Gary Michael Hilton v. State of Florida & Gary Michael Hilton v. Mark S. Inch, etc.

Supreme Court of Florida
____________

No. SC19-373
____________

GARY MICHAEL HILTON,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

____________

No. SC19-1766
____________

GARY MICHAEL HILTON,
Petitioner,

vs.

MARK S. INCH, etc.,
Respondent.

August 26, 2021

PER CURIAM.

Gary Michael Hilton appeals an order of the circuit court

denying his motion to vacate his conviction of first-degree murder
and sentence of death filed under Florida Rule of Criminal

Procedure 3.851 and petitions this Court for a writ of habeas

corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

For the reasons expressed below, we affirm the order of the

postconviction court and deny the habeas petition.

FACTS AND PROCEDURAL BACKGROUND

Hilton was convicted of the December 2007 kidnapping and

murder of Cheryl Dunlap and sentenced to death. Hilton v. State,

117 So. 3d 742, 746 (Fla. 2013). On direct appeal, this Court

summarized the relevant facts as follows:

Cheryl Dunlap, 46, was last seen alive on
December 1, 2007. That morning, Dunlap called a
friend, Kiona Hill, and made arrangements to have
dinner with her that evening. That afternoon, Dunlap
went to Leon Sinks to read, where she was seen by
Michael and Vikki Shirley at approximately 1:30 p.m. . . .
Dunlap did not arrive for dinner that evening and was
missed at church the following morning by Tanya Land.
Land went to Dunlap’s residence and found her dog, but
noticed that her car was missing so she called the police.
Steven Ganey of the Wakulla County Sheriff’s Office took
the missing person report on December 3, 2007.

Dunlap’s car, a white Toyota Camry, was found on
December 3, 2007, on the side of Crawfordville Highway
parked near the woods. The car had deliberate tire
punctures in the sidewall that was [sic] later identified as
a bayonet piercing. On December 1, the car had received

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a disabled vehicle ticket from Florida Highway Patrol
Trooper Brian Speigner. Ganey testified that it appeared
that someone had driven into the woods with all four
tires intact and punctured the tire after the car had been
parked. Dunlap’s purse was recovered in her car, but no
money was found.

Dunlap’s Ameris Bank account records revealed
that Dunlap cashed a check with a drive-through teller at
11:17 a.m. on December 1. The records further revealed
that three cash withdrawals were made at the ATM at
Hancock Bank on West Tennessee Street on December 2,
3, and 4, 2007, totaling $700. In addition, two attempted
withdrawals were declined because they exceeded the
daily limit. The video from the security camera at the
bank showed that the person making the transactions
was wearing a blue and white patterned, long-sleeved
shirt, glasses, a hat, and a make-shift mask made from
tape.

Dunlap’s body was discovered on December 15 by [a
hunter] in the Apalachicola National Forest. Dunlap’s
body was near a forest road and had been covered with
some brush and limbs. Additionally, her head and hands
had been removed. Dunlap’s body was identified using a
sample of thigh muscle. Dr. Anthony Clarke, an
associate medical examiner, performed the autopsy.
Dr. Clarke opined that Dunlap’s head and hands had
been removed by an instrument with a sharp blade and
that the dismemberment occurred postmortem. The
cause of death was not able to be determined, but
Dr. Clarke opined that it was likely to have been a violent
homicide. Additionally, Dr. Clarke noted that there was a
significant pre-mortem bruise located on Dunlap’s middle
to lower back and that the bruise was not consistent with
a normal fall injury. Dr. Clarke estimated that Dunlap’s
body could have been in the woods for seven to fifteen

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days. Dr. Clarke testified that his best estimate was that
Dunlap died between December 5 and December 8, 2007.

On January 9, 2008, investigators found what they
believed to be the remains of Dunlap’s head and hands in
a fire pit at Joe Thomas campsite—approximately seven
miles from where her body had been found. The bone
fragments were charred. Because of the burn damage,
no DNA was recoverable from the fragments. Dr.
Anthony Falsetti, a forensic anthropologist, opined that
there were two hands represented, that the bones were
from an adult, and that the bones were from a person
with small hands.

Id. at 746-47.

Several witnesses testified to seeing or encountering Hilton

during the time of Dunlap’s disappearance. One saw Hilton

rummaging through a white Toyota Camry on the side of the road.

Another spoke to him in a convenience store while Hilton was

wearing a blue and white patterned shirt matching the shirt seen

on the ATM surveillance video. When Hilton was later arrested in

Georgia for a different murder, he pointed Georgia officials to a

bayonet he had left on a hiking trail in Georgia. An FDLE tool mark

expert matched the bayonet to the puncture marks in Dunlap’s tire.

