Davis v. Secretary, Department of Corrections et al
ORDER: Davis's petition is DENIED. The CLERK is directed to enter judgment against Davis and to CLOSE this case. A certificate of appealability and leave to appeal in forma pauperis are DENIED. Signed by Judge Kathryn Kimball Mizelle on 3/31/2021. (NPC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JAMIE CAROLE DAVIS,
Case No. 8:17-cv-106-KKM-SPF
Jamie Carole Davis, a Florida prisoner, filed a timely petition for a writ of habeas
corpus under 28 U.S.C. § 2254, challenging her state conviction for second-degree
murder and her life sentence based on alleged failures of her trial counsel. Doc. 1.
Subsequently, she filed an amended petition. Doc. 5. Respondent filed a response in
opposition to the amended petition, Doc. 13, to which Petitioner replied, Doc. 18. After
Petitioner was appointed counsel, Doc. 35, counsel filed a memorandum, Doc. 41, and
appendix, Doc. 42, in support of the amended petition. Respondent filed a response to
the memorandum, Doc. 43. Upon consideration of the submissions of the parties, the
record, and the relevant law, the amended petition is denied. Furthermore, a certificate
of appealability is not warranted.
a. Procedural History
The State of Florida charged Petitioner with second-degree murder after
shooting and killing Christina Marie Tuzzolino. Respondent’s Ex. 1, Vol. I at 20–21.1
A jury found Petitioner guilty as charged, and in the verdict, the jury specifically found
that during commission of the offense, Petitioner possessed and discharged a firearm,
which caused the death of or great bodily harm to Tuzzolino. Id., Vol. II at 302.
The trial court sentenced Petitioner to life in prison. Id., Vol. II at 335–41. The state
appellate court affirmed per curiam the conviction and sentence on appeal.
Respondent’s Ex. 5.
Petitioner filed a postconviction motion under Florida Rule of Criminal
Procedure 3.850, alleging three grounds of ineffective assistance of trial counsel.
Respondent’s Ex. 7. After the motion was dismissed with leave to amend, Respondent’s
Ex. 8, Petitioner filed her amended Rule 3.850 motion alleging the same three
ineffective assistance claims. Respondent’s Ex. 9. The state postconviction court denied
Ground Two of the amended motion and directed the State to respond to Grounds
One and Three. Respondent’s Ex. 10. After the State responded, Respondent’s Ex. 11,
the state postconviction court denied the two remaining grounds, Respondent’s Ex. 12.
Petitioner also was charged with possession of methamphetamine and possession of drug
paraphernalia. Respondent’s Ex. 1, Vol. I at 20–21. Those charges were dismissed by the State. Id.,
Vol. II at 334.
Petitioner filed a motion for rehearing, Respondent’s Ex. 13, which the state
postconviction court denied, Respondent’s Ex. 14. The denial of Petitioner’s amended
Rule 3.850 motion was affirmed per curiam on appeal. Respondent’s Ex. 16. Petitioner
then filed another motion for rehearing, Respondent’s Ex. 17, which was subsequently
denied, Respondent’s Ex. 18.
On January 13, 2017, Petitioner timely filed a petition under § 2254 in this Court,
Doc. 1, which she amended on February 3, 2017, Doc. 5, alleging the three grounds of
ineffective assistance of trial counsel that she presented to the state courts.
b. Factual Background2
Danny Beckner and Petitioner had dated for approximately nineteen years at the
time of the shooting and have six children together. Respondent’s Ex. 2, Vol. III at 403.
On the evening of August 7, 2010, and into the morning of August 8, 2010, Beckner
and Tuzzolino were at a motel together. Id., Vol. I at 126. They drove back to Beckner
and Petitioner’s house in Beckner’s truck. Id., Vol. II at 352. Petitioner met them in the
driveway with a gun. Id. After some argument between Petitioner and Tuzzolino, the
gun discharged, and Petitioner shot Tuzzolino. Id., Vol. III at 434–40. At trial, the State
asserted that Petitioner intentionally shot Tuzzolino. Id. at 521. Petitioner asserted that
the gun unintentionally discharged. Id. at 440.
