Wilson v. Secretary, Department of Corrections et al

Filing 26

ORDER denying 1--petition for the writ of habeas corpus; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to ENTER A JUDGMENT against Wilson and to CLOSE the case. Signed by Judge Steven D. Merryday on 3/31/2021. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

DWAYNE WILSON,
Applicant,
v.

CASE NO. 8:14-cv-29-SDM-AAS

SECRETARY, Department of Corrections,
Respondent.
____________________________________/
ORDER
Wilson applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)
and challenges his conviction for second-degree murder, for which Wilson is
imprisoned for life. Numerous exhibits (“Respondent’s Exhibit ___”) support the
response. (Doc. 10) The respondent admits the application’s timeliness (Doc. 19
at 3) but argues that some grounds are unexhausted and procedurally defaulted.
(Doc. 19 at 6, 9, 14)
I. BACKGROUND1
Wilson fathered a child with Felicia Watson. But Michael Harris was
Felicia’s boyfriend when on March 16, 2004, Wilson and Felicia argued on the
telephone. Wilson wanted to pick up their child from Felicia’s home. Felicia
wanted Wilson to pick up their child from day care. Wilson yelled at Felicia and

1

and 8)

This summary of the facts derives from the briefs on direct appeal. (Respondent’s Exhibits 7

told her that he was coming to her home. When Wilson entered Felicia’s home, he
saw the child sitting on Harris’s lap without shoes. Wilson and Harris exchanged
insults, and Wilson picked up the child to leave. Harris and Wilson went outside to
get the child’s car seat from Felicia’s car.
While outside, Wilson and Harris continued to argue. Wilson stabbed Harris
in the neck with a fishing knife that Wilson kept in his pocket. Almost severing
Harris’s spinal cord, Wilson killed him. Felicia came outside and saw Harris lying
on the ground and saw the child standing over him. Angry, Felicia went inside the
house, grabbed a small knife from the kitchen, went back outside the house, and
threw the knife at Wilson, who left in his car.
Felicia called 911 and identified Wilson as the person who stabbed Harris.
Police did not find a weapon on Harris but found the knife from Felicia’s kitchen in
the street. A blood test showed that Harris had consumed cocaine earlier that day,
but a medical examiner opined that Harris would not have been intoxicated at the
time of the killing. Just after the crime, a homicide detective called Wilson ten times,
left a voicemail, and sent a sheriff’s deputy to Wilson’s home. Wilson surrendered to
police fifteen days later.
At trial, the prosecutor called as a witness a court reporter, who read
testimony by Wilson from his first trial.2 Wilson testified that, when he and Harris
went outside, Harris pointed his finger at Wilson’s face and threatened to “f*ck

A jury found Wilson guilty of second-degree murder, and the state appellate court reversed
the conviction because the jury instruction on self-defense was erroneous. Wilson v. State, 944 So. 2d
1244 (Fla. 2d DCA 2006).
2

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[Wilson] up.” Wilson and Harris continued to argue. Wilson testified that he
thought that the “look” on Harris’s face suggested aggression and thought he saw a
knife-like object in Harris’s hand. When Harris approached him, Wilson grabbed the
knife from his pocket and stabbed Harris. Wilson testified that he thought his life
was in danger and feared that Harris would hurt the child. Wilson left after telling
Felicia to call the police.
II. EXHAUSTION AND PROCEDURAL DEFAULT
The respondent argues that grounds two, three, and five are procedurally
barred from federal review because Wilson failed to exhaust his available state
court remedies. “[E]xhaustion of state remedies requires that petitioners ‘fairly
presen[t]’ federal claims to the state courts in order to give the State the ‘opportunity
to pass upon and correct’ alleged violations of its prisoners’ federal rights.” Duncan
v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275
(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.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan,
513 U.S. at 365–66).
Ground Two:
Wilson asserts that the state court violated his right to due process and a
fair trial under the Sixth and Fourteenth Amendments because the evidence at trial
failed to prove he acted with ill will, hatred, spite, or evil intent. (Doc. 1 at 5)

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Wilson presented a similar claim as his second issue on direct appeal and cited
Michelson v. State, 805 So. 2d 983 (Fla. 4th DCA 2001). (Respondent’s Exhibit 7
at 12–16) Because Michelson both cited United States v. Gaudin, 515 U.S. 506 (1995),
and decided a similar claim on federal constitutional law, Wilson alerted the state
court to the federal nature of his claim. Michelson, 805 So. 2d at 985 (“The United
States Constitution requires that criminal convictions must rest upon a determination
that the defendant is guilty beyond a reasonable doubt of every element of the crime
with which he has been charged.”); Reese, 541 U.S. at 32 (“A litigant wishing to raise
a federal issue can easily indicate the federal law basis for his claim in a state-court
petition or brief, for example, by citing in conjunction with the claim the federal
source of law on which he relies or a case deciding such a claim on federal grounds,
or by simply labeling the claim ‘federal.’”). Ground two is entitled to a review on
the merits.
Ground Three:
Wilson asserts that the state court violated his right to due process and a
fair trial because no evidence at trial disproved his claim of self-defense. (Doc. 1
at 7–8) Wilson presented a similar claim as his third issue on direct appeal but
presented that issue under state law — not as the violation of a federally protected
right. (Respondent’s Exhibit 7 at 17–19) The failure to alert the state appellate court
that the trial court violated a federally protected right fails to meet the exhaustion
requirement. Anderson v. Harless, 459 U.S. 4, 6 (1982) (“It is not enough that all the
facts necessary to support the federal claim were before the state courts, or that

