Dowe v. Secretary Fla. Dept. of Corrections

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 23-60022-CIV-SMITH/REID
KISHAWN DOWE,
Petitioner,
v.
MARK INCH, SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
Respondent.
REPORT AND RECOMMENDATION
ON PETITION FOR WRIT OF HABEAS CORPUS
Kishawn Dowe (“Petitioner”) has filed a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254, challenging the constitutionality of his conviction and sentence entered in the
Seventeenth Judicial Circuit, Broward County, Case No. 06-009164CF10A. [ECF No. 1]. The
petition has been referred to the Undersigned by the Honorable Rodney Smith for a report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), (C) and the Rules Governing Habeas
Corpus Petitions in the United States District Courts. [ECF No. 3].
After reviewing the pleadings, for the reasons stated in this Report, the Undersigned
recommends that the petition be DENIED.
I. Factual and Procedural History
A. Trial Court Proceedings
Petitioner was charged with one count of Murder in the Second Degree with a Firearm and
three counts of Aggravated Assault with a Firearm. [ECF No. 7-1 at 9–11; ECF No. 1 at 1].
Following a trial in 2007, Petitioner was found guilty of all charges. [ECF No. 1 at 2; ECF No. 6
at 2]. Petitioner subsequently appealed to the Fourth District Court of Appeal (“Fourth District”),
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which affirmed the conviction. [ECF No. 1 at 2; ECF No. 6 at 2]; see Dowe v. State, 39 So. 3d 407
(Fla. 4th DCA 2010). Petitioner then sought a discretionary appeal to the Florida Supreme Court,
which quashed the Fourth District’s decision. [ECF No. 1 at 2; ECF No. 6 at 3]; see Dowe v. State,
139 So. 3d 884 (Fla. 2014). On remand, the Fourth District reversed Petitioner’s conviction for
second-degree murder and remanded the case for a new trial and resentencing. [ECF No. 1 at 3];
see Dowe v. State, 162 So. 3d 35 (Fla. 4th DCA 2014).
Petitioner was retried in 2015, and found guilty of manslaughter; the jury made the specific
finding that Petitioner committed the crime with a firearm and discharged the firearm. [ECF No.
1 at 3; ECF No. 6 at 3; ECF No. 7-1 at 47–48]. Ultimately, Petitioner was sentenced to thirty years
for manslaughter and to five years for each aggravated assault count to be served consecutively
with count one but concurrently with each other. [ECF No. 1 at 3; ECF No. 6 at 3; ECF No. 7-1 at
57–68].
B. Direct Appeal
Petitioner appealed his conviction and sentence, and on June 15, 2017, the Fourth District
affirmed the trial court’s judgment and sentence in a per curiam opinion. Dowe v. State, 227 So.
3d 591 (Fla. 4th DCA 2017), see also [ECF No. 7-1 at 106]. Mandate was issued on July 6, 2017.
[ECF No. 7-1 at 108].
C. Petition for Writ of Habeas Corpus
On July 18, 2017, Petitioner, proceeding pro se, filed a Petition for Writ of Habeas Corpus
in the Fourth District, alleging that his appellate counsel was ineffective. [ECF 7-1 at 110–28].
The Fourth District denied the petition on August 18, 2017. [Id. at 130].
D. Rule 3.850 Motion
On August 29, 2017, Petitioner filed a pro se motion to vacate his judgment and sentence
under Florida Rule of Criminal Procedure 3.850. [ECF No. 1 at 4; ECF No. 6 at 4; ECF 7-1 at
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132]. Petitioner’s Rule 3.850 motion was based on seven claims of ineffective assistance of
counsel and one claim of cumulative error. [ECF No. 7-1 at 132–66].
The trial court denied Petitioner’s motion based on the grounds discussed in the State’s
response, incorporated by reference. [ECF No. 7-3 at 58]. Petitioner appealed the motion’s denial
to the Fourth District, and the court affirmed the trial court’s opinion per curiam. [Id. at 111]; see
Dowe v. State, 280 So. 3d 488 (Fla. 4th DCA 2019). Petitioner filed a pro se motion for rehearing,
but it was denied on October 31, 2019. [ECF No. 7-3 at 113–17]. The mandate was then issued on
November 19, 2019. [Id. at 119].
E. Rule 8.800 Motion
On October 21, 2020, Petitioner filed a motion pursuant to Rule 3.800(a) to Correct Illegal
Sentence with the assistance of counsel. [ECF No. 1 at 5; ECF No. 7-3 at 121–32]. Petitioner
argued that:
Applying Apprendi v. New Jersey, 530 U.S. 466 (2000), to the operation of section
775.087(1) renders Defendant’s sentence illegal. Section 775. 087 (1) forbids
reclassification of offenses for which the use of a firearm or weapon is an essential
element, but by its very operation, every felony reclassified under this section
constitutes an aggravated form of the core offense. The use of a firearm or weapon
is always an essential element of the new aggravated offense. Thus, any sentence
imposed pursuant to this section is illegal-including Defendant’s.
[ECF No. 7-3 at 124]. Petitioner’s motion was denied, and the Fourth District affirmed the denial.
[Id. at 195–96, 201]; see Dowe v. State, 337 So. 3d 337 (Fla. 4th DCA 2022). Mandate was issued
on May 13, 2022. [Id. at 203].
While the appeal of the Rule 3.800(a) Motion to Correct Illegal Sentence was pending,
Petitioner filed another Rule 3.800(a) Motion to Correct Illegal Sentence pro se, which the trial
court denied on April 4, 2022. [Id. at 207–11; ECF No. 7-4 at 6–8]. Petitioner failed to file an
appeal in a timely manner regarding his pro se Rule 3.800(a) Motion to Correct Illegal Sentence;
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thus, Petitioner moved to file a belated appeal, which the Fourth District denied on the merits.
[ECF No 7-4 at 10–25, 32]. Petitioner then filed a motion for rehearing with the assistance of
counsel, which the Fourth District denied. [Id. at 34–38, 52]. A second petition for belated appeal
was filed, which the Fourth District granted. [Id. at 54–58, 75]. That appeal is still pending. [ECF
No. 1 at 8].
F. Instant Petition
Petitioner then filed this § 2254 petition. [ECF No. 1]. Petitioner raises the following four
claims:
Claim 1: Petitioner’s sentence is illegal under Apprendi v. New Jersey, 530 U.S.
466 (2000) and Sattazahn v. Pennsylvania, 537 U.S. 101 (2003), where those cases
render the firearm used in Petitioner’s case an “essential element,” and where the
statute under which he was sentenced precludes reclassification where the firearm
is an essential element of the offense.
Claim 2: Counsel was ineffective for failing to object to inadequate jury
instructions on justifiable use of deadly force.
Claim 3: Counsel was ineffective for improperly arguing the weight of the evidence
in a motion for judgment of acquittal and failing to file a motion for a new trial in
which counsel’s weight of the evidence argument was proper.
Claim 4: Counsel was ineffective for failing to call Veronica King as a witness to
corroborate Petitioner’s version of events.
See generally [Id.]. Respondent filed a response, and Petitioner filed a reply. [ECF Nos. 6, 11].
II. Statute of Limitations and Exhaustion
A. Timeliness
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The parties disagree on whether the petition was timely filed. Petitioner argues that the
statute of limitations to file for habeas relief was tolled by his second motion to correct illegal
sentence—which Petitioner filed pro se on March 15, 2022— and is still pending a decision from
the Fourth District regarding Petitioner’s belated appeal. [ECF No. 1 at 33–34]. In the alternative,
Petitioner argues that he is entitled to equitable tolling because he has “demonstrated diligence in
exhausting his state remedies as determined by the Fourth District Court of Appeal[,]” and “[t]he
loss of his right to have his case heard before this Court is an extraordinary consequence caused
by circumstances beyond Petitioner’s control.” [Id. at 34–36].
