Gregory Lamar Blackmon v. Secretary, Department of Corrections ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 18-11416
____________________
GREGORY LAMAR BLACKMON,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:15-cv-00161-WS-GRJ
____________________
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18-11416 Opinion of the Court 2
Before GRANT, TJOFLAT, and ED CARNES, Circuit Judges.
TJOFLAT, Circuit Judge:
Florida prisoner Gregory Lamar Blackmon appeals the
District Court’s denial of his 28 U.S.C. § 2254 habeas petition. We
issued a certificate of appealability on the following two issues:
(1) Whether the Florida District Court of Appeal
(“DCA”) denial of Blackmon’s claim that his appellate
attorney rendered ineffective assistance of counsel in
not assigning as error in the appeal of Blackmon’s
conviction of armed robbery the trial court’s failure
sua sponte to inform Blackmon of the dangers of joint
representation constituted a decision that was
contrary to or an unreasonable application of
Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052 (1984).
(2) Whether the DCA denial of Blackmon’s claim that
his trial attorney rendered ineffective assistance of
counsel in failing to object to the prosecutor’s
comments in closing argument to the jury about the
truthfulness of Michael Chester’s testimony
constituted a decision that was contrary to
or an unreasonable application of Strickland v.
Washington.1
1 We have rephrased the issues for purposes of clarity. The original language
was as follows: (1) “Whether Mr. Blackmon’s appellate counsel was ineffective
for failing to argue that the trial court erred in its treatment of Mr. Blackmon’s
decision to be jointly represented by his co-defendant’s counsel, and whether
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18-11416 Opinion of the Court 3
We conclude that the District Court properly denied
Blackmon’s § 2254 habeas petition.
I.
A.
On August 14, 2009, Michael Moore, the manager of
Sonny’s BBQ restaurant on North Monroe Street in Tallahassee,
Florida, had just finished closing the restaurant for the night and
was walking towards his car when he was approached by three
masked men in the parking lot. Moore attempted to get into his
car and drive away, but the men forced him out of his car at
gunpoint and tied his hands. The men then instructed him to
unlock the restaurant, turn off the alarm, open the safe and give
them its contents, which he did. The men then “hog-tied” Moore
with wire and left. Moore quickly freed himself and called 9-1-1.
The incident was captured on the restaurant’s surveillance video.
On September 2, 2009, while in custody for an armed
robbery of a Chevron gas station, Michael Chester told the
the state court’s ruling on this claim was contrary to or an unreasonable
application of clearly established federal law or was based on an unreasonable
determination of the facts” and (2) “Whether Mr. Blackmon’s trial counsel was
ineffective for failing to object to the prosecutor’s comments in closing about
the truthfulness of Michael Chester’s testimony, and whether the state
postconviction court’s ruling was contrary to or an unreasonable application
of clearly established federal law or was based on an unreasonable
determination of the facts.”
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Tallahassee police that he was involved in the Sonny’s robbery2
along with four other men: Jermaine Earl, Charles Green, Gregory
Blackmon, and an unidentified man.3 Chester explained that he,
Green, and Earl were the three masked gunmen who accosted
Moore and committed the robbery and that Blackmon and the
unidentified man had been driving back and forth on North
Monroe Street in front of Sonny’s acting as lookouts. He said that
Blackmon had communicated with Earl by cellphone during the
robbery.
During their subsequent investigation, the Tallahassee
police recovered clothing in Earl’s residence that matched
clothing worn by one of the robbers depicted on the Sonny’s
surveillance video. The police also obtained the cell phone
records for both Blackmon and Earl’s phones; the records
indicated that they had been talking to each other during the time
in which the robbery occurred. The records also indicated that
2 Chester was arrested for the armed robbery of the Chevron station on
August 20, 2009, and detained in the Leon County, Florida, jail. On September
2, 2009, he confessed to the Tallahassee police that he was involved in that
robbery, a robbery at Cash Advance, and the Sonny’s robbery.
3 Chester could not remember the man’s name but seemed to remember that
the man had worked at Sonny’s previously. The man told the group where
the safe was located and the name of Sonny’s manager.
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both Blackmon and Earl were in the area around Sonny’s at the
time of the robbery. 4
On September 4, 2009, the Tallahassee police arrested
Blackmon for the Sonny’s robbery5 and ten days later the State
Attorney of Leon County filed an information charging him with
the crime.6 The State Attorney filed a separate information against
Earl. It charged him with kidnapping in addition to the Sonny’s
robbery. 7 Both Blackmon and Earl pled not guilty and were
provided court-appointed counsel. Because the same evidence
would be presented against both defendants, the State moved the
Court on February 5, 2010, to consolidate Blackmon’s trial with
4 At trial, Detective Corbitt explained that an individual cell phone is always
in contact with cellular telephone towers or cell site locations. Furthermore,
a phone is constantly looking for the cellular tower or cellular site with the
strongest signal; this is typically the cellular tower or cellular site closest to it.
