Reyes v. Secretary, Department of Corrections et al
Filing
11
ORDER denying 1 the Petition for Writ of Habeas Corpus; dismissing the case with prejudice; denying a certificate of appealability; directions to the Clerk. Signed by Judge Brian J. Davis on 6/30/2020. (KLC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
DIONICIO DELAROSA REYES,
Petitioner,
v.
Case No. 5:17-cv-231-Oc-39PRL
SECRETARY, DEPARTMENT
OF CORRECTIONS, and ATTORNEY
GENERAL, STATE OF FLORIDA,
Respondents.
_______________________________
ORDER
I. Background
Petitioner, Dionicio Delarosa Reyes, through his attorney, is
proceeding on a Petition for Writ of Habeas Corpus under 28 U.S.C.
§ 2254 (Doc. 1; Petition). Petitioner challenges his 2010 state
court (Marion County) conviction for attempted first-degree murder
with a firearm. See Petition at 1. He asserts four grounds: (1)
trial
court
error
in
prohibiting
him
from
calling
a
rebuttal/impeachment witness; (2) trial court error in instructing
the jury on the elements of attempted voluntary manslaughter; (3)
trial court error in denying his motion for postconviction relief
under Florida Rule of Criminal Procedure 3.850 (Rule 3.850 Motion)
as to his claim of ineffective assistance of counsel for counsel’s
failure to move to dismiss the charges under Florida’s “Stand Your
Ground” (SYG) law; and (4) trial court error in denying his
postconviction claim of ineffective assistance of counsel for
counsel’s failure to object to a flawed jury instruction. Id. at
5-10.
Respondents assert both procedural and merits-based defenses
(Doc. 6; Resp.). The Court afforded Petitioner an opportunity to
reply, see Order (Doc. 2), but Petitioner’s counsel chose not to
do so, see Docket. Thus, the Petition is ripe for review.
II. Timeliness
Respondents concede Petitioner timely filed his Petition. See
Resp. at 4. Accordingly, the Court accepts as undisputed that the
Petition is timely.
III. Evidentiary Hearing
Petitioner does not request an evidentiary hearing. Even if
he
had,
upon
review,
the
Court
can
“adequately
assess
[Petitioner’s] claim[s] without further factual development.” See
Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003). As such,
an evidentiary hearing is not warranted.
IV. Governing Legal Standards
A. Habeas Review
The Antiterrorism and Effective Death Penalty Act (AEDPA)
governs a state prisoner’s federal petition for habeas corpus and
“prescribes
previously
a
deferential
decided
in
state
framework
court,”
for
evaluating
Sealey
v.
issues
Warden,
Ga.
Diagnostic Prison, 954 F.3d 1338, 1354 (11th Cir. 2020), limiting
2
a federal court’s authority to award habeas relief. See 28 U.S.C.
§ 2254. See also Shoop v. Hill, 139 S. Ct. 504, 506 (2019) (per
curiam) (recognizing AEDPA imposes “important limitations on the
power of federal courts to overturn the judgments of state courts
in criminal cases”).
When a state court has adjudicated a petitioner’s claim on
the merits, a federal court cannot grant habeas relief unless the
state court’s adjudication of that claim was “contrary to, or
involved
an
unreasonable
application
of,
clearly
established
Federal law, as determined by the Supreme Court of the United
States,” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). See also Nance v. Warden, Ga.
Diagnostic Prison, 922 F.3d 1298, 1300-01 (11th Cir. 2019), cert.
denied, No. 19-6918, 2020 WL 1325907 (U.S. Mar. 23, 2020). To
obtain habeas relief, the state court decision must unquestionably
conflict with Supreme Court precedent, not dicta. Harrington v.
Richter, 562 U.S. 86, 102 (2011).
A federal district court must give appropriate deference to
a state court decision on the merits. Wilson v. Sellers, 138 S.
Ct. 1188, 1192 (2018). To qualify as an adjudication on the merits,
the state court need not issue an opinion explaining its rationale.
Id. Where the state court’s adjudication is unaccompanied by an
3
explanation, the district court should presume the unexplained
decision adopted the reasoning of the lower court:
[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.
Id. Under the federal habeas statute, a state court’s factual
findings are “presumed to be correct” unless rebutted “by clear
and convincing evidence.” 28 U.S.C. § 2254(e)(1).
The
AEDPA
standard
is
intended
to
be
difficult
for
a
petitioner to meet. Harrington, 562 U.S. at 102. A showing of
“clear error will not suffice.” Virginia v. LeBlanc, 137 S. Ct.
1726, 1728 (2017). If some fair-minded jurists could agree with
the state court’s decision, habeas relief must be denied. Meders
v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335, 1351 (11th Cir.
2019), cert. denied, 140 S. Ct. 394 (2019). Therefore, unless the
petitioner shows “the state court’s ruling . . . was so lacking in
justification
that
there
was
an
error
well
understood
and
comprehended in existing law beyond any possibility for fairminded
disagreement,” there is no entitlement to habeas relief. Id. at
1349 (alteration in original). A district court’s obligation is to
“train its attention” on the legal and factual basis for the state
court’s ruling, not to “flyspeck the state court order or grade
it.” Id. (citing Wilson, 138 S. Ct. at 1191-92).
4
B. Exhaustion/Procedural Default
Before bringing a § 2254 habeas action in federal court, a
petitioner
must
exhaust
all
state
court
remedies
that
are
available. 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). To properly exhaust federal habeas claims, “state
prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round
of the State’s established appellate review process.” O’Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999). See also 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.