On the other hand, Respondent argues that after Petitioner’s judgment and sentence were
entered, “Petitioner did not directly appeal any of the issues raised in this Petition. Thus, the
limitations clock on the subject claims arguably began to run on November 13, 2015—the time
within which he could have appealed those claims.” [ECF No. 6 at 10]. Moreover, Respondent
contends that Petitioner’s second motion to correct illegal sentence did not toll the statute of
limitations period because “it does not pertain to any of the issues raised in this Petition.” [Id. at
12, fn. 5]. Additionally, Respondent contends that equitable tolling should not apply because
“Petitioner’s issue related to designation as a habitual felony offender is currently pending before
the Fourth District in case number 4D22-2756.” [Id.].
In the reply, Petitioner asserts that his claims are not untimely for failing to raise them on
direct appeal after his sentence and judgment were entered. More specifically, Petitioner states that
“[a] claim of ineffective assistance of counsel cannot be raised on direct appeal but for the narrow
instances where ‘the ineffectiveness is obvious on the face of the appellate record, the prejudice
caused by the conduct is indisputable, and the tactical explanation for the conduct is
inconceivable.’” [ECF No. 11 at 5–6] (quoting Lambert v. State, 811 So. 2d 805, 807 (Fla. 2d DCA
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2002)). In response to Respondent’s argument that Petitioner’s second motion to correct illegal
sentence did not toll the statute of limitations period, Petitioner argues that Respondent offered no
caselaw to support such argument. [Id. at 6–7]. Petitioner further argues that even though
“Respondent contends that Petitioner’s claims are time-barred because, although he raised,
appealed, and therefore exhausted his claims, his next filing related to the raised issues was filed
over three years later. But related to the issues in the instant Petition is not the legal standard this
Court considers regarding timeliness.” [Id. at 7]. Petitioner then renewed his argument contending
that the belated appeal to the denial of his second motion to correct illegal sentence tolled the
statute of limitations period, and that if it did not, then this Court should apply equitable tolling to
his claims. [Id. at 8–9].
Petitioner correctly contends that his claims are not untimely for failure to raise them on
direct appeal. “Generally, under Florida law, claims of ineffective assistance of counsel are not
cognizable on direct appeal. However, such a claim may be raised on direct appeal when the
ineffectiveness is apparent on the face of the record.” White v. Sec’y, Fla. Dep’t of Corr., No. 22-
11110, 2024 U.S. App. LEXIS 2791, at *3 n.2 (11th Cir. Feb. 7, 2024) (citing Bruno v. State, 807
So. 2d 55, 63 (Fla. 2001)); see also Gonzalez v. United States, No. 16-81124-Civ, 2017 U.S. Dist.
LEXIS 207528, at *21 (S.D. Fla. Dec. 15, 2017) (citations omitted) (“Ineffective assistance of
counsel claims, however, are generally not cognizable on direct appeal and are properly raised by
a §2255 motion regardless of whether they could have been brought on direct appeal.”). Here,
Petitioner properly raised his ineffective assistance of counsel claims in his Rule 3.850 motion
[ECF 7-1 at 134–44, 147–56]; thus, Petitioner’s motion is not untimely for failure to raise the
claims in this Petition on direct appeal.
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Next, this Court must determine whether Petitioner’s second pro se motion to correct
illegal sentence tolled the statutory limitations period. The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) established a one-year statute of limitations for filing a federal
habeas corpus petition. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) states the following:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1) (emphasis added). In this case, section 2244(d)(1)(a) applies. However,
“[t]he time during which a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending shall not be counted toward any
period of limitation under this subsection.” Dean v. Sec’y for the Dep’t of Corr., 361 F. App’x 38,
41 (11th Cir. 2010) (quoting 28 U.S.C.S. § 2244(d)(2)). “[A] Rule 3.800(a) motion to correct an
illegal sentence is a motion for collateral relief that tolls the limitations period.” Vezina v. Jones,
No. 17-60745-CV-BLOOM, 2018 U.S. Dist. LEXIS 90136, at *5 (S.D. Fla. May 29, 2018) (citing
Wall v. Kholi, 562 U.S. 545 (2011)); see also Rodriguez v. Fla. Dep’t of Corr., No. 20-10340-B,
2020 U.S. App. LEXIS 17924, at *3 (11th Cir. June 5, 2020) (“Timely Fla. R. Crim. P. 3.800(a)
and Rule 3.850 motions toll the one-year AEDPA clock.”). Therefore, Petitioner’s second Rule
3.800(a) motion filed on March 15, 2022, tolled the statute of limitations period.
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“Conversely, filing a petition for belated appeal of an order denying state collateral relief
does not toll the federal limitation period unless and until the petition for belated appeal is granted.”
Rodriguez, 2020 U.S. App. LEXIS 17924, at *3–4 (citing Espinosa v. Sec’y, Dep’t of Corr., 804
F.3d 1137, 1141 (11th Cir. 2015)). Petitioner did not file a timely appeal to his pro se motion to
correct illegal sentence; therefore, in this case, the statute of limitations period became untolled on
May 13, 2022, when the Fourth District issued mandate on the denial of Petitioner’s first Rule
3.800(a) motion—giving Petitioner ten days to file for habeas relief under 28 U.S.C.S. § 2244. See
Rodriguez, 2020 U.S. App. LEXIS 17924, at *4 (citing Nyland v. Moore, 216 F.3d 1264, 1267
(11th Cir. 2000)) (“In Florida, a state post-conviction appeal remains pending until the state
appellate court’s mandate issues.”). Petitioner’s requests for belated appeal regarding his second
Rule 3.800 motion were not granted until October 10, 2022, [ECF No. 7-4 at 75]—after the time
period to file for federal habeas review had expired. Thus, the Petition is untimely.
Nonetheless, “AEDPA’s one-year limitations period is subject to equitable tolling.” Harp
v. Jones, No. 16-CV-22854, 2017 U.S. Dist. LEXIS 93959, at *7 (S.D. Fla. June 16, 2017) (citing
Holland v. Florida, 560 U.S. 631 (2010)). “Equitable tolling is available only if the petitioner
shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way’ and prevented timely filing.” Id. at *7–8 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). “Equitable tolling is, therefore, ‘an extraordinary remedy
limited to rare and exceptional circumstances and typically applied sparingly.” Baptiste v. United
States, No. 23-21752-CIV-MARTINEZ, 2024 U.S. Dist. LEXIS 22856, at *7 (S.D. Fla. Feb. 7,
2024) (quoting Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017)). Additionally,
“[a] petitioner bears the ‘burden of establishing his entitlement to equitable tolling; his supporting
allegations must be specific and not conclusory.’” Johnson v. Fla. Dep’t of Corr., No. 21-cv-
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61325, 2021 U.S. Dist. LEXIS 155550, at *9 (S.D. Fla. Aug. 17, 2021) (quoting Cole v. Warden,
Ga. State Prison, 768 F.3d 1150, 1158 (11th Cir. 2014)).
In this case, Petitioner satisfies the first prong of the analysis. Petitioner has exercised due
diligence in pursuing his rights. Petitioner was convicted in 2015, and he appealed his judgment
and sentence in a timely manner. [ECF No 7-1 at 55–68, 77]. After the Fourth District affirmed
his conviction, Petitioner filed a petition alleging ineffective assistance of appellate counsel on
July 24, 2017, and the Fourth District denied that petition on August 18, 2017. [Id. at 106, 110–
28, 130]. Subsequently, on September 5, 2017, Petitioner filed his Rule 3.850 motion, which the
trial court denied, and Petitioner timely appealed the decision to the Fourth District. [Id. at 132–
66; ECF No. 7-3 at 58–59, 62]. When the Fourth District affirmed the trial’s court denial of
Petitioner’s Rule 3.850 motion, he sought a rehearing, which was denied on October 31, 2019.
