3:25-cv-00301•REED v. SECRETARY, DEPARTMENT OF CORRECTIONS, STATE OF FLORIDA
REED v. SECRETARY, DEPARTMENT OF CORRECTIONS, STATE OF FLORIDA
3:25-cv-00301Flnd28 de jan. de 2026
Texto completo
1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION SHAUN REED, Petitioner, vs. Case No.: 3:25cv301/LAC/ZCB SECRETARY DEPARTMENT OF CORRECTIONS, Respondent. ___________________________________/ REPORT AND RECOMMENDATION This is a habeas corpus case filed under 28 U.S.C. § 2254. (Doc. 7). Respondent has answered the petition, and Petitioner has replied. (Docs. 12, 16). For the reasons below, Petitioner is not entitled to habeas relief.1 I. Factual Background Petitioner and Stephanie Jackson dated for two years, but Ms. Jackson ended their relationship in late June 2013. (Doc. 12-3 at 137- 38). After the breakup, Ms. Jackson repeatedly told Petitioner not to contact her. Nonetheless, Petitioner continued to do so “every day, all 1 This matter may be resolved without an evidentiary hearing. Rule 8(a), Rules Governing Section 2254 Cases. Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 1 of 28
2 day.” (Id. at 138, 146-47). Within two weeks of the breakup, Ms. Jackson had started to rekindle a relationship with an old flame, Dwight Murphy. (Id. at 139-40, 147-48). Mr. Murphy was at Ms. Jackson’s home one night, and Petitioner slashed the tires on Mr. Murphy’s car as it sat outside Ms. Jackson’s home. (Id. at 147-48). On a later date, July 9, 2013, Petitioner had his cousin drive Petitioner through Ms. Jackson’s neighborhood. (Id. at 19-20). While driving through, Petitioner saw Ms. Jackson’s son, Tramar Jackson, walking on the street with his girlfriend, Alice Hathaway. (Id. at 20). Mr. Murphy was also walking with Mr. Jackson and Ms. Hathaway. (Id. at 21). As Petitioner watched, Ms. Hathaway and Mr. Murphy went into Ms. Jackson’s house, while Tramar talked to some friends outside. (Id. at 40). Upon seeing Mr. Murphy, Petitioner asked his cousin if the guy (i.e., Mr. Murphy) was the same guy that Petitioner had previously seen on Facebook and suspected of being involved with Ms. Jackson. (Id. at 21). The cousin confirmed it was the same guy. Petitioner then jumped out of his cousin’s car while it was still moving. (Id. at 22, 33). After jumping Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 2 of 28
3 out of the moving car, Petitioner went to Ms. Jackson’s home. (Id. at 33). He then entered the home without permission. (Id. at 153). Once inside the home, Petitioner headed to Ms. Jackson’s bedroom. (Id. at 139-40). There he found Mr. Murphy kneeling beside the bed talking to Ms. Jackson, who was sick with a migraine headache. (Id. at 139-40. 179). As Mr. Murphy stood to retrieve a glass of water, Petitioner attacked Mr. Murphy with a knife. (Id. at 179-81). Petitioner then turned his attention to Ms. Jackson and began stabbing her with the knife. (Id. at 140-43). While Petitioner was stabbing Ms. Jackson, her son Tramar entered the home. (Id. at 51). Upon seeing what was happening, Tramar hit Petitioner in the head and “told him to get off my mom.” (Id.). Petitioner then fled the home. (Id. at 52). A short time later, paramedics and police officers arrived at the home. They found Ms. Jackson lying in a pool of blood, and they saw Mr. Murphy bleeding from stab wounds. (Id. at 66, 101-05). Medical helicopters transported both Ms. Jackson and Mr. Murphy to the hospital. (Id. at 103). Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 3 of 28
4 At the hospital, it was determined that Ms. Jackson had nine stab wounds. (Id. at 123). As a result of the stab wounds, Ms. Jackson’s spinal cord was partially severed. (Id. at 160-63). Because of that injury, Ms. Jackson had partial paralysis in her leg and required the assistance of a cane to walk. (Id. at 162). The injuries caused by Mr. Murphy’s stab wounds were serious, but not life-threatening. (Id. at 124-26, 129-30). Petitioner was subsequently charged in state court with two counts of attempted second degree murder and one count of burglary of an occupied dwelling with assault or battery. (Doc. 12-2). The case proceeded to a jury trial. The jury found Petitioner guilty of attempted second degree murder of Stephanie Jackson, aggravated battery of Dwight Murphy (a lesser included offense of attempted second degree murder), and burglary of an occupied dwelling with assault or battery. (Doc. 12-3 at 290-92). The trial court sentenced Petitioner to forty-five years’ imprisonment. (Doc. 12-4). II. Procedural History Petitioner appealed to Florida’s First District Court of Appeal (“First DCA”). (Doc. 12-6). That court affirmed. (Doc. 12-9). Petitioner Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 4 of 28