The factual background is based on the trial transcript and appellate briefs.
i. The State’s Evidence at Trial
At trial, witnesses called by the State testified that Beckner’s truck was parked in
the driveway and the driver’s side door of the truck was open. Id. at 133, 175, 231. Riley
Thomas, Petitioner’s neighbor, testified that she saw Beckner and Petitioner outside of
their residence and overheard “yelling.” Id. at 132–33. Thomas observed Petitioner
“standing on the porch” and saw that Petitioner had a gun when she walked down the
stairs. Id. at 133–34. Thomas testified that Petitioner walked from the porch to the
“driver’s side of the truck where the door was open” and “fired” once, “pointing [the
gun] into the truck.” Id. at 134–35. She testified that after the gunshot, a woman
“jumped out [of] the truck and started running.” Id. at 135. The woman collapsed at the
neighbor’s house. Id. at 136. Thomas denied that it looked like there was any kind of
struggle going on when Petitioner fired the gun and testified that Petitioner was
“completely outside of the truck cab.” Id. at 136.
A Polk County Sheriff’s deputy who spoke with Petitioner immediately after the
shooting testified that Petitioner told him she fired the gun when Tuzzolino “made a
jabbing motion” toward her. Id. at 151. A detective testified that Petitioner indicated
that the gun accidentally discharged after Tuzzolini lunged at Petitioner. Id. at 184. The
medical examiner testified that Tuzzolini died of a gunshot wound and that the gunshot
was fired from “less than six inches [away] but probably much closer.” Id. at 165–68.
ii. The Defense’s Evidence at Trial
Testifying on behalf of the defense, Brian Otstot, Petitioner’s neighbor
recounted that after Beckner’s truck pulled up, he saw Petitioner walk down the porch
stairs with a gun. Id. at 352–53. Beckner exited the truck while a female stayed in it. Id.
at 353. Otstot testified that Petitioner walked to the driver’s side of the truck and leaned
inside of it so that the upper half of her body was inside the truck. Id. at 353–54. After
Petitioner leaned in, Otstot saw “a little bit of wrestling, a little bit of kind of like fighting
and . . . flipping around and hands flailing everywhere.” Id. at 354. Then, the gun went
off, and the wrestling ceased. Id. at 355.
Petitioner testified at trial. She recounted that on the evening of August 7, 2010,
Beckner left the house around 11:00 p.m. or 11:30 p.m. Id. at 417. She fell asleep, and
when she woke up early in the morning, she noticed Beckner was not home yet. Id. at
417–18. She called him several times and eventually talked to him on the phone. Id. at
418–19. She could hear a female voice in the background. Id. at 419. She testified that
she was “hurt” but that he had cheated on her in the past. Id. at 420–21. At some point,
when she was on the phone with Beckner, Petitioner could hear Beckner and Tuzzolini
arguing. Id. at 427. Then, Tuzzolini started making threats toward Petitioner. Id. at 428.
In response to these threats, Petitioner got a gun. Id. at 428–29.
When Beckner and Tuzzolini pulled into the driveway, Petitioner walked outside
and saw Beckner arguing with Tuzzolini in the truck. Id. at 430. Tuzzolini was “grabbing
onto his shirt and lunging at his shoulders.” Id. After unsuccessfully trying to open the
passenger’s side door, Petitioner walked to the driver’s side door of the truck. Id. at 434.
Beckner exited the truck, and Petitioner and Tuzzolini started arguing. Id. Tuzzolino
“was on her knees in the center of the truck.” Id. at 434. Tuzzolini started lunging at
Petitioner’s face with what Petitioner thought was a knife,3 and the gun discharged as
Petitioner was “[t]ussling” with Tuzzolini. and “blocking [Tuzzolini’s] fists.” Id. at 438–
39. Petitioner testified that the gun fired when “part of [Tuzzolini’s] body hit
[Petitioner’s] hand and it twisted.” Id. at 440.