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.
Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012).
Notwithstanding that a claim has been procedurally defaulted,
a federal court may still consider the claim if a state habeas
petitioner “can show cause for the default and actual prejudice
5
resulting from the alleged constitutional violation.” 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).[1] 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).
In
the
petitioner
absence
may
of
receive
a
showing
of
consideration
cause
on
and
the
prejudice,
merits
of
a
a
procedurally defaulted claim “in an extraordinary case, where a
constitutional violation has probably resulted in the conviction
of one who is actually innocent.” Ward, 592 F.3d at 1157 (quoting
Carrier, 477 U.S. at 496). “‘This exception is exceedingly narrow
in scope,’ however, and requires proof of actual innocence, not
just legal innocence.” Id. (quoting Johnson v. Alabama, 256 F.3d
1156, 1171 (11th Cir. 2001)).
1
Murray v. Carrier, 477 U.S. 478 (1986).
6
C. Ineffective Assistance of Counsel
To
demonstrate
trial
counsel
was
ineffective,
a
habeas
petitioner must satisfy a rigorous two-prong test by showing (1)
counsel’s performance was deficient, meaning it fell below an
objective standard of reasonableness, and (2) counsel’s deficient
performance prejudiced his defense. Strickland v. Washington, 466
U.S. 668, 688, 692 (1984). See also Yarborough v. Gentry, 540 U.S.
1, 5 (2003). There is no “iron-clad rule requiring a court to
tackle one prong of the Strickland test before the other.” Ward,
592 F.3d at 1163. Thus, “a court need not address the performance
prong if the petitioner cannot meet the prejudice prong, and viceversa.” Id. (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th
Cir. 2000)).
The performance prong is highly deferential, requiring a
“strong presumption that counsel’s representation was within the
wide
range
of
reasonable
professional
assistance.”
Daniel
v.
Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016)
(internal quotation marks omitted) (quoting Strickland, 466 U.S.
at 689). Accordingly, “to show that counsel’s performance was
unreasonable, the petitioner must establish that no competent
counsel would have taken the action that his counsel did take.”
Grayson
v.
Thompson,
257
F.3d
1194,
1216
(11th
Cir.
2001).
(emphasis in original). The prejudice prong requires a showing
that there is a reasonable probability that, but for counsel’s
7
deficiencies,
the
result
of
the
proceeding
would
have
been
different. Strickland, 466 U.S. at 695.
When
the
“strong
presumption”
standard
of
Strickland
is
applied “in tandem” with the highly deferential AEDPA standard, a
review of the state court’s determination as to the “performance”
prong is afforded double deference. Richter, 562 U.S. at 105. As
such, the question for a federal court is not whether trial
counsel’s performance was reasonable, but “whether there is any
reasonable
argument
that
counsel
satisfied
Strickland’s
deferential standard.” Id. If there is “any reasonable argument
that
counsel
satisfied
Strickland’s
deferential
standard,”
a
federal court may not disturb a state-court decision denying the
claim. Id. As such, “[s]urmounting Strickland’s high bar is never
an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
V. Analysis
A. Ground One
First, Petitioner asserts the trial court erred in denying
his request to call Deputy Jacob as a witness to rebut the
testimony of Paul Straight. Petition at 5. Respondents argue
Petitioner did not exhaust this ground for relief because, on
direct appeal, Petitioner “did not alert the state court that he
was specifically raising a federal constitutional claim.” Resp. at
8
7.2 Additionally, Respondents argue, ground one presents solely a
state evidentiary issue. Id. at 13-14.
Through
counsel,
Petitioner
appealed
his
conviction
to
Florida’s Fifth District Court of Appeal (Fifth DCA). Exs. H, I.
The Fifth DCA affirmed Petitioner’s conviction per curiam, Ex. K,
and issued its mandate, Ex. L.
Initially, to the extent Petitioner urges that the state court
erred under Florida law when it ruled Petitioner could not call a
rebuttal witness, his claim is 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. 1985) (“[A] federal
habeas
corpus
case
is
not
a
vehicle
to
correct
evidentiary
rulings.”); Boykins v. Wainwright, 737 F.2d 1539, 1543 (11th Cir.
1984) (noting that federal courts, on habeas review, “are not
Petitioner concedes he did not exhaust his state remedies
as to ground one, though not for the reason Respondents offer. He
says he failed to exhaust his remedies because “[t]he factual
testimony provided at the evidentiary hearing did not support a
good faith basis to raise the issue on appeal.” Petition at 5. It
appears Petitioner is referencing the appeal of his Rule 3.850
Motion, not his direct appeal. Respondents assert Petitioner
failed to exhaust this claim because he did not present it to the
appellate court on direct appeal.
2
9
empowered to correct erroneous evidentiary rulings”). “Where a
claim of constitutional magnitude is lacking, the federal court in
the habeas corpus context will not review a state trial court’s
actions
concerning
the
admissibility
of
evidence.”
Nelson
v.
Sec’y, Fla. Dep’t of Corr., 610 F. Supp. 2d 1323, 1332 (M.D. Fla.
2009). Thus, Petitioner’s claim that the trial court’s evidentiary
ruling was incorrect is not cognizable.