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a somewhat similar state-law claim was made.”) (citations omitted); Preston
v. Sec’y, Fla. Dep’t Corrs., 785 F.3d 449, 459 (11th Cir. 2015) (“Preston asserted in his
brief that his conviction rested on insufficient evidence, without clarifying whether he
intended to bring a federal or a state sufficiency of the evidence claim . . . . Preston
invoked a phrase common to both federal and state law without explaining which
body of law provided the basis for his claim.”). Ground three is unexhausted.
Ground Five:
Wilson asserts that trial counsel was ineffective for misstating the evidence
during closing argument by telling the jury that Wilson testified at trial. (Doc. 1
at 14–15) Wilson presented the claim as his second ground in his Rule 3.850 motion
for post-conviction relief (Respondent’s Exhibit 11 at 10–11) but did not present the
claim in his brief on appeal. (Respondent’s Exhibit 15) Wilson’s failure to present to
the state appellate court the ineffective assistance of counsel claim deprived the state
court of a “full and fair opportunity to resolve any constitutional issues.” O’Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999). Ground five is unexhausted.
****
Wilson could have raised the claim in ground three on direct appeal and is
barred from doing so collaterally in a Rule 3.850 motion. Fla. R. Crim. P. 3.850(c)
(“This rule does not authorize relief based on grounds that could have or should have
been raised at trial and, if properly preserved, on direct appeal of the judgment and
sentence.”). Wilson could have raised the claim in ground five on appeal of the
denial of his first Rule 3.850 motion, and the claim is barred in a successive Rule

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3.850 motion. Fla. R. Crim. P. 3.850(h)(2). Because Wilson cannot raise the claims
in ground three and ground five in state court, the grounds are procedurally defaulted
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 state-law 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.”).
Ground three and ground five are barred from federal review absent a showing
of “actual cause and prejudice” or a “fundamental miscarriage of justice.” Coleman
v. Thompson, 501 U.S. 722, 750 (1991); Murray v. Carrier, 477 U.S. 478, 496 (1986).
Wilson proffers no specific facts to establish either “cause and prejudice” or
a “fundamental miscarriage of justice.” (Doc. 22 at 17–20) Consequently, ground
three and ground five are procedurally barred from federal review.
III. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 governs this
proceeding. Wilcox v. Fla. Dep’t Corrs., 158 F.3d 1209, 1210 (11th Cir. 1998). Section
2254(d), which creates a highly deferential standard for federal court review of a state
court adjudication, states:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of
the claim —
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly

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established Federal law, as determined by the
Supreme Court of the United States; or
resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.

Williams v. Taylor, 529 U.S. 362, 412–13 (2000), explains this deferential
standard:
In sum, § 2254(d)(1) places a new constraint on the power of
a federal habeas court to grant a state prisoner’s application for
a writ of habeas corpus with respect to claims adjudicated on
the merits in state court. . . . Under the “contrary to” clause,
a federal habeas court may grant the writ if the state court
arrives at a conclusion opposite to that reached by this Court on
a question of law or if the state court decides a case differently
than this Court has on a set of materially indistinguishable
facts. Under the “unreasonable application” clause, a federal
habeas court may grant the writ if the state court identifies the
correct governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s
case.

“The focus . . . is on whether the state court’s application of clearly established
federal law is objectively unreasonable, . . . an unreasonable application is different
from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “As a condition for
obtaining habeas corpus from a federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington v. Richter,
562 U.S. 86, 103 (2011). The phrase “clearly established Federal law” encompasses
only the holdings of the United States Supreme Court “as of the time of the relevant
state-court decision.” Williams, 529 U.S. at 412.

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“[AEDPA] modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.” Cone, 535 U.S. at 694.
“AEDPA prevents defendants — and federal courts — from using federal habeas
corpus review as a vehicle to second-guess the reasonable decisions of state courts.”
Renico v. Lett, 559 U.S. 766, 779 (2010). Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(“This is a ‘difficult to meet,’ . . . and ‘highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the benefit of
the doubt’ . . . .”) (citations omitted).
When the last state court to decide a federal claim issues an explanatory
and reasoned opinion, a federal habeas court reviews the specific reasons in the
opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct.
1188, 1192 (2018). When the relevant state-court decision is not accompanied with
reasons for the decision, the federal court “should ‘look through’ the unexplained
decision to the last related state-court decision that does provide a relevant rationale
[and] presume that the unexplained decision adopted the same reasoning.” Wilson,
138 S. Ct. at 1192. A respondent may contest “the presumption by showing that the
unexplained affirmance relied or most likely did rely on different grounds than the
lower state court’s decision . . . .” Wilson, 138 S. Ct. at 1192.
In a per curiam decision without a written opinion the state appellate court
affirmed Wilson’s conviction and sentence. (Respondent’s Exhibit 9) Similarly, in
another per curiam decision without a written opinion the state appellate court

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affirmed the denial of Wilson’s Rule 3.850 motion for post-conviction relief.
(Respondent’s Exhibit 18) A state appellate court’s per curiam decision without a
written opinion warrants deference under Section 2254(d)(1). Wright v. Sec’y Dep’t
Corrs., 278 F.3d 1245, 1254 (11th Cir. 2002). Richter, 562 U.S. at 100 (“When a
federal claim has been presented to a state court and the state court has denied relief,
it may be presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the contrary.”).
As Pinholster explains, 563 U.S. at 181–82, review of the state court decision
is limited to the state court record:
We now hold that review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim
on the merits. Section 2254(d)(1) refers, in the past tense, to
a state-court adjudication that “resulted in” a decision that was
contrary to, or “involved” an unreasonable application of,
established law. This backward-looking language requires an
examination of the state-court decision at the time it was made.
It follows that the record under review is limited to the record
in existence at that same time, i.e., the record before the state
court.

“[A] determination of a factual issue made by a State court shall be presumed to
be correct.” 28 U.S.C. § 2254(e)(1). Wilson bears the burden of rebutting that
presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The
presumption applies to a finding of fact but not to a mixed determination of law
and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir. 2001). Wilson’s federal
application presents the same grounds that he presented to the state court. The
state court’s rejection of Wilson’s claims warrants deference in this federal action.
(Respondent’s Exhibit 9, Exhibit 12 at 4, and Exhibit 14 at 2–6)

