ORDER

CHARLENE EDWARDS HONEYWELL, District Judge.

Reginald Bernard Nelson, a Florida inmate, filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his Hillsborough County convictions. (Dkt. 1.) In the response (Dkt. 6), Respondent agrees that the petition is timely. Nelson filed a reply. (Dkt. 11.) After consideration, the petition will be denied.

PROCEDURAL HISTORY

Nelson was charged with two counts of attempted first degree murder (counts one and two), two counts of aggravated assault (counts three and four), and one count of shooting at, within, or into a vehicle (count five). (Dkt. 8, Ex. 1.) His first trial ended in a mistrial. (Dkt. 8, Ex. 3, p. 332.) Upon retrial, Nelson was convicted of the lesser-included charges of attempted second degree murder on counts one and two, and was convicted of the remaining counts as charged. (Dkt. 8, Ex. 6.)

On counts one and two, the trial court sentenced Nelson to life in prison as a habitual felony offender. (Dkt. 8, Ex. 7, pp. 149-50.) The court imposed minimum mandatory terms of 30 years as a prison releasee reoffender and minimum terms of 20 years in prison under § 775.087, Fla. Stat. (Id., p. 150.) On counts three and four, the trial court sentenced Nelson to 20 years in prison as a habitual felony offender and imposed 20-year mandatory minimum terms pursuant to § 775.087, Fla. Stat. (Id., pp. 153-54.) On count five, the trial court sentenced Nelson to 30 years in prison as a habitual felony offender. (Id., pp. 157-58.) The state appellate court per curiam affirmed. (Dkt. 8, Ex. 13.)

Nelson filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Dkt. 14.) He also filed an amended motion after several of his claims were dismissed. (Dkt. 18.) The state court denied Nelson's motions. (Dkt. 8, Exs. 15, 19, 21, 25.) The state appellate court per curiam affirmed the denial of relief. (Dkt. 8, Ex. 29.) Nelson's first successive postconviction motion was dismissed without prejudice. (Dkt. 8, Ex. 31.) Nelson then filed a second successive postconviction motion alleging newly discovered evidence. (Dkt. 8, Ex. 32.) The state court denied this motion, and the state appellate court per curiam affirmed. (Dkt. 8, Exs. 33, 35.)

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). Habeas reliefcan 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 unreasonable . . . an unreasonable application is different from an inc orrect 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).

The state appellate court affirmed Nelson's convictions and sentences and affirmed the denial of his postconviction motions without discussion. The court's decisions warrant deference under § 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. 2002). 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.").

DISCUSSION

Ground Two: Trial Court Error

Nelson claims that the trial court erred in denying his motion to suppress Paul Carey's out-of-court identification of him. He argues that Detective Danny Connell utilized an impermissibly suggestive identification procedure when he showed Carey a single photograph of Nelson, resulting in a federal due process violation.

At the hearing, Carey testified that he knew Nelson as "Reggie," and that the two men met when Carey was selling items at his house. (Dkt. 8, Ex. 3, p. 141.) Nelson spent two or three hours with Carey and decided to buy a boat and a truck. (Id., pp. 141-42.) He left to obtain payment and, upon returning, spent another 45 minutes to an hour with Carey. (Id., pp. 142-43.) Nelson left and came back a third time to retrieve the boat and truck and the two spent 20 to 25 minutes together. (Id., p. 144.)

Carey testified that he next saw Nelson when he was driving his RV and a car flashed its lights at him. (Id.) Carey testified that after he pulled over, Nelson entered the RV. (Id., p. 145.) He testified that he recognized Nelson due to their earlier meetings. (Id.) Carey testified that he and Nelson were "face to face" in the RV and had a conversation about the items that Nelson had purchased. (Id., pp. 148-49.) Carey testified that Nelson pulled out a firearm and that he was paying attention to Nelson at that time because "he was acting a little crazy and mean and stuff like that there, and then next thing you know he reached in and pulled out a .38." (Id.) Nelson's charges resulted from his actions in and near the RV.1

Detective Connell testified that he received a description of the perpetrator as a black male who stood 5'10" to 6' tall, weighed 220 to 230 pounds, was bald, and had brown eyes. (Id., p. 138.) The description contained no reference to the suspect having tattoos or gold teeth, and Carey did not notice such characteristics. (Id., pp. 138, 147.) After investigation, Detective Connell obtained a photograph of Petitioner Reginald Nelson, and showed it to Carey. (Id., p. 134.) Carey "immediately" identified him as the perpetrator. (Id.) Carey recalled Detective Connell showing him Nelson's photograph one or two days after the crimes. (Id., p. 149.) The trial court denied the motion to suppress after the hearing:

(Id., pp. 157-58.)

