MANHARD v. DIXON

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
KENNETH LEE MANHARD,
Petitioner,
vs. 	Case No.: 5:25cv85/AW/ZCB
RICKY D. DIXON,
Respondent.
_______________________/
REPORT AND RECOMMENDATION
This is a federal habeas corpus case filed under 28 U.S.C. § 2254.
(Doc. 1). Petitioner is a prisoner in the Florida Department of Corrections
who is serving a twenty-nine-year prison sentence, followed by eleven
years of probation, for DUI manslaughter and leaving the scene of a crash
involving death. 	Respondent has answered the petition, and Petitioner
has replied. 	(Doc. 14; Doc. 16). 	For the reasons below, Petitioner is not
entitled to habeas relief.1
I. 	Factual Background
1 This matter may be resolved without an evidentiary hearing. Rule 8(a),
Rules Governing Section 2254 Cases.
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The evidence at trial established that Petitioner was escorted out
of Newby’s bar in Bay County, Florida at approximately 3:45 a.m. on
April 17, 2016. 	(Doc. 14-3 at 128-40). 	He was intoxicated, and Newby’s
head of security arranged for a cab to take Petitioner home. 	(Id.).
Petitioner refused the cab ride and instead drove away in a small white
car that had no visible damage. 	(Id.). 	As Petitioner drove away at 3:56
a.m., Newby’s head of security alerted the Bay County Sheriff’s Office to
Petitioner’s direction of travel. (Id.).
Moments later, Jerry Jones was hit by a car as he drove his scooter
across the Hathaway Bridge. 	(Id. at 186-210, 364-65). 	Other motorists
saw Jones lying in the road and his scooter in pieces. (Id. at 364-65, 373-
75). Jones was moving but “barely hanging on” and appeared to be dying.
(Id. at 374-75, 382). 	Jones had a “massive, massive” head injury and
broken legs. 	(Id.). 	Before anyone could get to Jones, other vehicles ran
him over. 	(Id. at 375-77). 	Jones died of multiple blunt injuries. 	(Id. at
328-31).
Within minutes of Jones being hit, Petitioner drove into the parking
lot of the Golden Nugget Gentleman’s Club. (Id. at 150-84, 660-70). The
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passenger 	side 	of 	his 	car 	was 	damaged, 	and 	the 	windshield 	was
smashed.2 	There was an impression/dent in the windshield and blood
and hair on it. 	Petitioner passed out in the driver’s seat of the car with
shattered glass in his lap. 	Petitioner was the only person in the car.
Employees of the Golden Nugget woke Petitioner. 	He said someone
threw a scooter at him. 	Petitioner then drove off. 	An employee called
911 while another employee followed Petitioner and reported his route.
Petitioner pulled into a gas station and got out of the car. The gas station
was one mile from where Jerry Jones was killed. (Id. at 210).
Law enforcement arrived at the gas station within seconds of
Petitioner’s arrival. Petitioner was standing outside the car. (Id. at 272).
His 	eyes 	were 	bloodshot 	and 	watery, 	his 	speech 	was 	slurred 	and
incoherent, and he was swaying. 	(Id. at 273). 	Petitioner denied driving
the car and then told officers a bird hit his windshield. 	(Id. at 281, 283,
288, 291, 293).
2 Photos of the car were admitted into evidence at trial. (Doc. 14-3 at 660-
70; Dc. 14-4 at 4-42).
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Officers observed paint from Jerry Jones’ scooter streaked across
the passenger side corner of Petitioner’s car. 	(Id. at 224). 	DNA testing
confirmed Jerry Jones’ blood on the car’s windshield. (Id. at 314-16).
Petitioner was subsequently charged in state court with leaving the
scene of a crash involving death, DUI manslaughter, and driving with a
suspended license causing death. (Doc. 14-2 at 225-26). He went to trial,
and a jury convicted him on all counts. 	(Doc. 14-3 at 100-498, 506-07).
The state court sentenced Petitioner to a total term of twenty-nine years’
imprisonment followed by eleven years of probation. (Id. at 529-35, 539-
41).
II. 	Procedural History
Following his conviction, Petitioner appealed to the Florida First
District Court of Appeal (First DCA). 	(Doc. 14-4 at 131-74). 	That court
affirmed. (Id. at 225-33); Manhard v. State, 282 So. 3d 941 (Fla. 1st DCA
2019). 	Petitioner sought review in the Florida Supreme Court, but that
court denied review. 	(Doc. 14-4 at 253-54, 267-77, 293). 	Petitioner also
unsuccessfully sought review in the U.S. Supreme Court. (Id. at 299-312,
346).
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Petitioner 	filed 	a 	habeas 	petition 	in 	the 	First 	DCA 	alleging
ineffective assistance of appellate counsel. 	(Id. at 371-80). 	The First
DCA denied the petition on the merits. (Id. at 382-83).
Petitioner then sought state postconviction relief under Florida
Rule of Criminal Procedure 3.850. (Id. at 465-89). The trial court denied
the Rule 3.850 motion, and Petitioner appealed to the First DCA. (Id. at
610-33, 643-68). The First DCA affirmed. (Id. at 671).
Petitioner then turned his postconviction efforts to federal court by
filing the current habeas corpus petition under 28 U.S.C. § 2254. 	(Doc.
