REPORT AND RECOMMENDATION

CHARLES J. KAHN, JR., Magistrate Judge.

Before the court is an amended petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 5). Respondent filed an answer, providing relevant portions of the state court record. (Doc. 15). Petitioner replied. (Doc. 24). The matter is referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the court show that petitioner is not entitled to habeas relief, and that the petition should be denied.

BACKGROUND AND PROCEDURAL HISTORY

On January 12, 2013, Florida Highway Patrol Trooper Mark Baker was driving on Lake Bradford Road in Tallahassee, Florida, when he approached petitioner's vehicle from behind.1 Baker noticed that petitioner, the driver, was not wearing a safety belt. Baker activated his emergency lights. Petitioner first appeared to be pulling over, but instead abruptly turned left, crossing the lane of oncoming traffic and causing an oncoming vehicle, which had the right of way, to brake suddenly. After turning, petitioner accelerated very quickly down the road. Baker activated his siren and pursued petitioner's vehicle with siren and lights engaged. The chase reached speeds of 70 miles per hour in a residential area zoned for 35 miles per hour. At one point, petitioner slowed to 45 miles per hour and made a hard-right turn onto another street, then came to an intersection with a stop sign. Petitioner then made a sharp left turn at the intersection, running the stop sign at 35 miles per hour and then accelerating to 60 miles per hour. Baker pursued petitioner at 60 miles per hour until they reached the end of that street where it intersected with Mike Street. Petitioner drove through that intersection, pulled behind a house on Mike Street, jumped out of the vehicle while it was still moving, and started running through neighboring yards. Petitioner's vehicle crashed into a tree in the backyard of 1511 Mike Street. Baker pursued petitioner on foot through backyards, yelling, "Stop, this is the Police", but petitioner kept running. Petitioner encountered a fence and, as he jumped it, almost fell. Baker observed a dark object fall away from petitioner's person. After scaling the fence petitioner took off running, but eventually threw his hands up, laid down on the ground on his back, and extended his arms to his sides. Baker ordered petitioner to not move, applied handcuffs, and placed him under arrest. Petitioner gave Baker his social security number for identification, which Baker ran through dispatch. Baker learned petitioner's name and that he had a suspended Florida Driver's License and was a convicted felon. Baker placed petitioner in his patrol vehicle and waited for back up.

After back up arrived, Baker searched the vehicle and found two sandwich-sized Ziploc-style bags, full of cocaine, lying on the center console in front of the shifter. Baker then re-traced his steps along the path of the foot chase, and found one of petitioner's shoes in a backyard. Coming to the fence scaled by petitioner, Baker found a .40 caliber Glock pistol lying on the ground in the sand precisely in petitioner's path along with a purple Crown Royal bag containing a sandwich-sized Ziploc-style bag of cocaine and the same type bag of marijuana. The drugs were field tested and confirmed to be cocaine and marijuana. Searching petitioner's person, Baker found $1,000.00 in cash. Petitioner was Mirandized and transported to the jail. (Doc. 15, Ex. C (trial transcript)).2

Petitioner was charged in Leon County Circuit Court Case No. 2013-CF-140, with seven crimes: felony fleeing or attempting to elude a law enforcement officer in an agency vehicle with siren and lights activated at high speed or with wanton disregard for the safety of persons or property (Count 1); possession of a controlled substance — cocaine (Count 2); carrying a concealed firearm (Count 3); possession of a firearm by a convicted felon (Count 4); possession of cannabis (Count 5); resisting an officer without violence (Count 6); and driving while license suspended or revoked (Count 7). (Ex. A, p. 25). Petitioner retained counsel, John Edward Eagen. (Id., p. 45).

Before trial, the defense stipulated that the narcotics found in the car and in the Crown Royal bag were cocaine and marijuana, and that at the time of the incident petitioner's driver's license and license privileges were suspended and petitioner knew they were suspended. (Id., pp. 49, 50). The firearm charges — Counts 3 and 4 — were severed. (See Ex. B, pp. 3-4). After a jury trial in which Trooper Baker was the only witness, a jury found petitioner guilty of the remaining five crimes as charged. (Ex. A, pp. 62-64). Petitioner was adjudicated guilty of Counts 1, 2, 5, 6 and 7, and sentenced to a total term of 8 years in prison.3 (Ex. A, pp. 68-78 (judgment and sentence), pp. 91-104 (sentencing transcript)). On June 10, 2015, the Florida First District Court of Appeal (First DCA) affirmed the judgment per curiam without opinion. Bradwell v. State, 166 So.3d 768 (Fla. 1st DCA 2015) (Table) (copy at Ex. G).