In determining whether an identification violates due process, a court undertakes a two-part analysis. "First, we must determine whether the original identification procedure was unduly suggestive. . . . If we conclude that the identification procedure was suggestive, we must then consider whether, under the totality of the circumstances, the identification was nonetheless reliable." Cikora v. Dugger, 840 F.2d 893, 895 (11th Cir. 1988). See Neil v. Biggers, 409 U.S. 188, 199 (1972) ("[T]he central question" is "whether under the `totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive.").

A single photograph procedure may be unduly suggestive. United States v. Cueto, 611 F.2d 1056, 1063-64 (5th Cir. 1980). But Nelson has not identified any clearly established federal law3 holding that this procedure is unduly suggestive when, as here, the victim has stated to police that the perpetrator is known to him. Cf. Manson v. Brathwaite, 432 U.S. 98, 111-12 (1977) (addressing concerns with eyewitness identifications and noting that "[u]sually the witness must testify about an encounter with a total stranger" and "[t]he witness' recollection of the stranger can be distorted easily by the circumstances or by later actions of the police."). Moreover, even assuming that the single photograph procedure was unduly suggestive, Nelson has not demonstrated that Carey's identification of him was so unreliable as to violate due process.

"For an identification to be unconstitutionally unreliable, there must be `a substantial risk of misidentification.'" United States v. Walls, 237 Fed. App'x 599, 601 (11th Cir. 2007) (quoting Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir. 1987)). Factors used in "evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Biggers, 409 U.S. at 199-200. "[R]eliability is the linchpin in determining the admissibility of identification testimony. . . . Against [the Biggers] factors is to be weighed the corrupting effect of the suggestive identification itself." Brathwaite, 432 U.S. at 114.

Applying the Biggers factors reveals no substantial risk of misidentification. Carey's testimony indicates that he had ample opportunity to view Nelson at the time of the crime. Nelson remained in the RV long enough to have a conversation with Carey, and the two were "face to face." Additionally, Carey testified that he was paying attention to Nelson because of the way he was acting. And while Nelson claims that Carey failed to note his gold teeth and tattoos, he did not contest the accuracy of the characteristics that Carey described to police.4 Carey also identified Nelson immediately when Detective Connell showed him Nelson's photograph. Furthermore, the length of time between the crime and the confrontation was only one or two days. Nelson has not demonstrated that this passage of time affected the reliability of Carey's identification. See, e.g., Nettles v. Wainwright, 677 F.2d 410, 414 (5th Cir. Unit B 1982) (identification made within two days of the crime was reliable). Nelson does not establish that any "corrupting effect" of the single photograph procedure rendered the identification unreliable when considered against these factors, and in light of Carey's familiarity with Nelson.

Under the totality of the circumstances, Carey's out-of-court identification of Nelson was not unconstitutionally unreliable. The state court's rejection of Nelson's motion to suppress the identification was not contrary to or an unreasonable application of clearly established federal law and was not based on an unreasonable determination of the facts. Nelson is not entitled to relief on Ground Two.

Ground One: Ineffective Assistance of Counsel

Standard For Ineffective Assistance Of Counsel Claims

A claim of ineffective assistance of counsel is analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and resulting prejudice. Id. at 687. To show deficient performance, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. 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 .

Nelson 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, Nelson 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.

Sustaining a claim of ineffective assistance of counsel on federal habeas review is difficult because review is "doubly" de ferential to counsel's performance and the state court's ruling. Richter, 562 U.S. at 105; Cullen v. Pinholster, 563 U.S. 170, 202 (2011). 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.").

Exhaustion Of State Court Remedies And Procedural Default; Application of Martinez v. Ryan

A federal habeas petitioner must exhaust his claims for relief by raising them in state court before presenting them in his petition. 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."). 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).

Two of Nelson's ineffective assistance claims are exhausted. But he raises seven claims of ineffective assistance of trial counsel that are unexhausted due to his failure to assert them in state court. This failure leads to a procedural default of the claims, because under Florida Rule of Criminal Procedure 3.850(b), Nelson cannot now present them to the state court in an untimely postconviction motion. See Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001) ("If 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."). The claims are bar red unless Nelson establishes the applicability of either the cause and prejudice or fundamental miscarriage of justice exception. See id.

Nelson also presents one claim of ineffective assistance of trial counsel that is procedurally defaulted because, although the federal claim was asserted in state court, it was resolved through application of an independent and adequate state procedural bar. Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999). Claims defaulted in this manner are also barred subject to the cause and prejudice or fundamental miscarriage of justice exception. See Harris v. Reed, 489 U.S. 255, 262 (1989) ("[A]n adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show" the applicability of either the cause and prejudice or fundamental miscarriage of justice exception).