a. Section 2254 Standard
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs
this proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas
relief under the AEDPA may be granted only 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) provides that federal habeas relief cannot be granted on a claim adjudicated on
the merits in state court unless the state court’s adjudication:
(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
3 Petitioner later testified that a phone case was found in her driveway and speculated that is what
Tuzzolino may have had in her hand. Respondent’s Ex. 2, Vol. III at 451. A crime scene investigator
also testified that she found a black cell phone case on the front center floorboard of the truck. Id. at
(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
For purposes of § 2254(d)(1), a decision is “contrary to” clearly established
federal law “if the state court arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or if the state court decides a case differently than
[the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 413 (2000). The phrase “clearly established Federal law” encompasses the
holdings only of the United States Supreme Court “as of the time of the relevant statecourt decision.” Id. at 412. A decision involves an “unreasonable application” of clearly
established federal law “if the state court identifies the correct governing legal principle
from [the Supreme] Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.” Id.
For purposes of § 2254(d)(2), a state court’s findings of fact are presumed
correct. See Rolling v. Crosby, 438 F.3d 1296, 1301 (11th Cir. 2006) (“The factual findings
of the state court, including the credibility findings, are presumed to be correct . . . .”). A
petitioner can rebut the presumption of correctness afforded to a state court’s factual
findings only by clear and convincing evidence. § 2254(e)(1).
The AEDPA was meant “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. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s
application of clearly established federal law is objectively unreasonable,” as “an
unreasonable application is different from an incorrect one.” Id. at 694. As a result, to
obtain relief under the AEDPA, “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); see
also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (stating that “[t]he state court’s application
of clearly established federal law must be objectively unreasonable” for a federal habeas
petitioner to prevail and that the state court’s “clear error” is insufficient).
When the last state court to decide a federal claim explains its decision in a
reasoned opinion, a federal habeas court reviews the specific reasons as stated in
the opinion and defers to those reasons if they are 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
relevant state-court decision is not accompanied with reasons for the decision—such
as a summary affirmance without discussion—the federal court “should ‘look through’
the unexplained decision to the last related state court decision that does provide a
relevant rationale [and] presume that the unexplained decision adopted the same
reasoning.” Id. 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 . . . .” Id.
In addition to satisfying the deferential standard of federal court review of a state
court adjudication, a federal habeas petitioner must exhaust his claims by raising them
in state court before presenting them in a federal petition. See 28 U.S.C.
§ 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.”). A petitioner satisfies this exhaustion
requirement if he fairly presents the claim in each appropriate state court and alerts that
court to the federal nature of the claim. Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir.
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). A petitioner shows cause for a procedural default when
he shows “that some objective factor external to the defense impeded the effort to raise
the claim properly in the state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir.
1999). A petitioner shows prejudice by proving that “there is at least a reasonable
probability that the result of the proceeding would have been different” absent the
constitutional violation. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). “A
‘fundamental miscarriage of justice’ occurs in an extraordinary case, where a
constitutional violation has resulted in the conviction of someone who is actually
b. Ineffective Assistance of Counsel Standard
Petitioner brings three claims for ineffective assistance of trial counsel under the
Sixth Amendment. Under the well-known, two-part standard articulated in Strickland v.
Washington, 466 U.S. 668 (1984), to succeed, he must show both deficient performance
by his counsel and prejudice resulting from those errors. Id. at 687. The first part
“requires showing that counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. The lynchpin
of this analysis is whether counsel’s conduct “was reasonable considering all the
circumstances.” Id. at 688. A petitioner establishes deficient performance if “the
identified acts or omissions [of counsel] were outside the wide range of professionally
competent assistance.” Id. at 690. A court “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. “[C]ounsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Id.
The second part requires showing that the deficient performance prejudiced the
defense. Id. at 687. “An 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. To demonstrate prejudice, a petitioner 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.” Id. at 694.
