1:24-cv-00164•MARTINEZ v. DIXON
Full text
Page 1 of 29 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION ERIC C. MARTINEZ, Petitioner, v. Case No. 1:24cv164-TKW-HTC RICKY DIXON, Respondent. _______________________/ REPORT AND RECOMMENDATION Eric C. Martinez (“Petitioner”), proceeding pro se, filed a petition under 28 U.S.C. § 2254 challenging his conviction in case number 21-2015-CF-145-A in the Eighth Judicial Circuit in and for Gilchrist County, Florida. Doc. 1. Upon consideration of the petition, Respondent’s answer, Petitioner’s reply, and the record, the undersigned recommends Grounds One, Three, and Four be DENIED for failure to exhaust administrative remedies, and Ground Two be DENIED on the merits. I. BACKGROUND In 2016, Petitioner was convicted after a jury trial of armed burglary, grand theft of tools, grand theft of a motor vehicle, grand theft of a firearm, possession of a firearm by a convicted felon, possession of burglary tools, and resisting arrest Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 1 of 29
Page 2 of 29 Case No. 1:24cv164-TKW-HTC without violence. See Case No. 21-2015-CF-145-A. On October 5, 2016, Petitioner was sentenced to life for the armed burglary offense fifteen (15) years with time served for resisting arrest without violence, and five (5) years on the remaining charges, with all sentences to run concurrently to the life sentence for the armed burglary. (The verdict, judgment, scoresheet, sentence, amended information, and arrest affidavit are located at Doc. 9-3 at 43–44, 51–52, 55–59, 81–83, 108–112.). Petitioner appealed the judgment and sentence, and on February 6, 2018, the First District Court of Appeal (“First DCA”) affirmed per curiam without a written opinion. Doc. 9-11. The First DCA issued its mandate on February 27, 2018. Doc. 9–12; see Martinez v. State, 240 So. 3d 641 (Fla. 1st DCA 2018) (1D16-4587). On June 6, 2018, Petitioner filed a motion for postconviction relief raising seven claims based on ineffective assistance of trial counsel. Doc. 9-14 at 97–124. In particular, Petitioner argued trial counsel was ineffective by (1) failing to advise Petitioner he needed to testify in his own defense; (2) failing to request a special jury instruction on the theory of defense; (3) failing to move for judgment of acquittal that the state failed to prove burglary in the manner as charged; (4) failing to argue in the motion for judgment of acquittal that the victim’s prior inconsistent statement, standing alone, was insufficient to prove built beyond a reasonable doubt; (5) failing to use a peremptory challenge to strike Juror Jackson; (6) failing to investigate and Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 2 of 29
Page 3 of 29 Case No. 1:24cv164-TKW-HTC call an exculpatory witness; and (7) failing to insist on a second competency evaluation. Id. at 97–126. On January 14, 2019, the circuit court entered an order denying each of Petitioner’s IATC claims. Id. at 9–20. Petitioner appealed the trial court’s order. Id. at 127. The First DCA affirmed per curiam without a written opinion on August 14, 2019, and issued its mandate on September 11, 2019. Docs. 9-17 & 9-18. On February 4, 2020, Petitioner filed a second motion for postconviction relief, asserting one claim of prosecutorial misconduct and the following five IATC claims: (1) failing to investigate video surveillance evidence; (2) failing to file a motion in limine to prevent the introduction of Petitioner’s criminal background; (3) failing to object to a possible discovery violation; (4) failing to object to improper commentary on the evidence by the prosecution; and (5) failing to object to improper testimony. Doc. 9-20 at 3–15. The circuit court denied the motion on October 13, 2021. Doc. 9-19 at 26–33. Petitioner appealed the circuit court’s order, and the First DCA affirmed per curiam without a written opinion. Docs. 9-21 & 9-23. The First DCA issued its mandate on October 3, 2022. Doc. 9-24. On May 13, 2021, Petitioner filed a motion to correct illegal sentence. Doc. 9-19 at 10–23. The circuit court denied the motion on March 21, 2022. Doc. 9-25 at 11–17. After missing the deadline to appeal, Petitioner filed a petition for a belated appeal in the First DCA. Doc. 9-25. The First DCA granted Petitioner’s Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 3 of 29
Page 4 of 29 Case No. 1:24cv164-TKW-HTC petition to file a belated appeal on November 15, 2022. Doc. 9-26. A year later, on November 15, 2023, the First DCA affirmed per curium without a written opinion and issued its mandate on December 13, 2023. Docs. 9-29 & 9-30. On September 16, 2022, Petitioner filed a second motion to correct an illegal sentence, arguing that his life sentence violated Article I, § 17 of the Florida Constitution because it is a sentence of indefinite imprisonment. Doc. 9-27 at 157– 60. The circuit court denied the motion on September 22, 2022. Id. at 162–63. Petitioner did not appeal this ruling. On January 22, 2024, Petitioner filed a third motion to correct illegal sentence, which the circuit court denied on January 31, 2024. Doc. 9-31 at 10–25, 51–54. Petitioner appealed the circuit court’s ruling. Doc. 9-32 at 1–18. The First DCA affirmed per curium with an opinion filed on September 11, 2024, and issued its mandate on October 9, 2024. Doc. 9-33 & 9-24. Petitioner filed the instant habeas petition on September 13, 2024. Doc. 1. II. LEGAL STANDARDS A. The Antiterrorism and Effective Death Penalty Act of 1996, (“AEDPA”) Under the AEDPA, which governs a state prisoner’s petition for habeas corpus relief, relief may only be granted on a claim adjudicated on the merits in state court if the adjudication: Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 4 of 29
