Ingram v. Secretary, Department of Corrections et al
Filing
13
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 Ingram and to CLOSE the case. Signed by Judge Steven D. Merryday on 9/30/2020. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WALTER INGRAM,
Applicant,
v.
CASE NO. 8:16-cv-2406-T-23AAS
SECRETARY, Department of Corrections,
Respondent.
____________________________________/
ORDER
Ingram applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)
and challenges his conviction for first-degree premeditated murder, for which Ingram
is imprisoned for life. Numerous exhibits (“Respondent’s Exhibit ___”) support the
response. (Doc. 9) The respondent both admits the application’s timeliness (Doc. 9
at 14–15) and argues that some grounds are not fully exhausted and, as a
consequence, are procedurally defaulted. (Doc. 9 at 15–20)
I. BACKGROUND1
Ingram lived with Hope Frazier whom he considered his “god-sister.” Frazier
was dating a neighbor named Glenn Dilworth. The couple argued often and Ingram
tried to mediate. On October 1, 2009, Ingram saw Frazier and Dilworth arguing and
tried to separate them. Dilworth left but later returned and asked Ingram to come
This summary of the facts derives from Ingram’s brief on direct appeal. (Respondent’s
Exhibit D at 4–9)
1
outside to talk. When Ingram went outside, Dilworth pointed a gun at him and,
using a racial epithet, called to him. Ingram — upset — went back inside and told
others what happened. Ingram said that he was tired of Dilworth and intended to
kill him, but no one took Ingram seriously.
Dilworth again called to Ingram to come outside. Ingram tried to ignore
Dilworth, but eventually Ingram went outside with a knife and the cardboard tube
from an empty roll of paper towels. Ingram first hit Dilworth with the cardboard
tube. When Ingram thought Dilworth grabbed for his gun, Ingram stabbed him with
the knife, which killed him. Ingram retreated to his home and left.
Ingram was arrested and charged with first-degree murder. At his trial Ingram
testified that he stabbed Dilworth in self-defense. The jury found Ingram guilty as
charged, and the judge sentenced Ingram to the mandatory term of life
imprisonment.
II. COGNIZABILITY, EXHAUSTION, AND PROCEDURAL DEFAULT
The respondent argues that Ground One, Ground Two in part2, and Ground
Six are procedurally barred from federal review because either Ingram failed to fully
exhaust his available state court remedies or the state court dismissed the federal
claims as facially insufficient. An applicant must present each claim to a state court
before raising the claim in federal court. “[E]xhaustion of state remedies requires
that petitioners ‘fairly presen[t]’ federal claims to the state courts in order to give the
2
The respondent mislabels this ground as Ground Three. (Doc. 9 at 15)
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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)). Accord Rose v. Lundy, 455 U.S. 509, 518–19 (1982) (“A
rigorously enforced total exhaustion rule will encourage state prisoners to seek full
relief first from the state courts, thus giving those courts the first opportunity to
review all claims of constitutional error.”). “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 One:
Ingram asserts that the trial court erred by denying his motion for mistrial
based on the prosecutor’s violation of a pretrial order. (Doc. 1 at 4) Ingram
presented this claim on direct appeal as an abuse of discretion under state law and
not as the violation of a federally protected right. (Respondent’s Exhibit D at
642–45) The failure to alert the state appellate court that the trial court allegedly
violated a federally protected right fails to satisfy the exhaustion requirement. As
Reese explains, 541 U.S. at 32, an applicant must alert the state court that he raises a
federal law claim and not just a state law claim:
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.”
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As a consequence, “[i]t is not enough that all the facts necessary to support
the federal claim were before the state courts, or that a somewhat similar state-law
claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982). Kelley v. Sec’y, Dep’t
Corrs., 377 F.3d 1317, 1345 (11th Cir. 2004) (“The exhaustion doctrine requires a
habeas applicant to do more than scatter some makeshift needles in the haystack of
the state court record.”) (citations omitted); Upshaw v. Singletary, 70 F.3d 576, 578
(11th Cir. 1995) (“[T]he applicant must have fairly apprised the highest court of his
state with the appropriate jurisdiction of the federal rights which allegedly were
violated.”). An applicant must present to the state court the same claim presented to
the federal court. Picard v. Connor, 404 U.S. at 275 (“[W]e have required a state
prisoner to present the state courts with the same claim he urges upon the federal
courts.”). “Mere similarity of claims is insufficient to exhaust.” Duncan,
513 U.S. at 366.
Moreover, even if he had “fairly presented” his claim to the state courts, the
claim fails to assert the violation of a federally protected right. Ingram asserts that
the trial court erred by denying the mistrial motion and does not contend that the
ruling violated due process or any other federal law. (Doc. 1 at 4) The ruling on the
mistrial motion was based on Florida’s mistrial standard and a federal habeas court
does not review a state law ruling by a state court. Estelle v. McGuire, 502 U.S. 62,
67–68 (1991) (“[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.”); Pulley v. Harris, 465 U.S. 37, 41
(1984) (“Under 28 U.S.C. § 2241, a writ of habeas corpus disturbing a state-court
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judgment may issue only if it is found that a prisoner is in custody ‘in violation of the
Constitution or laws or treaties of the United States.’”). See also Dessaure v. State, 891
So. 2d 455, 464–65 (Fla. 2004) (“An order granting mistrial is required only when
the error upon which it rests is so prejudicial as to vitiate the entire trial, making a
mistrial necessary to ensure that the defendant receives a fair trial.”). The state
courts rejected the state law claim, and the rejection receives deference in a federal
court. (Respondent’s Exhibit B at 197–200, Exhibit C at 259–60, 436, and Exhibit D
at 670). Agan v. Vaughn, 119 F.3d 1538 (11th Cir. 1997) (“[S]tate courts are the final
arbiters of state law, and federal habeas courts should not second-guess them on such
matters.”).
Ground Two in Part and Ground Six:
The respondent argues that Ground Two in part and Ground Six are
procedurally defaulted because the state court dismissed the claims as facially
insufficient. (Doc. 9 at 18) A state court’s dismissal of a claim for facial
insufficiency is an adjudication on the merits owed deference under Section 2254(d)
and not, as the respondent contends, a dismissal on state procedural grounds.
Boyd v. Comm., Ala. Dep’t Corrs., 697 F.3d 1320, 1331 (11th Cir. 2012); Borden v. Allen,
646 F.3d 785, 812–15 (11th Cir. 2011).
****
The failure to properly exhaust each available state court remedy causes a
procedural default of the unexhausted claim. O’Sullivan v. Boerckel, 526 U.S. 838, 847
(1999) (“Boerckel’s failure to present three of his federal habeas claims to the Illinois
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Supreme Court in a timely fashion has resulted in a procedural default of those
claims.”); 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.”).