“The question [on federal habeas review of an ineffective assistance claim] ‘is not
whether a federal court believes the state court’s determination’ under
the Strickland standard ‘was incorrect but whether that determination was
unreasonable—a substantially higher threshold.’ ” Knowles v. Mirzayance, 556 U.S. 111,
123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). Consequently, federal
petitioners rarely prevail on claims of ineffective assistance of counsel 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 (quotation and
Petitioner raises three claims of ineffective assistance of counsel in her federal
petition. Because the state postconviction court decision denying relief on each of these
claims is neither contrary to nor an unreasonable application of clearly established
federal law, the Court denies Petitioner’s petition.
a. Ground One
Petitioner argues that her trial counsel rendered ineffective assistance of counsel
for waiving the jury instruction on the lesser included offense of manslaughter and that
trial counsel’s waiver caused Petitioner irreparable prejudice. Doc. 5 at 6. She contends
that “had the jury been instructed on the lesser [included offense of manslaughter],
there is a reasonable probability that the jury would have found [Petitioner] guilty of
[the] lesser offense based on the information and evidence presented at trial.” Id. In her
supporting memorandum, Petitioner argues that trial counsel’s performance was
deficient because he failed to know the law applicable to Petitioner’s case and that
“[p]rejudice [is] established, as the jury was prevented from considering the
manslaughter instruction, exposing [Petitioner] to a second-degree murder conviction
and sentence of life, which she received.” Doc. 41 at 28, 33. Petitioner contends that
had counsel not waived the instruction, the trial court would have instructed the jury
on manslaughter and that there is a reasonable probability that the jury would have
found her guilty of manslaughter rather than second-degree murder. Per Petitioner, she
would have then received a lesser sentence.
At trial, counsel confirmed that he was “not going to go for a manslaughter
[charge] as a lesser [included offense]” because “essentially 10/20/Life is the same result
. . . for [manslaughter or second-degree murder].” Respondent’s Ex., Vol. III at 359.
Then, during the sentencing hearing, Petitioner’s trial counsel moved for a new trial on
the ground that he had failed to request a jury instruction on manslaughter. Id. at 310–
12. Trial counsel asserted that he had decided not to request the instruction because he
mistakenly believed that Florida’s “10-20-Life” statute applied to manslaughter, and
therefore incorrectly believed that the court could impose the same sentence for either
a manslaughter conviction or a second-degree murder conviction Id. The “10-20-Life”
statute requires courts to impose a minimum sentence of 10 years, 20 years, 25 years,
or life for certain felony convictions involving the use of a weapon. § 775.087, Fla. Stat.
Petitioner raised this claim in her amended Rule 3.850 motion in the
postconviction court. Respondent’s Ex. 9 at 30–33. In defending her conviction and
sentence, the State argued that: (1) the claim “is procedurally barred as a claim that could
have been raised on direct appeal” through a motion for new trial; and (2) even
assuming that trial counsel was deficient, Petitioner “has not shown that [the]
instruction on manslaughter would have made any difference.” Respondent’s Ex. 11 at
12–14. The State contended that Petitioner failed to demonstrate prejudice under
Strickland because (a) considering the evidence, no reasonable jury would have found
manslaughter, and (b) the result of the trial would not have been different, as the
evidence supported Petitioner’s ill will, hatred, spite and evil intent toward Ms.
Tuzzolino and therefore supported a conviction for second-degree murder. Id. at 14–
The state postconviction court denied Petitioner’s claim:
In claim 1 Defendant argued that trial counsel was ineffective for waiving
the manslaughter jury instruction. The State argued that the issue was
preserved for direct appeal as trial counsel filed a motion for New Trial
arguing that the instruction should have been given. The State also argues
that the evidence did not support a conviction for Manslaughter and
therefore prejudice has not been established. . . . After review of the State’s
arguments, citations, and attachments, attached herein, the Court agrees.
Respondent’s Ex. 12. The state appellate court affirmed the state postconviction court’s
denial of the amended Rule 3.850 motion per curiam without a written opinion.
Respondent’s Ex. 16. Petitioner raised this claim again in her federal petition. Doc. 5 at
5. As an initial matter, this claim is not procedurally barred as a claim that could have
been raised on direct appeal. “Florida requires that ineffective assistance claims
generally be raised on collateral review pursuant to Florida Rule of Criminal Procedure
3.850.” Sullivan v. Sec’y, Fla. Dep’t of Corr., 837 F.3d 1195, 1199 (11th Cir. 2016) (citing
Smith v. State, 998 So.2d 516, 522 (Fla. 2008)). Indeed, contrary to Respondent’s
argument, both cases cited by Respondent stand for the proposition that ineffective
assistance claims are appropriate issues for collateral review, rather than direct appeal.
