ORDER

CHARLENE EDWARDS HONEYWELL, District Judge.

Petitioner Gene Smith, 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 (Dkt. 1) and memorandum of law (Dkt. 3). He challenges his convictions entered by the Circuit Court for the Tenth Judicial Circuit, Polk County, Florida, in 2009. Respondent's response (Dkt. 7) raises no challenge to the petition's timeliness. Smith filed a reply (Dkt. 13). Upon review, the petition must be denied.

PROCEDURAL HISTORY

The State charged Smith with driving while license revoked (count one); fleeing or attempting to elude (count two); three counts of aggravated battery on a law enforcement officer (counts three, four, and five); possession of cocaine (count six); possession of drug paraphernalia (count seven); resisting officers with violence (count eight); and injuring a police dog (count nine). (Dkt. 10, Ex. 4.)

A jury convicted Smith of counts one, two, five, six, and seven. (Dkt. 10, Ex. 7.) The jury convicted him of the lesser-included offense of resisting officers without violence on count eight and found him not guilty of counts three, four, and nine. (Id.) The trial court sentenced Smith to concurrent terms of 30 years in prison as a prison releasee reoffender on count five; 15 years in prison on count two; five years in prison on counts one and six; and time served on counts seven and eight. (Dkt. 10, Ex. 8, pp. 93-94; Ex. 9.)

The state appellate court per curiam affirmed Smith's convictions and sentences. (Dkt. 10, Ex. 13.) Smith filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Dkt. 10, Ex. 15.) The state court denied relief on all claims, except ground seven, in which it granted Smith's request to correct an error on the written judgment. (Dkt. 10, Exs. 16, 18.) The state appellate court per curiam affirmed the court's orders. (Dkt. 10, Ex. 19.)

FACTS

Lakeland Police Officers Rusty Longaberger and Eric Harper were in an unmarked police car when they believed they saw Smith smoking crack while driving his car. (Dkt. 10, Ex. 6, pp. 124, 216.) Longaberger and Harper positioned themselves behind Smith and called for another officer. (Id., p. 124.) Officer Bryan McNabb, driving another unmarked car, was in the area. Ultimately, the three cars stopped at a red light. McNabb's car was in front, Smith's car was second in line, and Longaberger and Harper's car was last. (Id., p. 125.) Longaberger and Harper advised McNabb that they intended to effectuate a traffic stop at that time. (Id., p. 189.) Both police vehicles' lights were activated. (Id., pp. 125, 136, 190, 198.) After McNabb exited his car, Smith put his car into reverse and backed into Longaberger and Harper's car. (Id., pp. 126, 190.) He then drove forward between McNabb and McNabb's car. (Id., p. 220-21.) McNabb moved to the side, but Smith's car made some contact with him. (Id., pp. 152, 190-91.) Smith's car also hit the open door of McNabb's car, bending it backwards. (Id., pp. 127, 152, 191.)

Smith continued driving; Longaberger and Harper followed. (Id., pp. 128-29.) McNabb got back into his vehicle and joined the pursuit. McNabb moved into position directly behind Smith. (Id., pp. 129, 192.) As they traveled through residential neighborhoods, Smith drove onto several yards and hit McNabb's car when he re-entered the roadway. (Id., pp. 130, 143, 192, 205.) He was described as ramming the driver's side of his car into the passenger's side of McNabb's car. (Id., p. 193.)

Officer Aaron Peterman, driving a marked patrol car with lights and siren activated, joined the pursuit and followed directly behind Smith. (Id., pp. 153, 202.) Peterman activated his car's video camera system at some point after he joined the pursuit. (Id., pp. 153-54.)1 Additionally, Harper radioed information on the pursuit to police dispatch. (Id., pp. 128-29.) Shortly before the end of the pursuit, Officer Charles Dallas, driving another marked car, pulled in behind Peterman. (Id., p. 182.) Smith pulled into a driveway and came to a stop. (Id., pp. 131, 182.) After initially refusing to exit his car in accordance with officers' directions, he was taken into custody. (Id., pp. 131-32.)

