REED v. SECRETARY, DEPARTMENT OF CORRECTIONS, STATE OF FLORIDA

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
SHAUN REED,
Petitioner,
vs. 	Case No.: 3:25cv301/LAC/ZCB
SECRETARY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________________/
REPORT AND RECOMMENDATION
This is a habeas corpus case filed under 28 U.S.C. § 2254. (Doc. 7).
Respondent has answered the petition, and Petitioner has replied. (Docs.
12, 16). For the reasons below, Petitioner is not entitled to habeas relief.1
I. 	Factual Background
Petitioner and Stephanie Jackson dated for two years, but Ms.
Jackson ended their relationship in late June 2013. 	(Doc. 12-3 at 137-
38). 	After the breakup, Ms. Jackson repeatedly told Petitioner not to
contact her. 	Nonetheless, Petitioner continued to do so “every day, all
1 This matter may be resolved without an evidentiary hearing. Rule 8(a),
Rules Governing Section 2254 Cases.
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day.” (Id. at 138, 146-47). Within two weeks of the breakup, Ms. Jackson
had started to rekindle a relationship with an old flame, Dwight Murphy.
(Id. at 139-40, 147-48). 	Mr. Murphy was at Ms. Jackson’s home one
night, and Petitioner slashed the tires on Mr. Murphy’s car as it sat
outside Ms. Jackson’s home. (Id. at 147-48).
On a later date, July 9, 2013, Petitioner had his cousin drive
Petitioner through Ms. Jackson’s neighborhood. 	(Id. at 19-20). 	While
driving through, Petitioner saw Ms. Jackson’s son, Tramar Jackson,
walking on the street with his girlfriend, Alice Hathaway. 	(Id. at 20).
Mr. Murphy was also walking with Mr. Jackson and Ms. Hathaway. (Id.
at 21). As Petitioner watched, Ms. Hathaway and Mr. Murphy went into
Ms. Jackson’s house, while Tramar talked to some friends outside. 	(Id.
at 40).
Upon seeing Mr. Murphy, Petitioner asked his cousin if the guy (i.e.,
Mr. Murphy) was the same guy that Petitioner had previously seen on
Facebook and suspected of being involved with Ms. Jackson. (Id. at 21).
The cousin confirmed it was the same guy. 	Petitioner then jumped out
of his cousin’s car while it was still moving. (Id. at 22, 33). 	After jumping
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out of the moving car, Petitioner went to Ms. Jackson’s home. (Id. at 33).
He then entered the home without permission. (Id. at 153).
Once inside the home, Petitioner headed to Ms. Jackson’s bedroom.
(Id. at 139-40). 	There he found Mr. Murphy kneeling beside the bed
talking to Ms. Jackson, who was sick with a migraine headache. 	(Id. at
139-40. 179). As Mr. Murphy stood to retrieve a glass of water, Petitioner
attacked Mr. Murphy with a knife. (Id. at 179-81).
Petitioner then turned his attention to Ms. Jackson and began
stabbing her with the knife. 	(Id. at 140-43). 	While Petitioner was
stabbing Ms. Jackson, her son Tramar entered the home. 	(Id. at 51).
Upon seeing what was happening, Tramar hit Petitioner in the head and
“told him to get off my mom.” 	(Id.). 	Petitioner then fled the home. 	(Id.
at 52).
A short time later, paramedics and police officers arrived at the
home. They found Ms. Jackson lying in a pool of blood, and they saw Mr.
Murphy bleeding from stab wounds. 	(Id. at 66, 101-05). 	Medical
helicopters 	transported 	both 	Ms. 	Jackson 	and 	Mr. 	Murphy 	to 	the
hospital. (Id. at 103).
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At the hospital, it was determined that Ms. Jackson had nine stab
wounds. (Id. at 123). As a result of the stab wounds, Ms. Jackson’s spinal
cord was partially severed. 	(Id. at 160-63). 	Because of that injury, Ms.
Jackson had partial paralysis in her leg and required the assistance of a
cane to walk. 	(Id. at 162). 	The injuries caused by Mr. Murphy’s stab
wounds were serious, but not life-threatening. (Id. at 124-26, 129-30).