5 sought review in the Florida Supreme Court, but it declined jurisdiction. (Docs. 12-11, 12-13). Next, Petitioner filed a motion for postconviction relief in the state trial court under Florida Rule of Criminal Procedure 3.850. (Docs. 12-14, 12-15, 12-16). The state trial court denied the Rule 3.850 motion, and the First DCA affirmed. (Docs. 12-20, 12-25). Petitioner then moved his postconviction efforts to federal court by filing the current habeas corpus petition under 28 U.S.C. § 2254. (Doc. 1). His petition argues ineffective assistance of trial counsel. (Doc. 7). Respondent has answered the petition. (Doc. 12). III. Discussion A. Ground One: “Defense counsel rendered ineffective assistance of counsel by failing to present a ‘heat of passion’ defense at trial.” In Ground One, Petitioner alleges trial counsel was ineffective for not presenting a heat of passion defense. Petitioner alleges that there is a reasonable probability the jury would have found him guilty of the lesser included offense of attempted manslaughter for stabbing Ms. Jackson (instead of attempted second degree murder) had counsel Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 5 of 28
6 pursued a heat of passion defense. (Id. at 18-21). Petitioner presented this ineffective assistance claim in his state court Rule 3.850 motion. (Doc. 12-16 at 6-9). The state postconviction court held an evidentiary hearing. 1. Evidentiary hearing Petitioner testified during the evidentiary hearing on his Rule 3.850 motion. According to Petitioner’s testimony, he and Ms. Jackson were actually back together in a dating relationship when he stabbed her. (Id. at 15). He further testified that days before the stabbing he and Ms. Jackson went to a movie together, he stayed overnight at her house, and the two of them had sex. (Id. at 15-22). And he testified that he provided that information to his trial attorney, Floyd Griffith. (Id. at 44). Additionally, Petitioner testified that Attorney Griffith told him there was no such thing as a heat of passion defense. (Id. at 51). Attorney Griffith also testified at the evidentiary hearing. (Doc. 12- 19). Attorney Griffith explained that he had been an attorney for approximately forty years and had handled hundreds of criminal trials. (Id. at 76-77). Prior to the trial in this case, Attorney Griffith had Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 6 of 28
7 Petitioner evaluated by a mental health expert, Dr. Prichard. (Id. at 80- 81). Based on Dr. Prichard’s evaluation, Attorney Griffith determined that he had no viable insanity defense.2 (Id. at 81). Attorney Griffith denied ever telling Petitioner that there was no such thing as a heat of passion defense. (Id. at 82). Indeed, Attorney Griffith testified that he had considered raising a heat of passion defense. (Id. at 82). But Attorney Griffith ultimately concluded that such a defense was unlikely to succeed based on the facts and circumstances of this case. (Id. at 82-83). More specifically, Attorney Griffith had concluded that there was “no sudden provocation” that triggered Petitioner’s conduct. (Id. at 83).3 In explaining his conclusion, Attorney Griffith relied on the fact that Petitioner and Ms. Jackson were no longer 2 According to Dr. Prichard’s report (which was entered into evidence at the hearing), Petitioner’s “account of the events that led up to his current charges does not support that his functioning was impaired by a mental health disorder.” (Doc. 19-1 at 6; Doc. 12-19 at 55-56). Dr. Prichard further concluded that “the facts of the case do not and the information reported by [Petitioner] does not rise to the level of legal insanity. As such ultimate responsibility should remain with [Petitioner].” (Id.). 3 Before reaching that conclusion, Attorney Griffith had conducted multiple depositions during the discovery phase of this case. (Doc. 12-19 at 78). Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 7 of 28