See Smith v. State, 445 So. 2d 323, 325 (Fla. 1983) (concluding that all of the issues
brought by appellant could have been raised on direct appeal and were therefore
precluded from the Court’s consideration by collateral review, except for appellant’s
claim of ineffective assistance of counsel and one other claim); Rodriguez v. State, 919 So.
2d 1252, 1262–87 (Fla. 2005) (analyzing numerous ineffective assistance claims,
affirming the trial court’s denial of postconviction relief, and denying habeas relief).
Moreover, Petitioner raised this claim on direct appeal, and the State argued at that time
that the claim should be addressed during postconviction proceedings in a Rule 3.850
motion, rather than on direct appeal. Respondent’s Ex. 3 at 14–16; Respondent’s Ex. 4
Turning to the merits of the claim, Petitioner has failed to show that the state
postconviction courts’ denial of this claim was contrary to, or an unreasonable
application of, Strickland’s prejudice component. In Florida, manslaughter is a
necessarily lesser-included offense of second-degree murder. Jamerson v. Sec’y for Dep’t of
Corr., 410 F.3d 682, 689 (11th Cir. 2005). Mistakenly believing that the 10-20-Life
provision of the Florida Statutes applied to manslaughter convictions, Petitioner’s trial
counsel waived the lesser included jury instruction for manslaughter. Respondent’s Ex.
2, Vol. I, at 101, 310–1. Even assuming that trial counsel’s failure to request a
manslaughter instruction was deficient, Petitioner has failed to show prejudice. Pope v.
Sec’y for Dep’t of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (“Because a petitioner’s
failure to establish either deficient performance or prejudice is fatal to a Strickland claim,
we need not address both Strickland prongs if the petitioner fails to satisfy either one of
Petitioner’s claim is too speculative to establish prejudice as a result of trial
counsel’s waiver of the manslaughter instruction. See Santiago v. Sec’y, Fla. Dep’t of Corr.,
472 F. App’x 888, 888–89 (11th Cir. 2012) (holding that the state court did not
unreasonably apply Strickland when it denied a claim of ineffective assistance where “the
jury would not have been permitted to convict [the defendant] of the lesser included
offenses because it had concluded that the evidence established that he was guilty of
the greater offenses”); Sanders v. State, 946 So.2d 953, 956 (Fla. 2006) (holding that,
under Strickland, “a defendant cannot, as a matter of law, demonstrate prejudice by
relying on the possibility of a jury pardon” through conviction of a lesser offense when
the jury has convicted the defendant of the greater offense). Petitioner cannot show
that, but for his counsel’s deficient performance, the result of the proceedings would
have been different, much less that the state court’s determination was unreasonable in
this regard. Any assertions that Petitioner would have been convicted of the lesser
included offense of manslaughter, as opposed to the greater offense second-degree
murder, are pure speculation—“speculation both that the state trial could would have
decided to instruct the jury on the lesser included offense and that the jury, if instructed
on the lesser included offense, would have convicted on it instead of the higher
offense.” Harris v. Crosby, 151 F. App’x 736, 738 (11th Cir. 2005). That speculation is
insufficient to undermine confidence in the outcome of Petitioner’s trial. Id.
Petitioner argues that prejudice is established because “[h]ad the jury had the
opportunity to consider the manslaughter instruction in [Petitioner’s] case, there is a
substantial probability, based on the evidence that they would have convicted
[Petitioner] of the lesser included [offense] of manslaughter.” Doc. 41 at 33. But the
jury necessarily found (as evidenced by its guilty verdict) that the evidence showed
beyond a reasonable doubt that Petitioner committed second-degree murder. If the jury
believed that Petitioner was not guilty of second-degree murder, they were required to
acquit her. The jury was instructed that if “you do return a verdict of guilty, it should
be for the highest offense which has been proved beyond a reasonable doubt,”
Respondent’s Ex. 2, Vol. III at 538, and that “[i]f you in your deliberations conclude
that no offense has been proven beyond a reasonable doubt, then of course your verdict
must be one of not guilty,” Respondent’s Ex. 2, Vol. III at 538–39. The jury is presumed
to have complied with this instruction. See Brown v. Jones, 255 F.3d 1273, 1280 (11th Cir.