Petitioner was subsequently charged in state court with two counts
of attempted second degree murder and one count of burglary of an
occupied 	dwelling 	with 	assault 	or 	battery. 	(Doc. 	12-2). 	The 	case
proceeded to a jury trial. 	The jury found Petitioner guilty of attempted
second 	degree 	murder 	of 	Stephanie 	Jackson, 	aggravated 	battery 	of
Dwight Murphy (a lesser included offense of attempted second degree
murder), and burglary of an occupied dwelling with assault or battery.
(Doc. 12-3 at 290-92). 	The trial court sentenced Petitioner to forty-five
years’ imprisonment. (Doc. 12-4).
II. 	Procedural History
Petitioner appealed to Florida’s First District Court of Appeal
(“First DCA”). (Doc. 12-6). That court affirmed. (Doc. 12-9). Petitioner
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sought review in the Florida Supreme Court, but it declined jurisdiction.
(Docs. 12-11, 12-13).
Next, Petitioner filed a motion for postconviction relief in the state
trial court under Florida Rule of Criminal Procedure 3.850. (Docs. 12-14,
12-15, 12-16). The state trial court denied the Rule 3.850 motion, and the
First DCA affirmed. (Docs. 12-20, 12-25).
Petitioner then moved his postconviction efforts to federal court by
filing the current habeas corpus petition under 28 U.S.C. § 2254. 	(Doc.
1). 	His petition argues ineffective assistance of trial counsel. 	(Doc. 7).
Respondent has answered the petition. (Doc. 12).
III. 	Discussion
A. 	Ground One: 	“Defense counsel rendered ineffective
assistance of counsel by failing to present a ‘heat of
passion’ defense at trial.”
In Ground One, Petitioner alleges trial counsel was ineffective for
not presenting a heat of passion defense. Petitioner alleges that there is
a reasonable probability the jury would have found him guilty of the
lesser included offense of attempted manslaughter for stabbing Ms.
Jackson 	(instead 	of 	attempted 	second 	degree 	murder) 	had 	counsel
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pursued a heat of passion defense. 	(Id. at 18-21). 	Petitioner presented
this ineffective assistance claim in his state court Rule 3.850 motion.
(Doc. 12-16 at 6-9). 	The state postconviction court held an evidentiary
hearing.
1. 	Evidentiary hearing
Petitioner testified during the evidentiary hearing on his Rule
3.850 motion. 	According to Petitioner’s testimony, he and Ms. Jackson
were actually back together in a dating relationship when he stabbed her.
(Id. at 15). He further testified that days before the stabbing he and Ms.
Jackson went to a movie together, he stayed overnight at her house, and
the two of them had sex. (Id. at 15-22). And he testified that he provided
that 	information 	to 	his 	trial 	attorney, 	Floyd 	Griffith. 	(Id. 	at 	44).
Additionally, Petitioner testified that Attorney Griffith told him there
was no such thing as a heat of passion defense. (Id. at 51).
Attorney Griffith also testified at the evidentiary hearing. (Doc. 12-
19). 	Attorney 	Griffith 	explained 	that 	he 	had 	been 	an 	attorney 	for
approximately forty years and had handled hundreds of criminal trials.
(Id. at 76-77). 	Prior to the trial in this case, Attorney Griffith had
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Petitioner evaluated by a mental health expert, Dr. Prichard. (Id. at 80-
81). 	Based on Dr. Prichard’s evaluation, Attorney Griffith determined
that he had no viable insanity defense.2 	(Id. at 81).
Attorney Griffith denied ever telling Petitioner that there was no
such thing as a heat of passion defense. 	(Id. at 82). 	Indeed, Attorney
Griffith testified that he had considered raising a heat of passion defense.
(Id. at 82). 	But Attorney Griffith ultimately concluded that such a
defense was unlikely to succeed based on the facts and circumstances of
this case. 	(Id. at 	82-83). 	More specifically, Attorney Griffith had
concluded 	that 	there 	was 	“no 	sudden 	provocation” 	that 	triggered
Petitioner’s conduct. (Id. at 83).3 	In explaining his conclusion, Attorney
Griffith relied on the fact that Petitioner and Ms. Jackson were no longer
2 According to Dr. Prichard’s report (which was entered into evidence at
the hearing), Petitioner’s “account of the events that led up to his current
charges does not support that his functioning was impaired by a mental
health disorder.” 	(Doc. 19-1 at 6; Doc. 12-19 at 55-56). 	Dr. Prichard
further concluded that “the facts of the case do not and the information
reported by [Petitioner] does not rise to the level of legal insanity. 	As
such ultimate responsibility should remain with [Petitioner].” (Id.).