8 in a relationship, that Petitioner had previously slashed Mr. Murphy’s tires in an attempt to scare him away from Ms. Jackson, and that Petitioner did not catch Ms. Jackson and Mr. Murphy engaged in any type of sexual activity. (Id.). Contrary to Petitioner’s testimony, Attorney Griffith stated that he did not recall Petitioner ever saying that he and Ms. Jackson had reconciled and were back together at the time of the stabbing. (Id. at 82). And Attorney Griffith testified that based on the evidence he did not believe there was an adequate basis to request a heat of passion jury instruction. (Id. at 84). Attorney Griffith stated, however, that looking at the matter with the benefit of hindsight perhaps “he could have asked for” a heat of passion instruction. (Id. at 83). In addition to Petitioner and Attorney Griffith, Dr. Heather Holmes testified at the evidentiary hearing. Dr. Holmes, a psychologist, was retained by Petitioner. Dr. Holmes testified that in her opinion at the time of the stabbing Petitioner was in an emotionally charged situation and acted in a heat of passion. (Doc. 12-19 at 63-65). On cross- examination, Dr. Holmes admitted that she had conducted no diagnostic Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 8 of 28
9 testing of Petitioner and based her opinion on information shared by Petitioner as well as her review of the trial transcript. (Id. at 69-70). 2. Denial of Petitioner’s Rule 3.850 motion After the evidentiary hearing, the state postconviction court issued a written opinion denying Petitioner’s Rule 3.850 motion. The state postconviction court noted that there were conflicts between the testimony of Petitioner and the testimony of Attorney Griffith. (Doc. 12- 20 at 10). And the state postconviction court resolved those conflicts in favor of Attorney Griffith. In doing so, the state postconviction court found that based on the “demeanor and credibility” of the witnesses, Petitioner’s testimony was “unreliable and subject to credibility issues” and Attorney Griffith’s testimony was “more credible and reliable.” (Id.). The state postconviction court further determined that Dr. Holmes’s testimony was insufficient to establish that Attorney Griffith provided ineffective assistance of counsel. (Id. at 11). The state postconviction court pointed out that Attorney Griffith had Petitioner evaluated prior to trial by Dr. Prichard, and the fact that Petitioner was able to “find postconviction mental health experts that reach different Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 9 of 28
10 and more favorable conclusions than the mental health expert consulted by trial counsel,” does not render trial counsel ineffective. (Id.). Based on Attorney Griffith’s credible testimony, the state postconviction court concluded that Petitioner had not satisfied the deficient performance prong of Strickland v. Washington, 466 U.S. 668 (1984). (Id. at 9-11). According to the state postconviction court, Attorney Griffith reasonably concluded that he was unlikely to prevail on a heat of passion defense. (Id. at 9-11). And the state postconviction court explained that an attorney does not perform deficiently by failing to pursue a meritless defense. (Id. at 11). Aside from finding that Petitioner had not shown deficient performance, the state postconviction court found that Petitioner had not met Strickland’s prejudice prong. (Id.). That was so because “there was overwhelming evidence” of Petitioner’s guilt and pursuing a heat of passion defense “would not have changed the outcome of the proceeding.” (Id.). Petitioner appealed to the First DCA, which summarily affirmed. (Doc. 12-25). Petitioner’s brief to the First DCA (Doc. 12-22) raised the same grounds as the § 2254 petition filed with this Court. Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 10 of 28
11 3. Analysis of Petitioner’s claim It is undisputed that Petitioner’s claim was denied by the state court on the merits. This Court, therefore, may only grant habeas relief if the state court’s decision4 (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). This is a “highly deferential standard,” which “demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). When considering a state prisoner’s habeas petition under § 2254(d), a federal court is not sitting as an appellate court with the mandate of correcting errors that may have occurred in the state court. Shinn v. Ramirez, 596 U.S. 366, 377 (2022). 4 Because the First DCA affirmed the denial of Petitioner’s Rule 3.850 motion without explanation, this Court must “look through” the unexplained decision to the state postconviction court’s rationale for denying the motion. Wilson v. Sellers, 584 U.S. 122, 125 (2018). Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 11 of 28
