THURSTON v. FLORIDA DEPARTMENT OF CORRECTIONS

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
TRAVIS THURSTON,
Petitioner,
v. 	Case No. 4:23cv399-RH/MAF
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
Respondent.
_____________________________/
REPORT AND RECOMMENDATION
In 2023, Petitioner Travis Thurston, a state inmate proceeding pro se,
filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF
No. 1. On January 4, 2024, Respondent filed an answer, with exhibits. ECF
No. 8. Petitioner Thurston filed a reply on July 16, 2024. ECF No. 19.
The matter was referred to the undersigned United States Magistrate
Judge for report and recommendation pursuant to 28 U.S.C. § 636 and
Northern District of Florida Local Rule 72.2(B).1 After careful consideration,
1By order on May 13, 2025, the undersigned directed Respondent to file a supplemental response
addressing the timeliness of the petition given the multi-month delay between (1) the date the petition is
stamped and signed (February 2, 2023) and (2) the date the petition was actually received and docketed
by this Court (September 2023). ECF No. 23. Respondent filed the supplemental response, ECF No. 26,
and an exhibit containing the Declaration of Charlotte Crayton, the mailroom supervisor at Petitioner’s
institution, ECF No. 26-1. Petitioner filed a supplemental reply. ECF No. 27. On October 2, 2025, the
undersigned entered a Report and Recommendation that the § 2254 petition be dismissed as untimely.
ECF No. 28. By order on December 4, 2025, the district judge rejected the Report and Recommendation,
held the § 2254 petition timely, and remanded the case to the undersigned for further proceedings. ECF
No. 30.
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the undersigned has determined no evidentiary hearing is required for the
disposition of this matter. 	See Rule 8(a), R. Gov. § 2254 Cases. 	For the
reasons stated herein, the filings before the Court show Petitioner is not
entitled to federal habeas relief, and this § 2254 petition should be denied.
Procedural Background
By information filed July 8, 2015, in the Second Judicial Circuit in and
for Leon County, case number 2015-CF-2108, the State of Florida charged
Petitioner Travis Thurston with six third degree felonies in connection with
events that occurred on or about July 6, 2015: three counts (Counts 1-3) of
aggravated 	assault 	with 	a 	firearm, 	contrary 	to 	sections 	775.087 	and
784.021(1)(a), Florida Statutes; two counts (Counts 4-5) of battery on a law
enforcement officer, contrary to section 784.07(2)(b), Florida Statutes; and
one count (Count 6) of resisting arrest with violence, contrary to section
843.01, Florida Statutes. Ex. A at 24-25.2 Thurston was initially held at the
Leon County Jail and a competency evaluation was ordered, see Ex. M at
282; at some point, prior to the competency evaluation and prior to his trial
in this case, he was transferred to federal custody “on unrelated charges.”
Thurston v. State, 250 So. 3d 774, 774 (Fla. 1st DCA 2018); see Ex. M at
2Hereinafter, all citations to the state court record, “Ex. –,” refer to exhibits submitted with Respondent’s
answer, ECF No. 8.
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267, 282.3 “Nearly two years later, he returned to face his state charges.”
Thurston, 250 So. 3d at 774.
Thurston ultimately proceeded to a jury trial in case 2015-CF-2108,
with jury selection on May 30, 2017, Ex. A at 144-255, and trial beginning on
June 1, 2017, Ex. D. 	Shortly after the trial began, before any witnesses
testified, an issue arose concerning a discovery violation, Ex. D at 33-47,
and the judge ultimately paused the trial after two witnesses, to allow a
deposition to be taken, with the trial to reconvene the following week before
the same jury, id. at 104-06. 	During the break, the judge realized the
competency 	evaluation 	had 	not 	yet 	been 	done 	and 	then 	ordered 	the
evaluation done in the interim. 	Ex. D at 112-14; Ex. M at 282. 	After the
evaluation and written report, the trial judge found Thurston competent to
proceed and entered a written order to that effect. Ex. A at 90; Ex. D at 114.
The trial proceeded; Thurston did not testify at the trial. Ex. D at 396-97.
On June 6, 2017, the jury returned a verdict finding Thurston guilty as
charged on Counts 1, 4, 5, and 6, with specific findings on Count 1 that he
actually possessed and discharged a firearm during the commission of the
offense. Ex. A at 109-11. On Counts 2 and 3, the jury found Thurston guilty
3According to CM/ECF, Thurston’s federal cases are 4:15cr028-RH/CAS and 4:95cr4027-RH/CAS.
Thurston’s state sentence is imposed consecutive to his federal sentence. See Ex. A at 123.
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of the lesser charge of discharging a firearm in public. 	Id. at 109-10. 	On
June 8, 2017, the state trial court adjudicated him guilty and sentenced him
to twenty (20) years in prison on Count 1, with a twenty-year firearm
minimum mandatory term pursuant to section 775.087, Florida Statutes; and
concurrent five-year sentences on Counts 4, 5, and 6; and time served on
Counts 2 and 3; to be served consecutively to his federal sentence. Ex. A at
115-25, 261-63.
Thurston appealed his judgment and sentence to the First District
Court of Appeal (First DCA), assigned case number 1D17-2548. The initial
brief presented two points:
I. 	The trial court fundamentally erred by failing to hold a pre-trial
hearing 	and 	determine 	Mr. 	Thurston’s 	competency 	to
proceed where the trial court had reasonable grounds to
believe Mr. Thurston may have been incompetent to proceed.
II. 	Mr. 	Thurston 	was 	deprived 	of 	his 	fundamental 	Sixth
Amendment right to effective assistance of trial counsel and
his right to a fair trial.
Ex. E at i. The State filed an Answer Brief, Ex. F, and Thurston filed a Reply
Brief, Ex. G. On June 28, 2018, the First DCA affirmed the case in a written
opinion issued by a three-judge panel comprised of Judges Wolf, Jay, and
Winsor. 	Ex. H; Thurston, 250 So. 3d at 774-75. 	The mandate issued July
26, 2018. Ex. H. Thurston did not seek additional review.
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On April 10, 2019, Thurston filed a pro se petition for writ of habeas
corpus alleging ineffective assistance of appellate counsel in the First DCA,
assigned case number 1D19-1335. Ex. I. On July 11, 2019, the court issued
an opinion which stated, in its entirety, “The petition alleging ineffective
assistance of appellate counsel is denied on the merits.” Ex. J; Thurston v.
State, 278 So. 3d 738 (Fla. 1st DCA 2019). Thurston sought rehearing, Ex.
K, which the First DCA denied by order on September 10, 2019, Ex. L.
In the meantime, on August 12, 2019, Thurston filed a pro se motion
for postconviction relief pursuant to Florida Rule of Criminal Procedure
3.850. Ex. M at 4-28 (exclusive of exhibits). By order on February 6, 2020,
the state postconviction trial court summarily denied the motion in part and
directed Thurston to amend Ground 6 within sixty (60) days. 	Id. at 80-81
(exclusive of attachments). Thurston filed an amended motion on March 26,
2020. 	Id. at 144-71 (exclusive of exhibits). 	By order on June 22, 2021, the
court set an evidentiary hearing for August 30, 2021. 	Id. at 201. 	After the
hearing, by order rendered September 8, 2021, the court denied relief “for
the reasons noted in this Court’s Order dated February 6, 2020, and for the
reasons stated on the record in open Court.” 	Id. at 226; see id. at 304-14.
Thurston appealed to the First DCA, assigned case number 1D21-2954, and
he challenged only the denial of his motion requesting appointment of post-
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conviction counsel. 	Ex. N. 	The State filed an Answer Brief, Ex. O, and
Thurston filed a Reply Brief, Ex. P. 	The First DCA per curiam affirmed the
case without a written opinion on August 31, 2022. Ex. Q; Thurston v. State,
352 So. 3d 788 (Fla. 1st DCA 2023). Thurston filed a motion for rehearing,
which the court denied by order on December 19, 2022. 	See online docket
for case 1D2021-2954 at acis.flcourts.gov/portal/court. The mandate issued
January 5, 2023. Ex. Q.
As indicated above, in 2023, Petitioner Thurston submitted for mailing
a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1.
In this petition, Thurston raises eight grounds, including five claims alleging
ineffective assistance of counsel (IAC):
(1) 	Trial Court Error 	– 	Commencement of Trial before
Competency Finding: 	“Whether the state courts’ decision
denying 	Petitioner’s 	claim 	of 	fundamental 	error 	for
commencing his 	trial before a finding of competency to
proceed 	was 	contrary 	to, 	or 	involved 	an 	unreasonable
application of, clearly established federal law, as determined
by the Supreme Court of the United States, or resulted in a
decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the state court
proceedings.” 	Id. at 4.
(2) 	Appellate Court Error – Denial of IAC Claim: “Whether the
state courts’ decision denying Petitioner’s direct appeal claim
that counsel was ineffective for failing to ensure the question
of 	competency 	of 	trial 	was 	contrary 	to, 	or 	involved 	an
unreasonable application of, clearly established federal law,
as determined by the Supreme Court of the United States, or
resulted in a decision that was based on an unreasonable
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determination of the facts in light of the evidence presented
in the state court proceedings.” 	Id. at 5.
(3) 	Post-Conviction Trial Court Error – Denial of Counsel:
“Whether the state courts’ refusal to appoint counsel to
represent petitioner for his postconviction evidentiary hearing
was contrary to, or involved an unreasonable application of,
clearly 	established 	federal 	law, 	as 	determined 	by 	the
Supreme Court of the United States, or resulted in a decision
that was based on an unreasonable determination of the facts
in 	light 	of 	the 	evidence 	presented 	in 	the 	state 	court
proceedings.” 	Id. at 6.
(4) 	IAC – Failure to Investigate/Present Evidence: “The state
courts’ 	denial 	of 	Petitioner’s 	[IAC] 	claim 	for 	failing 	to
investigate 	and 	present 	at 	trial 	the 	911 	call 	made 	by
Petitioner, the dispatch tape, and/or the BOLO report was
contrary 	to, 	or 	involved 	an 	unreasonable 	application 	of,
clearly 	established 	federal 	law, 	as 	determined 	by 	the
Supreme Court of the United States, or resulted in a decision
that was based on an unreasonable determination of the facts
in 	light 	of 	the 	evidence 	presented 	in 	the 	state 	court
proceedings.” 	Id. at 8.
(5) 	IAC – Failure to Request Jury Instruction: 	“Whether the
state courts’ decision denying Petitioner’s claim that counsel
was ineffective for failing to request a jury instruction be given
informing the jurors that Petitioner was on trial with the aid of
psychotropic medication(s) was contrary to, or involved an
unreasonable application of, clearly established federal law,
as determined by the Supreme Court of the United States, or
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceedings.” 	Id. at 9-10.
(6) 	IAC – Speedy Trial: 	“Whether the state courts’ decision
denying Petitioner’s claim that counsel was ineffective for
failing to file a notice of expiration of speedy trial time followed
by a motion to dismiss based upon a speedy trial violation
was contrary to, or involved an unreasonable application of,
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clearly 	established 	federal 	law, 	as 	determined 	by 	the
Supreme Court of the United States, or resulted in a decision
that was based on an unreasonable determination of the facts
in 	light 	of 	the 	evidence 	presented 	in 	the 	state 	court
proceedings.” 	Id. at 12.
(7) 	IAC 	– 	Failure 	to 	Ensure 	Petitioner’s 	Competency:
“Counsel 	was 	ineffective, 	in 	violation 	of 	Petitioner’s
constitutional rights under the 5 th , 6th , and 14 th Amendments
when they 	allowed the State to prosecute, convict, and
sentence him to prison without ensuring Petitioner was (1)
competent 	at 	the 	time 	of 	the 	alleged 	offense; 	and 	(2)
competent to stand trial.” 	Id. at 14.
