ORDER

VIRGINIA M. HERNANDEZ COVINGTON, District Judge.

Petitioner Anthony Dadabo, an inmate in the Florida Department of Corrections proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) He challenges his conviction entered by the Circuit Court for the Sixth Judicial Circuit, in and for Pinellas County, Florida, in 2009. Respondent filed a response (Doc. 8), in which it agrees that the petition is timely. Dadabo filed a reply. (Doc. 11.) Upon review, the petition must be denied.

PROCEDURAL HISTORY

A jury convicted Dadabo of one count of first degree murder. (Doc. 10, Ex. 18, Vol. I, p. 121.) He was sentenced to life imprisonment. (Id., pp. 122-25.) The state appellate court per curiam affirmed his conviction and sentence. (Doc. 10, Ex. 4.) Dadabo's motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850 was summarily denied. (Doc. 10, Exs. 6, 7, 10.) The state appellate court per curiam affirmed the order of denial. (Doc. 10, Ex. 14.)

FACTS

The postconviction court summarized the facts of the case:

(Doc. 10, Ex. 7, pp. 29-30.)

STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Habeas relief can only be granted if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d), which sets forth a highly deferential standard for federal court review of a state court adjudication, states:

"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that [the federal court is] to decide."). The phrase "clearly established Federal law" encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams, 529 U.S. at 412.

The purpose of federal review is not to re-try the case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Cone, 535 U.S. at 693. In other words, "AEDPA prevents defendants-and federal courts-from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, 559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) ("This is a `difficult to meet,' . . . and `highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt' . . . .") (citations omitted).

The state appellate court rejected Dadabo's direct and postconviction appeals without discussion. The court's decisions warrant deference under Section 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom. Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at 99 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.").

Review of the state court decision is limited to the record that was before the state court:

Pinholster, 563 U.S. at 181-82. Dadabo bears the burden of overcoming by clear and convincing evidence a state court factual determination. "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001).

EXHAUSTION OF STATE COURT REMEDIES; PROCEDURAL DEFAULT

Before a district court can grant habeas relief to a state prisoner under § 2254, the petitioner must exhaust all state court remedies that are available for challenging his conviction, eit her on direct appeal or in a state postconviction motion. 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."). See also Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.") (citations omitted). A state prisoner "`must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process,' including review by the state's court of last resort, even if review in that court is discretionary." Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) (quoting O'Sullivan, 526 U.S. at 845).

To exhaust a claim, a petitioner must make the state court aware of both the legal and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) ("Exhaustion of state remedies requires that the state prisoner `fairly presen[t] federal 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).

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 fund amental miscarriage of justice exception is established." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner "must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must demonstrate not only that the errors at his trial created the possibility of prejudice but that they worked to his actual and substantial disadvantage and infected the entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S. 152, 170 (1982). The 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.

DISCUSSION

Ground One

Dadabo argues that the trial court erred in denying a motion to suppress his incriminating statements. He alleges that his Fifth Amendment privilege against self incrimination was violated because police disregarded his request for an attorney during a custodial interrogation. Prior to trial, counsel moved to suppress Dadabo's statement on this basis.

The record of the hearing on Dadabo's motion to suppress reflects that Detectives John Spoor and Michael Bailey of the Pinellas County Sheriff's Office interviewed Dadabo three times in the days following the murder. Dadabo was also given a polygraph exam. After Dadabo moved to New Windsor, New York, he became an informant for the New Windsor Police Department. He worked with New Windsor detectives Lawrence DiGregorio and Michael Suttlehan. Spoor and Bailey traveled to New Windsor to interview Dadabo. On October 9, 2006, Suttlehan summoned Dadabo to the department, ostensibly regarding informant work. (Doc. 10, Ex. 18, Vol. V, p. 766-67.) When he arrived at the department, Dadabo initially met with DiGregorio an interview room. (Id., pp. 746-47, 768.) Then, DiGregorio informed Dadabo that some detectives were there to see him. (Id., p. 747.) Spoor and Bailey met privately with Dadabo in the same interview room. (Id., pp. 749.) Dadabo was provided warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). He initially requested an attorney, but then agreed to speak without an attorney present.

