SHERI POLSTER CHAPPELL, District Judge.
This matter comes before the Court upon a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by Brian T. Allison ("Petitioner"), a prisoner presently confined at the Jefferson Correctional Institution in Monticello, Florida (
Petitioner raises nine claims in his petition. Upon due consideration of the pleadings and the state court record, the Court concludes that each claim must be dismissed or denied. Because the petition can be resolved on the basis of the record, an evidentiary hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if the record refutes the factual allegations in the petition or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing).
On February 2, 2006, Petitioner was charged by information with one count of burglary of an unoccupied dwelling in violation of Florida Statute § 810.02(3)(b) and one count of grand theft, in violation of Florida Statute § 812.014(2)(c)(1) (Ex. 1).
Petitioner filed a motion and several amended motions for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (collectively, "Rule 3.850 motion") (Ex. 10 at 1-51). An evidentiary hearing was held on August 5, 2011 (Ex. 10b at 609-41). Afterwards, each claim was denied in a written order. Id. at 489-94. Florida's Second District Court of Appeal per curiam affirmed (Ex. 13); Allison v. State, 140 So.3d 586 (Fla. 2d DCA 2013).
On October 19, 2011, Petitioner filed a motion to correct his sentence pursuant to Rule 3.800(a) of the Florida Rules of Criminal Procedure (Ex. 15). The motion was denied by the post-conviction court (Ex. 19). Florida's Second District Court of Appeal per curiam affirmed (Ex. 25).
Petitioner filed his 28 U.S.C. § 2254 in this Court on December 11, 2013 (
Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet. White v. Woodall, 134 S.Ct. 1697, 1702 (2014). A state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits which warrants deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Notably, a state court's violation of
"Clearly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issued its decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). That said, the Supreme Court has also explained that "the lack of a Supreme Court decision on nearly identical facts does not by itself mean that there is no clearly established federal law, since `a general standard' from [the Supreme Court's] cases can supply such law." Marshall v. Rodgers, 133 S.Ct. 1446, 1449 (2013) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). State courts "must reasonably apply the rules `squarely established' by [the Supreme] Court's holdings to the facts of each case. White, 134 S. Ct. at 1706 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).
Even if there is clearly established federal law on point, habeas relief is only appropriate if the state court decision was "contrary to, or an unreasonable application of," that federal law. 29 U.S.C. § 2254(d)(1). A decision is "contrary to" clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
A state court decision involves an "unreasonable application" of the Supreme Court's precedents if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Bottoson, 234 F.3d at 531 (quoting Williams, 529 U.S. at 406). The petitioner must show that the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." White, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)). Moreover, "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 [the Supreme] Court." Knowles, 556 U.S. at 122.
Finally, when reviewing a claim under § 2254(d), a federal court must bear in mind that any "determination of a factual issue made by a State court shall be presumed to be correct[,]" and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S.Ct. 10, 15 (2013) ("[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.") (quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).
In Strickland v. Washington, the Supreme Court established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance. 466 U.S. 668, 687-88 (1984). A petitioner must establish that counsel's performance was deficient and fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. This is a "doubly deferential" standard of review that gives both the state court and the petitioner's attorney the benefit of the doubt. Burt, 134 S. Ct. at 13 (citing Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011)).
The focus of inquiry under Strickland's performance prong is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688-89. In reviewing counsel's performance, a court must adhere to a strong presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Indeed, the petitioner bears the heavy burden to "prove, by a preponderance of the evidence, that counsel's performance was unreasonable[.]" Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court must "judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct," applying a "highly deferential" level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690).
As to the prejudice prong of the Strickland standard, Petitioner's burden to demonstrate prejudice is high. Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002). Prejudice "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. That is, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The AEDPA precludes federal courts, absent exceptional circumstances, from granting habeas relief unless a petitioner has exhausted all means of available relief under state law. 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 upon and correct alleged violations of its prisoners' federal rights[.]" Duncan v. Henry, 513 U.S. 364, 365 (1995) (citing Picard v. Connor, 404 U.S. 270, 275-76 (1971)). The petitioner must apprise the state court of the federal constitutional issue, not just the underlying facts of the claim or a similar state law claim. Snowden v. Singletary, 135 F.3d 732 (11th Cir. 1998). In addition, a federal habeas court is precluded from considering claims that are not exhausted but would clearly be barred if returned to state court. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (if a petitioner has failed to exhaust state remedies and the state court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, there is a procedural default for federal habeas purposes regardless of the decision of the last state court to which the petitioner actually presented his claims). Finally, a federal court must dismiss those claims or portions of claims that have been denied on adequate and independent procedural grounds under state law. Coleman, 501 U.S. at 750. If a petitioner attempts to raise a claim in a manner not permitted by state procedural rules, he is barred from pursuing the same claim in federal court. Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994).