(8) 	IAC – No Objection to Stacking of Inferences: 	“Counsel
was ineffective, in violation of Petitioner’s constitutional rights
under the 5 th
, 6th
, and 14th Amendments when they failed to
object to the State’s impermissible stacking of inferences in
order to obtain a conviction against Petitioner for the primary
offense(s) of aggravated assault with a firearm.” 	Id. at 16.
Respondent filed an answer to the petition, with exhibits, ECF No. 8, and
Petitioner filed a reply, ECF No. 19.
Analysis
Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and
Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant
habeas corpus relief for persons in state custody. Section 2254(d) provides:
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 –
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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d). 	See, e.g., Cullen v. Pinholster, 563 U.S. 170, 180-83
(2011); Gill v. Mecusker, 633 F.3d 1272, 1287-88 (11th Cir. 2011). 	“This is
a ‘difficult to meet’ and ‘highly deferential standard for evaluating state-court
rulings, which demands that state-court decisions be given the benefit of the
doubt.’” Cullen, 563 U.S. at 181 (quoting Harrington v. Richter, 562 U.S. 86,
102 (2011), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). This Court’s
review 	“is 	limited 	to 	the 	record 	that 	was 	before 	the 	state 	court 	that
adjudicated the claim on the merits.” 	Id.
For IAC claims, the United States Supreme Court has adopted a two-
part test:
First, the defendant must show that counsel’s performance was
deficient. 	This requires showing that counsel made errors so
serious 	that 	counsel 	was 	not 	functioning 	as 	the 	“counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced
the defense. 	This requires showing that counsel’s errors were
so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). 	To demonstrate
ineffectiveness, a “defendant must show that counsel’s performance fell
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below an objective standard of reasonableness.” Id. at 688. To demonstrate
prejudice, a defendant “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” 	Id. at 694. 	“A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” 	Id. 	For this Court’s
purposes, importantly, “[t]he question ‘is not whether a federal court believes
the state court’s determination’ under the Strickland standard ‘was incorrect
but whether that determination was unreasonable – a substantially higher
threshold.’” 	Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting
Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). 	“And, because the
Strickland standard is a general standard, a state court has even more
latitude to reasonably determine that a defendant has not satisfied that
standard.” 	Id. 	It is a “doubly deferential judicial review that applies to a
Strickland claim evaluated under the § 2254(d)(1) standard.” 	Id.
Ground 1: Trial Court Error – Competency
In 	his 	first 	ground, 	Petitioner 	Thurston 	asserts 	“the 	state 	courts’
decision denying [his] claim of fundamental error for commencing his trial
before a finding of competency to proceed was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined
by the Supreme Court of the United States, or resulted in a decision that was
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based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings.” ECF No. 1 at 4. He explains:
The trial court fundamentally erred by failing to conduct a
competency 	hearing 	and 	failing 	to 	make 	required 	findings
regarding 	Petitioner’s 	competency 	pursuant 	to 	the 	relevant
Florida Rules of Court. The procedures and safeguards in these
rules are mandatory once the trial court, as here, has reasonable
grounds to believe that a defendant is not mentally competent to
proceed. 	The trial court’s failure to resolve the competency
matter prior to trial deprived Petitioner of his Constitutional Rights
to Due Process under the Fifth and Fourteenth Amendments.
Id. at 5.
Respondent asserts Petitioner Thurston “has failed to demonstrate a
violation of federal law in order to be entitled to § 2254 habeas relief”
because “Petitioner argues only a violation of state procedural law” and,
although “[t]he Due Process Clause of the Fourteenth Amendment prohibits
states 	from 	trying 	and 	convicting 	mentally 	incompetent 	defendants 	in
criminal trials,” the “federal law does not proscribe the specific procedure by
which a State must use to ensure a defendant is competent to stand trial.”
ECF No. 8 at 13. Respondent further asserts that, in his initial brief on direct
appeal, Petitioner raised only “a state law issue that the trial court did not
procedurally afford him a competency hearing in accordance with Florida
Rules of Criminal Procedure 3.210, 3.211, and 3.212, governing procedures
to 	determine 	competency.” 	ECF 	No. 	8 	at 	15; 	see 	Ex. 	E 	at 	39-40.
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Respondent explains Thurston had argued in the appeal that when the trial
court realized it had not made a finding of competency prior to trial, having
found “reasonable ground to evaluate Petitioner two years prior[,] that ‘the
appropriate remedy, at that point, would have been to discharge the jury,
having a hearing to determine competency, and then proceed with the
criminal case only if [Petitioner] Thurston was found to be competent.” ECF
No. 8 at 15 (quoting Ex. E at 41). 	Respondent points out the First DCA
“found as a matter of state law that a nunc pro tunc competency hearing
remedied the oversight to determine incompetency prior to trial and retrial
was not necessary.” ECF No. 8 at 15. Thus, concludes Respondent, given
the state courts’ determination on these state law issues, Thurston has not
presented a cognizable federal issue in this ground. 	Id. at 15-16.
In his reply, Thurston asserts this ground was argued based on Florida
law and rules. 	ECF No. 19 at 2. 	He states, “A review of Rule 3.210 of the
Florida Rules 	of 	Criminal 	Procedure 	clearly 	shows 	that 	the 	Rule 	was
implemented in reliance on controlling United States Supreme Court law
which, in turn, was based on Federal Constitutional protections.” 	Id. 	He
refers to and quotes amendment notes about the court rule. 	Id.
As indicated above, in his direct appeal, Thurston asserted as the first
point: “The trial court fundamentally erred by failing to hold a pre-trial hearing
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and determine Mr. Thurston’s competence to proceed where the trial court
had 	reasonable 	grounds 	to 	believe 	Mr. 	Thurston 	may 	have 	been
incompetent to proceed.” Ex. E at i. The relevant portion of the Summary of
the Argument section of the brief states:
The trial court fundamentally erred by failing to conduct a
competency 	hearing 	and 	failing 	to 	make 	required 	findings
regarding Mr. Thurston’s competency pursuant to Florida Rules
of Criminal Procedure 3.210, 3.211, and 3.212. The procedures
and safeguards in these rules are mandatory if the trial court has
reasonable grounds to believe that a defendant is not mentally
competent to proceed, as in this case. The trial court’s failure to
resolve 	the 	competency 	matter 	prior 	to 	trial 	deprived 	Mr.
Thurston of his procedural due process rights.
Id. at 33. Thurston’s explanation of Ground 1 in his § 2254 petition, quoted
in 	full, 	supra, 	is 	almost 	a verbatim 	recitation 	of 	this 	Summary 	of 	the
Argument, except for the substitution in the petition of “Due Process under
the Fifth and Fourteenth Amendments” for “procedural due process rights” in
the Initial Brief. Compare ECF No. 1 at 5 with Ex. E at 33. Significantly, both
cite only Florida rules in support of the argument.
Likewise, the argument section of the Initial Brief on this point cites only
Florida state cases and Florida Rules of Criminal Procedure. 	Ex. E at 34-
36. Only in a single, one-sentence quote from a Florida Supreme Court case
does the brief reference any federal authority, the Fourteenth Amendment.
Id. at 34. (“‘The Due Process Clause of the Fourteenth Amendment to the
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United 	States 	Constitution 	prohibits 	states 	from 	trying 	and 	convicting
mentally incompetent defendants.’ 	Barnes v. State, 124 So. 3d 904, 915
(Fla. 2013) . . . .”). Thus, because Thurston did not alert the state courts to
the federal ground he now asserts, this ground was not fairly presented as a
federal claim and is unexhausted. 	See Baldwin v. Reese, 541 U.S. 27, 32
(2004) (“We . . . hold that ordinarily a state prisoner does not ‘fairly present’
a claim to a state court if that court must read beyond a petition or a brief (or
similar document) that does not alert it to the presence of a federal claim in
order to find material, such as a lower court opinion in the case, that does
so.”); Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 457-58 (11th Cir.
2015) (“The crux of the exhaustion requirement is simply that the petitioner
must have put the state court on notice that he intended to raise a federal
claim.”); McNair v. Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005) (“‘The
exhaustion doctrine requires a habeas applicant to do more than scatter
some makeshift needles in the haystack of the state court record.’” (quoting
Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1345 (11th Cir. 2004)); see
also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513
U.S. 364, 365-66 (1995); Picard v. Connor, 404 U.S. 270, 278 (1971).
This ground is procedurally defaulted because Thurston cannot obtain
another direct appeal. 	See O’Sullivan, 526 U.S. at 845. He has not alleged
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or shown cause for the default and actual prejudice, nor has he alleged or
shown actual innocence or a fundamental miscarriage of justice. 	See id. at
848-49; see, e.g., Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir.
2003) 	(explaining 	cause 	and 	prejudice, 	and 	correction 	of 	fundamental
miscarriage of justice); Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001)
(“[I]f the petitioner has failed to exhaust state remedies that are no longer
available, that failure is a procedural default which will bar federal habeas
relief, unless either the cause and prejudice or the fundamental miscarriage
of just exception is applicable.”).
Even assuming Petitioner Thurston did properly exhaust this ground, it
does not warrant federal habeas relief. 	Thurston essentially raises a claim
of state law error, for failure to follow Florida Rules of Criminal Procedure
3.210, 3.211, and 3.212, regarding procedures to determine competency.
See ECF No. 1 at 4-5; Ex. E at 33-36. “[F]ederal habeas corpus relief does
not lie for errors of state law.” 	Lewis v. Jeffers, 497 U.S. 764, 780 (1990);
see Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (explaining errors that do
not infringe on defendant’s constitutional rights provide no basis for federal
habeas corpus relief). 	AA state=s interpretation of its own laws or rules
provides no basis for federal habeas corpus relief, since no question of a
constitutional nature is involved.@ 	Carrizales v. Wainwright, 699 F.2d 1053,
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1055 (11th Cir. 1983); accord, e.g., McCullough v. Singletary, 967 F.2d 530,
535 (11th Cir. 1992).
Here, First DCA issued an opinion in the direct appeal. Thurston, 250
So. 3d at 774-75; see Ex. H. 	In the opinion, the court set forth relevant
procedural and factual background:
Travis Thurston appeals his convictions for aggravated
assault with a firearm, discharging a firearm in public, battery on
a law enforcement officer, and resisting arrest. We affirm.
Thurston was arrested in 2015 after he shot a car and bit
two police officers in a McDonald’s parking lot. 	Thurston’s
bizarre behavior led the trial court to appoint 	an expert 	to
determine whether he was competent to proceed. But before the
court could make a competency determination, Thurston was
taken into federal custody on unrelated charges. 	Nearly two
years later, he returned to face his state charges. By then, a new
judge and prosecutor were assigned, and Thurston had a new
public defender.
Two witnesses into Thurston’s trial, the new judge realized
the previous judge never made a competency finding. So during
a continuance, the court appointed another expert to evaluate
Thurston. That expert promptly evaluated Thurston, opined that
he was competent, and prepared a report. 	The court then held
a hearing and entered an order finding Thurston competent
based on the expert’s report.
Thurston, 250 So. 3d at 774; see Ex. H. 	The court affirmed the first point,
concluding 	no 	fundamental 	error 	occurred 	regarding 	the 	competency
evaluation and procedure in this case:
Thurston’s 	first 	argument 	on 	appeal 	is 	that 	it 	was
fundamental error to begin the trial without determining his
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competency. 	See Zern v. State, 191 So. 3d 962, 964 (Fla. 1st
DCA 	2016) 	(“[O]nce 	the 	court 	has 	reasonable 	grounds 	to
question the defendant's competency, the court has no choice
but to conduct a hearing to resolve the question.”); Cotton v.