The transcript of the beginning of the interview provides:

(Doc. 10, Ex. 18, Vol. III, pp. 426-27.) Upon subsequent questioning by Spoor and Bailey, Dadabo made incriminating statements.

At the conclusion of the motion to suppress hearing, the state trial court made thorough, detailed findings of fact and legal conclusions:

(Doc. 10, Ex. 18, Vol. V, pp. 863-75.)

The record supports the state court's factual findings concerning the events and interview. Whether Dadabo was in custody at the time he requested an attorney is relevant because "the right to Miranda warnings attaches when a custodial interrogation begins." United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006). Miranda requires that an in-custody suspect be informed, among other warnings, "that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." 384 U.S. at 479. When an accused requests counsel, custodial interrogation must end until counsel is provided unless the accused initiates further discussion. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

Determining custody involves examining the circumstances surrounding the interrogation and whether, under those circumstances, a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave. Thompson v. Keohane, 516 U.S. 99, 112 (1995). While a court determining whether an individual was in custody must examine all of the circumstances of the interrogation, "the ultimate inquiry is simply whether there [was] a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). "The test is objective: the actual, subjective beliefs of the defendant and the interviewing officer on whether the defendant was free to leave are irrelevant." United States v. Moya, 74 F.3d 1117, 1119 (11th Cir. 1996.)

The Supreme Court has further explained:

Howes v. Fields, 132 S.Ct. 1181, 1189-90 (2012).

The record supports the finding that Dadabo was not in custody at the time he requested an attorney. Dadabo traveled voluntarily to the police station, where he had been on numerous prior occasions for informant work. (Doc. 10, Ex. 18, Vol. V, pp. 745, 764.) He was familiar with both the New Windsor officers and with Spoor and Bailey. There is no indication that Dadabo had anything other than a cordial relationship with these law enforcement officers. That Dadabo was familiar with his surroundings supports the conclusion that he was not in custody. See, e.g., United States v. Maldonado, 562 Fed. App'x 859, 861 (11th Cir. 2014) (noting that the fact an individual was interrogated in the familiar surroundings of her workplace weighed against the finding of a custodial interrogation); Brown, 441 F.3d at 1348 ("Although the location of the interview is surely not dispositive in determining whether the interviewee was in custody, `[c]ourts are much less likely to find the circumstances custodial when the interrogation occurs in familiar or at least neutral surroundings, such as the suspect's home.'") (quoting United States v. Ritchie, 35 F.3d 1477, 1485 (10th Cir. 1994)). That the interview occurred in a police station is not enough to render it custodial. See Beheler, 463 U.S. at 1125 ("[W]e have explicitly recognized that Miranda warnings are not required `simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.'") (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)).

Furthermore, although "the fact that an individual is told he is not under arrest and is free to leave is a fact of substantial importance in determining whether a reasonable person would have felt free to leave," Brown, 441 F.3d at 1347, that Dadabo was not informed of this did not mean he was in custody. He was in the unique situation of being with officers he knew and who, as the state court put it, had traveled to visit Dadabo on his "home turf." In his prior experience being interviewed by these officers, he had been provided Miranda warnings several times, but had not been arrested and left at the end of the interviews. (Doc. 10, Ex. 18, Vol. V, pp. 782, 785, 787-90.) Dadabo does not allege that he was not permitted to leave the interview room, that the room was physically arranged so that he could not leave, or that he was restrained within the room. Spoor testified that he and Bailey did not block Dadabo's ability to exit when they entered the interview room. (Id., p. 797.) Dadabo does not complain that his remaining in the room was involuntary, or that he asked or tried leave the room. Testimony of Spoor, Bailey, DiGregorio, and Suttlehan reflects that Dadabo did not say he wanted to leave or physically attempt to leave when Spoor and Bailey came into the room. (Id., pp. 748, 769, 797-98, 825.) Although the record shows that to leave the police building, Dadabo would have to be escorted through locked doors by New Windsor officers (see id., pp. 757-58), there is no evidence that he was unable to leave the interview room itself to avoid further contact with Spoor and Bailey if he had wanted to do so.