Cell phone carriers (such as AT&T or Verizon) record the cellular tower(s) or
cellular site(s) that a phone is using for any given telephone call. Armed with
this data, the police determined the general area in which Blackmon and Earl’s
cell phones were being used at the time of the robbery.
5 Blackmon was arrested on September 4, 2009. Earl was arrested shortly
thereafter. A warrant was issued for Green’s arrest, but as of the time of
Blackmon’s trial, the police had been unable to execute it. Officer Boccio
testified that the warrant for Green was outstanding.
6 The information was filed in the Circuit Court of Leon County. The State
Attorney filed like informations against Earl and Chester.
7 During a pretrial hearing, the prosecutor noted that while Blackmon had not
been charged with kidnapping, such a charge could certainly follow.
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Earl’s. The Court granted the motion and ordered Blackmon and
Earl to be tried jointly but with separate juries. Following
consolidation, Earl and Blackmon both retained John Edward
Eagen to represent them.
On May 20, 2010, the Court set Earl and Blackmon’s trial
date for the week of June 14, 2010. Prior to jury selection, Eagen
informed the Court that Blackmon was concerned about how the
joint trials would proceed, and that he was trying to explain the
procedure to Blackmon. During the Court-counsel colloquy that
ensued, Blackmon interrupted to say: “my concern was trying to
get my point of innocence across to just my jury. I [don’t] want
them to be distracted with other evidence because on my evidence,
you know, they got me on whatever.” The Court, the prosecutor,
and Eagen all explained to Blackmon that, because he was being
tried as a principal to armed robbery, the State would present the
same evidence regardless of whether the two trials were
consolidated. Blackmon then stated that he understood that the
same evidence would be presented, but that he did not want the
same jury as Earl. Eagen again explained to Blackmon that he and
Earl would have separate juries.
At the end of this discussion, the prosecutor asked the Court
“[i]f we could also reiterate [on the record] the waiver of [Blackmon
and Earl] being represented by the same counsel for appellate
purposes. I don’t want this to be an issue for appeal later. They
chose to hire the same attorney. I want to make sure it’s clear
they’re waiving that conflict.” Eagen responded, “We’ve done that
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so many times. We’ll do it one more time. You guys are fine with
me representing both of you correct?” Blackmon responded,
“Only if you argue in front of two different juries.” Earl nodded his
head yes in response to the question.
B.
At trial, Chester testified in the State’s case. 8 He was its key
witness in that he was the only one who could relate how the
robbery was planned and, in particular, the roles Blackmon and
Earl played. He presented the following story: at some point prior
to the robbery, he had been staying at the Roadway Inn across the
street from Sonny’s when Blackmon told him that he had a plan in
the works to rob the restaurant. A few days before the robbery
took place, Chester, Earl, and Green “cased” Sonny’s and observed
how many people were working there and at what time they left
work.
Chester then told the jury how the robbery was carried out
and how afterwards he, Green, the unidentified man, Blackmon
and Earl met at Earl’s house to divide up the money. His
description mirrored what he had told the police and the events set
out in subpart A. Chester’s testimony focused, in part, on
Blackmon and Earl’s involvement—especially the phone
conversations they had while the robbery was in progress.
8 Chester hoped that the prosecutor would recommend a lenient sentence.
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In cross-examining Chester, Eagen zeroed in on those
conversations. He cast doubt on how Chester could have known
that Blackmon was in fact acting as a look out, given North Monroe
Street was not visible from the woods behind Sonny’s.
Eagen: And when you and Mr. Green and Mr.—and
you say Mr. Earl were in the woods, right?
Chester: Yes, sir.
Eagen: You were saying they were talking on the
phones, right?
Chester: Yes, sir.
Eagen: And you’re saying—how do you know if you
were in the woods, okay, and in the—can you see
North Monroe from where you were?
Chester: From in the woods?
Eagen: Yeah, from the back of Sonny’s?
Chester: No, sir.
Eagen: Then how do you know that Mr. Blackmon
was driving up and down the highway—the road on
Monroe?
Chester: Because that’s where he told us he was going
to be at—
Eagen: I didn’t ask you that. I asked— you don’t have
any personal knowledge where Mr. Blackmon was
that night? You’re assuming he was doing that? That’s
what you believe, okay, correct?
Chester: I guess so, sir.