[ECF No. 7-3 at 111–17]. Almost a year later, on October 21, 2020, Petitioner filed his first motion
to correct illegal sentence, which the trial court denied, and Petitioner timely appealed. [Id. at 121–
32, 195, 198–99]. Ultimately, Petitioner’s appeal for his first motion to correct illegal sentence
was decided on April 14, 2022. [Id. at 201]. On March 15, 2022, Petitioner filed his second motion
to correct illegal sentence, for which Petitioner filed a notice of inquiry on June 15, 2022, with the
trial court when he had not received a resolution. [Id. at 207–11; ECF No. 7-4 at 20]. Once
Petitioner learned that the trial court had denied his second motion to correct illegal sentence, he
filed two belated appeals. The last belated appeal was granted and is still pending in front of the
Fourth District. [ECF No. 7-4 at 10–75]. Petitioner then filed the instant Petition on January 6,
2023—almost four months after his second belated appeal was granted. [ECF No. 1]. This record
demonstrates that Petitioner has been in nearly constant litigation since his judgment and sentence
were entered in 2015, thus demonstrating that Petitioner has been pursuing his rights diligently.
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The second prong of the test is satisfied as well. Petitioner did not receive notice that his
second motion to correct illegal sentence had been denied, which constitutes an extraordinary
circumstance outside of Petitioner’s control that prevented him from timely filing. See Webster v.
McDonough, No. 06-61126-Civ, 2007 U.S. Dist. LEXIS 100690, at *11 (S.D. Fla. Feb. 5, 2007)
(“The courts have held that equitable tolling might be appropriate in situations where the petitioner
did not receive notification of the disposition of a relevant state proceeding.”). According to the
Eleventh Circuit, “[a] lengthy delay between the issuance of a necessary order and an inmate’s
receipt of it might provide a basis for equitable tolling if the petitioner has diligently attempted to
ascertain the status of that order and if the delay prevented the inmate from filing a timely federal
habeas corpus petition.” Drew v. Dep’t of Corrections, 297 F.3d 1278, 1288 (11th Cir. 2002),
overruled on other grounds by Sykosky v. Crosby, 187 F. App’x 953 (11th Cir. 2006). Here,
Petitioner was diligent because he filed a notice of inquiry two months after receiving no resolution
on his second Rule 3.800 motion. Therefore, Petitioner is entitled to equitable tolling for the time
between May 23, 2022, and October 10, 2022, and his Petition will be considered timely. See
Green v. McNeil, No. 09-23000-Civ, 2010 U.S. Dist. LEXIS 103312, at *16 (S.D. Fla. July 15,
2010) (holding that the petitioner was entitled to equitable tolling when the record supported
petitioner’s contention that he did not receive notice from the appellate court of the disposition of
his appeal, that he acted diligently in attempting to ascertain the status of his appeal from the
beginning of the appeal and when the petitioner demonstrated a causal connection between the
appellate court’s failure to provide him with a copy of the mandate and the untimely filing of his
§2254 petition); see also Knight v. Schofield, 292 F.3d 709, 711 (11th Cir. 2002) (holding that
petitioner was entitled to equitable tolling when he “was assured that the court would contact him,
then demonstrated diligence in pursuing information when it did not do so.”).
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B. Exhaustion
Petitioner and Respondent also dispute whether the claims are exhausted. Petitioner states
that all claims have been properly exhausted. [ECF No. 1 at 17, 21, 28, 30]. On the other hand,
Respondent argues that claim 1 is unexhausted because it could have been raised on direct appeal
and that when Petitioner appealed his Rule 3.800 motion, he did not file a brief; thus, the claim is
procedurally barred. [ECF No. 6 at 15]. Regarding claim 2, Respondent makes no argument
concerning exhaustion but contends the claim is procedurally defaulted because it could have been
raised on direct appeal. [Id. at 16–17]. Further, “[b]ecause Petitioner did not sufficiently present a
federal constitutional claim before the state court” and claims 3 and 4 were not raised on direct
appeal, they appear not to have been properly exhausted and are procedurally defaulted. [Id. at 17–
18]. In reply, Petitioner contends that claim 1 is exhausted because Petitioner was not required to
file a brief. [ECF No. 11 at 9–10]. Regarding claims 3 and 4, Petitioner alleges that the claims are
adequately exhausted because ineffective assistance of counsel claims are not cognizable on direct
appeal. [Id. at 22, 32].
“Before seeking § 2254 habeas relief in federal court, a petitioner must exhaust all state
court remedies available for challenging his conviction.” Lucas v. Sec’y, Dep’t of Corr., 682 F.3d
1342, 1351 (11th Cir. 2012) (citing 28 U.S.C. § 2254(b), (c)). To exhaust a federal claim, the
petitioner must have “fairly presented [it] to the state courts.” McNair v. Campbell, 416 F.3d 1291,
1302 (11th Cir. 2005). “The Supreme Court has suggested that a litigant could do so by including
in his claim before the state appellate court ‘the federal source of law on which he relies or a case
deciding such a claim on federal grounds, or by simply labeling the claim “federal.”’” Lucas, 682
F.3d at 1351 (quoting Baldwin v. Reese, 541 U.S. 27, 32 (2004)). “Accordingly, a petitioner cannot
exhaust by merely setting forth facts in a state habeas petition, but must also specify the federal
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source of law on which he relies.” Sloan v. Caldwell, No. CV 115-118, 2016 U.S. Dist. LEXIS
176937, at *19–20 (S.D. Ga. Oct. 26, 2016) (quotations omitted). Thus, “[a] petitioner must make
his claims in a manner that provides the state courts with the opportunity to apply controlling law
to his federal claim.” Id. at *20 (citations omitted). In Florida, exhaustion is ordinarily
accomplished on direct appeal. “If not, it may be accomplished by the filing of a Rule 3.850 motion
and an appeal from its denial, or, in the case of a challenge to a sentence, by the filing of a Rule
3.800 motion and an appeal from its denial.” Felipe v. Inch, No. 19-14284-ROSENBERG, 2020
U.S. Dist. LEXIS 248326, at *11 (S.D. Fla. Dec. 10, 2020) (internal citations omitted).
A federal claim is procedurally defaulted “where: (1) the state court applies an independent
and adequate ground of state procedure to reject the petitioner’s federal claim; or (2) the petitioner
never raised a claim in state court, and it is obvious that the unexhausted claim would now be
procedurally barred.” Lewis v. Sec’y, Dep’t of Corr., No. 19-13939-A, 2020 U.S. App. LEXIS
16090, at *2–3 (11th Cir. May 19, 2020). “The procedurally correct manner for raising (1) a claim
of trial court error is in a direct appeal, [and] (2) a claim of ineffective assistance of trial counsel
is in a post-conviction proceeding[.]” Johnson v. Sec’y, Dep’t of Corr., No. 8:13-cv-381-SDM-
TGW, 2024 U.S. Dist. LEXIS 54592, at *7 (M.D. Fla. Mar. 27, 2024). Florida courts “routinely
observe the rule that issues appropriate for direct appeal are not cognizable in a postconviction
motion.” Walker v. Sec’y, Dep’t of Corr., No. 8:13-cv-3034-T-36JSS, 2017 U.S. Dist. LEXIS
16935, at *62 (M.D. Fla. Feb. 7, 2017) (citations omitted).
Petitioner correctly asserts that claim 1 is exhausted and not procedurally defaulted.
Petitioner does not assert that the trial court erred in entering his sentence; instead, Petitioner
argues that his sentence is illegal because Fla. Stat. § 775.087(1) is unconstitutional. See [ECF No.
1 at 10] (“[Petitioner does not] dispute that the jury found him guilty of manslaughter, and also
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found that he both possessed and discharged a firearm during the commission of the offense.
