MARTINEZ v. DIXON

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