As determined above, Ingram procedurally defaulted Ground One by not
“federalizing” the ground in state court; as a consequence, the ground is barred from
federal review absent a showing of “actual cause and prejudice” or “manifest
injustice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); Murray v. Carrier,
477 U.S. 478, 496 (1986). The basis for “cause” must ordinarily reside in something
external to the defense. Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995).
To show “prejudice,” the applicant must show “not merely that the errors at his trial
created the possibility of prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.”
Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991) (italics original) (quoting United
States v. Frady, 456 U.S. 152, 170 (1982)).
To meet the fundamental miscarriage of justice exception, Ingram must show
constitutional error coupled with “new reliable evidence — whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence
— that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). This
exception is not available unless “petitioner shows, as a factual matter, that he did
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not commit the crime of conviction.” Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)
(denying a certificate of probable cause).
Ingram establishes neither “cause and prejudice” nor a “fundamental
miscarriage of justice.” Therefore, Ground One is procedurally barred from federal
review and not entitled to a determination on the merits. Grounds Two and Six are
entitled to a review on the merits.
III. STANDARD OF REVIEW
The Antiterrorism 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). Section 2254(d), which creates a
highly deferential standard for federal court review of a state court adjudication,
states in pertinent part:
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
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:
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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 § 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, 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). White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical
point is that relief is available under § 2254(d)(1)’s unreasonable-application clause if,
and only if, it is so obvious that a clearly established rule applies to a given set of
facts that there could be no ‘fairminded disagreement’ on the question . . . .”) (citing
Richter, 562 U.S. at 102–03); Woods v. Donald, 575 U.S. 312, 316 (2015) (“And an
‘unreasonable application of ’ those holdings must be objectively unreasonable, not
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merely wrong; even clear error will not suffice.”) (citing Woodall, 572 U.S. at 419).
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 we are 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 v. Taylor, 529 U.S. at 412.
The purpose of federal review is not to re-try the state 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 extent possible under law.” Bell v. Cone, 535 U.S. at 694.
A federal court must afford due deference to a state court’s decision. “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 explains the decision in a
reasoned opinion, a federal habeas court reviews the specific reasons stated in the
opinion and defers if the explanation is reasonable. Wilson v. Sellers, 138 S. Ct. 1188,
1192 (2018) (“[A] federal habeas court simply reviews the specific reasons given by
the state court and defers to those reasons if they are reasonable.”). When the
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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 statecourt decision that does provide a relevant rationale [and] presume that the
unexplained decision adopted the same reasoning.” Wilson, 138 S. Ct. at 1192. The
State 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 on
direct appeal affirmed Ingram’s conviction and sentence. (Respondent’s Exhibit D
at 670) Similarly, in other per curiam decisions without a written opinion the state
appellate court both affirmed the denial of Ingram’s Rule 3.850 motion for
post-conviction relief and denied his petition under Rule 9.141(d), Florida Rules
of Appellate Procedure, alleging ineffective assistance of appellate counsel.
(Respondent’s Exhibit F at 786 and Exhibit G at 227) A state appellate court’s
per curiam decision warrants 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, reh’g and reh’g en banc denied, 278 F.3d
1245 (11th Cir. 2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003);
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.”); Bishop v. Warden, GDCP, 726 F.3d 1243,
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1255–56 (11th Cir. 2013) (describing the difference between an “opinion” or
“analysis” and a “decision” or “ruling” and explaining that deference is accorded
the state court’s “decision” or “ruling” even absent an “opinion” or “analysis”).
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.
Ingram bears the burden of overcoming by clear and convincing evidence a
state court’s fact 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). The state court’s rejection of Ingram’s
post-conviction claims warrants deference in this federal action. (Respondent’s
Exhibits E-c and G at 227) Ingram’s federal application presents the same grounds
of ineffective assistance of counsel that he presented to the state courts.
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IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Ingram 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) (en banc) (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.
Strickland requires proof of both deficient performance and consequent
prejudice. Strickland, 466 U.S. at 697 (“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 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.”). “[C]ounsel is strongly presumed to have rendered adequate
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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.
Ingram 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.” 466 U.S. at 691. To meet this burden, Ingram 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.
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.” 466 U.S. at 690–91. As White v. Singletary, 972 F.2d 1218, 1220–21
(11th Cir. 1992), explains, Ingram cannot meet his burden merely by showing that
the avenue chosen by counsel proved 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
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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.
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 what is constitutionally
compelled.’”) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).
Additionally, Hittson v. GDCP Warden, 759 F.3d 1210, 1267 (11th Cir. 2014),
cert. denied sub nom., Hittson v. Chatman, 135 S. Ct. 2126 (2015), discusses the required
extent of counsel’s investigation:
[W]e have explained that “no absolute duty exists to investigate particular facts or a certain line of defense.” Chandler,
218 F.3d at 1317. “[C]ounsel has a duty to make reasonable
investigations or make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S.
at 691, 104 S. Ct. at 2066 (emphasis added). “[C]ounsel need
not always investigate before pursuing or not pursuing a line
of defense. Investigation (even a nonexhaustive, preliminary
investigation) is not required for counsel reasonably to
decline to investigate a line of defense thoroughly.” Chandler,
218 F.3d at 1318. “In assessing the reasonableness of an
attorney’s investigation . . . a court must consider not only
the quantum of evidence already known to counsel, but also
whether the known evidence would lead a reasonable attorney
to investigate further.” Wiggins, 539 U.S. at 527, 123 S. Ct.
at 2538.
See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (confirming that counsel has no duty
to raise a frivolous claim).
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Under Section 2254(d) Ingram must prove that the state court’s decision
“(1) [was] contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States or (2) [was]
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Sustaining a claim of ineffective assistance
of counsel 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; Pinholster, 563 U.S. at 202 (stating that an
applicant must overcome this “‘doubly deferential’ standard of Strickland and the
AEDPA”); 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 of Corr., 643 F.3d
907, 911 (11th Cir. 2011)), cert. denied, 140 S. Ct. 2520 (2020); and Pooler v. Sec’y,
Dep’t of Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) (“Because we must view Pooler’s
ineffective counsel claim — which is governed by the deferential Strickland test —
through the lens of AEDPA deference, the resulting standard of review is “doubly
deferential.”), cert. denied, 571 U.S. 874 (2013).
In summarily denying Ingram’s motion for post-conviction relief, the state
court recognized that Strickland governs a claim of ineffective assistance of counsel.
(Respondent’s Exhibit E at 702–12) Because the state court rejected the grounds
based on Strickland, Ingram cannot meet the “contrary to” test in Section 2254(d)(1).