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On redirect, the prosecutor further questioned Chester
about Blackmon and Earl’s phone communications.
Prosecutor: When is the last time you saw Gregory
Blackmon when you were on your way to Sonny’s?
Chester: When we left the house.
Prosecutor: And when is the first time you saw him
after the robbery?
Chester: Back at the house.
Prosecutor: Did Gregory Blackmon make any
statements to you that he was doing what he said he
would, that he was patrolling that street to look out?
Chester: Yea, when we were in the woods when
[Earl] called [Blackmon], [Earl] had told me too.
Eagen: Objection, hearsay upon hearsay.
Court: Overruled.
Prosecutor: Go ahead, Mr. Chester. You can answer.
Chester: When [Earl] was calling [Blackmon] in the
woods, that’s what [Blackmon] told [Earl]. [Earl] said
[Blackmon] was going—[Earl] said, I just saw
[Blackmon’s] car go past because by the garbage cans
you can see the street.
In addition to Chester’s testimony, the State presented
testimony from several officers who had been part of the
investigation of the Sonny’s robbery. In particular, Investigator
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Scott Cherry testified that a search of Earl’s residence had yielded
clothing consistent with what was seen on the surveillance video
of the robbery, as well as two cell phones. Officer Christopher
Corbitt, an expert on cell phone tracking, testified that the cell
phone records retrieved from Blackmon and Earl’s phones
suggested that Blackmon and Earl had been talking to each other
at the time of the robbery and that their phones had both been in
close proximity to Sonny’s at that time as well.
The defense’s closing jury arguments in the two cases were
held separately. Thus, Eagen first addressed the jury in Blackmon’s
case (and in the absence of Earl’s jury), and then the jury in Earl’s
case (and in the absence of Blackmon’s jury). In summing up the
case against Blackmon, Eagen argued that the State’s case was
weak, one based on Chester’s testimony and little else. There was
“no fingerprint evidence, no DNA, no footprints.” The cellphone
records showed that Blackmon and Earl were talking to each other
on the night of the robbery in the vicinity of Sonny’s, but Earl and
Blackmon could have been “driving around as people do, talk[ing]
on the cell phone as people do.” And Chester’s testimony, Eagen
repeatedly emphasized, was suspect because Chester was “not a
good Samaritan coming forth and saying, I am going to be
truthful.” Chester, Eagen pointed out, was “out for [Chester].”
“He’s got a motive to do the best he can to give [the State] the
information” it wants in exchange for a more lenient sentence.
The prosecutor, in contrast, reminded the jury of each piece
of evidence that corroborated Chester’s testimony—including the
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cell phone data and the clothing at Earl’s residence—and urged the
jury to recognize that “[i]t all starts to add up when you look at the
big picture and when you use [Chester’s] testimony as the glue to
hold it all together.” The prosecutor addressed Chester’s
credibility several times, always without a defense objection. We
excerpt the relevant portions:
Prosecutor: Michael Chester told you himself, that’s
him. He has accepted responsibility for this case. He
has told you, I went in there, and I robbed Sonny’s.
He’s not trying to hide anything. He’s not trying to make
himself sound better. But he has come in here and been
honest with you about his involvement. And, yes, he does
expect to get something from it. He expects some
consideration because he has been honest with law
enforcement back in September. He has been honest with
us, and he has been honest with you–all here today.
...
He hasn’t been untruthful. If he came up here and
lied, that’s perjury.
C.
The jury found Blackmon guilty as charged, and the Circuit
Court sentenced him as a prison releasee reoffender (“PRR”) to life
imprisonment. Blackmon appealed his conviction and sentence to
the DCA. He presented two claims of trial court error: (1) the trial
court erred in denying his peremptory challenge to a prospective
juror under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986),
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and (2) the trial court erred in sentencing him as a PRR because his
PRR status was not alleged in the information.9 The DCA
affirmed Blackmon’s conviction and sentence per curiam, without
an explanatory opinion. State v. Blackmon, 75 So. 3d 270 (Fla. 1st.
Dist. Ct. App. 2011).
On September 4, 2012, Blackmon, proceeding pro se, filed a
petition for writ of habeas corpus in the DCA alleging ineffective
assistance of appellate counsel under Strickland. 10 He argued that
his appellate counsel was ineffective in failing to present several
claims of trial court error on direct appeal. 11 Only one of the
claims is relevant here: that his appellate counsel was ineffective in
failing to argue that the trial court erred when it did not advise
Blackmon sua sponte of the dangers of joint representation.
