McKenzie v. Secretary, Department of Corrections et al
ORDER that McKenzie's petition is denied. The Clerk is directed to enter judgment against McKenzie and to close this case. COA and IFP on appeal denied. Signed by Judge Virginia M. Hernandez Covington on 9/16/2016. (MLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JAMEL M. McKENZIE,
Case No. 8:15-cv-1531-T-33JSS
Petitioner Jamel M. McKenzie, a state of Florida inmate proceeding pro se, initiated
this action by filing a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.)
He challenges his convictions entered by the Circuit Court for the Tenth Judicial Circuit in
and for Polk County, Florida. Respondent filed a response (Doc. 17), in which it agrees
that the habeas petition is timely. McKenzie did not file a reply. Upon review, the petition
must be denied.
The State charged McKenzie with second degree murder of Jerret Cole (count one),
attempted second degree murder of Edward Turner (count two), and possession of a
firearm by a minor (count three). (Doc. 19, Ex. 1, Vol. I, pp. 13-14.) A jury acquitted
McKenzie of count one but convicted him of counts two and three. (Id., pp. 96-98.) He
was sentenced to concurrent terms of twenty-five years in prison on count one, and one
year of incarceration on count two. (Id., pp. 156-62.) The state appellate court per curiam
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affirmed McKenzie’s convictions and sentences. (Doc. 19, Ex. 14.)
McKenzie filed a motion for postconviction relief under Florida Rule of Criminal
Procedure 3.850, followed by a supplemental motion. (Doc. 19, Exs. 18, 20.) The state
court summarily denied his motions. (Doc. 19, Exs. 21, 23.) The state appellate court per
curiam affirmed the denial of postconviction relief. (Doc. 19, Ex. 26.)
McKenzie had a group of acquaintances that included Jerret “J-Rod” Cole and “KG”
or “Ken G.”2 Other individuals, including Edward Turner, Gabriel Polynice, Lindsy “Calin”
Buckner, Antonio “Fat Tony” Buckner, and Josh Murray, were part of a different group
sometimes referred to as the “Turner Boys.”
Some tension existed between the two groups. Antonio Buckner testified that he
and McKenzie had had “run ins.” He testified that on October 4, 2008, when he arrived at
a football game in which McKenzie was playing, McKenzie was mad and left. That night,
hundreds of people attended a birthday party at a recreation center in Winter Haven.
Polynice and Lindsy Buckner testified that Lindsy Buckner had a problem with McKenzie’s
friend KG at the party. Similarly, McKenzie’s cousin Derrick Munson testified to friction
between the groups at and after the party. He stated that some members of the other
group wanted to fight McKenzie and his friends. He further testified that Polynice and
Lindsy Buckner angrily approached either McKenzie or his friends, trying to fight, but that
the confrontation was broken up.
This factual summary is derived from the trial transcript and the briefs filed on direct appeal.
KG was not identified by his full name and did not testify at trial.
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Antonio Buckner also testified that he had some problems with KG at the party and
that KG tried to get him to fight. Antonio Buckner and Lindsy Buckner both testified that,
when the party was over, an exchange occurred between KG and Polynice at the window
of Polynice’s car.
When the crowd dispersed, many people moved away from the
recreation center down Avenue T towards a convenience store referred to as Crenshaws.
Munson testified that as McKenzie, Cole, and KG walked ahead of him towards
Crenshaws, some members of the Turner Boys drove by and were harassing and “trash
talking” McKenzie and his friends. Munson claimed they said they would “get you all, beat
you all up.”
The crowd around Crenshaws was estimated at one to two hundred people.
Numerous witnesses agreed that a fight was expected there. Edward Turner admitted that
people were “fixing to fight” at Crenshaws. Lindsy Buckner stated that Polynice and KG
were getting ready to fight each other and further testified that he was “most likely”
expecting to get in a fight. Antonio Buckner stated that he “figured” a fight would take
Antonio Buckner testified that he and McKenzie “exchanged words” at Crenshaws.
He further testified that upon seeing this, Lindsy Buckner became angered and punched
McKenzie’s friend Jerret Cole, knocking Cole to the ground. Many witnesses agreed that
Lindsy Buckner punched Cole without provocation from Cole. According to Polynice,
Lindsy Buckner also had words with KG. As Cole got up, witnesses heard gunshots.
Numerous witnesses testified that they observed McKenzie shooting a gun; Munson
testified that he also saw Josh Murray fire a gun. Cole was struck by a bullet and died as
a result. Edward Turner, who was crouching by his car, was shot through the arm,
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although he initially did not realize he had been injured.
Defense witnesses Jerica Dixon, Lanelle Williams, and Deandre Evans testified that
they did not see McKenzie with a gun that night, and Evans testified that McKenzie did not
fire a gun. Defense witness Jerkeisha Barton testified that the shots she heard made two
distinct sounds, as if two people were shooting. Evans also testified that he believed there
might have been two different shootings, although he stated all the shooting sounded
STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this
proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert.
denied, 531 U.S. 840 (2000). Habeas relief can only be granted if a petitioner is in custody
“in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Section 2254(d), which sets forth 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(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) 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.