12 To be “contrary to” clearly established federal law under § 2254(d)(1), “the state court must either (1) apply a rule that contradicts the governing law set forth by Supreme Court case law, or (2) reach a different result from the Supreme Court when faced with materially indistinguishable facts.” Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010) (cleaned up). And to meet the unreasonable application standard, “a prisoner must show far more than that the state court’s decision was merely wrong or even clear error.” Shinn v. Kayer, 592 U. S. 111, 118 (2020) (cleaned up). Rather, the state court’s application of federal law must be “so obviously wrong that its error lies beyond any possibility for fairminded disagreement.” Id. (cleaned up). This standard reflects that the writ of habeas corpus is an “extraordinary remedy that guards only against extreme malfunctions in the state criminal justice systems.” Ramirez, 596 U.S. at 377 (cleaned up). Here, Petitioner alleges that the state court unreasonably applied Strickland in rejecting his ineffective assistance of counsel claim.5 To 5 The petition states in passing that the “state court’s rulings were based on unreasonable determination of the facts . . . .” (Doc. 7 at 21). To the extent that this passing reference could be construed as an argument Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 12 of 28
13 prevail on a Strickland claim, a petitioner must show that (1) counsel’s performance was constitutionally deficient, and (2) prejudice resulted. Strickland, 466 U.S. at 687. The deficiency prong focuses on “whether counsel’s assistance was reasonable considering all the circumstances.” Id. at 688. Trial counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. that habeas relief is warranted under § 2254(d)(2) because the state court decision was based on an unreasonable determination of the facts, such an argument lacks merit. A state court’s factual determinations “are entitled to a presumption of correctness unless the petitioner rebuts that presumption by clear and convincing evidence.” Pye v. Warden, 50 F.4th 1025, 1034 (11th Cir. 2022). Here, Petitioner has not rebutted that presumption of correctness. Indeed, the state court’s factual determinations are supported by the record. Similarly lacking in merit and not warranting much discussion is any argument that Petitioner is entitled to habeas relief under § 2254(d)(1) because the state court’s decision was “contrary to” Strickland. To be “contrary to” clearly established federal law under § 2254(d)(1), “the state court must either (1) apply a rule that contradicts the governing law set forth by Supreme Court case law, or (2) reach a different result from the Supreme Court when faced with materially indistinguishable facts.” Ward, 592 F.3d at 1155 (cleaned up). Here, the state court applied the correct legal rule (i.e., the Strickland standard). And there is no argument that the state court reached a different result than a Supreme Court decision involving indistinguishable facts. Thus, Petitioner is not entitled to habeas relief under the “contrary to” prong of § 2254(d)(1). Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 13 of 28
14 Both the Strickland standard and the standard for relief under § 2254 are “highly deferential.” Harrington v. Richter, 562 U.S. 86, 105 (2011). And when—in a case like the current one—“the two apply in tandem, review is doubly” deferential. Id. (cleaned up). The Supreme Court has warned that “habeas courts must guard against the danger of equating unreasonableness under Strickland[ʼs]” deficient performance prong with “unreasonableness under § 2254(d).” Id. Thus, “[w]hen § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. In the current case, there is such a reasonable argument for the reasons explained below. At the outset of the discussion, it is necessary to recognize that “[d]etermining the credibility of witnesses is the province and function of the state postconviction courts.” Broadnax v. Comm’r, Ala. Dep’t of Corr., 996 F.3d 1215, 1226 (11th Cir. 2021) (cleaned up). Thus, this Court must defer to the state postconviction court’s credibility determinations unless they are clearly erroneous. Id. Here, the state postconviction court found Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 14 of 28
