Bolden v. Secretary, DOC et al
Filing
17
OPINION AND ORDER re: 1 Petition for writ of habeas corpus is denied and this case is dismissed with prejudice. Petitioner is denied a Certificate of Appealability. The Clerk of the Court is directed to terminate any pending motions, enter judgment accordingly, and close this case. Signed by Judge Sheri Polster Chappell on 3/17/2014. (SLU)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GREGORY BOLDEN,
Petitioner,
v.
Case No: 2:11-cv-325-FtM-38DNF
SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents.
/
OPINION AND ORDER1
Gregory Bolden (“Petitioner”) initiated this action for habeas corpus relief by filing
a petition pursuant to 28 U.S.C. § 2254 (Doc. 1). Upon consideration of the petition, the
Court ordered Respondents to show cause why the relief sought by Petitioner should not
be granted (Doc. 7). Thereafter, Respondents filed a response in compliance with this
Court’s instructions and with the Rules Governing Section 2254 Cases in the United
States District Courts (Doc. 11). Petitioner filed a reply to the response (Doc. 15).
Petitioner raises six claims in his petition.
He alleges that trial counsel was
ineffective for failing to: (1) move for dismissal of his case on the ground that the State’s
agreement with a confidential informant violated his due process rights; (2) impeach the
1
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State’s confidential informant with the terms of her agreement with the State; (3) object
to prosecutorial misconduct; (4) withdraw from representation in light of a conflict of
interest; and (5) move for dismissal of the remaining counts after the Petitioner was tried
on two of the State’s eight counts against him (Doc. 1 at 5-24). Petitioner also asserts
that the cumulative effect of counsel’s errors resulted in prejudice. Id. at 25.
Because this Court can adequately assess Petitioner's claim without further factual
development, an evidentiary hearing will not be conducted. Turner v. Crosby, 339 F.3d
1247, 1275 (11th Cir. 2003). Upon due consideration of the petition, the response, the
reply, and the state court record, this Court concludes that Petitioner's claims should be
denied.
I.
Background and Procedural History
On October 7, 2002, Petitioner was charged by information with four counts of the
sale of cocaine (counts I, III, V, and VII) and four counts of possession of cocaine (counts
II, IV, VI, and VIII) (Ex. 1). 2 On June 29, 2004, defense counsel filed a motion for
severance of unrelated offenses and a motion to dismiss the information (Ex. 2; Ex. 3).
The State filed a response to the motion for severance agreeing that the action against
Petitioner should consist of four separate cases (Ex. 16 at Att. 8). After a hearing was
conducted on the matter, Petitioner's motion to dismiss the information was denied (Ex.
4; Ex. 5).
On April 5, 2005, after a jury trial on counts III and IV of the information, Petitioner
2
Unless otherwise noted, references to exhibits (Ex. __ at ___) are to those filed
by Respondents on November 7, 2011 (Doc. 13). Citations to the trial transcript,
contained in Exhibit 6, are cited as (T. at___).
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was found guilty as charged (Ex. 6 at 278). Subsequently, he pleaded no contest to
counts I and II. The State nolle prossed counts V, VI, VII, and VIII. Petitioner was
sentenced to five years in prison on counts I and III and to a concurrent term of five years
in prison on counts II and IV. Petitioner's conviction and sentences were per curiam
affirmed on October 26, 2007 (Ex. 9).
On December 3, 2007, Petitioner filed a habeas petition in state court alleging
ineffective assistance of appellate counsel (Ex. 10). The petition was denied on January
16, 2008 (Ex. 11). Petitioner filed a motion for post-conviction relief pursuant to Rule
3.850 of the Florida Rules of Criminal Procedure (“Rule 3.850 motion”) raising eight
grounds for relief (Ex. 13). Petitioner filed a supplemental motion on March 11, 2008
raising three additional claims (Ex. 14). The Rule 3.850 motion was denied on June 4,
2009, and the Second District Court of Appeal per curiam affirmed (Ex. 16); Bolden v.