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this
In sum, § 2254(d)(1) places a new constraint on the power of a federal
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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
§ 2254(d)(1), the writ may issue only if one of the following two conditions is
satisfied–the state-court adjudication resulted in a decision that (1) “was
contrary to . . . clearly established Federal Law, as determined by the
Supreme Court of the United States” or (2) “involved an unreasonable
application of . . . clearly established Federal law, as determined by the
Supreme Court of the United States.” 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, 694 (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). Accord Brown
v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the objective reasonableness, not the
correctness per se, of the state court decision that [the federal court is] to decide.”). 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.
The purpose of federal review is not to re-try the case. “The [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
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extent possible under law.” Cone, 535 U.S. at 693. In other words, “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). See also 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
The state appellate court denied relief of McKenzie’s claims without discussion. The
court’s decisions warrant deference under Section 2254(d)(1) because “the summary
nature of a state court's decision does not lessen the deference that it is due.” Wright v.
Moore, 278 F.3d 1245, 1254 (11th Cir.), reh’g and reh’g en banc denied, 278 F.3d 1245
(2002), cert. denied sub nom. Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562
U.S. at 99 (“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.”).
Review of the state court decision is limited to the record that was before the state
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.
Pinholster, 563 U.S. at 181-82. McKenzie bears the burden of overcoming by clear and
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convincing evidence a state court factual determination. “[A] determination of a factual
issue made by a State court shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1). This presumption of correctness 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.),
cert. denied, 534 U.S. 1046 (2001).
EXHAUSTION OF STATE COURT REMEDIES; PROCEDURAL DEFAULT
Before a district court can grant habeas relief to a state prisoner under § 2254, the
petitioner must exhaust all state court remedies that are available for challenging his
conviction, either on direct appeal or in a state postconviction motion.
§ 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner
must give the state courts an opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition.”). See also Henderson v. Campbell, 353 F.3d
880, 891 (11th Cir. 2003) (“A state prisoner seeking federal habeas relief cannot raise a
federal constitutional claim in federal court unless he first properly raised the issue in the
state courts.”) (citations omitted). A state prisoner “‘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,’ including review by the state’s court of last
resort, even if review in that court is discretionary.” Pruitt v. Jones, 348 F.3d 1355, 1358-59
(11th Cir. 2003) (quoting O’Sullivan, 526 U.S. at 845).
To exhaust a claim, a petitioner must make the state court aware of both the legal
and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.
1998) (“Exhaustion of state remedies requires that the state prisoner ‘fairly presen[t] federal
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claims to the state courts in order to give the State the opportunity to pass on and correct
alleged violations of its prisoners’ federal rights.’”) (quoting Duncan v. Henry, 513 U.S. 364,
365 (1995)). A federal habeas petitioner “shall not be deemed to have exhausted the
remedies available in the courts of the State . . . if he has the right under the law of the
State to raise, by any available procedure, the question presented.” Pruitt, 348 F.3d at
1358. The prohibition against raising an unexhausted claim in federal court extends to both
the broad legal theory of relief and the specific factual contention that supports relief.
Kelley v. Sec’y, Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004). The requirement of
exhausting state remedies as a prerequisite to federal review is satisfied if the petitioner
“fairly presents” his claim in each appropriate state court and alerts that court to the federal
nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76
The doctrine of procedural default provides that “[i]f the petitioner has failed to
exhaust state remedies that are no longer available, that failure is a procedural default
which will bar federal habeas relief, unless either the cause and prejudice or the
fundamental miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d
1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner “must
demonstrate that some objective factor external to the defense impeded the effort to raise
the claim properly in state court.” Wright v. Hopper, 169 F. 3d 695, 703 (11th Cir. 1999).
See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must
demonstrate not only that the errors at his trial created the possibility of prejudice but that
they worked to his actual and substantial disadvantage and infected the entire trial with
error of constitutional dimensions. United States v. Frady, 456 U.S. 152, 170 (1982). The
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petitioner must show at least a reasonable probability of a different outcome. Henderson,
353 F.3d at 892; Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).
Alternatively, a petitioner may obtain federal habeas review of a procedurally
defaulted claim if review is necessary to correct a fundamental miscarriage of justice.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96.
fundamental miscarriage of justice occurs in an extraordinary case where a constitutional
violation has probably resulted in the conviction of someone who is actually innocent.
Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892. This exception
requires a petitioner’s “actual” innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th
Cir. 2001). To meet this standard, a petitioner must show a reasonable likelihood of
acquittal absent the constitutional error. Schlup, 513 U.S. at 327.
INEFFECTIVE ASSISTANCE OF COUNSEL
Claims of ineffective assistance of counsel are analyzed under the test set forth in
Strickland v. Washington, 466 U.S. 668 (1984):
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. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
performance “requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
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Strickland, 466 U.S. at 687. Deficient performance is established if, “in light of all the
circumstances, the identified acts or omissions [of counsel] were outside the wide range
of professionally competent assistance.” Id. at 690. However, “counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Id. Additionally, “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.” Id.