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IV. ISSUES ON DIRECT APPEAL
Ground One:
Wilson asserts that the state court violated his rights to due process and a fair
trial under the Sixth and Fourteenth Amendments because the trial court admitted
into evidence at trial Wilson’s testimony from his first trial. (Doc. 1 at 4–5)
The state appellate court affirmed the denial of this claim on direct appeal in
a decision without a written opinion. (Respondent’s Exhibit 9) Wilson has the
burden to show no reasonable basis for the denial of relief. Richter, 562 U.S. at 98.
“If the prosecution has actually violated the defendant’s Fifth Amendment
rights by introducing an inadmissible confession at trial, compelling the defendant
to testify in rebuttal, the rule announced in Harrison v. United States, 392 U.S. 219
(1968), precludes use of that testimony on retrial.” Oregon v. Elstad, 470 U.S. 298,
317 (1985). However, as Harrison explains, 392 U.S. at 222–23, if no inadmissible
confession compelled the defendant to testify at the first trial, the prosecution may
introduce the testimony on retrial:
In this case we need not and do not question the general
evidentiary rule that a defendant’s testimony at a former trial
is admissible in evidence against him in later proceedings.
A defendant who chooses to testify waives his privilege against
compulsory self-incrimination with respect to the testimony he
gives, and that waiver is no less effective or complete because
the defendant may have been motivated to take the witness
stand in the first place only by reason of the strength of the
lawful evidence adduced against him.
Here, however, the petitioner testified only after the
Government had illegally introduced into evidence three
confessions, all wrongfully obtained, and the same principle
that prohibits the use of confessions so procured also prohibits
the use of any testimony impelled thereby — the fruit of the
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poisonous tree, to invoke a time-worn metaphor. For the
‘essence of a provision forbidding the acquisition of evidence
in a certain way is that not merely evidence so acquired shall
not be used before the Court but that it shall not be used at all.’
Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920).
In concluding that the petitioner’s prior testimony could be
used against him without regard to the confessions that had
been introduced in evidence before he testified, the Court of
Appeals relied on the fact that the petitioner had ‘made
a conscious tactical decision to seek acquittal by taking the
stand after (his) in-custody statements had been let in . . . .’ But
that observation is beside the point. The question is not whether
the petitioner made a knowing decision to testify, but why. If he
did so in order to overcome the impact of confessions illegally
obtained and hence improperly introduced, then his testimony
was tainted by the same illegality that rendered the confessions
themselves inadmissible. . . .

The state appellate court reversed Wilson’s conviction after his first trial
because the jury instruction for self-defense was erroneous. Wilson v. State,
944 So. 2d 1244 (Fla. 2d DCA 2006). At his first trial the prosecutor introduced
no unlawful confession, and no unlawful confession compelled Wilson to testify.
“Section 2254(d)(1) provides a remedy for instances in which a state court
unreasonably applies [the United States Supreme Court’s] precedent; it does not
require state courts to extend that precedent or license federal courts to treat the
failure to do so as error.” White v. Woodall, 572 U.S. 415, 426 (2014). Consequently,
the state court did not unreasonably apply Harrison. Harrison, 392 U.S. at 223 n.9
(“[W]e decide here only a case in which the prosecution illegally introduced the
defendant’s confession in evidence against him at trial in its case-in-chief.”).
In his reply Wilson expands his claim and asserts that he testified at his first
trial because trial counsel misadvised and coerced him to testify. (Doc. 22 at 3, 6–7)

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He further asserts that trial counsel was ineffective for not moving to exclude his
testimony from his first trial before his retrial. (Doc. 22 at 11)3 Wilson supports
the expanded claim with testimony from the evidentiary hearing on his Rule 3.850
motion for post-conviction relief. (Doc. 22 at 4–5, 7–10, 12–13)
Because Wilson expands the claim for the first time on reply, the expanded
claim is waived. Herring v. Sec’y, Dep’t Corrs., 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). Also, the state
appellate court rejected the claim in ground one on direct appeal. (Respondent’s
Exhibit 9) Because the transcript from the post-conviction evidentiary hearing
was not part of the record on direct appeal, the district court cannot consider the
transcript on federal habeas. Pinholster, 563 U.S. at 181–82. Consequently, ground
one is denied.
Ground Two:
Wilson asserts that the state court violated his rights to due process and a fair
trial under the Sixth and Fourteenth Amendments because the evidence at trial
lacked proof that he acted with ill will, hatred, spite, or evil intent. (Doc. 1 at 5)

In ground seven Wilson asserts that trial counsel was ineffective for coercing and
intimidating him to testify at his first trial. (Doc. 1 at 16–17) The record refutes the claim.
(Respondent’s Exhibit 13 at 51–52 and Exhibit 14, Transcript (May 25, 2005) at 402–03)
At the retrial, counsel objected to the admission of Wilson’s testimony from his first trial.
(Respondent’s Exhibit 4 at 362) On direct appeal appellate counsel challenged the admission of
the testimony (Respondent’s Exhibit 7 at 8–11), and the State raised no challenge to preservation.
(Respondent’s Exhibit 8 at 7)
3

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The state appellate court affirmed the denial of this claim on direct appeal in
a decision without an opinion. (Respondent’s Exhibit 9)4 Wilson has the burden to
show no reasonable basis for the denial of relief. Richter, 562 U.S. at 98.
A defendant is entitled to relief “if it is found that upon the record evidence
adduced at the trial no rational trier of fact could have found proof of guilt beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). The court views
the evidence at trial in the light most favorable to the prosecution. 443 U.S. at 319.
A jury found Wilson guilty of second-degree murder. The prosecution had
to prove that Wilson unlawfully killed Harris “by any act imminently dangerous
to another” and “evincing a depraved mind regardless of human life.” Fla. Stat.
§ 782.04(2). “In the context of second-degree murder, an act is imminently
dangerous to another and evinces a ‘depraved mind’ if it is an act or series of acts
that: (1) a person of ordinary judgment would know is reasonably certain to kill or
do serious bodily injury to another; and (2) is done from ill will, hatred, spite or an
evil intent; and (3) is of such a nature that the act itself indicates an indifference to
human life.” Thompson v. State, 257 So. 3d 573, 579 (Fla. 1st DCA 2018) (citation
and quotation marks omitted). Neither a reckless act nor an immediate and
impulsive overreaction to an assault is enough. 257 So. 3d at 579–80.