State, 32 So.3d 628 (Fla. 2d DCA 2010).
The instant motion was filed on May 31, 2011 (Doc. 1).
II.
Governing Legal Principles
a.
The Antiterrorism Effective Death Penalty Act (“AEDPA”)
Pursuant to the AEDPA, federal habeas relief may not be granted with respect to
a claim adjudicated on the merits in state court unless the adjudication of the claim:
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d).
A state court’s summary rejection of a claim, even without
explanation, qualifies as an adjudication on the merits which warrants deference.
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Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008).
“Clearly established federal law” consists of the governing legal principles, rather
than the dicta, set forth in the decisions of the United States Supreme Court at the time
the state court issues its decision. Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing
Williams v. Taylor, 529 U.S. 362, 412 (2000)).
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 the Supreme
Court’s precedents if the state court correctly identified the governing legal principle, but
applied 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 apply.” Bottoson, 234
F.3d at 531 (quoting Williams, 529 U.S. at 406). The unreasonable application inquiry
requires the state court decision to be more than incorrect or erroneous, rather, it must
be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-77 (2003) (citation
omitted); Mitchell, 540 U.S. at 17-18; Ward, 592 F.3d at 1155.
Finally, the Supreme Court has clarified that: “a decision adjudicated on the merits
in a state court and based on a factual determination will not be overturned on factual
grounds unless objectively unreasonable in light of the evidence presented in the statecourt proceeding.” Miller–El v. Cockrell, 537 U.S. 322, 340 (2003) (dictum).
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When
reviewing a claim under § 2254(d), a federal court must bear in mind that any
“determination of a factual issue made by a State court shall be presumed to be correct[,]”
and the petitioner bears “the burden of rebutting the presumption of correctness by clear
and convincing evidence.” 28 U.S.C. § 2254(e)(1); Miller–El, 537 U.S. at 340 (explaining
that a federal court can disagree with a state court’s factual finding and, when guided by
AEDPA, “conclude the decision was unreasonable or that the factual premise was
incorrect by clear and convincing evidence”).
b.
Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a two-part test for
determining whether a convicted person is entitled to relief on the ground that his counsel
rendered ineffective assistance. 466 U.S. 668, 687-88 (1984).
A petitioner must
establish that counsel’s performance was deficient and fell below an objective standard
of reasonableness and that the deficient performance prejudiced the defense. Id.
Because both parts of the Strickland test must be satisfied in order to demonstrate a
violation of the Sixth Amendment, a district court need not address the performance prong
if the petitioner cannot meet the prejudice prong, or vice versa. Holladay v. Haley, 209
F.3d 1243, 1248 (11th Cir. 2000).
The focus of inquiry under Strickland's performance prong is “reasonableness
under prevailing professional norms.” Strickland, 466 U.S. at 688-89.
In reviewing
counsel's performance, a court must adhere to a strong presumption that “counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
Indeed, the petitioner bears the burden to “prove, by a preponderance of the evidence,
that counsel’s performance was unreasonable[.]” Jones v. Campbell, 436 F.3d 1285,
1293 (11th Cir. 2006). A court must “judge the reasonableness of counsel’s conduct on
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the facts of the particular case, viewed as of the time of counsel’s conduct,” applying a
“highly deferential” level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477
(2000) (quoting Strickland, 466 U.S. at 690). “To state the obvious: the trial lawyers, in
every case, could have done something more or something different. So, omissions are
inevitable. But, the issue is not what is possible or ‘what is prudent or appropriate, but
only what is constitutionally compelled.’” Chandler v. United States, 218 F.3d 1305, 1313
(11th Cir. 2000) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).
As to the prejudice prong of the Strickland standard, Petitioner’s burden to
demonstrate prejudice is high. Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002).