On October 14, 2015, petitioner filed a pro se motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Ex. H, pp. 1-32). The state circuit court denied relief without an evidentiary hearing (id., pp. 33-106), and the First DCA affirmed per curiam without opinion. Bradwell v. State, 191 So.3d 463 (Fla. 1st DCA 2016) (Table) (copy at Ex. K). The mandate issued June 13, 2016. (Ex. K).

Petitioner filed his original federal habeas petition on June 24, 2016. (Doc. 1). Petitioner's amended petition raises four grounds for relief. (Doc. 5). Respondent asserts that to the extent any of petitioner's claims challenge the validity of the convictions on Counts 5, 6 and 7, the court is without jurisdiction to entertain them because those sentences completely expired prior to the date petitioner filed his original petition. Respondent asserts that to the extent petitioner's claims challenge the validity of his convictions on Counts 1 and 2, federal habeas relief must be denied. (Doc. 15).

JURISDICTION TO REVIEW CONVICTIONS ON COUNTS 5, 6 AND 7

A federal district court may entertain a habeas corpus petition only from a petitioner "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); see also 28 U.S.C. § 2254(a). The "in custody" requirement is jurisdictional. See Stacey v. Warden, Apalachee Corr. Inst., 854 F.2d 401, 403 (11th Cir. 1988). To satisfy the "in custody" requirement, "the habeas petitioner [must] be `in custody' under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-91 (1989); see also id., 490 U.S. at 491 ("We have never held . . . that a habeas petitioner may be `in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed."); id. at 492 ("While we have very liberally construed the `in custody' requirement for purposes of federal habeas, we have never extended it to the situation where a habeas petitioner suffers no present restraint from a conviction.").

Petitioner was sentenced on Counts 5, 6 and 7 to concurrent terms of 11 months and 29 days in the county jail with credit for 28 days. The sentences were imposed on July 15, 2013, and ran concurrent with the sentence imposed on Count 1. (Ex. A, p. 68). Petitioner filed his original petition in this case on June 24, 2016, which is two years after his sentences on Counts 5, 6 and 7 expired. Petitioner's reply does not address, much less dispute this fact. Although courts have traditionally interpreted the "in custody" requirement liberally to include situations where the sentence in question enhances or delays the commencement of another sentence, that circumstance does not exist here, because all of petitioner's sentences are concurrent. The sentences on Counts 5, 6 and 7 had no effect on the commencement of petitioner's other sentences. Petitioner does not allege, and nothing in the record suggests, that he is under any "present restraint" attributable to his convictions and sentences on Counts 5, 6 and 7. This court is thus without jurisdiction to consider any challenge to petitioner's convictions for possession of cannabis (Count 5), resisting a law enforcement officer without violence (Count 6), or driving while license suspended (Count 7). See Maleng, supra; see also e.g., Diaz v. State of Fla. Fourth Judicial Circuit ex rel. Duval Cnty., 683 F.3d 1261, 1264-65 (11th Cir. 2012) (holding that habeas petitioner in federal custody was not "in custody" under the state judgment he sought to collaterally attack, where he filed his habeas petition eight months after his state sentence had fully expired, he was not under any present restraint attributable to that state conviction, and any grant of relief would not serve to accelerate his release from his present federal confinement).

HABEAS REVIEW OF CONVICTIONS ON COUNTS 1 AND 2 (FELONY FLEEING OR ATTEMPTING TO ELUDE A LAW ENFORCEMENT OFFICER; POSSESSION OF COCAINE)

Section 2254 Standard of Review

Federal courts are precluded from granting a habeas petition on a claim that was adjudicated on the merits in state court unless the state court's decision (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court's factual determinations are presumed correct, unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362 (2000).4 Justice O'Connor described the appropriate test:

Id., 529 U.S. at 412-13 (O'Connor, J., concurring).

Under the Williams framework, the federal court must first ascertain the "clearly established Federal law," namely, "the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). The law is "clearly established" only when a Supreme Court holding at the time of the state court decision embodies the legal principle at issue. See Thaler v. Haynes, 559 U.S. 43, 47 (2010); Woods v. Donald, 575 U.S. ___, ___, 135 S.Ct. 1372, 1376 (2015) ("We have explained that clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions." (internal quotation marks and citation omitted)).