Procedural default will be excused only in two narrow circumstances. First, a petitioner may obtain federal review of a procedurally defaulted claim if he can show both "cause" for the default and actual "prejudice" resulting from the default. "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) (internal quotation marks omitted). To establish prejudice, a petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003).
The second exception, known as the fundamental miscarriage of justice, only occurs in an extraordinary case, where a "constitutional violation has probably resulted in the conviction of one who is actually innocent[.]" Murray v. Carrier, 477 U.S. 478, 479-80 (1986). Actual innocence means factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). To meet this standard, a petitioner must "show that it is more likely than not that no reasonable juror would have convicted him" of the underlying offense. Schlup v. Delo, 513 U.S. 298, 327 (1995). In addition, "[t]o be credible, a claim of actual innocence must be based on [new] reliable evidence not presented at trial." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324).
Petitioner asserts that the trial court erred when it permitted a crime lab analyst for the Florida Department of Law Enforcement to testify about footprints retrieved from the crime scene without having first been designated as an expert witness in pretrial discovery (
Petitioner raised this claim on direct appeal (Ex. 6). In his appellate brief, he asserted that the trial court determined that there had been a discovery violation but that Petitioner had not been prejudiced by the state's failure. Id. at 18. Petitioner argued, in terms of state law only, that:
Id. Florida's Second District Court of appealed denied the claim (Ex. 8).
Respondent asserts that this ground is procedurally barred because Petitioner did not present its constitutional dimension to the state court (
Petitioner's state law arguments presented on direct appeal leave § 2254(b)(1)'s exhaustion requirement unsatisfied. Duncan, 513 U.S. at 365-66. For a habeas petitioner to fairly present a federal claim to state courts:
McNair v. Campbell, 416 F.3d 1291, 1302-03 (11th Cir. 2005) (internal citations omitted). Simply put, "[t]he exhaustion doctrine requires the petitioner to `fairly present' his federal claims to the state courts in a manner to alert them that the ruling under review violated a federal constitutional right." Pearson v. Sec'y, Dep't of Corr., 273 F. App'x 847, 849-50 (11th Cir. 2008) (citation omitted). As part of such a showing, the claim presented to the state courts "must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief." Reedman v. Thomas, 305 F. App'x 544, 545-46 (11th Cir. 2008) (internal citation omitted).
In raising Claim One in the state courts, Petitioner made no reference to his federal constitutional rights, and as a result, he did not properly exhaust this claim (Ex. 6). See Pearson, 273 F. App'x at 847 (claim unexhausted when petitioner cited exclusively to state cases, all of his substantive arguments addressed state law, and nothing in the argument alerted the state court to a federal due process claim). Petitioner has not alleged that some external factor impeded his efforts to properly raise this claim on direct appeal. Wright, 169 F.3d at 703. Nor has Petitioner presented new, reliable evidence to support an actual innocence claim. Schlup v. Delo, 513 U.S. 298, 324 (1995). Florida's procedural rules and time limitations preclude a second direct appeal. Fla. R. App. P. 9.140(b)(3) (defendant wishing to appeal a final judgment must do so within "30 days following rendition of a written order"). Consequently, in addition to being unexhausted, Claim One is procedurally barred and cannot be considered by this Court.
Even assuming arguendo that Petitioner exhausted this claim, he is not entitled to habeas relief. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."). This is not a situation in which exculpatory evidence was withheld from the defense so as to implicate Brady v. Maryland, 373 U.S. 83 (1963).
To the extent Petitioner argues that the prosecutor violated Florida's discovery rules by failing to provide adequate notice of inculpatory evidence, habeas relief does not lie for errors of state law. Wilson v. Corcoran, 562 U.S. 1, 16 (2010). Moreover, there is no general constitutional right to discovery in a criminal case. Weatherford v. Bursey, 429 U.S. 545, 559 (1977) ("It does not follow from the prohibition against concealing evidence favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably."); Wardies v. Oregon, 412 U.S. 470, 474 (1973) ("[T]he Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded[.]"); United States v. Ruiz, 536 U.S. 622, 628 (2002) ("The Constitution does not require the prosecutor to share all useful information with the defendant."). Because the Supreme Court has not mandated that a state court follow its own rules for discovery, Petitioner has not shown that the Second DCA's denial of this claim was contrary to, or an unreasonable application of, clearly established federal law. Claim One is denied.