Dadabo does not establish that he was restrained to the degree associated with formal arrest such that a reasonable person would not have felt free to leave. Thus, the record supports the state court's determination that Dadabo was not in custody. If a suspect is not in custody, his Fifth Amendment privilege against self-incrimination is not at issue. See Edwards, 451 U.S. at 485-86 (absent custodial interrogation, there is no infringement of the Fifth Amendment right to have counsel present even where a suspect requests an attorney, and therefore, there would be no occasion to determine whether there had been a valid waiver of this right). See also Bobby v. Dixon, 132 S.Ct. 26, 29 (2011) (the United States Supreme Court has "never held that a person can invoke his Miranda rights anticipatorily, in a context other than `custodial interrogation.'") (citation omitted); Montejo v. Louisiana, 556 U.S. 778, 795 (2009) (stating if the defendant is not in custody, Miranda and its progeny do not apply). Accordingly, even if the officers can be said to have ignored Dadabo's request for an attorney, Dadabo cannot show that this resulted in a constitutional violation because Miranda protections were inapplicable.

Dadabo has not established that the state court's finding is contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts.2 He is not entitled to relief on Ground One.

Ground Two

The Sixth Amendment guarantees a defendant in a state criminal trial an independent constitutional right to self-representation. Faretta v. California, 422 U.S. 806, 819-20 (1975). Dadabo asserts that he was denied this right. Specifically, he alleges that "the Trial Court failed to follow procedure during two Nelson Hearings and failed to inform Petitioner of his Constitutional right to self-representation." (Doc. 1, p. 9.)

The trial court conducted several pre-trial hearings after Dadabo complained that counsel was rendering inadequate representation. On March 25, 2008, after hearing from Dadabo and counsel, the court found that counsel was acting competently. (Doc. 10, Ex. 18, Supp. I, p. 897.) At the next hearing during which Dadabo indicated he did not want counsel to represent him, on April 22, 2008, counsel stated his belief that a psychological exam was necessary. (Id., p. 905.) Accordingly, the court ordered that Dadabo be evaluated. (Id., p. 907.) Later, on May 12, 2008, after Dadabo was found competent to proceed, the court again heard his complaints about counsel's representation. It determined that counsel was representing Dadabo "very competently and is doing everything that he should be doing in this case." (Id., p. 926.)

Under Florida law, when a defendant asks that his counsel be discharged due to incompetence, the trial court must determine whether adequate grounds exist to do so. See Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). If the trial court finds no basis to discharge counsel, "the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute." Id. at 259. The state trial court determined no grounds existed to discharge counsel but did not inform Dadabo that he would not be appointed alternate counsel if his attorney was discharged. The court did not make any other statements about self-representation during these hearings.

Dadabo's argument presents a question of state law because he asserts that the court failed to follow Nelson's procedures for Florida trial courts. Because this claim does not raise a federal question, it is not cognizable in this federal habeas proceeding. Federal habeas relief for a person in custody on a state court judgment is available only if that custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). See Wainwright v. Goode, 464 U.S. 78, 83-84 (1983) ("It is axiomatic that federal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension.") (citations omitted).

Even interpreting Dadabo's claim as federal in nature to the extent he alleges the trial court violated his federal constitutional rights regarding self-representation, he is not entitled to relief. First, Dadabo presents no authority providing that the United States Constitution compels the Nelson procedures and requires the that the court inform a defendant of his Sixth Amendment right to self-representation simply because he lodges a pre-trial complaint about trial counsel's performance.

Nor can Dadabo show that the court otherwise violated his right to self-representation. In order to invoke the right, a defendant must unequivocally state his desire to proceed pro se. See Faretta, 422 U.S. at 835-36. See also Nelson v. Alabama, 292 F.3d 1291, 1295 (11th Cir. 2002) ("Before a court allows a criminal defendant to proceed pro se, the defendant must clearly and unequivocally assert his right of self-representation.").

As Dadabo did not unequivocally request to proceed as his own attorney (see Doc. 10, Ex. 18, Supp. I), he cannot show that the state court deprived him of his Sixth Amendment right to self-representation. Accordingly, Dadabo fails to establish that the state appellate court's rejection of his claim was contrary to or an unreasonable application of clearly established law, or was based on an unreasonable determination of the facts. Dadabo is not entitled to relief on Ground Two.