1). 	His petition presents six claims. 	Each will be discussed below, but
first the Court will summarize the legal standard for § 2254 petitions.
III. 	Legal Standard for 28 U.S.C. § 2254 Petitions
Under § 2254(d), a federal court may invalidate a state criminal
conviction only if a state court decision on the merits (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.
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§ 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. See Shinn v. Ramirez, 596 U.S. 366, 377
(2022) (explaining that a federal habeas proceeding is not “a substitute
for ordinary error correction through appeal”) (cleaned up).
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
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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).
IV. 	Discussion
A. 	Ground One (verbatim): “Agument [sic] on the jail call
‘3.850’.”
Petitioner’s first claim is that the State altered a recorded jail phone
call published to the jury during trial, and trial counsel was ineffective
for stipulating to its authenticity. (Doc. 1 at 7-8). According to Petitioner,
he said, “I just got discovery” at the beginning of the jail call and then
described what the discovery showed. 	(Doc. 1 at 8; Doc. 10 at 4).3
3 According to the trial transcript, this is what was said during the jail
call:
Hey, 	what’s 	happening. 	What’s 	happening. 	Oh,
nothing. 	I just got -- what they found out, Huge (phonetic),
okay. 	First of all this guy should not have been, it’s a 49cc
bike, okay. Uh-huh. And this is a federal highway and a state
highway 45 miles-an-hour. 	With a 200-pound man on it he
shouldn’t have been going up that bridge. 	That thing can
only. This is what I said that night, Huge, somebody hit him
into me, he rolled up over my car, broke the windshield, I
freaked out, kept on driving, dude. Exactly. Right. And went
for drinks. And so what do you really have me on here. Yeah.
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Petitioner 	alleges 	the 	State 	omitted 	the 	word 	“discovery” 	from 	the
recording, so it sounded as if he was describing what he personally
experienced during the accident instead of what he learned through
discovery. 	(Id.). 	Petitioner 	alleges 	trial 	counsel 	should 	not 	have
stipulated to the authenticity of the recording. (Doc. 10 at 4). According
to Petitioner, he raised this claim on direct appeal and in his Rule 3.850
motion. (Doc. 1 at 8).
Respondent argues to the extent Petitioner asserts a standalone
challenge to admission of the jail call, he did not present that claim to the
state courts because he did not raise it on direct appeal. (Doc. 14 at 33).
Respondent argues Petitioner raised a related ineffective assistance of
counsel claim in his Rule 3.850 motion and postconviction appeal. (Id. at
Huge. Yeah, so what do you got me on. You got me on a minor
accident with a death. 	(inaudible) 	But I told them cops that
night somebody hit him into me. 	Okay. 	Yeah. 	My car, yes,
which hit my car. Yeah. Which caused this accident. Do you
see what I’m saying. Exactly.
(Doc. 14-3 at 233).
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33-34). According to Respondent, that claim is meritless for the reasons
stated by the state court. (Id. at 34-37).
Respondent is correct that Petitioner did not challenge admission
of the recorded jail call on direct appeal. 	Instead, Petitioner challenged
admission of a video and audio recording of him inside and near the
patrol car at the gas station. 	(Doc. 14-4 at 166-69). 	Petitioner’s reply
brief clarified he was not challenging admission of the jail call. 	(Id. at
214). So, to the extent Petitioner is making a direct challenge to the trial
court’s 	admission 	of 	the 	recording 	of 	the 	jail 	call, 	that 	claim 	is
unexhausted for purposes of habeas review.4
If a petitioner has not exhausted his claim in state court and it “is
clear from state law that any future attempts at exhaustion would be
futile,” 	then 	federal 	courts 	“may 	treat 	unexhausted 	claims 	as
4 The exhaustion requirement is found in 28 U.S.C. § 2254(b)(1). 	It
provides that an “application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not be
granted unless it appears that—(A) the applicant has exhausted the
remedies available in the courts of the State.” 	This means that a “state
prisoner must give the state courts an opportunity to act on his claims
before he presents those claims to a federal court in a habeas petition.”
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
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procedurally defaulted.” 	Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir.
1999). 	And a procedurally defaulted claim will not be considered by a
federal habeas court unless “a petitioner can show (1) cause for the
default and (2) actual prejudice resulting from the alleged constitutional
violation.” Sealey v. Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1365
(11th Cir. 2020).
Here, Petitioner would not be permitted to raise the argument
today in state court. 	See Smith v. State, 453 So. 2d 388, 389 (Fla. 1984)
(holding that claims that could have been raised on direct appeal are
generally foreclosed from consideration in postconviction proceedings);
see also Denson v. State, 775 So. 2d 288, 290 (Fla. 2000) (issues that were
or could have been raised on direct appeal or in a prior postconviction
proceeding cannot be litigated in a petition for extraordinary relief).
Thus, it has been procedurally defaulted. And Petitioner does not argue
that he can satisfy the cause and prejudice exception to the procedural
bar. 	See McCoy v. Newsome, 953 F.2d 1252, 1260 (11th Cir. 1992)
(explaining 	that 	a 	“federal 	habeas 	petitioner 	bears 	the 	burden 	of
demonstrating” cause and prejudice for his procedural default). Because
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a standalone challenge to admission of the jail call is unexhausted and
procedurally defaulted, Petitioner is not entitled to habeas relief on that
aspect of Ground One. 	The Court will next discuss the ineffective
assistance of counsel aspect of Ground One.