After identifying the governing legal principle(s), the federal court determines whether the state court adjudication is contrary to the clearly established Supreme Court case law. The adjudication is not contrary to Supreme Court precedent merely because it fails to cite to that precedent. Rather, the adjudication is "contrary" only if either the reasoning or the result contradicts the relevant Supreme Court cases. See Early v. Packer, 537 U.S. 3, 8 (2002) ("Avoiding th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases — indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them."). Where there is no Supreme Court precedent on point, the state court's conclusion cannot be contrary to clearly established federal law. See Woods, 135 S. Ct. at 1377 (holding, as to claim that counsel was per se ineffective in being absent from the courtroom for ten minutes during testimony concerning other defendants: "Because none of our cases confront the specific question presented by this case, the state court's decision could not be contrary to any holding from this Court." (internal quotation marks and citation omitted)). If the state court decision is contrary to clearly established federal law, the federal habeas court must independently consider the merits of the petitioner's claim. See Panetti v. Quarterman, 551 U.S. 930, 954 (2007).

If the "contrary to" clause is not satisfied, the federal habeas court next determines whether the state court "unreasonably applied" the governing legal principles set forth in the Supreme Court's cases. The federal court defers to the state court's reasoning unless the state court's application of the legal principle(s) was "objectively unreasonable" in light of the record before the state court. See Williams, 529 U.S. at 409; Holland v. Jackson, 542 U.S. 649, 652 (2004). The Supreme Court described the "unreasonable application" standard this way:

Woods, 135 S. Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86 (2011)). The § 2254(d) standard "is difficult to meet . . . because it was meant to be." Richter, 562 U.S. at 102.

Section 2254(d) also allows federal habeas relief for a claim adjudicated on the merits in state court where that adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). The "unreasonable determination of the facts" standard is implicated only to the extent the validity of the state court's ultimate conclusion is premised on unreasonable fact finding. See Gill v. Mecusker, 633 F.3d 1272, 1292 (11th Cir. 2011). As with the "unreasonable application" clause, the federal court applies an objective test. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (holding that a state court decision based on a factual determination "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding."). Federal courts "may not characterize . . . state-court factual determinations as unreasonable merely because we would have reached a different conclusion in the first instance." Brumfield v. Cain, 576 U.S. ___, ___, 135 S.Ct. 2269, 2277 (2015) (quotation marks omitted).

Only if the federal habeas court finds that the petitioner satisfied § 2254(d), does the court take the final step of conducting an independent review of the merits of the petitioner's claims. See Panetti, 551 U.S. at 954. Even then, the writ will not issue unless the petitioner shows that he is in custody "in violation of the Constitution or laws and treaties of the United States." 28 U.S.C. § 2254(a).

Petitioner's Claims

This claim involves Trooper Baker's testimony describing the cocaine he found at the scene, and the cash he found on petitioner's person. Petitioner argues that although he was charged with only possessing cocaine — not with selling it or possessing it with the intent to sell — Trooper Baker testified "to the effect that Petitioner possessed a large amount of cocaine and a large amount of cash, and that the amount of cocaine and the packaging indicated that it was not for personal use." (Doc. 5, p. 6). Petitioner contends that "the trial court abused its discretion and fundamentally erred when it allowed the State to introduce crime/other bad act evidence that was harmful, not relevant to the case, prejudicing Petitioner where the jury heard this irrelevant evidence and found Petitioner guilty and deprived him of a fair trial." (Id., pp. 5-6).

Respondent asserts a procedural default defense, arguing that petitioner's characterization of his claim as a violation of his Sixth and Fourteenth Amendment rights is new. When petitioner challenged the testimony at issue on direct appeal, his counseled initial brief did not, according to respondent, fairly present the matter as a violation of his federal constitutional rights; rather, he presented it as a state law issue. (Doc. 15, pp. 15-23). Respondent asserts that even if this court finds in petitioner's favor on the exhaustion issue (i.e., that he fairly presented the state court with the federal constitutional nature of his claim and that the state court denied relief on the merits as opposed to imposing a procedural bar), petitioner's claim still fails because he has not shown that the state court's rejection of the claim was contrary to, or an unreasonable application of, clearly established Federal law. (Id., pp. 23-26). Respondent is correct on both points.