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Ingram instead must show that the state court unreasonably applied Strickland or
unreasonably determined the facts. In determining “reasonableness,” a federal
application for the writ of habeas corpus 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. Putnam v. Head,
268 F.3d 1223, 1244, n.17 (11th Cir. 2001), cert. denied, 537 U.S. 870 (2002). The
presumption of correctness and the highly deferential standard of review requires
that the analysis of each ground begin with the state court’s analysis.
A. Grounds of IAC During Trial
Ground Two:
Ingram contends that trial counsel was ineffective for failing to impeach the
State’s witness Simone Perry both with prior inconsistent statements in her
deposition (“sub-claim A”) and for bias (“sub-claim B”). (Doc. 1 at 5–6)
Sub-claim A
The post-conviction court denied sub-claim A as follows (Respondent’s
Exhibit E-c at 703) (state court record citations omitted):
Defendant alleges counsel failed to impeach or properly
cross-examine witness Simone Perry based on prior
inconsistent statements. He argues that at trial, Ms. Perry
testified that she heard him say he was going to stab Glenn,
but during her deposition, she only stated that she heard him
“mutter something in the nature of a threat towards Glenn”
and “could not recall the exact words he used.” Defendant
acknowledges that two other witnesses — Henry Harris (the
victim’s friend) and Glenn Dilworth[, Jr.] (the victim’s son)
— also testified that he had made a prior threat toward the
victim. However, he contends they were “undeniably” and
“soundly” impeached and concludes their testimony could not
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be deemed credible. His position is that without Ms. Perry’s
testimony, “no other reliable testimony existed to establish
premeditation whatsoever.”
This claim lacks merit. Impeachment merely means that a
witness has been confronted with an inconsistency or a bias,
which the jury may consider in evaluating his or her credibility.
The jury still hears the testimony and may find the witness to
be credible [despite] the impeachment. Regardless, Ms. Perry
previously asserted that Defendant had threatened the victim
while holding a butcher knife, which was not inconsistent with
her testimony at trial. There is no reasonable probability that
the outcome of the trial would have been different if counsel
had impeached her on her ability at trial to recall the exact
words Defendant used in that threat.
Because Perry testified (1) in deposition that she “saw [Ingram] holding a
kitchen knife” and “heard [him] mutter something in the nature of a threat towards
Glenn” (Respondent’s Exhibit E-a at 676) and (2) at trial that she saw Ingram grab a
kitchen knife and heard him say, “I’m going to stab Glenn” (Respondent’s Exhibit
E-c at 719–20), the state court did not unreasonably determine facts. Whether the
deposition testimony was a prior inconsistent statement and whether the prior
inconsistent statement was admissible for the truth of the matter asserted are issues of
state law, and a state court’s determination of state law receives deference in federal
courts. Fla. Stat. § 90.608(1); Pearce v. State, 880 So. 2d 561, 569 (Fla. 2004); Machin
v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985) (“The federal courts must defer
to a state court’s interpretation of its own rules of evidence and procedure.”).3
3
Cases cited by Ingram in his reply (Doc. 12 at 11) reversed because trial counsel either
failed to impeach with a prior statement that was inconsistent or failed to examine the only
eyewitness. United States v. Orr, 636 F.3d 944, 952–53 (8th Cir. 2011); Higgins v. Renico, 470 F.3d 624,
628, 630 (6th Cir. 2000); Silva v. Woodford, 279 F.3d 825, 852–53 (9th Cir. 2002) (concluding that
trial counsel’s failure to cross-examine an eyewitness about a medical condition that rendered him
highly receptive to suggestion was a reasonable strategic decision).
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Because trial counsel was not ineffective for failing to impeach Perry with the prior
consistent statement, the state court did not unreasonably apply Strickland. Pinkney
v. Sec’y, Dep’t Corrs., 876 F.3d 1290, 1297 (11th Cir. 2017).
Sub-claim B
Ingram contends that trial counsel was ineffective for failing to impeach
Simone Perry for bias. (Doc. 1 at 5–6) The post-conviction court denied
sub-claim B as follows (Respondent’s Exhibit E-c at 703–04) (state court record
citations omitted):
Defendant also alleges in Ground One that counsel failed to
properly cross-examine Ms. Perry “regarding her animosity
against [him] that would have established her motive for giving
false or misleading testimony against [him].” This portion of
Ground One was stricken with leave to amend.
In the Supplemental Amendment, he adds that during
depositions, Ms. Perry admitted she had some animosity
toward him. He cites Exhibit A but no exhibits are attached to
either the Supplemental Amendment or the original Motion for
Post-conviction Relief.
This claim remains legally insufficient with regard to the nature
of Ms. Perry’s animosity and to establish that she had a motive
for giving false testimony against him. Thus, Defendant fails to
establish that the outcome of the trial would have been different
if counsel had cross-examined her on this issue.
Ingram identified deposition testimony in neither his initial post-conviction
motion (Respondent’s Exhibit-a at 677) nor his supplemental motion (Respondent’s
Exhibit E-b at 697–98) nor his motion for rehearing (Respondent’s Exhibit E-d
at 728–32) that demonstrated Perry’s bias. Ingram attached to his rehearing motion
a letter from trial counsel, labeled “Exhibit A,” informing him that “Simone Perry
(who admitted that she had some animosity towards you) testified that she came
- 18 -
out of the den room while watching a movie . . . .” (Respondent’s Exhibit E-d
at 731) (bold in the original) The state court did not unreasonably apply Strickland’s
prejudice component because Ingram failed to identify deposition testimony that trial
counsel could have used to impeach Perry for bias. Borden, 646 F.3d at 822; United
States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“[E]vidence about the testimony
of a putative witness must generally be presented in the form of actual testimony
by the witness or on affidavit.”); Buckelew v. United States, 575 F.2d 515, 521
(5th Cir. 1978) (“[C]omplaints of uncalled witnesses are not favored, because the
presentation of testimonial evidence is a matter of trial strategy and because
allegations of what a witness would have testified are largely speculative.”).
Ground Three:
Ingram asserts that trial counsel was ineffective for failing both to explain to
him Florida’s “Stand Your Ground” law and to raise a defense based on that law.
(Doc. 1 at 6–7) The post-conviction court denied the claim as follows (Respondent’s
Exhibit E-c at 705–06) (italics in original):
Defendant alleges counsel failed to inform him of the
affirmative defense under the Stand-Your-Ground law. He
argues that if counsel had raised this defense, the jury would
have acquitted him, and in support, states the following: there
was no reliable testimony1 that he made prior threats against the
decedent; the victim had only a single stab wound, which was
“consistent with trying to get someone away in self-defense[;]
minutes before the stabbing, the decedent threatened him
and used a racial slur; investigators recovered a pistol at the
decedent’s residence; witnesses testified the victim had been
drinking; no witnesses observed the stabbing; witnesses testified
the victim was the aggressor; and conditions in the area “were
nearly pitch black (dark).” Defendant also argues he had a right
to arm himself with a knife and stand his ground with no duty
to retreat, which counsel should have argued.
