ORDER

CHARLENE EDWARDS HONEYWELL, District Judge.

Petitioner, an inmate in the Florida Department of Corrections proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1). Petitioner challenges his conviction for robbery with a weapon, entered in 2004 in the Tenth Judicial Circuit, Polk County, Florida. Respondent has filed a response (Dkt. 4), and Petitioner filed a reply (Dkt. 7). Upon review, the petition must be denied.

Procedural History

The State of Flor ida charged Petitioner with one count of robbery with a deadly weapon. (Dkt. 6, Ex. A1.) A jury convicted him of the lesser-included offense of robbery with a weapon. (Dkt. 6, Ex. A2.) Petitioner was sentenced to thirty years' imprisonment as a prison releasee reoffender. (Dkt. 6, Ex. A3.) The state appellate court per curiam affirmed Petitioner's judgment and sentence on direct appeal. (Dkt. 6, Ex. B3.)

Petitioner filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Dkt. 6, Ex. C1.) After summarily denying numerous claims and conducting an evidentiary hearing on several other claims, the state court entered a final order denying Petitioner's Rule 3.850 motion. (Dkt. 6, Ex. C2, Dkt. 1, pp. 46-52.) The state appellate court per curiam affirmed the order of denial on May 13, 2011. (Dkt. 1, p. 53.) Respondent acknowledges that this petition is timely under 28 U.S.C. § 2244(d).

Standard of Review for Petitions Subject to AEDPA

This petition is subject to the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), effective April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Habeas relief can only be granted if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d) sets forth a highly deferential standard for federal court review of a state court's findings of law and fact. It provides that habeas relief may not be granted on a claim adjudicated on the merits in state court unless such determination:

28 U.S.C. § 2254(d)(1)-(2).

The Supreme Court has explained this deferential standard:

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Additionally, "the focus ... is on whether the state court's application of clearly established federal law is objectively unreasonable ... an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). See Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that [the federal court is] to decide."). The phrase "clearly established Federal law" encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state court decision." Williams, 529 U.S. at 412.

The purpose of federal review is not to re-try the case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applica tions in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell, 535 U.S. at 693. In other words, "AEDPA prevents defendants-and federal courts-from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, 130 S.Ct. 1855, 1866 (2010).

A state court's factual findings must also be given deference, and a petitioner bears the burden of overcoming a state court's factual determination by clear and convincing evidence. Specifically, a state court's determinations of fact "shall be presumed to be correct," and the habeas petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Henderson v. Campbell, 353 F.3d 880, 890-91 (11th Cir. 2003).

Exhaustion of State Remedies and Procedural Default

Before a district court can grant habeas relief to a state prisoner under § 2254, the petitioner must exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in a state postconviction motion. See § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition."). See also Henderson, 353 F.3d at 891 ("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.") (citations omitted). A state prisoner "`must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process,' including review by the state's court of last resort, even if review in that court is discretionary." Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) (quoting O'Sullivan, 526 U.S. at 845.)

To exhaust a claim, a petitioner must make the state court aware of both the legal and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) ("Exhaustion of state remedies requires that the state prisoner `fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass on and correct alleged violations of its prisoners' federal rights.'") (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). A federal habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented." Pruitt, 348 F.3d at 1358. The prohibition against raising an unexhausted claim in federal court extends to both the broad legal theory of relief and the specific factual contention that supports relief. Kelley v. Sec'y, Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).

The requirement of exhausting state remedies as a prerequisite to federal review is satisfied if the petitioner "fairly presents" his claim in each appropriate state court and alerts that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971). A petitioner may raise a federal claim in state court "by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such claim on federal grounds, or simply by labeling the claim `federal.'" Baldwin v. Reese, 541 U.S. 27, 32 (2004).

The doctrine of procedural default provides that "[i]f the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner "must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must demonstrate not only that the errors at his trial created the possibility of prejudice but that they worked to his actual and substantial disadvantage and infected the entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S. 152 (1982). The petitioner must show at least a reasonable probability of a different outcome. Henderson, 353 F. 3d at 892; Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).

Alternatively, a petitioner may obtain federal habeas review of a procedurally defaulted claim if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96. A fundamental miscarriage of justice occurs in an extraordinary case where a constitutional violation has probably resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892. This exception requires a petitioner's "actual" innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To meet this standard, a petitioner must show a reasonable likelihood of acquittal absent the constitutional error. Schlup, 513 U.S. at 327.

Standard of Review for Claims of Ineffective Assistance of Counsel

Claims of ineffective assistance of counsel are reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To obtain relief under Strickland, a petitioner must show that counsel's performance was deficient and that this deficiency prejudiced the petitioner. Id. at 687. In order to show deficient performance, a petitioner must demonstrate that "in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." Id. at 690. 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.