State, 177 So. 3d 666, 667-68 (Fla. 1st DCA 2015) (“It is a due
process violation to proceed against an incompetent criminal
defendant.”). We have held, though, that a conviction can stand
if the trial court can retroactively determine competency. Chester
v. State, 213 So. 3d 1080, 1083 (Fla. 1st DCA 2017); see also
Dougherty v. State, 149 So. 3d 672, 679 (Fla. 2014). 	Here,
although the trial was already underway, the court promptly
determined Thurston’s competency once the issue reappeared.
There was no fundamental error.
Thurston, 250 So. 3d at 775; see Ex. H. 	Notably, the First DCA’s opinion
cites only Florida case law. 	The record and Florida case law supports the
First DCA’s decision. See Ex. A at 90 (Order of Competency); Ex. D at 112-
14; Dougherty, 149 So. 3d at 679 (“A new trial is not always necessary where
the issue of competency was inadequately determined prior to trial; a
retroactive 	determination 	of 	competency 	is 	possible” 	and 	the 	Florida
Supreme Court has held that “a nunc pro tunc competency evaluation could
be done where ‘there are a sufficient number of expert and lay witnesses
who have examined or observed the defendant contemporaneous with trial
available to offer pertinent evidence at a retrospective hearing.’” (quoting
Mason v. State, 489 So. 2d 734, 737 (Fla. 1986))); Chester, 213 So. 3d at
1083 (remanding for retroactive determination of competency, if possible,
where trial judge made no independent finding of competency after Chester’s
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pretrial competency evaluation). 	Thus, Thurston has not shown the state
court’s 	ruling 	and 	procedure 	regarding 	the 	competency 	determination
affected the fundamental fairness of his trial.
Based on the foregoing, Petitioner Thurston did not exhaust this
ground as a federal claim and it is procedurally defaulted. 	Moreover, this
ground does not warrant federal habeas relief as it raises only state law error.
This ground should be denied.
Ground 2: Appellate Court Error – Denial of IAC Claim
In his second ground, Petitioner Thurston asserts “the state courts’
decision denying [his] direct appeal claim that counsel was ineffective for
failing to ensure the question of competency had been resolved prior to the
commencement 	of 	trial 	was 	contrary 	to, 	or 	involved 	an 	unreasonable
application of, clearly established federal law, as determined by the Supreme
Court of the United States, or resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in
the state court proceedings.” ECF No. 1 at 5.” He points to counsel’s “failure
to timely request a continuance, to order an evaluation of sanity at the time
of the offense, to object to a jury instruction on voluntary intoxication, and to
request a pretrial competency evaluation or move for a mistrial when a
portion of the trial was conducted absent a competency finding.” 	Id. at 5-6.
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Respondent indicates Thurston raised the claims in this ground as the
second point in his initial brief on direct appeal, rather than in a Rule 3.850
motion, and points out that IAC claims “are rarely addressed on direct
appeal.” ECF No. 8 at 16; see Ex. E at 42-52. Indeed, Respondent explains
that, in this case, the First DCA determined these IAC claims should be
raised in a Rule 3.850 motion. ECF No. 8 at 17; see Ex. H at 4. Respondent
concludes that, because Petitioner Thurston did not raise the claims in a Rule
3.850 motion, the claims are unexhausted and procedurally barred, and
Ground 2 should thus be denied. ECF No. 8 at 17-18.
In his reply, Thurston asserts, “As Respondent admits elsewhere (in
their 	response) 	when 	addressing 	this 	ground, 	a 	claim 	of 	ineffective
assistance of counsel may be raised on direct appeal if the claim is argued
as one of fundamental error.” ECF No. 19 at 3-4. He further asserts, “Given
that that is precisely what occurred when this ground was raised on direct
appeal, habeas relief is available as the claim was properly exhausted and
not procedurally barred.” 	Id. at 4.
A review of the state court record reflects that, in his direct appeal,
Thurston asserted as the second point: 	“Mr. Thurston was deprived of his
fundamental Sixth Amendment right to effective assistance of trial counsel
and his right to a fair trial.” Ex. E at 3. The relevant portion of the Summary
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of the Argument section of the brief states:
Mr. 	Thurston 	was 	deprived 	of 	his 	fundamental 	Sixth
Amendment right to effective assistance of trial counsel and his
right to a fair trial based on ineffective assistance of counsel.
Defense counsel’s failure to timely request a continuance, to
order an evaluation of sanity at the time of the offense, to object
to a jury instruction on voluntary intoxication, and to request a
pre-trial competency evaluation or move for a mistrial when a
portion of the trial was conducted absent a competency finding
constituted 	deficient 	attorney 	performance 	outside 	the 	wide
range 	of 	professionally 	competent 	assistance. 	There 	is 	a
reasonable probability that, 	but for counsel’s 	unprofessional
errors, the result of the proceeding would have been different.
Id. at 38. Petitioner Thurston’s explanation of Ground 2 in his § 2254 petition,
quoted, 	supra, is almost a verbatim recitation of this Summary of the
Argument. 	Compare ECF No. 1 at 5-6 with Ex. E at 38.
As Respondent indicates, in Florida, IAC claims are rarely addressed
on direct appeal. ECF No. 8 at 16; see, e.g., Smith v. State, 998 So. 2d 516,
522 (Fla. 2008); Mansfield v. State, 758 So. 2d 636, 642 (Fla. 2000); Bracey
v. State, 109 So. 3d 311, 314-15 (Fla. 2d DCA 2013); Corzo v. State, 806
So. 2d 642, 645 (Fla. 2d DCA 2002). 	Indeed, the First DCA declined to
consider the IAC claims presented in this ground in Thurston’s direct appeal,
explaining:
Thurston’s second argument is that his trial counsel was
constitutionally 	ineffective. 	However, 	to 	succeed 	with 	this
argument 	on 	direct 	appeal, 	Thurston 	needed 	to 	show
“ineffectiveness obvious on the face of the record, indisputable
prejudice, 	and 	an 	inconceivable 	tactical 	explanation 	for 	the
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conduct.” 	Morales v. State, 170 So. 3d 63, 67 (Fla. 1st DCA
2015) (on rehearing). 	He has failed to meet this heavy burden,
so he can raise his ineffectiveness claims only through a rule
3.850 motion.
Thurston, 250 So. 3d at 775; see Ex. H. 	Despite the First DCA’s explicit
decision not to consider the IAC claims on appeal and clarification that
Petitioner Thurston can raise the IAC claims only pursuant to Rule 3.850,
Thurston did not raise these claims in his Rule 3.850 proceeding. 	See ECF
No. 8 at 17-18; Ex. M at 144-71 (Amended Postconviction Motion, exclusive
of exhibits); see also Ex. M at 80-81 (Order Denying Postconviction Motion
in Part and Order to Amend), 226 (Order Denying Defendant’s Amended
Motion for Postconviction Relief, for reasons stated on the record), 304-14
(portion of transcript of evidentiary hearing that includes reasons court
denied relief). 	(Notably, Petitioner Thurston has raised IAC claims in
Grounds 5 (Jury Instruction), 6 (Speedy Trial), and 7 (Competency), infra,
similar or the same as some of the claims in this ground.)
Therefore, as Respondent asserts, this ground is unexhausted and
procedurally defaulted. 	See O’Sullivan, 526 U.S. at 845; Henderson, 353
F.3d at 892; Smith, 256 F.3d at 1138. See also, e.g., Lock v. Sec’y, Dep’t of
Corr., No. 1:07cv144-MP/GRJ, 2011 WL 3611408, at *5 (N.D. Fla. June 15,
2011) (Report and Recommendation to deny § 2254 petition, explaining in
pertinent part: “[I]n Petitioner’s Rule 3.850 proceeding, Petitioner raised only
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four of the ineffective-assistance claims raised in his brief on direct appeal,
and added a fifth ‘cumulative error’ claim that was not raised in his appellate
brief. 	The remaining three claims . . . were not raised in the Rule 3.850
motion, and therefore the Court agrees that such claims are unexhausted.”),
adopted by order of district judge, 2011 WL 3611398 (N.D. Fla. Aug. 17,
2011). This ground should be denied.
Ground 3: Post-Conviction Trial Court Error – Denial of Counsel
In his third ground, Petitioner Thurston asserts “the state courts’ refusal
to appoint counsel to represent [him] for his postconviction evidentiary
hearing was contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United
States, or resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceedings.” Id. at 6. Thurston explains the state court knew of his “mental
health issues and significant mental health history,” and “yet despite the court
colloquying Petitioner about that history and diagnosis, the court continued
to steadfastly refuse to appoint counsel to represent him at the hearing, even
after repeatedly faulting Petitioner for failing to issue subpoenas to secure
evidence and witnesses for the hearing.” 	Id.
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Respondent asserts Petitioner Thurston has not shown “a violation of
federal law remediable through § 2254 habeas relief.” 	ECF No. 8 at 18.
Respondent explains prisoners do not have a constitutional right to counsel
for collateral proceedings and the denial of a request for counsel in such a
proceeding 	does 	not 	state 	a 	claim 	cognizable 	in 	a 	federal 	habeas
proceeding. 	Id. at 19.
In his reply, Thurston asserts “Respondent relied on the wrong Federal
Constitutional Right” as Respondent relied on the Fourteenth Amendment
“when the actual claim cited to the Constitution’s Fifth Amendment.” 	ECF
No. 19 at 4. Thurston further asserts he satisfied all four prongs in Graham
v. State, 372 So. 2d 1363 (Fla. 1979), not addressed by Respondent, and
thus “any doubts as to whether to appoint counsel should be decided in favor
of the defendant.” ECF No. 19 at 4-5.
Similar to Ground 1, Thurston has not exhausted this ground as a
federal 	claim. 	As 	indicated 	above, 	in 	his 	appeal 	from 	the 	denial 	of
postconviction relief, Thurston asserted only one point: 	“The lower court
abused its 	discretion when it 	refused 	to 	appoint counsel to represent
Appellant for the evidentiary hearing on his motion for postconviction relief.”
Ex. N. 	With the exception of stating at the outset in the Summary of the
Argument section, that “[a]lthough there is no absolute right to counsel in
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postconviction relief proceedings, the decision whether to appoint counsel
must 	be 	decided 	in 	light 	of 	the 	Fifth 	Amendment’s 	due 	process
requirements,” id. at 3, Thurston’s Initial Brief cites only Florida state cases
and Florida Rules of Criminal Procedure, id. at iii, 3-14. 	Thus, because
Thurston did not alert the state courts to any federal ground he now asserts,
this ground was not fairly presented as a federal claim and is unexhausted.
See Baldwin, 541 U.S. at 32; Preston, 785 F.3d at 457-58; McNair, 416 F.3d
at 1303; see also O’Sullivan, 526 U.S. at 845; Duncan, 513 U.S. at 365-66;
Picard, 404 U.S. at 278.