Blackmon alleged that the court committed this error twice. The
first error occurred, Blackmon claimed, during the colloquy
between the Court, Blackmon, Eagen, and the prosecutor prior to
jury selection after Blackmon said he was “concerned about
9 These claims are not pertinent to the appeal before us.
10 Under Florida law, claims of ineffective assistance of appellate counsel are
brought before the DCA in the form of a habeas petition. Francois v. Klein,
431 So. 2d 165, 166 (Fla. 1983). Claims of ineffective trial counsel are presented
to the trial court by a Rule 3.850 motion under the Florida Rules of Criminal
Procedure. Id.11 Blackmon’s claims were that the trial court erred (1) in overruling a hearsay
objection; (2) in denying his motion to strike two jurors for cause; and (3) in
failing to advise him of the dangers of joint representation.
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counsel’s ability to provide him a fair trial due to [counsel] jointly
representing both Petitioner and codefendant Earl.” This
expression of concern, Blackmon asserted, should have prompted
the Court to intervene sua sponte and inform him of the dangers
of joint representation. The second error occurred, according to
Blackmon, during Chester’s testimony when, over Eagen’s hearsay
objection, Chester told the jury about the phone call that took
place between Earl and Blackmon during the robbery. 12
Blackmon’s petition described the trial court’s error in failing to
intervene thus:
[Blackmon] wanted to testify to the fact that Mr.
Chester and Earl owed him a large sum of money for
a drug debt and that he had threaten[ed] to do bodily
harm to Mr. Chester if he did not come up with the
money soon. . . . [It] was the trial court’s duty even if
it was not aware of Petitioner’s desire to testify, to
stop the trial and conduct a hearing, when it
permitted the incriminating hearsay testimony of Mr.
Chester to be introduced. As, it was clearly obvious
that, in light of Mr. Chester’s testimony regarding
what . . . Earl told him about petitioner, [Eagen] was
placed in a peculiar situation as to how he would
defend Petitioner from this hearsay accusation. And
therefore, the court err[ed] . . . by failing to stop the
trial and conduct[ ] a hearing to assure Petitioner’s
12 See part I.B.
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constitutional rights to effective counsel were
protected.
The DCA denied the petition on the merits per curiam,
without an explanatory opinion. State v. Blackmon, 98 So. 3d 201(Fla. 1st. Dist. Ct. App. 2012).
On November 10, 2012, Blackmon moved the Circuit Court
for postconviction relief pursuant to Florida Rule of Criminal
Procedure 3.850. He submitted an amended petition on October
2, 2013. His motion presented five claims. 13 Only one is relevant
here: his trial counsel was ineffective under Strickland for failing to
object to the prosecutor’s improper bolstering of Chester’s
testimony in closing argument to the jury. failure to object,
Blackmon argued, prejudiced his defense because Chester’s
“credibility lay at the heart of the State’s case.”
The Circuit Court conducted an evidentiary hearing on
Blackmon’s motion. Eagen testified that his practice was to refrain
from objecting to a prosecutor’s statement during closing
argument because “all it does is draw more attention to the
statement.” The Court found this to be a credible strategy, noting
13 The claims were: that trial counsel was ineffective for (1) failing to object
to the prosecutor’s improper bolstering of Chester’s testimony in summing up
the State’s case before the jury, (2) failing to impeach Chester’s testimony, (3)
failing to request an accomplice instruction to the jury, (4) failing to impeach
Investigator Cherry’s testimony, and (5) failing to present alibi witnesses.
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that “[m]any attorneys take the view, as Eagen did, that, in the
absence of something very egregious, it’s simply better not to
object and not call attention to the state’s closing.” The Court
therefore denied relief on Blackmon’s ineffective assistance
claim.14 Blackmon appealed the decision to the DCA. The DCA
affirmed it per curiam in without an explanatory opinion. State v.
Blackmon, 150 So. 3d 1135 (Fla. 1st. Dist. Ct. App. 2014).
D.
On March 20, 2015, having exhausted his state remedies,
Blackmon, proceeding pro se, petitioned the U. S. District Court
for the Northern District of Florida for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. 15 In an amended petition, he
presented ten claims. 16 Two are now before us: (1) appellate
14 The trial court rejected Blackmon’s other ineffective assistance of counsel
claims as well.
15 Blackmon proceeded pro se throughout the litigation of his habeas petition
in the District Court.