15 after conducting an evidentiary hearing that Attorney Griffith’s testimony was credible while Petitioner’s testimony was not. That credibility determination was not clearly erroneous. In fact, it was fully supported by the record in this case. This Court, therefore, will defer to the state court’s acceptance of Attorney Griffith’s testimony that he never told Petitioner there was no such thing as a heat of passion defense. Moreover, the Court will defer to the state court’s rejection of Petitioner’s testimony that he and Ms. Jackson were back together at the time of the stabbing and that Petitioner had told Attorney Griffith as much. What the record reflects in this case is that Attorney Griffith considered the heat of passion defense and decided against it. More specifically, Attorney Griffith stated that he did not believe the evidence would support a finding that Petitioner acted as the result of adequate provocation. Indeed, the evidence introduced at trial established that Ms. Jackson was lying in bed sick, and Mr. Murphy was sitting beside her bed when Petitioner launched his attack. Ms. Jackson and Mr. Murphy were not engaged in some type of sexually intimate act. Nor were Petitioner and Ms. Jackson in a relationship at the time. Moreover, Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 15 of 28
16 the evidence showed that Petitioner had engaged in a pattern of jealous behavior in the days leading up to the stabbing. For example, Petitioner previously slashed Mr. Murphy’s tires when he saw his vehicle at Ms. Jackson’s house. And Petitioner was texting and calling Ms. Jackson “[e]very day, all day,” after she broke up with Petitioner. Thus, it was not unreasonable for Attorney Griffith to view the facts as showing Petitioner was more of a scorned and bitter ex-boyfriend who engaged in stalking-type behavior than he was a romantic partner who acted after being suddenly confronted with “adequate provocation as might obscure the reason or dominate the volition of an ordinarily reasonable man.” Taylor v. State, 316 So.3d 420, 427 (Fla. 1st DCA 2021). At bottom, Attorney Griffith’s decision to not pursue a heat of passion defense was a strategic decision. And “[s]trategic choices made after a thorough investigation are virtually unassailable.” Strickland, 466 U.S. at 690. That is true “[e]ven if in retrospect the strategy appears to have been wrong.” Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983). In such situations, counsel’s decision “will be held ineffective only if it was so patently unreasonable that no competent attorney would Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 16 of 28
17 have chosen it.” Id. This means that “[t]o avoid being branded ineffective, defense lawyers need not assert every nonfrivolous defense.” Rogers v. Zant, 13 F.3d 384, 388 (11th Cir. 1994). Here, the state postconviction court did not unreasonably apply Strickland because fairminded jurists could agree with the conclusion that Attorney Griffith’s decision was not “so patently unreasonable that no competent attorney would have chosen it.” Adams, 709 F.2d at 1445. It bears mentioning that it is not as though Attorney Griffith presented no defense. Instead of presenting a heat of passion defense, Attorney Griffith chose to pursue a failure of proof defense. Attorney Griffith challenged whether the prosecution had proven that Petitioner intended to commit a crime inside the house at the moment he entered (as required for burglary) and whether his conduct constituted attempted second degree murder (as opposed to a lesser included offense). (Doc. 12-3 at 254-262). That was not a “patently unreasonable” defense strategy. Underscoring the reasonableness of the strategy6 is the fact that it was 6 In assessing the Attorney Griffith’s performance, it is important to note that he was a very experienced defense attorney who had handled approximately 100 jury trials. (Doc. 12-19 at 76-77). Given Attorney Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 17 of 28