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:

In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:

"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreason able . . . 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 unders tood 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 affirmed the rulings on Smith's postconviction motion in a per curiam decision without a written opinion. This decision warrants deference under Section 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (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. Smith 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, either on direct appeal or in a state postconv iction 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 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, 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.

INEFFECTIVE ASSISTANCE OF COUNSEL

Claims of ineffective assistance of counsel 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.

Smith must demonstrate that counsel's alleged error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." 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.").

DISCUSSION

Ground One

Smith alleges that trial counsel was ineffective for failing to establish that police officers testified falsely at his trial in order to secure a conviction. He asserts that "counsel had evidence in sup[p]ort of this claim." (Dkt. 1, p. 5.) Smith alleges that Peterman's camera was activated at the beginning of the incident but that Peterman testified untruthfully he did not activate the camera until later in the pursuit. In his memorandum and reply, Smith asserts that police tampered with the video, which, if viewed in its entirety, would show he never ran into any police car. Smith also alleges in his memorandum that the entire audio tape of the pursuit would demonstrate the officers gave false testimony because there was no mention of Smith running off the road and striking McNabb's vehicle. The state court rejected this claim when Smith raised it in his postconviction motion:

(Dkt. 10, Ex. 18, p. 1.) The State's response provides:

(Dkt. 10, Ex. 17, pp. 5-8) (emphasis in original) (State's footnote and citations to postconviction motion omitted).

Smith does not demonstrate entitlement to relief. He has presented no evidence that any of the officers testified falsely, or that there exist any missing portions of the video or audio recordings that would show the officers' testimony to be false. Smith repeatedly asserts that the video footage from Peterman's vehicle would have started earlier than Peterman claimed because recording will automatically begin whenever a police vehicle's lights or sirens are activated. However, Smith cites no authority for this assertion, and a review of the trial transcript demonstrates that the officers did not testify video recording automatically commences in this manner.2

As the state court noted, the audio recording reflects that Smith rammed two police cars. (Dkt. 10, Ex. 6, p. 232.) Furthermore, Harper, who provided information about the pursuit to police dispatch over the radio, testified that the purpose of his communication was to alert dispatch to their speed, direction, and location. (Id., p. 221.) Therefore, that the audio tape presented at trial did not specifically mention Smith driving off the road and hitting McNabb's car upon its return to the road does not establish that any officer gave false testimony about those events. And while Smith makes the generalized claim that "the story that the officers testified to in court does not match what was recorded on the audio tapes," he does not demonstrate a conflict between the audio recording and the trial testimony that shows any officer testified falsely. Accordingly, Smith fails to show what evidence of perjured testimony counsel could have uncovered or presented.3

Smith claims that the prosecutor was aware of the allegedly perjured testimony of the law enforcement officers. To the extent Smith may intend to bring the claim alleging a violation of Giglio v. United States, 405 U.S. 150 (1972) that he raised in ground one of his postconviction motion, he is not entitled to relief. "To make out a valid Giglio claim, a petitioner `must establish that (1) the prosecutor knowingly used perjured testimony or failed to correct what he subsequently learned was false testimony; and (2) such use was material-i.e., that there is any reasonable likelihood that the false testimony could have affected the judgment.'" Ferguson v. Sec'y, Dep't of Corr., 580 F.3d 1183, 1208 (11th Cir. 2009) (quoting Davis v. Terry, 465 F.3d 1249, 1253 (11th Cir. 2006)). Smith cannot meet this standard because he has not demonstrated that the State presented false testimony.

Smith has not established that the state court's decision 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 One.4

Ground Two

Smith asserts that trial counsel was ineffective for failing to depose Officer McNabb and Officer Peterman, which he contends would have resulted in their making statements that could have been used to impeach them at trial. Smith alleges that counsel failed to undertake any investigation, and did not pursue a "coherent theory of defense." (Dkt. 3, pp. 17, 18.) He suggests that counsel should have "used impeachment as a defense" but that counsel "failed to perform the proper research and investigation necessary to assert an impeachment defense." (Dkt. 13, pp. 7, 8.) Smith further states that the officers' "testimony would have been critical and contributed to the acquittal of the aggravated battery or battery charge; especially there [were] numerous inconsistencies throughout their testimony." (Id., p. 8.)