16 Blackmon asserted the following claims: (1) the trial court erred in denying,
under Batson, his attempt to exercise a peremptory challenge to excuse a
potential juror; (2) appellate counsel was ineffective for failing to appeal the
hearsay objection to Chester’s testimony regarding Blackmon and Earl’s
phone calls; (3) appellate counsel was ineffective for failing to appeal the trial
court’s failure to advise Blackmon of the dangers of joint representation; (4)
trial counsel was ineffective for failing to impeach Chester; (5) trial counsel
was ineffective for failing to object to the State’s closing argument; (6) trial
counsel was ineffective for failing to request an accomplice argument; (7) trial
counsel was ineffective for failing to impeach Officer Cherry; (8) trial counsel
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counsel rendered ineffective assistance, on direct appeal, in not
assigning as error the trial court’s failure to inform Blackmon sua
sponte of the dangers of joint representation on two occasions 17
and (2) trial counsel was ineffective in failing to object when the
prosecutor bolstered Chester’s credibility during his closing
argument to the jury.
Recall that that the DCA denied the first claim in denying
Blackmon’s habeas petition without an explanatory opinion. The
was ineffective for failing to present alibi testimony; (9) collateral counsel was
ineffective for failing to appeal all 3.850 claims; and, finally, (10) cumulative
error.
17 Blackmon’s amended habeas petition stated the ground as being:
“Ineffective assistance[] of appellate counsel for failure to present claim that
trial court committed revers[i]ble error by failing to advise petitioner of the
adverse consequences of joint representation and allowing joint
representation to continue after materialization of manifest conflict of
interest.” In the “supporting facts” section of the amended petition, Blackmon
mostly detailed the facts about the colloquy among the Court, Eagen, the
prosecutor, and himself that occurred prior to jury selection, but not about
Chester’s testimony. The court allowed Blackmon to add an attachment to
the amended petition that stated, among other things: “Materialization of
manifest conflict also occur[r]ed when the actual conflict of counsel not able
to put Earl on stand to refute Chester[’]s testimony.” Because this Court has
held that “[p]ro se pleadings are held to a less stringent standard than pleadings
drafted by attorneys” and that such pleadings are to be “liberally construed,”
we read Blackmon’s ineffective assistance of appellate counsel claim as
including a claim based on Chester’s testimony. See Trawinski v. United
Techs., 313 F.3d 1295, 1297 (11th Cir. 2002) (citing Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam)). Neither the
Magistrate Judge nor the District Court considered the claim as it relates to
Chester’s testimony. We therefore review that claim de novo in part III.A.ii.
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DCA also denied the second claim, without an explanatory
opinion, when it affirmed the Circuit Court’s denial of his Rule
3.850 motion. The District Court’s task under § 2254 was to
determine whether the DCA’s adjudication of each claim (1)
resulted in a decision that was “contrary to, or involved an
unreasonable application of,” the Supreme Court’s holdings in
Strickland 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.” § 2254(d).
Because the DCA adjudicated each of the claims per curiam
without explanation, the District Court’s review of its decisions
was necessarily guided by the Supreme Court’s instructions in
Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 786 (2011), and
Wilson v. Sellers, 138 S. Ct. 1188 (2018). With respect to the habeas
petition Blackmon presented to the DCA, because there was no
underlying state court reasoning to review, the District Court was
required to “determine what arguments or theories . . . could have
support[ed] the [DCA’s] decision; and then . . . ask whether it is
possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision” of the
Supreme Court. Richter, 562 U.S.at 102, 131 S. Ct. at 786.
With respect to the Rule 3.850 motion Blackmon presented
to the DCA, because the Circuit Court stated on record its reasons
for denying the motion, the District Court was required to employ
the “look through” technique to consider the grounds the Circuit
Court articulated in rejecting Blackmon’s ineffective assistance of
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trial counsel claim. Sellers, 138 S. Ct. at 1193 (holding that federal
courts should “look through” the unexplained state decision to the
last related state-court decision that does provide a relevant
rationale).
The District Court assigned the task of reviewing the
respective DCA decisions under Richter and Sellers to a Magistrate
Judge for the issuance of a report and recommendation (“R&R”)18
as to the appropriate disposition of Blackmon’s claims. The
Magistrate Judge issued an R&R on January 31, 2018, in which he
recommended that the District Court deny Blackmon’s § 2254
petition. We report the Magistrate Judge’s analysis of each claim
in turn.
As noted earlier, 19 Blackmon’s amended § 2254 habeas
petition had two factual predicates presented in support of his
claim of ineffective assistance of appellate counsel. The Magistrate
Judge reviewed only the ineffective assistance claim,20 based on
Blackmon’s argument that the trial court should have advised him
of the dangers of joint representation following the pre-trial
colloquy between Eagen, the prosecutor, Blackmon, and the
18 See 28 U.S.C. § 636(b)(1)(B).
19 See supra note 17.
20 The same was true for the District Court given it adopted the Magistrate
Judge’s R&R in full.