Page 5 of 29 Case No. 1:24cv164-TKW-HTC (1) resulted in a decision that 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) 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). This standard is both mandatory and difficult to meet. White v. Woodall, 572 U.S. 415, 419 (2014). “Clearly established federal law” consists of the governing legal principles set forth in the decisions of the United States Supreme Court when the state court issued its decision. Id. A decision is “contrary to” clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003). A state court decision involves an “unreasonable application” of Supreme Court precedent if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner’s case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 5 of 29
Page 6 of 29 Case No. 1:24cv164-TKW-HTC apply.” Bottoson, 234 F.3d at 531 (quoting Williams v. Taylor, 529 U.S. 362, 406 (2000)). “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). B. Exhaustion As a rule, a state prisoner must exhaust all state remedies before bringing a federal habeas case. 28 U.S.C. § 2254(b)(1)(A) & (c). This means a district court may not grant a habeas corpus petition unless it appears that either (1) the petitioner “has exhausted the remedies available in the courts of the State”; (2) “there is an absence of available State corrective process”; or (3) “circumstances exist that render such process ineffective to protect the [petitioner’s] rights.” 28 U.S.C. § 2254(b)(1)(A)–(B). Furthermore, a petitioner “shall not be deemed to have exhausted” the available state court remedies “if he has the right under the law of the State to raise, by any available procedure,” the claims he has presented in his federal habeas petition. 28 U.S.C. § 2254(c). Although the Supreme Court has rejected a strict interpretation of § 2254(c), “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 6 of 29
Page 7 of 29 Case No. 1:24cv164-TKW-HTC round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). C. Ineffective Assistance of Trial Counsel All of Petitioner’s claims are based on ineffective assistance of trial counsel. To succeed on an ineffectiveness of counsel claim, Petitioner must show that (1) counsel’s performance during representation fell below an objective standard of reasonableness, and (2) prejudice resulted, i.e., that a reasonable probability exists that but for counsel’s unprofessional conduct, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 689 (1984). The reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. Id. at 689. Petitioner bears the burden of proving that counsel’s performance was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Id. at 688–89. Strickland’s prejudice prong requires a petitioner to allege more than simply that counsel’s conduct might have had “some conceivable effect on the outcome of the proceeding.” Id. at 693. The petitioner must show a reasonable probability exists that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Bare allegations the petitioner was prejudiced by Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 7 of 29
Page 8 of 29 Case No. 1:24cv164-TKW-HTC counsel’s performance are not enough. Smith v. White, 815 F.2d 1401, 1406–07 (11th Cir. 1987). III. DISCUSSION In his petition, Petitioner raises four grounds for relief based on ineffective assistance of trial counsel. Doc. 1. In his answer, Respondent argues that Petitioner failed to exhaust each of his claims in state court before raising them in federal court and that because his time to do so has passed, each claim is procedurally barred. Doc. 9. Although Petitioner disputes that Ground Two is unexhausted, he admits Grounds One, Three, and Four are procedurally defaulted. Nonetheless, he argues the procedural bar is excused under Martinez v. Ryan, 566 U.S. 1 (2012). As discussed below, the undersigned agrees with Respondent that Grounds One, Three, and Four are unexhausted and do not meet the cause exception under Ryan. Thus, those claims should be DENIED. The undersigned agrees with the Petitioner that Ground Two is exhausted. However, the undersigned finds the claim to be without merit and thus recommends that Ground Two also be DENIED. A. Ground One: IATC for failing to move for judgment of acquittal (“JOA”) post-verdict on the charges of armed burglary and possession of a firearm by a convicted felon In Ground One, Petitioner argues trial counsel was ineffective for failing to file a post-verdict motion for JOA on the charges of armed burglary in Count I and possession of a firearm by a convicted felon in Count V. Doc. 1 at 10–11. Petitioner Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 8 of 29