Nelson does not allege that the fundamental miscarriage of justice exception applies. He does allege, however, that he has established applicability of the cause and prejudice exception pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). 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). Ineffective assistance of postconviction counsel generally does not constitute cause. See Coleman v. Thompson, 501 U.S. 722, 752-55 (1991). Martinez recognizes a narrow, equitable exception to this rule:

Martinez, 566 U.S. at 17. "To overcome the default, a prisoner must . . . demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." Id. at 14. Because none of Nelson's defaulted claims of ineffective assistance of trial counsel are substantial, he fails to show the applicability of the cause and prejudice exception under Martinez to overcome the procedural default.

Ground One(E)

Nelson asserts that trial counsel was ineffective for failing to present evidence showing that his appearance at the time of the offenses was inconsistent with Carey's description of him.

(1) Exhausted Claim

Carey testified at trial that Nelson was bald but that he did not notice whether Nelson had gold teeth or tattoos. (Dkt. 8, Ex. 5, p. 667.) Nelson claims that counsel was ineffective in not calling his brother, Bobby Dewayne Nelson, and another individual, Shantell Wallace,5 to testify that he had hair, gold teeth, and tattoos at the time of the crimes. Nelson further asserts that because counsel did not call these witnesses, the only way he could inform the jury of his appearance was to testify himself. He asserts that he was therefore subjected to cross-examination during which he was impeached with a prior inconsistent statement.

The state court denied Nelson's ineffective assistance claim after obtaining a response from the State:

(Dkt. 8, Ex. 21, pp. 156-57) (emphasis in original) (court's record citations omitted).

As the state court noted, Nelson testified at trial that his appearance at the time was inconsistent with Carey's description and displayed his gold teeth and tattoos. (Dkt. 8, Ex. 5, pp. 855-58.) While Nelson argues that Shantell Wallace and Bobby Dewayne Nelson would have corroborated his testimony, he has not presented any evidence that these witnesses would have testified as he suggests. See United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) ("[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit. A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim.") (footnotes omitted). He therefore cannot obtain relief on his claim. See Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001) ("Johnson offers only speculation that the missing witnesses would have been helpful. This kind of speculation is `insufficient to carry the burden of a habeas corpus petitioner.'") (quoting Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir. 1985)). Accordingly, that Nelson testified in order to bring information about his appearance before the jury cannot be attributed to ineffective assistance of counsel for failure to present the information through the other witnesses. Nelson is not entitled to relief because he has not shown that the state court unreasonably applied Strickland or unreasonably determined the facts in denying his claim.

(2) Procedurally Defaulted Claims

Nelson asserts that counsel should have (1) called Bobby Dewayne Nelson and Shantell Wallace to elicit their testimony that he had a beard at the time of the offenses; (2) called the officers who arrested him and introduced his booking photograph to show that he had hair, gold teeth, and tattoos when he was taken into custody; and (3) submitted "authenticated" photographs of him in "February 2002." (Dkt. 1, p. 14.)

Nelson did not present these specific allegations of ineffective assistance in his amended postconviction motion. (Dkt. 8, Ex. 18, pp. 607-15.) When a petitioner's federal habeas petition raises facts in support of a claim that were not before the state court, the petitioner has failed to fairly present the federal claim to the state court. See Weeks v. Jones, 26 F.3d 1030, 1044-46 (11th Cir. 1994) (rejecting the argument that "the general claim of ineffective assistance in state court preserves for federal review all alleged instances of ineffectiveness, regardless of whether evidence of a particular act was presented to the state court."); Anderson v. Harless, 459 U.S. 4, 6 (1982) ( "It is not enough that all the facts necessary to support the federal claim were before the state courts . . . or that a somewhat similar state-law claim was made."). Nelson's ineffective assistance claims are unexhausted and procedurally defaulted.

Moreover, these claims are not substantial. Nelson has not presented evidence showing what testimony Bobby Dewayne Nelson, Shantell Wallace, or the arresting officers would have given. His claims about these witnesses are therefore too speculative to demonstrate that counsel was ineffective. See Ashimi, 932 F.2d at 650; Johnson, 256 F.3d at 1187. Additionally, testimony that Nelson had a beard would not have helped to refute Carey's description because Carey's testimony did not address whether Nelson had any facial hair. (Dkt. 8, Ex. 5, pp. 667-70.)

Nelson's claims about photographic evidence are also speculative, as he has not provided his booking photograph or any "authenticated" photographs of himself in "February 2002." Furthermore, Nelson does not establish that his appearance on June 27, 2002, the date of his arrest, was the same as it was when the crimes occurred approximately four and a half months earlier on February 8, 2002. (Dkt. 8, Ex. 5, p. 876.) And he has not demonstrated that any photographs from "February 2002" would in fact show him the same way he appeared on February 8, 2002. Accordingly, Nelson has not demonstrated that his counsel was ineffective. 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).As none of Nelson's procedurally defaulted claims raised within Ground One(E) qualify as substantial claims for purposes of establishing cause under Martinez, he fails to overcome the procedural default.