On June 6, 2008, several officers transported Hilton from

Georgia, where he had been in custody for a prior murder, to

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Florida. Id. at 748. Hilton spoke for nearly the entire drive, but

was not questioned. Id. At trial, the State played portions of

Hilton’s recorded statements made during the drive. Id. Hilton

stated:

I’m not all bad. I mean, you got to understand, I mean,
I’m sure you can see. I mean, I’m a [expletive] genius,
man. I’m not a—I’m not all bad. I just, you know, lost
my mind for a little bit. Lost a grip on myself, man.
What can I tell you? FBI and everybody else is trying to
scratch their head, hey, guys don’t get started doing my
shit at 61 years old. It just don’t happen, you know.
Like there’s a retired FBI (indecipherable) named Cliff
Van, Clifford Van Zandt, that keeps getting himself in the
news, talking about me. And he said, this guy didn’t just
fall off the turnip truck, he said. You know, in other
words, he’s been doing this. But like I told you before,
you know, when I saw you before, I said, remember, I
said I’d give you one for free. Nothing before September,
okay? I mean, I’m not joking, okay? I just, I got old and
sick and couldn’t make a living and just lost, flat lost my
[expletive] mind for a while, man. I couldn’t get a grip on
it.

Id. Additionally, Hilton made incriminating statements to a fellow

inmate that were overheard by a correctional officer (Officer Wynn).

Id. at 748-49. During the penalty phase, the state presented

testimony regarding Hilton’s prior murder in Georgia to which he

pleaded guilty. Id. at 749.

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On February 21, 2011, the jury unanimously recommended

that Hilton be sentenced to death and the trial court found six

aggravating factors beyond a reasonable doubt, one statutory

mitigating factor, and eight nonstatutory mitigating factors. Id. at

746. Assigning the noted weight to each aggravator, the trial court

found (1) the defendant was previously convicted of a violent felony

(great weight); (2) the murder was committed in the course of a

kidnapping (great weight); (3) the murder was committed to avoid

arrest (moderate weight); (4) the murder was committed for

pecuniary gain (some weight); (5) the murder was especially

heinous, atrocious, or cruel (HAC) (great weight); and (6) the murder

was cold, calculated, and premeditated (CCP) (great weight). Id. at

749.

The court also considered and weighed each mitigating

circumstance proposed by Hilton and found one statutory mental

mitigating factor—at the time of the murder Hilton was under

extreme emotional distress (some weight). Id. Under the catch-all

provision, the trial court considered ten mitigating factors, finding

that Hilton established eight of them and rejecting two. Id. The

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court found (1) Hilton grew up in an abusive household (some

weight); (2) Hilton abused drugs, specifically Ritalin (some weight);

(3) Hilton was deprived of a relationship with his biological father

(moderate weight); (4) Hilton is already serving a life sentence so

society is protected (some weight); (5) Hilton served his country in

the U.S. military (very little weight); (6) Hilton suffered maternal

deprivation and lack of bonding between mother and child (some

weight); (7) Hilton was removed from his home and put into foster

care when he was a child (some weight); (8) Hilton grew up in a

financially poor family (not proven); (9) Hilton suffered a traumatic

brain injury as a child (some weight); and (10) Hilton suffers from

severe mental defects (not proven). Id. at 749-50. The court found

beyond a reasonable doubt that the aggravators outweighed the

mitigators. Id. at 750.

We affirmed Hilton’s conviction and sentence on direct appeal.

Id. at 750-66. 1 Hilton timely filed his initial rule 3.851 motion for

1. Hilton raised six claims on direct appeal: (1) the trial court
erred in allowing Hilton’s statements to law enforcement made
during his transport from Georgia to Florida to be introduced at
trial because they constitute inadmissible evidence under Williams
v. State, 110 S. 2d 654 (Fla. 1959); (2) the trial court erred in

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postconviction relief on November 26, 2014. On April 20, 2017,

Hilton filed his Second Motion for Leave to Amend Initial

Postconviction Motion and Incorporated Memorandum of Law,

raising seven claims. On June 14, 2017, claim 6 was dismissed

without prejudice with leave to amend due to legal insufficiency.

Hilton filed an Amended Claim 6 on July 21, 2017. An evidentiary

hearing was conducted, after which the trial court entered an order

denying Hilton’s motion for postconviction relief on February 12,

2019.

This appeal follows. Hilton has also filed a petition for writ of

habeas corpus.

permitting Dr. Prichard’s testimony about allegations of Hilton’s
past criminal conduct during the penalty phase; (3) the trial court
erred in permitting Dr. Prichard to remain in the courtroom despite
the sequestration rule; (4) the trial court erred in finding that HAC
and CCP aggravators applied; (5) the trial court erred in rejecting
the lack of capacity mitigating factor and failing to provide reasons
why there was substantial, competent evidence in the record to
support the rejection of the mitigating circumstance; (6) and that
this Court should reexamine its holdings in Bottoson v. Moore, 833
So. 2d 693 (Fla. 2002), and King v. Moore, 831 So. 2d 143 (Fla.
2002).