Counsel is presumed to have provided effective assistance. See id. at 689-90. Further, "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. Sustaining a claim of ineffective assistance of counsel is difficult because "[t]he standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Harrington v. Richter, 131 S.Ct. 770, 788 (2011) (citations omitted). If a court can dispose of a claim of ineffective assistance of counsel on one prong of the Strickland test, the court need not consider the other prong. Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).

Discussion

I. Factual Background1

This case involved a robbery at Love's Travel Stop in Polk City, Florida, on January 31, 2004. Donna Smead was working as a cashier at the gas desk. (Dkt. 6, Ex. A4, p. 131.) At approximately 2:30 p.m., a man at the desk told her that he wanted money. (Id., pp. 131-32.) The man did notsay that he had a weapon, and Smead did not see a weapon. (Id., p. 141.) However, Smead observed that the man had his hand in his pocket. (Id., pp. 132, 139, 141.) Smead saw that it was "pointed." (Id., pp. 139, 141.) She "assumed it was the gun." (Id, p. 133.) The man said to Smead, "I don't want to do it, but I will." (Id.) Smead took this to mean that he would shoot her if she did not follow his instructions. (Id.) The man had a t-shirt tied around his face, but Smead could see his eyes. (Id, pp. 132, 134.) After she gave him cash from her drawer, he left the building and headed south towards an area with orange groves. (Id., pp. 134, 135-36.) Smead made an in-court identification of Petitioner at trial. (Id., p. 135.)

After the robbery, Jason Kalbs, another employee of Love's Travel Stop, ran out of the building. (Id., p. 148.) He was facing south when he saw someone in a nearby wooded area. (Id., pp. 148-49.) The person Kalbs saw told him that he had a gun and he would open fire or would shoot. (Id., pp. 149, 150, 154.) Employee Stephen Wilson also ran out of the building after the robbery and chased a man whom he saw running through the parking lot. (Id., pp. 157-58.) The man ran into a swampy area and told Wilson not to come any closer, or he would shoot Wilson. (Id., pp. 158, 165.) Wilson did not see any weapon. (Id., p. 165.) At trial, Wilson identified Petitioner as the man he saw. (Id., pp. 158-59.)

Law enforcement, including a canine unit, responded and pursued the suspect. As Polk County Deputy Sheriff Stephen Hearth's dog tracked into a wooded area, Deputy Hearth observed several pieces of clothing "along the way"; the first item he saw was a pair of shoes. (Id., p. 174.) Deputy Tonya Wright of the Polk County Sheriff's Office also participated in the pursuit of the suspect. As she followed the path tracked by Deputy Hearth's dog, Deputy Wright saw a shirt, tennis shoes, jeans, a sweatshirt, and a "jersey style" shirt. (Id., pp.183-84, 186-89.) These items were recovered and were entered into evidence at trial.

Deputy Hearth's dog continued to track the suspect, and as they approached a clump of trees, Deputy Hearth heard a voice saying, "I give up." (Id., p. 176.) Deputy Wright also heard a person near a clump of trees saying that he was giving up. (Id., p. 190.) Deputy Wright saw that the suspect was only wearing a pair of shorts. (Id., p. 191.) Similarly, when the suspect was handcuffed, Deputy Hearth observed him on the ground wearing only what Deputy Hearth believed to be his underwear. (Id., p. 177.) At trial, Deputy Hearth identified the suspect as Petitioner. (Id.) According to Deputy Wright, no weapons were found along the dog's track. (Id., p. 191.)

Deputy Roy Knecht of the Polk County Sheriff's Office also responded to the robbery. (Id., pp. 193-94.) One of his duties was to transport the suspect after he was apprehended. (Id., p. 194.) He and the other officers had been made aware that the perpetrator was believed to have had a weapon or gun during the robbery. (Id., p. 195.) When Petitioner was being placed in the back of a police vehicle following his arrest, Deputy Knecht said to the other officers present, "We need to find a gun." (Id.) Deputy Knecht testified that, after he made this comment, Petitioner said, "There never was a gun; I only had a knife." (Id.)

II. Petitioner's Claims2

Ground One: "MR. POPE WAS DEPRIVED OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO OBJECT TO A DENIAL OF A MOTION FOR JUDGMENT OF ACQUITTAL IN ORDER TO PRESERVE THE ISSUE FOR APPEAL."

Petitioner argues that counsel was ineffective for failing to object when the trial court denied his motion for judgment of acquittal. He contends that, because of this failure, his claim was not preserved for appellate review. In support of his ineffective assistance of counsel claim, Petitioner appears to argue that he would have had a meritorious issue for appeal because, as no witness testified to seeing a weapon and no weapon was found, the evidence presented at rial did nott demonstrate that he carried a weapon during the commission of the offense.3

Petitioner raised this argument in claim one of his Rule 3.850 motion, which the state court summarily denied. In denying this claim, the state court found:

(Dkt. 6, Ex. C2, p. 38) (court's citation to exhibit omitted).