Prejudice “requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. That
is, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
A reasonable probability is “a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. To show prejudice from ineffective assistance of
counsel where a plea offer was rejected because of counsel’s deficient performance, the
petitioner must demonstrate a reasonable probability that they would have accepted the
plea had they been afforded effective assistance of counsel. Missouri v. Frye, 132 S. Ct.
1399, 1410 (2012).
Finally, the Supreme Court has clarified that, pursuant to the AEDPA, “[t]he pivotal
question is whether the state court’s application of the Strickland standard was
unreasonable. This is different from asking whether defense counsel’s performance fell
below Strickland’s standard.” Harrington v. Richter, 131 S. Ct. 770, 785 (2011). “A
state court must be granted a deference and latitude that are not in operation when the
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case involves review under the Strickland standard itself.” Id.
III.
Analysis
a. Claim One
Petitioner asserts that trial counsel was ineffective for failing to move for dismissal
of Petitioner's case on the ground that the State’s contingency agreement with a
confidential informant (“CI”) violated his due process rights under Florida’s Constitution
(Doc. 1 at 5). Specifically, Petitioner asserts that the CI who testified against him had an
agreement with the State that her probation would terminate after testifying truthfully for
the State if Petitioner was convicted as a result of her testimony (Doc. 1 at 7). Petitioner
asserts that this agreement contravened the Florida Supreme Court’s holdings in State v.
Glosson, 462 So. 2d 1082 (Fla. 1985) and its progeny (Doc. 1 at 7; Doc. 2 at 3-5).3
Petitioner raised this issue in his Rule 3.850 motion, and the post-conviction court
denied the claim (Ex. 16 at 13). The post-conviction court determined that defense
counsel had filed a motion to dismiss the charges on the grounds that the use of the CI
violated Petitioner's due process rights. Id. The court noted that counsel had raised
numerous grounds for dismissal in the motion, including the ground that “[t]he informant
had a large financial incentive not only to make drug purchases and criminal cases, but
also to color her testimony or commit perjury in pursuit of her contingency fee.” Id. at 14.
The court further noted that a hearing had been conducted on the motion “during which
the Defendant's counsel elaborated on many of these arguments, and cited case law.” Id.
Therefore, the claim was denied on the ground that counsel’s representation had not been
3
In Glossen, the Florida Supreme Court held that a contingency agreement in
which a confidential informant would receive ten percent of all civil forfeitures arising out
of successful criminal investigations he completed violated a defendant’s due process
rights. 462 So. 2d at 1083.
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deficient because “[Petitioner's] attorney clearly brought these issues before the Court in
a Motion to Dismiss.” Id.
Petitioner concedes that defense counsel filed a motion to dismiss the charges,
and that defense counsel was aware of the Glossen argument (Doc. 2 at 7). Petitioner
also concedes that counsel told him (Petitioner) that he could not “ethically” raise the
Glossen arguments to attack the State’s alleged contingency agreement with the CI. Id.
However, Petitioner asserts that he demanded that counsel raise this argument and that
counsel’s refusal to do so fell below an objective standard of reasonableness because
“[t]he Sixth Amendment does not provide merely that a defense shall be made for the
accused; it grants the accused personally the right to make his defense.” Id. (citing Faretta
v. California, 422 U.S. 806, 819 (1975)). Petitioner also asserts that the post-conviction
court’s determination that defense counsel had raised this argument in the motion to
dismiss was based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. Id. at 9. A review of the record and relevant law
does not support Petitioner's assertions.
In the motion to dismiss, defense counsel argued, inter alia, that the CI “had a large
financial incentive not only to make drug purchases and criminal cases, but also to color
her testimony or commit perjury in pursuit of her contingency fee.” (Ex. 3 at ¶ 4). Counsel
also argued that the conduct of the DTF in the drug sting operation invited perjury by the
CI and violated Petitioner's due process rights. Id. at ¶ 6. At the hearing on the motion,
counsel reiterated these arguments and also argued that, when the CI purchased drugs
from Petitioner, “[she] was in violation [of probation] and knew that she had 18 months
prison hanging over her head . . . In essence there’s a convicted felon allowed to secure
[her] own freedom by convincing someone else to traffic in cocaine.” (Ex. 4 at 13).