Ground One(F)

Nelson argues that trial counsel was ineffective for failing "to adequately investigate Paul Carey's criminal history and impeach his testimony with his prior criminal convictions." (Dkt. 1, p. 15.)

(1) Exhausted Claim

In his amended postconviction motion, Nelson raised this claim with respect to Carey's criminal history in California. (Dkt. 8, Ex. 18, pp. 599-601.) After conducting an evidentiary hearing, the state court denied this claim:

(Dkt. 8, Ex. 25, pp. 190-91) (court's record citations omitted).

Counsel testified at the evidentiary hearing that he investigated Carey's criminal history. (Dkt. 8, Ex. 23, pp. 249-50.) Nelson fails to overcome, by clear and convincing evidence, the state court's factual determination that counsel's testimony was credible. See 28 U.S.C. § 2254(e)(1); Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998) ("We must accept the state court's credibility determination and thus credit [the attorney's] testimony over [the petitioner's]."); Devier v. Zant, 3 F.3d 1445, 1456 (11th Cir. 1993) ("Findings by the state court concerning historical facts and assessments of witness credibility are . . . entitled to the same presumption accorded findings of fact under 28 U.S.C. § 2254(d).").

Furthermore, the supplemental documentation Nelson provided to the state court, a "Criminal Background Check On Paul Carey" performed by AP Investigations, states that "[n]othing was found from 1987 to 1994 when [Carey] lived in California." (Dkt. 8, Ex. 24, p. 188.) Under these circumstances, Nelson has failed to establish that trial counsel rendered ineffective assistance. He does not show that the state court unreasonably applied Strickland or unreasonably determined the facts in denying his claim.

(2) Procedurally Defaulted Claim

Nelson also asserts that counsel was ineffective for failing to investigate Carey's Florida criminal history. It appears that Nelson raised this claim in his first successive motion for postconviction relief, arguing that this claim was supported by the newly discovered evidence presented in the AP Investigations document.6 The state court determined that Nelson's claim was "based on evidence considered by the Court" in denying Nelson's amended postconviction motion and was "arguably similar to a claim currently on appeal" of the denial of that motion. (Dkt. 8, Ex. 31, p. 3.) Because the postconviction appeal remained pending, the state court found that it lacked jurisdiction to consider Nelson's successive motion, and denied it. (Id.)

When the state court's rejection of a federal constitutional claim on procedural grounds is based on an "independent and adequate" state ground, federal review of the claim is foreclosed. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). A state court's procedural ruling constitutes an independent and adequate state rule of decision if (1) the last state court rendering a judgment in the case clearly and expressly states that it is relying on a state procedural rule to resolve the federal claim without reaching the merits of the claim, (2) the state court's decision rests solidly on state law grounds and is not intertwined with an interpretation of federal law, and (3) the state procedural rule is not applied in an "arbitrary or unprecedented fashion" or in a "manifestly unfair manner." Id. (citing Card v. Dugger, 911 F.2d 1494 (11th Cir. 1990)). "To qualify as an `adequate' procedural ground, a state rule must be `firmly established and regularly followed.'" Walker v. Martin, 562 U.S. 307, 316 (2011) (citation omitted).

In Florida, the rule that a lower court lacks jurisdiction over a claim pending on appeal is firmly established and regularly followed. See Tompkins v. State, 894 So.2d 857, 859 (Fla. 2005) ("[T]he circuit court did not have jurisdiction to consider Tompkins' motions while the appeal of the denial of his previous motions, which raised similar claims, was pending in [The Florida Supreme] Court.") (citing Daniels v. State, 712 So.2d 765, 765 (Fla. 1998) and State v. Meneses, 392 So.2d 905, 907 (Fla. 1981)). See also Jackman v. State, 88 So.3d 325, 327 (Fla. 4th DCA 2012) ("[A] trial court has authority to consider or to defer ruling and stay a subsequently filed postconviction motion that raises unrelated issues notwithstanding the pendency of an appeal of an order on a previously filed postconviction motion.") (emphasis added). Accordingly, Nelson's claim of ineffective assistance of trial counsel is procedurally defaulted. See Harris v. Reed, 489 U.S. at 262. Nelson has not shown a substantial claim of ineffective assistance of trial counsel sufficient to establish cause pursuant to Martinez.7

Preliminarily, in denying Nelson's newly discovered evidence claim, the state court found that Carey was only subject to impeachment for one misdemeanor conviction involving theft or dishonesty, a 1999 conviction for theft of electricity. (Dkt. 8, Ex. 33, p. 5.) And, Carey admitted on direct examination that he had one conviction for misdemeanor involving theft or dishonesty. (Dkt. 8, Ex. 5, pp. 661-62.) Although Nelson asserts that Carey actually had two prior convictions for misdemeanors involving dishonesty, he does not establish that Carey had any other particular conviction other than the 1999 conviction for theft of electricity that could have been used for impeachment. Therefore, Nelson does not establish that counsel was ineffective for failing to investigate Carey's Florida criminal history.