The record reflects that after the State rested its case, defense counsel moved for a judgment of acquittal. As noted in the state court's order, counsel presented detailed argument in support of his motion. He specifically argued that the evidence presented was insufficient to prove that Petitioner carried a weapon or a deadly weapon during the robbery. (Dkt. 6, Ex. A4, pp. 203-06.) And as to the suggestion that Petitioner may have had a knife, counsel argued that the State presented insufficient evidence to show that Petitioner had a knife at the time of the robbery, or that any knife would meet the statutory definition of a weapon. (Id., pp. 205-06.) Counsel also pointed out that no weapon was found. (Id., p. 205.)

The postconviction court determined that, after the trial court denied the motion, counsel was not required to object in order to preserve the matter for appellate review. Specifically, the postconviction court's order cited Morris v. State, 721 So.2d 725 (Fla. 1998). That opinion held that, when a defendant moves for a judgment of acquittal at the conclusion of the State's case, the issues raised in the motion are considered preserved for appellate review. Id. at 727. Thus, the state postconviction court found that counsel was not ineffective because, by arguing in his motion for judgment of acquittal that the State failed to prove Petitioner carried a weapon during the offense, counsel preserved the matter for appellate review. Accordingly, Petitioner has not shown how counsel can be deemed ineffective for the reasons asserted in Ground One.4 As Petitioner has not demonstrated that the state court's ruling is contrary to or an unreasonable application of clearly established federal law, Ground One warrants no relief.

Ground Two: "MR. POPE WAS DEPRIVED OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO REQUEST A SPECIAL JURY INSTRUCTION DEFINING `WEAPON' AS DEFINED IN SECTION § 790.001 FLA. STAT. (2004)."

Petitioner argues that counsel was ineffective for not requesting a special jury instruction on the definition of a weapon as set forth in § 790.001, Fla. Stat. (2004). The jury was instructed on the charged offense of robbery with a deadly weapon, as well as the lesser-included offense of robbery with a weapon. (Dkt. 6, Ex. A4, pp. 253-56.) They convicted Petitioner of the latter. The relevant portion of the instructions given to the jury provided the definitions of deadly weapon and weapon as set forth in Standard Jury Instruction 15.1, regarding robbery:

(Dkt. 6, Ex. A4, p. 255.)5 See Fla. Std. Jury Inst. (Crim.) 15.1.

Petitioner asserts that counsel should have requested that the court provide a special instruction to the jury defining a weapon as set forth in § 790.001(13) because that subsection "arguably" provides for a different definition of a weapon. (Dkt. 1, pp. 13-14.) Chapter 790, Fla. Stat., concerns weapons and firearms. The version of § 790.001(13) in effect at the time of the November 17, 2004 trial provided:

§ 790.001(13), Fla. Stat. (2004).6 Petitioner appears to contend that by rejecting the charge of robbery with a deadly weapon, the jury must have believed that he did not have a firearm and therefore concluded that, based on Deputy Knecht's testimony, he had a knife. He argues that counsel should have asked for an instruction based on § 790.001(13) because the jury could have decided that the knife they thought he had was excluded from the definition of "weapon" in that subsection.7 He argues that it is possible the jury would have thought that he had a pocketknife or knife other than a dirk (which he asserts is a type of dagger) that would have been excluded from the definition of weapon under § 790.001(13). Petitioner presented this argument in claim two of his Rule 3.850 motion. The state court summarily denied this claim:

(Dkt. 6, Ex. C2, pp. 38-39) (court's references to exhibits omitted).8

Petitioner has not shown that he is entitled to relief. As the postconviction court noted, the trial court provided a definition of weapon consistent with that found in the standard jury instruction on robbery. The state court also cited Gust v. State, 558 So.2d 450 (Fla. 1st DCA 1990) in its order. That opinion provides that the validity of an armed robbery charge under § 812.13, Fla. Stat., "does not necessarily turn on whether the weapon used meets the definitional criteria of section 790.001(13)." Id. at 452. The court in Gust determined that, while it may be possible to look to either the standard jury instruction or § 790.001 for a definition of weapon, the fact that a particular type of knife may be excluded from the definition in § 790.001(13) does not preclude a finding of armed robbery, "i.e., robbery with a weapon." Id. at 452-53.9

Petitioner failsto show that counsel provided deficient performance. Given the authority described by the state court, counsel did not have a basis to seek a special jury instruction.10 The jury is presumed to follow the instructions provided by the court. See Raulerson v. Wainwright, 753 F.2d 869, 876 (11th Cir. 1985) ("Jurors are presumed to follow the law as they are instructed."). There was testimony at trial that Petitioner indicated on multiple occasions that he had a weapon. Petitioner does not demonstrate that the standard jury instruction that was provided was a misstatement of the law, or that the jury misunderstood the contents of the instruction or its purpose.