- 19 -
He argues the only testimony the State proffered
was or could have been impeached.
1
This claim lacks merit for the reasons set forth in the ruling
on Ground Two. There was extensive testimony about the
altercations that took place during the evening between
Defendant and the decedent, as well as the fact that the
decedent had been drinking. There is no reasonable probability
that the jury would have returned with an acquittal if counsel
had presented additional arguments in support of the
Stand-Your-Ground law.
The post-conviction court denied the claim that counsel was ineffective for not
asserting a “Stand Your Ground” defense in relevant part as follows (Respondent’s
Exhibit E-c at 704–05):
Defendant alleges counsel failed to seek a pre-trial probable
cause hearing based on the Stand-Your-Ground law, which
would have required dismissal of the charge. He argues that
upon his arrest, he informed the authorities his actions were
the result of self-defense . . . . This claim lacks merit . . . .
[T]he testimony in this case indicates that Defendant armed
himself with a knife and left his house to fight the decedent in
the street at the end of the driveway. Thus, the record shows
that Defendant effectively “re-engaged” the victim in a new
altercation. In this situation, there is no reasonable probability
the Court would have granted Defendant self-defense immunity
from prosecution at a pre-trial hearing. Joseph v. State,
103 So. 3d 227, 230 (Fla. 4th DCA 2012); Rodriguez v. State,
127 So. 3d 705 (Fla. 4th DCA 2013) (“[W]hen the petitioner
reengaged the victim outside the business premises where
the initial confrontation took place, he lost his statutory
immunity[.]”). Therefore, Defendant cannot establish that he
was prejudiced by counsel’s failure to request such a hearing.
Testimony at trial — including Ingram’s own testimony — proved that
Ingram came home upset, said that Dilworth had just pointed a gun at him, and
went back outside and stabbed Dilworth. (Respondent’s Exhibit C at 528–39 and
Exhibit E-c at 716–18) While there is no duty to retreat under Florida’s “Stand Your
- 20 -
Ground” law, deadly force is lawful only to prevent “imminent death or great
bodily harm.” Fla. Stat. § 776.012(1) (2009). Because Ingram returned home
after Dilworth pointed a gun at him, any threat of death or great bodily harm
had subsided. The state court did not unreasonably apply Strickland’s prejudice
component. Pressley v. State, 395 So. 2d 1175, 1177 (Fla. 3d DCA 1981) (“[A] person
may not use violence upon his assailant, after the assailant is no longer a threat and
all danger is clearly past, and thereby claim to be acting in self-defense.”); Reaves
v. Sec’y, Fla. Dep’t Corrs., 717 F.3d 886, 904–05 (11th Cir. 2013) (concluding that,
because evidence at trial defeated the defense, the applicant failed to show prejudice
under Strickland for the claim that trial counsel was ineffective for not presenting an
intoxication defense).
Also, in closing argument trial counsel asserted self-defense based on Florida’s
“Stand Your Ground” law (Respondent’s Exhibit C at 571–594), the trial court
instructed the jury on that defense (Respondent’s Exhibit C at 604–08), and the jury
rejected that defense. (Respondent’s Exhibit A at 156–57) Consequently, Ingram
could not have shown that the outcome at trial would have changed if trial counsel
had acted differently. Ledford v. Warden, 818 F.3d 600, 645 (11th Cir. 2016) (“In
other words, because the jury was presented with and instructed on the very defense
that Ledford contends trial counsel neglected, there is little chance, let alone a
‘substantial’ chance, that the trial outcome would have been any different had trial
counsel more fervently supported a mens rea defense.”).
- 21 -
Ground Four:
Ingram asserts that trial counsel was ineffective for not lodging three
objections during trial testimony by the State’s witnesses Henry Harris and Glenn
Dilworth, Jr. (Doc. 1 at 7–8) The post-conviction court denied the sub-claims as
follows.
Harris Sub-claim (1)
The prosecutor asked Henry Harris, “[D]id he have a way
to get rid of a gun if he had a gun?[ ]” and Harris answered,
“[N]o, sir.” The Court finds no prejudice, because this
question and answer tends to establish that Defendant did
not have a gun.
(Respondent’s Exhibit E-c at 706) (state court record citations omitted)
Because the state court mistakenly understood the pronoun “he” to refer to
Ingram — instead of Dilworth, the victim — the state court incorrectly concluded
that the testimony tended to show that Ingram did not have a gun. (Respondent’s
Exhibit E-c at 718) Nevertheless, the trial court would have overruled an objection
because Harris testified both (1) that he observed Dilworth walk down the street and
back and (2) that, based on that observation, in Harris’s opinion Dilworth did not
have a way to get rid of a gun, even if Dilworth had one. Fla. Stat. §§ 90.601 and
90.701. (Respondent’s Exhibit E-c at 717–18) Either unobjectionable first-hand
evidence based on direct observation by Harris or, if understood differently,
admissible lay-opinion testimony, this was proper testimony. Trial counsel fittingly
did not object. Meders v. Warden, Ga. Diag. Prison, 911 F.3d 1335, 1354 (11th Cir.
2019); State v. Santiago, 928 So. 2d 480, 481–82 (Fla. 5th DCA 2006).
- 22 -
Harris Sub-claim (2)
The prosecutor asked Mr. Harris, “[D]id you tell anybody in
the house [that] Walter was saying this?” (referring to
Defendant making threats), and Mr. Harris answered, “I mean
everybody was standing in there heard him for themselves.”
Defendant argues this constituted “self-bolstering, self-serving
hearsay and testifying for non-testifying witnesses.” The Court
finds no prejudice, because the point of the witness’[s] answer
was merely that Defendant was speaking loudly; i.e., “[H]e
didn’t come in the house whispering.”
(Respondent’s Exhibit E-c at 706–07) (state court record citations omitted)
Whether the trial court would have overruled an objection is an issue of
state law, and a state court’s determination of state law receives deference in a
federal court. Machin, 758 F.2d at 1433. The trial court would have overruled
an objection because Harris both (1) testified that he observed other people standing
near Ingram when Ingram spoke and (2) opined based on his observation that
the bystanders heard Ingram’s statements. Fla. Stat. §§ 90.601 and 90.701.
(Respondent’s Exhibit E-c at 718–19) Because this also was proper lay opinion
testimony, the state court did not unreasonably apply Strickland’s prejudice
component. Meders, 911 F.3d at 1354.