Page 9 of 29 Case No. 1:24cv164-TKW-HTC admits he did not present this claim in state court and acknowledges he did not exhaust this federal claim in accordance with 28 U.S.C. § 2254(b)(1)(A). Id. at 11. However, Petitioner asserts this claim falls under the “cause and prejudice” exception to the exhaustion requirement established in Martinez v. Ryan, 566 U.S. 1 (2012). It is undisputed that Ground One is procedurally defaulted because Petitioner cannot return to state court to exhaust this claim. See Fla. R. Crim. P. 3.850(b) (requiring post-conviction motions to be filed no later than two years from the date the judgment and sentence become final); see Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). Claims that are procedurally defaulted and unexhausted are generally barred from federal habeas relief unless it falls into an exception for “cause and prejudice” or for a “fundamental miscarriage of justice.” Id. (citing O’Sullivan v. Boerckel, 526 U.S. 838, 848–49 (1999)). Relying on Martinez v. Ryan, Petitioner argues he has cause to excuse the procedural default.1 In Ryan, the Supreme Court held that a petitioner may establish cause for the default of a claim of ineffective assistance of trial counsel where (1) 1 To show prejudice, a petitioner must demonstrate a reasonable probability the outcome of the proceeding would have differed. Crawford v. Head, 311 F.3d 1288, 1327–28 (11th Cir. 2002); see also Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999) (quoting McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992) (To show “prejudice,” Petitioner must show “the errors at trial actually and substantially disadvantaged his defense so that he was denied fundamental fairness.”). Because Petitioner cannot establish cause for the procedural default, the court need not determine whether he has shown prejudice. Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 9 of 29
Page 10 of 29 Case No. 1:24cv164-TKW-HTC “in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective,” and (2) the defaulted claim is a “substantial one,” meaning that “the claim has some merit.” Ryan, 566 U.S. at 14, 17. A petitioner shows that his defaulted claim is “substantial” under Ryan by demonstrating “reasonable jurists ‘would find it debatable whether the petition states a valid claim of the denial of a constitutional right.’” Clark v. Comm’r, Ala. Dep’t of Corr., 988 F.3d 1326, 1331 (11th Cir. 2021) (quoting Hittson v. GDCP Warden, 759 F.3d 1210, 1269–70 (11th Cir. 2014)). For the reasons set forth below, the undersigned agrees with Respondent that Ground One is not a “substantial one.” As discussed above, to succeed on an IATC claim, Petitioner must show that counsel’s performance was both ineffective and prejudicial. Here, he cannot make either showing. Petitioner argues trial counsel was ineffective for failing to renew his motion for a JOA post-verdict by written motion pursuant to Rule 3.850(c), including citations to controlling Florida and federal caselaw. Doc. 1 at 16. A motion for JOA should not be granted where the State has produced competent, substantial evidence to support every element of the crime. See Gray v. State, 607 So. 2d 454, 457 (Fla. 1st DCA 1992). “Competent evidence is matter probative of the fact to be proved; that is, relevant evidence that does not fit within any rule of exclusion. Evidence is substantial if a reasonable mind might accept it to support a conclusion.” Brumley v. State, 500 So. 2d 233, 234 (Fla. 4th DCA 1986). Here, trial Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 10 of 29
Page 11 of 29 Case No. 1:24cv164-TKW-HTC counsel moved for a JOA after the close of the State’s case and specifically argued the evidence presented by the State, “is circumstantial as to the theft of the gun and, therefore, the possession of the firearm and, therefore, as to the armed portion of the burglary.” Doc. 9-4 at 228–29. Despite counsel’s argument, the trial court denied the motion and that denial was upheld on appeal. Id. at 229. As an initial matter, the issue of whether evidence is sufficient to establish a state an offense is a matter of state law, and this Court will defer to the state court’s determination regarding state law. See Vegas v. Sec’y, Dep’t of Corr., 2021 WL 4439245, at *6 (11th Cir. Sept. 28, 2021). Moreover, there is nothing in the record to show that the trial court would have reversed course had counsel renewed the motion post-verdict. Regardless, as the Respondent points out, there was sufficient evidence to support the jury’s verdict on both the armed burglary and possession of a firearm charge. Namely, based on the security camera footage showing Petitioner walking toward the front of the boat where the gun was stored, holding something in his hand, and the victim’s testimony that “[i]t looked like my pistol,” the jury could reasonably infer that Petitioner armed himself with the victim’s gun during the course of the burglary. Thus, even had counsel renewed the motion, it would have been denied. Trial counsel cannot be ineffective for failing to raise an unmeritorious argument. See United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000). Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 11 of 29