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Counsel pointed out that the CI had violated her probation and that the State had offered
to reinstate the probation provided that she testify truthfully and consistently with what
she had already told them:
She understands that – I think it’s fairly obvious that she
understands that if she doesn’t testify appropriately, according
to what the State and Court might think, she’s going to go to
prison. So there’s certainly still that incentive for her to
appease the State or curry the favor of the Court and the
State, not specifically the Court, but the State.
Id. at 21.
The State countered counsel’s arguments by noting that at the time the CI was
deposed and made her case against Petitioner, “there was no substantial assistance
agreement, the State was not involved with any agreement when she made the cases
against [Petitioner]. When she . . . violated probation, she was held in our jail until she
gave a sworn statement . . . and after the sworn statement was made, the plea was done.”
(Ex. 4 at 34). Accordingly, argued the State, there was no evidence of any promise or
contingency for the statement made in the CI’s deposition. Id. Given the arguments
raised by Counsel in the motion to dismiss and the ensuing hearing on the motion,
Petitioner has not shown clear and convincing evidence to rebut the presumption of
correctness afforded the post-conviction court’s factual determination that counsel
adequately addressed the due process concerns attendant with the State’s use of the
CI’s testimony. 28 U.S.C. § 2254(e)(1).
Moreover, Petitioner cannot show deficient performance merely by asserting that
counsel did not comply with his demand to further argue the issue of the State’s alleged
contingency agreement with the CI. Even if true, defense counsel has no obligation to
pursue claims which he reasonably believes to lack merit, even when a defendant insists
that he do so. See Jackson v. Herring, 42 F.3d 1350, 1359 (11th Cir. 1995). Petitioner
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has not shown that counsel’s actions were objectively unreasonable under prevailing
professional norms. See Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (“[D]efendant
bears the burden of proving that counsel's representation was unreasonable ... and that
the challenged action was not sound strategy.”). As noted by Petitioner, counsel did not
believe that he could ethically raise the arguments Petitioner wished him to raise.
Tactical decisions within the range of reasonable professional competence are not
subject to collateral attack, unless a decision was so “patently unreasonable that no
competent attorney would have chosen it.” Adams v. Wainwright, 709 F.2d 1443, 1445
(11th Cir. 1983).
The post-conviction court reasonably determined that counsel’s
performance was not deficient, and Claim One is denied pursuant to 28 U.S.C. § 2254(d).
b. Claim Two
Petitioner asserts that trial counsel was ineffective for failing to impeach the State’s
confidential informant regarding the specific terms of her agreement with the State (Doc.
1 at 10). Petitioner raised this claim in his Rule 3.850 motion, and the post-conviction
court denied the claim on the ground that “[the CI’s] criminal history and her hopes for
leniency in light of testimony were central factors during her examination on the stand.
A review of the record shows that during the trial, the State asked numerous questions
regarding [the CI’s] criminal history, and any possible bias or motive she may have to
testify[.]” (Ex. 16 at 7-10).
The court concluded that Petitioner could not show prejudice
from counsel’s alleged failure to further delve into the CI’s motivation for testifying
because “[t]he jury was well aware of [the CI’s] criminal history and the reasons she may
have been testifying.” Id. Petitioner argues that the post-conviction court’s conclusions
were based upon an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding (Doc. 2 at 12). However, a review of the record
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supports the state court’s adjudication of this claim.