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MOTION FOR POSTCONVICTION RELIEF

The majority of the claims presented in Hilton’s appeal allege

ineffective assistance of trial counsel. To demonstrate entitlement

to relief on such a claim, a defendant must meet the following

requirements:

First, counsel’s performance must be shown to be
deficient. Strickland v. Washington, 466 U.S. 668, 687
(1984). Deficient performance in this context means that
counsel’s performance fell below the standard guaranteed
by the Sixth Amendment. Id. When examining counsel’s
performance, an objective standard of reasonableness
applies, id. at 688, and great deference is given to
counsel’s performance. Id. at 689. The defendant bears
the burden to “overcome the presumption that, under the
circumstances, the challenged action ‘might be
considered sound trial strategy.’ ” Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). This Court has
made clear that “[s]trategic decisions do not constitute
ineffective assistance of counsel.” See Occhicone v. State,
768 So. 2d 1037, 1048 (Fla. 2000). There is a strong
presumption that trial counsel’s performance was not
ineffective. See Strickland, 466 U.S. at 669.
Second, the deficient performance must have
prejudiced the defendant, ultimately depriving the
defendant of a fair trial with a reliable result. Strickland,
466 U.S. at 689. A defendant must do more than
speculate that an error affected the outcome. Id. at 693.
Prejudice is met only if there is a reasonable probability
that “but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. Both deficient
performance and prejudice must be shown. Id. Because

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both prongs of the Strickland test present mixed
questions of law and fact, this Court employs a mixed
standard of review, deferring to the circuit court’s factual
findings that are supported by competent, substantial
evidence, but reviewing the circuit court’s legal
conclusions de novo.

Bradley v. State, 33 So. 3d 664, 671-72 (Fla. 2010). Because

Strickland requires a defendant to establish both prongs, if one

prong is not met, “the court is not required to analyze whether the

defendant has established the other prong.” Frances v. State, 143

So. 3d 340, 347 (Fla. 2014).

Failure to Present Available Mitigation

In his first claim, Hilton argues that trial counsel was

ineffective during the penalty phase by not presenting available

mitigation evidence. Although mitigation evidence existed that was

not presented to the jury, the lack of such a presentation is not

dispositive of ineffective assistance under Strickland v. Washington,

466 U.S. 668 (1984).

To satisfy the first prong of Strickland, a defendant must

identify specific acts or omissions “of the lawyer that are shown to

be outside the broad range of reasonably competent performance

under prevailing professional standards.” Allen v. State, 261 So. 3d

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1255, 1269 (Fla. 2019) (quoting Peterson v. State, 221 So. 3d 571,

583 (Fla. 2017)). Accordingly, “strategic decisions do not constitute

ineffective assistance of counsel if alternative courses have been

considered and rejected and counsel’s decision was reasonable

under the norms of professional conduct.” Occhicone v. State, 768

So. 2d 1037, 1048 (Fla. 2000). “Counsel cannot be deemed

ineffective merely because current counsel disagrees with trial

counsel’s strategic decisions.” Id.

In Hilton’s case, the finding of one statutory mitigator and

eight nonstatutory mitigators undermines the argument that

presentation of further mitigation would have altered Hilton’s

resulting sentence or that trial counsel was deficient. For example,

where this Court has concluded that performance was deficient, the

failure to present mitigation was significant to the extent that either

minimal, or no, mitigating factors were established. See, e.g.,

Parker v. State, 3 So. 3d 974, 984 (Fla. 2009) (concluding that, as a

direct result of counsel’s deficient performance, “the evidence

presented at the penalty phase was not enough to support the

establishment of any nonstatutory mitigators”). Moreover, even

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though the trial court rejected two of the ten mitigators presented—

that Hilton grew up in a financially poor family and that Hilton

suffers from severe mental defects, Hilton fails to demonstrate how

testimony from the evidentiary hearing supports these unproven

mitigators to the extent that the outcome would have been different.

Hilton, 117 So. 3d at 749.

Ineffective assistance may occur if counsel was placed on

notice as to mitigation leads but did not pursue them. State v.

Bright, 200 So. 3d 710, 732 (Fla. 2016). However, that is not what

occurred here. In Hilton’s case, trial counsel knew of further

mitigation evidence but made a strategic decision not to present it

to the jury because it could have bolstered a negative view of Hilton.