This ground is procedurally defaulted because Thurston cannot obtain
another appeal from the denial of his Rule 3.850 motion. 	See O’Sullivan,
526 U.S. at 845. 	He has not alleged or shown cause for the default and
actual prejudice, 	nor has he alleged or shown actual innocence or a
fundamental miscarriage of justice. See id. at 848-49; see, e.g., Henderson,
353 F.3d at 892; Smith, 256 F.3d at 1138.
Moreover, and perhaps most important, even assuming Thurston did
properly exhaust this ground, it does not warrant federal habeas relief. The
Florida Supreme Court’s opinion in Graham, on which Thurston relies, is
based on Florida state law principles and specifically acknowledges that “no
court has determined that there is a constitutional right to the assistance of
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Case No. 4:23cv399-RH/MAF
counsel to aid in the preparation of a petition for post-conviction relief.” 372
So. 2d at 1364. 	See, e.g., Williams v. Crews, No. 5:11cv356-MMP/EMT,
2013 	WL 	1729004, 	at 	*4-*5 	(N.D. 	Fla. 	Feb. 	25, 	2013) 	(Report 	and
Recommendation to deny § 2254 petition and rejecting claim asserting state
courts violated petitioner’s constitutional rights to due process and equal
protection by denying counsel in Rule 3.850 proceeding), adopted by order
of district judge, 2013 WL 1729102 (N.D. Fla. Apr. 22, 2013).
Indeed, as of this date, there is no federal constitutional right to counsel
in state postconviction proceedings. 	See Pennsylvania v. Finley, 481 U.S.
551, 555 (1987) (“Because meaningful and equal access to the state court
system is adequately provided through the direct appeal process, there is
generally no constitutional right to effective assistance of counsel in state
collateral proceedings.”); see also Coleman v. Thompson, 501 U.S. 722,
756-57 (1991) (“Given that a criminal defendant has no right to counsel
beyond his first appeal in pursuing state discretionary or collateral review, it
would defy logic for us to hold that Coleman had a right to counsel to appeal
a state collateral determination of his claims of trial error.”); Martinez v. Ryan,
566 U.S. 1, 9 (2012) (reaffirming that prisoners have no independent
constitutional 	right 	to 	postconviction 	counsel, 	but 	recognizing 	that
“[i]nadequate assistance of counsel at initial-review collateral proceedings
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may 	establish cause for a prisoner’s 	procedural default 	of 	a claim 	of
ineffective assistance at trial”); Chavez v. Sec’y, Fla. Dep’t of Corr., 742 F.3d
940, 944 (11th Cir. 2014) (explaining “[t]he Supreme Court has long held that
there is no constitutional right to counsel in post-conviction proceedings,
even in capital cases”). Accordingly, the state post-conviction court’s denial
of 	Thurston’s 	request 	for 	appointment 	of 	counsel 	for 	the 	Rule 	3.850
proceeding was not contrary to or an unreasonable application of clearly
established federal law as determined by the U.S. Supreme Court. 	See 28
U.S.C. § 2254(d)(1)-(2). This ground should be denied. 	See, e.g., Williams
v. Dixon, No. 4:22cv003-MW/ZCB, 2025 WL 890520, at *10 (N.D. Fla. Jan.
13, 	2025) (Report and Recommendation to deny 	§ 2254 petition and
explaining, 	in 	pertinent 	part: 	“Because 	Petitioner 	had 	no 	federal
constitutional right to counsel at the Rule 3.850 evidentiary hearing, the state
trial court’s refusal to appoint him counsel did not violate clearly established
federal law. 	Thus Petitioner is not entitled to habeas relief . . . .”), adopted
by order of district judge, 2025 WL 1068575 (N.D. Fla. Apr. 9, 2025).
Ground 4: IAC – Failure to Investigate/Present Evidence
In his fourth ground, Petitioner Thurston asserts his trial counsel
provided ineffective assistance by “failing to investigate and present at trial
the 911 call made by Petitioner, the dispatch tape, and/or the BOLO report”
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and the state courts’ denial of his claim “was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined
by the Supreme Court of the United States, or resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings.” ECF No. 1 at 8.
Respondent asserts Thurston failed to exhaust his state remedies
regarding this ground because, although he raised the same or similar IAC
claim in the fourth ground of his amended Rule 3.850 motion, he abandoned
that claim in his appeal from the denial of postconviction relief. 	ECF No. 8
at 21-22. 	Respondent further asserts that, if addressed on the merits, this
ground should be denied as the state postconviction trial court accepted
defense counsel’s testimony, at the evidentiary hearing, that he made a
strategic decision not to introduce the 911 tapes. 	Id. at 22-26; see Ex. M at
279-80, 285, 308-09.
In his reply, Thurston asserts “the unconstitutional actions of the State
court in depriving him of the assistance of postconviction counsel caused
him to be deprived of what should have otherwise been an available
corrective process and/or rendered the state corrective process ineffective.”
ECF No. 19 at 10. He asserts this qualifies as an exception to the exhaustion
requirement and excuses him from any procedural default. Id. at 10-11. He
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further asserts the state postconviction court made its ruling without hearing
the other 911 calls involved in his claim “[a]nd the reason the court never
heard those calls was because the Petitioner had no idea he was required
to subpoena the records for the hearing.” 	Id. at 12.
As explained above, the record reflects that, in his appeal from the
denial of postconviction relief, Thurston raised only one point: 	“The lower
court abused its discretion when it refused to appoint counsel to represent
Appellant for the evidentiary hearing on his motion for postconviction relief.”
Ex. N. Thurston thus abandoned his other postconviction claims. See, e.g.,
Fernandez v. State, 351 So. 3d 224, 226 (Fla. 2d DCA 2022) (“Fernandez
has not argued or demonstrated that the postconviction court erred in
denying claim two [after the evidentiary hearing thereon], thereby waiving
review of the denial of claim two.”); Cati v. State, 190 So. 3d 1157, 1158 (Fla.
2d DCA 2016) (indicating that “Cati appeals a final order denying his motion
for postconviction relief filed pursuant to Florida Rule of Criminal Procedure
3.850 after an evidentiary hearing on some claims” and “[o]n appeal, he has
abandoned all claims in that motion save one”). Accordingly, this ground is
unexhausted and procedurally defaulted because he can no longer pursue it
in state court. 	See, e.g., Barritt v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1246,
1249 n.3 (11th Cir. 2020) (“Under Florida law, claims for postconviction relief
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are exhausted once they are appealed to the state district court of appeal.”);
Powell v. Allen, 602 F.3d 1263, 1269 (11th Cir. 2010) (“Exhaustion requires
that ‘state prisoners must give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of the State’s
established appellate review process.’” (quoting O’Sullivan, 526 U.S. at 845).
If considered, the ground should be denied. 	As an initial matter, the
only 911 call Thurston referenced at the evidentiary hearing was the call(s)
he made himself. 	Ex. M at 239, 246-48. 	During the hearing, the assistant
state attorney indicated, “I think he’s saying he made multiple calls. 	I only
have three calls and I have one of them that he made.” Id. at 259. Thurston
indicated he had no objection to those 911 calls being admitted as Exhibit 1
and he specifically said, “I want the third one played.” 	Id. at 260. The court
then directed the third one be played in open court; the transcript reflects that
“[d]ue to poor audio quality, this reporter is unable to prepare a transcript of
the audio recording.” Id. at 260-61. The judge asked Thurston if there were
“any other witnesses or evidence you wish to present?” and Thurston replied,
“No, sir.” 	Id. at 263. Thus, his assertion in the reply, ECF No. 19 at 12, that
the judge should have listened to “the other 911 calls” is not well taken.
At the conclusion of the evidentiary hearing, the state postconviction
trial court judge denied the claim, making the following findings:
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So as it relates to – as it relates to ground one [Ground
Four of the Amended Postconviction Motion], Mr. [Alexander]
Whitlock 	[defense 	counsel] 	testified 	credibly 	that 	that 	call,
although 	arguable 	hearsay, 	it 	may 	have 	been 	an 	excited
utterance and this Court need not decide whether it would have
been admitted or not under a hearsay exception.
The Court finds that it is a – it is very plausible that it may
have been admitted under a hearsay exception. 	But the Court
finds that Mr. Whitlock’s testimony was that he made a tactical
decision in this case as it relates to this case. 	That they had a
someone else did it defense and that this – this call could have
bolstered or supported the State’s case that Mr. Thurston was in
fact 	feeling 	threatened 	by 	a 	maroon 	car 	and, 	therefore,
discharged the weapon at that car which would have supported
the State’s case.
The case law is very clear that if a – any kind of plausible
tactical decision is made that – that it – the reviewing court should
not step in and find ineffective assistance if that is a plausible
tactical decision.
The Court finds that it is a plausible tactical decision.
Accordingly, it is – it is not – it is not ineffective. 	Furthermore,
even if it had been, the Court finds no prejudice in this case as –
as it – as it’s not – it does not contradict any of the other evidence
received.
Ex. M at 309-10. 	As indicated above, the court entered a written order
denying relief for the reasons stated on the record. 	Id. at 226. 	On appeal,
the First DCA per curiam affirmed the case without a written opinion. Ex. Q;
Thurston v. State, 352 So. 3d 788 (Fla. 1st DCA 2023). This adjudication on
the merits is entitled to AEDPA deference under 28 U.S.C. § 2254(d), even
though no reasoning is set forth in the decision. See Richter, 562 U.S. at 99
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(“When a federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary.”); Wright, 278 F.3d at 1254-55. 	A
review of the record supports the state courts’ determination. 	See Wilson,
584 U.S. at 125.
As the postconviction court found, defense counsel Alexander Whitlock
testified at the evidentiary hearing that he made a strategic decision not to
utilize the tape of the 911 call. 	See Ex. M at 279-80. 	Whitlock testified the
call did not support the defense theory that Thurston did not have a firearm
and was not the shooter. Id. at 280. In particular, Whitlock testified on direct:
Q 	All right. 	Do you – can you explain why you didn’t
present it [the 911 call made by Thurston] at trial as evidence?
A 	So arguably it’s hearsay. 	I mean let’s assume you can
get 	past 	the 	hearsay 	maybe 	it’s 	– 	it’s, 	you 	know, 	excited
utterance. 	And I’m going again off memory. 	I haven’t had a
chance to look at the transcript of the hearing or the trial.
My recollection is Ms. Norris’ theory of the case is that Mr.
Thurston perceived the individual in the red or maroon car as
threatening him or trying to kill him and then opened fire on that
individual. 	They did find the driver. 	I can’t remember if it was
Chase Phelps. 	He testified at trial, confirmed his car was shot.
They had went out there the day of the shooting, found bullets in
his car, no gun.
Our theory of the case was there was someone else that
was doing the shooting and I think I would have had a concern
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that introducing the call, it would kind of go into the State’s theory
as I remember it that he perceived the individual in the red car as
threatening him and that’s why he shot as opposed to our theory
which was that he wasn’t the shooter. 	And so I – I didn’t
introduce the – the call. But it may have been arguably hearsay
as well.
Q Okay. But even if it, you know, you had tried to admit it
or it wasn’t hearsay, you didn’t believe it would have helped your
case, your defense?
A 	That – that’s correct. 	I don’t think it would have helped
our case.
Ex. M at 279-80. On cross, Whitlock again explained the decision not to use
Thurston’s 911 call:
I think you could make the argument that the 911 call might
fall into that [hearsay] exception. But as I recall the case and the
State’s theory of the case, I don’t know – I don’t believe that the
– the call was beneficial because it made it seem more likely that
the State was correct that you had misperceived the individual in
the red car as threatening you and that’s why you opened to fire
according to the State Attorney. That’s – that was their theory of
the case, not mine obviously.
And hearing the call, I believe that is why I would not have
introduced it.
Id. at 285.