On direct examination, the CI testified that she had six felony convictions, and had
been convicted four times of a crime involving dishonesty or a false statement (T. at 17677). She also testified that she hoped to benefit from testifying against Petitioner. Id. at
176. On cross examination, she admitted that, on December 23, 2003, she had entered
into an agreement with the state to testify against Petitioner in exchange for the
reinstatement of her probation. Id. at 192. She admitted that she hoped to be released
from prison as a result of her testimony. Id. at 193. On re-direct, the CI clarified that she
no longer had an agreement to testify against Petitioner because she had violated the
terms of her probation and fled to Tennessee. Id. at 206. In closing argument, counsel
stressed the CI’s criminal history and noted that she was someone not to be trusted. Id.
at 243. Counsel argued:
[The CI] had a huge interest, huge interest. She testified to
a story that she told in deposition concerning this case, the
best deal she got with the State Attorney on her probation
violation. “I will testify truthfully. This is what I previously
told.” She never got to the center, she fled a few days later
to Tennessee and now she’s here testifying today.
...
She had a huge interest. She did time in jail. She’s facing
prison. She didn’t want to admit it, but finally she admitted
she was facing prison. She got a violation of probation.
She’d already been resolved of that and gotten re-instated on
her probation and then violated it again. That’s the violation
that she’s now facing. She also has a new felony pending
against her while she’s out on the street on probation. She
had a huge, huge interest in this case. Recall her testimony.
Id. at 246-47.
Petitioner has not shown by clear and convincing evidence that the state court
unreasonably determined that the jury was sufficiently apprised of the CI’s criminal history
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and motivation for testifying. Accordingly, Petitioner has not demonstrated prejudice
from counsel’s failure to further impeach the CI, and this claim fails to satisfy the second
prong of the Strickland test. Petitioner is not entitled to relief on Claim Two. 28 U.S.C. §
2254(d).
c.
Claim Three
Petitioner asserts that trial counsel was ineffective for failing to object to
prosecutorial misconduct when the state claimed during Petitioner's trial that the CI was
no longer under an agreement to testify (Doc. 1 at 14-15). Specifically, Petitioner asserts
that the State allowed the CI to testify that she no longer had an agreement to testify
against Petitioner which “falsely misrepresented the terms of [a prior order] of probation[.]”
(Doc. 2 at 13). Petitioner raised this claim in his Rule 3.850 motion, and the postconviction court denied it as “conclusory.” (Ex. 16 at 12).
Petitioner argues that the post-conviction court’s characterization of this claim as
conclusory was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding (Doc. 2 at 15). After reviewing the
record, this Court concludes that Petitioner's assertions of state misconduct are based
solely upon speculation and that he has presented no clear and convincing evidence to
rebut the post-conviction court’s adjudication of this claim.
On direct examination, the prosecutor asked the CI whether she had a pending
violation of probation hearing (T. at 176). The CI answered that she had a pending
hearing and she “hoped” her testimony would be helpful to her. Id.
On cross
examination, defense counsel questioned the CI about an earlier plea deal she had
entered into regarding her probation:
COUNSEL: And you entered into a plea deal when
you got reinstated on your probation back
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on December 23rd of 2003, you entered
into a violation of probation plea
agreement, correct?
CI:
Yes.
COUNSEL: And you got reinstated?
CI:
Yes.
COUNSEL: With the condition being that you testified
truthfully?
CI:
Yes.
COUNSEL: And you were on probation for stealing?
CI
Yes.
COUNSEL: And you’ve since got a new stealing
charge and that’s also one of the reasons
you violated your probation?
CI:
Yes
COUNSEL: And you fled the jurisdiction, you went to
Tennessee?
CI:
Yes.
COUNSEL: So you have a lot to gain by being here
today?
CI:
No, sir.
COUNSEL: You’re trying to avoid going to prison, are
you not?
CI:
I don’t know what you mean by that, but
if I go to prison, I go to prison. I’m not –
I’m trying to tell the truth about what I did.
I’m not trying to gain nothing for
something.
I don’t know what
accusations you’re trying to make by that.
COUNSEL: You’re not trying to gain anything?
CI:
No, sir.