Petitioner raised this ineffective assistance claim as Ground Two of
his third amended Rule 3.850 motion. 	(Doc. 14-4 at 478-80). 	The state
postconviction 	court 	applied 	the 	standard 	set 	out 	in 	Strickland 	v.
Washington, 466 U.S. 668 (1984) and denied Petitioner’s claim. The court
reasoned that Petitioner failed to satisfy the deficient performance and
prejudice prongs of that standard. 	(Id. at 617-20). 	Petitioner appealed,
and the First DCA affirmed. (Id. at 671).
Ineffective 	assistance 	of 	counsel 	claims 	are 	governed 	by 	the
Strickland standard. 	As the state court explained (Doc. 14-4 at 613), to
prevail 	under 	Strickland 	a 	petitioner 	must 	show 	that 	(1) 	counsel’s
performance was constitutionally deficient, and (2) prejudice resulted.
466 U.S. at 687. 	Under the deficiency prong, the inquiry focuses on
“whether 	counsel’s 	assistance 	was 	reasonable 	considering 	all 	the
circumstances.” 	Id. at 688. 	Trial counsel is “strongly presumed to have
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rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” 	Id. at 690. 	As for the
prejudice prong, the inquiry focuses on whether the petitioner has shown
there is a “reasonable probability” that the outcome would have been
different absent counsel’s deficient performance. Id. at 694. To make the
prejudice 	showing, 	the 	“likelihood 	of 	a 	different 	result 	must 	be
substantial, not just conceivable.” 	Harrington v. Richter, 562 U.S. 86,
112 (2011).5
Looking through the First DCA’s unexplained decision to the trial
court’s reasoned one, see Wilson v. Sellers, 584 U.S. 122, 125 (2018),
Petitioner 	has 	not 	demonstrated 	that 	the 	state 	court 	unreasonably
5 Both the Strickland standard and the standard for relief under § 2254
are “highly deferential.” 	Richter, 562 U.S. at 105. 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.
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applied Strickland.6 	That is because there is no reasonable probability
the jury would have reached a different verdict on DUI manslaughter or
leaving the scene of a crash if they knew Petitioner was simply describing
evidence he learned through discovery.
Aside 	from 	the 	jail 	call, 	the 	jury 	heard 	ample 	evidence 	that
Petitioner drove a vehicle involved in a crash, knew he had been involved
in a crash, knew or should have known there was serious injury or death,
and willfully failed to stop at the scene. 	(Doc. 14-3 at 440-41 (jury
instructions explaining the elements of leaving the scene of a crash
involving death)); Fla. Stat. § 316.027(2)(c); Manhard, 282 So. 3d at 945
(explaining the elements). The State presented testimony that Petitioner
was away from the scene, he was in the driver’s seat with a smashed
windshield and glass on him, there was blood and hair on the windshield,
and he claimed a scooter hit his windshield.7
6 Petitioner cannot satisfy the “contrary to” prong of § 2254(d)(1) because,
as previously noted, the state court correctly recognized the Strickland
standard as the controlling legal standard. (Doc. 14-4 at 613).
7 	The 	nature 	of 	the 	vehicle 	damage 	may 	be 	used 	to 	establish 	the
defendant knew or reasonably should have known that a person was at
least injured in the crash. 	See Manhard, 282 So. 3d at 945 (citation
omitted).
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The jury also heard ample evidence that Petitioner drove while
intoxicated and caused or contributed to the cause of Jerry Jones’ death.
(Doc. 14-3 at 443-44 (jury instructions explaining the elements of DUI
manslaughter)); Fla. Stat. § 316.193(1)(a), (3)(c)3. 	The State presented
testimony that Petitioner was intoxicated when he left a bar before being
involved in the crash. 	Moreover, Petitioner’s car had paint on it from
Jerry Jones’ scooter, and Petitioner’s car impacted Jerry Jones’ body with
such force that it smashed the windshield and left blood and hair on it.
Considering the overwhelming evidence of Petitioner’s guilt, there
is no reasonable probability the jury would have reached a different
verdict on either charge if they heard Petitioner say, “I just got discovery”
at the beginning of the jail phone call. 	For this reason, the state court
reasonably 	applied 	Strickland 	in 	rejecting 	Petitioner’s 	ineffective
assistance of counsel claim.8
8 	Because 	the 	state 	court’s 	application 	of 	the 	prejudice 	prong 	was
reasonable, the Court need not address the state court’s assessment of
the deficient performance prong. Pope v. Sec’y for Dep’t of Corr., 680 F.3d
1271, 1284 (11th Cir. 2012).
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B. 	Ground Two (verbatim): 	“Defendant argument [sic]
that the State never proved the elements of the offense
of leaving the scene of a crash involving death.”
In Ground Two, Petitioner argues the evidence presented at trial
was insufficient to satisfy the elements of leaving the scene of a crash
involving death. 	(Doc. 1 at 10; Doc. 16 at 5-6). 	He alleges multiple
vehicles hit the victim, and the State failed to prove “who did it.” 	(Id.).
Petitioner also alleges the State failed to prove he had knowledge of the
crash or death, especially considering the evidence that he was “out of his
mind” or “high.” (Id.).