Ground Three

Dadabo asserts that the trial court committed fundamental error when it incorrectly instructed the jury on the lesser-included offense of manslaughter by act. He alleges that the instruction on manslaughter by act "erroneously implied an additional element of `intent.' There is no `intent' element in manslaughter by act, manslaughter by act only requires an `intentional act', not `intent to kill.'" (Doc. 1, p. 10.)

Dadabo does not assert a federal constitutional claim in his habeas petition. Rather, he has raised a claim based on Florida law. Federal habeas relief is not available for errors of state law. See Goode, 464 U.S. at 83-84; Estelle v. McGuire, 502 U.S. 62, 67 (1991). Therefore, a jury instruction that "was allegedly incorrect under state law is not a basis for federal habeas relief." McGuire, 502 U.S. at 71-72. Accordingly, Dadabo's claim is not cognizable in this federal habeas proceeding.

Furthermore, even if his argument could be interpreted as including a federal claim, it would be unexhausted due to Dadabo's failure to raise the federal nature of the claim on direct appeal. Dadabo asserted on appeal that the trial court fundamentally erred in giving an instruction that did not properly state Florida law. (Doc. 10, Ex. 2, pp. 43-45.) But he did not cite the federal constitution or any federal authority. (Id.) "The 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 Fed. App'x 847, 849-50 (11th Cir. 2008) (citing Duncan v. Henry, 513 U.S. 364, 365-66 (1995)). State procedural rules do not provide for successive direct appeals. See Fla. R. App. P. 9.140. Therefore, Dadabo's unexhausted federal claim is procedurally defaulted. See Smith, 256 F.3d at 1138. Dadabo does not argue or establish that an exception applies to overcome the default.3

Notwithstanding the default of any federal claim that can be deduced from Dadabo's habeas petition, he fails to show entitlement to relief.

Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quotation marks, citations, and footnote omitted). Dadabo relies on State v. Montgomery, 39 So.3d 252 (Fla. 2010). The Florida Supreme Court held that the standard jury instruction on manslaughter by act used at Montgomery's trial misstated Florida law by adding an element of intent to kill. Id. at 255-57.4 Providing the instruction as a lesser offense constituted fundamental, per se reversible error in Montgomery's case because Montgomery was convicted of second degree murder, an offense only one step removed from manslaughter. Id. at 259.

Montgomery did not involve a conviction for first degree murder. The court noted that "manslaughter as a lesser included offense is two steps removed from first-degree murder. . . . `when the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis.'" Id. (quoting Pena v. State, 901 So.2d 781, 787 (Fla. 2005)). At the time Dadabo's conviction became final, the law followed by Second District Court of Appeal, which heard Dadabo's appeal, was that instructing the jury on manslaughter by culpable negligence cured error in the manslaughter by act jury instruction. See Barros-Dias v. State, 41 So.3d 370, 371 (Fla. 2d DCA 2010) ("[Montgomery] does not change the outcome in Barros-Dias' case because the jury in his case was instructed on both manslaughter by act and manslaughter by culpable negligence.").5 The trial court instructed Dadabo's jury on manslaughter by culpable negligence. (Doc. 10, Ex. 18, Vol. XIII, pp. 1266-67.) Accordingly, Dadabo fails to establish that an error in the manslaughter by act instruction infected his trial such that his conviction violates federal due process. See Henderson, 431 U.S. at 154. Dadabo has not shown entitlement to relief on Ground Three.

Ground Four

Dadabo raises six allegations of ineffective assistance of trial counsel. Claims of ineffective assistance are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984):

Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998). Demonstrating deficient performance "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Deficient performance is established if, "in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." Id. at 690. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. Additionally, "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id.

Dadabo must demonstra te that counsel's alleged error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691-92. To show prejudice, a petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. A petitioner cannot meet his burden merely by showing that counsel's choices were unsuccessful:

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable . . . . [T]he issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).

Sustaining a claim of ineffective assistance of counsel on federal habeas review is difficult because "[t]he standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Richter, 562 U.S. at 105 (citations omitted). See also Pinholster, 563 U.S. at 202 (a petitioner must overcome the "`doubly deferential' standard of Strickland and AEDPA.").

If a claim of ineffective assistance of counsel can be resolved through one of the Strickland test's two prongs, the other prong need not be considered. 466 U.S. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds.").