Additionally, to the extent ground one raises a federal
constitutional
challenge,
this
claim
is
unexhausted
because
Petitioner’s counsel did not present the federal nature of this
claim to the Fifth DCA on direct appeal. With respect to whether
a federal habeas petitioner fairly presented a federal claim to
the state court, the Eleventh Circuit has articulated the following
standard:
In order to be exhausted, a federal claim must
be fairly presented to the state courts.
Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct.
509, 512, 30 L.Ed.2d 438 (1971). “It is not
sufficient merely that the federal habeas
petitioner has been through the state courts
... nor is it sufficient that all the facts
necessary to support the claim were before the
state courts or that a somewhat similar statelaw claim was made.” Kelley[3], 377 F.3d at
1343-44 (citing Picard, 404 U.S. at 275-76, 92
S.Ct. at 512 and Anderson v. Harless, 459 U.S.
4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982)).
Rather, in order to ensure that state courts
have the first opportunity to hear all claims,
federal courts “have required a state prisoner
Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317 (11th
Cir. 2004).
3
10
to present the state courts with the same
claim he urges upon the federal courts.”
Picard, 404 U.S. at 275, 92 S.Ct. at 512
(citations omitted). While we do not require
a verbatim restatement of the claims brought
in state court, we do require that a
petitioner presented his claims to the state
court “such that a reasonable reader would
understand each claim’s particular legal basis
and specific factual foundation.” Kelley, 377
F.3d at 1344-45 (citing Picard, 404 U.S. at
277, 92 S.Ct. at 513).
McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005).
In some circumstances, identifying a claim as “federal” or
referencing the federal law upon which the claim relies may be
enough. Id. (citing Baldwin v. Reese, 541 U.S. 27, 32 (2004)).
However, “[b]riefing an issue as a matter of state law . . . is
not sufficient to exhaust a federal claim of the equivalent
ground.” Nelson, 610 F. Supp. 2d at 1332. A district court should
apply
“common
sense”
when
determining
whether
a
petitioner
“afford[ed] the state courts a meaningful opportunity to consider
allegations of legal error . . . .” McNair, 416 F.3d at 1302. To
afford a state court a meaningful opportunity to consider a claim,
a habeas petitioner must “do more than scatter some makeshift
needles in the haystack of the state court record.” Id. at 1303
(quoting
Kelley,
petitioner
must
377
have
F.3d
at
“plainly
1345).
In
defined”
the
the
state
federal
court,
a
question.
Kelley, 377 F.3d at 1345. “Oblique references which hint that a
11
theory may be lurking in the woodwork will not turn the trick.”
Id.
In his appellate brief, Petitioner framed this claim as a
state evidentiary issue. He claimed, “the lower court erred in
prohibiting
the
defense
from
calling
a
critical
rebuttal/impeachment witness.” Ex. I at 12. In support of his
argument on appeal, Petitioner relied upon a provision of the
Florida
Evidence
Code,
which
prohibits
evidence
of
a
prior
inconsistent statement unless the witness, after being questioned
about the prior statement, denies having made it “or does not
distinctly admit making the prior inconsistent statement.” Id.
(quoting Fla. Stat. § 90.614(2)). He also cited Florida case law
and a Florida treatise. Id. at 13.
In a parenthetical citation, Petitioner referenced a United
States Supreme Court decision, Chambers v. Mississippi, 410 U.S.
284 (1973).
Id.
Petitioner’s main citation was to a Florida
appellate court decision, Mateo v. State 932 So. 2d 376, 379 (Fla.
2d DCA 2006). Petitioner’s counsel quoted from Mateo, which cited
Chambers. In his appellate brief, Petitioner’s counsel wrote:
Florida law is clear that “where evidence
tends in any way, even indirectly, to
establish a reasonable doubt of defendant's
guilt, it is error to deny its admission.”
Mateo v. State, 932 So. 2d 376, 379 (Fla. 2d
DCA 2006) (citing Rivera v. State, 561 So. 2d
536, 539 (Fla. 1990)[)]. This principle is
based, in part, on the United States Supreme
Court’s holding that “[f]ew rights are more
12
fundamental than that of an accused to present
witnesses in his own defense.” Mateo, id.
[sic] (citing Chambers v. Mississippi, 410
U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d
297 (1973)).
Id. at 13 (emphasis added).
Despite an indirect reference to a Supreme Court decision,
Petitioner
argued
the
trial
court
improperly
applied
Florida
Statutes section 90.614 in ruling the witness’s prior statement
was
inadmissible.
He
asserted
the
State’s
witness
did
not
“distinctly admit” making the prior statement, and thus, the trial
court’s ruling to the contrary “was an abuse of discretion and a
denial of [his] due process rights.” Id. at 15, 16. In its answer
brief, the State responded to the issue as Petitioner presented
it—as an alleged evidentiary error. Ex. J at 4-7. Petitioner’s
counsel did not file a reply brief.
While
Petitioner
parenthetically
cited
Chambers
and
referenced the phrase “due process,” Petitioner did not rely on
federal constitutional principles, nor did he “plainly define[]”
a federal claim for the appellate court’s consideration. See
Kelley, 377 F.3d at 1345. Indeed, Petitioner’s citation to Chambers
appears to have been a weak attempt to avoid over-quoting the Mateo
decision,
not
a
deliberate
decision
to
invoke
constitutional
principles on appeal. See Mateo, 932 So. 2d at 379.