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Court.21 The Magistrate Judge found Blackmon’s claim to be
“refuted by the trial record” detailing that colloquy and, moreover,
by the record of the hearing the trial court held on Blackmon’s
motion for a new trial. 22 As the Magistrate Judge explained:
Prior to jury selection, Petitioner expressed concerns
about the case having been consolidated pursuant to
the State’s motion. The reason for consolidation was
that identical evidence would be presented against
both Petitioner and Jermaine Earl, although Earl was
facing a kidnaping charge as a result of the crime, in
addition to an armed robbery charge. Petitioner
expressed that the jury might hear evidence relevant
to the kidnaping charge that did not apply to him, but
the court, the State, and defense counsel confirmed
on the record that the evidence against both
defendants was identical—the actions taken against
the victim on the night of the robbery were also
relevant to show that Petitioner was culpable as a
principal to the crime of armed robbery. Counsel and
the trial court affirmed that separate juries would
21 The colloquy is set out in part I.A.
22 In denying the claim on the basis of the record, the Magistrate Judge was
following the Supreme Court’s instructions in Richter, albeit tacitly, to
“determine what arguments or theories” the DCA could have drawn on in
concluding that appellate counsel was not ineffective. Given his reasons for
rejecting the claim under the criteria of § 2254(d), the Magistrate Judge
effectively concluded, in keeping with Richter’s instructions, that it was
possible that a fairminded jurist could conclude that such reasons were
consistent with the Supreme Court’s holdings in Strickland.
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consider the charges against each defendant.
Petitioner had previously executed a waiver of his
right to separate counsel. Prior to jury selection,
Petitioner affirmed on the record that he agreed to
joint representation by Eagen so long as two different
juries were utilized.
Following the trial, Petitioner filed a pro se motion
for a new trial. At the hearing on the motion, the trial
court reaffirmed that Petitioner and Earl had waived
separate representation for purposes of their
consolidated trial. The court observed that Petitioner
and Earl had maintained their desire to be
represented jointly by Eagen, provided that they each
had a different jury. When Petitioner asserted that
he personally did not think Eagen could represent
both defendants, the court stated “[a]t every stage I
asked you about that and you indicated that you were
confident going with Mr. Eagen as the sole attorney.”
Petitioner responded “I know, at every stage I kept
saying that,” until he realized the case was
“reconsolidated.” The record reflects that the
concerns raised by Petitioner to the trial court were
focused on potential adverse consequences from a
consolidated trial rather than joint representation. As
noted above, Petitioner agreed on the record that
throughout the proceedings he had assented to joint
representation by Eagen. Even if the trial court erred
in some way in explaining any potential adverse
consequences of joint representation, Petitioner
points to nothing in the record that would support a
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conclusion that he was prejudiced by appellate
counsel’s failure to raise this as an issue on direct
appeal. The record reflects that Petitioner’s primary
complaint in the trial court was that the defendants
would be tried by separate juries, and that is what he
received. Again, appellate counsel’s failure to raise a
claim will not be found prejudicial unless the claim
would have a reasonable probability of success on
appeal. Petitioner points to nothing in the record that
would support a conclusion that his trial was
prejudiced as a result of the joint representation by
Eagen and the use of two jury panels, as Petitioner
requested. . . . . Thus, Petitioner has failed to show
that the state court’s rejection of this ineffective-
assistance claim was contrary to, or an unreasonable
application of, [Strickland’’s holdings], or resulted in
an unreasonable determination of the facts in light of
the evidence presented in state court. See 28 U.S.C.
§ 2254(d).
Blackmon’s second claim was that trial counsel was
ineffective “for failing to object to the State’s closing argument . . .
that Chester had been honest with the jury regarding his
involvement in the robbery . . . [and] that [his] testimony was
unwavering, truthful, and that he had accepted responsibility for
the crime.” According to Blackmon, this “argument amounted to
impermissible vouching.”
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The Magistrate Judge recommended that the District Court
deny the claim. The Magistrate Judge noted that although the
Circuit Court acknowledged that the prosecutor’s comments may
have been improper, the Circuit Court also found that it was a
reasonable strategy on the part of defense counsel not to object.
Further, the Magistrate Judge, like the Circuit Court, concluded
that “there [was] no possibility” that the State’s comments
rendered the trial fundamentally unfair. Because of this, the
Magistrate Judge found that Blackmon had failed to show that the
state court’s rejection of this ineffective assistance claim was
contrary to, or an unreasonable application of any of Strickland’s
holdings.