McKenzie 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.” Id. at 691-92. To show prejudice, a petitioner must demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. A petitioner cannot meet his burden merely by
showing that counsel’s choices were unsuccessful:
The test has nothing to do with what the best lawyers would have done. Nor
is the test even what most good lawyers would have done. We ask only
whether some reasonable lawyer at the trial could have acted, in the
circumstances, as defense counsel acted at trial . . . . We are not interested
in grading lawyers’ performances; we are interested in whether the
adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers, in
every case, could have done something more or something different. So, omissions are
inevitable . . . . [T]he issue is not what is possible or ‘what is prudent or appropriate, but only
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what is constitutionally compelled.’”) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794
Sustaining a claim of ineffective assistance of counsel on federal habeas review is
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 (citations omitted). See also Pinholster, 563 U.S. at 202 (a petitioner must overcome
the “‘doubly deferential’ standard of Strickland and AEDPA.”).
If a claim of ineffective assistance of counsel can be resolved through one of the
Strickland test’s two prongs, the other prong need not be considered. 466 U.S. at 697
(“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address
both components of the inquiry if the defendant makes an insufficient showing on one.”);
Sims, 155 F.3d at 1305 (“When applying Strickland, we are free to dispose of
ineffectiveness claims on either of its two grounds.”).
Grounds One and Two
In Ground One, McKenzie argues that the trial court erred in denying his motion for
judgment of acquittal, resulting in a federal due process violation. In Ground Two,
McKenzie asserts that the trial court erred in adjudicating him guilty of attempted second
degree murder, violating his federal due process rights, because the State presented
insufficient evidence of guilt. Grounds One and Two are consolidated and considered as
raising a substantive federal due process challenge to the sufficiency of the State’s
evidence for both of his convictions.
Possession Of A Firearm By A Minor
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On January 11, 2010, McKenzie was sentenced to one year of incarceration on this
charge. Respondent asserts that because McKenzie’s sentence had expired by the time
he filed his federal habeas petition on June 29, 2015, he does not meet the “in custody”
requirement of § 2254 with respect to this conviction. The Supreme Court has “interpreted
the statutory language as requiring that the habeas petitioner be ‘in custody’ under the
conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490
U.S. 488, 490-91 (1989) (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)).
Consequently, the Court lacks jurisdiction to consider McKenzie’s claim to the extent it
involves his conviction for possession of a firearm by a minor.3
Attempted Second Degree Murder
On direct appeal, McKenzie exhausted a substantive federal due process claim
challenging the sufficiency of the evidence presented to convict him of attempted second
degree murder.4 The Due Process Clause of the Fourteenth Amendment prohibits a
criminal conviction “except upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime.” In re Winship, 397 U.S. 358, 364 (1970). The Supreme Court
established the standard of review in a federal habeas corpus proceeding in which a
petitioner challenges the sufficiency of the evidence:
Furthermore, the claim would be barred from review. It is unexhausted because on direct appeal,
McKenzie did not challenge the sufficiency of the evidence to convict him of possession of a firearm by a
minor. (Doc. 19, Ex. 10, pp. 5-11.) State procedural rules do not provide for successive direct appeals. See
Fla. R. App. P. 9.140. Therefore, the claim is procedurally defaulted. See Smith, 256 F.3d at 1138. McKenzie
does not establish the applicability of an exception to overcome the default.
McKenzie makes a vague allegation of a procedural due process violation but does not elaborate
on his assertion. Any procedural due process argument is unexhausted due to McKenzie’s failure to raise it
on direct appeal. (Doc. 19, Ex. 10, pp. 5-11.) Because he cannot return to state court to file a second direct
appeal, the claim is procedurally defaulted. See Smith, 256 F.3d at 1138. McKenzie does not argue or
demonstrate than an exception applies to overcome the default.
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We hold that in a challenge to a state criminal conviction brought under 28
U.S.C. § 2254 – if the settled procedural prerequisites for the claim have
otherwise been satisfied – the applicant is entitled to habeas corpus 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). Sufficiency of the evidence claims are
governed by the substantive elements of a criminal offense as defined by state law.
Jackson, 443 U.S. at 324 n.16. “Although each element of the offense must be established
beyond a reasonable doubt, see Bishop v. Kelso, 914 F.2d 1468, 1470 (11th Cir. 1990),
the State is not required to rule out every hypothesis except that of the guilt of the
defendant, see Jackson, 443 U.S. at 326.” Johnson v. Alabama, 256 F.3d 1156, 1172
(11th Cir. 2001). If the record contains facts supporting conflicting inferences, the jury is
presumed to have resolved those conflicts in favor of the State and against the defendant.
Id. Accordingly, federal courts must defer to the judgment of the jury in assigning credibility
to witnesses and weighing the evidence. Id.