In his postconviction motion, Smith asserted that Peterman's deposition testimony would have contradicted his trial testimony concerning the point at which he began recording video of the incident. (Dkt. 10, Ex. 15, pp. 23-24.) He also appeared to argue that McNabb's deposition testimony, along with video footage, would have demonstrated that McNabb was not required to jump out of the way of Smith's car and that Smith never hit McNabb's vehicle. (Id., p. 24). Smith further asserted that the officers' testimony was inconsistent with the audio recording of the incident. (Id., p. 25.)

The state court denied Smith's claim of ineffective assistance of counsel:

(Dkt. 10, Ex. 18, p. 1.) The State's response provides:

(Dkt. 10, Ex. 17, pp. 8-10) (emphasis in original) (State's citations to postconviction motion and record omitted).

Smith's assertion that Peterman and McNabb would have provided testimony different from that presented at trial is speculative and conclusory. And while Smith asserts that the audio recording was inconsistent with their trial testimony, he cites no specific inconsistencies. Smith provides no basis to conclude that deposing Peterman and McNabb would have produced information with which to impeach them at trial. Accordingly, Smith has not established that counsel's performance was deficient, or that he suffered resulting prejudice. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim). He does not demonstrate that the state court unreasonably applied Strickland or unreasonably determined the facts when it denied his claim. Smith is not entitled to relief on Ground Two.

Ground Four

Smith contends that trial counsel was ineffective for not arguing that the jury failed to "make a specific finding with respect to agency insignia or other jurisdictional markings" on the charge of fleeing or attempting to elude. Section 316.1935, Fla. Stat., provides:

§ 316.1935(3)(a), Fla. Stat. The verdict form reflects that the jury made the following findings:

(Dkt. 10, Ex. 7.)5

The state court denied Smith's ineffective assistance of counsel claim:

(Dkt. 10, Ex. 18, pp. 2-4) (court's record citations omitted).

To the extent this claim rests upon a state law issue concerning the sufficiency of the verdict form and the jury's findings under Florida law, deference must be afforded to the state court's determination. 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)).

Additionally, the jury was instructed that to prove fleeing or attempting to elude, the State must establish four elements beyond a reasonable doubt. The third element was that the law enforcement officer "was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated." (Dkt. 10, Ex. 6, p. 310.) Jurors are presumed to follow their instructions. Richardson v. Marsh, 481 U.S. 200, 211 (1987); Brown v. Jones, 255 F.3d 1273, 1280 (11th Cir. 2001). Furthermore, the record reflects that for a portion of the pursuit, Officer Peterman was driving the lead car. (Id., pp. 201-02, 232, 238.) Peterman testified that he was driving a "fully marked" car. (Id., p. 151.) He described his car as a "standard City of Lakeland-issued police car with the light bar. It's the white car with the blue and orange markings on it that say police department." (Id.) Under these circumstances, Smith does not show that counsel was ineffective for failing to object to the verdict form or that he suffered resulting prejudice. He fails to demonstrate that the state court unreasonably applied Strickland or unreasonably determined the facts in rejecting his claim. Consequently, Smith is not entitled to relief on Ground Four.

Ground Three

Smith argues that trial counsel was ineffective for failing to object when, during trial, the State amended the charging document by adding a new charge. The state filed a charging document, followed by three amended charging documents. The original charging document, as well as the first and second amended charging documents, alleged that Smith committed aggravated assault on Officer McNabb. (Dkt. 10, Exs. 1, 2, 3.) The third amended charging document amended count five to reflect a charge of aggravated battery on McNabb. (Dkt. 10, Ex. 4.) The prosecutor signed it on August 12, 2009, after jury selection occurred on August 10, 2009. (Dkt. 10, Exs. 4, 5.)