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COUNSEL: You testified on direct you’re hoping to
get some type of benefit out of this, right?
CI:
Yes, sir.
COUNSEL: And not go to prison, that’s your hopes?
CI:
Yes, sir.
Id. at 192-93. On redirect, the prosecutor clarified that the CI had made an earlier deal
with the State that she would testify truthfully in exchange for reinstatement of probation
(T. at 205), but that they no longer had an agreement for the CI to testify:
STATE:
Then you went out on probation – for lack
of a better word – you took off on me?
CI:
Right.
STATE:
And you disappeared?
CI:
Right.
STATE:
And went to Tennessee?
CI:
Right.
STATE:
And since you’ve gotten picked back up,
committed other offenses, you sat in jail?
CI:
Right.
STATE:
You no longer have an agreement?
CI:
Right.
STATE:
To testify about anything?
CI:
Right.
STATE:
In fact, would it be fair to say that you
would have liked for me to make another
deal with you and let you out, and I’ve
refused?
CI:
Right.
Id. at 205-06.
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Petitioner asserts that the state had a December 23, 2003 agreement with the CI
to testify against Petitioner in exchange for a reinstatement of her probation – and that
counsel should have objected to the CI’s testimony that she no longer had an agreement
with the State. However, a review of the record shows the CI testified that the prior
agreement was no longer in effect because she had absconded to Tennessee.
Petitioner has presented no evidence, other than his conclusory allegations and
speculation, that this statement was false. A court cannot consider a habeas petitioner’s
assertions on a critical issue in his pro se petition unsupported by anything else contained
in the record. See Tejada v. Duggar, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague,
conclusory, speculative, or unsupported claims are insufficient to support claims of
ineffective assistance of counsel); United States ex rel. Simmons v. Gramley, 915 F.2d
1128, 1134 (7th Cir. 1990) (cursory allegations that are purely speculative cannot support
a claim of lack of competence of counsel); Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir.
1983) (“[A] court cannot consider a habeas petitioner's bald assertions on a critical issue
in his pro se petition (in state and federal court) unsupported and unsupportable by
anything else contained in the record, to be of probative evidentiary value.”); Blackledge
v. Allison, 431 U.S. 63, 74 (1977) (A petitioner will not be entitled to an evidentiary hearing
when his claims are merely “conclusory allegations unsupported by specifics[.]”).
Petitioner has not shown that the post-conviction court’s rejection of this claim as
“conclusory” was contrary to clearly established federal law or based upon an
unreasonable determination of the facts in light of the evidence presented in the state
courts. Claim Three is denied pursuant to 28 U.S.C. § 2254(d).
d.
Claim Four
Petitioner asserts that defense counsel was ineffective for failing to withdraw from
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representation due to a “continuing” conflict of interest with the CI (Doc. 1 at 18).
Specifically, Petitioner asserts that defense counsel should have informed Petitioner that
he had assisted the CI on a former occasion by asking the court to move a court date for
her while he was not her attorney. Id. at 19.
Petitioner raised this claim in his Rule 3.850 motion, and the post-conviction court
rejected the claim on the ground that Petitioner could not demonstrate prejudice from
counsel’s failure to inform Petitioner or the court of his prior limited contact with the CI:
The question here is whether, even if the Defendant's attorney
had filed the motion, it would have been granted. The Court
finds that such a motion would not have been granted on that
ground alone. See Rodriquez v. State, 684 So. 2d 833 (Fla.
3d DCA 1996) (the fact that defense counsel was a former
assistant state attorney and that he had made a brief
appearance against defendant at a previous and totally
unrelated hearing was [not] prejudicial and did not raise a
conflict where attorney’s involvement in previous case was
non-substantial). Defendant's counsel cannot be found
ineffective for failing to file a motion with no merit.