Even if Petitioner’s citation to Chambers was a deliberate
attempt to invoke constitutional principles, he could not have
13
expected the appellate court to discover a potential federal claim
“lurking in the woodwork.” See Kelley, 377 F.3d at 1345. Notably,
the Mateo court did not discuss or apply Chambers or federal
constitutional principles in its decision. Mateo, 932 So. 2d at
381. Additionally, the Chambers decision provided no apparent
support for Petitioner’s argument on appeal. In Chambers, the Court
held the defendant was denied his constitutional right to confront
the witnesses against him because the trial court denied his
request to cross-examine his own witness whose testimony was
“damning” to his defense. 410 U.S. at 1045-46.
On appeal, Petitioner did not argue he was denied the right
to confront witnesses against him, nor did he argue he was denied
a fair trial. Ex. I at 15. Rather, he argued the trial court abused
its discretion in finding that Mr. Straight could not be impeached
under the Florida Evidence Code because Mr. Straight did not deny
having made the prior statement.4 Id. Thus, Petitioner’s indirect
At trial, Mr. Straight testified that he saw Petitioner
approach the victim, who had just parked and exited his own truck.
Ex. B at 233. Mr. Straight said the victim’s toolbox, which was in
the back of the victim’s truck, was open, and the victim was
looking inside the toolbox. Id. at 234, 236. Mr. Straight testified
at trial that he did not think he saw the victim attempting to
retrieve a hammer out of his open toolbox. Id. at 234. However, on
cross-examination, he conceded he may have told Deputy Jacob,
immediately after the shooting, that he saw the victim attempting
to retrieve a hammer. Id. at 235. He stated, “I don’t remember
saying that, . . . but if that’s what [Deputy Jacob] has in my
statement then that’s what I said.” Id. Because Mr. Straight did
not deny making the prior statement, the judge denied defense
4
14
reference to Chambers constitutes the metaphoric scattering of a
needle in a haystack. See Hartge v. McDonough, 210 F. App’x 940,
943 (11th Cir. 2006) (holding the petitioner’s single reference to
a fair trial and one citation to a Supreme Court decision was “no
more than the scattering of ‘some makeshift needles in the haystack
of the state court record’” (quoting, with emphasis, McNair, 416
F.3d at 1303)).
Because Petitioner did not fairly present a federal claim on
direct
appeal,
ground
one
is
unexhausted
and
procedurally
defaulted, and Petitioner fails to show cause for the default or
prejudice
from
the
alleged
constitutional
violation.
Thus,
Petitioner is not entitled to relief on ground one.
B. Ground Two
Second,
Petitioner
asserts
the
lower
court
“committed
fundamental error in instructing the jury on the elements of
Attempted Voluntary Manslaughter.” Petitioner at 7. Respondents
maintain Petitioner did not exhaust this claim and presents purely
a state-law issue. Resp. at 9, 14.
On direct appeal, Petitioner framed the issue as follows:
“The lower court committed fundamental error in instructing the
jury on the elements of attempted voluntary manslaughter.” Ex. I
at 16. Petitioner cited solely Florida case and statutory law in
counsel’s motion to call Deputy Jacob as a rebuttal witness. Id.
at 321.
15
support of his claim. Id. at 17-20. And the topic sentence for his
discussion of legal authority indicated his claim relied on the
application of state law only: “Florida law on the attempted
voluntary manslaughter instruction.” Id. at 17. Thus, because
Petitioner did not fairly present a federal claim on direct appeal,
ground
two
is
unexhausted
and
procedurally
defaulted,
and
Petitioner fails to show cause for the default or prejudice from
the alleged constitutional violation.
Additionally, this purely state-law issue is not cognizable
on federal habeas review. The Supreme Court has emphasized “that
it is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.” Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991). Even if the trial court
incorrectly instructed the jury on the elements of attempted
voluntary manslaughter, such an error is not a basis upon which to
seek federal habeas review. See id. (holding a deficient jury
instruction “is not a basis for habeas relief” absent a showing
that the instruction itself was applied in a way that violates the
Constitution). See also Joseph v. Sec’y, Dep’t of Corr., 567 F.
App’x 893, 894 (11th Cir. 2014) (holding the petitioner failed to
raise a constitutional claim because he argued only that “the trial
court erred when it instructed the jury that intent to kill was an
element of the lesser-included crime of manslaughter”).
16
Petitioner does not argue the jury applied the flawed jury
instruction in a way that violates the Constitution. See Petition
at 7. He merely argues the instruction was incorrect under Florida
law. Id. As such, he fails to present a cognizable claim for this
Court’s review.
For these reasons, Petitioner is not entitled to relief on
ground two.
C. Ground Three
Third, Petitioner asserts the postconviction court erred in
finding his trial counsel was not ineffective for counsel’s failure
to move to dismiss the charges against him under Florida’s SYG
law. Petition at 8 (citing Fla. Stat. § 776.032). Other than
asserting that he had a lawful right to be where he was at the
time of the shooting and that the victim had a reputation for
violence,
Petitioner
ineffective
under
does
the
not
highly
explain
why
deferential
his
counsel
was
AEDPA/Strickland
standard. See id.
Respondents counter that Petitioner could not have benefited
from SYG immunity because he was a convicted felon in possession
of a gun at the time of the shooting. Resp. at 20. Respondents
also argue Petitioner fails to allege any deficient performance by
his trial counsel prejudiced his defense. Id. at 21.
17
Petitioner raised this claim in his Rule 3.850 Motion.5 Ex. M
at
11.