Smith was found guilty of aggravated battery on McNabb but acquitted of aggravated battery on Longaberger and Harper. Smith claims that counsel did not have enough time to prepare a defense for aggravated battery on McNabb. He argues he also would have been acquitted of aggravated battery on McNabb if counsel had adequate time for preparation. The state court summarily denied his claim:

(Dkt. 10, Ex. 18, p. 2) (court's record citations omitted).

The court then presented its analysis of ground four, in which it addressed counsel's decision to concede guilt on the traffic offenses and argue that Smith only intended to flee, not to commit aggravated battery. The state court continued its analysis of ground three:

(Dkt. 10, Ex. 18, p. 4.) The state court cited the State's discussion of the law on amendments to charging documents:

(Dkt. 10, Ex. 17, pp. 11-13.)

Smith fails to show that counsel was ineffective for failing to object to the third amended charging document, or that he was prejudiced as a result. Counsel conceded the charges of driving while license revoked and fleeing or attempting to elude. (Dkt. 10, Ex. 6, pp. 118-19, 274.)6 As addressed, counsel then argued to the jury that the more severe offenses of battery on the law enforcement officers had not been proven because Smith merely intended to flee from the law enforcement officers, not to do harm to them. (Id., pp. 119-20, 277-79, 281, 288-91.) This argument encompassed the aggravated battery charges concerning all three officers. Furthermore, it appears that counsel knew the charging document might be amended to reflect aggravated battery on McNabb.7 Smith does not identify another defense or argument that counsel could have developed with respect to the charge of aggravated battery on McNabb if he had more time to do so.

Accordingly, Smith fails to show that the state court's decision was an unreasonable application of Strickland, or was based on an unreasonable determination of the facts. He is not entitled to relief on Ground Three.

Ground Five

Smith alleges a federal due process violation in that the state court entered an amended judgment on October 21, 2009. Smith claims that "once the judgment and sentence were rendered on September 25, 2009, jeopardy attached. The court was without lawful authority to amend the judgment to include another statute, F.S. § 784.07. Without the amended judgment adding the proper language to count five, F.S. § 784.07, the degree of felony is a lesser degree and Petitioner must be resentenced." (Dkt. 1, p. 20.)

The original judgment provides that on count five, Smith was convicted under § 784.021, Fla Stat., which governs aggravated assault. (Dkt. 10, Ex. 9.) The amended judgment added § 784.07, Fla. Stat., which governs assault or battery on law enforcement officers. (Dkt. 10, Ex. 10.) Smith alleged a federal constitutional violation when he raised this claim in his postconviction motion. (Dkt. 10, Ex. 15, p. 36.) The state court rejected Smith's claim:

(Dkt 10, Ex. 16) (court's reference to attachments omitted).

Smith does not establish that the state court's determination was contrary to or an unreasonable application of controlling Supreme Court precedent, or was based on an unreasonable determination of the facts. Ground Five warrants no relief.

Ground Six

Smith asserts that his right to effective assistance of counsel and his federal right to due process were violated because the judgment erroneously reflects that he entered a guilty plea. In ground seven of his postconviction motion, Smith stated that the judgment incorrectly showed he entered a guilty plea. However, he did not allege any constitutional deprivation as a result of this error. (Dkt. 10, Ex. 15, p. 41.) Instead, Smith merely alerted the court to the inaccuracy and requested that the record be corrected. (Id.)8 Therefore, his federal claim is unexhausted. Smith cannot return to state court to file an untimely, successive postconviction motion. See Fla. R. Crim. P. 3.850(b), (h). Any federal violation he now raises is therefore procedurally defaulted. See Smith, 256 F.3d at 1138. Smith does not show that an exception applies to overcome the procedural default. Notwithstanding the default, Smith fails to show any constitutional violation as a result of this scrivener's error on the judgment. He does not demonstrate entitlement to relief on Ground Six.

Any claims not expressly addressed herein have been determined to be without merit.

It is therefore

ORDERED that Smith's petition for writ of habeas corpus (Dkt. 1) is DENIED.9 The Clerk is directed to enter judgment against Smith and to close this case.

It is further ORDERED that Smith 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 showin g, Smith "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)). Smith has not made this showing. Finally, because Smith is not entitled to a COA, he is not entitled to appeal in forma pauperis.