Page 12 of 29 Case No. 1:24cv164-TKW-HTC The undersigned also agrees with Respondent that Petitioner’s argument that the trial court would have granted the motion had it been more “artfully” pled is speculative. Indeed, not only did trial counsel move for a JOA pre-judgment, but trial counsel moved for a new trial under Rule 3.600, arguing the verdict was unsupported by the weight of the evidence. Doc. 9-3 at 113–14; Fla. R. Crim. P. 3.600(a)(2). That motion was also denied. Petitioner, therefore, cannot show that counsel’s performance prejudiced him. See Johnson v. Alabama, 256 F.3d 1156, 1183 (11th Cir. 2001) (rejecting a Strickland claim based on “pure speculation.”). Because Ground One fails on the merits, it is not “substantial” under Ryan, and thus, Ground One should be denied as unexhausted and procedurally defaulted. B. Ground Two: IATC for advising Petitioner that if he chose to testify, the state could cross-examine and impeach him with specifics of his prior record In Ground Two, Petitioner argues trial counsel was ineffective for affirmatively misadvising him that if chose to testify in his own defense, the State could impeach him about this prior record during cross-examination. As a result of this misadvice, Petitioner contends he did not knowingly and voluntary waive his right to testify. Doc. 1 at 40. Respondent contends Ground Two is unexhausted because Petitioner failed to present it in state court. Doc. 9 at 11. The undersigned disagrees. Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 12 of 29
Page 13 of 29 Case No. 1:24cv164-TKW-HTC In arguing Petitioner failed to exhaust Ground Two, Respondent focuses solely on the claim Petitioner made in ground three of his Feb. 10, 2020, Second Motion for Postconviction Relief. Doc. 9-11 at 11–12. While the undersigned agrees Petitioner did not raise Ground Two in the Second Motion for Postconviction Relief, the undersigned finds that Petitioner did raise it in Argument I of his first Motion for Postconviction Relief filed on June 6, 2018. Id.; see Doc. 9-14 at 99– 107. In Argument I of Petitioner’s June 6 motion for postconviction relief, Petitioner argued: “Trial counsel rendered ineffective assistance for failing to advise defendant of the need of his testimony to support theory of defense.” Doc. 9-14 at 99. As he does on Ground Two of this petition, Petitioner argued in the postconviction motion that, given the circumstantial evidence supporting his possession of a gun, his testimony was necessary to impeach the victim’s testimony. Id. at 103–04. Petitioner argues counsel’s failure to advise Petitioner of the need for his testimony and failure to present evidence to support his only defense was prejudicial and a breakdown of the adversarial process. Id. at 106. As stated above, the circuit court denied relief and petitioner appealed that denial, resulting in a per curiam affirmance without a written opinion. Docs. 9-15 & 9-17. Thus, Petitioner exhausted Ground Two. Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 13 of 29
Page 14 of 29 Case No. 1:24cv164-TKW-HTC Although exhausted, Ground Two is without merit and thus should nonetheless be denied. The state courts’ determination that trial counsel’s performance was neither ineffective nor prejudicial under Strickland was neither contrary to law nor a misapplication of the facts. In denying relief on Argument 1, the circuit court rejected Petitioner’s argument that Petitioner was deprived of an opportunity to present evidence and testify in support of his sole defense. Doc. 9-19 at 85. The court pointed out that (1) counsel advised Petitioner he had the right to testify in his own defense; (2) counsel informed Petitioner (and Petitioner indicated he understood) that he could be impeached by prior offenses that involve dishonest or false statements as well as prior felony convictions if he chose to testify; and (3) after being reminded again of his right to testify, he chose not to do so. Id. at 86. As the circuit court noted, if Petitioner disagreed with his attorney’s advice not to testify, he was required to make his objection at trial and not as an afterthought. Id. (quoting Cutter v. State, 460 So. 2d 538, 539 (Fla. 2d DCA 1984)). Thus, the circuit court determined counsel had not interfered with Petitioner’s right to testify. Id. The circuit court went on to point out that even if counsel had been ineffective, there was no prejudice because counsel cross-examined the victim about not seeing the gun for two months prior to the burglary. Id. at 85–86; Doc. 9-4 at 188–91. Defense counsel also argued during closing argument that the firearm had been Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 14 of 29