At the close of evidence trial counsel moved for judgment of acquittal on other grounds.
(Respondent’s Exhibit 4 at 459–88) On direct appeal Wilson asserted a failure to prove intent
(Respondent’s Exhibit 7 at 12–16), and the State raised no challenge to preservation. (Respondent’s
Exhibit 8 at 8–11)
4

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At trial Felicia testified that, on the day of the crime, she and Wilson
argued on the telephone. (Respondent’s Exhibit 4 at 175–76) Wilson wanted to
pick up their son from Felicia’s home; Felicia wanted Wilson to pick up their son
from day care. (Respondent’s Exhibit 4 at 173–74) When Wilson told Felicia, “I’m
coming to get my son,” Felicia hung up the telephone. (Respondent’s Exhibit 4
at 176–77) During five more telephone calls, Wilson and Felicia continued to
argue. (Respondent’s Exhibit 4 at 177) During the final call, Wilson became
“angrier and angrier” and started to yell at Felicia. (Respondent’s Exhibit 4 at 177)
Felicia stopped answering Wilson’s calls. (Respondent’s Exhibit 4 at 178–80)
Later that morning, Wilson went to Felicia’s home. (Respondent’s Exhibit 4
at 182) When Wilson walked into the home, Harris was playing with Wilson’s son
and helping the child put on shoes while the child sat in Harris’s lap. (Respondent’s
Exhibit 4 at 181–82) Wilson asked Harris, “[W]hat’s up[,] Pimpie?” (Respondent’s
Exhibit 4 at 185) Harris responded, “[N]othing, what’s up[?]” (Respondent’s
Exhibit 4 at 186) Wilson replied in a raised voice, “[F]irst of all you can put my
mother f*cking son down.” (Respondent’s Exhibit 4 at 186–87) Harris put the child
down and said, “[H]ere you go. It [doesn’t] even have to be like that.”
(Respondent’s Exhibit 4 at 187)
Wilson angrily told Felicia, “[A]s for you, b*tch, you can go out there and get
the mother f*cking car seat.” (Respondent’s Exhibit 4 at 187–88) Felicia
responded, “[F]irst of all, you can get out of my house.” (Respondent’s Exhibit 4
at 188) Wilson replied louder, “[B]*tch, you’re [going to] go get the mother f*cking

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car seat.” (Respondent’s Exhibit 4 at 188) Felicia again told Wilson, “You can
get out of my house.” (Respondent’s Exhibit 4 at 189) While Wilson and Felicia
continued to argue, Harris interjected and told Wilson, “[F]irst of all, you’re not
going to come in here with this. You wanted your son. You got your son. But
you’re not fixing to come in here with all that cursing.” (Respondent’s Exhibit 4
at 189–90) Wilson replied, “You can stay out of it.” (Respondent’s Exhibit 4
at 191)
Felicia threatened to call the police, and everyone calmed down.
(Respondent’s Exhibit 4 at 191–92) Harris told Felicia to get ready for work and
walked outside to get the car seat from Felicia’s car. (Respondent’s Exhibit 4
at 192–95) Wilson walked behind Harris while holding his son in his arm.
(Respondent’s Exhibit 4 at 194) After a few minutes, a friend who lived with
Felicia told her to get her son because Wilson and Harris were about to fight.
(Respondent’s Exhibit 4 at 195–96) Felicia found Harris lying on the ground and
her child standing over him. (Respondent’s Exhibit 4 at 200) Wilson walked
away with his hand in his pocket. (Respondent’s Exhibit 4 at 202)
Felicia angrily asked Wilson, “[W]hat did you do to him?” (Respondent’s
Exhibit 4 at 203) Wilson walked towards his car, looked at Felicia, and called
her a “b*tch.” (Respondent’s Exhibit 4 at 203–04) Felicia went inside her home,
grabbed a knife from a butcher block, ran back outside, and threw the knife
at Wilson. (Respondent’s Exhibit 4 at 205) Wilson drove away in his car.

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(Respondent’s Exhibit 4 at 205) Felicia did not see a weapon either in Harris’s
hand or on the ground near his body. (Respondent’s Exhibit 4 at 203, 206–07)
The friend who lived with Felicia testified that she saw Wilson and Harris
standing outside next to Felicia’s car. (Respondent’s Exhibit 4 at 244) Wilson held
his son in his arm and was yelling at Harris. (Respondent’s Exhibit 4 at 245–46)
Harris tried to calm Wilson down. (Respondent’s Exhibit 4 at 245–46) The friend
did not see anything in Wilson’s hand. (Respondent’s Exhibit 4 at 246)
A homicide detective testified that he tried to locate Wilson after the
crime. (Respondent’s Exhibit 4 at 337–39, 343–45) The detective called Wilson’s
mobile telephone ten to fifteen times and left a voicemail. (Respondent’s Exhibit 4
at 338) The detective asked other deputies to go to the home where Wilson lived.
(Respondent’s Exhibit 4 at 339–40) The detective issued a “be on the lookout”
report and obtained a warrant for Wilson’s arrest. (Respondent’s Exhibit 4 at 341,
343) Wilson surrendered to authorities fifteen days after the crime. (Respondent’s
Exhibit 4 at 345) The detective never recovered a weapon from Wilson.
(Respondent’s Exhibit 4 at 345)
Wilson’s girlfriend testified that Wilson told her what happened just after
the killing. According to the girlfriend, Wilson said that Harris approached him
with a knife, that Wilson grabbed Harris’s wrists and pushed him down, and that
Harris fell onto the knife. (Respondent’s Exhibit 4 at 352–54) Wilson pushed
Harris to defend both himself and his son. (Respondent’s Exhibit 4 at 361)