Harris Sub-claim (3)
Regarding the date, the prosecutor asked, “[T]his was on the
first of the month?” Defendant argues this was a prejudicial
comment designed to infer that he used his Social Security
check to buy drugs. The prosecutor did go on to ask,
“[A]nd what happens for Pops on the first of the month?”
[B]ut counsel objected and the prosecutor stated he would
go no further. Defendant argues this violated the order
granting a defense Motion in Limine to preclude “speculative
testimony that [he] went to a drug house after stabbing
decedent.” However, the Court finds no prejudice, because
- 23 -
there was no reference to buying drugs in this portion of the
examination.
(Respondent’s Exhibit E-c at 707) (state court record citations omitted)
The trial court prohibited all testimony that Ingram visited a drug house after
the stabbing. (Respondent’s Exhibit B at 197–200) Because Harris did not testify at
trial that Ingram bought drugs after the stabbing, the state court did not unreasonably
determine that the record refuted the claim. (Respondent’s Exhibit E-c at 719)
Dilworth, Jr. Sub-claim (1)
The prosecutor elicited speculative testimony from the
victim’s son, Glenn Dilworth[, Jr.] (aged nine), that Defendant
wanted a ride to a drug house. The prosecutor asked,
“[A]nd why did your dad say he wouldn’t take Pops there?”
and Glenn[, Jr.] responded, “I think because of drugs or
something.” Defendant acknowledges that counsel moved
for a mistrial but argues counsel only argued the comments
affected Defendant’s credibility and were irrelevant. He
contends counsel should have argued that this question, too,
violated the order on the Motion in Limine. This Court finds
no prejudice, because the prosecutor followed up with the
question, “[D]id your dad say that?” and Glenn[, Jr.] admitted,
“[N]o.” When counsel moved for a mistrial, the prosecutor
agreed to ask no more. There is no reasonable probability that
the Court would have granted a mistrial or that the outcome of
the appeal would have been different if counsel had added an
objection regarding the violation of the Motion in Limine.
(Respondent’s Exhibit E-c at 707–08) (state court record citations omitted)
Dilworth, Jr. denied at trial that his father ever said that he would not give
Ingram a ride because of drugs. (Respondent’s Exhibit E-c at 720) The granting of a
mistrial motion is an issue of state law, and a state court’s determination of state law
receives deference in federal courts. Pinkney, 876 F.3d at 1295; Dessaure, 891 So. 2d
- 24 -
at 464–65. Because an expanded mistrial motion would not have succeeded, the
state court did not unreasonably apply Strickland. Pinkney, 876 F.3d at 1297.
Dilworth, Jr. Sub-claim (2)
The prosecutor asked Glenn[, Jr.] whether his dad had a
weapon or knife, and Glenn[, Jr.] responded, “[N]o, he didn’t
have anything in his hands or pockets.” Defendant argues
counsel failed to object “to what amounted to pure speculation,
since there was no way Glenn[, Jr.] could have known if his
father had a gun or knife concealed on his person.” This claim
lacks merit. Glenn[, Jr.] had previously admitted his father
“went inside to get something” before going over to Pops’[s]
house. Counsel had no basis to object to his answer regarding
what the decedent did or did not have in his hands or pockets;
at most, counsel could have challenged the answer during
cross-examination.
(Respondent’s Exhibit E-c at 708) (state court record citations omitted)
Dilworth, Jr. testified at trial that Dilworth came inside to get something
before going over to Ingram’s home. (Respondent’s Exhibit E-c at 720–21) The
efficacy of an objection to the testimony by Dilworth, Jr. based on speculation is an
issue of state law, and a state court’s determination of state law receives deference in
a federal court. Fla. Stat. § 90.604. Machin, 758 F.2d at 1433. Because the objection
would not have succeeded, the state court did not unreasonably apply Strickland.
Meders, 911 F.3d at 1354.
Dilworth, Jr. Sub-claim (3)
Counsel impeached Glenn on a prior inconsistent statement,
i.e., that he never heard the argument between his father
and Defendant because he was inside watching TV, and the
prosecutor then led the witness by asking, “[Were] there
two arguments?” and “was some inside and some outside?”
Defendant argues the prosecutor led the witness to “hang onto
the only testimony that established Defendant made a prior
- 25 -
threat.” Counsel had no basis to object, because the prosecutor
had a right to clarify the witness’[s] answer.
(Respondent’s Exhibit E-c at 708) (state court record citations omitted)
The prosecutor clarified on re-direct examination what Dilworth’s son
heard during the argument. (Respondent’s Exhibit E-c at 722) Whether the
prosecutor had a right to clarify that testimony is an issue of state law, and a state
court’s determination of state law receives deference in a federal court. Fla. Stat.
§ 90.612(1); Machin, 758 F.2d at 1433. Because the objection would not have
succeeded, the state court did not unreasonably apply Strickland. Meders, 911 F.3d
at 1354.4
Ground Six:
Ingram asserts that trial counsel was ineffective for not calling Alexis Poole as
a witness at trial. (Doc. 1 at 10–11) The post-conviction court denied the claim as
follows (Respondent’s Exhibit E-c at 711):
Defendant alleges counsel failed to call Alexis Poole to testify
that she was on the computer at her house at the time of the
stabbing and none of the children told her that Defendant had
made any threats to the decedent. He argues this testimony
would have rebutted that of the State’s witnesses, who claimed
to have heard him threatening the decedent.
Ground Six was stricken with leave to amend. In the
Supplemental Amendment, he adds that “counsel also had
the testimony of Alexis Poole, who said she was present at the
house at the time of the stabbing[,] and[, on] the evening of the
stabbing, none of the children mentioned that [Defendant] had
In his reply (Doc. 12 at 15–16) Ingram erroneously relies on several non-controlling
cases. United States v. Williams, 358 F.3d 956, 961–64 (D.C. Cir. 2004) (reversing for admission of
inculpatory hearsay statements); Cauthern v. Colson, 736 F.3d 465, 476–77 (6th Cir. 2013) (reversing
for improper comments by the prosecutor in closing argument); Girts v. Yanai, 501 F.3d 743, 755–56
(6th Cir. 2007) (same); Washington v. Hofbauer, 228 F.3d 689, 699–701 (6th Cir. 2000) (same).
4
- 26 -
made threats to [the victim].” He cites Exhibit A but no
exhibits are attached to either the Supplemental Amendment or
the original Motion for Post-conviction Relief. He concludes
this would have established a motive for Ms. Perry’s false
testimony.
This claim remains legally insufficient with regard to the nature
of Ms. Poole’s testimony. Thus, Defendant fails to establish
that the outcome of the trial would have been different if
counsel had called her as a witness.