18 partially successful—the jury rejected the attempted second degree murder charge relating to Mr. Murphy (Count One) and instead found Petitioner guilty of the lesser included offense of aggravated battery. Although it is possible that another attorney may have chosen to pursue a heat of passion defense under these circumstances, that does not mean the state postconviction court unreasonably applied Strickland by finding that Attorney Griffith’s performance was not constitutionally deficient.7 See Parnell v. United States, 149 F.4th 1268, 1287 (11th Cir. 2025) (“It is not enough to claim that some or most other attorneys would have acted differently than trial counsel did.”). Accordingly, Petitioner is not entitled to habeas relief on Ground One. Griffith’s experience, “the presumption that his conduct was reasonable is even stronger.” See Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir. 2000). 7 Because Petitioner has failed to show that the state postconviction court unreasonably applied the deficient performance prong of Strickland, it is unnecessary to discuss the postconviction court’s finding that Petitioner also did not establish prejudice as required by Strickland’s second prong. See Strickland, 466 U.S. at 697 (“There is no reason for a court . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.”). Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 18 of 28
19 B. Ground Two: “Defense counsel rendered ineffective assistance of counsel by erroneously advising Petitioner Reed that he should not testify at trial.” In Ground Two, Petitioner alleges Attorney Griffith provided ineffective assistance by advising him against testifying at trial. (Doc. 7 at 21-26). According to Petitioner, absent counsel’s advice, he would have testified and told the jury that he and Ms. Jackson had an understanding that he could come into her home whenever he wanted without an invitation. And Petitioner says that if the jury had heard this testimony, then there is a reasonable probability it would have found him not guilty of the burglary charge because his entry into Ms. Jackson’s home was invited and, therefore, not unlawful. (Id. at 22-23). Petitioner presented this claim in his Rule 3.850 motion. (Doc. 12- 16 at 12-14). During the evidentiary hearing on that motion, Attorney Griffith explained that he discussed with Petitioner the issue of whether he should testify at trial. (Doc. 12-19 at 85-86). According to Attorney Griffith, Petitioner’s memory was lacking regarding the stabbing incident. Attorney Griffith advised Petitioner that if he took the stand, then the jury would learn that he was a convicted felon. Attorney Griffith Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 19 of 28
20 also explained that the trial judge conducted a colloquy with Petitioner to ensure that his decision not to testify was voluntary. The state postconviction court rejected Petitioner’s claim, finding that he had not satisfied either prong of Strickland. (Doc. 12-20 at 13- 14). In reaching that conclusion, the state postconviction court explained that the trial judge had conducted a colloquy to ensure Petitioner’s decision not to testify was voluntary. Furthermore, the state postconviction court found that Attorney Griffith made a reasonable strategic decision to advise Petitioner against testifying. And the state postconviction court concluded that Petitioner had not shown prejudice under Strickland because his proposed testimony “would not have changed the outcome of the trial.” (Id. at 17). Petitioner now claims that the state postconviction court’s decision involved an unreasonable application of Strickland. Thus, “the question [for this Court] is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard” for attorney performance. Richter, 562 U.S. at 105. The answer to that question is “yes”; there is Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 20 of 28
21 such a reasonable argument here. And that means Petitioner is not entitled to habeas relief. A criminal defendant has a right to testify at trial. United States v. Teague, 953 F.2d 1525, 1532 (11th Cir. 1992). That right is a personal one that can only be waived by the defendant. Id. Defense counsel is responsible for informing “the defendant of his right to testify or not testify, the strategic implications of each choice, and that it is ultimately for the defendant himself to decide.” Id. at 1533. Additionally, if defense counsel “believes that it would be unwise for the defendant to testify, counsel may, and indeed should, advise the client in the strongest possible terms not to testify.” Id. An attorney does not provide ineffective assistance by advising a defendant against testifying where testifying could open up the defendant to cross examination regarding his prior felony convictions. See Lisbon v. United States, 758 F. App’x 780, 783-84 (11th Cir. 2018) (rejecting argument that counsel provided ineffective assistance by advising defendant with a prior felony conviction not to testify because the conviction could be used as impeachment); see also Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 21 of 28