Page 15 of 29 Case No. 1:24cv164-TKW-HTC unsecured and unsupervised for two months and that the State failed to present any direct evidence that a firearm was present and taken by the Petitioner during the burglary. Doc. 9-19 at 86; Doc. 9-4 at 260–63. According to Petitioner, he wanted to testify about a conversation between him and the victim prior to the burglary where the victim told Petitioner that he could not remember where he put his handgun (the gun that Petitioner allegedly stole and used during the burglary). Petitioner claims he told counsel of this conversation. Doc. 1 at 43; see also Doc. 17 at 2. Petitioner takes issue with counsel’s strategy for Petitioner not to testify as “unreasonable.” Petitioner, however, has failed to present any evidence to rebut the state court’s determination that counsel properly informed Petitioner of his right to testify. As the circuit court found, during the trial, counsel told Petitioner that he had the right to testify and that, if he did so, he could be impeached. Doc. 9-4 at 221–23. With that information, Petitioner chose not to testify. Moreover, defense counsel’s recommendation for Petitioner not to testify was not an unreasonable strategy. As the circuit court noted, defense counsel cross-examined the victim regarding the location of the gun and argued at closing that the gun was left unattended for two months. Counsel was thus able to raise doubt regarding whether Petitioner took the gun without having to put Petitioner under oath to answer questions about his prior felony offenses. Indeed, it is unlikely the jury would have placed much credibility Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 15 of 29
Page 16 of 29 Case No. 1:24cv164-TKW-HTC on Petitioner’s testimony––which would have been self-serving, once they were told about Petitioner’s 15 prior felony convictions and 2 prior crimes involving dishonesty or false statements. See Doc. 9-13 at 1. “In order to show that an attorney’s strategic choice was unreasonable, a petitioner must establish that no competent counsel would have made such a choice.” Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998). Petitioner has failed to make such a showing. In sum, the undersigned finds that Ground Two, while exhausted, should be DENIED on the merits because the state court’s determination that counsel was not ineffective in advising Petitioner not to testify is not contrary to established law or a misapplication of the facts or evidence. C. Ground Three: IATC for failing to object to jury instructions that gave incomplete legal definitions of material terms In Ground Three, Petitioner alleges trial counsel was ineffective for failing to object to jury instructions for Counts I and VI, which did not define the term “possession,” as provided for in Florida Standard Jury Instruction (Criminal) 3.3(d). Doc. 1 at 47–48; see Doc. 9-3 at 85–105. As with Ground One, Petitioner admits he did not present this ground to the state court in any post-conviction motion or proceeding but contends he the procedural default should be excused for “cause and prejudice” under Ryan. Doc. 1 at 47. The undersigned agrees with Respondent that this is not a substantial claim under Ryan. Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 16 of 29
Page 17 of 29 Case No. 1:24cv164-TKW-HTC As Respondent points out, while Petitioner did not raise this IATC claim in the state courts, in Petitioner’s third motion to correct illegal sentence, he argued that “the jury was not, I repeat, NOT furnished any instructions on law pertaining to applying § 775.087(2)(a)(1) Fla. Stat., which voids the jury’s finding on the verdict that the defendant ‘actually possessed a firearm during the course of committing the offense’ as a matter of law.’” Doc. 9-31 at 17–18. The circuit court denied the motion and as to that argument specifically, found that “the jury found beyond a reasonable doubt that [Petitioner] actually possessed a firearm during the offense charged in counts I and II.” Id. at 53. The circuit court’s determination that there was no error undermines Petitioner’s argument that counsel was ineffective or that his conduct was prejudicial because it shows that had counsel objected to the jury instruction, it would have been denied and there was sufficient evidence to support the jury’s verdict regardless of any error in the jury instruction. See Peoples v. Sec’y, Dept of Corr., 2023 WL 4947939, at *41 (M.D. Fla. August 3, 2023) (“Because the state post-conviction court concluded that the jury instruction was proper under state law, [the petitioner] establishes neither deficient performance nor resulting prejudice from counsel’s alleged error.”). Moreover, because the sufficiency of a jury instruction is a matter of state law, this Court will defer to the state court’s determination. See Estelle v. Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 17 of 29
Page 18 of 29 Case No. 1:24cv164-TKW-HTC McGuire, 502 U.S. 62, 67 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”). Because Ground Three is procedurally defaulted and that the claim is not a substantial one under Ryan, the claim should be DENIED. D. Ground Four: IATC for failing to object to the state’s closing arguments In Ground Four, Petitioner contends trial counsel was ineffective for failing to object to “prosecutorial misconduct” and “egregious arguments” made during the state’s closing argument. Doc. 1 at 60. As with Grounds One and Three, Petitioner admits he did not exhaust this claim in the state courts. Relying once again on Ryan, Petitioner seeks to be excused from this procedural default. Doc. 1 at 47; Doc. 17 at 1. The undersigned finds Ryan to be inapplicable because Ground Four is not a substantial claim. A claim that prosecutorial comments violated due process requires the court to “consider whether the prosecution’s conduct ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Carruth v. Comm’r, Ala. Dep’t of Corr., 93 F.4th 1338, 1357 (11th Cir. 2024) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In making this consideration, courts evaluate the trial record as a whole. See Darden v. Wainwright, 477 U.S. 168, 181– 83 (1986); see also Cargill v. Turpin, 120 F.3d 1366, 1379 (11th Cir. 1997) Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 18 of 29