This distinction is significant because, in evaluating prejudice, a

court must consider all the relevant evidence that would have come

in had counsel pursued a different path, including evidence that

would have opened the door to more damaging evidence. Douglas v.

State, 141 So. 3d 107, 123 (Fla. 2012); see also Reed v. State, 875

So. 2d 415, 437 (Fla. 2004) (“An ineffective assistance claim does

not arise from the failure to present mitigation evidence where that

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evidence presents a double-edged sword.”). Furthermore, we have

held that a trial counsel’s decision to rely on expert witnesses, as

trial counsel did in the present case, is reasonable. See Bailey v.

State, 151 So. 3d 1142, 1152 (Fla. 2014) (holding that trial counsel

did not render deficient performance by relying on expert witnesses

and choosing not to call lay witnesses).

Regardless, Hilton fails to demonstrate prejudice because he

has not shown that “there is a reasonable probability that the

balance of aggravating and mitigating circumstances would have

been different” had trial counsel presented the additional mitigation

evidence of Hilton’s life history. Occhicone v. State, 768 So. 2d

1037, 1049 (Fla. 2000); see also Matthews v. State, 288 So. 3d

1050, 1059 (Fla. 2019). Where the additional mitigation is minor or

cumulative and the aggravating circumstances substantial, we have

held that confidence in the outcome of the penalty phase is not

undermined. See, e.g., Breedlove v. State, 692 So. 2d 874, 877-78

(Fla. 1997); see also Asay v. State, 769 So. 2d 974, 988 (Fla. 2000)

(“[T]his Court has reasoned that where the trial court found

substantial and compelling aggravation . . . there was no reasonable

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probability that the outcome would have been different had counsel

presented additional mitigation evidence of the defendant’s abused

childhood, history of substance abuse, and brain damage.”).

Because the evidence of aggravation in Hilton’s case is

overwhelming, he has not established a reasonable probability that,

with the additional evidence of mitigation presented at the

evidentiary hearing, he would have received a life sentence. See

Hannon v. State, 941 So. 2d 1109, 1137 (Fla. 2006) (“Based on the

brutal and disturbing nature of these murders, there is no

reasonable probability that Hannon would have received a life

sentence.”).

Therefore, Hilton fails to demonstrate either prong of

Strickland and is not entitled to relief.

Disarray Among Defense Team

Hilton next argues that his trial team was ineffective due to

disarray and division among his lawyers. However, Hilton’s

allegations fail to allege specific deficient acts that present a

reasonable probability of affecting the outcome of his case.

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Therefore, Hilton’s argument does not meet either prong of

Strickland.

Hilton’s generalized claims regarding the trial team’s internal

division fail to satisfy the deficient performance standard under

Strickland because he fails to link that general discord to any

specific acts of deficient performance that occurred during the

thirty-six months his case was pending. See, e.g., Blackwood v.

State, 946 So. 2d 960, 967 (Fla. 2006) (holding that substance

abuse and personal issues attributed to counsel were insufficient to

prove deficient performance because the allegations were not linked

to any specific deficient acts).

Hilton’s only specific allegation of deficient performance

involves testimony from Officer Wynn who overheard incriminating

statements made by Hilton to a fellow inmate. However, the circuit

court recognized that the State’s failure to disclose Officer Wynn on

its witness list was the primary reason that trial counsel was

surprised by Officer Wynn’s testimony. Hilton does not detail

specifically how additional preparation would have enabled trial

counsel to challenge this incriminating testimony in a more effective

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manner. Moreover, Hilton’s statements overheard by Officer Wynn

were not the only incriminating statements made by Hilton. Hilton

also made incriminating statements to law enforcement during his

transport from Georgia to Florida, and those statements were

presented to the jury. Hilton, 117 So. 3d at 748. Therefore, Hilton’s

allegations of deficient performance are insufficient to satisfy

Strickland because Hilton has not linked any of these allegations to

the outcome of the case.

Cohesive Guilt and Penalty Phase Strategy

Hilton next argues that trial counsel was ineffective for

inconsistently relying on circumstantial evidence in the guilt phase

and mental health mitigation in the penalty phase. While trial

counsel should formulate a cohesive strategy for both the guilt and

penalty phases, Hilton’s argument does not meet either prong of

Strickland.

Without more, this Court has rejected ineffective assistance of

counsel claims where a defendant asserted that trial counsel should

have presented mitigating evidence when that mitigating evidence

was inconsistent with the guilt phase theory. See, e.g., Blanco v.

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State, 963 So. 2d 173, 179 (Fla. 2007) (denying an ineffective

assistance of counsel claim where “the mitigators Blanco argue[d]

should have been presented at his penalty phase [were] inconsistent

with his theory of the case: that he is innocent of [the] murder”).