22 Preston v. Sec’y, Dep’t of Corr., 745 F App’x 835, 838 (11th Cir. 2018) (same). Here, the state postconviction court reasonably found that Attorney Griffith did not perform deficiently by advising Petitioner against testifying. It is clear from the record that Attorney Griffith informed Petitioner of his right to testify and discussed the matter with him.8 It is also clear that Petitioner understood that the decision regarding whether to testify was his alone to make. Indeed, Petitioner confirmed (under oath) to the trial judge that he understood his right to testify, that he had discussed that right with Attorney Griffith, and that he had voluntarily decided to waive that right. (Doc. 12-3 at 227-28). Under questioning by the trial judge, Petitioner confirmed that the decision not to testify was his decision, that the decision was not coerced, and that he understood that the decision was “not on your attorney, it’s ultimately your choice, and yours alone.” (Id. at 228); see generally Riolo v. United 8 Attorney Griffith testified at the evidentiary hearing about the conversation he had with Petitioner regarding his right to testify. (Doc. 12-19 at 85-86). Petitioner confirmed that this conversation occurred. (Id. at 48-49) Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 22 of 28
23 States, 38 F.4th 956, 968 (11th Cir. 2022) (recognizing that a petitioner bears “a heavy burden to show that his own statements, made under oath at the time, were false”). Thus, this is not a case where “defense counsel refused to accept the defendant’s decision to testify and would not call him to the stand.” Teague, 953 F.2d at 1534. Nor is it a case where “defense counsel never informed the defendant of the right to testify.” Id. Instead, this is a case where an experienced defense attorney advised a client that he believed testifying was a bad idea because it would allow the jury to learn Petitioner was a convicted felon9 while not supplying any information 9 Petitioner has not denied having these prior felony convictions, nor has he argued that defense counsel was incorrect regarding the prosecution’s potential use of the convictions for impeachment purposes. Additionally, Petitioner’s reliance on Everhart v. State, 773 So.2d 78 (Fla. 2d DCA 2000) is unavailing. In Everhart, defense counsel misinformed the defendant that if he testified the jury would “automatically” learn the “specific nature” of his prior convictions (as opposed to merely the existence of those convictions). Id. at 79. That is not what happened here—nothing in the record indicates that Attorney Griffith stated that the jury would automatically learn the nature of Petitioner’s four prior felony convictions. Instead, what the record shows is that Attorney Griffith told Petitioner that testifying would allow the jury to learn that Petitioner was a convicted felon. And, as cited above, the Eleventh Circuit has repeatedly found that it is not ineffective assistance for an attorney to advise a defendant against testifying on that basis. Lisbon, Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 23 of 28
24 that would likely be helpful to the jury. And, as the Eleventh Circuit has recognized, “if counsel believes that it would be unwise for the defendant to testify, counsel may, and indeed should, advise the client in the strongest possible terms not to testify.” Id. (emphasis added). The fact that Petitioner now wishes he had testified does not mean that Attorney Griffith performed ineffectively by advising Petitioner of his belief that the risks of testifying outweighed the benefits. Accordingly, Petitioner has not shown that the state postconviction court unreasonably applied Strickland to his claim that counsel performed ineffectively by advising him against testifying.10 See Jones, 487 F. App’x at 567 (finding that 758 F. App’x at 783-84; Preston, 745 F App’x at 838; Jones v. Sec’y, Dep’t of Corr., 487 F. App’x 563, 567 (11th Cir. 2012); Teague, 953 F.2d at 1533 n.9. 