3 	Before 	reaching 	that 	conclusion, 	Attorney 	Griffith 	had 	conducted
multiple depositions during the discovery phase of this case. (Doc. 12-19
at 78).
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in a relationship, that Petitioner had previously slashed Mr. Murphy’s
tires in an attempt to scare him away from Ms. Jackson, and that
Petitioner did not catch Ms. Jackson and Mr. Murphy engaged in any
type of sexual activity. (Id.).
Contrary to Petitioner’s testimony, Attorney Griffith stated that he
did not recall Petitioner ever saying that he and Ms. Jackson had
reconciled and were back together at the time of the stabbing. (Id. at 82).
And Attorney Griffith testified that based on the evidence he did not
believe there was an adequate basis to request a heat of passion jury
instruction. 	(Id. at 84). Attorney Griffith stated, however, that looking
at the matter with the benefit of hindsight perhaps “he could have asked
for” a heat of passion instruction. (Id. at 83).
In addition to Petitioner and Attorney Griffith, Dr. Heather Holmes
testified at the evidentiary hearing. 	Dr. Holmes, a psychologist, was
retained by Petitioner. 	Dr. Holmes testified that in her opinion at the
time of the stabbing Petitioner was in an emotionally charged situation
and acted in a heat of passion. 	(Doc. 12-19 at 63-65). 	On cross-
examination, Dr. Holmes admitted that she had conducted no diagnostic
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testing of Petitioner and based her opinion on information shared by
Petitioner as well as her review of the trial transcript. (Id. at 69-70).
2. Denial of Petitioner’s Rule 3.850 motion
After the evidentiary hearing, the state postconviction court issued
a written opinion denying Petitioner’s Rule 3.850 motion. 	The state
postconviction 	court 	noted 	that 	there 	were 	conflicts 	between 	the
testimony of Petitioner and the testimony of Attorney Griffith. (Doc. 12-
20 at 10). 	And the state postconviction court resolved those conflicts in
favor of Attorney Griffith. In doing so, the state postconviction court
found that based on the “demeanor and credibility” of the witnesses,
Petitioner’s testimony was “unreliable and subject to credibility issues”
and Attorney Griffith’s testimony was “more credible and reliable.” (Id.).
The 	state 	postconviction 	court 	further 	determined 	that 	Dr.
Holmes’s testimony was insufficient to establish that Attorney Griffith
provided 	ineffective 	assistance 	of 	counsel. 	(Id. 	at 	11). 	The 	state
postconviction court pointed out that Attorney Griffith had Petitioner
evaluated prior to trial by Dr. Prichard, and the fact that Petitioner was
able to “find postconviction mental health experts that reach different
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and more favorable conclusions than the mental health expert consulted
by trial counsel,” does not render trial counsel ineffective. (Id.).
Based 	on 	Attorney 	Griffith’s 	credible 	testimony, 	the 	state
postconviction court concluded that Petitioner had not satisfied the
deficient performance prong of Strickland v. Washington, 466 U.S. 668
(1984). 	(Id. at 	9-11). 	According to the state postconviction court,
Attorney Griffith reasonably concluded that he was unlikely to prevail on
a heat of passion defense. 	(Id. at 9-11). 	And the state postconviction
court explained that an attorney does not perform deficiently by failing
to pursue a meritless defense. 	(Id. at 11). Aside from finding that
Petitioner had not shown deficient performance, the state postconviction
court found that Petitioner had not met Strickland’s prejudice prong.
(Id.). 	That 	was 	so 	because 	“there 	was 	overwhelming 	evidence” 	of
Petitioner’s guilt and pursuing a heat of passion defense “would not have
changed the outcome of the proceeding.” (Id.).
Petitioner appealed to the First DCA, which summarily affirmed.
(Doc. 12-25). 	Petitioner’s brief to the First DCA (Doc. 12-22) raised the
same grounds as the § 2254 petition filed with this Court.