The state postconviction trial court judge found Whitlock’s testimony
credible. 	Ex. M at 309. 	The state postconviction trial court sits as the fact-
finder and determines witness credibility in Rule 3.850 proceedings. 	See,
e.g., Consalvo v. Sec’y for Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011)
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(“Determining the credibility of witnesses is the province and function of the
state courts, not a federal court engaging in habeas review.”); Smith v. State,
697 So. 2d 991, 992 (Fla. 4th DCA 1997); Fla. R. Crim. P. 3.850(d). “Federal
habeas courts have ‘no license to redetermine credibility of witnesses whose
demeanor was observed by the state court, but not by them.’” Consalvo, 664
F.3d at 845 (quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)).
Further, the record, 	as quoted 	supra, 	and case law support the
postconviction trial court’s findings and conclusion that defense counsel
made a strategic decision not to introduce Thurston’s 911 call at trial and this
did not constitute ineffective assistance. See, e.g., Gregory v. State, 224 So.
3d 719, 731 (Fla. 2017) (“‘[S]trategic decisions do not constitute ineffective
assistance of counsel if alternative courses have been considered and
rejected 	and 	counsel’s 	decision 	was 	reasonable 	under 	the 	norms 	of
professional conduct.’ Occhicone v. State, 768 So. 2d 1037, 1048 (Fla.
2000).”). 	See also, e.g., Waters v. Thomas, 46 F.3d 1506, 1518-19 (11th
Cir.1995) (en banc) (“We cannot, and will not, second guess such [strategic]
decisions” that “trial counsel are called upon to make.”); Dingle v. Sec’y for
Dep’t of Corr., 480 F.3d 1092, 1099 (“[C]onsidering all the circumstances,
we give great deference to choices dictated by reasonable strategy.”).
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Based on the foregoing, this ground is unexhausted and procedurally
defaulted. 	If 	considered 	on 	the 	merits, 	Petitioner 	Thurston 	has 	not
demonstrated that the state post-conviction court’s rejection of this ground
involved an unreasonable application of clearly established federal law or
that it was based on an unreasonable determination of the facts. See 28
U.S.C. § 2254(d)(1)-(2). Accordingly, this ground should be denied.
Ground 5: IAC – Failure to Request Jury Instruction
In his fifth ground, Petitioner Thurston asserts that his counsel was
“ineffective for failing to request a jury instruction be given informing the
jurors that Petitioner was on trial with the aid of psychotropic medication(s)”
and the denial of this claim “was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme
Court of the United States, or resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in
the state court proceedings.” 	ECF No. 1 at 9-10. 	He explains his “mental
health was at issue from the very start of the criminal prosecution against
him,” 	and 	he 	“continues 	to be treated with a cocktail of 	psychotropic
medications” as he was “throughout the pretrial proceedings and the trial
itself.” 	Id. at 10. 	He asserts that “Florida Rule of Criminal Procedure Rule
3.215(c)(2) . . . mandates that a jury should be informed, via a very specific
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jury instruction, whenever a criminal defendant in trial is proceeding under
the assistance and through the administration of psychotropic medications,”
but counsel did not request this instruction, resulting in prejudice. 	Id.
Respondent asserts that, as with Ground 4, supra, Thurston did not
exhaust his state remedies for this ground because, although he raised it as
the third claim in his amended Rule 3.850 motion, he abandoned that claim
in his appeal from the denial of postconviction relief. 	ECF No. 8 at 26-27.
Respondent further asserts the ground fails on the merits. 	Id. at 27-30.
In his reply, Thurston asserts “the unconstitutional actions of the State
court in depriving him of the assistance of postconviction counsel caused
him to be deprived of what should have otherwise been an available
corrective process and/or rendered the state corrective process ineffective.”
ECF No. 19 at 10. He asserts this qualifies as an exception to the exhaustion
requirement and excuses him from any procedural default. 	Id. at 10-11. He
further asserts Respondent “attempt[s] to confuse the court by blending the
jury instruction issue with that of competency to proceed.” 	Id. at 14. 	He
asserts “given the evidence presented during the trial of Petitioner’s ‘bizarre’
behavior, this jury instruction was absolutely necessary to inform the jurors
that the reason Petitioner appeared well behaved was precisely due to the
administration of psychotropic medications.” 	Id. at 16.
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As set forth in the analysis of Ground 4, supra, the record reflects that,
in his appeal from the denial of postconviction relief, Thurston raised only a
challenge to the postconviction court’s denial of counsel for the evidentiary
hearing, Ex. N, and he thus abandoned his other postconviction claims. See,
e.g., Fernandez, 351 So. 3d at 226; Cati, 190 So. 3d at 1158. 	Accordingly,
this ground is unexhausted and procedurally defaulted because he can no
longer pursue it in state court. 	See, e.g., Barritt, 968 F.3d at 1249 n.3;
Powell, 602 F.3d at 1269.
If considered, the ground should be denied. 	The state postconviction
trial court judge denied the claim, making the following findings on the record:
As 	it 	relates 	to 	ground 	three 	[of 	the 	Amended
Postconviction Motion] of the psychotropic medications, again,
Mr. Whitlock testified credibly. 	This is the only evidence the
Court has before it as to mannerisms and the – the actions of the
defendant at the trial because I get the same thing any appellate
court would get to do is review a transcript.
There 	is 	no 	indication 	in 	the 	transcript 	of 	any 	– 	any
mannerisms that would need explaining to the jury as it relates
to the conduct within the course of the trial which this instruction
was designed to deal with.
This instruction is not made to say that somebody is not on
medication at the time of an alleged offense. 	That could be
potentially be dealt with as a not guilty by reason of insanity
defense which was not made in this case. And to the extent that
it was not, that was not the issue brought up on this 3.850.
Furthermore, there were – there were issues dealt with at
the trial level that – that that timing was denied and that is
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reviewable on direct appeal, any motions for continuance to look
into that defense. And that is – that could have been dealt on in
direct appeal.
Ex. M at 311-12. 	The court also made findings regarding Thurston’s
demeanor during the evidentiary hearing, explaining:
And I found Mr. Thurston actually to be a very pleasant
individual, acting appropriately within court. 	Speaking to the
Court, asking appropriate questions, behaving in appropriate
way . . . .
He has been acting in a perfectly appropriate way showing
no mannerisms that would call into question. 	And I don’t know
that that’s what he was doing then but – but the indications before
this Court is that he’s on medication now, he was on medication
then, and that is in fitting with Mr. Alex Whitlock’s testimony.
Thereby, 	the 	defendant 	has 	not 	shown 	ineffective
assistance nor has he shown any prejudice in this case.
Id. at 312. 	As indicated above, the court entered a written order denying
relief for the reasons stated on the record. 	Id. at 226. 	On appeal, the First
DCA per curiam affirmed the case without a written opinion. Ex. Q; Thurston
v. State, 352 So. 3d 788 (Fla. 1st DCA 2023). This adjudication on the merits
is entitled to AEDPA deference under 28 U.S.C. § 2254(d), even though no
reasoning is set forth in the decision.
The record supports the state postconviction court’s findings. 	As that
court found, defense counsel Whitlock testified at the evidentiary hearing that
during his interactions with Thurston, “there was nothing I thought that
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unusual about his behavior,” Thurston communicated with him, and Thurston
was involved in his defense. Ex. M at 281. Whitlock testified, “I’ve had some
people that participate a lot, some that participate a little. 	He was on the
lower 	side 	but 	I 	didn’t 	think 	he 	was 	doing 	anything 	strange 	or 	not
understanding.” 	Id. Whitlock further testified:
Q 	All right. 	And, I guess, you know, is there a reason or
did you feel it necessary to request that jury instruction on
psychotropic medication?
A 	I – I’ll be honest with you, I didn’t even – it didn’t cross
my mind to think whether I should or shouldn’t request it. I don’t
think I would have had it been something – as I sit here, I don’t
remember ever thinking or giving it any thought. 	I don’t think I
would have requested it at the trial as we sit here today but I
really don’t recall even considering it at the time.
Q 	So it wasn’t something that you believed would have
helped your defense?
A I don’t – I don’t think so, no.
Q Okay. And why is that?
A Our – our defense was he wasn’t the shooter. We really
cross-examined the witnesses who gave statements. 	Their
statements changed a lot from the night of the shooting to the
actual trial about what they saw, what they remember.
So ours was – my defense was someone else shot, wasn’t
him. 	Yeah, he freaked out about it but he wasn’t the shooter.
And so I just don’t – I don’t think the instruction would have
changed anything or helped or hurt in any way.
Id. at 281-82. 	On cross, Whitlock testified, “Even if we got that [jury
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instruction] in, I would not have been able to argue that your conduct or you
weren’t responsible or you were not guilty by reason of insanity.” 	Id. at 289.
He explained:
Now, I had moved several times with Judge Dempsey to get a
continuance to have the insanity eval conducted to determine if
that would be a viable defense which would then have – had we
found grounds for it, I would be able to present to the jury that
you were not guilty by reason of insanity for whatever reason,
maybe medication you were off your meds, medical issues,
whatever it could have been. That was denied.
I 	agree 	it 	was 	unfortunate 	that 	the 	judge, 	you 	know,
continued the case a week, several days to allow me to redepose
a witness that the State didn’t disclose as opposed to, you know,
letting us do the insanity eval.
And I agree it’s unfortunate that the competency issue was
discovered by the judge [at that point] midtrial and then we didn’t
get our opportunity I feel to explore potential insanity defense.
But I don’t believe the jury instruction that you’re talking
about would have permitted me to make an argument to the jury
that you were not guilty because being off meds or something
like that. I think I would have needed a doctor to have performed
an insanity eval and – and – and told her that, yeah, we have a
viable defense, not guilty by reason of insanity, and we didn’t get
that opportunity.
Id. at 289-90. 	Thurston then followed up, referring to his demeanor at trial
and indicating he wanted the instruction to let the jury know he was on
medication, and counsel responded Thurston’s behavior at trial was not
unusual and the instruction was not relevant:
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Q The – the – the motion is – the – the motion that you had filed
it wasn’t to let the jury – filed for me, to let the jury like see that a
motion to file saying that I’m pleaing insanity. It was just to notify
the jury that psychological medication play a part in my life.
That if I might be sitting up here looking in space or –
sliming out the mouth or daydreaming to let them know that – to
let those individuals know that I am on psychotropic medication
and because of this medication I’m able to function. Without the
medication, I’m unable to function just like Dr. Hinson (sic) say.
With the medication I’m able to function. 	Without the
medication, I’m not able to function. 	So I – the motion that you
should have filed was to let the jury know that not to – not for
them to say that I’m on insanity. 	That’s not – that’s not what –
what the issue is about.
A Yeah. I mean, I – I – I don’t recall anything about your behavior
at trial being unusual, that the jury instruction was relevant and I
don’t think the jury instruction would have permitted me to make
the argument you’re suggesting. 	Perhaps the jury could have
inferred that I don’t know. 	But I really, like I testified earlier, I
mean candidly it’s not a jury instruction that I –
Q Okay.
A – recall giving much or any thought to. 	I don’t believe it was
necessary or change anything but I’m not going to sit here and
say that I gave it a lot of consideration either.
Id. at 290-91.
As explained in the analysis of Ground 4, supra, and as set forth above,
the state postconviction trial court judge found Whitlock’s testimony credible,
Ex. M at 311, and the state postconviction trial court sits as the fact-finder
and determines witness credibility in Rule 3.850 proceedings. 	See, e.g.,
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Consalvo, 664 F.3d at 845; Smith, 697 So. 2d at 992; Fla. R. Crim. P.
3.850(d). “Federal habeas courts have ‘no license to redetermine credibility
of witnesses whose demeanor was observed by the state court, but not by
them.’” Consalvo, 664 F.3d at 845 (quoting Marshall v. Lonberger, 459 U.S.