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At his first trial, Wilson testified that he arrived at Felicia’s home to pick up
his son. (Respondent’s Exhibit 4 at 368) Wilson had a fishing knife in the back seat
of his car and put the knife in his pocket so that his son would not hurt himself.
(Respondent’s Exhibit 4 at 368) Wilson went inside the home to get his son; Harris
picked up the child and said that the child was “alright.” (Respondent’s Exhibit 4
at 370) Wilson told Harris not to touch his son, and the two men started to argue.
(Respondent’s Exhibit 4 at 370–72) Also, Wilson argued with Felicia and insulted
her because the child was not ready to leave. (Respondent’s Exhibit 4 at 370–72)
Harris agreed to get the child’s car seat. (Respondent’s Exhibit 4 at 372)
Wilson walked outside with the child. (Respondent’s Exhibit 4 at 373) Harris
followed, closed the front door, and quickly turned in front of Wilson.
(Respondent’s Exhibit 4 at 373) Harris told Wilson, “I’m telling you, man, I’ll f*ck
you up, man.” (Respondent’s Exhibit 4 at 373) Wilson replied, “[M]an, get your
hand out of my mother f*cking face. Don’t f*ck with me, man.” (Respondent’s
Exhibit 4 at 373) Wilson stabbed Harris with the fishing knife because he thought
Harris was going to stab him with an object that Wilson thought was a knife.
(Respondent’s Exhibit 4 at 373–74, 377–78, 401) Wilson feared for both his own life
and his son’s life. (Respondent’s Exhibit 4 at 376, 378, 414–15)
The evidence proved that Wilson had ill will, hatred, spite, and evil intent
when he stabbed Harris. Wilson argued with Felicia on the telephone about their
son, yelled at Felicia, and went to Felicia’s home uninvited. When Wilson arrived
at Felicia’s home, he continued to argue with Felicia, directed his anger at Harris

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when he saw Harris playing with his son, and insulted both Felicia and Harris. Just
before the stabbing, Wilson continued to argue with Harris and spoke to him with
an angry tone. Wilson stabbed Harris in the neck, almost severed his spinal cord,
and mortally wounded him. After the stabbing, Wilson rendered no aid, called
Felicia a “b*tch,” left in his car, and surrendered to police fifteen days later.
Viewing the evidence in the light most favorable to the prosecution, Wilson
stabbed Harris with ill will, hatred, spite, and evil intent. Peoples v. State, 251 So. 3d
291, 303 (Fla. 1st DCA 2018) (“[T]he circumstances surrounding the fatal act can
prove ill will, spite, hatred or evil intent. Here, in addition to Appellant’s use of a
deadly weapon to stab the victim — an act which itself could be sufficient to infer
the requisite intent — the evidence here showed that Appellant was familiar with the
victim before the stabbing and thought he ‘looked like a punk.’”) (citations omitted).
Twilegar v. State, 42 So. 3d 177, 196 (Fla. 2010) (“[E]vidence of flight, concealment,
or resistance to lawful arrest after the fact of a crime is admissible as ‘being relevant
to consciousness of guilt which may be inferred from such circumstances.’”)
(citation omitted).
Certain evidence, if believed, arguably proved that Wilson acted in selfdefense. However, the court must view the evidence in the present context in
the light most favorable to the prosecution. Jackson, 443 U.S. at 319. The court
looks “both to direct and circumstantial evidence in resolving the question of the
sufficiency of the evidence underlying the conviction.” Pate v. Wainwright, 607 F.2d
669, 670 (5th Cir. 1979). “[C]onflicting evidence alone does not undermine that

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conclusion of sufficiency so long as a rational factfinder could have credited one side
of the conflicting testimony over the other.” Wilcox v. Ford, 813 F.2d 1140, 1145
(11th Cir. 1987). Consequently, the state court did not unreasonably apply Jackson.
Ground two is denied.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Wilson claims ineffective assistance of counsel, a difficult claim to sustain.
“[T]he cases in which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between.” Waters v. Thomas,
46 F.3d 1506, 1511 (11th Cir. 1995) (quoting Rogers v. Zant, 13 F.3d 384, 386
(11th Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains
that Strickland v. Washington, 466 U.S. 668, 687 (1984), governs an ineffective
assistance of counsel claim:
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
Supreme Court set forth a two-part test for analyzing ineffective
assistance of counsel claims. According to Strickland,
First, the defendant must show that counsel’s
performance was deficient. This requires showing
that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient
performance prejudiced the defense. This
requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.

“There is no reason for a court deciding an ineffective assistance claim . . .
to address both components of the inquiry if the defendant makes an insufficient

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showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly presumed to
have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Strickland, 466 U.S. at 690. “[A] court
deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed as of the time of
counsel’s conduct.” 466 U.S. at 690. Strickland requires that “in light of all the
circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance.” 466 U.S. at 690.
Wilson must demonstrate that counsel’s alleged error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Strickland, 466 U.S. at 691. To meet this burden, Wilson must show
“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.” 466 U.S. at 694.
Wilson cannot meet his burden by showing that the avenue chosen by counsel
proved unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992).
Strickland cautions that “strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation.” Strickland, 466 U.S. at 690–91.

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Sustaining a claim of ineffective assistance of counsel under Section 2254(d)
is very difficult because “[t]he standards created by Strickland and § 2254(d) are both
‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”
Richter, 562 U.S. at 105. Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303
(11th Cir. 2019) (“Given the double deference due, it is a ‘rare case in which an
ineffective assistance of counsel claim that was denied on the merits in state court is
found to merit relief in a federal habeas proceeding.’”) (quoting Johnson v. Sec’y, Dep’t
Corrs., 643 F.3d 907, 911 (11th Cir. 2011)).
In denying Wilson’s Rule 3.850 motion for post-conviction relief, the state
court recognized that Strickland governs a claim of ineffective assistance of counsel.
(Respondent’s Exhibits 12 and 14) Because the state court rejected the grounds
based on Strickland, Wilson cannot meet the “contrary to” test in Section 2254(d)(1).
Wilson instead must show that the state court either unreasonably applied Strickland
or unreasonably determined the facts. In determining “reasonableness,” Section
2254(d) authorizes determining only “whether the state habeas court was objectively
reasonable in its Strickland inquiry” and not independently assessing whether
counsel’s actions were reasonable. Putman v. Head, 268 F.3d 1223, 1244 n.17
(11th Cir. 2001). The presumption of correctness and the highly deferential standard
of review require that the analysis of each ground begin with the state court’s
analysis.