The court instructed the jury that, in order to prove attempted second degree murder
of Edward Turner:
[T]he State must prove the following two elements beyond a reasonable
doubt. Number one, Jamel Maurice McKenzie intentionally committed an act
which would have resulted in the death of Edward Turner except that
someone prevented the Defendant from killing Edward Turner, or he failed
to do so. Number two, the act was imminently dangerous to another and
demonstrating a depraved mind without regard for human life. An act
includes a series of related actions arising from and performed pursuant to
a single design or purpose. An act is imminently dangerous to another and
demonstrating a depraved mind, if it is an act or series of acts that, number
one, a person of ordinary judgment would know is reasonably certain to kill
or do serious bodily injury to another; and, two is done from ill will, hatred,
spite, or evil intent; and three, is of such a nature that the act itself indicates
an indifference to human life. In order to convict of attempted second degree
murder it is not necessary for the State to prove the Defendant had an intent
to cause death.
Page 13 of 26
(Doc. 19, Ex. 1, Vol. VI, p. 689.)
McKenzie asserts that the State failed to prove he had any ill will toward the victim,
Edward Turner.5 Preliminarily, Florida law suggests that the act of firing a weapon into a
crowd in itself may demonstrate ill will. See Pressley v. State, 395 So.2d 1175, 1177 (Fla.
3d DCA 1981) (“Clearly, a person of ordinary judgment would know that firing a loaded gun
toward a group of people is reasonably certain to kill or do serious bodily injury to another.
Appellant’s acts also indicated an indifference to human life and demonstrated ill will. Even
though a defendant has no intent to hit or kill anyone, firing a gun into a crowd of people
constitutes second degree murder when a person is killed as a result.”).
Moreover, McKenzie does not establish that, under Florida law, the State was
required to show ill will against the particular person who was injured when he fired into a
crowd. On appeal, the State relied heavily on Hooker v. State, 497 So.2d 982 (Fla. 2d DCA
1986). The court in Hooker upheld a second degree murder conviction when the defendant
shot into a trailer he believed to be occupied after he went “to the area with the avowed
purpose of looking for Mexicans to run out of town.” Id. at 983. Thus, although the court’s
opinion gave no indication that Hooker harbored ill will towards the particular occupant of
the trailer who was shot, his ill will towards a group of people was sufficient to sustain the
conviction. Cf. Michelson v. State, 805 So.2d 983, 985 (Fla. 4th DCA 2001) (“Upon review
of the record, we hold there is no evidence of ‘ill will, hatred, spite, or evil intent’ directed
at the victim, or at any other person, and therefore, the second degree murder conviction
cannot stand.”) (emphasis added).
Turner testified that he had no problems with McKenzie, and that McKenzie did not aim the gun at
him. (Doc. 19, Ex. 1, Vol. III, pp. 314, 316-17.)
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“In most cases . . . intent must be inferred from the circumstances.” Perez v. State,
187 So.3d 1279, 1282 (Fla. 1st DCA 2016) (addressing the state of mind necessary to
demonstrate second degree murder). The State presented evidence reflecting tension
between the two groups and showing that, prior to the shooting, McKenzie experienced
problems with some of the Turner Boys who were present at Crenshaws. Specifically,
McKenzie had a problem with Antonio Buckner earlier in the day at the football game and
“exchanged words” with him at Crenshaws. The State also presented evidence that
members of the Turner Boys wanted to fight McKenzie or his friends at the party, and
engaged in harassment and “trash talking” while McKenzie and his friends walked to
Crenshaws. Thus, the State presented evidence from which the jury could find that
McKenzie had ill will towards members of the Turner Boys who were in the crowd at
McKenzie further asserts that the State failed to present ballistics evidence that he
shot Edward Turner, and points to witness testimony that he was not seen aiming at any
particular person when he fired the gun. In support of his argument, McKenzie alleges that
Turner also fired a gun. The trial transcript contains no suggestion that Turner fired a gun
and shot himself in the arm. It appears that McKenzie refers to Derrick Munson’s testimony
that Josh Murray, who was associated with the Turner Boys, also fired a gun at Crenshaws,
and now argues that it might have been Murray who shot Turner.
However, the State presented evidence that McKenzie fired a gun into the crowd.
Numerous witnesses testified that they saw McKenzie do so. (Doc. 19, Ex. 1, Vol. III, pp.
267, 272-73, 293-95, 315-16, 321; Vol. IV, pp. 377, 438-41.) Additionally, crime scene
technician Stacey Greatens testified that six “Winchester .45 auto spent casings” were
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recovered at the scene, and that no other shell casings were found. (Doc. 19, Ex. 1, Vol.
IV, p. 493; Vol. V, pp. 494, 498.) Munson testified that McKenzie showed him a .45
handgun earlier that day. (Doc. 19, Ex. 1, Vol. IV, pp. 363-64.)6
Therefore, State presented evidence from which the jury could conclude that
McKenzie shot Turner. In addition, while the jury heard some testimony that there was
another shooter, the jury is presumed to have resolved any conflicting inferences from the
evidence in favor of the State and against McKenzie. See Johnson, 256 F.3d at 1172.