Moreover, failing to investigate and present mental health

mitigation is not dispositive of ineffective assistance of counsel. The

record reflects that Hilton’s trial counsel had specific reasons for

the strategy adopted. Further, counsel cannot be deemed

ineffective for pursuing a strategy which the defendant agrees with,

as is true in the present case given that Hilton wanted to contest

everything. See Hannon v. State, 941 So. 2d 1109, 1126 (Fla.

2006). Accordingly, Hilton is not entitled to relief because he has

not overcome the presumption that trial counsel’s performance

“might be considered sound trial strategy.” Strickland, 466 U.S. at

687 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

Hurst

Hilton next argues that the postconviction court erred in

denying his claim that he is entitled to relief under Hurst v. Florida,

577 U.S. 92 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016),

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receded from in part by State v. Poole, 297 So. 3d 487 (Fla. 2020).

Since the postconviction court ruled on this claim, this Court has

changed the applicable analysis. Specifically, in State v. Poole, 297

So. 3d 487, 507 (Fla. 2020), this Court “recede[d] from Hurst v.

State except to the extent it requires a jury unanimously to find the

existence of a statutory aggravating circumstance beyond a

reasonable doubt.”

Hilton had both prior (Georgia murder) and contemporaneous

(kidnapping) felony convictions. Hilton, 117 So. 3d at 749.

Pursuant to Poole, there is no Hurst error in Hilton’s case because a

unanimous jury finding establishes the existence of at least one

statutory aggravating circumstance beyond a reasonable doubt.

Poole, 297 So. 3d at 508 (contemporaneous felony convictions

“satisfied the requirement that a jury unanimously find a statutory

aggravating circumstance beyond a reasonable doubt”); see also,

e.g., Boyd v. State, 291 So. 3d 900, 901 (Fla. 2020) (holding that a

contemporaneous kidnapping foreclosed Hurst relief).

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Eligibility for the Death Penalty

Hilton next argues that trial counsel was ineffective for failing

to challenge the applicability of the death penalty to him in light of

his severe mental health issues. However, we have consistently

rejected the argument that mentally ill inmates can never be

executed. See, e.g., Simmons v. State, 105 So. 3d 475, 511 (Fla.

2012) (holding to be without merit the claim that persons with

mental illness must be treated similarly to those with an intellectual

disability due to reduced culpability); Johnston v. State, 27 So. 3d

11, 26 (Fla. 2010) (finding no merit in the claim that mentally ill

persons are similar to and should be treated the same as juveniles

who are exempt from execution); Lawrence v. State, 969 So. 2d 294,

300 n.9 (Fla. 2007) (rejecting assertion that the Equal Protection

Clause requires extension of Atkins 2 to the mentally ill).

Because counsel cannot be considered ineffective for failing to

raise a meritless argument, the postconviction court correctly

denied the claim. See Matthews v. State, 288 So. 3d 1050, 1065

(Fla. 2019) (citing Raleigh v. State, 932 So. 2d 1054, 1064 (Fla.

2. Atkins v. Virginia, 536 U.S. 304 (2002).

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2006)). Moreover, because a showing of deficient performance is

not possible for a meritless claim, no prejudice analysis is required.

See Hall v. State, 212 So. 3d 1001, 1014, 1033 (Fla. 2017); see also

Allen v. State, 261 So. 3d 1255, 1269 (Fla. 2019). Accordingly,

Hilton is not entitled to relief.

Denial of Cause Challenges

Hilton next argues that trial counsel was ineffective for its

failure to preserve for appeal the denial of cause challenges during

jury selection. In order to establish actual bias, a postconviction

litigant must prove “bias-in-fact that would prevent service as an

impartial juror.” Carratelli v. State, 961 So. 2d 312, 324 (Fla. 2007);

see also Smithers v. State, 18 So. 3d 460, 464 (Fla. 2009) (“Without

a showing of such actual bias of the juror, the defendant cannot

establish the prejudice required by Strickland.”). The evidence of

actual bias “must be plain on the face of the record.” Id. With

respect to jury selection claims, the standard for obtaining relief in

postconviction “is much more strict” than the “relatively lenient”

direct appeal standard of establishing preserved error. See

Carratelli, 961 So. 2d at 318, 320.

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To properly preserve an issue for appellate review a litigant

must raise the issue with timeliness and specificity. See

§ 924.051(1)(b), Fla. Stat. (2019); see also Castor v. State, 365 So.

2d 701, 703 (Fla. 1978). This requires two objections: (1) a

contemporaneous objection that puts the trial court on notice; and

(2) a second objection before the jury is sworn. See Carratelli, 961

So. 2d at 318. Failure to lodge the second objection indicates

abandonment of the initial objection. See Zack v. State, 911 So. 2d

1190, 1204 (Fla. 2005) (citing Joiner v. State, 618 So. 2d 174, 176

(Fla. 1993)).