10 As previously mentioned, Petitioner testified at the evidentiary hearing on his Rule 3.850 motion. And the state postconviction court found that Petitioner was not a credible witness. (Doc. 12-20 at 10) (“The Court finds that the [Petitioner’s] testimony is unreliable and subject to credibility issues.”). According to the state postconviction court, if Petitioner had testified at trial in the same “manner, demeanor, and credibility [Petitioner] testified at the evidentiary hearing, it would have not changed the outcome” of the trial. (Id. at 17). Based on the record in this case, that was an eminently reasonable conclusion by the state postconviction court. So even if Petitioner could show that the state court’s finding on the deficiency prong of Strickland was unreasonable, Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 24 of 28
25 habeas petitioner failed to show counsel acted unreasonably by advising him not to testify when he had five prior felony convictions that the jury could have learned of on cross examination); see also Teague, 953 F.2d at 1533 n.9 (recognizing that the possibility “the defendant might be prejudiced by revelation of prior convictions” is a “good tactical reason[] why it may not be best for the defendant to testify”). As a result, Petitioner is not entitled to habeas relief on Ground Two. C. Ground Three: “Cumulative error.” In Ground Three, Petitioner claims the cumulative effect of the errors in this case deprived him of a fair trial. (Doc. 7 at 26). Under the “cumulative error” doctrine, the aggregation of non-reversible errors “can yield a denial of the constitutional right to a fair trial, which calls for reversal.” Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1284 (11th Cir. 2014). The Court must examine each of Petitioner’s claims of constitutional error and determine whether any actual error occurred. Id. When there has been no actual error, a “cumulative error” claim has he would not be entitled to relief because he has not shown that the state court’s finding on the prejudice prong of Strickland was unreasonable. Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 25 of 28
26 no merit. Id. (citation omitted). As explained above, there was no actual error here. So, Petitioner is not entitled to habeas relief on the cumulative error claim advanced in Ground Three. IV. Conclusion For the reasons above, Petitioner’s amended petition for habeas relief under 28 U.S.C. § 2254 petition should be denied. V. Certificate of Appealability Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant,” and if a certificate is issued “the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must still be filed, even if the Court issues a certificate of appealability. 28 U.S.C. § 2254 Rule 11(b). “Section 2253(c) permits the issuance of a COA only where a petitioner has made a ‘substantial showing of the denial of a constitutional right.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 26 of 28
27 (quoting § 2253(c)(2)). “At the COA stage, the only question is whether the applicant has shown that ‘jurists of reason could disagree with the district court’s resolution of his [or her] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.’” Buck v. Davis, 580 U.S. 100, 115 (2017) (citing Miller-El, 537 U.S. at 327). The petitioner here cannot make that showing. Therefore, the undersigned recommends that the district court deny a certificate of appealability in its final order. The second sentence of Rule 11(a) provides: “Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue.” Thus, if there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation. Accordingly, it is respectfully RECOMMENDED that: 1. The amended petition for habeas corpus under 28 U.S.C. § 2254 (Doc. 7) be DENIED and this case DISMISSED. 2. A certificate of appealability be DENIED. Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 27 of 28
28 At Pensacola, Florida, this 28th day of January 2026. /s/ Zachary C. Bolitho Zachary C. Bolitho United States Magistrate Judge Notice to the Parties Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the Report and Recommendation. Any different deadline that may appear on the electronic docket is for the Court’s internal use only and does not control. An objecting party must serve a copy of the objections on all other parties. A party who fails to object to the magistrate judge’s findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636. Case 3:25-cv-00301-MCR-ZCB Document 20 Filed 01/28/26 Page 28 of 28
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