Respondent argues this claim is unexhausted and procedurally
defaulted. 	(Doc. 14 at 15-16, 37). 	More specifically, Respondent argues
Petitioner raised only a state law-based challenge to the sufficiency of the
evidence on direct appeal but did not present a federal constitutional
challenge. (Id.).
Before discussing whether Respondent is correct, the Court will
summarize the exhaustion requirement for § 2254 habeas cases. 	The
Court will then explain how it applies to the claim Petitioner has raised
in Ground Two.
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Under § 2254(b)(1), a state prisoner must give the state courts an
opportunity to act on his claims before he presents those claims to a
federal court in a habeas petition. O’Sullivan, 526 U.S. at 842. To satisfy
this exhaustion requirement, a petitioner must have “fairly presented”
the substance of his federal claim to the state courts. Lucas v. Sec’y, Dep’t
of Corr., 682 F.3d 1342, 1351 (11th Cir. 2012). A petitioner fairly presents
the substance of his federal claim when he describes the claim “such that
[the state courts] are permitted the opportunity to apply controlling legal
principles to the facts bearing upon his constitutional claim.” 	Kelley v.
Sec’y, Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004) (cleaned up).
The exhaustion requirement is not met “merely” because “the
federal habeas petitioner has been through the state courts . . . nor is it
sufficient that all the facts necessary to support the claim were before the
state courts or that a somewhat similar state-law claim was made.”
McNair v. Campbell, 416 F.3d 1291, 1302-07 (11th Cir. 2005) (cleaned
up). 	Instead, exhaustion requires that the federal legal basis for the
claim “be presented face-up and squarely; the federal question must be
plainly defined. Oblique references which hint that a theory may be
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lurking in the woodwork will not turn the trick.” Kelley, 377 F.3d at 1345
(cleaned up); see also Pringle v. Sec’y, Fla. Dep’t of Corr., No. 21-14318,
2024 WL 3936915, at *4 (11th Cir. Aug. 26, 2024) (explaining that under
Kelly and McNair, “it is not enough for a habeas petitioner to merely set
out the factual substance of a federal claim—the petitioner must also put
the state courts on notice that the petitioner is asserting a federal claim
by indicating the invocation of a federal legal standard.”) (cleaned up).
Here, in Petitioner’s direct appeal brief, he challenged the trial
court’s denial of his motion for judgment of acquittal claiming that the
evidence was insufficient to sustain a conviction for leaving the scene of
a crash involving death. (Doc. 14-4 at 157-65). 	Petitioner’s brief cited
only Florida state statutes and Florida state case law in support of this
argument. 	(Id.). 	Petitioner never mentioned the federal legal standard
for sufficiency of the evidence claims brought under the Fourteenth
Amendment—i.e., the standard found in Jackson v. Virginia, 443 U.S.
307 (1979). Likewise, the State’s brief to the First DCA relied exclusively
on Florida statutes and Florida case law. 	(Doc. 14-4 at 186-94). 	And,
understandably, the First DCA’s opinion rejecting Petitioner’s argument
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relied exclusively on Florda state law. (Id. at 225-30). Because Petitioner
did not clearly indicate to the First DCA that he was asserting a violation
of federal law, he did not exhaust a federal sufficiency of the evidence
claim on direct appeal. 	See Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d
449, 451, 458-59 (11th Cir. 2015) (holding that petitioner did not fairly
present a federal sufficiency of the evidence claim where his direct appeal
brief relied on state law and did not cite any provisions of federal law).
The 	next 	question 	is 	whether 	Petitioner 	exhausted 	a 	federal
sufficiency of the evidence claim in the Rule 3.850 proceeding. Petitioner
says he did. 	(Doc. 1 at 10-11; Doc. 16 at 6). 	The state court record says
otherwise. 	Petitioner 	did 	not 	raise 	a 	substantive 	challenge 	to 	the
sufficiency of the evidence in his Rule 3.850 motion; instead, he raised
only a related claim of ineffective assistance of counsel based on counsel’s
alleged failure to adequately argue the motion for judgment of acquittal.
(Doc. 14-4 at 469-78). For purposes of exhaustion, a substantive claim is
“separate and distinct” from an ineffective assistance of counsel claim.
LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237, 1260 n.24 (11th Cir.
2005).
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Any attempt by Petitioner to now return to state court to exhaust a
federal challenge to the sufficiency of the evidence would be procedurally
barred. 	See Smith, 453 So. 2d at 389; 	Denson, 775 So. 2d at 290.
Accordingly, any federal due process claim raised in Ground Two has
been 	procedurally 	defaulted. 	See 	Preston, 	785 	F.3d 	at 	462 	(“[The
petitioner’s] failure to exhaust means that his federal claim has been
procedurally 	defaulted.”). 	Petitioner 	has 	not 	established—or 	even
attempted to establish—cause and prejudice or a manifest miscarriage of
justice as required to excuse the procedural default. 	Thus, Petitioner’s
federal challenge to the sufficiency of the evidence is unexhausted and
procedurally defaulted.
The Court is reluctant to close the door on Ground Two without
discussing 	a 	related 	claim 	of 	ineffective 	assistance 	of 	counsel 	that
Petitioner appears to assert by referencing his Rule 3.850 motion and
Strickland. (Doc. 1 at 10-11; Doc. 16 at 6). 	In his Rule 3.850 motion,
Petitioner argued counsel was ineffective for failing to adequately argue
a motion for judgment of acquittal on the leaving-the-scene count. (Doc.