Rather, he argues that § 775.087(1) is unconstitutional on its face.”). Therefore, Petitioner did not
have to raise his claim on direct appeal and properly raised it in a Rule 3.800 motion. Additionally,
Respondent’s argument that claim 1 fails for failure to file a brief is without merit. Florida Rule of
Appellate Procedure 9.141 states that “[b]riefs are not required, but the appellant may serve an
initial brief within 30 days of filing the notice of appeal.” Fla. R. App. P. 9.141(c); see also
Kirkland v. Sec’y, Dep’t of Corr., No. 8:13-cv-1545-T-27TGW, 2016 U.S. Dist. LEXIS 8792, at
*15 n.2 (M.D. Fla. Jan. 25, 2016) (citing Fla. R. App. P. 9.141(b)(2)(C) (“In Florida, when a
postconviction motion is summarily denied, an appellate brief is optional.”). Thus, claim 1 is
properly exhausted and not procedurally defaulted.
Regarding claims 2, 3, and 4, Petitioner is correct that the claims are properly exhausted.
In Florida, claims of ineffective assistance of counsel are not cognizable on direct appeal unless
the ineffectiveness is apparent from the record. See Bradberry v. State, 922 So. 2d 457, 458 (Fla.
4th DCA 2006) (internal citations omitted); Robards v. State, 112 So. 3d 1256, 1267 (Fla. 2013)
(internal quotations omitted) (stating that ineffective assistance of counsel claims “may be treated
on the merits on direct appeal only in the rare instance where (1) the ineffectiveness is apparent on
the face of the record, and (2) it would be a waste of judicial resources to require the trial court to
address the issue.”). Therefore, claims 2, 3, and 4 are not procedurally defaulted for failure to raise
them on direct appeal.
Additionally, “[t]he exhaustion requirement is not met if a defendant fails to alert the state
appellate court that the trial court allegedly violated a federally protected right.” Johnson, 2024
U.S. Dist. LEXIS 54592, at *5. “A litigant can easily indicate his claim’s federal law basis in a
petition or brief, for example, by citing to the federal source of law on which he relies or simply
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labeling the claim ‘federal.’” Baldwin, 541 U.S. at 29 (2004). In this case, Petitioner alerted the
lower courts of the federal nature of his claims by citing Strickland v. Washington, 466 U.S. 668
(1984), in his Rule 3.850 motion. In his motion for post-conviction relief in the state court,
Petitioner states that his claims “are governed by the United States Supreme Court’s decision in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).” [ECF No. 7-1
at 133]. In addition, Petitioner consistently cites Strickland throughout his initial brief, appealing
the denial of his post-conviction motion. See [ECF No. 7-3 at 81–106]. Therefore, Respondent’s
position that Petitioner’s arguments were “devoid of any federal authority,” thus making claims 3
and 4 unexhausted for failure to present a federal constitutional claim before the state court, is
erroneous. Hence, this Court determines that Petitioner’s claims are properly exhausted.
III. Legal Standard
A. Standard of Review
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
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 with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim--
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
Under § 2254(d)(1)’s “contrary to” clause, courts may grant the writ if the state court: (1)
reaches a conclusion on a question of law opposite to that reached by the Supreme Court; or (2)
decides a case differently than the Supreme Court has on materially indistinguishable facts.
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Williams v. Taylor, 529 U.S. 362, 412–13 (2000). Under its “unreasonable application” clause,
courts may grant the writ if the state court identifies the correct governing legal principle from the
Supreme Court’s decisions but unreasonably applies that principle to the facts of the case. Id. at
413. “[C]learly established Federal law” consists of Supreme Court “precedents as of the time the
state court renders its decision.” Greene v. Fisher, 565 U.S. 34, 38 (2011) (citation and emphasis
omitted).
An unreasonable application of federal law differs from an incorrect application of federal
law. Renico v. Lett, 559 U.S. 766, 773 (2010) (citation omitted). Under this standard, “a state
prisoner must show that the state court’s ruling . . . was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Courts “apply this same standard when evaluating the reasonableness of a state court’s
decision under § 2254(d)(2).” Landers v. Warden, 776 F.3d 1288, 1294 (11th Cir. 2015) (citations
omitted). That is, “[a] state court’s . . . determination of the facts is unreasonable only if no
fairminded jurist could agree with the state court’s determination . . . .” Holsey v. Warden, Ga.
Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012) (citations and internal quotation marks
omitted).
Under § 2254(d), where the decision of the last state court to decide a prisoner’s federal
claim contains no reasoning, federal courts must “‘look through’ the unexplained decision to the
last related state-court decision that does provide a relevant rationale.” Wilson v. Sellers, 138 S.
Ct. 1188, 1192 (2018). “It should then presume that the unexplained decision adopted the same
reasoning.” Id.
B. Ineffective Assistance of Counsel Principles
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To establish a claim of ineffective assistance of counsel, the petitioner must show that
counsel’s performance was deficient and that the deficient performance prejudiced his defense.
Strickland, 466 U.S. at 687. To prove deficiency, he must show that counsel’s performance “fell
below an objective standard of reasonableness” as measured by prevailing professional norms. Id.
at 688. To prove prejudice, he must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
It is “all the more difficult” to prevail on a Strickland claim under § 2254(d). Harrington,
562 U.S. at 105. As the standards that Strickland and § 2254(d) create are both “highly deferential,”
review is “doubly” so when the two apply in tandem. Id. (citation omitted). Thus, “[w]hen §
2254(d) applies, the question is not whether counsel’s actions were reasonable.” Id. Rather, “[t]he
question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Id.
Petitioner has the burden of proof on his ineffectiveness claim, Holsey, 694 F.3d at 1256,
as well as the burden of proof under § 2254(d), Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(citation omitted).
IV. Discussion
A. Claim 1
First, Petitioner argues that his sentence is illegal under Supreme Court precedent. The jury
found Petitioner guilty of manslaughter, which is punishable by fifteen years; however, the jury
also found that Petitioner was in possession of a firearm when he committed the crime. [ECF No.
7-1 at 47–48]. Due to the jury’s finding, Petitioner’s conviction was reclassified under Florida
Statute Section 775.087(1), which converted his conviction to a first-degree felony punishable by
thirty years. [ECF No. 1 at 9]. Section 775.087(1) states that:
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(1) Unless otherwise provided by law, whenever a person is charged with a felony,
except a felony in which the use of a weapon or firearm is an essential element, and
during the commission of such felony the defendant carries, displays, uses,
threatens to use, or attempts to use any weapon or firearm, or during the
commission of such felony the defendant commits an aggravated battery, the felony
for which the person is charged shall be reclassified as follows: . . . .
(b) In the case of a felony of the second degree, to a felony of the first degree.
FLA. STAT. § 775.087(1)(b). Thus, it is Petitioner’s position that:
Applying Apprendi v. New Jersey, 530 U.S. 466 (2000), to the operation of §
775.087(1) renders Petitioner’s sentence illegal. Section 775.087(1) forbids
reclassification of offenses for which the use of a firearm or weapon is an essential
element, but by its very operation, every felony reclassified under this section
constitutes an aggravated form of the core offense. The use of a firearm or weapon
is always an essential element of the new aggravated offense. Thus, any sentence
imposed pursuant to this section is illegal—including Petitioner’s.
[ECF No. 1 at 9]. Petitioner contends that Florida has failed to acknowledge that section 775.087(1)
violates Apprendi because the courts have found that as part of the sentencing code it “neither
constitutes a discrete offense, nor independently forms an element of a substantive offense.” [Id.
at 10].
Additionally, Petitioner argues that under Sattazahn v. Pennsylvania, 537 U.S. 101 (2003),
“the Court stated that ‘if the existence of any fact, (other than a prior conviction) increases the
maximum punishment that may be imposed on a defendant, that fact—no matter how the State
labels it— constitutes an essential element [of the crime].’” [Id. at 12] (quoting Sattazahn, 537
U.S. at 111). Therefore, according to Petitioner under Supreme Court precedent, “Petitioner’s use
of a firearm is indisputably an essential element[,]” and since section 775.087(1) prohibits
“reclassification where the use of a firearm is an essential element of the offense, Petitioner’s
sentence violates his right to due process of law under the Fourteenth Amendment, violates clearly
established federal law as determined by the Supreme Court of the United States, is illegal, and
must be vacated.” [Id. at 16]. Further, Petitioner states that section 775.087(1) is unconstitutional
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on its face because it “creates an offense, then forbids reclassification of that offense by its own
language[.]” [Id. at 17].