2001) (“We have stated in numerous cases . . . that jurors are presumed to follow the
court’s instructions.”); Strickland, 466 U.S. at 693–94 (explaining that a reviewing court
should presume that the jury acted according to law).
Trial counsel’s failure to request instructions for the lesser offense of
manslaughter did not prejudice Petitioner because the jury found Petitioner guilty of
second-degree murder based upon sufficient evidence in the record. Magnotti v. Sec’y for
Dep’t of Corr., 222 F. App’x 934, 940 (11th Cir. 2007) (explaining that the argument that
a jury would have convicted a defendant on a lesser offense had it been given the
instructions on such an offense, is not conclusive where the jury properly convicted
him of the greater offense based upon the evidence presented at trial); see also Strickland,
466 U.S. at 493–94. For example, the State presented eyewitness testimony that
Petitioner walked out of her house, pointed the gun into the truck, and fired it, without
any physical struggle. Respondent’s Ex. 2, Vol. I at 134–36. That testimony along with
other evidence properly supported the jury’s guilty verdict. At bottom, Petitioner’s
prejudice argument implicitly rests on a nullification prospect.
Petitioner therefore has not proved that the state postconviction court’s denial
of this claim was contrary to or unreasonable application of Strickland. Accordingly,
Petitioner is not entitled to relief on Ground One.
b. Ground Two
Petitioner contends that trial counsel was ineffective in failing to prepare for the
penalty phase of the trial. Doc. 5 at 7. She alleges that counsel failed to “call a single
witness to testify on [her] behalf”; failed to investigate her “background,” “mental
health issues,” or “other mitigating factors”; and failed to interview her family, friends,
and co-workers. Id.
Petitioner raised this claim in her initial Rule 3.850 motion. Respondent’s Ex. 7
at 5–6. Petitioner alleged that: (1) her six children could have testified to “circumstances
in the home that may have contributed to the incident that resulted in [Petitioner’s]
charge of Second Degree Murder”; (2) “Danny Beckner was available and willing to
testify as to [Petitioner’s] character and the particulars that may have [led] to the crime
[Petitioner] was convicted of”; and (3) “[t]here were many family members, friends, and
members of the community who were available and willing to testify on [Petitioner’s]
behalf to offer mitigating circumstances.” Id. She further alleged that counsel never
investigated her “background[,]. . .mental health issues[,] or . . . lack of criminal history.”
Id., at 6. The state postconviction court dismissed Ground Two with leave to amend,
finding that the claim was “insufficiently pled” because Petitioner “failed to indicate
which mitigating factors should have been proven.” Respondent’s Ex. 8.
In her amended Rule 3.850 motion, Petitioner failed to correct the pleading
deficiencies in Ground Two and alleged the identical claim raised in Ground Two of
the initial Rule 3.850 motion. Respondent’s Ex. 9 at 33–34. In its order on Petitioner’s
amended Rule 3.850 motion, the state postconviction court denied the claim because
Petitioner “failed to indicate, with specificity, which Fla. Stat. 921.0026 mitigating
factors trial counsel failed to present.” Respondent’s Ex. 10. The state appellate court
affirmed the denial of Petitioner’s amended Rule 3.850 motion per curiam without a
written opinion. Respondent’s Ex. 16.
In her habeas petition, Petitioner raises Ground Two again, contending that trial
counsel was ineffective for failing to present mitigating evidence at the sentencing phase
of trial. Doc. 5 at 7. Respondent argues that “Petitioner’s failure to exhaust all of her
state remedies renders her claim procedurally defaulted for purposes of federal habeas
review.” Doc. 13 at 17–18. Respondent contends that the state postconviction court
dismissed Ground Two for being deficiently pleaded after giving Petitioner a chance to
amend her Rule 3.850 motion, Respondent’s Exs. 10, 13, and that Petitioner’s failure to
amend her claim renders it abandoned. Doc. 13 at 16–17. Moreover, Respondent
argues, Petitioner has not shown “cause” and “prejudice” required to escape the
preclusive effect of the procedural default. Id. at 18.