Page 19 of 29 Case No. 1:24cv164-TKW-HTC (“[I]solated or ambiguous or unintentional remarks must be viewed with lenity.” (citation omitted)). District courts should utilize a two-part test in analyzing prosecutorial misconduct claims involving a state prosecutor’s statements. First, the court should determine “whether particular arguments by a prosecutor were improper and if so, to determine what the probable effect of the improper argument was on the jury.” Wilson v. Kemp, 777 F.2d 621, 623 (11th Cir. 1985). Second, the court must determine “whether there was a reasonable probability that, in the absence of the offending remarks, the . . . outcome would have been different.” Tucker v. Kemp, 802 F.2d 1293, 1295 (11th Cir. 1986) (per curiam) (internal quotation marks omitted). “If a reviewing court is confident that, absent the improper remarks, the jury’s decision would have been no different, the proceeding cannot be said to have been fundamentally unfair.” Id. at 1296. Here, Petitioner argues counsel was deficient in failing to object to the following comments made by the prosecutor in closing: (1) comments questioning Petitioner’s credibility; (2) comments constituting improper vouching and opinion statements, and (3) comments misleading the jury on the law and appealing to their emotions. As discussed below, the undersigned does not find counsel’s failure to object to be ineffective or prejudicial under Strickland. Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 19 of 29
Page 20 of 29 Case No. 1:24cv164-TKW-HTC 1. Credibility At the trial, Petitioner’s girlfriend, the victim, and a deputy took the stand and testified about statements Petitioner made to them incident to or after his arrest. During closing, the prosecutor characterized those statements as “self-serving.” Petitioner contends the prosecutor’s comments were a “foul blow” to Petitioner’s credibility, and thus, improper. Id. The purpose of closing argument is to review the evidence and illuminate the reasonable inferences the jury may draw from that evidence. Bertolotti v. State, 476 So. 2d 130, 134 (Fla. 1985); see, e.g., Merck v. State, 975 So. 2d 1054, 1064 (Fla. 2007) (finding no impropriety in a prosecutor’s comments based on the facts in evidence and common-sense inferences from those facts). “Prosecutors have wide latitude in closing argument ‘to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence.’” See Johnson v. State, 238 So. 3d 726, 739 (Fla. 2018) (quoting Bertolotti v. State, 476 So.2d 130, 134 (Fla. 1985)). A prosecutor’s closing argument is not limited to a “flat, robotic recitation[ ] of ‘just the facts.’” Jackson v. State, 89 So. 3d 1011 (Fla. 4th DCA 2012) (quoting Diaz v. State, 797 So. 2d 1286, 1287 (Fla. 4th DCA 2001)). Here, the prosecutor’s statement was proper, and thus any objection by defense counsel would have been overruled. Based on the evidence presented, including the timing of the Petitioner’s statements, the prosecutor was simply Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 20 of 29
Page 21 of 29 Case No. 1:24cv164-TKW-HTC drawing the jury’s attention to a reasonable inference regarding why Petitioner may have made those statements. See Davis v. State, 698 So. 2d 1182, 1190–91 (Fla. 1997) (holding that prosecutor’s references to the defendant’s statements to law enforcement as “bald faced lies” were not improper but were instead arguments regarding a conclusion to be drawn from the evidence). In other words, the prosecutor’s description of Petitioner’s statements as “self-serving” was not an opinion about Petitioner’s credibility; instead, it was a potential explanation for the motive behind the statements. Because defense counsel’s failure to object was not ineffective under Strickland, this is not a substantial claim under Ryan. 2. Vouching and Opinion Petitioner also argues that the prosecutor made several comments during closing that constituted improper vouching and opinion. He, thus, takes issue with counsel’s failure to object to the prosecutor’s injection of “his personal belief and opinions as to the defendant’s guilt, credibility and character” into the closing argument. Doc. 1 at 75. In particular, Petitioner takes issue with the following parts of the State’s closing argument: • “The state does not believe that the evidence, as you heard, supports any lesser included charges. I believe the primary charges are clearly proven beyond and to the exclusion of a reasonable doubt.” • “You see him with gloves on. You see him taking a great effort to conceal himself until he goes into the building. Okay? Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 21 of 29
