id. at 25–26.
Based on the above, even if counsel had objected to the aggressor
instruction on an alternative basis, no reasonable probability exists that the
trial court would have declined the State’s request for the aggressor
instruction. As noted by the trial court, the State presented sufficient evidence
that Franklin “might have been the initial aggressor in this case.” Id. at 25.
And Florida law provides that it is proper for the trial court to instruct the jury
as to the aggressor instruction where there is evidence in the record that the
defendant may have initially provoked the use of force against himself. See
Johnson v. State, 65 So. 3d 1147, 1149 (Fla. 3d DCA 2011). On this record,

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Franklin fails to demonstrate prejudice. Accordingly, he is not entitled to
federal habeas relief on the claims in Ground Eleven.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Franklin 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, Franklin “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
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of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id. Upon
consideration of the record as a whole, the Court will deny a certificate of
appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

The Petition (Doc. 1) is DENIED, and this action is DISMISSED

WITH PREJUDICE.
2.

The Clerk of the Court shall enter judgment denying the Petition

and dismissing this case with prejudice.
3.

If Franklin 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.

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4.

The Clerk of the Court is directed to close this case and terminate

any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 25th day of
September 2024.

c:

Jason Franklin # J32257
Counsel of record

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