14-4 at 469-78).
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The state postconviction court denied this claim because Petitioner
failed to satisfy both prongs of 	Strickland. 	(Id. 	at 613-17). 	More
specifically, the trial court found that defense counsel made a thorough
motion for judgment of acquittal as to the leaving-the-scene count. 	(Id.
at 615). 	The court also concluded there was no prejudice because the
State presented sufficient evidence to satisfy the elements of that charge.
(Id. at 615-17). 	The First DCA summarily affirmed the trial court’s
decision.
Looking through the First DCA’s unexplained decision to the trial
court’s reasoned one, see Wilson, 584 U.S. at 125, Petitioner has not
demonstrated the state court unreasonably applied Strickland. 	Here is
the reason why.
Petitioner’s ineffective assistance claim rests on the idea that there
was insufficient evidence to prove his guilt of the leaving-the-scene
charge, and the trial court would have granted a motion for judgment of
acquittal on that charge if defense counsel had adequately made that
argument. But the state court already decided that, as a matter of state
law, the evidence was sufficient to survive a motion for judgment of
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acquittal on that charge. 	(Doc. 14-4 at 615-17). 	And when the state
courts already have said how the issue would have been resolved under
state law had trial counsel done what Petitioner argues she should have
done, the federal Court should not second-guess them. 	Herring v. Sec’y,
Dep’t of Corr., 397 F.3d 1338 1354-55 (11th Cir. 2005).9
Because 	the 	evidence 	was 	sufficient 	to 	survive 	a 	motion 	for
judgment of acquittal on the leaving-the-scene charge, the state court
reasonably rejected Petitioner’s ineffective assistance claim for failure to
satisfy 	Strickland’s 	prejudice 	prong. 	And 	because 	the 	state 	court
reasonably applied Strickland, Petitioner is not entitled to habeas relief
on the ineffective assistance of counsel claim raised in Ground Two.
9 See also Williams v. Florida, No. 16-15863-G, 2018 WL 11300394, at *6
(11th Cir. Oct. 12, 2018) (affirming denial of habeas relief on claim of
ineffective assistance based on counsel’s failing to make motion for
judgment of acquittal because “in denying the Rule 3.850 motion, the
state court determined that, under state law, the evidence was sufficient
to be presented to a jury, and this court must defer to the state court’s
determinations regarding state law.”).
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C. 	Ground Three: 	“Defendant argues the State violated
his 	rights 	when 	they 	allowed 	unauthorized
communication with a sequestered jury.”
In Ground Three, Petitioner argues his rights were violated when
two 	jurors 	were 	observed 	speaking 	with 	the 	bailiff 	and 	a 	State
investigator during a break at trial. 	(Doc. 1 at 12). 	Petitioner argues
defense counsel should have requested that the jurors be questioned and
also should have moved for a mistrial. (Id.).
Respondent argues Petitioner did not raise any issue on direct
appeal 	concerning 	the 	jurors’ 	contact 	with 	the 	bailiff 	and 	State
investigator. 	(Doc. 14 at 42). 	Respondent argues Petitioner raised a
related claim of ineffective assistance of counsel in his Rule 3.850 motion,
and the state court reasonably rejected it for failure to satisfy Strickland.
(Id. at 42-44).
To the extent Petitioner is making a standalone claim of juror
misconduct, that claim was not exhausted. 	The reason is because
Petitioner did not raise that issue on direct appeal. (See Doc. 14-4 at 131-
74). Any attempt by Petitioner to exhaust a federal claim regarding the
juror misconduct issue would now be procedurally barred. 	See Smith,
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453 So. 2d at 389; Denson, 775 So. 2d at 290. 	And Petitioner has not
shown cause, prejudice, or a miscarriage of justice as necessary to
overcome the procedural default. 	Accordingly, any such claim raised in
Ground Three is unexhausted and procedurally defaulted.
Petitioner’s ineffective assistance of counsel claim was exhausted
because he presented it in Ground Three of his Rule 3.850 motion. (Doc.
14-4 at 480-81). 	The state court rejected the claim because Petitioner
failed to satisfy Strickland’s deficient performance prong. (Id. at 621-22).
The state court made factual findings regarding what occurred at trial
concerning juror contact with the bailiff and investigator, and the trial
transcript confirms those findings. (Doc. 14-4 at 621-22; Doc. 14-3 at 360-
62). Here is what happened.
During a recess in the middle of trial, defense counsel notified the
court that she saw two jurors standing with a bailiff and one of the State’s
investigators, Dan Bates. 	Defense counsel reported that she saw them
talking, but counsel did not know what they were talking about. 	The
trial 	court 	offered 	to 	question 	the 	two 	jurors, 	but 	defense 	counsel
suggested the court question the bailiff “without interfering with the jury
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or making them uncomfortable.” (Doc. 14-3 at 361-62; Doc. 14-4 at 621).
The trial judge questioned the bailiff, who acknowledged he had been
standing with the jurors outside the courtroom: “Yes, sir, they were cold
so they were standing in the sunshine where the sun was coming in.”