Ingram identified deposition testimony by Poole in neither his post-conviction
motion (Respondent’s Exhibit-a at 677) nor his supplemental motion (Respondent’s
Exhibit E-b at 697–98) nor his motion for rehearing. (Respondent’s Exhibit E-d
at 728–32) Ingram attached to his rehearing motion a letter from trial counsel,
labeled “Exhibit B,” informing him that: “I deposed Ms. Alexis Poole . . . . She
testified that none of the children told her (the evening you stabbed Glenn) that you
had made any threats to Glenn . . . .” (Respondent’s Exhibit E-d at 732) Because he
did not identify deposition testimony by Poole that trial counsel could have
presented at trial, Ingram failed to plead facts that would show prejudice.
Consequently, the state court did not unreasonably apply Strickland. Borden,
646 F.3d at 822; Ashimi, 932 F.2d at 650.
B. Ground of IAC During Closing
Ground Five:
Ingram asserts that trial counsel was ineffective for not objecting to five
comments by the prosecutor during closing argument. (Doc. 1 at 9–10) The
post-conviction court denied the claim as to each comment as follows.
- 27 -
Comment One
The prosecutor argued: “You don’t bring a knife to a gun fight.
You bring a knife to something else. You bring a knife to an
ambush.” Also: “[Y]ou conceal the knife.” And: “[Y]ou don’t
bring a knife to a gun fight because he knew it wasn’t going to
be a gun fight.” Defendant contends there was no testimony
that he concealed the knife or that there was an “ambush”
and further contends these comments constituted inferences
on premeditation and his state of mind, without foundation
or basis. However, the arguments were permissible and
constituted fair comments in support of the State’s theory that
Defendant did not act in self-defense but rather that he killed
the victim “after consciously deciding to do so.”
(Respondent’s Exhibit E-c at 709) (state court record citations omitted)
Whether the prosecutor’s comments were permissible is an issue of state law,
and a state court’s determination of state law receives deference in a federal court.
Ford v. Norris, 364 F.3d 916, 918–19 (8th Cir. 2004) (“In Mr. Ford’s case, the
Arkansas Supreme Court came to the conclusion that had Mr. Ford’s attorney
objected to the prosecutor’s statements, the objection, as a matter of Arkansas law,
would probably have been overruled . . . . [T]he Arkansas Supreme Court was
applying Arkansas law to the facts of Mr. Ford’s case. The Arkansas Supreme Court
is the final authority on the interpretation of Arkansas law.”). Even if no witness
testified that Ingram concealed a knife or ambushed Dilworth, the prosecutor drew a
reasonable inference from testimony that Ingram grabbed a knife and a cardboard
tube from the kitchen and returned outside to stab Dilworth. (Respondent’s Exhibit
E-c at 716–20) See Dessaure v. State, 891 So. 2d 455, 468 (Fla. 2004) (“Closing
argument presents an opportunity for both the State and the defendant to argue all
reasonable inferences that might be drawn from the evidence.”). Because trial
- 28 -
counsel was not ineffective and the outcome of trial would not have changed, the
state court did not unreasonably apply Strickland. Meders, 911 F.3d at 1354.
Comment Two
The prosecutor argued the decedent’s gun was hidden in [an
oven] mitt in his kitchen and discovered when “they’re moving
out of the house because of Glenn’s death and the kid’s going to
go somewhere . . . .” Defendant argues there was no testimony
the gun was found a lengthy amount of time later or that it was
while “the kid” was being moved out; his position is that this
was designed to play on the sympathy of the jury. There is
simply no basis for this claim, and no reasonable probability
that the comments influenced the verdict in any way.
(Respondent’s Exhibit E-c at 709) (state court record citations omitted)
At trial the parties stipulated that “when Glenn Dilworth’s family was moving
everything out of the house to vacate the house three days after Mr. Dilworth’s
death, the family found a handgun in an oven mitt hanging over the stove in
Mr. Dilworth’s kitchen . . . .” (Respondent’s Exhibit C at 444) Because the
prosecutor’s comment was a reasonable inference drawn from this stipulation,
the state court did not unreasonably apply Strickland.
Comment Three
The prosecutor argued “[I]f you go and arm yourself and come
back to the conflict, that’s not kosher” and “not only did he
arm himself and resume the conflict, he armed himself, hid the
knife in the tube to ambush.” Defendant argues this was an
intentional misstatement of fact designed to mislead the jury.
His position is that he did not return to the conflict but rather
the victim came to his residence, where he had a right to arm
and defend himself. However, the undisputed facts indicate the
final altercation took place at the end of his driveway, by the
street. Therefore, the prosecutor was entitled to argue that
Defendant left the safety of his house to resume the conflict
with the decedent outdoors.
- 29 -
(Respondent’s Exhibit E-c at 709–10) (state court record citations omitted)
A federal court defers to the state court’s conclusion, based on state law, that
the comment was proper. Ford, 364 F.3d at 918–19. Witnesses testified at trial that
Ingram went inside his home after Dilworth pointed a gun at him and emerged with
both a knife and a cardboard tube and stabbed Dilworth to death. (Respondent’s
Exhibit E-c at 716–21) Because the prosecutor’s comment was a reasonable
inference drawn from this testimony and an accurate statement of Florida’s selfdefense law, the state court did not unreasonably apply Strickland. Pressley, 395 So.
2d at 1177.
Comment Four
The prosecutor argued Defendant was “fed up” with the victim
after breaking up arguments, “being in the middle,” cooking,
making coffee, feeding his kids, driving him around, and taking
him gambling. Defendant argues there was no testimony from
him that he was fed up and asserts that if anything, he enjoyed
helping his friend. However, this constituted fair comment
based on other testimony at trial.
(Respondent’s Exhibit E-c at 710) (state court record citations omitted)
Whether the comments were proper is based on state law, and a state court’s
determination of state law receives deference in a federal court. Ford, 364 F.3d
at 918–19. Ingram testified that he drove Dilworth’s children to school on rainy
mornings, brewed coffee for Dilworth, cooked dinner for Dilworth and his children,
and regularly drove Dilworth and his “god-sister” to the beach and to the casino.
(Respondent’s Exhibit C at 518, 532–33) Witnesses testified that Ingram grew tired
of mediating Dilworth’s fights with his “god-sister” and became angry.
- 30 -
(Respondent’s Exhibit E-c at 715–16, 718–19) Because the prosecutor’s comments
were reasonable inferences from this testimony, the state court did not unreasonably
apply Strickland.
Comment Five
The prosecutor argued Defendant wanted the decedent “to
take him somewhere” because Defendant just got paid that
day, but the decedent said, “I’m not going to risk my kid, I’m
not going to go there.” Defendant argues this violated the pretrial Motion in Limine precluding speculative testimony about
where he wanted to go, i.e., to a drug house or to buy drugs.