Moreover, the assertion implicit in this claim, that the jury might not have found Petitioner guilty of robbery with a weapon if a special instruction had been given because they could have determined that any knife he may have had was excluded from the statutory definition of a weapon, is speculative and conclusory. Petitioner raises this argument in vague and speculative terms of what information he believes the jury relied upon and what they concluded, as well as what they possibly could have decided. By presenting his claim in this speculative manner, Petitioner fails to show the prejudice that Strickland requires to succeed on a claim of ineffective assistance of counsel. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (recognizing that vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim). Accordingly, Petitioner fails to show that the state court's ruling was contrary to or an unreasonable application of clearly established federal law. Consequently, he is not entitled to relief on Ground Two.

Ground Four: "MR. POPE WAS DEPRIVED OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO ADVISE THE DEFENDANT OF AN APPARENT PLEA OFFER OF 15 YEARS ON THE DAY OF TRIAL," and Ground Seven(B): "MR. POPE WAS DEPRIVED OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO INFORM THE TRIAL JUDGE THAT THE DEFENDANT WANTED TO ACCEPT THE STATE'S PLEA OFFER."

In Ground Four, Petitioner asserts that counsel was ineffective for failing to inform him that a fifteen-year plea offer was available on the day of trial. The parties had previously engaged in plea discussions but did not reach an agreement. Petitioner claims that, on the day of trial, the prosecutor briefly began discussing plea offers, but that the trial judge indicated he did not want to hear any plea offers, thereby "effectively end[ing] all conversation of any plea agreements or offers." (Dkt. 1, p. 23.)11

Other proceedings on the day of trial relevant to these claims concerned the defense's motion to suppress Petitioner's statement to Deputy Knecht. The court conducted a hearing on the motion prior to the start of trial, where it considered the testimony of Deputy Knecht, as well as argument from the parties concerning suppression. In support of the motion, counsel argued that Petitioner was tricked into making the statement to Deputy Knecht because his comment to the other officers that they needed to find a gun was meant to elicit a response from Petitioner, and that Petitioner's statement was made while he was in custody but prior to receiving Miranda12 rights. (Dkt. 6, Ex. A4, pp. 100-104.) At the conclusion of the hearing, the court denied the motion to suppress. It found that Petitioner's comments were spontaneous statements and not the result of custodial interrogation, and that the Deputy's remark was not reasonably likely to elicit an incriminating statement from Petitioner. (Id., p. 104.) The court found that the statement was alternatively admissible under the public safety exception to Miranda requirements in accordance with New York v. Quarles, 467 U.S. 649 (1984). (Id.)

Petitioner contends in Ground Four that counsel was ineffective for failing to inform him of the fifteen-year plea offer on the day of trial, and asserts that the case might have been resolved had counsel and the prosecutor discussed plea offers further. Petitioner further argues in his reply that, at the time the state court denied his motion to suppress, he would have accepted the fifteen-year plea offer if he knew about it. In a similar argument raised in Ground Seven(B), Petitioner claims that counsel was ineffective for failing to inform the court that Petitioner wanted to accept the State's plea offer. In support of his claim, Petitioner reiterates that the trial court "cut off" dialogue regarding a potential plea offer prior to the start of trial, and that counsel failed to ask for a recess "to get a clear understanding of whether a plea offer was being made." (Dkt. 1, p. 39.) He asserts that the court "materially altered the course of the trial that day" and that "no one can now say what would have happened" had the parties discussed a potential plea further. (Dkt. 1, p. 39.) Petitioner reiterates that the trial judge "erred in refusing to allow the state attorney and [defense counsel] to discuss any pleas." (Dkt. 1, p. 40.)13

Petitioner raised the ineffective assistance of counsel claim presented in Ground Four of his habeas petition as claim five of his Rule 3.850 motion and raised the ineffective assistance of counsel claim presented in Ground Seven(B) as claim twelve(b) of his Rule 3.850 motion.14 The state court granted an evidentiary hearing on both of these claims. At the evidentiary hearing, counsel testified that the State's plea offer of fifteen years as a prison releasee reoffender "was the same throughout the course of the repr esentation." (Dkt. 6, Ex. C4, p. 269.) Counsel further testified that he repeatedly encouraged Petitioner to accept this plea offer. (Id.) While Petitioner was interested in a plea agreement, counsel testified, he did not want to accept the State's offer of fifteen years as a prison releasee reoffender. (Id., p. 270.) Counsel testified that the plea offer was available at the mandatory docketing the Friday prior to trial, and that he informed Petitioner of this. (Id., pp. 270-71.) He testified that the State rejected Petitioner's counter offer of fifteen years without the prison releasee reoffender designation. (Id., p. 271.) Counsel indicated that Petitioner did not inform him that he would want to plead if the motion to suppress his statement to Deputyi Knecht was denied, or that he was displeased that the motion to suppress was not filed earlier. (Id., pp. 271-72.) Counsel further testified that he and Petitioner discussed the defense that counsel intended to pursue, and that Petitioner did not indicate he was uncomfortable with that defense. (Id., pp. 272-73.) Finally, counsel testified that the last time the plea offer was available was at mandatory docketing, and that it was no longer available on the day of trial. (Id., pp. 279-80.)