On the other hand, Respondent argues that section 775.087(1) does not conflict with
Apprendi. In Florida, manslaughter is defined as “[t]he killing of a human being by the act,
procurement, or culpable negligence of another, without lawful justification . . . and in cases in
which such killing shall not be excusable homicide or murder” FLA. STAT. § 782.07(1). Thus,
possession of a firearm is not an element of the crime of manslaughter. It is Respondent’s position
that “[a]lthough use of a firearm is a fact to be determined by the jury, that enhancement for
sentencing purposes does not turn use of a firearm into an ‘essential element’ of manslaughter.”
[ECF No. 6 at 24]. According to Respondent “had Petitioner been found to not have used a firearm,
he would not have been absolved of the manslaughter conviction, just the felony reclassification.”
[Id.].
In his reply, Petitioner contends that he “was not convicted of the core offense of
manslaughter, he was convicted of the enhanced offense of manslaughter with a firearm[.]” [ECF
No. 11 at 13]. Petitioner then explains that the use of a firearm is an essential element because
under Apprendi, “the relevant inquiry is one not of form, but of effect — does the required finding
expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?”
[Id. at 14–15] (quoting Apprendi, 530 U.S. at 494). Petitioner concludes that “no matter where the
essential element of the offense of which Petitioner was convicted resides, be it the substantive
criminal statute or Florida’s sentencing code, section 775.087(1) creates the same essential
elements of felony offenses for which it purports to preclude from reclassification[,]” thus making
the statute unconstitutional. [Id. at 17–18].
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Petitioner raised this claim in his counseled Rule 3.800 motion to correct illegal sentence.
[ECF No. 7-3 at 121–32]. The trial court rejected it, stating that:
[T]he State correctly point[ed] out in its written response to the Defendant’s motion
to correct illegal sentence that the Florida Supreme Court has previously found
F.S.S. 775.087 constitutional and also that as a habitual felony offender the
Defendant’s sentence of 30 years is legal. This Court adopts the reasoning
contained in the State’s written response to the Defendant’s motion to correct illegal
sentence[.]
[ECF No. 7-3 at 195–96]. The State’s response incorporated into the trial court order stated that
because the “jury specifically found [Petitioner] to have actually possessed and discharged a
firearm causing great bodily harm, (Ex.B, verdict August 13, 2015), this Court did not commit a
constitutional error in reclassifying [Petitioner’s] offense.” [Id. at 139] (footnote omitted). The
State also argued that due to Petitioner’s status as a habitual felony offender, the court could have
sentenced him to thirty years; thus, his sentence is not illegal. [Id. at 139–40].
Guided by its previous decision in Jones v. United States, 526 U.S. 227 (1999), the United
States Supreme Court held in Apprendi that:
“[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury
trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that
increases the maximum penalty for a crime must be charged in an indictment,
submitted to a jury, and proven beyond a reasonable doubt.” The Fourteenth
Amendment commands the same answer in this case involving a state statute.
Apprendi, 530 U.S. at 476 (quoting Jones, 526 U.S. at 243, n. 6). Florida courts have consistently
ruled that Section 775.087(1) does not permit vicarious enhancement. See State v. Rodriguez, 602
So. 2d 1270, 1271 (Fla. 1992) (“[We] answer the question in the negative, finding, in accordance
with the district court decision, that section 775.087(1) does not, by its terms, allow for vicarious
enhancement because of the action of a codefendant”); Chase v. State, 74 So. 3d 1138, 1139 (Fla.
2d DCA 2011) (reversing the reclassification of the defendant’s conviction for aggravated battery
where there was no evidence that the defendant possessed or used a weapon during the commission
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of the offense); Campbell v. State, 935 So. 2d 614, 618 (Fla. 3d DCA 2006) (finding that it was
error to reclassify the defendant’s conviction for conspiracy to traffic in cocaine under section
775.087(1) where there was no evidence that the defendant had actual physical or personal
possession of a weapon at any time during the conspiracy); Parker v. State, 906 So. 2d 1273, 1273
(Fla. 5th DCA 2005) (noting that enhancement under section 775.087(1) is impermissible unless
the defendant actually possesses a weapon during the commission of a crime).
“Florida courts have also addressed the issue of facts that must be submitted to a jury in
order for a sentence enhancement pursuant to Section 775.087 to be valid under Apprendi.” Portal
v. Jones, No. 14-22498-C IV, 2018 U.S. Dist. LEXIS 107271, at *22 (S.D. Fla. June 26, 2018).
See Amos v. State, 833 So. 2d 841, 843 (Fla. 4th DCA 2002) (concluding that because “the jury
did not find that the shooting caused great bodily harm, the enhancement of [the defendant’s]
sentence beyond the statutory maximum for aggravated battery violates Apprendi.”). “The
sentence enhancement created in section 775.087(1) is not itself a substantive offense or an
element of any underlying offense.” Birch v. State, 248 So. 3d 1213, 1219 (Fla. 1st DCA 2018).
“While the use of a firearm constitutes an ‘element’ in the context of Apprendi because it is a fact
that must be submitted to a jury, the enhancement does not alter the underlying offense to include
possession of a firearm as an ‘essential element.’” Moss v. State, 270 So. 3d 559, 560 (Fla. 1st
DCA 2019).
Here, the trial court reasonably rejected Petitioner’s claim. In this case, the operative
charging document is the information filed in 2006, in which as required by Apprendi, the State
informed Petitioner that it would seek to enhance his sentence under section 775.087(1). See [ECF
No. 7-1 at 9]; see also Connolly v. State, 172 So. 3d 893, 906 (Fla. 3d DCA 2015) (“It is well-
established Florida law that a lesser included offense of the crime alleged in the charging document
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can be reclassified under section 775.087(1).”). Therefore, Petitioner was put on notice that section
775.087(1) could be used to reclassify manslaughter to a felony in the first degree if the State
proved and the jury found that the defendant carried, displayed, used, threatened, or attempted to
use a firearm during the commission of the homicide. Moreover, in Petitioner’s case, the jury made
the specific findings that Petitioner possessed, and actually discharged the firearm; thus,
complying with Apprendi. [ECF No. 7-1 at 47–48]. In sum, Petitioner was put on notice that his
sentence could be enhanced, and the fact that enhanced Petitioner’s sentence—possession of a
firearm—was found by a jury.
Because the sentencing enhancement for use of a weapon under Section 775.087(1) did not
violate Apprendi, the post-conviction court did not unreasonably deny the claim. Claim 1 is denied.
B. Claim 2
Second, Petitioner claims that his trial counsel was ineffective for failure to object to the jury
instructions on justifiable force. The portion of the instruction that Petitioner argues was
objectionable states as follows:
If the defendant was not engaged in an unlawful activity and was attacked in any
place where he had a right to be, he had no duty to retreat and had the right to stand
his ground and meet force with force, including deadly force, if he reasonably
believed that it was necessary to do so to prevent death or great bodily harm to
himself or to prevent the commission of a forcible felony.
[ECF Nos. 7-1 at 44; 1 at 18]. Petitioner argues that the instruction negated Petitioner’s self-
defense theory for several reasons. [ECF No. 1 at 19]. First, the stand-your-ground statute that
governed Petitioner’s claims was the 2006 statute in which a duty to retreat was not imposed. [Id.
at 18–19]. Second, Petitioner argues that the instruction “negated Petitioner’s sole defense by
providing a hurdle that Petitioner could not overcome—the convictions that Petitioner’s attorney
asked him about.” [Id. at 19]. Lastly, Petitioner alleges that because he “admitted—when asked by
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his attorney while testifying at trial—that he had been convicted twice. Any reasonable person
could conclude that Petitioner was, therefore, engaged in unlawful activity when he possessed the
firearm[;]” thus, Petitioner’s trial attorney rendered ineffective assistance of counsel when he did
not object. [Id. at 19–20].