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3. 	Analysis of Petitioner’s claim
It is undisputed that Petitioner’s claim was denied by the state
court on the merits. This Court, therefore, may only grant habeas relief
if 	the 	state 	court’s 	decision4 	(1) 	“was 	contrary 	to, 	or 	involved 	an
unreasonable 	application 	of, 	clearly 	established 	Federal 	law, 	as
determined by the Supreme Court of the United States;” 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)(1)-(2). This
is a “highly deferential standard,” which “demands that state-court
decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S.
170, 181 (2011). 	When considering a state prisoner’s habeas petition
under § 2254(d), a federal court is not sitting as an appellate court with
the mandate of correcting errors that may have occurred in the state
court. Shinn v. Ramirez, 596 U.S. 366, 377 (2022).
4 Because the First DCA affirmed the denial of Petitioner’s Rule 3.850
motion 	without 	explanation, 	this 	Court 	must 	“look 	through” 	the
unexplained decision to the state postconviction court’s rationale for
denying the motion. 	Wilson v. Sellers, 584 U.S. 122, 125 (2018).
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To 	be 	“contrary 	to” 	clearly 	established 	federal 	law 	under
§ 2254(d)(1), “the state court must either (1) apply a rule that contradicts
the governing law set forth by Supreme Court case law, or (2) reach a
different result from the Supreme Court when faced with materially
indistinguishable facts.” 	Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir.
2010) (cleaned up). And to meet the unreasonable application standard,
“a prisoner must show far more than that the state court’s decision was
merely wrong or even clear error.” Shinn v. Kayer, 592 U. S. 111, 118
(2020) (cleaned up). 	Rather, the state court’s application of federal law
must be “so obviously wrong that its error lies beyond any possibility for
fairminded disagreement.” 	Id. (cleaned up). This standard reflects that
the writ of habeas corpus is an “extraordinary remedy that guards only
against extreme malfunctions in the state criminal justice systems.”
Ramirez, 596 U.S. at 377 (cleaned up).
Here, Petitioner alleges that the state court unreasonably applied
Strickland in rejecting his ineffective assistance of counsel claim.5 To
5 The petition states in passing that the “state court’s rulings were based
on unreasonable determination of the facts . . . .” 	(Doc. 7 at 21). 	To the
extent that this passing reference could be construed as an argument
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prevail on a Strickland claim, a petitioner must show that (1) counsel’s
performance was constitutionally deficient, and (2) prejudice resulted.
Strickland, 466 U.S. at 687. 	The deficiency prong focuses on “whether
counsel’s assistance was reasonable considering all the circumstances.”
Id. 	at 	688. 	Trial 	counsel 	is 	“strongly 	presumed 	to 	have 	rendered
adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” 	Id. at 690.
that habeas relief is warranted under § 2254(d)(2) because the state court
decision was based on an unreasonable determination of the facts, such
an argument lacks merit. 	A state court’s factual determinations “are
entitled to a presumption of correctness unless the petitioner rebuts that
presumption by clear and convincing evidence.” 	Pye v. Warden, 50 F.4th
1025, 1034 (11th Cir. 2022). 	Here, Petitioner has not rebutted that
presumption 	of 	correctness. 	Indeed, 	the 	state 	court’s 	factual
determinations are supported by the record. 	Similarly lacking in merit
and not warranting much discussion is any argument that Petitioner is
entitled to habeas relief under § 2254(d)(1) because the state court’s
decision 	was 	“contrary 	to” 	Strickland. 	To 	be 	“contrary 	to” 	clearly
established federal law under § 2254(d)(1), “the state court must either
(1) apply a rule that contradicts the governing law set forth by Supreme
Court case law, or (2) reach a different result from the Supreme Court
when faced with materially indistinguishable facts.” 	Ward, 592 F.3d at
1155 (cleaned up). 	Here, the state court applied the correct legal rule
(i.e., the Strickland standard). 	And there is no argument that the state
court reached a different result than a Supreme Court decision involving
indistinguishable facts. 	Thus, Petitioner is not entitled to habeas relief
under the “contrary to” prong of § 2254(d)(1).