However, the prosecutor did not specifically mention a drug
house or the purchase of drugs.
(Respondent’s Exhibit E-c at 710) (state court record citations omitted)
The trial court prohibited all testimony that Ingram went to a drug house
after the stabbing. (Respondent’s Exhibit B at 197–200) Because the prosecutor’s
comment (1) explained only why Dilworth would not — before the stabbing —
drive Ingram where Ingram wanted to go and (2) did not mention a drug house or
the purchase of drugs, the prosecutor’s comment did not violate the pretrial ruling.
Consequently, the state court did not unreasonably apply Strickland. (Respondent’s
Exhibit B at 199–200)
****
Further, the post-conviction court rejected the sub-claims for all comments as
follows (Respondent’s Exhibit E-c at 710–11):
Defendant concludes “the prosecutor’s primary witnesses to
establish an alleged prior threat were thoroughly impeached”
and argues the State could only establish its case of
premeditation by violating pretrial rulings, speculating, or
inferring on evidence and misstating the law [or] facts.”
Therefore, he concludes the foregoing comments cannot be
- 31 -
deemed harmless. However, the Court disagrees, and finds
counsel had no basis to object to the comments in question.
Furthermore, there is no reasonable probability the outcome
of the trial or appeal would have been different if counsel had
done so.
An objection to the comments would have failed, the prosecutor’s comments
did not violate the pretrial ruling, and premeditation was proven by circumstantial
evidence. Franklin v. State, 209 So. 3d 1241, 1246 (Fla. 2016) (“Premeditation may
be inferred from circumstantial evidence such as the nature of the weapon used,
the presence or absence of adequate provocation, previous difficulties between the
parties, the manner in which the homicide was committed, and the nature and
manner of the wounds inflicted.” (citation and quotations omitted)). Consequently,
the state court did not unreasonably apply Strickland.
C. Ground of IAC Post-Trial
Ground Seven:
Ingram asserts that trial counsel was ineffective for not raising arguments in a
motion for new trial. (Doc. 1 at 11–13) The post-conviction court denied the claim
as follows (Respondent’s Exhibit E-c at 711–12):
Defendant alleges counsel failed to file a sufficient Motion for
New Trial based on the weight and sufficiency of the evidence.
He argues the Motion counsel filed “did raise several good
points” but failed to set forth facts that would have warranted
reversal. In support, he cites 14 “facts that would have required
a new trial.”
This claim lacks merit. A Motion for New Trial is directed
to the weight of the evidence, whereas a Motion for Judgment
of Acquittal tests the sufficiency. Regardless, the Motion for
New Trial filed by counsel was very detailed, and in light of the
testimony and evidence presented at trial, there is no reasonable
probability that a Motion raising the additional points
- 32 -
Defendant now cites would have been granted. Again, the
fact that the State’s witnesses were impeached did not render
their testimony non-existent or invalid, nor did it deprive their
testimony of all weight or negate the element of proof of
premeditation.
The state court record confirms that trial counsel filed a detailed motion
for new trial based on the weight of the evidence. (Respondent’s Exhibit E-c
at 725–26) Whether an expanded motion for new trial would have succeeded is
an issue of state law, and a state court’s determination of state law receives deference
in a federal court. Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) (“A federal
habeas court has no power to grant habeas corpus relief because it finds that the state
conviction is against the ‘weight’ of the evidence . . . .”). Because the state court
would not have granted the motion, the state court did not unreasonably apply
Strickland. Meders, 911 F.3d at 1354.
Also, the state court correctly concluded that the sufficiency of the evidence
claim was not cognizable in a motion for new trial. Compare Rule 3.380, Florida
Rules of Criminal Procedure (authorizing a judgment of acquittal if “the evidence is
insufficient to warrant a conviction”) with Rule 3.600(b)(2) (authorizing a new trial if
“the verdict is contrary to law or the weight of the evidence”). Even so, Ingram
asserted that trial counsel should have raised arguments that viewed the evidence in
the light most favorable to the defense. (Respondent’s Exhibit E-a at 689–91) The
trial court views the evidence in the light most favorable to the prosecution when
ruling on a motion for judgment of acquittal. Rogers v. State, 285 So. 3d 872, 891
(Fla. 2019).
- 33 -
Further, Ingram asserted that trial counsel should have argued that the State
did not rebut his reasonable hypothesis of innocence. (Respondent’s Exhibit E-a
at 689–91) Direct evidence at trial proved Ingram’s guilt. (Respondent’s Exhibit C
at 538) The case was not “wholly circumstantial,” and the circumstantial evidence
standard did not apply. Knight v. State, 186 So. 3d 1005, 1012 (Fla. 2016). Because
the state supreme court in Florida recently abandoned the circumstantial evidence
standard, Ingram could not demonstrate prejudice. Bush v. State, 295 So. 3d 179,
199 (Fla. 2020) (“Because this special standard is unwarranted, confusing, and out
of sync with both the jury instructions currently used in this state and the approach
to appellate review used by the vast majority of the courts in this country, we
discontinue its use.”); Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (“Unreliability
or unfairness does not result if the ineffectiveness of counsel does not deprive the
defendant of any substantive or procedural right to which the law entitles him.”).
D. Ground of IAC on Appeal
Ground Eight:
Ingram asserts that appellate counsel was ineffective for not arguing on
direct appeal that the self-defense jury instruction was incorrect (1) for conveying
that deadly force was justifiable “only” if Ingram reasonably believed that deadly
force was necessary to prevent imminent death or great bodily harm to himself
while resisting any attempt to commit aggravated assault (“sub-claim A”) and (2) for
reciting all of the elements for aggravated assault (“sub-claim B”). (Doc. 1 at 13–16)
Strickland applies to a claim of ineffective assistance of appellate counsel. Smith
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v. Robbins, 528 U.S. 259, 285–86 (2000). As determined below, the state appellate
court did not unreasonably apply Strickland.
Sub-claim A
Because trial counsel objected to the use of the modifier “only” in the
self-defense instruction, appellate counsel was ineffective only if the issue would have
succeeded on direct appeal. (Respondent’s Exhibit C at 491–92) Diaz v. Sec’y, Dep’t
Corrs., 402 F.3d 1136, 1144–45 (11th Cir. 2005) (“Appellate counsel would not have
prevailed on this argument, and nonmeritorious claims that are not raised on appeal
do not constitute ineffective assistance of counsel.”); Brown v. United States, 720 F.3d
1316, 1335 (11th Cir. 2013) (“It is also crystal clear that there can be no showing of
actual prejudice from an appellate attorney’s failure to raise a meritless claim.”).