Hilton fails to identify a specific cause challenge that counsel

should have preserved. This general allegation is insufficient to

demonstrate deficient performance. See Jones v. State, 998 So. 2d

573, 584 (Fla. 2008). Because a showing of deficient performance

is not possible, this Court need not conduct a prejudice analysis.

Nevertheless, because Hilton fails to establish actual bias on the

part of any juror and, therefore, fails to demonstrate prejudice, the

postconviction court properly denied the claim of ineffective

assistance.

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Cumulative Error

Because Hilton has not demonstrated any deficiencies,

Hilton’s claim of cumulative error fails.

PETITION FOR WRIT OF HABEAS CORPUS

Change of Venue

In his habeas petition, Hilton argues that appellate counsel

was ineffective for failing to challenge the trial court’s denial of his

motion for a change of venue. The standard for a claim of

ineffective assistance of appellate counsel mirrors the Strickland

standard for ineffective assistance of trial counsel: the petitioner

must demonstrate deficient performance and resulting prejudice.

Frances v. State, 143 So. 3d 340, 358 (Fla. 2014).

Change of venue decisions are subject to an abuse of

discretion standard. State v. Knight, 866 So. 2d 1195, 1209 (Fla.

2003). The movant must demonstrate two prongs: “(1) the extent

and nature of any pretrial publicity; and (2) the difficulty

encountered in actually selecting a jury.” Rolling v. State, 695 So.

2d 278, 285 (Fla. 1997). While “[m]edia coverage and publicity are

only to be expected when murder is committed,” the dispositive

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question is “not whether the prospective jurors possessed any

knowledge of the case, but, rather, whether the knowledge they

possessed created prejudice against [the defendant].” Davis v.

State, 461 So. 2d 67, 69 (Fla. 1984). Moreover, a change of venue is

not necessary if prospective jurors can assure the court during voir

dire that they are impartial despite their extrinsic knowledge. Id.

Hilton does not articulate any specific biased juror and,

therefore, does not offer specific allegations of deficient

performance. Furthermore, Hilton has not demonstrated that any

jurors who may have been biased were not properly rehabilitated.

Moreover, Hilton fails to specify how the denial of the change of

venue motion affected the outcome of his case. See Gonzalez v.

State, 253 So. 3d 526, 529 (Fla. 2018) (holding no ineffective

assistance occurred where the defendant did “not point to a specific

biased juror who served, nor . . . specifically allege which juror, if

any, was not properly rehabilitated during voir dire or . . . was

unable to [be struck] either for cause or by using [a] peremptory

strike[].”). Therefore, Hilton is not entitled to relief because his

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argument does not meet either prong of Strickland, and appellate

counsel was not ineffective for failing to raise this claim.

Judicial Bias

Hilton next argues that appellate counsel was ineffective for

failing to raise a judicial bias claim against Judge Hankinson.

Hilton argues that Judge Hankinson denigrated trial counsel and

treated trial counsel differently from counsel for the State.

However, a claim of judicial bias would have been procedurally

barred on direct appeal due to the lack of a motion to disqualify.

See Mungin v. State, 932 So. 2d 986, 994 (Fla. 2006) (“[A] claim of

judicial bias is procedurally barred on direct appeal if the defendant

fails to seek disqualification of the judge after having specific

knowledge of the grounds for disqualification.”); see also Schwab v.

State, 814 So. 2d 402, 407 (Fla. 2002). While trial counsel moved

for a mistrial, the requisite motion to disqualify was never filed. See

Thompson v. State, 990 So. 2d 482, 489 (Fla. 2008) (rejecting claim

that “a defendant is automatically entitled to postconviction relief

simply by demonstrating that the denial of a motion for

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disqualification, if one had been properly filed by counsel, would

have been reversed on appeal”).

Even if this claim would not have been procedurally barred,

Hilton nevertheless fails to demonstrate any clear instance of actual

bias. See Schwab, 814 So. 2d at 414 (concluding that judicial bias

claims based on adverse rulings are legally insufficient to warrant

disqualification). Hilton’s conclusory allegations of deficient

performance remain insufficient to satisfy Strickland. See Bradley

v. State, 33 So. 3d 664, 685 (Fla. 2010); see also Conahan v. State,

118 So. 3d 718, 734-35 (Fla. 2013). Furthermore, Hilton’s judicial

bias argument is related to Judge Hankinson’s actions towards trial

counsel, not himself. “[J]udicial remarks during the course of a

trial that are critical or disapproving of, or even hostile to, counsel,

the parties, or their cases, ordinarily do not support a bias or

partiality challenge.” Liteky v. United States, 510 U.S. 540, 555

(1994). Therefore, Hilton fails to demonstrate actual judicial bias.