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Both the Strickland standard and the standard for relief under
§ 2254 are “highly deferential.” 	Harrington v. Richter, 562 U.S. 86, 105
(2011). 	And when—in a case like the current one—“the two apply in
tandem, review is doubly” deferential. 	Id. (cleaned up). 	The Supreme
Court has warned that “habeas courts must guard against the danger of
equating unreasonableness under Strickland[ʼs]” deficient performance
prong with “unreasonableness under § 2254(d).” 	Id. 	Thus, “[w]hen
§ 2254(d) applies, the question is not whether counsel’s actions were
reasonable. 	The question is whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.” 	Id. 	In the
current case, there 	is such 	a reasonable 	argument for the reasons
explained below.
At the outset of the discussion, it is necessary to recognize that
“[d]etermining the credibility of witnesses is the province and function of
the state postconviction courts.” Broadnax v. Comm’r, Ala. Dep’t of Corr.,
996 F.3d 1215, 1226 (11th Cir. 2021) (cleaned up). Thus, this Court must
defer to the state postconviction court’s credibility determinations unless
they are clearly erroneous. Id. Here, the state postconviction court found
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after 	conducting 	an 	evidentiary 	hearing 	that 	Attorney 	Griffith’s
testimony 	was 	credible 	while 	Petitioner’s 	testimony 	was 	not. 	That
credibility determination was not clearly erroneous. In fact, it was fully
supported by the record in this case. 	This Court, therefore, will defer to
the state court’s acceptance of Attorney Griffith’s testimony that he never
told Petitioner there was no such thing as a heat of passion defense.
Moreover, the Court will defer to the state court’s rejection of Petitioner’s
testimony that he and Ms. Jackson were back together at the time of the
stabbing and that Petitioner had told Attorney Griffith as much.
What the record reflects in this case is that Attorney Griffith
considered the heat of passion defense and decided against it. 	More
specifically, Attorney Griffith stated that he did not believe the evidence
would support a finding that Petitioner acted as the result of adequate
provocation. 	Indeed, the evidence introduced at trial established that
Ms. Jackson was lying in bed sick, and Mr. Murphy was sitting beside
her bed when Petitioner launched his attack. 	Ms. Jackson and Mr.
Murphy were not engaged in some type of sexually intimate act. 	Nor
were Petitioner and Ms. Jackson in a relationship at the time. Moreover,
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the evidence showed that Petitioner had engaged in a pattern of jealous
behavior in the days leading up to the stabbing. For example, Petitioner
previously slashed Mr. Murphy’s tires when he saw his vehicle at Ms.
Jackson’s house. 	And Petitioner was texting and calling Ms. Jackson
“[e]very day, all day,” after she broke up with Petitioner. 	Thus, it was
not unreasonable for Attorney Griffith to view the facts as showing
Petitioner was more of a scorned and bitter ex-boyfriend who engaged in
stalking-type behavior than he was a romantic partner who acted after
being suddenly confronted with “adequate provocation as might obscure
the reason or dominate the volition of an ordinarily reasonable man.”
Taylor v. State, 316 So.3d 420, 427 (Fla. 1st DCA 2021).
At bottom, Attorney Griffith’s decision to not pursue a heat of
passion defense was a strategic decision. 	And “[s]trategic choices made
after a thorough investigation are virtually unassailable.” 	Strickland,
466 U.S. at 690. That is true “[e]ven if in retrospect the strategy appears
to have been wrong.” 	Adams v. Wainwright, 709 F.2d 1443, 1445 (11th
Cir. 1983). In such situations, counsel’s decision “will be held ineffective
only if it was so patently unreasonable that no competent attorney would
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have 	chosen 	it.” 	Id. 	This 	means 	that 	“[t]o 	avoid 	being 	branded
ineffective, defense lawyers need not assert every nonfrivolous defense.”
Rogers v. Zant, 13 F.3d 384, 388 (11th Cir. 1994).
Here, the state postconviction court did not unreasonably apply
Strickland because fairminded jurists could agree with the conclusion
that Attorney Griffith’s decision was not “so patently unreasonable that
no competent attorney would have chosen it.” 	Adams, 709 F.2d at 1445.
It bears mentioning that it is not as though Attorney Griffith presented
no defense. 	Instead of presenting a heat of passion defense, Attorney
Griffith chose to pursue a failure of proof defense. 	Attorney Griffith
challenged whether the prosecution had proven that Petitioner intended
to commit a crime inside the house at the moment he entered (as required
for burglary) and whether his conduct constituted attempted second
degree murder (as opposed to a lesser included offense). 	(Doc. 12-3 at
254-262). 	That was not a “patently unreasonable” defense strategy.