Blackmon timely objected to the Magistrate Judge’s R&R
dispositions, including its recommendation that the District Court
deny the two claims we consider here. 23 On March 5, 2018, the
District Court overruled Blackmon’s objections to the R&R,
adopted the R&R, and denied Blackmon’s petition for a writ of
habeas corpus and his application for a certificate of appealability. 24
Blackmon appealed the District Court’s decision and on April 22,
2019, this Court issued a certificate of appealability on the two
issues set out in the beginning of this opinion.
23 Blackmon’s objections are quite rambling. The gist of his objections is that
the Magistrate Judge failed to fully comprehend his claims.
24 See 28 U.S.C. § 2253(c)(2).
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III.
When reviewing a district court’s denial of a habeas petition,
we review questions of law and mixed questions of law and fact de
novo, and findings of fact for clear error. 25 See King v. Moore, 196
F.3d 1327, 1330 (11th Cir. 1999). The findings of fact the Circuit
Court made in adjudicating Blackmon’s Rule 3.850 motion and the
District Court considered in deciding Blackmon’s ineffective
assistance of trial counsel claim are presumed “to be correct.” 28
U.S.C. § 2254(e)(1).
We evaluate Blackmon’s ineffective assistance claims under
the two-prong test set forth in Strickland. To prevail on an
ineffective-assistance claim, the petitioner must show (1) that
counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense. 466 U.S. at 687, 104 S. Ct. at
2064.
The performance prong is satisfied if the petitioner “show[s]
that counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688, 104 S. Ct. at 2064. Because “[t]here are
countless ways to provide effective assistance in any given case,”
id. at 689, 104 S. Ct. at 2065, “the range of what might be a
reasonable approach at trial must be broad.” Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc). Thus, “a
25 The District Court made no findings of fact in deciding the claims
Blackmon’s § 2254 petition presented.
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petitioner must establish that no competent counsel would have
taken the action that his counsel did take.” Id. at 1315.
The prejudice prong requires the petitioner to establish a
“reasonable probability” that, but for counsel’s errors, the outcome
at trial would have been different. Strickland, 466 U.S. at 694, 104
S. Ct. at 2068. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id.With the foregoing principles in hand, we consider
Blackmon’s arguments that the District Court erred in holding that
the state courts’ adjudications of his claims of ineffective assistance
of trial and appellate counsel were unassailable under 28 U.S.C. §
2254(d)(1) or (2). We start in subpart A where Blackmon began,
with his assertion that appellate counsel should have assigned as
error the trial court’s failure sua sponte to inform him of the
dangers of joint representation (1) during the colloquy that took
place prior to jury selection and (2) after Chester testified about the
phone call that occurred between Earl and Blackmon during the
robbery. Then, in subpart B, we consider Blackmon’s assertion
that trial counsel should have objected to the prosecutor’s
vouching of Chester’s testimony before the jury in closing
argument.
A.
i.
Although Blackmon stated in his habeas petition that he told
the trial court, prior to jury selection, he was worried about
Eagen’s ability to represent both himself and Earl, the trial
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transcript makes it quite clear that Blackmon’s concern centered on
the consolidation of his and Earl’s trials, not joint representation.
The trial court appropriately responded to Blackmon’s concern by
explaining why Blackmon would not be prejudiced by a joint trial:
because the State had charged Blackmon as a principal in the armed
robbery, all of the evidence that would be introduced in Earl’s trial
would be introduced in his as well. 26 Certainly nothing in this
discussion would have suggested to the trial court that Eagen could
not effectively represent both defendants. As the Magistrate Judge
noted, Blackmon “had previously executed a waiver of his right to
separate counsel.” And he had “agreed on the record . . .
throughout the proceedings [that] he had assented to joint
representation by Eagen.”
In sum, the fact that Blackmon was concerned about a joint
trial, not joint representation, fully supports the DCA’s rejection of
this ineffective assistance claim. The DCA would have considered
meritless appellate counsel’s argument that the trial court erred in
failing sua sponte to inform Blackmon of the potential
shortcomings of joint representation. Thus, counsel’s failure to
26 In briefing this appeal, Blackmon focuses on whether his “waiver” of his
right to separate counsel was adequate under the law. But this question is
irrelevant for our purposes. The relevant question is whether the court had a
duty to sua sponte advise Blackmon of the adverse consequences of joint
representation based on the discussion that took place prior to jury selection.
Because we conclude that the court was under no such duty, whether the
“waiver” the prosecutor wanted the record to reflect was valid is
inconsequential.
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raise it in briefing Blackmon’s appeal could not amount to
ineffective assistance under Strickland.
ii.