Petitioner testified at the evidentiary hearing that counsel first informed him of a fifteen-year offer from the State after he had been in pre-trial custody for approximately six months. (Id., p. 244.) Petitioner hesitated to take the offer because he still wanted to address suppression issues. (Id., pp. 244-45.) He further testified that he was prejudiced by the delay in filing the motion to suppress his statement to Deputy Knecht because knowing the outcome of the motion while the plea offer was still available would have affected his decision of whether to accept the offer. (Id., pp. 240-41.) Petitioner testified that he had wanted the motion to suppress resolved earlier because, if he had known that the statement to Deputy Knecht was ruled admissible, he likely would have entered a plea rather than proceeding to trial. (Id., pp. 241, 252-53.) Petitioner testified to his understanding that the plea offer was no longer available at the time of trial and that it no longer existed, "Maybe a week or two before trial." (Id., p. 245.) The state court denied this claim:

(Dkt. 1, pp. 48-49.) The state court denied the claim now presented as Ground Seven(B) "for the same reasons stated as to claim 5." (Dkt. 1, p. 52.) The state court specifically found that Petitioner's testimony at the evidentiary hearing was not credible, and that counsel's testimony was more credible than that of Petitioner. Deference must be given to the state court's credibility determinations, which are presumed to be correct. See Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998) ("We must accept the state court's credibility determination and thus credit [the attorney's] testimony over" that of the petitioner.); Devier v. Zant, 3 F.3d 1445, 1456 (11th Cir. 1993) ("Findings by the state court concerning historical facts and assessments of witness credibility are ... entitled to the same presumption accorded findings of fact under 28 U.S.C. § 2254(d).").

The state court found that credible testimony showed Petitioner did not wish to accept the State's offer. Accordingly, counsel could not have been ineffective for failing to inform the State that Petitioner wanted to agree to the offer. Moreover, the state court found to be credible testimony indicating that Petitioner and the State discussed a potential plea but could not come to an agreement, and that Petitioner's decision of whether to accept a plea did not hinge on the outcome of the motion to suppress his statement to Deputy Knecht. Petitioner's claims that counsel provided deficient representation for the reasons asserted in Grounds Four and Seven(B) must fail.

Additionally, Petitioner is unable to show prejudice because his argument that a plea would have been negotiated and accepted by both sides is speculative. He asserts only that "[a] resolution of the case might have been possible" upon further plea discussions. (Dkt. 1, p. 23.) But Petitioner has not provided any evidence to show that the outcome of the proceedings would have been different and that the case would have in fact been resolved through a plea agreement rather than at trial. To the contrary, counsel's evidentiary hearing testimony indicates that the parties were unable to reach an agreement about a potential plea offer. Accordingly, Petitioner has not demonstrated that counsel was ineffective for the reasons asserted in Grounds Four and Seven(B). He has not shown that the state court's decision was contrary to or an unreasonable application of clearly established federal law, or based upon an unreasonable determination of the facts in light of the evidence presented. Consequently, he is not entitled to relief on Ground Four or Ground Seven(B).

Ground Three: "MR. POPE WAS DEPRIVED OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO ARGUE THE CONTEXT OF DEFENDANT'S ALLEGED STATEMENT TO OFFICER KNECHT."

This claim concerns counsel's motion to suppress Petitioner's statements to Deputy Knecht. Deputy Knecht testified at trial that when he remarked to the other officers that they needed to find a gun, Petitioner stated that there never was a gun and he only had a knife. First, Petitioner argues that counsel was ineffective because he "did not attempt to put [Petitioner's] statement in context or even emphasize that [Petitioner] may have been misquoted." (Dkt. 1, p. 18.)15

Petitioner raised this argument in claim three of his Rule 3.850 motion. In summarily denying this ground, the state court found:

(Dkt. 6, Ex. C2, p. 39.) The state court found that counsel would have had no basis to argue the motion to suppress on the grounds suggested by Petitioner, and that the arguments that were made by counsel were legally sound. Counsel cannot be deemed ineffective when he presented viable argument in support of the motion instead of meritless argument. See Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (counsel was not ineffective for failing to raise issues that clearly lacked merit). As previously noted, counsel did present cogent arguments in support of the motion to suppress.16 Counsel asserted that the statement should be excluded because it was improperly elicited by Deputy Knecht prior to Petitioner being provided his rights under Miranda. Petitioner does not demonstrate that the state court's conclusion is contrary to or an unreasonable application of clearly established federal law.