(Doc. 14-3 at 362; Doc. 14-4 at 621-22). The judge asked if there was any
conversation about the case, and the bailiff responded, “No sir, we were
watching a boat backing in and out, it looked like it had a jet motor on it
instead of a regular motor and we were watching it out the lagoon, that’s
what we were talking about.” 	(Doc. 14-3 at 362; Doc. 14-4 at 622). 	The
judge asked defense counsel if she wished to inquire further, and counsel
said no. (Id.).
The question for the Court is whether the state court reasonably
concluded defense counsel’s performance was not deficient. 	The answer
is yes―a fairminded jurist could 	conclude defense counsel exercised
reasonable professional judgment in her handling of the issue involving
the two jurors.
“Due process does not require a new trial every time a juror has
been placed in a potentially compromising situation.” 	Smith v. Phillips,
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455 U.S. 209, 217 (1982). 	Instead, “the remedy for allegations of juror
partiality is a hearing in which the defendant has the opportunity to
prove actual bias.” 	Id. at 215.
Here, the trial court questioned the bailiff about the circumstances
of the interaction with the two jurors and provided the parties an
opportunity to participate. 	The court’s questioning revealed that the
interaction had nothing to do with Petitioner’s case―instead, they talked
about a boat navigating the lagoon. 	In these circumstances, defense
counsel had no meritorious basis to move for a mistrial or any other type
of relief. 	See Locke v. Sec’y, Fla. Dep’t of Corr., No. 5:15cv55/RV/EMT,
2016 WL 3647795, at *35 (N.D. Fla. May 12, 2016), adopted 2016 WL
3647875 	(holding 	that 	state 	court 	reasonably 	rejected 	petitioner’s
ineffective assistance claim based on counsel’s failure to move for mistrial
after juror’s wife was observed speaking with the victims; counsel’s
performance was not deficient because the facts did not suggest the
contact intruded upon the jury’s impartiality).
The state court’s adjudication of Petitioner’s ineffective assistance
of counsel claim (the only claim exhausted claim) was not contrary to or
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an unreasonable application of Strickland. 	It also was not based upon
an unreasonable determination of the facts. For these reasons, Petitioner
is not entitled to habeas relief on Ground Three.
D. 	Ground Four (verbatim): 	“Defendant argues that the
defense won the motion in limine.”
Petitioner next claims defense counsel was ineffective with respect
to the State’s alleged violations of the trial court’s ruling on Petitioner’s
motion in limine. 	(Doc. 1 at 15; Doc. 16 at 8). 	According to Petitioner,
defense counsel objected to the alleged violations but failed to move for a
mistrial. (Id.).
Respondent argues this claim is unexhausted and procedurally
barred because the state court rejected it as insufficiently pled. (Doc. 14
at 44-45). The state court reasoned:
Defendant fails to allege any supporting facts indicating
the nature of the evidence that trial counsel objected to.
Without any supporting facts, it is impossible for the Court to
determine whether counsel’s performance was deficient for
not additionally requesting a curative instruction or moving
for a mistrial, and it is similarly impossible to determine
whether Defendant might have been prejudiced.
As the Response points out, Defendant [sic] allegations
are conclusory and he “has not sufficiently demonstrated or
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alleged with specificity any error on the part of counsel or
prejudice...as required by Strickland.”
(Doc. 14-4 at 630). The First DCA affirmed without discussion.
“[A] Florida state court’s dismissal of a post-conviction claim for
facial insufficiency constitutes―at least for purposes of a procedural
default analysis―a ruling on the merits that is not barred from [federal]
review.” 	Pope, 680 F.3d at 1285-86 (cleaned up). 	The Court, therefore,
rejects Respondent’s procedural default argument. 	See Dinnal v. Sec’y,
Fla. Dep’t of Corr., No. 19-13376-F, 2020 WL 8677834, at *10 (11th Cir.
Sept. 8, 2020) (holding that ineffective assistance of counsel claim was
not procedurally defaulted where petitioner raised it in his Rule 3.850
motion and the state court struck it as facially insufficient).
Moving to the merits, the state court’s rejection of Petitioner’s claim
for failing to satisfy both Strickland prongs was reasonable. As the state
court found, Petitioner did not allege what evidence violated the trial
court’s ruling on defense counsel’s motion in limine. 	(Doc. 14-4 at 486-
87). Petitioner refers to defense counsel’s statement, “Just with previous
objections.” (Doc. 16 at 8). Counsel made that statement when the State
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sought to introduce a video of Petitioner inside Trooper Tavares’ patrol
car. (Doc. 14-3 at 270, 274).
The in-car video was one of the subjects of defense counsel’s motion
in limine. 	(Doc. 14-2 at 228-29). 	Defense counsel sought to exclude
specific portions of the video. 	(Id.). 	At the hearing on the motion, the
State agreed to redact all of those portions. 	(Doc. 14-3 at 76-78). 	The
parties agreed that all of the objectionable moments occurred just after
the officer informed Petitioner of the charges. 	(Id. at 77-78). 	At trial,
that is where the prosecutor stopped the video. (Id. at 274-96).
Petitioner failed to show that defense counsel had a meritorious
basis to move for a mistrial on the ground that the State violated the
resolution of the motion in limine. Without this showing, the state court
reasonably 	determined 	Petitioner 	failed 	to 	satisfy 	the 	deficient
performance and prejudice prongs of Strickland. 	See Brownlee v. Haley,
306 F.3d 1043, 1046 (11th Cir. 2002) (holding that counsel was not
ineffective for failing to raise issues lacking in merit). For these reasons,
Petitioner has not established his entitlement to habeas relief on Ground
Four.