But even assuming that Carey had a second misdemeanor conviction that counsel could have uncovered and used to impeach him, Nelson has not shown prejudice. Carey testified at trial in jail clothing, admitted that he was housed in a Hillsborough County jail and had a pending case, and, as addressed, admitted to one conviction involving theft or dishonesty. (Id., pp. 609-10.) Under these circumstances, Nelson does not show a reasonable probability that learning of a second conviction would have caused the jury to discredit Carey's testimony such that the outcome of the trial would have been different.

Under these circumstances, Nelson has not established that counsel performed deficiently in failing to further investigate Carey's criminal history in Florida, or that there is a reasonable probability the outcome of trial would have been different had counsel done so. Therefore, Nelson has not presented a substantial claim of ineffective assistance of trial counsel to overcome the procedural default. Ground One(F) does not warrant relief.

Ground One(A)

The trial and conviction of a mentally incompetent defendant violates due process. Pate v. Robinson, 383 U.S. 375 (1966). The 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). Nelson asserts that his trial counsel was ineffective for failing to investigate his competency to stand trial and for failing to move the court for a competency hearing.8 He contends that if counsel had sought a competency evaluation, experts would have examined him and found him incompetent to proceed.

Nelson alleges that he displayed signs of mental illness and mental retardation; that he was disruptive in the courtroom and was incapable of communicating with counsel or making rational decisions; that he filed frivolous pro se motions while represented by counsel; that the trial court found he was not competent to act as his own attorney; and that the court dismissed its finding holding him in contempt "due to questions about [his] mental competence." (Dkt. 1, p. 6.) He also recites the language of Dusky and the criteria for competency to proceed set forth in Florida Rule of Criminal Procedure 3.211.9

Nelson has not demonstrated that his counsel was ineffective. Nelson's alleged disruptive courtroom behavior does not establish his incompetency. See Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995) ("[B]izarre, volatile, and irrational behavior" cannot "be equated with mental incompetence to stand trial."). Similarly, Nelson's allegation that he displayed signs of mental illness fails to demonstrate his incompetency. See id. ("[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)). Nor does Nelson establish that unspecified signs of his "mental[] retard[ation]", mere "questions" about his competency, his filing of unauthorized pro se motions, or his being found incompetent to act as his own attorney showed that he lacked a rational and factual understanding of the proceedings or the ability to consult with counsel with a reasonable degree of rational understanding. See Dusky, 362 U.S. at 402.

Furthermore, although Nelson alleges he was incapable of communicating with counsel, his postconviction evidentiary hearing testimony shows that he did confer with counsel about matters relevant to his case. He testified that he provided information to his attorney concerning Carey's prior criminal history, and discussed this matter with his counsel "over and over and over." (Dkt. 8, Ex. 23, pp. 263-64.) Likewise, the record shows that Nelson readily participated in court proceedings. At the start of trial, Nelson told the successor trial judge what he believed caused the mistrial and took part in a hearing when he complained to the court that his counsel was inadequate. (Dkt. 8, Ex. 4, pp. 356-57, 361-74.) During trial, he answered the court's questions concerning his decision to testify and gave testimony before the jury. (Dkt. 8, Ex. 5, pp. 819-21, 849-94.)

Under these circumstances, Nelson has not shown that his counsel performed deficiently in not investigating his competency or requesting that the court order a competency evaluation. See Strickland, 466 U.S. at 691 ("[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.").

Nor has Nelson shown prejudice as a result of counsel's performance. "In order to demonstrate prejudice from counsel's failure to investigate his competency, [a] petitioner 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)). As his allegations do not establish his incompetency, Nelson fails to show a reasonable probability that experts would have concluded, and the court would have found, that he was incompetent to proceed.

Accordingly, Nelson fails to show a reasonable probability that he would have been adjudicated incompetent to stand trial had he been evaluated. As he has not shown either deficient performance by counsel or resulting prejudice, he fails to demonstrate that his defaulted claim of ineffective assistance of trial counsel is a substantial claim. Consequently, he cannot overcome the default of Ground One(A).

Ground One(B)

Nelson claims that he rejected the State's 10-year plea offer based on counsel's erroneous advice "that he was looking at 15 years in prison if he were to reject the State's plea deal and were convicted at trial" based upon the sentencing guidelines scoresheet, when Nelson actually faced a life sentence upon conviction at trial. (Dkt. 1, p. 7.) This claim of ineffective assistance of trial counsel is unexhausted due to Nelson's failure to raise it in state court and is now procedurally defaulted.