After
conducting
an
evidentiary
hearing,
Ex.
P,
the
postconviction court found the claim without merit, Ex. Q at 6.
The Fifth DCA affirmed per curiam, Ex. U, and issued its mandate,
Ex. V. To the extent the Fifth DCA affirmed the postconviction
court’s denial on the merits, the Court will address the claim in
accordance with the deferential standard for federal court review
of state court adjudications. See Wilson, 138 S. Ct. at 1194. As
such, the Court will “look through” the unexplained opinion to the
postconviction court’s order on Petitioner’s Rule 3.850 Motion.
Id.
The postconviction court concluded Petitioner’s counsel was
not ineffective because Petitioner “was not eligible to claim the
[SYG] immunity” under Florida Statutes section 776.013(3) given
Petitioner was engaged in an “unlawful activity” at the relevant
time. Ex. Q at 24. The court noted Petitioner’s counsel testified
at the evidentiary hearing that “he reviewed the law [and] did not
Respondents contend Petitioner’s claim is partially
unexhausted because in his Rule 3.850 Motion, he challenged his
counsel’s failure to move to dismiss the charges against him before
trial. Resp. at 9. According to Respondents, Petitioner did not
reference his counsel’s failure to move for a dismissal of the
charges during trial, as he does in his Petition. Id. The Court
finds Petitioner exhausted this claim because he argued in his
Rule 3.850 Motion that his counsel was ineffective for failing to
raise the SYG defense, Ex. M at 11, and he appealed the denial of
his Rule 3.850 Motion, Ex. R.
5
18
believe the [Petitioner] was eligible to claim the immunity because
he was a convicted felon.” Id.
Petitioner
is
unable
to
establish
the
state
court’s
adjudication of the claim was contrary to clearly established
federal
law,
established
involved
federal
an
law,
unreasonable
or
was
application
based
on
an
of
clearly
unreasonable
determination of the facts. In its order denying Petitioner’s Rule
3.850 Motion, the postconviction court set forth the applicable
two-prong Strickland test. Id. at 1-2. The record demonstrates the
postconviction court properly applied the Strickland standard. See
Card v. Dugger, 911 F.2d 1494, 1520 (11th Cir. 1990) (“Counsel
cannot be labeled ineffective for failing to raise issues which
have no merit.”).
Nevertheless, even if the state court’s adjudication of this
claim is not entitled to deference, Petitioner fails to assert
facts or argument showing that “no competent counsel would have
taken the action that his counsel did take.” See Grayson, 257 F.3d
at 1216 (emphasis omitted). Petitioner was represented by an
attorney, Jack Maro, during his Rule 3.850 Motion proceedings. At
the evidentiary hearing, Mr. Maro questioned Petitioner’s trial
counsel about SYG immunity, which Mr. Maro acknowledged was a
relatively new law. Ex. P at 14.
Mr. Maro asked counsel why he did not move to dismiss the
charges under the SYG law. Id. Petitioner’s trial counsel responded
19
that he understood the law at the time (in 2008) extended immunity
only if the person using force was not a convicted felon. Id. at
16. He testified as follows:
I think originally as written, I don’t know if
[Petitioner] was qualified for it as it was
originally written. And I think they went back
and made it so that could [sic] anybody could
file it. But I want to say originally, I
thought convicted felons weren’t eligible for
it or something to that effect. And I mean I
probably could have filed something to test
the law at that point, but I didn’t because I
read the law and I saw what the legislature
wrote, I guess.
Id. at 15-16 (emphasis added).
Petitioner does not say why his counsel’s assessment, which
counsel said was informed by his review and understanding of the
law at the time, should not be afforded deference. And, upon review
of the relevant law at the time, the Court concludes counsel’s
decision was reasonable under the circumstances. See Kimmelman v.
Morrison,
counsel’s
477
U.S.
365,
performance
381
is
(1986)
to
be
(“The
reasonableness
evaluated
from
of
counsel’s
perspective at the time of the alleged error and in light of all
the
circumstances,
and
the
standard
of
review
is
highly
deferential.”).
Florida’s SYG law was enacted in 2005 under Florida Statutes
chapter 766. The provision that grants immunity for the use of
force is found in section 776.032. That provision provides, “A
person who uses . . . force as permitted in s. 776.012, s. 776.013,
20
or s. 776.031 is justified in such conduct and is immune from
criminal prosecution . . . .” Fla. Stat. § 776.032. Per the plain
language of the statute, a person who uses force is entitled to
immunity under section 776.032 only if his conduct was permitted
under one of three other provisions. See, e.g., Little v. State,
111 So. 3d 214 (Fla. 2d DCA 2013) (explaining the history of the
SYG
law
and
the
interplay
between
the
statutory
provisions
comprising the law).
Based on the facts of Petitioner’s case, the provisions that
potentially could have applied are 776.012 and 776.013(3).6 In
2008, when Petitioner was charged, both sections 776.012 and
776.013(3) authorized the use of force if the person using force
“reasonably believ[ed] that such force [was] necessary” to prevent
“imminent death or great bodily harm,” in the case of section
776.012, or to “prevent death or great bodily harm,” in the case
of section 776.013. See Fla. Stat. §§ 776.012(1), 776.013(3)
(2005). The main difference between the two provisions, as relevant
to Petitioner’s case, was that, under the 2005 version of the SYG
law, section 776.013(3) extended immunity only if the person using
force was “not engaged in unlawful activity.” See Fla. Stat. §
Section 776.031 pertains to the use of
protection of property. See Fla. Stat. § 776.031.