McKenzie fails to show that no rational trier of fact could have found proof of guilt
beyond a reasonable doubt. Therefore, he has not demonstrated that the state court’s
rejection of his claim was contrary to or an unreasonable application of clearly established
federal law, or was based on an unreasonable determination of the facts. Grounds One
and Two do not warrant relief.
McKenzie alleges that trial counsel was ineffective for failing to sufficiently argue the
motion for judgment of acquittal at the conclusion of the State’s case. In moving for a
judgment of acquittal after the State rested, counsel argued that no evidence directly
showed it was McKenzie who shot Turner, and that circumstantial evidence suggested
Murray might have fired the bullet that hit Turner:
As to Count Two, Mr. Turner didn’t realize he was shot until afterwards,
although he said, yes, I saw him shoot. As to Mr. Turner, we have heard no
testimony, direct testimony, that, yes, I saw him shoot Mr. Turner. It is limited
circumstantial evidence, um, with a bullet wound, but no direct testimony that
it ricocheted from Josh Murray. So, as to Count Two, I move for Judgment
of Acquittal based on the lack of evidence to prove that, and the conflict in
There was no evidence establishing what type of firearm caused Turner’s injury.
Page 16 of 26
(Doc. 19, Ex. 1, Vol. V, p. 516.)
The court denied the motion, stating that “the fact that [Turner] didn’t realize that he
had been shot doesn’t change the fact that he was shot. There is sufficient evidence that
the Defendant had a gun and was shooting it in that general direction. And that is a
question of fact for the Jury.” (Id., p. 517.)
McKenzie now contends that counsel should have argued that his firing the weapon
was merely an “impulsive overreaction” to Cole’s being hit by Lindsy Buckner and to
imminent danger to McKenzie,7 but that such an “impulsive overreaction” is insufficient to
create ill will under Florida law. The state court rejected this claim when McKenzie raised
it in his postconviction motion. After discussing the facts of the case, the state court found:
9. With these facts in mind the Court returns to Defendant’s legal argument.
Defendant cites a number of cases in which a second-degree murder
conviction was reversed with instructions to enter a judgment for
manslaughter, where the evidence indicated the defendants had overreacted
to some sort of provocation. The Court, having read these cases and
numerous others, perceives a common thread running between them. First,
the record evidence in the published cases seems to have been the subject
of little or no dispute. The importance of this consideration cannot be
understated. . .
10. Moreover, if one scans this body of case law it is readily apparent that
in all the cases the decedent was shown to be the initial aggressor, under
circumstances suggesting that the defendants at worst overreacted in self7
To the extent McKenzie may attempt to argue that counsel should have included a self-defense
argument in his motion for judgment of acquittal, and assuming this portion of his claim is exhausted,
McKenzie is not entitled to relief. Counsel raised self-defense when he renewed the motion for judgment of
acquittal at the close of the defense’s case, after defense witnesses testified concerning whether two rounds
of gunshots took place. He stated, “As to the second Count I think it was clear there was a gunfight going on.
If in fact Mr. McKenzie was shooting he was shooting in self defense.” (Doc. 19, Ex. 1, Vol. V, p. 601.) The
court found “sufficient issue for the Jurors to make a determination.” (Id.) McKenzie fails to show a
reasonable probability the result of the proceeding would have been different had counsel raised a selfdefense argument at the conclusion of the State’s case. McKenzie therefore does not meet the standard set
forth in § 2254(d) and is not entitled to relief.
Page 17 of 26
defense. . . . Where there is evidence the defendant was the aggressor, a
different outcome has been reached on appeal.
11. In the present case certain important facts are disputed, but as noted
above these generally involve the issue whether Defendant had a gun at all,
as opposed to his motivation for firing that gun. He did not claim to have
been defending himself, or to have been defending his friend Jerret Cole.
Neither did either side present evidence that, Defendant’s silence
notwithstanding, would call for a conclusion that the use of deadly force on
Cole’s behalf would have been reasonable, since Cole was struck only once
during a fistfight. The Court is particularly concerned that Defendant is now
attempting to advance a theory of defense different than the one used at trial.
12. Defendant also presents an alternative theory, which is that the evidence
failed to show the requisite degree of malice necessary to support murder in
the second degree. His leading case authority is Light v. State, 841 So.2d
623 (Fla. 2d DCA 2003). . . . Although the Court of Appeal may have found
Light’s behavior to have been extremely reckless, it also noted that this fact
alone cannot support a conviction for second-degree murder. The appellate
court’s analysis notes the difficulty that may be experienced when drawing
a line between murder and manslaughter. The deciding factor appears to be
that the evidence proved no more than Light having experienced “a serious,
momentary misjudgment concerning the amount of force than was
permissible.” If so, then Light is really another “excessive self-defense” and
the history, or lack of same, between the protagonists was a fact to be
afforded relatively little weight, at least standing alone.