In response, Respondent argues that the language used in the jury instruction was standard
at the time Petitioner was charged with the offense and has been upheld by the Florida Supreme
Court. [ECF No. 6 at 27–28]. Additionally, Respondent contends that “an attorney’s performance
cannot be deficient for failing to object to a standard jury instruction that has not been invalidated.”
[Id. at 28]. In reply, Petitioner states that his argument focuses on the unlawful activity portion of
the instruction, not the duty to retreat, which is what Respondent’s arguments focused on. [ECF
No. 11 at 18–19]. Petitioner notes that before 2014, a defendant could assert self-defense even if
engaged in unlawful activity; thus, it is Petitioner’s position that due to his testimony at trial that
he is a convicted felon “[i]t goes beyond ‘mere speculation’ as found by the state court that
Petitioner’s testimony, combined with the undisputed fact that he was a convicted felon at the time
he used a firearm contributed to the jury’s verdict irrespective of whether the jury believed he
should have retreated.” [Id. at 20]. In sum, Petitioner argues that “[s]elf-defense was his only
defense, and as presented, the jury instructions deprived him of his sole defense at trial[;]” thus; trial
counsel was ineffective. [Id. at 22].
Petitioner raised this claim in his Rule 3.850 motion. [ECF No. 7-1 at 134–43]. The trial
court rejected it due to the reasons in the State’s response. [ECF 7-3 at 58]. The State’s response
incorporated into the trial court order stated that the claim was procedurally barred because it could
have been raised on direct appeal. [ECF No. 7-1 at 180]. The State also argued that:
The defendant argued the shooting was an unfortunate accident caused during a
struggle. (Ex.D, pages 574-583) Like Medina, the state did not argue and the jury
was not instructed that his possession of a firearm constituted unlawful activity.
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(Ex.D, pages 527-565; 589-600) The prosecutor did not argue the defendant was
committing a crime by possession of the firearm because he was convicted felon
and did not even mention during his closing argument that the defendant was a
convicted felon. (Ex.D, pages 527-565; 589-600) Rather, the defendant presumes
and speculates the jury concluded he was engaging in unlawful activity solely
because he acknowledged he had two prior convictions without even stating they
were for felonies.
[ECF No. 7-1 at 182].
“[W]here the ineffective-assistance claim is based on trial counsel’s failure to object to a
jury instruction, the defendant must show that ‘the instruction was improper, that a reasonably
competent attorney would have objected to the instruction, and the failure to object was
prejudicial.’” Torres v. Sec’y, Dep’t of Corr., 843 F. App’x 203, 211 (11th Cir. 2021) (quoting
Daugherty v. Dugger, 839 F.2d 1426, 1428 (11th Cir. 1988)). Section 776.012, Florida Statutes
(2006), provides that a person is justified in the use of deadly force and does not have a duty to
retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent
death or great bodily harm to himself or herself or another or to prevent the
imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.
FLA. STAT. § 776.012 (2006). Florida’s “Stand Your Ground” law, in turn, provides:
A person who is not engaged in an unlawful activity and who is attacked in any
other place where he or she has a right to be has no duty to retreat and has the right
to stand his or her ground and meet force with force, including deadly force if he
or she reasonably believes it is necessary to do so to prevent death or great bodily
harm to himself or herself or another or to prevent the commission of a forcible
felony.
FLA. STAT. § 776.013(3) (2006).
The instruction given at Petitioner’s 2015 trial was the standard jury instruction in 2006
which was the time when Petitioner committed the offense. Due to Petitioner claiming self-defense
Florida Standard Jury Instruction (Crim.) 3.6(f) was given. See generally Claudio-Martinez v.
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State, 324 So. 3d 45, 48 (Fla. 2d DCA 2021) (noting that “[s]tandard jury instructions for both the
justifiable use of deadly and nondeadly force, Fla. Std. Jury Instr. (Crim.) 3.6(f), (g), are to be
given as applicable” when the defendant’s theory of defense “was that he acted in defense of his
cousin during the altercation.”). The Florida Supreme Court has held that “trial counsel’s failure
to object to standard jury instructions that have not been invalidated by this Court does not render
counsel’s performance deficient.” Thompson v. State, 759 So. 2d 650, 665 (Fla. 2000).
Here, Petitioner cannot meet his burden of proof to show that his trial counsel was
ineffective because the Standard Jury Instructions, as approved by the Supreme Court of Florida,
were provided to the jury. In this case, the model jury instructions were followed when instructing
the jury, and counsel cannot be termed ineffective for failing to object to a standard jury instruction
that has not been invalidated at the time of a defendant’s sentencing. See Bodoy v. Sec’y, Fla. Dep’t
of Corr., No. 3:10-cv-1156-J-32JBT, 2014 U.S. Dist. LEXIS 107396, at *15 (M.D. Fla. Aug. 5,
2014) (ruling that petitioner’s claim that trial counsel was ineffective for failing to object to the
jury instruction that defined elements not included in the information was without merit because
the instruction given was a standard jury instruction not invalidated by the Florida Supreme Court);
Washington v. Inch, No. 1:18cv001-MW/CAS, 2019 U.S. Dist. LEXIS 73438, at *40–41 (N.D.
Fla. Apr. 8, 2019) (denying habeas relief on the ground that trial counsel was ineffective for failure
to object to jury instructions because “[t]he record support[ed] the state court rulings. As the state
post-conviction court explained, the jury instruction the trial court gave on Counts III and IV is
the standard jury instruction for Attempted Felony Murder.”).
Petitioner cites to several cases for the preposition that counsel is ineffective for failing to
object to a standard jury instruction that deprived the defendant of his sole defense. [ECF No. 11
at 20–21]; see Robinson v. State, 322 So. 3d 219, 220 (Fla. 2d DCA 2021); Bolduc v. State, 279
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So. 3d 768, 771 (Fla. 2d DCA 2019); Eady v. State, 229 So. 3d 434, 438 (Fla. 2d DCA 2017);
Andujar-Ruiz v. State, 205 So. 3d 803, 807 (Fla. 2d DCA 2016); Rios v. State, 143 So. 3d 1167,
1170 (Fla. 4th DCA 2014). However, those cases are distinguishable. In all of the cases cited by
Petitioner, Florida courts found trial counsel to be ineffective for objecting to standard jury
instructions that incorrectly imposed a duty to retreat on the defendant which in turn deprived the
defendant of his self-defense theory. Here, Petitioner’s speculates that because trial counsel
elicited testimony from Petitioner that he had two prior convictions, the jury concluded that
Petitioner was engaged in unlawful activity by possessing a gun at the time of the altercation.
Nonetheless, as the State argued in the trial proceedings it was not alluded during trial that the
convictions were felony convictions, nor that Petitioner was engaged in unlawful activity merely
by possessing a weapon. [ECF No. 7-1 at 182].
In sum, the state courts’ rejection of this claim is not contrary to, or an unreasonable
application of, clearly established federal law or an unreasonable determination of the facts.
C. Claim 3
Third, Petitioner claims that his trial counsel was ineffective for improperly arguing the
weight of the evidence in a motion for judgment of acquittal, and for failing to file a motion for
new trial in which counsel’s weight of the evidence argument was proper. At trial, Petitioner’s
attorney concluded his motion for judgment of acquittal by stating that:
In terms of substance, the story that has, that provides more information to Your
Honor of what happened that day with Mr. Dowe, I believe in considering the
burden that we have, as relates to a stand your ground, it would be we have to do it
by a preponderance of the evidence to show Mr. Dowe acted in self-defense.
And more than likely, it is a story that stays above water. It’s the story of Mr. Dowe.
It provides more substance in terms of the facts of the case than the other side.
That’s the reason I believe it is not an issue of number.
It is an issue of substance that gives the weight of the evidence here.