6
21
force
in
the
776.013(3) (2005). At the time, section 776.012 did not expressly
include such a limitation.7
In
his
Petition,
postconviction
court’s
Petitioner
does
ruling
incorrect
was
not
explain
why
or
attorney
his
the
ineffective. It is uncontradicted that Petitioner was a convicted
felon when he shot the victim. Ex. B at 325-26, 637. Thus, the
postconviction court correctly concluded Petitioner could not have
benefitted from immunity by application of section 776.013(3)
because Petitioner was engaged in unlawful activity at the time of
the shooting (being a convicted felon in possession of a firearm).
Petitioner’s argument only becomes clear upon review of his
brief on appeal. Ex. S. On appeal, Petitioner argued, through
counsel, that his trial counsel “was not properly versed [in] or
miscalculated the law.” Id. at 19. According to Petitioner’s
appellate counsel, his trial counsel failed to appreciate that
section 766.012 did not include the “unlawful activity” exception
unlike section 766.013(3).
Id. Petitioner’s appellate counsel
noted the postconviction court, too, failed to appreciate the
distinction. Id. Petitioner’s counsel encouraged the appellate
The legislature amended the SYG law in 2014. Section 776.012
now includes the limiting language included in section 776.013(3).
Section 776.012 now provides, “A person who uses . . . deadly force
. . . does not have a duty to retreat and has the right to stand
his or her ground if the person using . . . the deadly force is
not engaged in a criminal activity.” Fla. Stat. § 776.012(2) (2020)
(emphasis added).
7
22
court
to
review
two
cases
“to
fully
understand”
the
subtle
difference between sections 776.012 and 766.013(3). Id. at 20
(citing Miles v. State, 162 So. 3d 169 (Fla. 5th DCA 2015); Dorsey
v. State (Dorsey II), 149 So. 3d 144 (Fla. 4th DCA 2014)).
Contrary to Petitioner’s argument in his appellate brief, it
does not appear his trial counsel was misinformed or “not properly
versed” in the law. See Ex. S at 19. In fact, Petitioner’s counsel
testified at the evidentiary hearing that he considered whether he
had a good-faith argument to assert SYG immunity and concluded,
based on his understanding of the law at the time, that such an
argument would have been meritless. Ex. P at 15-16.
Upon review of the applicable law at the time, Petitioner’s
counsel’s understanding of the SYG law was reasonable. The 2005
version of section 766.013(3), which courts commonly referred to
as the “Stand Your Ground” law, provided as follows:
A person who is not engaged in an unlawful
activity and who is attacked in any other
place where he or she has a right to be has no
duty to retreat and has the right to stand his
or her ground and meet force with force,
including deadly force . . . .
Fla. Stat. § 766.013(3) (2005). See, e.g., State v. Hill (Hill I),
95 So. 3d 434, 435 (Fla. 4th DCA 2012) (describing the SYG law as
being codified in section 766.013(3), which includes the “unlawful
activity” exception); Dorsey v. State (Dorsey I), 74 So. 3d 521,
527 (Fla. 4th DCA 2011) (same).
23
The 2005 version of section 776.012 provided as follows:
[A] person is justified in the use of deadly
force and does not have a duty to retreat if:
(1) He or she reasonably believes that such
force is necessary to prevent imminent death
or great bodily harm to himself or herself or
another or to prevent the imminent commission
of a forcible felony; or
(2) Under those circumstances
pursuant to s. 776.013.
permitted
Fla. Stat. § 766.012 (2005). This provision included no express
“unlawful
activity”
exception,
though
some
practitioners
and
courts interpreted section 766.012 as engrafting onto it, by
reference to section 766.013, the “unlawful activity” exception
contained in that provision. In fact, Florida appellate courts
eventually started to note and address the controversy the 2005
law sparked regarding whether section 776.012, by reference to
section 776.013, incorporated the “unlawful activity” exception.
See, e.g., Hill v. State (Hill II), 143 So. 3d 981, 984 (Fla. 4th
DCA 2014). See also Brown v. State, 135 So. 3d 1160, 1160 n.1,
1162 (Fla. 4th DCA 2014).
Given the controversy engendered by the 2005 law, in 2013,
the Second DCA certified a question to the Florida Supreme Court,
which pinpointed a perceived inter-district conflict. See Little,
111 So. 3d at 222-23. In Little, the court held the defendant was
entitled to immunity under section 776.012(1) even though his use
of force was not permitted under section 776.013(3) because the
24
“unlawful activity” exception applied. Id. at 222. The Second DCA
noted that a Fourth DCA decision, Hill I, could be read broadly as
holding the opposite—“that a defendant who is engaged in an
unlawful
activity
is
not
entitled
to
immunity
under
section
776.032(1),” which incorporates by reference section 776.012. Id.
(emphasis added).
Recognizing that its decision conflicted with the Fourth
DCA’s Hill I decision, the Second DCA certified the following
question
to
the
Florida
Supreme
Court:
“Is
a
defendant
who
establishes . . . that his use of deadly force is permitted in
section 776.012(1), Florida Statutes (2009), entitled to immunity
under section 776.032(1) even though he is engaged in an unlawful
activity at the time he uses the deadly force?”8 Id. Significantly,
the court noted that it could find no case law addressing this
specific issue. Id.