Grounds Four (A), (B), and (D)

In Ground Four(A), Dadabo argues that trial counsel was ineffective for failing to move to appoint an expert to examine his competency to proceed and to rebut the State's expert. In Ground Four(B), he asserts that counsel was ineffective for stipulating to his competency. In Ground Four(D), Dadabo claims that trial counsel was ineffective for failing to investigate his competency, thereby resulting in the denial of a fair suppression hearing and jury trial "because the `severity' and duration of Petitioner's `documented' mental illness was omitted from consideration." (Doc. 1, p. 13.) The postconviction court treated these ineffective assistance claims together and denied them in reviewing Dadabo's rule 3.850 motion:

(Doc. 10, Ex. 10, pp. 227-230) (court's record citations and footnote omitted).

The conviction of a mentally incompetent defendant violates due process. Pate v. Robinson, 383 U.S. 375 (1966). The federal standard for competency to stand trial is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960). See also Drope v. Missouri, 420 U.S. 162, 171 (1975) ("It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial."). "[A] petitioner raising a substantive claim of incompetency is entitled to no presumption of incompetency and must demonstrate his or her incompetency by a preponderance of the evidence." James v. Singletary, 957 F.2d 1562, 1571 (11th Cir. 1992).

Dadabo's federal habeas petition does not specify the facts that he alleges show his incompetency. He alleged in his postconviction motion that he had been prescribed psychotropic medication and received diagnoses of bipolar, manic depressive, and paranoid schizophrenic. (Doc. 10, Ex. 6, p. 9.) Dadabo also claimed that he was under a doctor's care and had previously been institutionalized and attempted suicide. (Id.) But Dadabo has not demonstrated that counsel performed deficiently in stipulating to his competency,6 failing to investigate his competency, or not seeking further evaluation7 based on this information. That a defendant suffers or has suffered from mental illness does not necessitate a finding of incompetency to proceed. In other words, Dadabo's history of mental illness would not demonstrate incompetency without a specific showing that his illness rendered him incompetent during the relevant pre-trial period. Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995) ("[N]ot every manifestation of mental illness demonstrates incompetence to stand trial; rather, the evidence must indicate a present inability to assist counsel or understand the charges.") (quoting Card v. Singletary, 981 F.2d 481, 487-88 (11th Cir. 1992)). Furthermore, a defendant's use of psychiatric drugs is relevant but not determinative to establishing incompetency. Sheley v. Singletary, 955 F.2d 1434 (11th Cir. 1992). Additionally, a prior suicide attempt does not always signal incompetency to stand trial. Drope, 420 U.S. at 180.

In addition, as the state court noted, the record of several pre-trial hearings shows that Dadabo participated in the proceedings. (Doc. 10, Ex. 18, Supp. I.) And, prior to trial, he presented several intelligible pro se documents seeking relief, including a letter to the court in which he sought a plea agreement. (Doc. 10, Ex. 18, Vol. I, pp. 30, 35-41, 51-53, 82-86.) Dadabo has not established that at the relevant time, he lacked the ability to consult with counsel with a reasonable degree of rational understanding, or that he did not have a rational and factual understanding of the proceedings. Nor does he allege or explain how further action by counsel would have uncovered information demonstrating his incompetence to proceed. Thus, Dadabo has not established that counsel was ineffective for the reasons alleged, or that he was prejudiced by counsel's performance. "In order to demonstrate prejudice from counsel's failure to investigate his competency, a defendant has to show that there exists `at least a reasonable probability that a psychological evaluation would have revealed that he was incompetent to stand trial.'" Futch v. Dugger, 874 F.2d 1483, 1487 (11th Cir. 1989) (quoting Alexander v. Dugger, 841 F.2d 371, 375 (11th Cir. 1988)).

Dadabo does not establish that the state court unreasonably applied Strickland or unreasonably determined the facts in reaching its decision. Consequently, he is not entitled to relief on Grounds Four (A), (B), and (D).

Ground Four (F)

Dadabo claims counsel was ineffective for failing to investigate an insanity defense. In support, he alleges that his "mental health history is extensive." (Doc. 1, p. 13.) The state court rejected his claim as follows:

(Doc. 10, Ex. 7, pp. 38-39.)