422, 434 (1983)).
The record, including the portion of the evidentiary hearing quoted
above, as well as a review of the state rule/instruction referenced by
Thurston, support the postconviction trial court’s findings and conclusion
regarding Thurston’s demeanor and the relevance of the rule/ instruction.
See Ex. D (trial transcript); Fla. R. Crim. P. 3.215(c)(2) (“If the defendant
proceeds to trial with the aid of medication for a mental or emotional
condition, on the motion of defense counsel, the jury shall, at the beginning
of the trial and in the charge to the jury, be given explanatory instructions
regarding such medication.”). Cf., e.g., Alston v. State, 723 So. 2d 148, 157-
58 (rejecting Alston’s argument that trial court erred in denying defense
request to inform jury he was taking psychotropic medication where trial court
denied defense motion pursuant to of Rule 3.215(c) stating rule “is triggered
only when there is a prior adjudication of incompetency or restoration, or
when a defendant exhibits inappropriate behavior and it is shown that the
inappropriate behavior is a result of the psychotropic medication,” trial court
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deferred ruling on motion to observe Alston’s behavior at trial; during trial,
Alston had outburst, defense counsel again requested instruction, and court
denied 	request, 	noting 	no bizarre 	or 	inappropriate behavior 	had 	been
observed: 	“The plain language of this rule requires an instruction on
psychotropic medication only when the defendant’s ability to proceed to trial
is because of such medication. Appellant's motion requesting the medication
instruction did not allege that appellant was able to proceed to trial because
of the psychotropic medication. Nor was there any such evidence before the
court in the competency proceeding. 	The motion simply asserted that
appellant 	was 	on 	psychotropic 	medication. 	This 	assertion 	alone 	was
insufficient 	to 	require 	an 	instruction 	on 	psychotropic 	medication.
Accordingly, under these circumstances, we find no error in the refusal to
give the requested instruction.”).
Based on the foregoing, this ground is unexhausted and procedurally
defaulted. 	If 	considered 	on 	the 	merits, 	Petitioner 	Thurston 	has 	not
demonstrated that the state courts’ rejection of this ground involved an
unreasonable application of clearly established federal law or that it was
based on an unreasonable determination of the facts. 	See 	28 U.S.C.
§ 2254(d)(1)-(2). Accordingly, this ground should be denied.
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Ground 6: IAC – Speedy Trial
In his sixth ground, Petitioner Thurston asserts that his trial counsel
was “ineffective for failing to file a notice of expiration of speedy trial time
followed by a motion to dismiss based upon a speedy trial violation” and the
state postconviction court’s denial of his claim “was contrary to, or involved
an 	unreasonable 	application 	of, 	clearly 	established 	federal 	law, 	as
determined by the Supreme Court of the United States, or resulted in a
decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings.” 	ECF No. 1
at 12. 	In support, Petitioner explains “[t]he time period between when [he]
was 	arrested 	and 	charged 	to 	when 	his 	trial 	commenced 	spanned
approximately two years,” and no circumstances “warranted such a span of
time and [he] never sought or received a waiver of his Constitutional Right to
a speedy trial.” 	Id. at 12. 	He asserts that the fact that he was in federal
custody during a portion of this time “did not provide an exception to the
speedy trial rule and therefore provides counsel with no shelter from their
inactions in failing to pursue Petitioner’s discharge on speedy trial grounds.”
Id. 	He asserts that if counsel had “filed the requisite notice and motion for
discharge, the State court would have been duty bound to dismiss the case
against Petitioner,” and thus the prejudice “is clear and apparent.” 	Id.
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Respondent asserts that, as with Grounds 4 and 5, supra, Thurston did
not exhaust his state remedies for this ground because, although he raised
this issue as the sixth claim in his Rule 3.850 motion, he abandoned that
claim in his appeal from the denial of postconviction relief. ECF No. 8 at 31.
Respondent further asserts the ground fails on the merits. 	Id. at 31-35.
In his reply, Thurston asserts “the unconstitutional actions of the State
court in depriving him of the assistance of postconviction counsel caused
him to be deprived of what should have otherwise been an available
corrective process and/or rendered the state corrective process ineffective.”
ECF No. 19 at 10. He asserts this qualifies as an exception to the exhaustion
requirement and excuses him from any procedural default. 	Id. at 10-11.
As set forth in the analysis of Grounds 4 and 5, supra, the record
reflects that, in his appeal from the denial of postconviction relief, Thurston
challenged 	only 	the 	postconviction 	court’s 	denial 	of 	counsel 	for 	the
evidentiary hearing, Ex. N, and he thus abandoned his other postconviction
claims. 	See, e.g., Fernandez, 351 So. 3d at 226; Cati, 190 So. 3d at 1158.
Accordingly, this ground is unexhausted and procedurally defaulted because
he can no longer pursue it in state court. See, e.g., Barritt, 968 F.3d at 1249
n.3; Powell, 602 F.3d at 1269.
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If considered, the ground should be denied. 	At the conclusion of the
evidentiary hearing, the state postconviction trial court judge denied the
claim, making the following findings:
And, finally, as it relates to expiration of speedy trial, the
Court will note that the evidence before this Court is – is the long
period of time this defendant was in federal custody making him
unavailable for trial.
Now, to the extent that the State has to go begging to get
him back from a separate sovereign, that’s not really before the
Court. The issue is he was – he was in the hands of a separate
sovereign and during that time he is unavailable.
So to say when the actual speedy trial ran, I don’t think it
was in that – there’s no indication that that December date is
accurate. 	That would have been outside of any unavailability
tolling.
And, furthermore, again Mr. Whitlock testified – he testified
very credibly that he wanted some delays. 	He would have
waived speedy trial by doing that to look into other things. 	That
was not done and the defendant did proceed in a hasty manner
towards trial.
So, accordingly, the defendant has failed to show counsel
was ineffective and has failed to show prejudice.
Ex. M at 312-13. 	As indicated above, the court entered a written order
denying relief for the reasons stated on the record. 	Id. at 226. 	On appeal,
the First DCA per curiam affirmed the case without a written opinion. Ex. Q;
Thurston v. State, 352 So. 3d 788 (Fla. 1st DCA 2023). This adjudication on
the merits is entitled to AEDPA deference under 28 U.S.C. § 2254(d), even
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though no reasoning is set forth in the decision. See Richter, 562 U.S. at 99;
Wright, 278 F.3d at 1254-55.
The record supports the state postconviction court’s findings. Defense
counsel Whitlock testified at the evidentiary hearing that, when he took over
the case from the former defense counsel, Thurston was still in federal
custody. Ex. M at 283. He further testified:
Q I want to go to ground six, the speedy trial ground. When
you took over what can you tell us about the status of speedy
trial?
A 	So when I took over Mr. Thurston was still in federal
custody. 	He – once he resolved his federal case he was
transported back to Leon County, you know, State of Florida
custody and went to trial pretty quickly at that point.
I do not know if his speedy trial was ever raised initially. 	I
will say I requested to continue the trial several times. One time
it was – well, for two reasons. One, that I never had a chance to
speak with him and trial was moving pretty quickly up on us. That
was denied. I also moved to continue to see if I could pursue an
insanity evaluation to see if that was a viable defense and that
was denied. 	So I – if speedy hadn’t been waived, I had waived
it by requesting those continuances.
Q Okay. And in your conversations with Mr. Thurston did
he ever request to demand a speedy trial?
A Not that I recall.
Id.
As explained in the analysis of Grounds 4 and 5, supra, and as set
forth above, the state postconviction trial court judge found Whitlock’s
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testimony credible, Ex. M at 313, and the state postconviction trial court sits
as 	the 	fact-finder 	and 	determines 	witness 	credibility 	in 	Rule 	3.850
proceedings. 	See, e.g., Consalvo, 664 F.3d at 845; Smith, 697 So. 2d at
992; Fla. R. Crim. P. 3.850(d). 	“Federal habeas courts have ‘no license to
redetermine credibility of witnesses whose demeanor was observed by the
state court, but not by them.’” Consalvo, 664 F.3d at 845 (quoting Marshall
v. Lonberger, 459 U.S. 422, 434 (1983)). 	Further, the record, including the
portion of the evidentiary hearing quoted above, as well as a review of Florida
Rule of Criminal Procedure 3.191(e), support the judge’s findings and
conclusion regarding the speedy trial issue. 	See Fla. R. Crim. P. 3.191(e)
(“A person who is in federal custody or incarcerated in a jail or correctional
institution outside the jurisdiction of this state or a subdivision thereof, and
who is charged with a crime, is not entitled to the benefit of this rule until that
person returns or is returned to the jurisdiction of the court within which the
Florida charge is pending and until written notice of the person’s return is
filed with the court and served on the prosecutor. . . .”); see, e.g., Holmes v.
State, 653 So. 2d 464, 466 (Fla. 1st DCA 1995) (“Notwithstanding the fact
that appellant was being physically housed in the Hamilton County Jail when
he committed the offenses which are the subject of this appeal, we conclude
that, from a time prior to the commission of those offenses until he was
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picked up at the Talladega Federal Correctional Institute by deputies from
the Hamilton County Sheriff’s Office, appellant was continuously ‘in federal
custody.’. . . Therefore, according to the express language of [Rule 3.191(e)],
appellant was not entitled to the benefit of that rule until he had been
‘returned to the jurisdiction of the court within which the Florida charge is
pending and until written notice of th[at] fact [had been] filed with the court
and served upon the prosecutor.’ 	In particular, he was not permitted to file
a demand for speedy trial until such time; and the period within which trial
must commence without a demand did not begin to run until such time.”).
Based on the foregoing, Petitioner Thurston has not demonstrated that
the 	state 	courts’ 	rejection 	of 	this 	ground 	involved 	an 	unreasonable
application of clearly established federal law or that it was based on an
unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1)-(2).
Accordingly, this ground should be denied.
Ground 7: IAC – Failure to Ensure Petitioner’s Competency
In his seventh ground, Petitioner Thurston asserts that his trial counsel
was “ineffective, in violation of [his] constitutional rights under the 5th , 6th , and
14th Amendments when they allowed the State to prosecute, convict, and
sentence him to prison without ensuring Petitioner was (1) competent at the
time of the alleged offense; and (2) competent to stand trial.” 	ECF No. 1 at
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14. In support, Petitioner explains “[t]he State court record is literally littered
with evidence that [he] was suffering some sort of psychotic break at the time
of the alleged incident.” 	Id. He asserts “[t]he single competency evaluation
conducted midtrial by just a single mental health expert was inadequate to
protect [his] Constitutional Rights to ensure he was competent to proceed to
trial,” and “counsel was ineffective for acquiescing to the finding, contrary to
Rule 3.210 of the Florida Rules of Criminal Procedure and Florida law.” 	Id.
at 15. Thurston further asserts “counsel was ineffective for failing to request
that Petitioner be evaluated for competency at the time of the alleged incident
and for failing to pursue the possibility of an insanity defense.” 	Id.
Thurston acknowledges, and Respondent points out, that he did not
raise this ground in state court and thus failed to exhaust his state remedies,
so this ground is procedurally defaulted. ECF No. 1 at 15; ECF No. 8 at 35.
See O’Sullivan, 526 U.S. at 845; Henderson, 353 F.3d at 892; Smith, 256
F.3d at 1138. Thurston asserts he “raises this claim here as an exception to
the procedural default rule under Martinez v. Ryan,” 566 U.S. 1 (2012), as
he “was pro se in his initial state court postconviction proceedings and was
unaware of the Constitutional Violations at that time.” ECF No. 1 at 15.