A defendant is entitled to the effective assistance of counsel during plea negotiations. Lafler v. Cooper, 566 U.S. 156, 162 (2012) ("During plea negotiations defendants are `entitled to the effective assistance of competent counsel.'") (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). Preliminarily, Nelson offers no evidence to support his claim that the State made a 10-year offer. Even assuming, however, that the offer was made and counsel's misadvice caused him to reject it, Nelson has not established prejudice because he fails to show a reasonable probability that the trial court would have accepted the plea. See Missouri v. Frye, 566 U.S. 134, 147 (2012) (to demonstrate prejudice resulting from counsel's deficient advice to reject a plea, a petitioner must "demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had authority to exercise that discretion under state law.").10

In charging him with counts one through four, attempted first degree murder and aggravated assault, the State alleged that he discharged a firearm. (Dkt. 8, Ex. 1.) By entering a plea, Nelson would have admitted that he discharged a firearm. See Stovall v. State, 252 So.2d 376, 378 (Fla. 4th DCA 1971) ("A plea of guilty . . . if voluntarily and understandingly made, admits for the purposes of that particular case, [a]ll of the facts charged.").

Florida law therefore required the imposition of a 20-year sentence. See § 775.087(2)(a)2., Fla. Stat. (2000) (upon conviction for attempted murder or aggravated assault,11 when the offender discharges a firearm, the offender "shall be sentenced to a minimum term of imprisonment of 20 years."). Nelson has not cited any authority providing that this 20-year term may be waived by the State in plea negotiations or by the court at sentencing, and the statute states that it "shall" be imposed. Thus, a 10-year sentence would have been contrary to Florida law. But "[a] court cannot impose an illegal sentence pursuant to a plea bargain, nor may a defendant agree to an illegal sentence as part of that bargain." Blanchette v. State, 620 So.2d 258, 259 (Fla. 1st DCA 1993) (citing Williams v. State, 500 So.2d 501, 503 (Fla. 1986) and Danzy v. State, 603 So.2d 1320, 1322 (Fla. 1st DCA 1992)). Accordingly, Nelson has not shown a reasonable probability that the trial court would have accepted a 10-year plea agreement. He has not presented a substantial claim of ineffective assistance of trial counsel to overcome the default of Ground One(B).

Ground One(C)

Nelson alleges that the prosecutor in his case used peremptory strikes to exclude two black prospective jurors because of their race. He claims that trial counsel was ineffective for failing to preserve his objection to the strikes for appeal. Nelson appears to claim that the prosecution's use of peremptory strikes violated Batson v. Kentucky, 476 U.S. 79 (1986), in which the United States Supreme Court held that striking prospective jurors solely on account of their race violates the Equal Protection Clause. This claim is unexhausted due to Nelson's failure to raise it in state court, and is procedurally defaulted.

Counsel objected to the prosecution's peremptory strikes of prospective jurors 1 and 12. (Dkt. 8, Ex. 4, pp. 532, 535.) But counsel did not renew his objection prior to the jury's being sworn in. (Id., p. 551-Ex. 5, p. 565.) Therefore, the Batson challenge was not preserved. See Joiner v. State, 618 So.2d 174, 176 (Fla. 1993) ("We do not agree with Joiner . . . that he preserved the Neil12 issue for review. He affirmatively accepted the jury immediately prior to its being sworn without reservation of his earlier-made objection. . . . Had Joiner renewed his objection or accepted the jury subject to his earlier Neil objection, we would rule otherwise."). See also Carratelli v. State, 961 So.2d 312, 318-19 (Fla. 2007). Even if counsel therefore performed deficiently, however, Nelson fails to show a substantial claim of ineffective assistance of trial counsel because he has not demonstrated prejudice due to counsel's performance.

The prosecutor asked several prospective jurors, including Prospective Juror 1, about anticipated profanity in the evidence:

(Dkt. 8, Ex. 4, pp. 464-66.)

The State also questioned Prospective Juror 12:

(Dkt. 8, Ex. 4, pp. 407-12.)

Defense counsel objected when the prosecutor sought to use a peremptory strike against Prospective Juror 1:

(Dkt. 8, Ex. 4, pp. 531-32.)

The prosecutor also sought to strike Prospective Juror 12:

(Id., pp. 534-35.)

A review of a peremptory strike involves three steps:

Johnson v. California, 545 U.S. 162, 168 (2005).

Nelson does not argue about the first two steps of the Batson inquiry. He claims that the trial court's decision at the third step of the inquiry would have been reversed because the prosecutor's reasoning would have been found to be a pretext for intentional discrimination. In Davis v. Sec'y, Dep't of Corr., 341 F.3d 1310 (11th Cir. 2003), the Eleventh Circuit conducted a de novo review of a claim that trial counsel was ineffective for failing to preserve a Batson challenge for appeal. Id. at 1313. It determined that, "when a defendant raises the unusual claim that trial counsel, while efficacious in raising an issue, nonetheless failed to preserve it for appeal, the appropriate prejudice inquiry asks whether there is a reasonable likelihood of a more favorable outcome on appeal had the claim been preserved." Id. at 1316.