13. Defendant maintains that the evidence is lacking that he had any
particular grudge against Edward Turner, not to mention the fact it is
undisputed that he and Cole were friends. Again, he relies primarily upon
Light, in which the defendant and victim did not know one another. In this
opinion the Court of Appeal did observe that second-degree murder cases
most commonly involve persons who have developed a feeling of personal
enmity toward the victim, a situation requiring “more than an instant” to
develop. . .
14. However, as even the Light panel acknowledges, there are exceptions
to the notion that a sour relationship must exist between the defendant and
the victim, Black [v. State, 95 So.3d 884 (Fla. 2d DCA 2012)] obviously being
one of these. In fact, in Black the appellate court took the time to point out
that second-degree murder convictions can be had, under the right
circumstances, where the parties are complete strangers. [FN] In the present
case the evidence, while inconsistent on this precise question, showed some
degree of hostility between Defendant and his friends versus the people
Page 18 of 26
associated with Tucker [sic], existing prior to the shooting and even the party
before the shooting (where some witnesses said words were passed). One
of those in the second crowd was Lindsy Buckner, who by his own admission
struck J[e]rret Cole without particular justification. That it was Tucker [sic]
and Cole who were shot in the ensuing melee, and not Buckner, is irrelevant
if all these persons were standing in a closely-packed crowd. . . . In sum, this
Court concludes that the Defendant’s claim of ineffective counsel is
conclusively refuted by the available record.
[FN] Another opinion worth mentioning in some detail is Hooker
v. State, 497 So.2d 982 (Fla. 2d DCA 1986), rev. denied, 506
So.2d 1041 (Fla. 1987), in which the defendant was one of
several persons who went to a trailer park with the stated goal
of “run[ning] Mexicans out of town.” In the course of this
crusade he fired a gun into a trailer he had reason to know was
occupied, killing the victim, a migrant farm worker from
Guatemala. Despite the apparent lack of animosity toward the
victim as an individual, the conviction was affirmed. It is likely
the appellate court perceived a general spirit of ill will deriving
from the defendant’s racism. Light, supra, at 841 So.2d 626.
(Doc. 19, Ex. 21, pp. 4-6) (emphasis in original).
The record supports the denial of this claim. McKenzie is correct that Florida courts
have held an “impulsive overreaction” to an attack is insufficient to establish the state of
mind necessary to sustain a conviction for second degree murder. See Dorsey v. State,
74 So.3d 521, 524 (Fla. 4th DCA 2011) (“Florida courts have held that an impulsive
overreaction to an attack or injury is itself insufficient to prove ill will, hatred, spite, or evil
intent.”) (citing Light v. State, 841 So.2d 623, 626 (Fla. 2d DCA 2003) and McDaniel v.
State, 620 So.2d 1308 (Fla. 4th DCA 1993)); see also Perez, 187 So. 3d at 1282 (“To
establish that the defendant acted with a depraved mind, the State must present evidence
of circumstances showing more than an ‘impulsive overreaction’ to an attack.”) (citing Wiley
v. State, 60 So.3d 588, 591 (Fla. 4th DCA 2011)).
However, McKenzie does not show counsel was ineffective for not presenting this
Page 19 of 26
argument as part of his motion for judgment of acquittal. Not every overreaction precludes
a second degree murder conviction. See Perez, 187 So.3d at 1282 (“While the evidence
showed that the shooting was a response, and indeed an overreaction, to [the victim’s]
challenge to a fight, the witnesses’ testimony provided a basis from which the jury could
find that Appellant’s reaction was more deliberate than impulsive.”). Moreover, as the state
court’s order suggests, the prosecution presented evidence of existing animosity between
McKenzie and members of the Turner Boys who were in the crowd, thereby supporting the
conclusion that McKenzie harbored ill will necessary to sustain a conviction. Because the
State presented this independent basis to sustain his conviction, McKenzie does not show
a reasonable probability that the court would have granted his motion for judgment of
acquittal had counsel raised an “impulsive overreaction” argument. See Morgan v. State,
127 So.3d 708, 718 (Fla. 5th DCA 2013) (“Courts should not grant a motion for judgment
of acquittal unless there is no view of the evidence which the jury might take favorable to
the opposite party that can be sustained under the law.”) (citing DeAngelo v. State, 616
So.2d 440, 442 (Fla. 1993)).
McKenzie has not demonstrated that the state court’s rejection of his claim was
contrary to, or an unreasonable application of, clearly established federal law or was based
on an unreasonable determination of the facts. He is not entitled to relief on Ground Four.
McKenzie, who was sixteen years old at the time of the offenses, contends that trial
counsel was ineffective for not adequately arguing for a youthful offender sentence.
Typically, a court has discretion to sentence a qualified defendant as a youthful offender.
See § 958.04(1), Fla. Stat.; Simpkins v. State, 784 So.2d 1203, 1204 (Fla. 2d DCA 2001)
Page 20 of 26
(“The decision whether to sentence a defendant as a youthful offender is discretionary with
the trial court.”). The maximum permissible prison term under Florida’s youthful offender
provisions is six years. § 958.04(2)(d), Fla. Stat.