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A. Grounds of IAC Before Trial
Ground Seven:
Wilson asserts that trial counsel was ineffective for coercing and intimidating
Wilson into testifying at his first trial. (Doc. 1 at 16–17) At Wilson’s retrial a court
reporter testified on behalf of the prosecution and read Wilson’s testimony from his
first trial. (Respondent’s Exhibit 4 at 364–415) The state appellate court reversed
Wilson’s conviction from his first trial because the self-defense instruction was
erroneous. Wilson v. State, 944 So. 2d 1244 (Fla. 2d DCA 2006).
The post-conviction court denied the claim as follows (Respondent’s Exhibit
14 at 4–6) (state court record citations omitted):
. . . Defendant alleges ineffective assistance of counsel for
coercing and intimidating Defendant to testify at his first trial.
Specifically, Defendant alleges that counsel told Defendant[,]
“If you don’t testify, you’re going to lose, so if you tell me that
you don’t want to testify, then I might as well quit and you
might as well plead guilty.” Defendant asserts that the State
used Defendant’s testimony throughout the second trial to
establish that Defendant gave an inconsistent version of how
the stabbing occurred. Defendant alleges that counsel’s errors
prejudiced the outcome of the trial and rendered the
proceedings fundamentally unfair.
At the evidentiary hearing, Defendant’s prior defense counsel
from his first trial testified that Defendant’s theory of defense
was that of self-defense, and that, as there were no other
witnesses to testify to such, the only way to present this would
be through Defendant’s testimony. Counsel testified further,
however, that he in no way threatened or coerced Defendant to
testify, nor told Defendant he would lose if he did not testify, as
Defendant alleges. Specifically, counsel testified as follows:
[Prosecutor]:

Did you ever tell the defendant if you
don’t testify you’re going to lose, so if you
tell me that you don’t want to testify then
I might as well quit and you might as well

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plead guilty? Did you ever say that to
him?
[Counsel]:

I don’t think I’ve ever told anybody that
I might as well quit on anything.

[Prosecutor]:

Did the defendant ever tell you he did not
want to testify?

[Counsel]:

No, because if he tells — if he said that
he — he didn’t have to testify. I’m sure
it was — I don’t specifically remember a
colloquy with the Court, but that’s pretty
much standard procedure. I would think
that occurred.

[Prosecutor]:

Okay. At any time did you force the
defendant to testify?

[Counsel]:

No.

[Prosecutor]:

Did you threaten him that he had to
testify?

[Counsel]:

No. No more than I told him, as I
just discussed earlier, that without his
testimony there was no self-defense in
the case, which is what he kept saying
and claiming as his defense.

[Prosecutor]:

Did you ever feel like you were coercing
the defendant to testify?

[Counsel]:

No.

The Court finds this testimony to be credible, and finds it
supported by the record wherein the trial court conducted an
inquiry of Defendant to ensure that his decision to testify was
made freely and voluntarily, without coercion. Specifically, the
record reflects the following colloquy:
[Court]:

Mr. Wilson, you understand that you
have the absolute right to testify. You also
understand that you have the absolute
right to remain silent, is that correct?

[Wilson]:

Yes.

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[Court]:

Do you understand both of those rights
that you have?

[Wilson]:

Yes.

[Court]:

And if you do testify this is a decision that
you would have made in consultation
with your lawyer?

[Wilson]:

Yes.

[Court]:

Okay. And so you are making the
decision to testify freely and voluntarily,
correct?

[Wilson]:

Yes.

[Court]:

Okay. And you — just to confirm, you
understand that you do not have to testify
in your own defense?

[Wilson]:

Yes.

The court finds Defendant’s allegations to be refuted, and
that counsel cannot be deemed deficient as alleged under
these circumstances. Consequently, Defendant warrants no
relief on this allegation, and [this ground] of his Motion for
Post-Conviction Relief must be denied.

The state court found trial counsel credible at the post-conviction evidentiary
hearing, and a state court’s finding of credibility receives deference in federal court.
Nejad v. Att’y Gen., State of Ga., 830 F.3d 1280, 1292 (11th Cir. 2016) (“Federal
habeas courts have no license to redetermine credibility of witnesses whose
demeanor has been observed by the state trial court, but not by them.”) (citation
and internal quotation marks omitted).
The state court accurately quoted both trial counsel’s testimony at the
evidentiary hearing and the colloquy between Wilson and the trial judge at the first

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trial. (Respondent’s Exhibit 13 at 51–52 and Exhibit 14, Transcript (May 25, 2005)
at 402–03) Trial counsel denied that he either threatened or coerced Wilson to testify
at his first trial. The colloquy confirms that Wilson freely and voluntarily testified.
Also, trial counsel testified that Wilson insisted that he acted in self-defense.
(Respondent’s Exhibit 13 at 49) Wilson’s infant son was not competent to testify
about what happened, and Harris — the victim — was dead. Fla. Stat. § 90.603.
(Respondent’s Exhibit 13 at 49) Only Wilson could have testified that he acted in
self-defense. (Respondent’s Exhibit 13 at 49–50) Trial counsel fittingly advised
Wilson that Wilson’s testimony was necessary to prove his claim of self-defense.
(Respondent’s Exhibit 13 at 49–50, 54)
Because the record refuted the claim, the state court did not unreasonably
deny the claim. Lott v. Att’y Gen., Fla., 594 F.3d 1296, 1302 (11th Cir. 2010); Waters
v. Thomas, 46 F.3d 1506, 1519 (11th Cir. 1995); Winfrey v. Maggio, 664 F.2d 550,
552–53 (5th Cir. Unit A 1981). Ground seven is denied.
B. Grounds of IAC During Trial
Ground Four:
Wilson asserts that trial counsel was ineffective for not objecting to the jury
instruction for the lesser included offense of manslaughter by act, which instruction
erroneously states that the prosecution had to prove that Wilson intended to cause
the death of Harris. (Doc. 1 at 9–10) Wilson contends that the evidence supported
the lesser included offense, and the erroneous instruction deprived him of the lesser
included offense at trial. (Doc. 1 at 10)