After the Little decision, there was a flurry of case law
clarifying that sections 776.012 and 776.013(3) provide distinct
avenues through which to invoke immunity under section 776.032,
and that only one section conditioned immunity on a person’s lawful
conduct.9 The Fourth DCA even issued a decision to “eliminate any
The Florida Supreme Court did not exercise its discretion
to resolve the perceived conflict.
8
In addition to the decisions discussed in this Order, see,
for example, Miles, 162 So. 3d at 171-72 (agreeing with the Second,
Third, and Fourth DCAs that a defendant who is unable to proceed
9
25
perceived conflict between [the DCA’s] positions on this issue.”
Hill II, 143 So. 3d at 983 n.2. The Fourth DCA receded from its
statement in Hill I “that a felon in possession of a firearm cannot
claim immunity ‘under the Stand Your Ground law’ because the
statement unintentionally went beyond the statutory provision at
hand – section 766.013(3).” Id. at 985 (emphasis in original). See
also Brown, 135 So. 3d at 1160 n.1, 1162 (noting the imprecise
common parlance “Stand Your Ground” should be avoided because it
caused
confusion
as
“illustrated
by
the
certified
conflict”
presented in the Little decision).
Upon careful review of case law interpreting the pre-2014 SYG
law, and of the law itself, Petitioner fails to demonstrate his
trial counsel’s performance was deficient under Strickland simply
because counsel failed to know in 2008 what Florida appellate
courts did not make clear until at least 2014. The two cases
Petitioner cited in his appellate brief certainly illuminate the
issue and eviscerate any doubt whether the 2005 version of section
776.012 incorporated the “unlawful activity” exception expressly
included in section 776.013(3). However, Miles and Dorsey II were
under section 776.013(3) because of the “unlawful activity”
prohibition may proceed under the pre-2014 version of section
776.012(1)), and Garrett v. State, 148 So. 3d 466, 471 (Fla. 1st
DCA 2014) (citing with approval Little and Hill II in rejecting
the State’s argument that the self-defense privilege extended
under all provisions of the SYG law is “reserved for law-abiding
citizens only”).
26
decided many years after Petitioner was arrested and tried.10 As
discussed, at least before 2013, the apparent understanding of the
SYG law was that immunity was unavailable to convicted felons in
possession of guns.
Even if Petitioner’s trial counsel could have argued in 2008
that section 776.012 should apply regardless of a defendant’s
unlawful activity, under the circumstances, his failure to do so
was reasonable. See Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000)
(“The relevant question is not whether counsel’s choices were
strategic, but whether they were reasonable.”). The Strickland
standard does not demand criminal defense attorneys be legal
trailblazers or statutory interpretation scholars. Bates v. Sec’y,
Fla. Dep’t of Corr., 768 F.3d 1278, 1295 (11th Cir. 2014) (“[The
Strickland] test ‘has nothing to do with what the best lawyers
would have done. . . . [or] even what most good lawyers would have
done.”).
Accordingly,
Petitioner
fails
to
demonstrate
his
trial
counsel’s performance was deficient. See Brown v. United States,
219 F. App’x 917, 918 (11th Cir. 2007) (“Unless the petitioner can
rebut the ‘strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance,’ he cannot
establish
that
counsel’s
performance
was
constitutionally
Petitioner was charged by Information on November 13, 2008,
see Ex. A, and his trial began in May 2010, see Ex. B.
10
27
deficient.”). But assuming counsel’s performance was deficient,
Petitioner is unable to demonstrate prejudice. Other than by
speculation and conjecture, Petitioner does not assert a motion to
suppress his charges under the SYG law, as interpreted in 2008,
would have succeeded. Notably, the postconviction court agreed
with trial counsel’s assessment of the law, concluding that section
776.013(3)’s
“unlawful
activity”
exception
would
have
barred
Petitioner from seeking SYG immunity.11
For the above reasons, Petitioner is not entitled to relief
on ground three.
D. Ground Four
Fourth, Petitioner asserts the postconviction court erred in
denying his ineffective assistance of counsel claim relating to a
jury instruction. Petition at 10. Petitioner states his trial
counsel did not object to a “flawed Standard Jury Instruction of
Attempted Voluntary Manslaughter.”
Id. Petitioner asserts the
Florida Supreme Court, the month before his trial, held the
Ironically, Petitioner’s imprecise nomenclature in his Rule
3.850 Motion illustrates the confusion engendered by the 2005
version of the SYG law. In his Rule 3.850 Motion, Petitioner simply
asserted he was entitled to immunity under the “Stand Your Ground”
law, which he cited by reference to the overarching provision,
section 766.032. See Ex. M at 11. In his three-sentence argument,
Petitioner made no reference to, or distinction between, sections
776.012 or 776.013(3). Id.
11
28
standard jury instruction for attempted voluntary manslaughter was
“inappropriate.” Id.
Petitioner raised this claim as ground four in his Rule 3.850
Motion. Ex. M at 11. The postconviction court found Petitioner was
not entitled to relief. Ex. Q at 6-7. The Fifth DCA affirmed per
curiam.
Ex.
U.