“Federal habeas review of a petitioner’s claim is typically precluded when the
petitioner procedurally defaulted on or failed to exhaust the claim in state court.
Procedural bar occurs when a petitioner’s failure to comply with state procedures
provides an ‘independent and adequate’ basis for the state court’s decision.” Pope, 680
F.3d at 1284 (citation omitted). Id. A Florida state court’s “dismissal of a postconviction claim for facial insufficiency constitutes—at least for purposes of the
procedural default analysis—a ruling ‘on the merits’ that is not barred” from federal
habeas review. Id. at 1286. “A failure to exhaust occurs, in turn, when a petitioner has
not ‘fairly present[ed]’ every issue raised in his federal petition to the state’s highest
court, either on direct appeal or on collateral review.” Id. at 1284 (quoting Mason v. Allen,
605 F.3d 1114, 1119 (11th Cir. 2010)). “The exhaustion requirement is satisfied when a
habeas petition presents the federal claim to the appropriate state court, thereby
‘afford[ing] the state courts a meaningful opportunity to consider [the] allegations of
legal error.’” Id. at 1286 (alteration in original) (quoting Vasquez v. Hillery, 474 U.S. 254,
Here, Petitioner’s claim is properly before the Court: it is not procedurally barred,
and the exhaustion requirement is satisfied. The state postconviction court dismissed
Ground Two for being deficiently pleaded. Respondent’s Exs. 10, 13. This is a ruling
on the merits that is proper for federal review. Pope, 680 F.3d at 1285–86; Boyd v. Comm.,
Ala. Dep’t of Corr., 697 F.3d 1320, 1331 (11th Cir. 2012); Borden v. Allen, 646 F.3d 785,
812–15 (11th Cir. 2011). Further, Petitioner has sufficiently exhausted her claim in state
court where she presented the same Ground Two failure-to-mitigate argument to the
state postconviction court that she does in her federal petition now. Respondent’s Exs.
9, 15; Doc. 5 at 7; see Pope, 680 F.3d at 1286–87 (concluding that the petitioner exhausted
her failure-to-mitigate claim where the petitioner’s “federal habeas petition raised the
exact same legal issue that was presented to the state court,” “despite variations in the
factual allegations urged in its support” (citation and punctuation omitted)).
Accordingly, Ground Two is entitled to a review on the merits.
Florida Statute Section 921.0026 enumerates a list of potential mitigating
circumstances that may be considered in calculating a sentence for a felony offense.
Petitioner never identified mitigating circumstances in her initial Rule 3.850 motion,
Respondent’s Ex. 7 at 5–6; in her amended Rule 3.850 motion, Respondent’s Ex. 9 at
33–34; or in her motion for rehearing, Respondent’s Ex. 13 at 3. Although she indicated
that her children, Danny Beckner, and other family members and friends were willing
to testify regarding “mitigating circumstances,” she failed to identify any mitigating
circumstances with specificity. Respondent’s Ex. 9 at 33. And to the extent that she
alleged that counsel failed to investigate her “mental health issues,” she failed to identify
any mental health issue. Finally, her claim that counsel failed to investigate her “lack of
criminal history” at sentencing is belied by the record. Mr. Bantner informed the trial
court that Petitioner did not “have any real criminal history to speak of outside of this
- - this one occurrence” which was “as isolated an incident as could occur. . . .”
Respondent’s Ex. 1, Vol. II at 313–14.
The state courts’ denial of this claim was not an unreasonable application of
Strickland’s prejudice component because Petitioner failed to identify mitigating
circumstances that trial counsel could have used to argue for a lesser sentence, and failed
to demonstrate a reasonable probability of a lesser sentence had mitigating
circumstances been presented to the trial court. 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.”). Accordingly, Ground Two warrants no relief.
c. Ground Three
Petitioner contends that trial counsel was ineffective “for failing to object to [a]
defense witness being placed on the stand wearing [an] orange county jail uniform.”