Based upon the foregoing, this claim is procedurally barred,

and further, does not satisfy Strickland.

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Cause Challenges

Hilton next argues that appellate counsel was ineffective in not

raising the trial court’s denial of cause challenges concerning

biased jurors due to their knowledge of Hilton’s other crimes and

their predisposition to vote for the death penalty.

Similar to Hilton’s argument in his motion for postconviction

relief regarding cause challenges, this claim is governed by the

preservation requirements explained in Carratelli v. State, 961 So.

2d 312, 324 (Fla. 2007). See Salazar v. State, 188 So. 3d 799, 821

(Fla. 2016) (citing Carratelli, 961 So. 2d at 324). Again, under

Carratelli, the preservation of a challenge to a potential juror

requires more than one objection: (1) a contemporaneous objection

that puts the trial court on notice; and (2) a second objection before

the jury is sworn. See Carratelli, 961 So. 2d at 318. Failure to

lodge the second objection indicates abandonment of the initial

objection. See Zack v. State, 911 So. 2d 1190, 1204 (Fla. 2005)

(citing Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993)); see also,

e.g., Salazar, 188 So. 3d at 821.

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When a defendant preserves a cause challenge, he must

demonstrate on appeal both that the trial court erred in

determining the juror’s competency and that the denial of the

challenge resulted in prejudice. Carratelli, 961 So. 2d at 319 (citing

Conde v. State, 860 So. 2d 930, 941 (Fla. 2003)). Where the record

demonstrates a reasonable doubt about a juror’s ability to be

impartial, the trial court abused its discretion in denying the cause

challenge. Id. (citing Busby v. State, 894 So. 2d 88, 95 (Fla. 2004)).

Having demonstrated error, the defendant must then demonstrate

that the error requires reversal. Id. at 319. The “expenditure of a

peremptory challenge to cure the trial court’s improper denial of a

cause challenge constitutes reversible error if a defendant exhausts

all remaining peremptory challenges and can demonstrate that an

objectionable juror has served on the jury.” Id. (quoting Busby, 894

So. 2d at 96-97). Even where the reviewing court concludes that a

juror who actually served on the jury should have been stricken,

reversal is improper if the error has not been preserved. Id. at 319-

20 (citing Singer v. State, 109 So. 2d 7, 19 (Fla. 1959), (finding

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reasonable doubt as to one juror’s impartiality but refusing relief on

this claim because it was not preserved for review)).

Hilton’s claim is procedurally barred because it was already

raised in his motion for postconviction relief filed under rule 3.851,

in which Hilton faulted counsel for not preserving challenges to

prospective jurors—an alleged deficiency which, of course, would

have precluded a meritorious appeal of those issues. 3 Hilton argues

that his postconviction and habeas claims are different because one

raises concerns over asserting the claim and the other raises

concerns over preserving the claim. However, this distinction is

meritless. For example, in Schwab v. State, this Court held that a

habeas claim of judicial bias was procedurally barred because it

was raised in the motion for postconviction relief even though the

postconviction claim concerned the lack of the claim being asserted

3. Schwab v. State, 814 So. 2d 402, 414 (Fla. 2002)
(“Schwab’s first habeas claim is procedurally barred as it was raised
and rejected in our discussion of Schwab’s rule 3.850 appeal. . . .
Appellate counsel cannot be deemed ineffective for failing to raise
an issue that was not pursued or objected to at trial.”); see also
Parker v. Dugger, 550 So. 2d 459, 460 (Fla. 1989) (“[H]abeas corpus
petitions are not to be used for additional appeals on questions
which could have been . . . or were raised on appeal or in a rule
3.850 motion, or on matters that were not objected to at trial.”).

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by counsel and the habeas claim concerned the failure to preserve

the claim. 814 So. 2d at 409-14. Hilton is not entitled to relief.

Panel Strike

Hilton next argues that appellate counsel was ineffective for

failing to challenge the trial court’s denial of a motion to strike the

entire panel of jurors exposed to a prejudicial newspaper article

read aloud by a potential juror. The article included details about

Hilton’s previous murder conviction in Georgia.

Appellate counsel was not ineffective for failing to raise the

trial court’s denial of striking the panel because this claim has no

merit given that it was not properly preserved. Rutherford v. Moore,

774 So. 2d 637, 643 (Fla. 2000) (“If a legal issue ‘would in all

probability have been found to be without merit’ had counsel raised

the issue on direct appeal, the failure of appellate counsel to raise

the meritless issue will not render appellate counsel’s performance

ineffective.”) (quoting Williamson v. Dugger, 651 So. 2d 84, 86 (Fla.

1994)).