To
the
extent
the
Fifth
DCA
affirmed
the
postconviction court’s denial on the merits, the Court will address
the claim in accordance with the deferential standard for federal
court review of state court adjudications. See Wilson, 138 S. Ct.
at 1194. As such, the Court will “look through” the unexplained
opinion to the postconviction court’s order on Petitioner’s Rule
3.850 Motion. Id.
In its order denying Petitioner’s Rule 3.850 Motion, the
postconviction court found trial counsel was not deficient because
the Florida Supreme Court’s decision, issued before the trial,
“did not become final until June 28, 2010 [after Petitioner’s
trial], when a motion for rehearing was denied.” Ex. Q at 7. The
postconviction court noted the law in effect at the time was that
stated in the Fifth DCA case Barton v. State, 507 So. 2d 638 (Fla.
5th DCA 1987), with which the jury instruction complied. Id. The
court concluded as follows:
Because
the
jury
instruction
given
[Petitioner’s] trial was proper, given the
at the time of the [Petitioner’s] trial,
Court finds that [trial counsel] was
ineffective in failing to object to
29
at
law
the
not
the
attempted voluntary manslaughter instruction.
… Here, there was no deficient performance …
and the [Petitioner] has failed to establish
that there was a reasonable probability a
different instruction would have been given to
the jury had [counsel] objected.
Id.
Petitioner’s counsel does not explain why the postconviction
court’s
adjudication
of
the
claim
was
contrary
to
or
an
unreasonable application of Strickland. See Petition at 10. Nor
does
counsel
address
either
Strickland
prong.
Id.
As
such,
Petitioner is unable to establish the state court’s adjudication
of the claim was contrary to clearly established federal law,
involved
an
unreasonable
application
of
clearly
established
federal law, or was based on an unreasonable determination of the
facts.12 In its order denying Petitioner’s Rule 3.850 Motion, the
postconviction court set forth the applicable two-prong Strickland
test. Id. at 1-2. The record demonstrates the postconviction court
properly applied the Strickland standard.
Nevertheless, even if the state court adjudication of this
claim
is
not
performance
entitled
was
to
deficient,
deference,
Petitioner
and
assuming
fails
to
counsel’s
demonstrate
prejudice. Petitioner was charged with attempted first-degree
To the extent Petitioner asserts the improper instruction
amounts to trial court error, his claim is not cognizable on
federal habeas review. See Joseph, 567 F. App’x at 894.
12
30
murder, Ex. A, which requires the State to prove Petitioner “did
some act intended to cause the death of [the victim].” Ex. C
(emphasis added). The jury found Petitioner guilty as charged. Ex.
D.
Petitioner contests not the jury instruction for attempted
first-degree
murder,
but
for
the
lesser-included
offense
of
attempted voluntary manslaughter. See Petition at 10. In pertinent
part, the trial judge charged the jury as follows:
To prove the crime of Attempted Voluntary
Manslaughter, the State must prove the
following element beyond a reasonable doubt:
[Petitioner] committed an act, which was
intended to cause the death of [the victim]
and would have resulted in the death of [the
victim]
except
that
someone
prevented
[Petitioner] from killing [the victim] or he
failed to do so.
Ex. C. (emphasis added).
Petitioner maintains his attorney should have objected to the
attempted voluntary manslaughter instruction because, the month
before his trial, the Florida Supreme Court issued a decision
holding “intent to kill” is not an element of the crime of
manslaughter. See Petition at 10; Ex. S at 28 (citing Montgomery
v. State, 39 So. 3d 352 (Fla. 2010)). Assuming the reference to an
intent to cause death was incorrect, the same instruction informed
the jury that a premeditated intent to cause death is not an
31
element of the crime of attempted voluntary manslaughter. Ex. C.
The instruction included the following additional language:
In
order
to
convict
of
attempted
voluntary manslaughter[,] it is not necessary
for the State to prove that the [Petitioner]
had a premeditated intent to cause death, only
an intent to commit an act which caused death.
Id.
To the extent the jurors were confused as to whether intent
to cause death was an element of attempted voluntary manslaughter,
any such confusion had no impact on the outcome of the trial. The
jury found Petitioner acted with an intent to kill the victim, as
is evident from the verdict for attempted first-degree murder. See
Ex. D. Accordingly, even if Petitioner’s counsel should have
objected to the standard jury instruction, Petitioner fails to
demonstrate
a
deficiencies,
reasonable
the
result
probability
of
the
that,
proceeding
but
for
would
counsel’s
have
been
different. See Strickland, 466 U.S. at 695. Petitioner’s implicit
suggestion to the contrary is not only vague but speculative. Thus,
Petitioner is not entitled to relief on ground four.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.
The Petition for Writ of Habeas Corpus (Doc. 1) is
DENIED.
2.
This action is DISMISSED WITH PREJUDICE.
32
3.
The Clerk shall enter judgment accordingly and close
this case.
4.
If Petitioner appeals the denial of his Petition, the
Court denies a certificate of appealability.13 The Clerk shall
terminate from the pending motions report any motion to proceed on
appeal as a pauper that may be filed in this case. Such termination
shall serve as a denial of the motion.
DONE AND ORDERED at Jacksonville, Florida, this 30th day of
June 2020.
Jax-6
c:
Counsel of Record
This Court should issue a certificate of appealability only
if a petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make this
substantial showing, Petitioner “must demonstrate that reasonable
jurists would find the district court’s assessment of the
constitutional claims debatable or wrong,” Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that “the issues presented were ‘adequate to deserve
encouragement to proceed further,’” Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 n.4 (1983)). Upon due consideration, this Court will deny
a certificate of appealability.
13
33
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