Underscoring the reasonableness of the strategy6 is the fact that it was
6 In assessing the Attorney Griffith’s performance, it is important to note
that he was a very experienced defense attorney who had handled
approximately 100 jury trials. (Doc. 12-19 at 76-77). 	Given Attorney
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partially 	successful—the 	jury 	rejected 	the 	attempted 	second 	degree
murder charge relating to Mr. Murphy (Count One) and instead found
Petitioner guilty of the lesser included offense of aggravated battery.
Although it is possible that another attorney may have chosen to pursue
a heat of passion defense under these circumstances, that does not mean
the state postconviction court unreasonably applied Strickland by finding
that Attorney Griffith’s performance was not constitutionally deficient.7
See Parnell v. United States, 149 F.4th 1268, 1287 (11th Cir. 2025) (“It is
not enough to claim that some or most other attorneys would have acted
differently 	than 	trial 	counsel 	did.”). 	Accordingly, 	Petitioner 	is 	not
entitled to habeas relief on Ground One.
Griffith’s experience, “the presumption that his conduct was reasonable
is even stronger.” 	See Chandler v. United States, 218 F.3d 1305, 1316
(11th Cir. 2000).
7 Because Petitioner has failed to show that the state postconviction court
unreasonably applied the deficient performance prong of Strickland, it is
unnecessary to discuss the postconviction court’s finding that Petitioner
also did not establish prejudice as required by Strickland’s second prong.
See Strickland, 466 U.S. at 697 (“There is no reason for a court . . . to
address both components of the inquiry if the defendant makes an
insufficient showing on one.”).
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B. 	Ground Two: 	“Defense counsel rendered ineffective
assistance 	of 	counsel 	by 	erroneously 	advising
Petitioner Reed that he should not testify at trial.”
In 	Ground 	Two, 	Petitioner 	alleges 	Attorney 	Griffith 	provided
ineffective assistance by advising him against testifying at trial. (Doc. 7
at 21-26). According to Petitioner, absent counsel’s advice, he would have
testified and told the jury that he and Ms. Jackson had an understanding
that he could come into her home whenever he wanted without an
invitation. And Petitioner says that if the jury had heard this testimony,
then there is a reasonable probability it would have found him not guilty
of the burglary charge because his entry into Ms. Jackson’s home was
invited and, therefore, not unlawful. (Id. at 22-23).
Petitioner presented this claim in his Rule 3.850 motion. (Doc. 12-
16 at 12-14). 	During the evidentiary hearing on that motion, Attorney
Griffith explained that he discussed with Petitioner the issue of whether
he should testify at trial. 	(Doc. 12-19 at 85-86). 	According to Attorney
Griffith, 	Petitioner’s 	memory 	was 	lacking 	regarding 	the 	stabbing
incident. 	Attorney Griffith advised Petitioner that if he took the stand,
then the jury would learn that he was a convicted felon. Attorney Griffith
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also explained that the trial judge conducted a colloquy with Petitioner
to ensure that his decision not to testify was voluntary.
The state postconviction court rejected Petitioner’s claim, finding
that he had not satisfied either prong of Strickland. 	(Doc. 12-20 at 13-
14). In reaching that conclusion, the state postconviction court explained
that the trial judge had conducted a colloquy to ensure Petitioner’s
decision 	not 	to 	testify 	was 	voluntary. 	Furthermore, 	the 	state
postconviction court found that Attorney Griffith made a reasonable
strategic decision to advise Petitioner against testifying. 	And the state
postconviction court concluded that Petitioner had not shown prejudice
under 	Strickland 	because 	his 	proposed 	testimony 	“would 	not 	have
changed the outcome of the trial.” (Id. at 17).
Petitioner now claims that the state postconviction court’s decision
involved an unreasonable application of Strickland. Thus, “the question
[for this Court] is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard” for attorney performance.
Richter, 562 U.S. at 105. 	The answer to that question is “yes”; there is
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such a reasonable argument here. 	And that means Petitioner is not
entitled to habeas relief.
A criminal defendant has a right to testify at trial. United States v.