Page 22 of 29 Case No. 1:24cv164-TKW-HTC I submit to you that the reason that he did this is because he believed that when he disabled that television and crashed i t on the ground and the wires from the surveillance that ran through there, that he thought that he was in the clear at that point. I think prior to that, he knew, I mean, the cameras are clearly evident. They’re hanging out there on the corners of the buildings. You’ll see that on the marks that Mr. Wolfe made on his stuff. But he thought he was in the clear after that. And so he could roll the stuff out and he could bring the truck around, and nobody would ever know and they wouldn’t be able to positively identify him. That is the explanation. And it was important to me because I asked myself that, when I’m looking what in the world? Why would you do that? And that’s the explanation. The only explanation, that I can really come up with.” • “[T]he person who is a reasonable suspect and I believe has been proven beyond a reasonable doubt to have taken the property is Mr. Martinez.” • “You heard the admissions from the defendant to his girlfriend, to Mr. Wolfe, and again to deputy Wolosyn. I do believe those are self-serving.” Doc. 1 at 73–75. Counsel did not perform deficiently by declining to object because any such objection would have been overruled. While it is true that “[i]t is improper to bolster a witness’ testimony by vouching for his or her credibility,” that is not what the prosecutor did. Gorby v. State, 630 So. 2d 544, 547 (Fla. 1993). “Improper bolstering occurs when the State places the prestige of the government behind the witness or indicates that information not presented to the jury supports the witness’s testimony.” Williamson v. State, 994 So. 2d 1000, 1013 (Fla. 2008) (quoting Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 22 of 29
Page 23 of 29 Case No. 1:24cv164-TKW-HTC Hutchinson v. State, 882 So. 2d 943, 953 (Fla. 2004)). Improper bolstering did not occur here. The prosecutor did not place the prestige of the government behind any witness. He did not refer to information that was not presented to the jury. Instead, the prosecutor permissibly suggested to the jury what they should conclude from the evidence before it. See United States v. Rivera, 780 F.3d 1084, 1100 (11th Cir. 2015) (“[A] prosecutor is free to suggest during oral argument what the jury should conclude from the evidence before it.”); United States v. Sosa, 777 F.3d 1279, 1297 (11th Cir. 2015) (“[T]he prosecutor may suggest what the jury should find from the evidence before it.”) (quoting United States v. Bernal-Benitez, 594 F.3d 1303, 1315 (11th Cir. 2010)). Similarly, the prosecutor did not express his personal opinion about Petitioner’s guilt, credibility, or character, as Petitioner suggests. Rather, the prosecutor limited his closing argument to the evidence in the record and to the probative value of the testimony and video evidence. Id. Under these circumstances, Petitioner has not shown that his counsel’s failure to object during the state’s closing substantially impaired the Petitioner’s right to a fair trial or raised a reasonable probability the jury would have reached a different conclusion. Therefore, Petitioner’s failure to exhaust Ground Four is not excused for cause under Ryan. Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 23 of 29
Page 24 of 29 Case No. 1:24cv164-TKW-HTC 3. “Misinstruction” and Appeal to Emotions Finally, Petitioner contends defense counsel was ineffective for failing to object to the prosecutor’s comments which “mislead the Jury with regard to the burden of proof.” Doc. 1 at 79. Specifically, Petitioner takes issue with these two (2) analogies the prosecutor used to explain reasonable doubt: [By Prosecutor Mr. Willis] once the state has removed -- basically filled the cup -- You start with an empty glass, and every little bit of evidence -- and you guys determine what the evidence is, you know, whether its credible, whether [it’s] not credible. Whether [it’s] enough, whether it’s not enough. You determine whether that glass gets full by the end of trial, and that’s where we’re at. I say y’all have seen it all, and the glass would be full of water at this point. That is kind of the process that we go through. The reasonable doubt isn’t something like, well, you know, maybe he thought this or maybe he thought that. It’s not a mere or speculative doubt, as the Judge is going to tell you. It’s not an imaginary or forced doubt. If you have an abiding conviction of guilt, if you sit there and you go, the [kid’s] guilty, you know, and you have a conviction of that and you know that in your heart, then we have overcome all reasonable doubt and you should find him guilty. And the Judge will tell you that in the definition. That is basically the definition of that. * * * It was sunny and dry when you went to bed, All right? Well, when you wake up, everything is wet. The grass is wet. The track[’s] wet. The house is wet. Trees are wet. Is it possible, you know, that the fire department came by and sprayed your home while you were sleep [sic]? Yeah, I guess it’s possible is it reasonable? No. You would have an abiding conviction. When you look at the totality of this evidence and you say, was this stuff taken by this person, you will come to the conclusion that he’s guilty of all charges. Doc. 1 at 80–81. Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 24 of 29