Petitioner asserts that trial counsel was ineffective for failing to object to the introduction of a pair of sneakers on the grounds that the state had not established a proper foundation or chain of custody for their introduction (
(Ex. 10b at 490-91) (internal citations to the record omitted). Florida's Second District Court of Appeal per curiam affirmed (Ex. 13). Petitioner has not shown how the state court's adjudication of this claim was contrary to Strickland or based upon an unreasonable determination of the facts.
Sergeant Jason Wrobleski testified that Petitioner was wearing Franklin sneakers when he questioned him (T at 189-90). Wrobleski asked Petitioner to remove his shoes, and they were placed into evidence. Id. at 90-91. He testified that the shoes in evidence appeared to be the same as the ones taken from Petitioner. Id. at 138. Other than his mere assertion that counsel should have challenged the shoes' chain of custody, Petitioner provides no basis upon which counsel could have objected to this evidence. Under Florida law, "[a] bare allegation by a defendant that a chain of custody has been broken is not sufficient to render relevant physical evidence inadmissible." Floyd v. State, 850 So.2d 383, 399 (Fla. 2002). In the instant case, Petitioner does not even make this bare allegation. Moreover, Wrobleski's testimony laid an adequate foundation for the introduction of the shoes. See Florida Statute § 90.901 ("Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."). Reasonable counsel could have declined to object to the introduction of Petitioner's shoes. He has failed to satisfy the first prong of Strickland, and Claim Two is denied.
Petitioner asserts that trial counsel was ineffective for failing to review and use a surveillance videotape "which was exculpatory and of great evidentiary value." (
(Ex. 10B at 491) (internal citations omitted). The post-conviction court's denial of this claim was per curiam affirmed by Florida's Second District Court of Appeal (Ex. 13).
As pointed out by the post-conviction court, counsel did not overlook or ignore the surveillance videotape. Instead, at the evidentiary hearing on this claim, counsel testified that he viewed the videotape prior to trial and chose not to use it (Ex. 10B at 628-30). Counsel did not believe that the tape was exculpatory or probative and believed that the state's failure to play the video "left a reasonable doubt in the jury's mind as to what was on the tape." Id. at 630.
The state court's adjudication of this claim was not contrary to Strickland, nor was it based on an unreasonable determination of the facts presented in the state court proceeding. Accordingly, Claim Three is denied pursuant to 28 U.S.C. § 2254(d).
Petitioner asserts that trial counsel was ineffective for failing to investigate and present the testimony of alibi witness Lacy Flynn (
After the hearing, the post-conviction court denied this claim in open court (Ex. 10B at 639). The court also made a written finding with respect to this claim (Ex. 10B at 491-92). The court recognized that the testimony of Petitioner and counsel were in conflict, but stated that "[t]here is nothing in the record to support this claim. The alibi witness was not called during the evidentiary hearing to testify, there was no evidence as to the substance of her testimony, and no evidence presented that she was even available to testify during Defendant's trial." Id. at 492. Florida's Second District Court of Appeal per curiam affirmed.
As determined by the post-conviction court, Petitioner's failure to offer any support for his allegations defeats this claim. Self-serving speculation as to the testimony of uncalled witnesses will not sustain an ineffective assistance claim. See Gasanova v. United States, No. EP-01-cr-1423-DB, 2007 WL 2815696, at *9 (W.D. Tex. September 6, 2007) (citations and footnotes omitted). A petitioner cannot simply state that the testimony would have been favorable. Id. In the case of an uncalled witness, at the very least, the petitioner must submit an affidavit from the uncalled witness stating the testimony he or she would have given had they been called to testify. Id. Petitioner has not made the requisite factual showing, and his self-serving speculations will not sustain this claim of ineffective assistance of counsel. Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir. 1985) (speculation insufficient to carry the burden of a habeas corpus petitioner as to what evidence could have been revealed by further investigation); Johnson v. Alabama, 256 F.3d 1156 (11th Cir. 2001) (mere speculation that missing witnesses would have been helpful is insufficient to meet a petitioner's burden of proof).
The state court's adjudication of this claim was not contrary to Strickland, nor was it based on an unreasonable determination of the facts presented in the state court proceeding. Claim Four is denied pursuant to 28 U.S.C. § 2254(d).