A. Exhaustion and Procedural Default

Before bringing a § 2254 habeas action in federal court, a petitioner must exhaust all available state court remedies for challenging his conviction, 28 U.S.C. § 2254(b)(1), thereby giving the State the "`opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971) (citation omitted)). The petitioner "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." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard, 404 U.S. at 277-78. A claim that was not presented to the state court and can no longer be litigated under state procedural rules is considered procedurally defaulted, i.e., procedurally barred from federal review. See Boerckel, 526 U.S. at 839-40, 848; Hittson v. GDCP Warden, 759 F.3d 1210, 1260 n.56 (11th Cir. 2014) ("Where a return to state court would be futile — because the petitioner's claims would clearly be barred by state procedural rules — a federal court can `forego the needless judicial ping-pong' and treat unexhausted claims as procedurally defaulted." (quoting Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998))).

A petitioner seeking to overcome a procedural default must "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). "For cause to exist, an external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim." McCleskey v. Zant, 499 U.S. 467, 497 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). "To establish `prejudice,' a petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different." Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003).

The miscarriage of justice exception requires the petitioner to show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995). "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 624 (1998). The Schlup standard is very difficult to meet:

513 U.S. at 327. "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him." Id.

Petitioner's appellate counsel summarized the issue before the First DCA this way: "The improper admission of collateral crime/other bad act evidence suggesting that appellant, Nicholas Bradwell, had committed other uncharged crimes, was fundamental error. Such evidence is presumptively harmful, and it was actually harmful here, and fundamental error." (Doc. 15, Ex. D, p. 9). Petitioner argued in substance that admission of the challenged testimony rose to the level of fundamental error as gauged by Florida decisional law in analogous contexts. (Ex. D, pp. 12-18 (discussing Czubak v. State, 570 So.2d 925 (Fla. 1990); Keen v. State, 775 So.2d 263 (Fla. 2000); Ward v. State, 559 So.2d 450 (Fla. 1st DCA 1990); Everett v. State, 124 So.3d 938 (Fla. 1st DCA 2013); and Bozeman v. State, 698 So.2d 629 (Fla. 4th DCA 1997))). Petitioner confined his argument to state law and state standards, namely: Florida's fundamental error standard; Florida case law discussing Florida's standards for gauging the harmfulness of an error; Florida's guidelines for admitting collateral crime/bad act evidence; and Florida case law determining whether, in particular circumstances, the admission of improper collateral crime evidence constituted fundamental error. (Id.). The state cases petitioner cited did not address federal law. Petitioner concluded:

(Id., pp. 17-18).

Petitioner's only reference to any constitutional right came in his labeling of the issue on appeal, where he said: The introduction of inadmissible collateral crime/other bad act evidence was fundamental error; the evidence was harmful, not relevant and deprived Appellant of his constitutional right to a fair trial." (Ex. D, p. i). This single, general reference to a constitutional right is not enough to fairly present a federal constitutional claim under the Due Process Clause. The general reference to "constitutional right to a fair trial," unaccompanied by any identification or discussion of a federal constitutional standard, any reference to federal law, or any citation to a federal case does not meet the Eleventh Circuit standard of fair presentation. (Ex. D, pp. 10-18).

The Eleventh Circuit requires more than "needles in the haystack" to satisfy the exhaustion requirement. See McNair v. Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005) ("We therefore hold that the exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record." (internal quotation marks and citations omitted)); see also Landers v. Warden, Attorney Gen. of Ala., 776 F.3d 1288, 1296-97 (11th Cir. 2015) (holding that petitioner procedurally defaulted his claim that the state court's inadequate fact-finding procedures violated his Fourteenth Amendment due process rights; petitioner's claim in state court that he was denied a "fair" proceeding was not sufficient to apprise the state court of a federal claim about due process because the only support he presented for the argument was based on state law).