Page 25 of 29 Case No. 1:24cv164-TKW-HTC Contrary to Petitioner’s claim, the prosecutor did not alter the definition of the burden of proof in either analogy. The prosecutor’s comments did not improperly shift the burden of proof by insinuating Petitioner “needs to prove anything or invite the jury to convict him for a reason other than the State’s proving his guilt by evidence beyond a reasonable doubt.” Shedd v. Sec’y Dept of Corr., 2022 WL 3042510, at *5 (M.D. Fla. Aug. 2, 2022) (rejecting similar argument challenging trial counsel’s failure to object to the prosecutor’s use of an analogy of buying a home to explain reasonable doubt) (quoting Lucas v. State, 67 So. 3d 332, 336 (Fla. 4th DCA 2011)). The purpose of a closing argument is “to assist the jury in analyzing, evaluating and applying the evidence.” United States v. Pearson, 746 F.2d 787, 796 (11th Cir. 1984) (quoting United States v. Dorr, 636 F.2d 117, 120 (5th Cir. 1981)). As stated above, lawyers have wide latitude when making closing arguments, and while a prosecutor is prohibited from shifting or altering the burden of proof, none of the comments Petitioner challenges did that. Moreover, even if counsel had been ineffective in failing to object, the prosecutor’s comments did not prejudice Petitioner. On federal habeas review, “[t]he relevant question is whether the prosecutor[’s] comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 25 of 29
Page 26 of 29 Case No. 1:24cv164-TKW-HTC process.’” Darden v. Wainwright, 477 U.S. 168, 184 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). Here, any improper comment by the prosecutor during closing argument regarding the burden of proof was harmless because the court instructed the jury (1) that the attorneys’ arguments are not evidence; (2) that the State and not the defendant has the burden of proof; (3) on the definition of reasonable doubt; and (4) that the jury must look to the evidence introduced at trial “and to it alone.” Doc. 9- 4 at 286–88. These instructions cure any prejudice from the prosecutor’s comments. See Broxterman v. Sec’y, Dep’t of Corr., 2023 WL 6247599, at *10 (M.D. Fla. Sept. 26, 2023) (jury instruction that “[t]he defendant is not required to present evidence or prove anything” found sufficient to cure prosecutor comments even if assumed to be improper burden-shifting). And the jury is presumed to have followed the instructions given to them by the trial judge. See Parker v. Randolph, 442 U.S. 62, 73 (1979); United States v. Macrina, 109 F.4th 1341, 1350 (11th Cir. 2024). Because Petitioner cannot meet either the performance or prejudice prong under Strickland, Ground Four is not a substantial claim under Ryan. As such, Petitioner has not shown cause for failing to exhaust this claim. Moreover, because none of the Petitioner’s individual claims of prosecutorial misconduct has merit, his cumulative effect argument fails as well. See United States v. Barshov, 733 F.2d Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 26 of 29
Page 27 of 29 Case No. 1:24cv164-TKW-HTC 842, 852 (11th Cir. 1984) (“Without harmful errors, there can be no cumulative effect compelling reversal.”). IV. CONCLUSION For the reasons set forth above, the undersigned finds Petitioner failed to exhaust Grounds One, Three, and Four of the petition and those grounds are procedurally defaulted. Thus, relief should be DENIED as to those grounds. Additionally, while Petitioner did exhaust Ground Two, that claim should also be DENIED because it fails on the merits. Also, because this decision does not turn on any disputed factual allegation, the undersigned finds that an evidentiary hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007). V. 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. 28 U.S.C. § 2254 Rule 11(b). After review of the record, the Court finds no substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 27 of 29
Page 28 of 29 Case No. 1:24cv164-TKW-HTC 483–84 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is also recommended 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.” 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 petition under 28 U.S.C. § 2254, challenging the conviction in State v. Martinez, Case No. 21-2015-CF-145-A, in the First Judicial Circuit, in and for Gilchrist County, Florida (Doc. 1) be DISMISSED as to Grounds One, Three, and Four and DENIED as to Ground Two. 2. That a certificate of appealability be DENIED. 3. That the clerk be directed to close the file. At Pensacola, Florida, this 8 th day of December, 2025. /s/ Hope Thai Cannon HOPE THAI CANNON UNITED STATES MAGISTRATE JUDGE Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 28 of 29
Page 29 of 29 Case No. 1:24cv164-TKW-HTC NOTICE TO THE PARTIES Objections to these proposed findings and recommendations must be filed within fourteen (14) 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 its objections upon 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 the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636. Case 1:24-cv-00164-MW-HTC Document 18 Filed 12/08/25 Page 29 of 29
Wondering how this text applies to your situation?
Free consultation, no commitment
Describe your situation. Our team will contact you by email about your consultation.
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.