Teague, 953 F.2d 1525, 1532 (11th Cir. 1992). 	That right is a personal
one that can only be waived by the defendant. 	Id. 	Defense counsel is
responsible for informing “the defendant of his right to testify or not
testify, the strategic implications of each choice, and that it is ultimately
for the defendant himself to decide.” Id. at 1533. Additionally, if defense
counsel “believes that it would be unwise for the defendant to testify,
counsel may, and indeed should, advise the client in the strongest
possible terms not to testify.” Id. An attorney does not provide ineffective
assistance by advising a defendant against testifying where testifying
could open up the defendant to cross examination regarding his prior
felony convictions. See Lisbon v. United States, 758 F. App’x 780, 783-84
(11th Cir. 2018) (rejecting argument that counsel provided ineffective
assistance by advising defendant with a prior felony conviction not to
testify because the conviction could be used as impeachment); see also
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Preston v. Sec’y, Dep’t of Corr., 745 F App’x 835, 838 (11th Cir. 2018)
(same).
Here, the state postconviction court reasonably found that Attorney
Griffith 	did 	not 	perform 	deficiently 	by 	advising 	Petitioner 	against
testifying. 	It is clear from the record that Attorney Griffith informed
Petitioner of his right to testify and discussed the matter with him.8 	It
is also clear that Petitioner understood that the decision regarding
whether to testify was his alone to make. 	Indeed, Petitioner confirmed
(under oath) to the trial judge that he understood his right to testify, that
he had discussed that right with Attorney Griffith, and that he had
voluntarily decided to waive that right. 	(Doc. 12-3 at 227-28). Under
questioning by the trial judge, Petitioner confirmed that the decision not
to testify was his decision, that the decision was not coerced, and that he
understood that the decision was “not on your attorney, it’s ultimately
your choice, and yours alone.” 	(Id. at 228); see generally Riolo v. United
8 	Attorney 	Griffith 	testified 	at 	the 	evidentiary 	hearing 	about 	the
conversation he had with Petitioner regarding his right to testify. 	(Doc.
12-19 at 85-86). 	Petitioner confirmed that this conversation occurred.
(Id. at 48-49)
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States, 38 F.4th 956, 968 (11th Cir. 2022) (recognizing that a petitioner
bears “a heavy burden to show that his own statements, made under oath
at the time, were false”).
Thus, this is not a case where “defense counsel refused to accept the
defendant’s decision to testify and would not call him to the stand.”
Teague, 953 F.2d at 1534. 	Nor is it a case where “defense counsel never
informed the defendant of the right to testify.” Id. Instead, this is a case
where an experienced defense attorney advised a client that he believed
testifying was a bad idea because it would allow the jury to learn
Petitioner was a convicted felon9 while not supplying any information
9 Petitioner has not denied having these prior felony convictions, nor has
he argued that defense counsel was incorrect regarding the prosecution’s
potential use of the convictions for impeachment purposes. 	Additionally,
Petitioner’s reliance on Everhart v. State, 773 So.2d 78 (Fla. 2d DCA
2000) is unavailing. 	In 	Everhart, defense counsel misinformed the
defendant that if he testified the jury would “automatically” learn the
“specific nature” of his prior convictions (as opposed to merely the
existence of those convictions). 	Id. at 79. 	That is not what happened
here—nothing in the record indicates that Attorney Griffith stated that
the jury would automatically learn the nature of Petitioner’s four prior
felony convictions. 	Instead, what the record shows is that Attorney
Griffith told Petitioner that testifying would allow the jury to learn that
Petitioner was a convicted felon. 	And, as cited above, the Eleventh
Circuit has repeatedly found that it is not ineffective assistance for an
attorney to advise a defendant against testifying on that basis. 	Lisbon,
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that would likely be helpful to the jury. And, as the Eleventh Circuit has
recognized, “if counsel believes that it would be unwise for the defendant
to testify, counsel may, and indeed 	should, advise the client in the
strongest possible terms not to testify.” 	Id. (emphasis added). 	The fact
that Petitioner now wishes he had testified does not mean that Attorney
Griffith performed ineffectively by advising Petitioner of his belief that
the risks of testifying outweighed the benefits. Accordingly, Petitioner
has not shown that the state postconviction court unreasonably applied
Strickland to his claim that counsel performed ineffectively by advising
him against testifying.10 	See Jones, 487 F. App’x at 567 (finding that
758 F. App’x at 783-84; Preston, 745 F App’x at 838; Jones v. Sec’y, Dep’t
of Corr., 487 F. App’x 563, 567 (11th Cir. 2012); Teague, 953 F.2d at 1533
n.9.