Doc. 5 at 8. Brian Otstot was Petitioner’s neighbor and was called as a witness on behalf
of Petitioner at trial. Id. Otstot testified that he witnessed the shooting. Respondent’s
Ex. 2, Vol. II at 351–57. In her habeas petition, Petitioner argues that “[t]he fact that
[Mr. Otstot] was in his orange jail uniform was enough to impact and influence the jury
to [view the] witness as less credible due to the fact that he was in custody for some
alleged criminal activity.” Doc. 5 at 8.
Petitioner raised this claim in state court as Ground Three of her amended Rule
3.850 motion. Respondent’s Ex. 9 at 34–35. In its order denying the claim, the state
postconviction court stated:
In claim 3 Defendant argued that trial counsel was ineffective for having
a defense witness testify in his jail uniform. The State argued that prejudice
could not be established based on the evidence presented during the
State’s case in chief. After review of the State’s arguments, citations, and
attachments, attached herein, the Court agrees.
Respondent’s Ex. 12. The state appellate court affirmed per curiam without written
opinion. Respondent’s Ex. 16.
The state postconviction court’s ruling on the prejudice prong was not an
objectively unreasonable application of clearly established law. To establish prejudice in
this circumstance, Petitioner must demonstrate a reasonable probability that the
outcome of the trial would have been different had Mr. Otstot worn civilian clothes
rather than his jail uniform. See Kormondy v. Sec’y, Fla. Dep’t of Corr., 688 F.3d 1244, 1274
(11th Cir. 2012) (“The prejudice prong requires the petitioner to establish a reasonable
probability that, but for counsel’s errors, the outcome at trial would have been
different.” (quotation omitted)). Because the Court can identify no basis upon which it
could conclude that the outcome of the trial would have been different had Mr. Otstot
testified in civilian clothing, it certainly cannot conclude that the state court’s
determination of this same conclusion was an unreasonable one.
Initially, Petitioner’s claim of prejudice is vague and conclusory. Although
Petitioner concludes that the jury believed Mr. Otstot was “less credible” because they
saw him wearing a jail uniform, Doc. 5 at 9, she does not explain how Mr. Otstot’s
testimony was crucial to her defense or how his perceived lack of credibility caused the
jury to convict. Vague and conclusory allegations of prejudice are insufficient to warrant
federal habeas relief. See Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992)
(“Conclusory allegations of ineffective assistance are insufficient.” (quotation omitted)).
Even if Petitioner’s claim were not conclusory, it would not warrant relief.
Petitioner has not identified a Supreme Court case, and the Court knows of none, which
requires an attorney for a criminal defendant to furnish civilian clothes to prisoner
witnesses. 4 It is “not an unreasonable application of clearly established Federal law for
a state court to decline to apply a specific legal rule that has not been squarely
established by th[e Supreme] Court,” Knowles, 556 U.S. at 122 (quotation omitted). In
sum, Petitioner has failed to demonstrate that the state courts’ denial of this claim was
either contrary to Strickland’s prejudice prong. Accordingly, Ground Three warrants no
CERTIFICATE OF APPEALABILITY
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). Instead, a district court
or court of appeals must first issue a certificate of appealability (COA). Id. To obtain a
COA, a petitioner must show that “jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that jurists could conclude the issues
It is well established that requiring a criminal defendant to appear at trial in jail clothing violates the
Fourteenth Amendment. See United States v. Johnson, 634 F. App’x. 227, 229 (11th Cir. 2015) (“It is a
Fourteenth Amendment violation to compel a criminal defendant to stand trial before a jury in
identifiable prison garb.”). In this case, however, Otstot was a witness rather than the defendant.
presented are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 326 (2003); 28 U.S.C. § 2253(c)(2). Petitioner has not made that
showing. And because Petitioner is not entitled to a COA, she is also not entitled to
appeal in forma pauperis.
Accordingly, it is therefore ORDERED that Petitioner’s Amended Petition for
Writ of Habeas Corpus (Doc. 5) is DENIED. The Clerk is DIRECTED to enter
judgment against Petitioner and to CLOSE this case.
ORDERED in Tampa, Florida on March 31, 2021.
Copies to: Counsel of Record
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