On direct appeal, "[t]he trial court's decision to uphold a peremptory strike is reviewed for an abuse of discretion." Truehill v. State, 211 So.3d 930, 942 (Fla. 2017) (citing Files v. State, 613 So.2d 1301, 1304 (Fla. 1992)). "In deciding whether the proffered race-neutral reason for the peremptory strike is a pretext, the Court should focus on the genuineness of the explanation, not the reasonableness." Id. at 943 (quoting Poole v. State, 151 So.3d 402, 410 (Fla. 2014)). In assessing genuineness, however, reasonableness is considered, along with relevant circumstances, including "a strike based on a reason equally applicable to an unchallenged juror." Id. (quoting Poole, 151 So.3d at 410).14 A trial court's finding that the prosecutor's reason was not a pretext for discrimination is given deference. See Batson, 476 U.S. at 98 n.21 ("Since the trial judge's findings . . . largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference."); Melbourne v. State, 679 So.2d 759, 764-65 (Fla. 1996) ("[T]he trial court's decision turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous.").

Nelson first argues that the trial court erred in not conducting "a genuineness analysis." (Dkt. 1, p. 11.) The trial court made a finding that the state's challenges were not pretextual in response to defense counsel's challenge to both strikes. (Dkt. 8, Ex. 4, p. 535.) However, Nelson does not cite any authority providing that the court must elaborate on its reasoning. To the contrary, a court may implicitly find a prosecutor's reasoning credible. Sneed v. Fla. Dep't of Corr., 496 Fed. App'x 20, 27 (11th Cir. 2012) (citing Hightower v. Terry, 459 F.3d 1067, 1072 n.9 (11th Cir. 2006)). Thus, Nelson fails to establish a meritorious appellate claim.

The State struck Prospective Juror 1 due to his hesitation about listening to evidence containing profanity. Nelson argues that this was a pretext for discrimination, as the prosecutor's reason also applied to Prospective Juror 17, a white male whom the prosecutor accepted.15 Specifically, Nelson asserts that Prospective Juror 17 gave a "virtually identical" answer when asked about profanity. (Dkt. 1, p. 12.) The record refutes this assertion. Prospective Juror 1's responses suggested that whether he might have a problem listening to the case depended on the degree of profanity in the evidence, and he stated that it if was "downright ugly and nasty," then no one "should be hearing" it. (Dkt. 8, Ex. 4, p. 466.) Prospective Juror 17 did not answer similarly to Prospective Juror 1. He simply confirmed that he did not like profanity but could listen to the case and make a decision. (Dkt. 8, Ex. 4, p. 465.) Thus, Nelson fails to show that the strike's applicability to the unchallenged juror was a basis for reversal on appeal.

Nelson also argues that the strike of Prospective Juror 12 for potential language difficulties was a pretext for discrimination because Prospective Juror 12 understood English. Nelson further alleges that a poor-quality tape would be hard for anyone to understand. As the prosecutor suggested, the tape was of considerable evidentiary value for the State. It captured a phone call between Nelson and Carey in which Nelson apologized to Carey and asked Carey not to put him in prison. (Dkt. 8, Ex. 5, pp. 650-61.) Prospective Juror 12 acknowledged that he did not know some English words. And Nelson does not deny that difficulties lis tening to poor-quality audio would be greater for Prospective Juror 12 than for someone without his acknowledged limitation. Accordingly, Nelson does not show that the prosecutor's concern about Prospective Juror 12's ability to comprehend the tape was unreasonable or was equally applicable to unchallenged jurors.

Accordingly, Nelson has not established a reasonable probability that an appellate court would have determined that the trial court abused its discretion in finding that the peremptory challenges were not a pretext for purposeful racial discrimination under the circumstances of his case, especially in light of the substantial deference that must be afforded to the trial court's finding.

Alternatively, the Florida Supreme Court has held that, in postconviction proceedings, to show prejudice from counsel's alleged failure to preserve a Batson challenge, a movant must show prejudice at the trial:

King v. State, 211 So.3d 866, 887 (Fla. 2017) (citing Carratelli, 961 So. 2d at 323-24).

Thus, to the extent prejudice at trial-which the Florida courts would have considered had Nelson's ineffective assistance of trial counsel claim been raised in the initial review collateral proceeding-is considered in the Martinez assessment, Nelson still fails to demonstrate prejudice. He has not demonstrated that a biased juror sat on the jury. See id. Accordingly, Nelson fails to show prejudice as a result of trial counsel's failure to preserve his Batson claim for appeal. Nelson has not demonstrated a substantial claim of ineffective assistance of trial counsel and therefore cannot overcome the procedural default of Ground One(C).