Petitioner appears to raise two additional aspects of his ineffective assistance of counsel claim. First, he asserts that when the state court denied relief on this ground, it only considered whether a misunderstanding or misquotation of his words constituted grounds for a motion to suppress. But he argues that this fails "to address the larger issue of what the jury thought it knew about the statement or whether the statement was properly obtained by police or admissible at trial." (Dkt. 1, pp. 18-19.) Petitioner is not entitled to relief on his argument that the state court erred in denying his claim on this basis. Petitioner failed to assert in his Rule 3.850 motion that counsel was ineffective in regard to what the jury believed it knew about the statement or whether the statement was properly obtained and used at trial.17 Therefore, this argument was not properly presented to the state court and is unexhausted. Petitioner cannot now return to state court to file a successive postconviction motion. See Fla. R. Crim. P. 3.850(h). Accordingly, the claim is procedurally defaulted. See Smith, 256 F.3d at 1138. As Petitioner does not demonstrate that the cause and prejudice or fundamental miscarriage of justice exception would apply to allow consideration of the claim, the claim is procedurally barred. Accordingly, this argument provides no relief for Petitioner.18

Second, Petitioner asserts that counsel was ineffective for failing to file the motion to suppress until the day of trial. Therefore, he contends, the "real issue" is whether counsel's delay in filing the motion amounted to ineffective assistance. (Dkt. 1, p. 19.) In particular, he states that during the time counsel delayed in filing the motion, the State withdrew a fifteen-year plea offer. Petitioner asserts that if the motion was filed and ruled upon at an earlier time, he "would have had additional critical information in assisting him in deciding whether to accept a plea offer of 15 years." (Dkt. 1, p. 20.)19 In support of his contention that he wanted the motion filed earlier, Petitioner asserts that he submitted a motion to discharge his attorney for failing to file the motion. The record reflects that counsel addressed the motion to suppress statements to Deputy Knecht the morning of trial; counsel told the court that the motion was not included in the court file but had been completed the previous day. (Dkt. 6, Ex. A4, p. 90.)20 The court heard the motion prior to the start of trial.

Petitioner asserted this claim within claim three of his Rule 3.850 motion. (Dkt. 6, Ex. C1, p. 21.)21 However, Petitioner is not entitled to relief on this aspect of his claim. Petitioner does not explain how filing the motion to suppress earlier would have affected the outcome of the motion, as counsel was able to fully present and argue the motion before the start of trial. (Dkt. 6, Ex. A4, pp. 92-104.) Petitioner has not demonstrated that the timing of the motion to suppress was relevant to the resolution of the claims presented in that motion and accordingly fails to show deficient performance of counsel in this regard.

Nor is Petitioner entitled to relief inasmuch as he argues that the timing of the motion to suppress interfered with his ability to accept the State's plea offer. As addressed in more detail in Grounds Four and Seven (B) in the context of his claims that counsel was ineffective for failing to inform him that the plea was still available and failing to inform the court that he wanted to take the plea, Petitioner testified at the evidentiary hearing that he wanted the motion to suppress filed and resolved earlier because if he knew that his statements to Deputy Knecht would be admissible at trial, then he would have accepted the plea.

As further addressed in the discussion of those grounds, counsel's evidentiary hearing testimony indicated that the State's plea offer was available the Friday before trial but the parties were unable to come to an agreement, that Petitioner did not express a desire to accept the State's plea offer, and that Petitioner did not inform counsel that his decision whether or not to accept the plea would turn on the outcome of a motion to suppress. Furthermore, Counsel testified in more detail about the circumstances of filing the motion to suppress in the context of the related claims that he was ineffective for failing to inform Petitioner of the availability of the plea and for failing to inform the court that Petitioner wanted to accept the plea. Counsel recalled his belief that the statement "was falling under the excited utterance rule and it would not have a chance of bringing a Motion to Suppress and that would be frivolous. It wasn't until the last moment that I discovered some law that I could hang my hat on." (Dkt. 6, Ex. C4, p. 272.) Counsel did not recall other specifics about the authority or how recent the authority was, and acknowledged the possibility that he may have been able to locate this authority earlier. (Id., pp. 282-83.) However, he testified that he worked on this issue before trial of his own accord, rather than because of any prompting by Petitioner. (Id., pp. 285-86.)

It is apparent that this testimony about the filing of the motion to suppress was provided in the context of the claim raised in claim five of Petitioner's Rule 3.850 motion, which raised the issue now presented under Ground Four of his federal habeas petition. The state court specifically found counsel's testimony as to the issues in claim five to be credible, and found Petitioner's testimony not to be credible. (Dkt. 1, pp. 48-49.) Therefore, the testimony that the court found to be credible reflected that counsel continued to work on the suppression issue and filed the motion when he found law to support his position and that, even assuming that counsel could have filed the motion earlier, Petitioner did not indicate to counsel that the outcome of the motion would have affected his decision to proceed to trial. In addition to this evidentiary hearing testimony, the record reflects that plea offers were not discussed on the record at the time the motion to suppre ss was heard and considered by the trial court. (Dkt. 6, Ex. A4, pp. 87-105.) Moreover, Petitioner does not assert in his habeas petition that he actually would have accepted the plea offer. Instead, he argues only that he would have been better informed prior to deciding whether to plead. Thus, Petitioner has not shown that counsel was ineffective in that his failure to file the motion to suppress earlier affected Petitioner's ability to accept the State's plea offer.