Petitioner asserts that trial counsel was ineffective for failing to move for a judgment of acquittal on the grand theft charge because the state failed to prove the value of the stolen items (
(Ex. 10B at 492). Florida's Second District Court of Appeal per curiam affirmed the post-conviction court's denial of this claim (Ex. 13).
Under Florida law, a motion for a judgment of acquittal is designed to test the sufficiency of the evidence against a defendant. Joiner v. State, 618 So.2d 174, 176 (Fla. 1993). A trial court may not grant a motion for a judgment of acquittal "unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law." Miller v. State, 782 So.2d 426 (Fla. 2d DCA 2001) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla. 1974)). The party moving for a judgment of acquittal admits the facts adduced in evidence and every conclusion favorable to the state which is fairly and reasonably inferable therefrom. Spinkellink v. State, 313 So.2d 666, 670 (Fla. 1975). If the state has produced competent evidence to support every element of a crime, a judgment of acquittal is not proper. Gay v. State, 607 So.2d 454, 457 (Fla. 1st DCA 1992).
Under Florida law, "[i]t is grand theft of the third degree and a felony of the third degree . . . if the property stolen is [v]alued at $300 or more, but less than $5,000." Fla. Stat. § 812.014(c)(1) (2006). At Petitioner's trial, victim Frank Murnane testified that computer equipment taken from his home was worth "well over a thousand dollars." (T. at 32). He testified that sterling silver heirlooms taken from his home were worth "probably a number of thousands of dollars." Id. He paid approximately a thousand dollars to replace his computer which no longer worked when it was returned by the police. Id. at 33. The state produced competent evidence to prove that the value of the items stolen exceeded $300. Counsel was not deficient for failing to argue this issue in a motion for judgment of acquittal because such an argument would have been rejected by the trial court as foreclosed by Florida law. Rasheed v. Smith, 221 F. App'x 832, 836 (11th Cir. 2007) (failure to file a motion which would be futile is not deficient performance of counsel under Strickland). Claim Five fails to satisfy either prong of Strickland, and is denied.
Petitioner asserts that the evidence was insufficient to sustain a conviction on the charge of grand theft (
A petitioner requesting a federal writ of habeas corpus must have presented his claims to the state courts in the procedurally correct manner. Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir. 1995). The procedurally correct way to raise a claim challenging the sufficiency of the evidence in state court is by direct appeal. See Betts, 792 So. 2d at 590 ("To the extent that the allegations challenged the factual basis and sufficiency of the evidence, such claims cannot be raised in a Rule 3.850 motion, especially where (as occurred in the instant case) a direct appeal was taken."); Smith v. State, 445 So.2d 323, 325 (Fla. 1983) ("Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack."). In Florida, a District Court of Appeal's per curiam affirmance of a circuit court's ruling explicitly based on procedural default "is a clear and express statement of its reliance on an independent and adequate state ground which bars consideration by the federal courts." Harmon v. Barton, 894 F.2d 1268, 1273 (11th Cir. 1990).
In the instant case, a direct appeal was taken, and the appellate court affirmed Petitioner's convictions and sentences (Ex. 8). Because Petitioner failed to properly raise this claim in the appropriate state court proceedings, resulting in the application of a procedural bar by the state courts, the claim is likewise procedurally barred from review in this Court. Petitioner has failed to demonstrate cause for not raising this claim in the state courts or actual prejudice resulting from the errors of which he complains. Petitioner cannot overcome the procedural bar, and Claim Six is dismissed.
In Claim Seven, Petitioner asserts that trial counsel was ineffective for conceding Petitioner's guilt during closing arguments without his permission and for failing to have the closing arguments transcribed (
Petitioner raised these claims in his Rule 3.850 motions, and the post-conviction court denied both as conclusively refuted by the record (Ex. 10B at 493). The court noted that: (1) the closing arguments had undoubtedly been transcribed because the state provided a transcript of the closing arguments with its response to Petitioner's motion; (2) defense counsel "did not concede [Petitioner's] guilt at any point" during closing argument; (3) "counsel argued repeatedly, including his rebuttal argument, that the State had not proven its case beyond a reasonable doubt and that the shoeprint evidence was unreliable."; and (4) the decision of whether or not to order trial transcripts on a direct appeal was a decision made by Petitioner's appellate counsel. Id.