Insanity at the time of commission of an offense is an affirmative defense under Florida law. § 775.027(1), Fla. Stat. Insanity is shown when:

Id. Thus, it is clear that mental infirmity, disease, or defect alone does not give rise to an insanity defense. Such a condition must affect the defendant's cognition in the manner specified in the statute. Furthermore, it is the defendant's burden to prove insanity by clear and convincing evidence. § 775.027(2), Fla. Stat.

In his postconviction motion, Dadabo raised information about his mental health history similar to that which he provided in support of his claim involving competency. (Doc. 10, Ex. 6, 22-23.) He also made a conclusory statement that "Defendant, because of his mental diseases was totally unable to under [sic] the nature and quality of his act and one of the medications he was prescribed is because sometimes he can not distinguish right from wrong." (Doc. 10, Ex. 6, p. 23.) As the state court noted, Dadabo asserted that counsel was aware of his mental health information and considered but rejected an insanity defense. The record supports the state court's determination that Dadabo failed to establish what further investigation by counsel would have revealed to show that an insanity defense was viable.

Furthermore, to the extent that the state court's decision that counsel was not ineffective for opting not to pursue an insanity defense based on known information him concerned an interpretation of the insanity defense as set forth in Florida law, deference must be afforded to the state court's decision. See Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) ("The Florida Supreme Court already has told us how the issues would have been resolved under Florida state law had [petitioner's counsel] done what [petitioner] argues he should have done. . . . It is a `fundamental principle that state courts are the final arbiters of state law, and federal habeas courts should not second-guess them on such matters.") (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)); Will v. Sec'y, Dep't of Corr., 278 Fed. App'x 902, 908 (11th Cir. 2008) ("Although an ineffective-assistance-of-counsel claim is a federal constitutional claim, which we consider in light of the clearly established rules of Strickland, when `the validity of the claim that [counsel] failed to assert is clearly a question of state law, . . . we must defer to the state's construction of its own law.'") (citing Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)).

Dadabo fails to show that counsel was ineffective for failing to investigate an insanity defense, or that there is a reasonable probability the outcome of the proceeding would have been different had counsel done so. He has not established that the state court unreasonably applied Strickland or unreasonably determined the facts in rejecting his claim. Consequently, Dadabo is not entitled to relief on Ground Four (F).

Ground Four (C)

Dadabo claims that trial counsel was ineffective for misadvising him not to testify at trial because that the jury would learn the number and nature of his prior felony convictions. Dadabo raised this claim in his postconviction motion, asserting that he would have testified that "he did not participate in the actual murder of the victim; was not present when the victim actually died; and was only present during certain portions of the crime." (Doc. 10, Ex. 6, p. 7.) The state court denied Dadabo's claim:

(Doc. 10, Ex. 10, pp. 230-32) (court's record citations omitted).

The record supports the finding that Dadabo's decision not to testify was voluntary. (Doc. 10, Ex. 18, Vol. XIII, pp. 1237-39.) Additionally, Dadabo has not shown that any strategic advice by counsel not to testify was unreasonable. Detective Spoor testified to his numerous interviews with Dadabo. Spoor's testimony reflects that during later interviews, Dadabo changed some details of his stories, provided Spoor with additional information, and made incriminating statements. (Doc. 10, Ex. 18, Vol. X, pp. 718-30, 791-96; Vol. XI, pp. 872-76, 922-25, 982-93.) Therefore, as the state court noted, Dadabo would have been subject to thorough cross-examination concerning any inconsistencies or variations in these interviews.

Additionally, even assuming that Dadabo could establish that counsel misadvised him that the jury would learn the nature of his prior felony convictions, as addressed by the state court, Dadabo has failed to demonstrate prejudice. The charge against Dadabo allowed the jury to find him guilty of first degree murder if he was a principal in the robbery during which Dittus was killed. The court instructed the jury:

(Doc. 10, Ex. 18, Vol. XIII, pp. 1260-61.)

Florida's felony murder law provides that murder in the first degree includes "[t]he unlawful killing of a human being . . . [w]hen committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any . . . [r]obbery". § 782.04(1)(a)2.d., Fla. Stat. The law regarding principals provides:

§ 777.011, Fla. Stat. This statute "eliminates the distinction between those who are actually or constructively present at the commission of the offense. . . . No distinction is made between those who are the brains of the crime and those who are the arms of the crime." State v. Reid, 886 So.2d 265, 266 (Fla. 5th DCA 2004). "In Florida, the felony murder rule and the law of principals `combine to make a felon liable for the acts of his co-felons.'" Brison v. State, 18 So.3d 1075, 1077 (Fla. 2d DCA 2009) (quoting Bryant v. State, 412 So.2d 347, 350 (Fla. 1982)).