Petitioner's present claim that the admission of collateral crime evidence violated his rights under the Sixth and Fourteenth Amendments is unexhausted and procedurally defaulted. Petitioner makes none of the requisite showings to excuse the procedural default. Petitioner's reliance on Martinez v. Ryan, 566 U.S. 1 (2012) in his reply is misplaced, as that equitable rule does not apply in this context. See Lambrix v. Sec'y, Fla. Dep't of Corr., 756 F.3d 1246, 1249 (11th Cir. 2014) ("[T]he equitable rule in Martinez `applies only to the issue of cause to excuse the procedural default of an ineffective assistance of trial counsel claim that occurred in a state collateral proceeding'[.]" (quoting Chavez v. Sec'y, Fla. Dep't of Corr., 742 F.3d 940, 943 (11th Cir. 2014))). Petitioner's procedural default bars federal habeas review of Ground One.5 The undersigned notes that the requirement to fairly raise the federal claim does not merely serve to preserve the claim for federal habeas; it allows the state courts an opportunity to rule correctly on the federal issue.

B. Section 2254 Review of State Court's Decision

Even assuming to petitioner's benefit (without deciding) that he properly exhausted his federal constitutional challenge to the testimony at issue by presenting it in his direct appeal, he is not entitled to habeas relief. The First DCA's summary rejection of petitioner's claim warrants deference under 28 U.S.C. § 2254(d). See Harrington v. Richter, 562 U.S. 86, 100 (2011) ("This Court now holds and reconfirms that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been `adjudicated on the merits.'"). Because the First DCA's opinion offers no reasoned explanation and there is no lower court opinion to "look through" to, this court employs the test announced in Richter, supra. The Richter test provides that "[w]here a state court's decision is unaccompanied by an explanation," a petitioner's burden under section 2254(d) is to "show[] there was no reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98. "[A] habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the United States Supreme] Court." Id. at 102.

One theory that could have supported the First DCA's decision is that petitioner opened the door to the testimony he now challenges. Petitioner's defense strategy was to concede that the substance Baker found in the car and in the Crown Royal bag was cocaine, but to argue that the State's evidence failed to sufficiently connect petitioner to the cocaine. (Ex. C, pp. 20-21 (opening argument), pp. 40-57 (cross-examination of Trooper Baker), pp. 70-71 (motion for judgment of acquittal), pp. 103-04, 106-10 (closing argument)). The defense emphasized that no drugs were found on petitioner's person; that the car petitioner drove was not his; that the bags of cocaine recovered from the car and the Crown Royal bag were not tested for fingerprints; that the Crown Royal bag was not found in petitioner's actual possession; and that no drug paraphernalia or physical evidence of petitioner having used the drugs was found in the car or on his person. To that end, during cross-examination of Trooper Baker defense counsel asked Baker:

(Ex. C, pp. 47-48). Defense counsel continued:

(Ex. C, pp. 51-53). Defense counsel also asked if there were soda cans in the car, and Baker said no. (Id., p. 53).

On redirect examination, Baker testified that the registered owner of the car was not in the car at the time of the offenses, and that petitioner was the only one inside the car or who had control of the car at the relevant time. (Id., p. 58). Baker found a large amount of cocaine in the car, with a street value of approximately $4,000. (Id., p. 61). The prosecutor asked Baker if it was common for someone to have that amount of cocaine for personal use. (Id.). Defense counsel objected based on speculation, and the trial judge sustained the objection, telling the prosecutor he must lay a predicate for the officer's knowledge. (Id.). Baker then testified that he had drug interdiction courses through the academy and numerous drug cases on patrol. (Id., pp. 61-62). Baker testified that based on his experience, the amount of cocaine that was present in this case was not consistent with someone who had it for personal use. (Id., p. 62). The prosecutor asked Baker if he had any reason to think petitioner was smoking in the car. Defense counsel objected to the question, and the trial court sustained the objection before Baker answered. (Id., p. 62).

At a bench conference, the trial court announced that the jurors asked two questions. The first question was: "Did the trooper say he had a large amount of cash on him?" The trial court asked counsel if they had any objections to the question. The prosecutor and defense counsel each stated he had no objection to the question. Both attorneys agreed that Baker should be asked if he counted the money in order to know what "large" meant. The jury's second question was: "Was the cocaine in the console in open view or was the console closed?" The prosecutor and defense counsel each stated he had no objection to the question. (Id., p. 63).

In response to the first question, Baker testified that he believed petitioner had the money in his right front pocket and that it was over a thousand dollars. (Id., p. 64). In response to the second question, Baker stated that he did not actually find the cocaine in the console itself, but in a little area where people keep ashtrays or other things. The cocaine was in plain sight. (Id., p. 64).