The State argued, however, that the court was required to sentence McKenzie under
Florida’s 10/20/Life statute. This statute provides in relevant part that an offender who, in
the course of committing attempted murder, discharges a firearm resulting in injury to
another shall be sentenced to a minimum term of not less than twenty-five years in prison.
§ 775.087(2)(a) Fla. Stat.8
The court also heard McKenzie’s statements at the sentencing hearing, as well as
the testimony of eight witnesses who spoke on his behalf. The court sentenced McKenzie
THE COURT: Alright. Jamel McKenzie you were previously found Guilty, by
jury, Attempted Second Degree Murder and uh - - there’s a First Degree
Felony punishable by uh - - 30 years in State Prison. And Possession of a
Firearm by a Minor - - First Degree misdemeanor punishable by up to one
year in the Polk County Jail. Mr. McKenzie this was a very foolish thing, not
having a gun in your hand would have avoided this whole situation all
together. Uh - - heard today from one person after another when they got up
here that you’re [a] well behaved child, that you were a great athlete, had lots
of potential, everyone - - I think to a person who took the stand today was
surprised to hear about this incident and stated that it was out of character
for you. And uh - - just about everyone also said [he or she] thought you
were redeemable. That you were a good person, had a good heart, have a
chance to make something of yourself. It’s a sad case because this uh - serious [sic] of events ended up with your friend J[e]rret Cole being killed.
Jury did not find you Guilty of that. Nothing of the less the serious [sic] of
events ended up in Mr. Cole dying. And uh - - nothing that ever happens is
going to bring him back.
But this case isn’t about that, this is about the Attempted Second
Degree Murder and uh - - while you - - stated you - - you didn’t intend to uh -
The jury found that during the commission of the offense, McKenzie discharged a firearm, causing
great bodily harm to Edward Turner. (Doc. 19, Ex. 1, Vol. I, p. 97.)
Page 21 of 26
- for any of this to happen. You did take a gun. You did fire that gun. You
did cause great bodily harm to Edward Turner. For that cause uh - - I have
to adjudicate you Guilty and sentence you to uh - - minimum mandatory of
25 years in Florida State Prison. Uh - - as to Count Three Possession of a
Firearm by a Minor, I adjudicate you Guilty; sentence you to one year to run
As to what everyone said about you being redeemable you will have
the time after you get out of prison to spend uh - - doing other things. The life
is uh - - about choices we make and no one will ever know everything that
led you to get to the point of making the decision to taking that gun and
firing that night. The statute is clear as to - - the minimum mandatory for an
adult sentence in this case is 25 years and that’s what I’m sentencing you
to. . .
(Doc. 19, Ex. 1, Vol. I, pp. 146-47.)
The parties’ arguments at the sentencing hearing focused on Florida’s statutory
provisions concerning available sentences for juveniles prosecuted as adults. McKenzie
argues that counsel was ineffective for inadequately presenting his argument because he
failed to address case law providing that a court can impose a youthful offender sentence
instead of the minimum mandatory term required by the 10/20/Life statute. See Bennett
v. State, 24 So.3d 693, 694 (Fla. 1st DCA 2009) (“[T]here is well-established case law
. . . which holds that a trial court has the option of avoiding a 10/20/Life sentence, and may
instead impose a youthful offender sentence.”); Ruth v. State, 949 So.2d 288, 290 (Fla. 1st
DCA 2002) (“[A] trial court may sentence a defendant to a youthful offender sentence in lieu
of the 10/20/life statute’s minimum mandatory requirements.”) (citing State v. Drury, 829
So.2d 287 (Fla. 1st DCA 2002)); Wooten v. State, 782 So.2d 408, 409-10 (Fla. 2d DCA
2001) (minimum mandatory provisions of the 10/20/Life statute do not supersede a youthful
McKenzie raised this claim of ineffective assistance of counsel in his postconviction
motion. The state court identified McKenzie’s ineffective assistance claim. (Doc. 19, Ex.
Page 22 of 26
21, pp. 6-7.) In rejecting his motion, it agreed with the State’s response. (Doc. 19, Ex. 23.)
That response also noted that McKenzie alleged ineffective assistance, but concluded that
McKenzie was not entitled to postconviction relief because any allegation that the trial court
erred in sentencing McKenzie should have been raised on direct appeal.9
In denying postconviction relief, the state court did not expressly discuss McKenzie’s
ineffective assistance argument. The state appellate court per curiam affirmed the order
of denial. The state courts’ silent rejection of McKenzie’s ineffective assistance claim,
however, is presumed to constitute a ruling on the merits. See Richter, 562 U.S. at 99
(“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.”). McKenzie
fails to show that the state court’s decision was unreasonable.10
McKenzie has not demonstrated that counsel was ineffective for failing to cite any
decisions in arguing for youthful offender sentencing. First, he has not demonstrated that
The State’s response concluded that:
The Defendant is not entitled to the relief he seeks. The law is that issues that were raised
or could have been raised on direct appeal are not cognizable through collateral attack see
Smith v State 445 So.2d 323, 325 (Fla.1983); see also Fla.R.Crim.P. 3.850(c). A Trial
Court’s error in failing to consider Youthful Offender is cognizable on direct appeal see Lee
v State, 679 So.2d 1158, 1160 (Fla.1996). Since the Defendant could have and did raise
the issue of his sentencing on direct appeal, he is prohibited now from brining this claim by
Motion for Post Conviction Relief.