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The post-conviction court denied the claim as follows (Respondent’s
Exhibit 12 at 4) (state court record citations omitted):
. . . Defendant alleges fundamental error occurred when
the Court instructed the jury that the State had to prove
that Defendant intentionally caused the victim’s death in
order to find Defendant guilty of the lesser included offense
of manslaughter by act, or alternatively, ineffective assistance
of counsel for failing to object to an erroneous jury instruction
that told the jury that the State had to prove that Defendant
intentionally caused the death of the victim in order to
find Defendant guilty of the lesser included offense of
manslaughter by act. Specifically, Defendant alleges counsel
should have recognized that the language in the instruction
for manslaughter would prevent the jury from returning a
verdict for manslaughter unless they believed that Defendant
intentionally killed the victim. Defendant asserts that the
additional instruction of manslaughter by culpable negligence
could have also reasonably misled or confused the jury.
Defendant alleges that counsel’s errors prejudiced the outcome
of the trial and rendered the proceedings fundamentally unfair.
After reviewing the allegations, the court file, and the record,
the Court finds Defendant’s allegations are without merit.
Failure to object to a standard jury instruction that has not been
invalidated by the Florida Supreme Court is not ineffective
assistance. See Elledge v. State, 911 So. 2d 57, 77 (Fla. 2005);
Thompson v. State, 759 So. 2d 650, 665 (Fla. 2000) (holding that
it was not deficient for counsel to fail to object to a standard
jury instruction that had not been invalidated by the Florida
Supreme Court). The Court finds that the Court instructed the
jury on the standard jury instruction for manslaughter, and thus
counsel did not have a valid basis to object. Additionally,
“fundamental error is not a basis for postconviction relief.”
Moore v. State, 48 So. 3d 911, 912 (Fla. 2d DCA 2010) (citing
Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009)).
Accordingly, the Court finds Defendant is not entitled to any
relief on the allegations in [the claim].

The trial court instructed the jury on the lesser included offense of
manslaughter by act as follows (Respondent’s Exhibit 4 at 576–77):
To prove the lesser included crime of manslaughter the State
must prove the following two elements beyond a reasonable
doubt.
- 26 -

One. Michael A. Harris is dead.
Two. Dwayne Ricardo Wilson intentionally caused the death
of Michael A. Harris . . . .
However, the defendant cannot be guilty of manslaughter if the
killing was either justifiable or excusable homicide as I have
previously explained those terms.
...
In order to convict of manslaughter by intentional act it is not
necessary for the State to prove that the defendant had a
premeditated intent to cause the death.

The jury instruction tracked the standard jury instruction for manslaughter by
act at the time of trial. Fla. Std. Jury Instr. (Crim.) 7.7 (2007). Almost two years
after the state appellate court affirmed Wilson’s conviction (Respondent’s Exhibit 9),
State v. Montgomery, 39 So. 3d 252, 256–58 (Fla. 2010), held that the standard
instruction was erroneous. Before Montgomery, Florida’s Second District Court of
Appeal approved the standard instruction. Zeigler v. State, 18 So. 3d 1239, 1244–45
(Fla. 2d DCA 2009). Pardo v. State, 596 So. 2d 665, 667 (Fla. 1992) (“‘[I]f the district
court of the district in which the trial court is located has decided the issue, the trial
court is bound to follow it.’”) (citation omitted).
Because trial counsel’s performance is evaluated without the benefit of
hindsight and the trial court used the standard instruction approved by the state
appellate court at the time of trial, the state court did not unreasonably apply
Strickland. Strickland, 466 U.S. at 669 (“[A] fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
- 27 -

conduct from counsel’s perspective at the time.”); Rambaran v. Sec’y, Dep’t Corrs.,
821 F.3d 1325, 1334 (11th Cir. 2016) (“[W]e have held many times that reasonably
effective representation cannot and does not include a [r]equirement to make
arguments based on predictions of how the law may develop.”) (citation and
quotation marks omitted). Ground four is denied.
Ground Six:
Wilson asserts that trial counsel was ineffective for not cross-examining Felicia
Watson about the knife that she threw at Wilson. (Doc. 1 at 15–16) Felicia testified
that she went inside to get the knife in the kitchen. (Doc. 1 at 15) Wilson instead
contends that Harris attempted to stab Wilson with that knife, and Felicia took the
knife from Harris. (Doc. 1 at 15) Wilson asserts that trial counsel should have
shown on cross-examination that Felicia was lying. (Doc. 1 at 15–16)
The post-conviction court denied the claim as follows (Respondent’s Exhibit
14 at 2–4) (state court record citations omitted):
. . . Defendant alleges ineffective assistance of counsel for
failing to put the credibility of Ms. Felicia Watson in question
at Defendant’s second trial. Specifically, Defendant alleges
[Felicia] testified that she walked out of the house and saw the
victim lying on the ground[ ] dead. Defendant asserts [Felicia]
asked him “what did you do to him,” and that Defendant
responded with profanity. Defendant alleges [Felicia] testified
that she went back inside to get a knife, and then threw the
knife at Defendant. Defendant asserts that [Felicia] actually
picked up the knife the victim was using to try and stab
Defendant. Defendant alleges counsel’s failure to challenge
[Felicia’s] “absurd” testimony was prejudicial. Defendant
alleges that counsel’s errors prejudiced the outcome of the trial
and rendered the proceedings fundamentally unfair.
At the evidentiary hearing, Defendant testified that the victim
came at him with a knife and Defendant reacted. Defendant

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testified further that to his disbelief [ ] witness [Felicia] saw the
victim on the ground and then got a knife from inside the house
to throw at Defendant as he was leaving. Specifically,
Defendant testified as follows:
[Post-conviction counsel]:

[D]id she throw a knife?

[Wilson]:

Yes. She claimed that she ran
[into] the house and [threw] a
knife at me, but that’s kind of
hard to believe that she could
jump over a man [lying] there
in that little tight space and pick
up a knife and throw [it]. Now
what she did most likely [was]
pick that knife up that [the
victim] had and try to get rid of
it, try to cover up something.

[Post-conviction counsel]:

So you think she picked the
knife up that the victim had —

[Wilson]:

Yes.

[Post-conviction counsel]:

— and threw that knife at you?

[Wilson]:

She [threw] it to probably get
— she didn’t throw it at me,
she [threw] it to get rid of it
because the knife she [threw]
at me[,] the knife would have
been — it would [have]
land[ed] a lot further away
[than] where it landed [ ].

[Post-conviction counsel]:

But she threw a knife?

[Wilson]:

Yes.

[Post-conviction counsel]:

Okay. And then you left?

[Wilson]:

Yeah.