The trial court instructed the jury on self-defense as follows (Respondent’s
Exhibit G at 190–91) (bold added):
The use of deadly force is justifiable only if the defendant
reasonably believes that the force is necessary to prevent
imminent death or great bodily harm to himself while resisting
an attempt to commit aggravated assault with a firearm.
....
A person is justified in using deadly force if he reasonably
believes that such force is necessary to prevent: Imminent death
or great bodily harm to himself or the imminent commission of
aggravated assault with a firearm against himself.
....
If the defendant was not engaged in an unlawful activity and
was attacked in any place where he had a right to be, he had no
duty to retreat and had the right to stand his ground and meet
force with force, including deadly force, if he reasonably
believed it was necessary to do so to prevent death or great
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bodily harm to himself or to prevent the commission of
aggravated assault with a firearm.
These instructions tracked Florida’s standard instruction for justifiable use of deadly
force. Fla. Std. Jury Instr. (Crim.) 3.6(f) (2011).
Ingram testified that he stabbed Dilworth because he thought that Dilworth
was reaching for a gun. (Respondent’s Exhibit G at 122–27, 130–31, 145) Trial
counsel argued the same in closing. (Respondent’s Exhibit G at 158–61, 164,
177–78) Because the defense claimed that Ingram was justified in using deadly force
only after Dilworth attempted to commit an aggravated assault with a firearm, the
state court could have reasonably concluded that the discrepancy between the two
jury instructions was harmless. Vila v. State, 74 So. 3d 1110, 1113 (Fla. 5th DCA
2011) (“It has long been held that the refusal to give a proper instruction that would
have not aided a party is harmless error.”).
Moreover, the first instruction corresponded to a defense based on
Florida’s justifiable homicide statute, Fla. Stat. § 782.02 (2009), and the second
corresponded to a defense based on Florida’s “Stand Your Ground” statutes. Fla.
Stat. §§ 776.012(1) and 776.013(3) (2009). The two instructions based on the
different statutes were not irreconcilable. Pileggi v. State, 232 So. 3d 415, 417 (Fla.
4th DCA 2017) (“We hold that the two statutes are not irreconcilable and, indeed,
compliment each other. Our holding is based on the well-established principle that it
is reasonable for a person subject to a felonious attack to believe deadly force is
necessary to stop oneself from being killed or prevent serious bodily injury.”).
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Because the outcome on direct appeal would have remained the same even if
appellate counsel had raised the issue, the state appellate court did not unreasonably
apply Strickland. Owen v. Fla. Dep’t Corrs., 686 F.3d 1181, 1202 (11th Cir. 2012);
Boland v. Sec’y, Dep’t Corrs., 278 F. App’x 876, 879–80 (11th Cir. 2008).
Sub-claim B
Because trial counsel did not object to the recitation of the elements for
aggravated assault with a deadly weapon in the self-defense instruction, appellate
counsel could have been ineffective only if the instruction was fundamental error.
(Respondent’s Exhibit C at 469–78, 482–94, 617) Pinkney, 876 F.3d at 1296–97. By
denying the claim in an unelaborated decision, the state appellate court implicitly
concluded that the instruction was not fundamentally erroneous. Pinkney, 876 F.3d
at 1296–97. Fundamental error is an issue of state law, and a state court’s
determination of state law receives deference in a federal court. Pinkney, 876 F.3d
at 1297–99.
Even so, Florida’s standard self-defense instruction required the trial court to
recite the elements of aggravated assault, and the instruction supported Ingram’s
defense at trial. (Respondent’s Exhibit G at 122–27, 130–31, 145, 158–61, 164,
177–78) Fla. Std. Jury Instr. (Crim.) 3.6(f) (“Insert and define applicable felony that
defendant alleges victim attempted to commit.”). Because the instruction did not
improperly shift the burden of proof to the defense, the state appellate court did not
unreasonably apply Strickland. Woods v. State, 95 So. 3d 925, 927–28 (Fla. 5th DCA
2012) (holding that recitation of the elements of an applicable felony for the
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justifiable use of deadly force instruction without the phrase “beyond a reasonable
doubt” was not fundamental error).
V. EVIDENTIARY HEARING
Ingram both asks the Court for an evidentiary hearing (Doc. 1 at 17) and
asserts under Section 2254(d)(2) that the state court unreasonably determined
facts. (Doc. 12 at 7–8) Ingram neither presents clear and convincing evidence to
rebut a particular finding by the state court nor shows that a particular finding was
unreasonable. 28 U.S.C. § 2254(d)(2), (e)(1). Ingram also does not proffer what he
would introduce at an evidentiary hearing. Consequently, he is not entitled to a
hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“It follows that if the record
refutes the applicant’s factual allegations or otherwise precludes habeas relief, a
district court is not required to hold an evidentiary hearing.”); Jones v. Sec’y,
Fla. Dep’t Corrs., 834 F.3d 1299, 1319 (11th Cir. 2016) (“[A] petitioner seeking an
evidentiary hearing must make a proffer to the district court of any evidence that he
would seek to introduce at a hearing.” (citations and quotations omitted)).
VI. CONCLUSION
Ingram fails to meet his burden to show that the state court’s decision was
either an unreasonable application of controlling Supreme Court precedent or an
unreasonable determination of fact. As Burt v. Titlow, 571 U.S. 12, 19–20 (2013),
states:
Recognizing the duty and ability of our state-court colleagues
to adjudicate claims of constitutional wrong, AEDPA erects a
formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court. AEDPA requires
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“a state prisoner [to] 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 . . . beyond any
possibility for fairminded disagreement.” Harrington v. Richter,
562 U.S. [86, 103] (2011). “If this standard is difficult to meet”
— and it is — “that is because it was meant to be.” Id., at [102].
We will not lightly conclude that a State’s criminal justice
system has experienced the “extreme malfunctio[n]” for which
federal habeas relief is the remedy. Id., at [103] (internal
quotation marks omitted).
Ingram’s application for the writ of habeas corpus (Doc. 1) is DENIED. The
clerk must enter a judgment against Ingram and CLOSE this case.
DENIAL OF BOTH
A CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Ingram 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 application. 28 U.S.C. § 2253(c)(1). Rather, a district court
must first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the
applicant has made a substantial showing of the denial of a constitutional right.” To
merit a COA, Ingram must show that reasonable jurists would find debatable both
the merits of the underlying claims and the procedural issues he seeks to raise. See
28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan,
279 F.3d 926, 935 (11th Cir. 2001). Because he fails to show that reasonable jurists
would debate either the merits of the grounds or the procedural issues, Ingram is
entitled to neither a COA nor leave to appeal in forma pauperis.
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A certificate of appealability is DENIED. Leave to appeal in forma pauperis is
DENIED. Ingram must obtain permission from the circuit court to appeal in forma
pauperis.
ORDERED in Tampa, Florida, on September 30, 2020.
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