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E. 	Ground Five (verbatim): “The Defendant argument on
the affidavit and warrant issue.”
In Ground Five, Petitioner challenges the search and seizure of the
car he was driving. (Doc. 1 at 17-18; Doc. 16 at 9-10). Petitioner alleges
the warrant application failed to mention that several vehicles struck
Jerry Jones. (Id.). He alleges it also failed to tie either the car or him to
the scene of the crash. 	(Id.). 	And he alleges the warrant was misdated
because it was dated six months prior to the date of the crash. (Id. at 16
at 9). 	The search and seizure of the car resulted in photographs and
physical evidence of damage to the car and discovery of the victim’s
blood/DNA on the windshield. According to Petitioner, he challenged the
validity of the search warrant on direct appeal and in his Rule 3.850
motion. (Doc. 1 at 18).
Respondent argues Petitioner did not raise any challenge to the
search warrant on direct appeal. (Doc. 14 at 45-46). Respondent argues
Petitioner raised a related claim of ineffective assistance of counsel in his
Rule 3.850 motion, and the state court reasonably rejected it for failure
to satisfy Strickland. (Id. at 46-48).
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Respondent is correct that Petitioner did not challenge the search
warrant on direct appeal. (Doc. 14-4 at 131-73). Petitioner’s failure to do
so renders a standalone challenge to the constitutionality of the warrant
unexhausted. Petitioner may not now return to state court to exhaust a
constitutional claim because Florida law does not allow a second direct
appeal. 	Thus, Petitioner's standalone challenge to the validity of the
warrant that authorized the search and seizure of the car has been
procedurally defaulted. 	See Bailey, 172 F.3d at 1303 (explaining that a
claim 	is 	an 	unexhausted 	claim 	is 	procedurally 	defaulted 	when 	the
unexhausted claim would now be procedurally barred in state court).
And Petitioner has not established cause and prejudice, or a manifest
miscarriage of justice as necessary to evade procedural default. For these
reasons, Petitioner is not entitled to habeas relief on his standalone
challenge to the search warrant.10
10 Even if the claim had not been procedurally defaulted, Petitioner would
not have been entitled to relief because of Stone v. Powell, 428 U.S. 465
(1976). 	Under Stone, if the “State has provided an opportunity for full
and fair litigation of a Fourth Amendment claim, a state prisoner may
not be granted federal habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was introduced at his
trial.” Id. at 482. Here, Petitioner had the opportunity to raise and fully
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This leaves Petitioner’s related claim of ineffective assistance of
counsel. 	The claim was exhausted in Ground Three of his Rule 3.850
motion. (Doc. 14-4 at 482-83). The state court rejected the claim because
Petitioner failed to satisfy Strickland’s deficient performance prong. (Id.
at 622-24). 	The state court found that defense counsel filed a motion to
suppress that challenged the search warrant on the grounds Petitioner
argued in his Rule 3.850 motion. (Id. at 624).
The state court’s findings are confirmed by the record. 	Defense
counsel filed a motion to suppress and argued the very grounds that
Petitioner claims she should have argued. 	(Doc. 14-2 at 137-57, 171-94,
197-216). Because defense counsel made the arguments for suppression
litigate his Fourth Amendment challenge to the warrant in state court.
Defense counsel filed a motion to suppress evidence discovered during
the search of the car. (Doc. 14-1 at 137-57, 171-95). The trial court held
a hearing on the motion. 	(Id. at 197-209). 	The trial court denied the
motion. 	(Id. at 207, 209). 	Petitioner had the opportunity to challenge
this ruling on direct appeal, but he did not. 	(Doc. 14-4 at 131-73).
Because Petitioner had a full and fair opportunity to litigate his Fourth
Amendment claim in state court, federal habeas review is precluded. See
Caver v. State of Ala., 577 F.2d 1188, 1193 (5th Cir. 1978) (explaining
that “Stone v. Powell precludes federal habeas corpus consideration of
[the Fourth Amendment claim] whether or not [Petitioner] avail[ed]
himself of that opportunity.”).
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32
that Petitioner claims counsel was ineffective for failing to make, the
state court reasonably rejected Petitioner’s ineffective assistance claim
under Strickland’s deficient performance prong. Petitioner, therefore, is
not entitled to habeas relief on the ineffective assistance of counsel claim
presented in Ground Five.
F. 	Ground Six (verbatim): 	“Defendant argues they failed
to 	meet 	the 	elements 	of 	316.193 	and 	the 	jury
instructions are wrong.”
In Petitioner’s last claim, he argues the evidence was insufficient to
support his conviction for DUI manslaughter and that defense counsel
was ineffective for not seeking a judgment of acquittal on that charge.
(Doc. 1 at 20; Doc. 16 at 11). Petitioner also alleges the jury instructions
were wrong, but he neither identifies what instructions were wrong nor
explains how they were wrong. 	(Id.). 	He states he presented these
arguments on direct appeal and in his Rule 3.850 motion. (Doc. 1 at 20-
21).
Respondent argues to the extent Petitioner presents a standalone
challenge 	to 	the 	sufficiency 	of 	the 	evidence 	to 	support 	the 	DUI
manslaughter conviction, the claim is unexhausted and procedurally
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barred because it was not raised on direct appeal. 	(Doc. 14 at 54-55).