At the evidentiary hearing, both of Defendant’s prior defense
attorneys testified that nothing in the depositions or discovery
indicated that witness Felicia Watson had obtained the knife
from the victim, as Defendant alleges. Defendant’s prior

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defense attorney at Defendant’s second trial testified further
that his notes indicate that [Felicia] had retrieved the knife
from inside the home. Counsel testified also that, at trial, after
impeaching [Felicia] to bring out her bias and to show she was
not an eyewitness to the incident, counsel asked Defendant if
there were any other issues he wanted brought out, but that
Defendant said nothing about the knife, as he now alleges. Also
at the hearing, the State brought out that, at his first trial, when
questioned about the incident, Defendant said nothing about
[Felicia] picking up a knife from the victim and throwing it,
as he now alleges. The Court finds counsel’s testimony to be
credible, and finds it supported by the record wherein [Felicia’s]
depositions demonstrate that she had obtained the knife from
inside the house. Specifically, in her deposition, [Felicia] stated
as follows:
[Felicia]:

I ran in the house, I picked up the knife
and I threw it at [Wilson].

[. . .]
[Trial counsel]:

What kind of a knife did you pick up out
of the house and throw?

[Felicia]:

A kitchen knife that goes on the butcher
block.

[Trial counsel]:

Where was that located?

[Felicia]:

Where was it located at when? In the
house. In the kitchen on the countertop.

[Trial counsel]:

And is that countertop close to this
doorway that we’re talking about?

[Felicia]:

Yes, it’s probably about seven feet, I
guess. Maybe, if that. Probably about
seven feet.

[Trial counsel]:

And, I mean, is this part of the small steak
knife set of a big kitchen knife? What was
it?

[Felicia]:

Part of the butcher block, I don’t
remember. It’s like the next one to the
small one. I don’t remember what size
it is. It’s not large, I know that.

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The Court finds that, apart from Defendant’s own speculations
about the knife in his evidentiary hearing testimony, Defendant
has offered no other supporting evidence to demonstrate that
further questioning of [Felicia] at trial about where this knife
came from would have resulted in testimony that she picked up
the knife from the victim, as Defendant alleges, versus having
gone back into the home and retrieving the knife from the
kitchen, as her depositions and counsel’s notes reflect. The
Court finds that, under these circumstances, counsel cannot be
deemed deficient as alleged, nor has Defendant demonstrated
any prejudice as a result of counsel’s alleged deficiency. As
such, Defendant warrants no relief on this allegation, and [this
ground] of Defendant’s Motion for Post-Conviction Relief must
be denied.

The state court found trial counsel credible at the post-conviction evidentiary
hearing, and a state court’s finding of credibility receives deference in federal court.
Nejad, 830 F.3d at 1292. The state court accurately quoted testimony by Wilson at
the evidentiary hearing and testimony by Felicia at her deposition. (Respondent’s
Exhibit 13 at 11–12 and Exhibit 14, Transcript (Dec. 29, 2004) at 20, 25–26) Also,
the state court accurately summarized testimony by both trial attorneys at the
evidentiary hearing and testimony by Wilson at his first trial. (Respondent’s Exhibit
13 at 23–24, 28, 33–35, 37, 41, 47–48, 59–62)
At her deposition Felicia testified that she took the knife from the kitchen.
Because Felicia neither told police nor testified at her deposition that she took
the knife from the victim, trial counsel could not have impeached her with an
inconsistent statement. Fla. Stat. § 90.608(1). At the evidentiary hearing Wilson
denied that he saw Felicia throw the knife at him. (Respondent’s Exhibit 13 at 11)
Wilson neither told trial counsel nor testified at his first trial that Felicia picked up
the knife from the victim. Because no evidence in discovery tended to show that
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Felicia picked up the knife from the victim, trial counsel lacked good faith to
confront Felicia with that theory of the case. King v. State, 89 So. 3d 209, 224
(Fla. 2012) (“[Q]uestions asked during cross-examination must have a good-faith
basis.”). Finally, the claim was speculative because at the evidentiary hearing
Wilson presented no evidence that trial counsel could have used to impeach Felicia.
Hunt v. Comm’r, Ala. Dep’t Corrs., 666 F.3d 708, 723 (11th Cir. 2012) (“‘Absent a
showing that real impeachment evidence was available and could have been, but was
not, pursued at trial, [the petitioner] cannot establish that the cross conducted by his
attorneys fell outside the range of professionally competent assistance.’”) (citation
omitted).
Wilson asserts that trial counsel should have asked Felicia why she ignored
Harris who was dying and instead went inside to get a knife to throw at Wilson.
(Doc. 1 at 16) Wilson contends that Felicia’s testimony about the kitchen knife was
“absurd.” (Doc. 1 at 16) However, Felicia testified that she saw both Harris lying
on the ground and Wilson walking to his car. (Respondent’s Exhibit 4 at 199, 202)
Felicia did not see any blood around Harris. (Respondent’s Exhibit 4 at 204)
Felicia asked Wilson, “What did you do to him?” (Respondent’s Exhibit 4 at 203)
Wilson called Felicia a “b*tch,” and Felicia became upset, ran inside, got the knife,
went back outside, and threw the knife at Wilson. (Respondent’s Exhibit 4 at 203,
205) After Wilson left, Felicia went to Harris and asked him what was wrong.
(Respondent’s Exhibit 4 at 205) Felicia noticed that Harris’s eyes were “rolling,”
and blood gushed out of his neck. (Respondent’s Exhibit 4 at 205–06)

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Felicia ran inside and got the knife from the kitchen unaware of the extent of
Harris’s injuries. Even if trial counsel had asked Felicia why she ignored Harris and
instead went inside to get a knife to throw at Wilson, the outcome at trial would not
have changed. Strickland, 466 U.S. at 694. Consequently, the state court did not
unreasonably apply Strickland. Ground six is denied.
VI. CONCLUSION
Wilson’s application for the writ of habeas corpus (Doc. 1) is DENIED. The
clerk must enter a judgment against Wilson and CLOSE this case.
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Because Wilson fails to demonstrate either a substantial showing of the
denial of a constitutional right or that reasonable jurists would debate either the
merits of the grounds or the procedural issues, a certificate of appealability and leave
to appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel,
529 U.S. 473, 478 (2000). Wilson must obtain permission from the court of appeals
to appeal in forma pauperis.
ORDERED in Tampa, Florida, on March 31, 2021.

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