The DCA likewise would have held meritless the same
failure-to-inform argument based on Chester’s testimony during
the prosecutor’s redirect examination about the Blackmon-Earl
phone call. Eagen had just finished cross-examining Chester in an
effort to cast doubt on whether Blackmon had truly acted as a
lookout when the prosecutor asked Chester on redirect about the
phone call (to which Eagen immediately objected unsuccessfully).
Chester’s testimony about the phone call, according to Blackmon,
somehow meant that Eagen could no longer represent both
defendants competently, that Eagen was favoring Earl over
Blackmon, and that the court had to intervene immediately.27
Nothing in Eagen’s cross-examination of Chester, however, which
obviously was in Blackmon’s best interests, would have suggested
to the trial court that Eagen was favoring Earl over Blackmon and
27 In his state habeas petition to the DCA, Blackmon also argued that after
hearing Chester’s testimony, he decided that he wanted to testify but Eagen
prevented him from doing so. In Blackmon’s mind, Eagen prevented him
from testifying because Eagen felt that his testimony would be harmful to Earl.
At no point in his habeas petition, however, did Blackmon suggest that the
trial court was made aware of his desire to testify. The trial judge could not be
charged with reading Blackmon’s mind, and he was not privy to any private
conversations that may have taken place between Blackmon and Eagen. The
law does not fault a judge for such limitations.
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that it had to excuse the jury and hold a hearing on the issue of joint
representation. 28 Again, counsel’s failure to assert the failure-to-
inform theory as trial court error in briefing Blackmon’s appeal
could not amount to ineffective assistance under Strickland.
B.
We turn now to Blackmon’s claim that Eagen rendered
ineffective assistance in failing to object to the prosecutor’s
bolstering of Chester’s testimony in his closing argument to the
jury. 29 The Circuit Court denied the claim following an
evidentiary hearing in which Eagen testified. The DCA affirmed.
In reviewing the DCA’s decision, the District Court “looked
through” the DCA’s decision and reviewed the Circuit Court’s
decision as Sellers instructs. 138 S. Ct. at 1188.
Bolstering occurs when “‘the jury could reasonably believe
that the prosecutor was indicating a personal belief in the witness’
credibility.’” United States v. Knowles, 66 F.3d 1146, 1161 n.60
(11th Cir. 1995) (quoting United States v. Sims, 719 F.2d 375, 377
(11th Cir. 1983)). Because Chester’s testimony was so central to
the State’s case, Blackmon argued, Eagen’s failure to object to any
28 We are mindful of the principle that a trial court must initiate an inquiry
into the propriety of joint representation when it “knows or reasonably should
know that a particular conflict exists.” Cuyler v. Sullivan, 446 U.S. 335, 347,
100 S. Ct. 1708, 1717 (1980).
29 The prosecutor’s bolstering is set out in part I.B.
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improper bolstering was a serious error and one that competent
counsel would not have made. Without the bolstering, Blackmon
continues, the jury likely would have acquitted him because “the
state presented almost no other evidence of [his] guilt aside from
Chester’s accusations.”
The Circuit Court found no merit in Blackmon’s ineffective
assistance claim. The Circuit Court noted that it had “heard a lot
of defense attorneys talk about their different strategies in closing
arguments. Many attorneys take the view, as Mr. Eagen did, that,
in the absence of something very egregious, it’s simply better not
to object and not call attention to the State’s closing.” Although the
Circuit Court stated that the comments were probably improper,
it still found that Eagen’s decision not to object did not constitute
deficient performance under Strickland because “reasonable
attorneys could differ on that strategy.” Given this finding, the
Court logically concluded that Blackmon had failed to satisfy the
Strickland performance test—that Eagen’s performance was so
deficient that he was not functioning as the counsel guaranteed by
the Sixth Amendment. See Strickland, 466 U.S. at 687, 104 S. Ct. at
2064.
The Circuit Court was bound to reach that conclusion. The
Supreme Court made clear in Strickland that “a court must indulge
in a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound
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trial strategy.’” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (citing
Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164 (1955)).
This is so, the Supreme Court explained, because “[t]here are
countless ways to provide effective assistance in any given case”
and “[e]ven the best criminal defense attorneys would not defend
a particular client in the same way.” Id. (citing Gary Goodpaster,
The Trial for Life: Effective Assistance of Counsel in Death Penalty
Cases, 58 N.Y.U.L. REV. 299, 343 (1983)).
The District Court correctly concluded that Blackmon failed
to establish that the DCA’s affirmance of this ineffective assistance
claim constituted an adjudication that was “contrary to, or an
incorrect application of,” the Supreme Court’s holdings in
Strickland.
IV.
For the foregoing reasons, the judgment of the District
Court is
AFFIRMED.