Again, to preserve a challenge regarding a juror strike, a party

must lodge two objections: (1) a contemporaneous objection that

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puts the trial court on notice; and (2) a second objection before the

jury is sworn. See Carratelli, 961 So. 2d at 318. Hilton’s trial

counsel made an initial objection to strike the entire voir dire panel

after discovering the article exposure. Trial counsel later attempted

to renew the objection, but at that point it was untimely because

the jury had already been sworn. Trial counsel had made a general

objection prior to the jury being sworn by simply stating: “I will

have the prior objections put on the record, Judge.” However, such

a general objection is insufficient to preserve a cause challenge or to

preserve a strike of the entire venire panel. See Young v. State, 141

So. 3d 161, 165 (Fla. 2013) (asserting that a boilerplate objection is

inadequate); see also Gore v. State, 964 So. 2d 1257, 1265 (Fla.

2007) (citing F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003)); State v.

Pacchiana, 289 So. 3d 857, 862 (Fla. 2020), cert. denied, 141 S. Ct.

173 (2020). Therefore, Hilton is not entitled to relief because any

claim raised by appellate counsel would have been meritless given

that trial counsel’s objections on this issue were untimely and too

generalized to properly preserve the argument.

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Motion to Continue

Hilton next argues that appellate counsel was ineffective for

not challenging the trial court’s denial of a motion to continue.

Trial counsel sought a continuance based on the magnitude of the

case and the State’s noncompliance with discovery guidelines.

Hilton mentions two motions for continuance filed by trial counsel,

the latter of which was filed on January 26, 2011—approximately

one week before the commencement of trial on February 2, 2011.

Trial counsel renewed the motion for continuance at the start of

trial on February 4, 2011.

The proper standard for reviewing a denial of a continuance is

abuse of discretion. See Bouie v. State, 559 So. 2d 1113, 1114 (Fla.

1990). Hilton fails to demonstrate how appellate counsel was

ineffective for failing to challenge the trial court’s denial of the

continuance because he fails to establish that he suffered any

prejudice. See Guillen v. State, 189 So. 3d 1004, 1008 (Fla. 3d DCA

2016) (citing Bouie, 559 So. 2d at 1114, and Randolph v. State, 853

So. 2d 1051, 1062 (Fla. 2003)). Specifically, Hilton fails to

demonstrate how the lack of a continuance impacted trial counsel’s

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ability to cross-examine the witnesses referenced in the renewed

motion. See Bouie, 559 So. 2d at 1114; see also Fennie v. State,

648 So. 2d 95, 97-98 (Fla. 1994). Hilton highlights the large

number of potential witnesses that trial counsel would like to have

interviewed and deposed prior to the start of trial. However, an

“undue burden” on counsel remains an insufficient basis to grant a

motion for continuance. See Guillen, 189 So. 3d at 1009.

Therefore, this claim would have been unlikely to succeed on

appeal.

Because Hilton fails to demonstrate deficient performance, this

Court need not conduct a prejudice analysis. Nevertheless, Hilton

only raises a conclusory allegation of ineffectiveness which remains

insufficient to satisfy the prejudice prong of Strickland. See Jones v.

State, 998 So. 2d 573, 584 (Fla. 2008).

Admitting Evidence

Hilton next argues that appellate counsel was ineffective for

failing to raise the trial court’s abuse of discretion in admitting into

evidence charred human bone fragments found at a campsite near

where Hilton was seen. Hilton claims that the prejudicial effect of

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this evidence outweighed the probative value. However, Hilton fails

to demonstrate deficient performance under Strickland because it is

likely that a reasonable juror could fairly infer from the charred

human bones that Hilton murdered the victim. While the State did

not establish that the bones came from the victim’s body, there was

significant other evidence which tied inferences together and

strongly suggested such. Therefore, Hilton fails to establish how

the absence of a challenge to the evidence of charred human bones

compromised the appellate process “to the degree that confidence in

the correctness of the appellate result is undermined,” and is not

entitled to relief. Nixon v. State, 932 So. 2d 1009, 1023 (Fla. 2006).

CONCLUSION

For the foregoing reasons, we affirm the order of the

postconviction court and deny the petition for writ of habeas

corpus.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, and
COURIEL, JJ., concur.
GROSSHANS, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

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An Appeal from the Circuit Court in and for Leon County,
James C. Hankinson, Judge
Case No. 372008CF000697AXXXXX
And an Original Proceeding – Habeas Corpus

Robert A. Morris of The Law Offices of Robert A. Morris, LLC,
Tallahassee, Florida,

for Appellant/Petitioner

Ashley Moody, Attorney General, and Michael T. Kennett, Assistant
Attorney General, Tallahassee, Florida,

for Appellee/Respondent

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