During closing argument, defense counsel argued that even though petitioner was driving the car, the car was not his, so no one could assume the drugs were his. (Id., p. 103). Counsel argued that petitioner did not know there was cocaine in the car, and had he known, he would have taken it with him when he ran from Baker. (Id., p. 106). Defense counsel further argued that there was no proof the Crown Royal bag belonged to petitioner — there was nothing unique about a Crown Royal bag; the area of the foot chase was a high drug/high crime area; and the incident occurred at night which would have obscured Baker's vision. (Id., pp. 106-07). For his overarching and concluding point, counsel contended that the State's possession theory — positing that petitioner possessed the cocaine in the car and the Crown Royal bag — did not make sense because there was no evidence petitioner used cocaine, and the State did not charge him with possessing it with the intent to sell. (Id., pp. 108-09). Defense counsel argued:

(Id., pp. 109-10).

Viewing the totality of the circumstances — including the defense strategy, counsel's arguments, the testimony at trial, petitioner's opening the door to the line of questioning he now challenges, and the lack of defense objection to the testimony — the First DCA reasonably could have found no violation of petitioner's Sixth and Fourteenth Amendment rights. No decision of the Supreme Court suggests that admitting the testimony in this case was unconstitutional.

Petitioner claims trial counsel was ineffective for failing to impeach Trooper Baker's "perjured" testimony that he issued traffic citations to petitioner for speeding and aggravated fleeing or eluding. Petitioner argues that the actual citations show that Baker did not issue a citation for speeding and that it was Assistant State Attorney (ASA) Jason Maine who issued the citation for felony fleeing or eluding. (Doc. 5, pp. 7-8). Petitioner also faults counsel for failing to challenge the traffic citation for felony fleeing or eluding on the ground that Florida law required the arresting officer (Trooper Baker) to issue the citation, not the prosecutor. (Id., pp. 8-9).

The parties agree that petitioner presented this claim to the state courts as Ground One of his Rule 3.850 motion; that the state circuit court denied relief; and that the First DCA summarily affirmed without explanation. (Doc. 5, p. 10; Doc. 15, pp. 27-28). The First DCA's summary rejection of petitioner's claim warrants deference under 28 U.S.C. § 2254(d). Richter, 562 U.S. at 100. Under § 2254(d)(1) the question is whether the state court's decision is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).

A. Clearly Established Federal Law

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set out a two-pronged standard for ineffective assistance of counsel claims. The petitioner must show that (1) his counsel's performance was constitutionally deficient, and (2) the deficient performance prejudiced him. See Strickland, 466 U.S. at 687. "First, petitioner must show that `counsel's representation fell below an objective standard of reasonableness. Second, petitioner must show that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Darden v. Wainwright, 477 U.S. 168, 184 (1986) (quoting Strickland, 466 U.S. at 694).

"Judicial scrutiny of counsel's performance must be highly deferential," and courts should make every effort to "eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. Trial counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. The burden to overcome that presumption and to show that counsel's performance was deficient "rests squarely on the defendant." Burt v. Titlow, 571 U.S. 12, 22-23 (2013); Cullen v. Pinholster, 563 U.S. 170, 189 (2011) ("To overcome that presumption, a defendant must show that counsel failed to act reasonably considering all the circumstances." (quotation marks and alterations omitted)). "[T]he absence of evidence cannot overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Titlow, 571 U.S. at 23 (quotation marks and alterations omitted).

Strickland's prejudice prong requires a defendant to establish a "reasonable probability" of a different result. See Strickland, 466 U.S. at 694. A reasonable probability is one that sufficiently undermines confidence in the outcome. Id. "The likelihood of a different result must be substantial, not just conceivable." Richter, 562 U.S. at 112.

When a district court considers a habeas petition, the state court's findings of historical facts in the course of evaluating an ineffectiveness claim are subject to the presumption of correctness, while the performance and prejudice components are mixed questions of law and fact. See Strickland, 466 U.S. at 698. "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010). "Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Richter, 562 U.S. at 105. As the Court in Richter explained:

Id. (citations omitted).

B. Section 2254 Review of State Court's Decision

Where, as here, there has been one reasoned state judgment rejecting a federal claim followed by a later unexplained order upholding that judgment or rejecting the same claim, federal habeas courts employ a "look through" presumption. Wilson v. Sellers, No. 16-6855, ___ S. Ct. ___, 2018 WL 1800370 (Apr. 17, 2018). The Wilson Court described this presumption as follows:

Id. at *3. Applying Wilson's "look-through" presumption, the First DCA's rejection of petitioner's claim was neither contrary to, nor an unreasonable application of Strickland.