(Doc. 19, Ex. 22.)
If the state court had not ruled on the merits of the claim, the applicable standard of review would
be de novo because “the present controversy falls outside of § 2254(d)(1)’s requirement that [the federal court]
defer to state court decisions that are not contrary to, or an unreasonable application of, clearly established
federal law.” Davis v. Sec’y, Dep’t of Corr., 341 F.3d 1310, 1313 (11th Cir. 2003). Even assuming that de
novo review is appropriate, McKenzie would not be entitled to relief. For the reasons addressed within Ground
Three, he has failed to establish deficient performance by counsel, or prejudice as a result of counsel’s
Page 23 of 26
counsel performed deficiently. McKenzie does not assert that counsel inaccurately stated
the law or misadvised the court concerning his eligibility for youthful offender sentencing.
Moreover, even assuming that he established deficient performance, McKenzie has not
established prejudice as a result of counsel’s omission. He does not show a reasonable
probability that the outcome of the sentencing proceeding would have been different had
counsel cited cases in support of his argument.
Defense counsel raised the issue of youthful offender sentencing and both sides
presented argument to the court concerning McKenzie’s qualification for such sentencing.
It is not apparent that the judge thought McKenzie was ineligible for youthful offender
sentencing. Moreover, even if the judge believed as much, he gave no indication that he
would have sentenced McKenzie as a youthful offender if he thought he had authority to
do so. He made no express statements to this effect, and although he acknowledged the
defense witnesses’ testimony, he also noted that it was McKenzie’s decision to use a
firearm during the offenses and that this led to Edward Turner suffering great bodily harm.
(Doc. 19, Ex.1, Vol. I, pp. 146-47.) Accordingly, any argument that the judge would have
imposed a youthful offender sentence had counsel cited case law in support of his
argument is speculative when considered in light of the record. Speculation is insufficient
to sustain a claim of ineffective assistance of counsel. See Tejada v. Dugger, 941 F.2d
1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot support
an ineffective assistance of counsel claim).
McKenzie has not demonstrated that the state court’s rejection of his claim was
contrary to or an unreasonable application of clearly established federal law, or was based
upon an unreasonable determination of the facts. He is not entitled to relief on Ground
Page 24 of 26
McKenzie asserts that his sentence is illegal because he “was charged by
mandatory direct filing of the charging information and . . . did not have a prior adjudication
for sentencing under Florida’s 10/20/life law, involving a firearm.” (Doc. 1, p. 13.) The
substance of McKenzie’s argument raises no federal constitutional challenge to the validity
of his conviction. Rather, it only involves the application of Florida sentencing law. This
claim, therefore, is not cognizable on federal habeas review. See Branan v. Booth, 861
F.2d 1507, 1508 (11th Cir. 1988) (“[A] habeas petition grounded on issues of state law
provides no basis for habeas relief. . . . In the area of state sentencing guidelines in
particular, we consistently have held that federal courts can not review a state’s alleged
failure to adhere to its own sentencing procedures.”). That McKenzie labels his claim as
involving a due process violation and references his Fifth and Fourteenth Amendment
rights does not overcome the lack of cognizability. See id. (federal habeas review’s
limitation concerning state law questions “is of equal force when a petition, which actually
involves state law issues, is ‘couched in terms of equal protection and due process.’”)
(quoting Willeford v. Estelle, 538 F.2d 1194, 1198 (5th Cir. 1976)). Accordingly, Ground
Five cannot provide relief.
It is therefore
ORDERED that McKenzie’s petition for writ of habeas corpus (Doc. 1) is DENIED.11
McKenzie seeks an evidentiary hearing. An evidentiary hearing is not warranted. See Landers v.
Warden, Att’y Gen. of Ala., 776 F.3d 1288, 1295 (11th Cir. 2015) (“[B]efore a habeas petitioner may be
entitled to a federal evidentiary hearing on a claim that has been adjudicated by the state court, he must
demonstrate a clearly established federal-law error or an unreasonable determination of fact on the part of
Page 25 of 26
The Clerk is directed to enter judgment against McKenzie and to close this case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
It is further ORDERED that McKenzie is not entitled to a certificate of appealability
(COA). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal
a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must
first issue a COA. Id. “A [COA] may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make such a
showing, McKenzie “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)). McKenzie has not made the requisite showing in these circumstances. Finally,
because McKenzie is not entitled to a COA, he is not entitled to appeal in forma pauperis.
ORDERED at Tampa, Florida, on September 16, 2016.
Jamel M. McKenzie
Counsel of Record
the state court, based solely on the state court record.”).
Page 26 of 26
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