Respondent argues Petitioner’s related ineffective assistance of counsel
claim 	is 	without 	merit 	for 	the 	reasons 	explained 	by 	the 	state
postconviction court. (Id. at 55-59).
Respondent is correct on the exhaustion issue. 	Petitioner’s initial
brief 	on 	direct 	appeal 	did 	not 	raise 	any 	error 	with 	respect 	to 	the
sufficiency of the evidence to support the DUI manslaughter conviction.
(Doc. 14-4 at 131-74). Petitioner’s brief also did not raise any error with
respect to any of the jury instructions. (Id.). Because Petitioner did not
give the state courts an opportunity to review either of these alleged
errors, the claims are unexhausted and procedurally barred. 	Petitioner
has 	not 	alleged 	cause 	and 	prejudice 	or a 	miscarriage 	of 	justice 	as
necessary to excuse his procedural default. 	That means he may not
obtain habeas relief on his standalone challenges to the sufficiency of the
evidence on the DUI charge or the jury instructions.
This leaves Petitioner’s claim that counsel was ineffective for failing
to adequately argue a motion for judgment of acquittal on the DUI
manslaughter count. 	He argues the evidence was insufficient to prove
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34
each of the three elements of the charge―that he was impaired, that he
drove the car, or that he caused or contributed to Jerry Jones’s death.
Petitioner unsuccessfully made this claim in Ground Five of his
Rule 3.850 motion. (Doc. 14-4 at 483-86). The state court found neither
deficient performance nor prejudice under Strickland. (Id. at 625-29). In
reaching that conclusion, the state court explained that defense counsel
made a motion for judgment of acquittal arguing that the State failed to
prove each element of the DUI manslaughter charge. 	(Id. at 625). 	The
state court further explained the State presented sufficient evidence to
prove all three elements of DUI manslaughter. (Id. at 625-29).
The state court’s determination was a reasonable application of
Strickland. A trial court will not grant a motion for judgment of acquittal
unless, after viewing the evidence in the light most favorable to the State,
no rational trier of fact could find the essential elements of the crime
beyond a reasonable doubt. Simmons v. State, 934 So. 2d 1100, 1111 (Fla.
2006). 	“The 	trial 	court 	has 	the 	task 	of 	reviewing 	the 	evidence 	to
determine whether competent, substantial, evidence exists from which
the jury could infer guilt to the exclusion of all other inferences.” 	State
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35
v. Law, 559 So. 2d 187, 189 (Fla. 1989). “[A] judgment of acquittal should
not be granted where the State has produced competent, substantial
evidence to support every element of the crime.” Gay v. State, 607 So. 2d
454, 457 (Fla. 1st DCA 1992).
The issue of what evidence is sufficient to establish a state offense
is a matter of state law. And the state court here found the evidence was
sufficient, such that any additional argument on the motion for judgment
of acquittal would have been meritless. This Court will defer to that state
court determination on a matter of state law. 	See Vega v. Sec’y, Dep’t of
Corr., No. 17-14778, 2021 WL 4439245, at *6 (11th Cir. Sept. 28, 2021)
(rejecting 	habeas 	petitioner’s 	claim 	that 	counsel 	was 	ineffective 	for
failing to move for judgment of acquittal because whether evidence was
sufficient rested on an interpretation of state law); see also Combs v.
Sec’y, Dep’t of Corr., No. 19-14406-G, 2020 WL 2319889, at *2 (11th Cir.
Mar. 6, 2020) (“[C]ounsel was not ineffective for arguing in support of a
judgment of acquittal only that there was no forced entry to sustain a
burglary conviction, as we defer to the state court’s application of its own
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36
law in determining that there was sufficient evidence on all the elements
to allow the charge to go to the jury.”).
In any event, the trial testimony, as accurately summarized by the
state postconviction court, shows there was ample evidence Petitioner
was 	impaired, 	drove 	the 	car 	involved 	in 	the 	crash, 	and 	caused 	or
contributed to the victim’s death. (Doc. 14-4 at 627-29). Because a lawyer
does not provide constitutionally deficient performance by failing to make
lengthy arguments on clearly doomed motions, there is no merit to
Petitioner’s final ground for habeas relief. 	See Mathis v. Dixon, No.
4:20cv304, 2024 WL 2337645, at *4 (N.D. Fla. Apr. 10, 2024), adopted
2024 WL 2330023 (N.D. Fla. May 22, 2024) (finding that counsel did not
provide ineffective assistance by making 	a less detailed motion for
judgment of acquittal because the evidence was plainly sufficient to
survive a motion for acquittal and there was no reason to believe a more
detailed argument by counsel would have resulted in the motion being
granted).
Because Petitioner has not shown that the state postconviction
court’s decision was based upon an unreasonable factual determination
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37
or 	was 	contrary 	to 	or 	an 	unreasonable 	application 	of 	Strickland,
Petitioner is not entitled to federal habeas relief on the ineffective
assistance of counsel claim raised in Ground Six of his petition.
V. 	Conclusion
For the reasons discussed above, Petitioner’s § 2254 petition should
be denied.
VI. 	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). “At
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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). 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 petition for writ of habeas corpus (Doc. 1) be DENIED.
2. 	A certificate of appealability be DENIED.
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At Pensacola, Florida, this 5th 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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