The state circuit court identified and applied the Strickland standard, (Ex. H, p. 33), and denied relief for these reasons:

(Id., p. 34) (italics in original). As the state court reasonably found, the trial transcript conclusively refutes petitioner's claim. Defense counsel asked Trooper Baker:

(Ex. C, pp. 54-55). Defense counsel then asked Baker to look through his book of traffic citations to refresh his memory on the citations he wrote. After reviewing his citations book, Trooper Baker corrected his prior testimony:

(Ex. C, pp. 55-56). Petitioner's argument ignores counsel's impeachment of Baker with the citation book. The trial transcript establishes that defense counsel effectively challenged Baker's testimony on the traffic citations.

Regarding whether Baker, rather than ASA Maine, was required by Florida law to issue the traffic citation for felony fleeing or eluding, the state court determined, as a matter of state law, that petitioner's proposed objection was baseless. When the state courts have already answered the question of how an issue would have been resolved under that state's law had defense counsel done what the petitioner argues he should have done, "federal habeas courts should not second-guess them on such matters" because "it is a fundamental principle that state courts are the final arbiters of state law." Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) (quotation marks omitted). Because this court will not "second guess" the Florida state courts' conclusion that the traffic citation for fleeing or eluding did not have to be prepared by Trooper Baker, petitioner cannot demonstrate counsel was deficient for failing to raise the issue. See id. A lawyer cannot be ineffective for failing to raise a meritless claim. See Freeman v. Attorney Gen, Fla., 536 F.3d 1225, 1233 (11th Cir. 2008).

The state court's rejection of petitioner's claim was not contrary to, and did not involve an unreasonable application of, the Strickland standard. Nor was the decision based on an unreasonable determination of the facts. Petitioner is not entitled to federal habeas relief on Ground Two.

Petitioner claims trial counsel was ineffective for failing to argue an adequate motion for judgment of acquittal (JOA) on the felony fleeing or attempting to elude charge. The trial transcript shows that trial counsel moved for JOA on that charge and argued that the State failed to elicit testimony from Trooper Baker that his siren was activated. (Ex. C, pp. 69-70). The trial court denied the motion. (Id., p. 71). Petitioner claims counsel should have argued certain additional bases for JOA: (1) the arresting officer never charged petitioner with, nor issued him a traffic citation for, aggravated fleeing or eluding, and the traffic citation and charging information filed by the prosecutor were not supported by an affidavit or testimony from the arresting officer; (2) the ASA's traffic citation for felony fleeing or eluding did not mark the box for "unlawful speed" or "careless" or "reckless" driving; and (3) the only evidence that petitioner was speeding or driving recklessly was Trooper Baker's uncorroborated testimony. (Doc. 5, pp. 11-13).

Respondent contends that with the exception of petitioner's proposed jurisdictional challenge to his prosecution based on defects in the charging information or citation, petitioner presented this claim to the state courts as Ground Two of his Rule 3.850 motion. (Doc. 15, pp. 36, 40). The parties agree that the state circuit court denied relief on the merits; and that the First DCA summarily affirmed without explanation. (Doc. 5, pp. 13-14; Doc. 15, p. 36).

A. Clearly Established Federal Law

The clearly established federal law governing claims of ineffective assistance of counsel is the Strickland standard set forth above.

B. Section 2254 Review of State Court's Decision

Applying Wilson's "look-through" presumption, the First DCA's rejection of petitioner's claim was neither contrary to, nor an unreasonable application of Strickland. The state circuit court identified and applied the Strickland standard, (Ex. H, p. 33), and denied relief for these reasons:

(Id., p. 34) (italics in original).

The state court reasonably determined that counsel's failure to focus on the speeding/reckless driving element of the charge (as petitioner proposes) was not ineffective, because Trooper Baker's testimony was sufficient, if believed by the jury, to prove that petitioner, during the course of fleeing Baker, drove at a high rate of speed or in a manner demonstrating a wanton disregard for the safety of persons or property. See I.R. v. State, 385 So.2d 686, 688 (Fla. 3d DCA 1980) ("The testimony of a single witness, even if uncorroborated . . . is sufficient to sustain a conviction."); McDuffie v. State, 970 So.2d 312, 332 (Fla. 2007) ("Where the State has presented competent, substantial evidence of the crimes charged, the trial court does not err in denying a motion for judgment of acquittal and submitting the case to the jury.").