In Martinez, the U.S. Supreme Court held that “[w]here, under state
law, claims of ineffective assistance of trial counsel must be raised in an
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initial-review collateral proceeding, a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective assistance at
trial, if in the initial-review collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective.” 	566 U.S. at 17. 	“To overcome
the default, a prisoner must also demonstrate that the underlying ineffective-
assistance-of-trial-counsel claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit.” 	Id. at 14; see
McKiver v. Sec’y, Fla. Dep’t of Corr., 991 F.3d 1357, 1368 (11th Cir. 2021)
(“[T]o show that an underlying ineffective-assistance-of-counsel claim is
‘substantial,’ a petitioner must establish that ‘jurists of reason would find it
debatable.’” (quoting Hittson v. GDCP Warden, 759 F.3d 1210, 1269-70
(11th Cir. 2014))).
Respondent asserts the underlying IAC claim asserted by Thurston
does not qualify as substantial. 	ECF No. 8 at 36-44. 	Among other things,
Respondent points out that Thurston has not provided any report from a
mental health professional to support his claim that he was not competent to
stand trial. 	Id. at 44.
In his reply, Petitioner Thurston asserts that if he had “received the
assistance of competent counsel in the preparation and presentation of this
claim in State court,” then postconviction counsel would have secured a
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sworn statement from a medical expert. ECF No. 19 at 17. He asserts “he
is entitled to an evidentiary hearing in this Court where he may create a
record that establishes the instant claim of ineffective assistance.” 	Id. at 18.
At least some of Petitioner Thurston’s assertions in this ground appear
to be another attempt to challenge the trial court’s mid-trial determination
and/or procedure for determining that he was competent to stand trial, and
should be rejected for the reasons set forth in the analysis of Grounds 1 and
2, supra. 	Importantly, a determination of competency to stand trial differs
from a determination of insanity at the time of the offense, as the Eleventh
Circuit has explained:
The competency standard asks whether a defendant, at the time
of trial (or at the time of the relevant proceeding) has the
“sufficient 	present 	ability 	to 	consult 	with 	his 	lawyer 	with 	a
reasonable degree of rational understanding,” and “whether he
has 	a 	rational 	as 	well 	as 	factual 	understanding 	of 	the
proceedings against him.” Peede v. State, 955 So. 2d 480, 488
(Fla. 2007). Insanity, on the other hand, is determined at the time
of 	the 	charged 	offense 	and 	is 	analyzed 	under 	a 	different
standard. 	See Fla. Stat. § 775.027(1)(a)-(b). 	That is why the
Florida Supreme Court has explained that “[w]hether a defendant
is competent to stand trial is not necessarily relevant on the
question of whether [he] was insane at the time of the [offense].
Competency to stand trial and insanity at the time of the offense
involve the defendant’s mental state at separate and distinct
points in time.” Patton v. State, 784 So.2d 380, 387 (Fla. 2000).
Cf. United States v. Fortune, 513 F.2d 883, 888-89 (5th Cir.
1975) (noting that introduction of evidence on the issue of
competency 	“may 	indeed 	have 	a 	prejudicial 	effect 	on 	a
defendant’s right to a fair trial on the issue of sanity”).
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Hayes v. Sec’y, Fla. Dep’t of Corr., 10 F.4th 1203, 1213 (11th Cir. 2021).
Here, defense counsel stipulated to the report of the expert, Dr. Hudson,
appointed during the break in the trial, regarding competency to stand trial,
and reiterated, “Our concern was mostly an inability to get an insanity
evaluation done. That was our only objection.” Ex. D at 113.
To 	the 	extent 	Thurston 	argues 	his 	counsel 	provided 	ineffective
assistance by not asserting he was not guilty by reason of insanity, as
Respondent indicates, he has not presented an affidavit or testimony or any
sort of proffer to show a mental health expert would testify he was insane at
the time of the offense. 	See ECF No. 8 at 38; § 775.027, Fla. Stat. (2015)
(insanity defense); see, e.g., Hayes v. Sec’y, Fla. Dep’t of Corr., 10 F.4th
1203, 1212-13 (11th Cir. 2021) (reversing district court’s grant of habeas
relief on IAC claim regarding withdrawal of insanity defense and explaining
record contains “lay reports of bizarre behavior indicative of mental illness
leading up to and continuing after the attack” as well as “post-offense
psychological evidence,” in particular that Hayes was found incompetent and
transferred to mental health facility; however, regarding medical evidence,
“there was no expert evaluation or opinion on the issue of sanity” and “all of
the medical evidence related to competence to stand trial, which was based
on Mr. Hayes’ mental condition more than a year after the attack”).
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Moreover, 	defense 	counsel 	requested 	a 	continuance 	to 	further
investigate a possible insanity defense, but the trial judge denied the request.
Ex. D at 6-7, 113. 	Thus, defense counsel was not unaware of Thurston’s
mental health/drug use issues, and, although the trial court denied the
continuance to investigate the possible insanity issue, defense counsel did
reference Thurston’s odd behavior in closing argument and attempted to use
it as part of the defense theory. Ex. D at 455 (“We see Mr. Thurston [in the
surveillance video] in there in his striped shirt. 	He gets in the back and he
takes off his clothes. 	And I want you to watch that video to go back and
deliberate, because there is a very important part of it when he’s walking by
the camera with his clothes off just in his boxers.”), 456 (“Where is this gun
Mr. Thurston is supposed to have? 	Where is he hiding it? 	You have seen
the size of the gun. It has to be somewhere. You’ve got the video. You’ve
got a witness there when he is just about naked. 	No one sees this gun.”),
457 (“If my client is the shooter, when he is stripping down at McDonald’s
next to someone, where is this firearm? . . . We have two panicked witnesses
who were kind of focused on Mr. Thurston being weird….”).
Based on the foregoing, Petitioner Thurston has not presented a
substantial underlying IAC claim and he has not shown prejudice. 	See
Martinez, 566 U.S. at 14; McKiver, 991 F.3d at 1368. 	Accordingly, the
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procedural default of this ground should not be excused, and this ground
should be denied.
Ground 8: IAC – Failure to Request Jury Instruction
In his eighth ground, Petitioner Thurston asserts that his trial counsel
provided ineffective assistance because “they failed to object to the State’s
impermissible stacking of inferences in order to obtain a conviction against
Petitioner for the primary offense(s) of aggravated assault with a firearm.”
ECF No. 1 at 16. Petitioner explains:
The allegations of aggravated assault with a firearm stem
from 	three 	individuals 	who 	became 	scared 	after 	multiple
gunshots were discharged within the perimeter of a McDonald’s
parking lot. 	The State charged Petitioner with being the person
responsible for discharging the firearm that put these individuals
in fear. 	At trial, the State presented these and other witnesses
to the incident. 	Although these witnesses offered testimony
about what was a harrowing experience, not a single State
witness testified that they saw the gun in Petitioner’s hands or
that Petitioner was the person shooting the gun. 	In the wake of
the 	gunshots, 	the 	gun 	was 	located 	in 	the 	vicinity 	of 	the
McDonalds. 	The bullet casings found in the parking lot were
matched to the gun. 	The gun was tested for DNA and for
fingerprints, but returned negative results to the Petitioner. There
was no GSR testing done of Petitioner’s hands and there was no
testimony or any physical evidence whatsoever placing the gun
in Petitioner’s hands or establishing that Petitioner was the
person who actually discharged the firearm. 	Yet despite the
complete absence of any direct evidence that Petitioner was the
person who actually fired the shots, he was charged, tried,
convicted and sentenced to prison as the shooter.
How the State accomplished this was fairly straightforward:
The State laid the foundation for what was to follow during the
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initial voir dire of the jury venire. 	There, the State talked about
the existence of a peanut butter and jelly sandwich. Essentially,
the prosecutor explained that as jurors, they could infer that
someone had made the peanut butter sandwich simply by virtue
of the fact that the sandwich existed. 	This explanation not only
laid the groundwork for the witness testimony to come, it also
worked to relieve the state of their burden of proving every
essential element of the charged conduct against Petitioner.
There was no objection to this by counsel. From there, the State
presented a litany of witnesses; all testifying that Petitioner was
at the scene, behaving in a bizarre[] manner and seen in the
parking lot at the time of the gunshots. 	So what the State
basically did was build a peanut butter and jelly sandwich by
taking 	multiple 	inferences 	about 	Petitioner’s 	presence 	and
behavior and giving the jury permission to assume that Petitioner
had 	to 	have 	been 	the 	person 	who 	discharged 	the 	firearm
because he was acting so strangely. 	A criminal conviction and
prison sentence under such circumstances fails to comport with
due process and with Federal and Florida law. Counsel’s failure
to object to the State building a case against Petitioner by
stacking multiple inferences and then gaining a conviction based
upon nothing but inferences rendered counsel ineffective as that
term has been defined. Certainly, and had counsel objected on
these 	grounds 	at 	any 	point 	in 	the 	proceedings, 	there 	is 	a
reasonable probability that the outcome of the trial would have
been different. 	Moreover, and had counsel objected but been
unsuccessful in those objections, the issue would have been
preserved for review on direct appeal. 	Counsel’s failure to take
any action in this regard permitted the State to obtain multiple
convictions against Petitioner without presenting proof beyond a
reasonable doubt as to every element of the charged conduct.
Id. at 16-17 (footnote omitted).
As in Ground 7, Petitioner acknowledges, and Respondent points out,
that he did not raise this ground in state court and thus failed to exhaust his
state remedies, so this ground is procedurally defaulted. 	ECF No. 1 at 17;
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ECF No. 8 at 44. 	See O’Sullivan, 526 U.S. at 845. 	See, e.g., Henderson,
353 F.3d at 892; Smith, 256 F.3d at 1138. 	He asserts he “raises this claim
here as an exception to the procedural default rule under Martinez v. Ryan”
as he “was pro se in his initial state court postconviction proceedings and
was unaware of the Constitutional Violations at that time.” ECF No. 1 at 17.
Respondent asserts, as with Ground 7, Petitioner cannot demonstrate
a substantial underlying IAC claim. ECF No. 8 at 45. Respondent explains
defense counsel made the stacking-of-inferences argument in the motion for
judgment of acquittal (JOA) and, in denying the motion, the trial judge found
no improper stacking of inferences. 	Id. at 45-46. 	Respondent asserts the
record demonstrates no improper stacking of inferences. 	Id. at 46-47.
In his reply, Thurston asserts that “[i]t is axiomatic that evidence is not
sufficiently conclusive if the fact-finder must draw two or more inferences to
establish the existence of a criminal act.” ECF No. 19 at 20. He asserts the
facts of his case “show that is precisely what occurred” in his trial. 	Id. 	He
“agrees that counsel made passing reference to this issue during his closing
arguments to the jury,” but he does not agree with “Respondent’s assertion
that counsel made this argument as part of a motion for judgment of
acquittal” and states, “That assertion of Respondent is patently untrue. 	On
this the record speaks for itself.” 	Id. at 21.
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The state court record shows that after the State rested its case,
defense counsel made a JOA motion:
MR. BEARD: Your Honor, at this time, the defense moves
for a judgment of acquittal and argues that viewing the evidence
in the light most favorable to the State, that the State has failed
to make a prima facie case as to Counts I, II, and III of the
Information, each being a count of aggravated assault with a
firearm.
In order to find Mr. Thurston guilty of aggravated assault
with a firearm, the State would have to prove four elements
beyond a reasonable doubt.
The first is that Mr. Thurston intentionally and unlawfully
threatened either by word or act to do violence to the alleged
victims.