Petitioner has not demonstrated how counsel was ineffective. Accordingly, Petitioner has not shown that the state court's decision was contrary to or an unreasonable application of established federal law. He is not entitled to relief on Ground Three.

Ground Five: "MR. POPE WAS DEPRIVED OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO USE STORE SURVEILLANCE VIDEO OF PERPETRATOR AT TRIAL."

Petitioner claims that counsel was ineffective for not entering a surveillance video from the robbery into evidence at trial. He states that "[s]uch tapes may have provided exculpatory evidence if, in fact, they showed no weapon was used in the robbery." (Dkt. 1, p. 27.) Therefore, Petitioner argues, the video would have supported his theory that he "had no weapon at the time of the taking." (Id.)

Petitioner raised this argument in claim seven of his Rule 3.850 motion. The state court conducted an evidentiary hearing on this claim and appears to have reviewed the video. Petitioner testified at the evidentiary hearing that, based on the video, it was difficult to identify who went into the store and whether that person had a weapon. (Dkt. 6, Ex. C4, p. 246.) He further testified that he wanted the video to be played at trial. (Id.)

Counsel testified that he expected the State to play the video. (Id., p. 274.) He testified that he did not show the video in part because "a picture is worth a thousand words and you're actually seeing the incident." (Id., p. 275.) He believed that seeing the robbery would have impacted the jury and that "there is always a chance that a video will appear to a Jury in another light than the way I explained it." (Id.) Counsel testified that it was "too risky" to play the video for the jury, and that doing so "would have been malpractice." (Id., pp. 274, 278.) Counsel further acknowledged that the video could have been helpful to show that the robbery was not forceful, but that he "chose not to play it because it also presented identification of the perpetrator and it was a balancing act. And also I had no way to put on the video without calling one of the State's witnesses." (Id., p. 284.)22

The state court denied this claim. In its order, it summarized the evidentiary hearing testimony and denied the claim upon finding that Petitioner failed to meet either prong of Strickland:

(Dkt. 1, pp. 50-51.) Petitioner has not demonstrated entitlement to relief on Ground Five. As to the deficiency prong of Strickland, the record supports the state court's finding that counsel made a strategic decision not to play the video. Counsel's testimony reflects that after considering the risk of the effect on the jury, combined with the possibility of a damaging identification and the fact that he would have had to call a State witness in order to introduce the video into evidence, he determined that the potential downside of showing the video outweighed any possible benefit.

Moreover, counsel's strategic decisions are not easily overcome by alleging ineffective assistance of counsel. When reviewing a claim of ineffective assistance of counsel, courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Additionally, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91.

The record further supports the state court's finding that Petitioner has not met the second prong of Strickland. He cannot show a reasonable probability that the outcome of trial would have been different had the video been played, in light of the other evidence of identity presented at trial. He fails to demonstrate that the video likely offered evidence of identity that would have changed the outcome of trial, in light of the other evidence of identity presented. The state court's order refers to its ruling on claim four of Petitioner's Rule 3.850 motion, in which it summarized the evidence of identity presented at trial:

(Dkt. 1, p. 48.)23 This summary refers to portions of the trial testimony of Deputies Hearth and Wright. The jury heard from them that Petitioner was tracked through a wooded area, where shoes and clothes were located, and that he was apprehended wearing his shorts and saying that he gave up. Additionally, Smead, Wilson, and Deputy Wright made in-court identifications of Petitioner. Given this information, Petitioner has not shown that the video would have contained evidence of the suspect's identity that likely would have changed the outcome of trial. The record supports the state court's finding that, in light of this other evidence of identity, Petition er fails to show that counsel's decision not to play the video of the robbery prejudiced him under Strickland.

Moreover, Petitioner fails to show prejudice as to whether the video would have shown whether the robber had a weapon because he presents his claim in a speculative and vague manner. Petitioner does not assert that the video's contents in fact would have aided his defense; rather, he claims that the video might have been helpful if it actually showed that the perpetrator did not carry a weapon. This speculation does not warrant federal habeas relief. See Tejada, 941 F.2d at 1559. Petitioner has not demonstrated that the state court's findings were contrary to or an unreasonable application of clearly established federal law, or were based upon an unreasonable determination of the facts in light of the evidence presented. Consequently, he is not entitled to relief on Ground Five.

Ground Six: "MR. POPE WAS DEPRIVED OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO CROSS EXAMINE STATE WITNESS, OFFICER ROY KNECHT."

Petitioner claims that counsel was ineffective for not cross-examining Deputy Knecht at trial.24 Petitioner raised this argument in ground eight of his Rule 3.850 motion, where he asserted that what he actually told Deputy Knecht was that he did not have a gun as that would have been his life, and that cross-examination would have raised doubt as to whether the Deputy understood Petitioner's statements.25

The state court held an evidentiary hearing on this ground.26 Petitioner testified at the evidentiary hearing that Deputy Knecht misunderstood his statement, and that what he said was that he did not have a gun because that would be his life. (Dkt. 6, Ex. C4, pp.237, 249-50.) He further indicated that, by this statement, he meant to communicate that he knew how significant having a gun would be and that he would not have risked his life by carrying a gun. (Id., p. 250.)