To the extent petitioner faults counsel's JOA argument because counsel failed to challenge the prosecution itself based on petitioner's perceived defects in the charging information or citation, such claim fails even on de novo review. "The purpose of a motion for judgment of acquittal is to challenge the legal sufficiency of the evidence, and where the state has brought forth competent evidence to support its claim that each element of the crime has been performed, a judgment of acquittal will not lie." Cunningham v. State, 385 So.2d 721, 722 (Fla. 3d DCA 1980). The alleged defects in the traffic citation or information are irrelevant to the question of whether the evidence adduced at petitioner's criminal trial was such that "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).6 Petitioner is not entitled to federal habeas relief on any aspect of Ground Three.

Petitioner last claims that "trial counsel erred when he failed to file a Motion to Dismiss or Motion for Mistrial based on the perjured testimony of Trooper Baker and not being able to confront his accuser at trial." (Doc. 5, p. 14). The basis for petitioner's claim is that because ASA Jason Maine prepared the traffic citation for felony fleeing or attempting to elude, Maine "became the material witness and the subsequent prosecution at the very least was an abuse of prosecutorial power and conduct." (Id., p. 15). Petitioner asserts that "had defense counsel alerted the court to the fact that the prosecuting attorney had written the Aggravated Fleeing and Eluding citation, then he should have moved for a mistrial and requested a different prosecutor so that the Petitioner would have been able to confront his accuser as prescribed by law." (Id.).

The parties agree that petitioner presented this claim to the state courts as Ground Three of his Rule 3.850 motion; that the state circuit court denied relief; and that the First DCA summarily affirmed without explanation. (Doc. 5, pp. 16-17; Doc. 15, pp. 42-43).

A. Clearly Established Federal Law

The clearly established federal law governing ineffective assistance of counsel claims is the Strickland standard set forth above.

B. Section 2254 Review of State Court's Decision

Applying Wilson's "look-through" presumption, the First DCA's rejection of petitioner's claim was neither contrary to, nor an unreasonable application of Strickland. The state court utilized the Strickland standard, (Ex. H, p. 33), and denied relief as follows:

(Id., p. 35) (italics in original).

This claim can only be characterized as frivolous. No legal authority, in Florida Statutes Section 316.650, or anywhere else, supports petitioner's assertion that the prosecutor's preparation of the traffic citation transformed him into a material witness to the crime thereby requiring his withdrawal from the case. Second, and completely obvious, no right to confront ASA Maine was triggered, because no statement from Maine was introduced at petitioner's trial. See Crawford v. Washington, 541 U.S. 36 (2004) (discussing the scope of the Confrontation Clause). Moreover, and equally obvious, the record establishes that defense counsel had the opportunity to, and did, cross-examine the one witness whose statements were admitted against petitioner at trial — Trooper Baker.

"[I]t is axiomatic that the failure to raise nonmeritorious issues does not constitute ineffective assistance." Bolender v. Singletary, 16 F.3d 1547, 1473 (11th Cir. 1994). The state court's rejection of petitioner's claim was not contrary to, and did not involve an unreasonable application of, the Strickland standard. Petitioner is not entitled to federal habeas relief on Ground Four.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides: "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." If a certificate is issued, "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. See 28 U.S.C. § 2254 Rule 11(b).

"[Section] 2253(c) permits the issuance of a COA only where a petitioner has made a `substantial showing of the denial of a constitutional right.'" Miller-El, 537 U.S. at 336 (quoting 28 U.S.C. § 2253(c)). "At the COA stage, the only question is whether the applicant has shown that `jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.'" Buck v. Davis, 580 U.S. —, 137 S.Ct. 759, 774 (2017) (quoting Miller-El, 537 U.S. at 327). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, (2000) (emphasis added). The petitioner here cannot make the requisite showing. Accordingly, the court should deny a certificate of appealability in its final order.

The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to this recommendation by either party, that party may bring such argument to the attention of the district judge in the objections permitted to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. That the amended petition for writ of habeas corpus (doc. 5), challenging the judgment of conviction and sentence in State of Florida v. Nicholous Bradwell, Leon County Circuit Court Case No. 2013-CF-140, be DENIED.

2. That the clerk be directed to close the file.

3. That a certificate of appealability be DENIED.