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[ECF No. 8-5 at 279–80]. To which the trial court responded by inquiring “[i]sn’t weight of the
evidence to be determined by the trier of fact?” [Id. at 280]. Then, the following interaction
between the trial counsel and the court followed:
MR. OLIVIA: Well, for stand your ground by your honor.
The self-defense, the State has to overcome that.
If we were to move away from the structure of the stand your ground argument, the
motion, arguing both at the same time, arguing, in the second judgment of acquittal,
and the State has to overcome the defense posed by Mr. Dowe, that he acted in self-
defense.
They haven’t done that.
THE COURT: That’s a question of fact.
You’re asking me to discount testimony and make an evaluation.
What you’re asking me to do is make an evaluation of witnesses and their
credibility, which belongs to the trier of fact.
Any issue of fact, based upon weight, credibility, goes to the jury. It was a fine
closing argument you made.
You will have to tell it to them.
MR. OLIVIA: I understand. I agree. I’m making two motions.
My motion for stand your ground –
THE COURT: Denied.
MR. OLIVIA: the second part is on the judgment of acquittal, if you are saying it
is for the trier of fact to understand, you’re denying the second motion for judgment
of acquittal, I understand.
THE COURT: Okay. I am denying that as well.
It all comes down to the weight and credibility of the witnesses.
[Id. at 280–81].
Based on the weight of the evidence argument, Petitioner’s position is that “[t]rial counsel’s
argument for judgment of acquittal was legally required to fail. The trial court could not grant the
motion based on a weight-of-the-evidence argument.” [ECF No. 1 at 25]. But that “had trial
counsel filed a motion for new trial, the trial court—which refused to weigh the evidence—would
have been in a position where it was required to weigh the evidence and [consider] the long list of
facts provided by counsel that supported granting a new trial.” [Id.]. On the other hand, Respondent
argues that Petitioner’s claim fails because “matters of trial strategy are for counsel to determine”
and “[e]ven if counsel’s failure to file a motion for new trial was deficient, Petitioner cannot
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demonstrate prejudice as he fails to show that a motion for new trial would have been successful
in light of the evidence.” [ECF No. 6 at 29].
In his reply, Petitioner argues that:
Despite Respondent’s speculative position regarding the likely outcome of a motion
for new trial, there is no reason to think the trial court would have refused to apply
the correct evidentiary standard to the facts of the case, to determine if the greater
weight of the evidence supported Petitioner’s conviction. We know that the jury
rejected sufficient weight to return a verdict for second-degree murder.
Additionally, consideration specifically by the judge who presided over the trial is
available only once in Florida state courts. Petitioner was further prejudiced when
his counsel’s failure to seek a new trial deprived him of the only chance he had for
the judge to consider the manifest weight of the evidence through the eyes of a
juror.
[ECF No. 11 at 27–28]. In addition, Petitioner requests an evidentiary hearing to resolve claim 3
because “[o]n just the cold record, this Court is [] unable to evaluate whether a motion for new
trial would have succeeded. An evidentiary hearing is necessary for the Court to receive evidence
and testimony to aid its determination of the issue presented.” [Id. at 30–31].
Petitioner raised this claim in his Rule 3.850 motion. [ECF No. 7-1 at 147–53]. The trial
court rejected it due to the reasons in the State’s response. [ECF 7-3 at 58]. The State’s response
incorporated into the trial court order argued that:
There is no indication that this Court would have re-weighed the evidence, set forth
above and incorporated herein, and would have granted a new trial. Rather, any
motion for new trial made on the grounds claimed would have been denied. See,
Johnson v. State, 247 So. 3d 689 (Fla. 1st DCA 2018); Hill v. State, 839 So. 2d 865
(Fla. 4th DCA 2003). At a minimum, the defendant has not demonstrated prejudice
and this claim should be DENIED.
[ECF No. 7-1 at 185].
“A Florida trial court may enter a judgment of acquittal upon motion by a party if the
evidence is insufficient to warrant a conviction.” Chance v. Sec’y, Fla. Dep’t of Corr., No. 22-
14103, 2024 U.S. App. LEXIS 15, at *2–3 (11th Cir. Jan. 2, 2024) (citing Fla. R. Crim. P.
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3.380(a)). “The trial court should not grant the motion unless the evidence is such that the jury
could not have lawfully come to its verdict.” Id. (citing Lynch v. State, 293 So. 2d 44, 45 (Fla.
1974)). In this case, the record shows that trial counsel based its motion for judgment of acquittal
on the wrong standard and failed to argue the sufficiency of the evidence. [ECF No. 8-5 at 279–
81]. Therefore, trial counsel might have performed deficiently. See Jimenez-Solano v. Sec’y Fla.
Dep’t of Corr., No. 16-10073-Civ-KING, 2018 U.S. Dist. LEXIS 41112, at *54 (S.D. Fla. Mar.
12, 2018) (“[B]ecause [trial counsel] appeared to conflate the legal standards for motions for
judgment of acquittal and motions for a new trial, she might have performed deficiently.”).
Nonetheless, even if Petitioner’s trial counsel performed deficiently, claim 3 fails because
Petitioner cannot show prejudice under Strickland. Even if trial counsel would have argued the
motion for judgment of acquittal under the correct standard, Petitioner fails to show that the motion
would have been granted. There was ample evidence against Petitioner that would have precluded
the trial judge from granting the motion because the evidence was enough for a jury to lawfully
come to its verdict. For example, the jury heard testimony from Sabrina King detailing how
Petitioner was the first aggressor and hit and shot the victim. [ECF No. 8-5 at 95–102, 116–19].
Another witness, Mr. Warren, testified that Petitioner approached the victim with two guns in his
hands and that Petitioner hit the victim first. [Id. at 132–34].
It is true that Petitioner testified that he only had one gun, not two, that the only reason he
grabbed it was for safety purposes, and that the gun went off accidentally while the victim grabbed
Petitioner. [Id. at 229–37]. The conflicting accounts by the witnesses show, however, that there
was sufficient evidence for a jury to return a verdict—if the jury believed Sabrina King and Mr.
Warren, the jury could issue a guilty verdict; on the other hand, if the jury believed Petitioner, then
the verdict could have been not guilty. Thus, because Petitioner cannot show prejudice under
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Strickland, the post-conviction court properly denied relief based on trial counsel improperly
arguing the motion for judgment of acquittal.
Similarly, Petitioner is not entitled to relief based on the claim that his counsel was
ineffective for failing to move for a new trial. “A claim that the verdict is contrary to the weight
of the evidence may be raised in a motion for new trial.” Tualla v. Sec’y, Dep’t of Corr., No. 8:21-
cv-656-CEH-AEP, 2024 U.S. Dist. LEXIS 46828, at *42 (M.D. Fla. Mar. 18, 2024) (citing Fla. R.
Crim. P. 3.600(a)(2)). “In reviewing a motion for new trial brought on this basis, ‘the trial court
must exercise its discretion to determine whether a greater amount of credible evidence supports’
an acquittal.’” Id. at *43 (quoting Ferebee v. State, 967 So. 2d 1071, 1073 (Fla. 2d DCA 2007)
(internal quotations omitted)).
Based on the testimony discussed above, the jury’s manslaughter verdict was not against
the weight of the evidence; therefore, moving for a new trial would have been futile and counsel
cannot be deficient for failing to file motions that have no merit. See Molina v. Fla. Dep’t of Corr.,
No. 1:20-cv-24962-GAYLES, 2023 U.S. Dist. LEXIS 195562, at *18 (S.D. Fla. Oct. 27, 2023)
(“[A]ny motion in limine raising the same argument would have been fruitless, and counsel cannot
be ineffective for failing to raise meritless claims.”). Even if counsel had been deficient for failing
to file a motion for a new trial, Petitioner cannot show prejudice because he cannot show that trial
counsel’s judgment of acquittal argument—that there was conflicting testimony and that most of
the State’s witnesses were close to the victim—would have succeeded.