10 	As 	previously 	mentioned, 	Petitioner 	testified 	at 	the 	evidentiary
hearing on his Rule 3.850 motion. 	And the state postconviction court
found that Petitioner was not a credible witness. (Doc. 12-20 at 10) (“The
Court finds that the [Petitioner’s] testimony is unreliable and subject to
credibility issues.”). 	According to 	the 	state 	postconviction 	court, 	if
Petitioner had testified at trial in the same “manner, demeanor, and
credibility [Petitioner] testified at the evidentiary hearing, it would have
not changed the outcome” of the trial. (Id. at 17). Based on the record in
this case, that was an eminently reasonable conclusion by the state
postconviction court. 	So even if Petitioner could show that the state
court’s finding on the deficiency prong of Strickland was unreasonable,
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habeas petitioner failed to show counsel acted unreasonably by advising
him not to testify when he had five prior felony convictions that the jury
could have learned of on cross examination); see also Teague, 953 F.2d at
1533 	n.9 	(recognizing 	that 	the 	possibility 	“the 	defendant 	might 	be
prejudiced by revelation of prior convictions” is a “good tactical reason[]
why it may not be best for the defendant to testify”). 	As a result,
Petitioner is not entitled to habeas relief on Ground Two.
C. 	Ground Three: “Cumulative error.”
In Ground Three, Petitioner claims the cumulative effect of the
errors in this case deprived him of a fair trial. (Doc. 7 at 26). Under the
“cumulative error” doctrine, the aggregation of non-reversible errors “can
yield a denial of the constitutional right to a fair trial, which calls for
reversal.” 	Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1284
(11th Cir. 2014). The Court must examine each of Petitioner’s claims of
constitutional error and determine whether any actual error occurred.
Id. 	When there has been no actual error, a “cumulative error” claim has
he would not be entitled to relief because he has not shown that the state
court’s finding on the prejudice prong of Strickland was unreasonable.
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no merit. Id. (citation omitted). As explained above, there was no actual
error 	here. 	So, 	Petitioner 	is 	not 	entitled 	to 	habeas 	relief 	on 	the
cumulative error claim advanced in Ground Three.
IV. 	Conclusion
For the reasons above, Petitioner’s amended petition for habeas
relief under 28 U.S.C. § 2254 petition should be denied.
V. 	Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts provides that “[t]he district court must issue or
deny a certificate of appealability when it enters a final order adverse to
the applicant,” and 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. 	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 v. Cockrell, 537 U.S. 322, 336 	(2003)
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(quoting § 2253(c)(2)). 	“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 [or her] constitutional claims or that
jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.’” 	Buck v. Davis, 580 U.S. 100, 115
(2017) (citing Miller-El, 537 U.S. at 327). 	The petitioner here cannot
make that showing. 	Therefore, the undersigned recommends that the
district court 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.” Thus, if there is an objection to this
recommendation by either party, that party may bring this argument to
the attention of the district judge in the objections permitted to this
report and recommendation.
Accordingly, it is respectfully RECOMMENDED that:
1. 	The amended petition for habeas corpus under 28 U.S.C.
§ 2254 (Doc. 7) be DENIED and this case DISMISSED.
2. 	A certificate of appealability be DENIED.
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At Pensacola, Florida, this 28th day of January 2026.
/s/ Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
Notice to the Parties
Objections to these proposed findings and recommendations must
be 	filed 	within 	fourteen 	days 	of 	the 	date 	of 	the 	Report 	and
Recommendation. 	Any 	different 	deadline 	that 	may 	appear 	on 	the
electronic docket is for the Court’s internal use only and does not control.
An objecting party must serve a copy of the objections on all other parties.
A 	party 	who 	fails 	to 	object 	to 	the 	magistrate 	judge’s 	findings 	or
recommendations contained in a report and recommendation waives the
right 	to 	challenge 	on 	appeal 	the 	district 	court’s 	order 	based 	on
unobjected-to factual and legal conclusions. 	See 11th Cir. Rule 3-1; 28
U.S.C. § 636.
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