Petitioner has procedurally defaulted these claims because, while he raised them in his Rule 3.850 motions and an evidentiary hearing was held, he did not raise either claim on appeal from the denial of his Rule 3.850 motion (Ex. 11). In his brief on appeal of the denial of his Rule 3.850 motion, Petitioner challenged the post-conviction court's ruling on only four of the nine claims raised in the motion. Pursuant to Rule 9.141(b)(3) of the Florida Rules of Appellate Procedure, failure to fully brief and argue points on appeal after receiving an evidentiary hearing on a Rule 3.850 motion constitutes a waiver of those claims. See e.g. Leonard v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979) (Florida prisoner must appeal denial of Rule 3.850 relief to exhaust remedies);
The "one complete round" exhaustion requirement set forth in O'Sullivan v. Boerckel, 526 U.S. 838 (1999) applies to post-conviction review as well; a prisoner must appeal the denial of post-conviction relief in order to properly exhaust state remedies. LeCroy v. Sec'y, Dep't of Corr., 421 F.3d 1237, 1261 (11th Cir. 2005) (as Florida prisoner failed to properly exhaust claim on direct appeal or Rule 3.850 appeal, it was procedurally barred, citing Coleman); Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004)("Boerckel applies to the state collateral review process as well as the direct appeal process"); Pruitt v. Jones, 348 F.3d 1355, 1359 (11th Cir. 2003) ("A § 2254 habeas petition `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.'") (citing 28 U.S.C. § 2254(c)).
A petitioner who fails to exhaust his claim" is procedurally barred from pursuing that claim on habeas review in federal court unless he shows either cause for and actual prejudice from the default or a fundamental miscarriage of justice from applying the default." Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1353 (11th Cir. 2012). Petitioner has made none of the requisite showings to excuse the default. Coleman, 501 U.S. at 734-35. Accordingly, these claims are dismissed as unexhausted and procedurally barred.
Moreover, a review of the record supports the state court's adjudication of these claims. See 28 U.S.C. § 2254(b)(2) (allowing a district court to deny an unexhausted claim on the merits). The state attached a copy of counsel's closing argument to its response to Petitioner's Rule 3.850 motion (Ex. 10B at 437-457). Even if trial counsel did not order a copy of the transcribed argument (a finding not made by this Court), Petitioner does not explain how he suffered prejudice from the omission; the transcript clearly exists. In addition, a review of counsel's closing argument supports the state court's factual finding that he did not concede Petitioner's guilt. To the contrary, counsel argued that the footprint found at the crime scene did not belong to Petitioner's sneaker; that the state could not prove that Petitioner was ever in the victim's home; and that no fingerprints were found in the victim's home (Id. at 437-41, 454). Counsel strenuously argued that there was reasonable doubt as to who committed the burglary. Id. at 455. Finally, appellate counsel did not raise on direct appeal a claim that the trial court erred by denying the motion for a judgment of acquittal (Ex. 6). Accordingly, appellate counsel's possession of the closing argument transcript is irrelevant, and Petitioner could not have suffered prejudice from its absence.
In addition to being unexhausted, Claims Seven and Eight fail to satisfy either Strickland prong and are denied pursuant to 28 U.S.C. § 2254(d).
Petitioner asserts that the state improperly used his prior convictions to have him sentenced as a Habitual Felony Offender (
Respondent contends that Petitioner is not entitled to relief on this claim because it concerns a matter of state sentencing law, which is not cognizable in a federal habeas corpus proceeding. Indeed, on habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Even when a petition that actually involves state law issues is "couched in terms of equal protection and due process," this limitation on federal habeas corpus review is of equal force. Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (quoting Willeford v. Estelle, 538 F.2d 1194, 1196-98 (5th Cir. 1976)). Errors which do not infringe upon federally protected rights provide no basis for federal habeas relief. Petitioner's habitual felony offender sentence does not violate the United States Constitution. It is well-settled in the Eleventh Circuit that federal courts cannot review a state's failure to adhere to its own sentencing procedures. See Branan v. Booth, 861 F.2d at 1508; Carrizales v. Wainwright, 699 F.2d 1053 (11th Cir. 1983).
Claim Nine raises an issue of purely state law and as such, it is not properly before this Court. Accordingly, Claim Nine is dismissed.
Any of Petitioner's allegations not specifically addressed herein have been found to be without merit.
Petitioner is not entitled to a 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). Rather, a district court must first issue a certificate of appealability ("COA"). "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 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). Petitioner has not made the requisite showing in these circumstances.
Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
Accordingly, it is hereby
1. The Florida Attorney General is
2. Claims One, Six, Seven, Eight and Nine of the 28 U.S.C. § 2254 petition for habeas corpus relief filed by Brian T. Allison is
3. Petitioner is
4. The Clerk of Court is directed to terminate any pending motions, enter judgment accordingly, and close this case.
(Ex. 10B at 454).