Ground One(D)

Nelson argues that trial counsel was ineffective for failing to investigate and call Virginia Vaughn as a witness to corroborate his defense of mistaken identity. This claim is unexhausted due to Nelson's failure to raise it in state court and is procedurally defaulted. Vaughn, who did not testify at trial, was listed as a victim in this case. (Dkt. 8, Ex. 1.) Nelson now claims that Vaughn would have "excluded him as the shooter." (Dkt.1, p. 13.) But Nelson has not offered any evidence that Virginia Vaughn would have given such exculpatory testimony. His argument is therefore too speculative to give rise to a substantial claim of ineffective assistance of trial counsel. See Ashimi, 932 F.2d at 650; Johnson, 256 F.3d at 1187. Accordingly, Nelson has not presented a substantial claim of ineffective assistance of trial counsel sufficient to overcome the default of Ground One(D).

Ground One(G)

Nelson claims that trial counsel was ineffective for failing to investigate and present mitigating evidence at his sentencing hearing. Nelson raised a similar claim in his initial postconviction motion but abandoned it. (Dkt. 8, Exs. 14, pp. 65-67; Ex. 18, p. 591.) He now raises different factual allegations that were not presented to the state court. Accordingly, this claim of ineffective assistance of trial counsel is unexhausted and procedurally defaulted. See Anderson, 459 U.S. at 6; Weeks, 26 F.3d at 1044-46.

Nelson contends that counsel failed to interview his family and friends, obtain his school, medical, and psychiatric records, or obtain a psychological evaluation. He claims that, had counsel done so, counsel would have been able to present significant mitigating evidence, including: evidence that he is "mentally retarded" and "emotionally handicap[ped]"; evidence that he has an "emotional disability" and a learning disability; evidence that he has organic brain damage and "intellectual deficits"; evidence of mental illness; testimony of family members that he has suffered physical, emotional, and sexual abuse and has witnessed abuse; testimony from his children that he is a good father; and testimony from his pastor and fellow church members that he is "fundamentally" a good person. (Dkt. 1, pp. 19-20.)

Nelson has not shown that his counsel was ineffective, or that there is a reasonable probability the trial court would have imposed a different sentence had counsel presented additional mitigation. Although he claimed at the sentencing hearing that family members would have testified on his behalf but were given the wrong court date, he has not presented any information showing what they would have said. This failure renders his claim speculative. See Ashimi, 932 F.2d at 650; Johnson, 256 F.3d at 1187. Furthermore, there is some evidence that Nelson did not actually want counsel to call witnesses. Specifically, upon conviction, Nelson told the court that he did not want his family to testify because he would prevail on appeal. (Dkt. 8, Ex. 5, pp. 1031-32.) In addition, Nelson has not presented any documentary evidence, despite his allegations that such records exist.

Finally, court explained the sentence imposed, stating that:

(Dkt. 8, Ex. 8, pp. 1087-88.)

Nelson has failed to establish any information that counsel was ineffective for failing to uncover or present. Nor has he demonstrated that counsel was ineffective for failing to call any witnesses. And, in light of the sentencing court's remarks, he has not shown a reasonable probability that such information or testimony about his background and character would have led the court to impose a lesser sentence. Accordingly, Nelson has not demonstrated a substantial claim of ineffective assistance of trial counsel pursuant to Martinez to overcome the procedural default of Ground One(G).

Ground One(H)

Finally, Nelson argues that the cumulative effect of counsel's alleged errors deprived him of a fair trial. This claim is unexhausted and procedurally defaulted. As Nelson has not demonstrated any errors by counsel, he fails to establish a cumulative error claim. See United States v. Barshov, 733 F.2d 842, 852 (11th Cir. 1984) ("Without harmful errors, there can be no cumulative effect compelling reversal."). Accordingly, assuming Nelson's cumulative error claim constitutes an ineffective assistance of trial counsel claim subject to a Martinez analysis, it is not substantial. Nelson does not overcome the procedural default of Ground One(H).

Any claims not specifically addressed in this Order have been determined to be without merit.

It is ORDERED that:

1. Nelson's petition (Dkt. 1) is DENIED. The Clerk is directed to enter judgment against Nelson and to close this case.

2. Nelson is not entitled to a certificate of appealability (COA). A petitioner does not have absolute entitlement to appeal a district court's denial ofhis habeas petition. 28 U.S.C. § 2253(c)(1). 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, Nelson "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)). Nelson has not made this showing. Finally, because Nelson is not entitled to a COA, he is not entitled to appeal in forma pauperis.

ORDERED.