Counsel testified at the evidentiary hearing that there was no reason to cross-examine Deputy Knecht simply for the sake of doing so, as he would not be able to obtain helpful testimony from Deputy Knecht. (Id., p. 278.) Counsel testified that he had no means to impeach Deputy Knecht as to the supposedly misinterpreted statement, and that he did not want to emphasize the Deputy's testimony by conducting cross-examination. (Id., pp. 278-79.) Counsel further testified that he did not want to address whether Petitioner actually said that he did not have a gun because that would be his life, as such a remark could indicate that Petitioner thought about the robbery ahead of time and understood the ramifications of carrying a gun. (Id., p. 279.) This would have run contrary to counsel's opening statements that the robbery was spontaneous. (Id.)27

The state court denied this ground after the evidentiary hearing:

(Dkt. 1, p. 51.) The record supports the state court's finding that counsel's decision not to impeach Deputy Knecht was a strategic one. Counsel specified that he had no information with which to impeach Deputy Knecht, that he did not want to call any further attention to the Deputy's testimony, and that there was no value to conducting a cross-examination. Furthermore, addressing Petitioner's allegedly misunderstood statement could have had the undesired effect of suggesting that Petitioner was aware of the consequences of carrying a gun during the offense, which would have stood out in contrast to counsel's opening statements asserting that the robbery was not planned ahead of time. For all of these reasons, as the state court found, counsel made a strategic choice not to cross-examine Deputy Knecht. As previously addressed, counsel's strategic decisions are especially difficult to overcome through a claim of ineffective assistance of counsel. Petitioner has not met this burden and has failed to demonstrate that counsel was ineffective for the reasons asserted here.28

Additionally, the state court determined that, given the evidence of guilt offered against Petitioner, there was not a reasonable likelihood that the outcome of trial would have been different. As discussed in Ground Five, the balance of the evidence of identity offered at trial supports the state court's finding. Accordingly, Petitioner cannot demonstrate that the state court's ruling was contrary to or an unreasonable application of established federal law, or was based on an unreasonable determination of the facts. Petitioner is not entitled to relief on Ground Six.

Ground Seven(A): "MR. POPE WAS DEPRIVED OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO MOVE FOR THE RECUSAL OF THE TRIAL JUDGE AFTER THE TRIAL JUDGE CUT OFF DIALOGUE REGARDING THE STATE'S PLEA OFFER ON THE DAY OF TRIAL."

Petitioner argues that the trial judge "abruptly put an end to the discussion of any plea offer on the day of trial, if any, and the trial attorney did not get a clear understanding of whether a plea offer was being made." (Dkt. 1, p. 36.)29 Petitioner argued in claim 12(a) of his Rule 3.850 motion that counsel was ineffective for failing to "have [the] judge disqualified" for allegedly refusing to hear the State's plea offer. (Dkt. 6, Ex. C1, p. 32.) This claim concerns the portion of the proceedings prior to jury selection that was also discussed in Grounds Four and Seven(B). See supra, note eleven.

The state court's order summarily denied Petitioner's claim that counsel was ineffective in failing to move for the judge's disqualification:

(Dkt. 6, Ex. C2, p. 41) (court's reference to exhibit omitted).

The relevant portion of the transcript supports the state court's finding. The record reflects that the judge did not refuse to hear a plea offer, and his comments did not reflect any bias against Petitioner. The record indicates that, instead, the judge was attempting to remain neutral and keep an open mind for any future sentencing decision. The judge's comment was made in the context of final preparations before trial, and in response to the prosecutor's statement that she wished to put on the record what the State's offer was. Counsel had no grounds to seek disqualification of the judge.30 The record therefore supports the state court's finding, as counsel cannot be deemed ineffective for failing to file a meritless motion. See Brownlee, 306 F.3d at 1066. Furthermore, counsel's evidentiary hearing testimony, which the state court found credible, indicated that Petitioner did not express any desire to accept the State's plea offer, and that the parties had been unable to agree on a disposition of the case. Accordingly, Petitioner is not entitled to relief because he has not shown the state court's ruling to be contrary to or an unreasonable application of clearly established federal law. He is not entitled to relief on Ground Seven(A).

Any of Petitioner's allegations not specifically addressed herein have been found to be without merit.

Accordingly, it is ORDERED AND ADJUDGED that Petitioner's petition for writ of habeas corpus (Dkt. 1) is DENIED. The Clerk is instructed to enter judgment against Petitioner and close this case.

It is further ordered that Petitioner is not entitled to a certificate of appealability. A petitioner does not have absolute entitlement to appeal a district court's denial of his habeas petition. 28 U.S.C. § 2253(c)(1). A district court must first issue a certificate of appealability (COA). Id. "A [COA] may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made this showing. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.

DONE AND ORDERED.