Our argument, Your Honor, is that this is a circumstantial
evidence 	case. 	The 	State 	hasn’t 	produced 	any 	direct
evidence that Mr. Thurston was armed with a firearm or that
he fired any gunshots. 	I provided Your Honor and the State
with two pieces of case law.
The first one is Sims v. State. 	The citation is 110 So.3d
113. 	It’s a Florida Second DCA case from 2013. 	In that case,
the District Court of Appeal upheld a judgment of acquittal
notwithstanding in a case where there was only circumstantial
evidence of identity that the defendant had fired shots from a
vehicle at the alleged victims in the court. 	That case held that
there was, 	the trial evidence was insufficient to support
convictions for aggravated battery with a deadly weapon
and aggravated assault with a deadly weapon. 	The reason
was there was no direct evidence that the shots were fired
from the car or by the defendant, and that the State’s case
was built on a pyramid of inferences, and the circumstantial
evidence didn’t exclude reasonable alternatives.
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In this case, we have similar issues of identification. Of
the four witnesses who took the stand during this trial, who were
at the scene at McDonald’s during the alleged incident, Ms.
Gordon, Ms. Horne, Mr. Phelps and Mr. Mills, none of the
victims could definitively say that they saw Mr. Thurston
holding a gun. 	Their statements to the police at the time right
after the incident, each of them testified to something to the effect
that he was holding his arm up, and they said, like he was holding
a gun. None of them said that they actually saw a firearm or that
they saw a muzzle flash or that they saw him firing any shots.
Additionally, 	there’s 	no 	direct 	evidence 	linking 	Mr.
Thurston to the firearm or the spent casings recovered from
the scene such as DNA or fingerprints.
Now, in the Sims case, Your Honor, it’s actually a relatively
short case. There’s a lengthy dissent in here. But the proposition
upon which we’re relying takes up the first maybe page or so.
And on page three of the copy I gave you on the left hand, it says
a criminal defendant is entitled to a judgment of acquittal if
there is no direct evidence of guilt and if the circumstantial
evidence does not exclude every reasonable hypothesis of
innocence.
We would maintain that the State hasn’t done so in this
case. 	There’s evidence that there was a man in a white shirt
who fled the scene.
Mr. Ratcliff testified that after he heard the gunshots, he
looked over at the scene, and approximately 10 feet away from
where the casings were recovered by the police, the man ran
west along the north edge of McDonald’s, which would be
consistent with somebody fleeing the scene.
And, Mr. Mills, who was inside of the McDonald’s at the
time of the alleged incident, testified that Mr. Thurston went
outside. Mr. Mills heard some gunshots. And then Mr. Thurston
came back inside the McDonald’s.
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So the defense theory there would be that there was
another person there who was actually the shooter.
The second case that I have provided, Your Honor, State
v. McClendon. The citation is 707 So.2d 800. It’s a 1998 Florida
Fourth DCA case. That case stands for the proposition that mere
presence at the scene of the crime is insufficient by itself to
convict.
Our argument would be that all the State has proven thus
far is that Mr. Thurston was there on that night. 	But again,
that there isn’t any direct evidence linking him to the firearm,
the spent casings, or having possessed a gun or having
fired a gun. 	And based on the foregoing argument, Your
Honor, we would ask that Your Honor grant our motion for
judgment of acquittal.
Ex. D at 387-90 (bold emphasis added).
In response, the prosecutor distinguished the two cases relied on by
defense counsel. 	Id. at 390-94. 	The prosecutor explained the differences
and also asserted direct evidence existed in this case:
In this case, I think it’s different because you have three
witnesses testifying that a man in a striped shirt and a black hat,
which 	is 	exactly 	what 	the 	defendant 	was 	wearing 	on 	the
surveillance video, was the only one in the vicinity at the time of
the shooting behind Erika Horne and Ms. Gorden’s vehicle. The
only one in the area at the time Mr. Phelps vehicle was shot at,
which we have evidence of via the projectile that was located in
the gas can.
Even Rayshun Mills testified to his suspicious behavior.
. . . .
This [case] is different here. 	You have multiple witnesses
saying he was acting strange, he was behaving strangely. 	He
was talking to people who weren’t there. 	He was paranoid. 	He
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was delusional. 	He was hallucinating. 	He appeared to be on
drugs. 	He was threatening employees of the McDonald’s. 	He
was getting into fights with them.
He was attempting to get in fights with Mr. Mills as well.
That 	he 	thought 	people 	were 	following 	him. 	He 	thought
somebody was after him. 	Everyone describes that suspicious
behavior, and they’re all consistent that the only person who
came out of the McDonald’s prior to the shooting was this man
in the striped shirt, who although they can’t point to him in court
today, they have all identified his shirt as being what was worn.
They have all identified his shirt as being what was worn.
And all of the officers testified that the people did identify this
man to them on scene, including Mr. Phelps who came back in
the vehicle with his parents and said, that man right there is the
man that shot at me, then identified him on the scene.
He probably at the time was identified by, you know, his
height, his weight, the clothing he was wearing, because it was
fresher in their mind then that it is today when he’s dressed
differently. 	He’s put on weight. 	But that identification is still
sufficient.
So 	I 	would 	beg 	to 	differ 	that 	this 	is 	a 	circumstantial
evidence case. I believe there is direct evidence by Mr. Phelps,
who on scene identified Thurston as being the person who shot
at him. And all of the other evidence is consistent with that.
Lastly, to address the testimony of Mr. Ratliff, he clearly
was confused about several things. 	He thought it took law
enforcement 30 minutes to arrive, when we know through law
enforcement testimony, they were there within five minutes of
getting Ms. Horne’s 911 call.
He was, I would note, the farthest witness of all of them.
He was in a vehicle out in the street at the intersection, whereas
Ms. Horne, Ms. Gorden, Mr. Ratcliff and Mr. Phelps were all at
the McDonald’s location. Those were all the ones who identified
him.
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Mr. Ratcliff said he saw a man in a white shirt fleeing, but
he didn’t see anybody else. And I would submit if you look at that
T-shirt, and I’m going to argue later, he thought he saw white
because the whole top half of the shirt appears to be white. 	It’s
very light-colored, a light-colored blue, but it appears to be white
from a distance at nighttime.
He had said he only saw the upper body, didn’t see what
was on the lower body, and saw this man running away. 	So I
believe that that’s combined with Officer Amos’ testimony of
reviewing the surveillance, and looking behind the McDonald’s in
the direction that Mr. Ratcliff saw this man running; and where
they ultimately found the firearm was Mr. Thurston fleeing the
scene.
So I think it’s more than a circumstantial case, but even if
it were, there’s more than sufficient evidence to put it to the jury.
Id. at 392-95.
The court denied the JOA motion, distinguishing the cases cited by
defense counsel and explaining its ruling:
Okay. 	I’m going to find that this is not a circumstantial
evidence case. [Un]like Sims where the evidence – or the State’s
theory was a principal theory and no one could put the defendant
at the scene, here there’s significant evidence that puts the
defendant at the scene.
And then in the McClendon case cited by the defense, it
sounds like there was sufficient evidence that the defendant was
at the scene, but no other evidence. But in this case we, looking
at the evidence in the light most favorable to the State, we have
a lot of other evidence that he was involved in this crime,
including the testimony of Ms. Gorden, last week, the testimony
of Ms. Horne today, as well as Mr. Phelps.
And, additionally, the prior statements of identification are
specifically 	excluded 	from 	hearsay 	statements. 	And 	the
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statements of Mr. Phelps made at the scene were admitted under
that specific exclusion to hearsay.
So based on all the evidence, and looking at it in the light
most favorable to the State, I’m going to deny the motion for
judgment of acquittal.
Id. at 395-96.
Thus, although defense counsel did not raise an objection as described
by Petitioner, defense counsel did raise an argument to the trial judge, in the
JOA motion, concerning the alleged impermissible stacking of inferences
and lack of direct evidence. 	The trial judge rejected the argument and the
case proceeded. As Respondent indicates, Petitioner has not demonstrated
IAC in this regard. 	See ECF No. 8 at 46; Griffin v. State, 866 So. 2d 1, 16
(Fla. 2003) (“[T]rial counsel’s performance cannot be deemed deficient when
he raised this very issue at trial.”). In addition, defense counsel pointed out
in closing argument to the jury, “To find my client guilty, that’s what you have
to do. You have to make these inferential leaps for the State.” Ex. D at 461-
62; see id. at 464 (defense counsel in closing: 	“And remember, ladies and
gentlemen, the only way the State can prove its case is by relying on those
assumptions, relying on those inferences. 	Well, that is giving them the
benefit of the doubt. 	It is not your job to give them the benefit of the doubt.
They have to prove their case.”).
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Moreover, as Respondent also indicates, no improper stacking of
inferences occurred in this case. See ECF No. 8 at 46-47. The jury properly
found 	Thurston 	was 	the 	shooter 	based 	on 	the 	trial 	testimony, 	prior
statements of identification, and reasonable inferences drawn therefrom.
See Ex. D at 61-64 (Markeshia Gorden’s trial testimony); 120-24, 133-35,
139-40, 147-48 (Erika Horne’s trial testimony); 156, 159-62 (Chase Phelps’s
trial testimony). 	Gorden, Horne, and Phelps all testified that Thurston was
the shooter and Thurston was the only person outside the McDonald’s. Ex.
D at 63, 122, 147.
Based 	on 	the 	foregoing, 	Petitioner 	Thurston 	has 	not 	shown 	a
substantial underlying IAC claim and prejudice therefrom. See Martinez, 566
U.S. at 14; McKiver, 991 F.3d at 1368. 	Accordingly, the procedural default
of this ground should not be excused, and this ground should be denied.
Conclusion
Petitioner Thurston is not entitled to federal habeas relief. 	It is
respectfully 	RECOMMENDED 	that the § 2254 petition, ECF No. 1, be
DENIED.
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
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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).” Rule
11(b) provides that a timely notice of appeal must still be filed, even if the
court issues a certificate of appealability.
Petitioner fails to make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,
483-84 (2000) (explaining substantial showing) (citation omitted). Therefore,
the Court should deny a certificate of appealability.
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.” 	The parties shall make any argument regarding a
certificate by filing objections to this Report and Recommendation.
Leave to appeal in forma pauperis should also be denied. See Fed. R.
App. P. 24(a)(3)(A) (providing that before or after notice of appeal is filed,
the court may certify appeal is not in good faith or party is not otherwise
entitled to appeal in forma pauperis).
Recommendation
It is therefore respectfully RECOMMENDED that the Court DENY the
§ 2254 petition (ECF No. 1). It is further RECOMMENDED that a certificate
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of appealability be DENIED and that leave to appeal in forma pauperis be
DENIED.
IN CHAMBERS at Tallahassee, Florida, on March 10, 2026.
S/ Martin A. Fitzpatrick
MARTIN A. FITZPATRICK
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Within fourteen (14) days after being served with a copy of this
Report and Recommendation, a party may serve and file specific
written objections to these proposed findings and recommendations.
Fed. R. Civ. P. 72(b)(2). A copy of the objections shall be served upon
all other parties. 	A party may respond to another party’s objections
within fourteen (14) days after being served with a copy thereof. 	Fed.
R. Civ. P. 72(b)(2). 	Any different deadline that may appear on the
electronic docket is for the Court’s internal use only and does not
control. 	If a party fails to object to the magistrate judge’s findings or
recommendations as to any particular claim or issue contained in a
Report and Recommendation, that party waives the right to challenge
on appeal the district court’s order based on the unobjected-to factual
and legal conclusions. 	See 11th Cir. R. 3-1; 28 U.S.C. § 636.
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