Therefore, the state court instructed the jury:

(Doc. 10, Ex. 18, Vol. XIII, p. 1268.)

The State presented evidence that Dadabo intended that the robbery occur. He admitted that he and DiFiore planned to rob Dittus. (Doc. 10, Ex. XI, p. 988; Ex. XII, pp. 1027-28, 1078-79.) The State also presented evidence that Dadabo took actions or made statements that were intended to, and did, incite, cause, encourage, assist or advise DiFiore to commit robbery. Dadabo admitted that he told DiFiore the location of a key to Dittus' home and made the phone call to DiFiore when he was returning from the casino with Dittus. (Doc.10, Ex. XI, p. 988; Ex. XII, pp. 1027-28; Ex. XIII, pp. 1166-67.) The State also presented evidence to show that a robbery occurred.8 Force and violence were used during the events in which $700 was taken from Dittus. (Doc. 10, Ex. 18, Vol. XI, pp. 1038-40.) Dadabo admitted that he and DiFiore used the money to buy drugs. (Id., p. 1040.)

Accordingly, Dadabo's proposed testimony he was not present for the entirety of the crime or for Dittus' death did not affect his liability for first degree felony murder. See Miller v. State, 409 So.2d 109, 110 (Fla. 3d DCA 1982) ("For purpose of a felony-murder conviction it is irrelevant that appellant was not present at the time of the actual killing. As a perpetrator of the underlying felony, she is a principal in the homicide."). Because Dadabo fails to show a reasonable probability that his proposed testimony would have changed the outcome of the proceeding, he has not established that the state court unreasonably applied Strickland or unreasonably determined the facts in denying his claim. He is not entitled to relief on Ground Four (C).

Ground Four (E)

Dadabo argues that trial counsel was ineffective for misadvising him that he should reject a plea agreement because his incriminating "statements `would' be suppressed." (Doc. 1, p. 13.) Dadabo asserts that counsel should have known his motion to suppress would be denied. The postconviction court denied this claim when Dadabo raised it in his postconviction motion:

(Doc. 10, Ex. 7, pp. 32-34) (court's record citations omitted).

The record supports the state court's conclusion. When the parties discussed a potential plea agreement at a pre-trial hearing, counsel stated:

(Doc. 10, Ex. 18, Supp. I, pp. 887-88.) Dadabo then told the court he wanted more time to review discovery and decide whether to authorize counsel to make an offer to the State. (Id., pp. 892-93, 897-98.) At a subsequent hearing, Dadabo indicated he was not willing to serve a twenty-year term, which the State would require in order to reach an agreement:

(Doc. 10, Ex. 18, Supp. I, p. 917.) At the same hearing, counsel again stated that there was other evidence against Dadabo even if his confession was suppressed, and that Dadabo's rejection of the plea would be due to his wish for a term of fifteen, not twenty, years:

(Doc. 10, Ex. 18, Supp. I, pp. 923-24.) Dadabo does not show that counsel misadvised him not to enter the plea because his statements would be suppressed.10 Although counsel thought there was strong likelihood of suppression, there is no indication that counsel advised Dadabo the statements would in fact be excluded. Additionally, Dadabo was aware that even if the motion to suppress was granted, the State could proceed against him with other evidence. The record shows Dadabo knew of this before deciding to reject the plea agreement.

Dadabo does not show that the state court's rejection of his claim was contrary to or an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts. He is not entitled to relief on Ground Four (E).

It is therefore

ORDERED that Dadabo's petition for writ of habeas corpus (Doc. 1) is DENIED. The Clerk is directed to enter judgment against Dadabo and to close this case.

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED

It is ORDERED that Dadabo is not entitled to a certificate of appealability (COA). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Id. "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Dadabo "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)). Dadabo has not made the requisite showing in these circumstances. Finally, because Dadabo is not entitled to a COA, he is not entitled to appeal in forma pauperis.

ORDERED.