In sum, the state courts’ rejection of this claim is not contrary to, or an unreasonable
application of, clearly established federal law or an unreasonable determination of the facts.
D. Claim 4
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Lastly, Petitioner argues that trial counsel was ineffective for failing to call Veronica King
(“King”) as a witness to corroborate Petitioner’s version of events. Petitioner states that King was
present during the shooting and that had she been called to testify, she would have supported
Petitioner’s self-defense theory. [ECF No. 1 at 29]. According to Petitioner, King “would have
testified that the victim was the aggressor and that he had, in fact, slashed Petitioner’s tires to keep
him from leaving,” “that the victim was ready to ‘die or kill someone[,]’” and that “Petitioner told
the victim to relax and to not let anyone get him shook up.” [Id.]. Petitioner also asserts that King
was available to testify and that “[t]here is a reasonable probability that, had King testified at trial,
the outcome of the trial would have been different.” [Id. at 29–30]. Petitioner did not attach an
affidavit from King detailing the substance of her testimony.
Respondent notes that “[t]he substance of Petitioner’s ineffective assistance of counsel
claim appears to implicate trial strategy, which does not constitute deficient performance.” [ECF
No. 6 at 31]. Additionally, Petitioner states that “there is no indication that defense counsel did not
conduct a reasonable investigation to secure witnesses[;]” to the contrary, “during various pretrial
hearings, defense counsel explained his efforts concerning potential witnesses. Likewise, at trial,
Petitioner was provided an opportunity to call additional witnesses, and he refused.” [Id. at 31–32]
(citations omitted). Moreover, Respondent claims that “despite Petitioner’s contention, there was
no indication as to how the witness, if introduced at trial, would testify. Furthermore, given the
evidence admitted at trial, Petitioner cannot demonstrate prejudice in the failure to call the
witness.” [Id. at 32] (citations omitted).
In his reply, Petitioner states that in Petitioner’s case, his “credibility was pitted against
numerous biased witnesses who gave differing versions of events that were all nevertheless
inculpatory to Petitioner.” [ECF No. 11 at 33]. Additionally, Petitioner notes that “[i]t is also a
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case where the jury expressly rejected the weight of the evidence as supportive of second-degree
murder[,]” and that had Petitioner’s counsel called a witness who corroborated Petitioner’s side of
events “there is a reasonable probability that the jury would have accorded sufficient weight to her
testimony to have moved the needle from a conviction for a lesser-included offense to an outright
acquittal.” [Id.]. Lastly, Petitioner requests “a federal evidentiary hearing, at which Ms. King will
appear and give testimony to prove his claim that the failure to call her violated his Sixth
Amendment right to the effective assistance of his counsel.” [Id.]. Notably, the Petitioner did not
attach an affidavit detailing the substance of King’s testimony to his reply.
Petitioner raised this claim in his Rule 3.850 motion. [ECF No. 7-1 at 154–56]. The trial
court rejected it due to the reasons in the State’s response. [ECF 7-3 at 58]. The State’s response
incorporated into the trial court order argued that:
Since the defendant had already been through one trial and a Stand Your Ground
evidentiary hearing, he certainly knew the facts and witnesses in his case. If he
wanted counsel to call Veronica King, he should have spoken up and said
something. Instead, when asked by the Court, he said, ‘No’ and therefore waived
this claim. This ground should be DENIED.
[ECF No. 7-1 at 186].
Here, the trial court reasonably rejected this claim. “Th[e] prejudice burden is heavy where
the petitioner alleges ineffective assistance in failing to call a witness because often allegations of
what a witness would have testified to are largely speculative.” Winland v. Sec’y, DOC, No. 2:16-
cv-2-FtM-99MRM, 2019 U.S. Dist. LEXIS 48683, at *21 (M.D. Fla. Mar. 22, 2019) (quotations
omitted). “First ‘[w]hich witnesses, if any, to call, and when to call them, is the epitome of a
strategic decision, and it is one that we will seldom, if ever, second guess.’” Foster v. United States,
No. 19-21363-CIV, 2020 U.S. Dist. LEXIS 106159, at *16 (S.D. Fla. June 15, 2020) (quotations
omitted). Also, “[e]vidence about the testimony of a putative witness must generally be presented
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in the form of actual testimony by the witness or an affidavit. A defendant cannot simply state that
the testimony would have been favorable; self-serving speculation will not sustain an ineffective
assistance claim.” Gilbrook v. Sec’y, Dep’t of Corr., No. 5:10-cv-355-Oc-10TBS, 2012 U.S. Dist.
LEXIS 59664, at *31 (M.D. Fla. Apr. 30, 2012) (internal quotations omitted).
Petitioner’s claim fails because Petitioner has not presented either an affidavit or the actual
testimony that King would have provided at trial. Without the actual testimony or affidavit,
Petitioner’s claim is deemed speculative, and that is not enough to succeed on an ineffective
assistance of counsel claim. See Foster, 2020 U.S. Dist. LEXIS 106159, at *16 (denying habeas
relief when the petitioner did not “submit declarations from [the witnesses] stating the testimony
they would have provided. Without this, [petitioner] offers pure speculation.”); Jones v. United
States, No. 19-12419-D, 2019 U.S. App. LEXIS 26768, at *4 (11th Cir. Sep. 4, 2019) (denying
habeas relief because petitioner’s “assertion, that the witness would have provided exculpatory
testimony, is wholly conclusory, as he does not provide an affidavit or otherwise allege any facts
as to what the witness’s purported testimony would be.”).
In sum, the state courts’ rejection of this claim is not contrary to, or an unreasonable
application of, clearly established federal law or an unreasonable determination of the facts.
V. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the Petitioner to establish the need for a
federal evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th
Cir. 2011). To determine whether an evidentiary hearing is needed, the question is whether the
alleged facts, when taken as true, are not refuted by the record and may entitle a petitioner to relief.
Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d
1299, 1318-19 (11th Cir. 2016), cert. den’d, 137 S. Ct. 2245 (2017). The pertinent facts of this
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case are fully developed in the record before the Court. Because this Court can “adequately assess
[petitioner’s] claim[s] without further factual development,” Turner v. Crosby, 339 F.3d 1247,
1275 (11th Cir. 2003), an evidentiary hearing is not warranted here.
VI. Certificate of Appealability
A prisoner seeking to appeal a district court’s final order denying his petition for writ of
habeas corpus has no absolute entitlement to appeal but must obtain a certificate of appealability
(‟COA”). See 28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180, 183 (2009). This Court
should issue a COA only if the petitioner makes ‟a substantial showing of the denial of a
constitutional right.” See 28 U.S.C. § 2253(c)(2). Where a district court has rejected a petitioner’s
constitutional claims on the merits, the Petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000). However, when the district court has rejected a claim on
procedural grounds, the Petitioner must show that ‟jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its procedural ruling.” Id.
Upon consideration of the record, this court should deny a COA. Notwithstanding, if Petitioner
disagrees, he may bring this argument to the attention of the District Judge in objections.
VII. Conclusion
Based upon the foregoing, it is recommended that the petition for habeas corpus [ECF No.
1] be DENIED; that no Certificate of Appealability Issue; that final judgment be entered; and that
the case be closed.
A party shall serve and file written objections, if any, to this Report and Recommendation
with the District Judge within FOURTEEN DAYS of being served with a copy of this Report and
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Recommendation. Failure to timely file objections will bar a de novo determination by the District
Judge of anything in this recommendation and shall constitute a waiver of a party’s “right to
challenge on appeal the district court’s order based on unobjected-to factual and legal
conclusions.” 11th Cir. R. 3-1 (2016); 28 U.S.C. § 636(b)(1)(C); see also Harrigan v. Metro-Dade
Police Dep’t Station #4, 977 F.3d 1185, 1191-92 (11th Cir. 2020).
SIGNED this 6th day of November, 2025.
LISETTE M. REID
UNITED STATES MAGISTRATE JUDGE
cc: U.S. District Judge Rodney Smith; and
All Counsel of Record
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