(Ex. 16 at 12). Petitioner asserts that the post-conviction court’s denial of this claim was
based on an unreasonable determination of the facts in light of the evidence presented in
the state court proceeding (Doc. 2 at 16). Specifically, Petitioner argues that counsel’s
“ex gratia representation of the State’s key witness against the Petitioner demonstrate[s]
an actual conflict of interest.” Id.
Petitioner then argues that counsel’s numerous
shortcomings were the result of counsel’s prior association with the CI. Id.
The United States Supreme Court has been clear that “the mere possibility” of a
conflict of interest does not warrant a conclusion that a defendant was deprived of his
right to counsel. Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980). Rather, Petitioner must
demonstrate that an “actual” conflict of interest adversely affected his lawyer’s
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performance. Id. at 349. The Eleventh Circuit Court of Appeals in Smith v. White, 815
F.2d 1401, 1404 (11th Cir.1987), set forth the following analysis:
We will not find an actual conflict [of interest] unless appellants
can point to specific instances in the record to suggest an
actual conflict or impairment of their interests. . . . Appellants
must make a factual showing of inconsistent interests and
must demonstrate that the attorney made a choice between
possible alternative courses of action, such as eliciting (or
failing to elicit) evidence helpful to one client but harmful to the
other. If he did not make such a choice, the conflict remained
hypothetical.
(citations omitted); see also Cuyler, 446 U.S. at 348 (holding that the petitioner must point
to specific instances in the record that “show that an actual conflict of interest adversely
affected his lawyer's performance.”).
Petitioner insists that counsel’s failure to “impeach [the CI] in regard to a disclosure
of the full term(s) of the agreement with the State[] in exchange for her testimony against
the Petitioner” demonstrates an actual conflict (Doc. 1 at 20). A review of the record
demonstrates that counsel did impeach the CI by asking numerous questions about her
criminal history and any possible motive for testifying. See discussion supra Claim Two.
Moreover, as noted in this Court’s discussion of Claims One, Two, and Three, Petitioner
has presented no evidence, other than his conclusory and unsupported allegations, of
any agreement between the State and the CI at the time of Petitioner's trial. In fact, the
CI testified on redirect that she had no agreement with the State. See discussion supra,
Claim Three. Petitioner has not demonstrated that counsel’s limited contact with the CI
on an unrelated matter resulted in an actual conflict.
A “speculative or merely
hypothetical” conflict is insufficient to show inconsistent interests. Reynolds v. Chapman,
253 F.3d 1337, 1342-43 (11th Cir. 2001).
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The post-conviction court’s determination that Petitioner had not demonstrated an
actual conflict of interest was neither contrary to clearly established federal law nor based
upon an unreasonable determination of the facts in light of the evidence presented in the
state court proceedings. Claim Four is denied pursuant to 28 U.S.C. § 2254(d).
e.
Claim Five
Petitioner asserts that defense counsel was ineffective for failing to move for
dismissal of the remaining charges after he was tried on two of the eight counts listed in
the information (Doc. 1 at 23). Specifically, Petitioner argues that, after his trial on counts
three and four of the information, counsel misadvised him that his only alternative for
disposal of the remaining counts was to endure another trial or accept a plea (Doc. 2 at
19). As a result, Petitioner pleaded no contest to Counts I and II, and the State nolle
prossed Counts V, VI, VII, and VIII. Petitioner argues that he had a right to dismissal of
the remaining counts in his information because no order of severance was ever issued
by the trial court. Id. at 19-20.
Petitioner raised this claim in is Rule 3.850 motion, and the post-conviction court
denied the claim as refuted by the record because “[b]y stipulation of the parties, the Court
indeed severed the counts, as noted by [Petitioner's] own attorney in his Motion in Limine
#1, and by the Court and the Defendant's attorney during the argument on that motion
and during argument of the Defendant’s subsequent Motion to Withdraw Plea.” (Ex. 16 at
4-5). Petitioner asserts that the post-conviction court’s conclusion was based upon an
unreasonable determinations of the facts in light of the evidence presented at the state
court proceedings (Doc. 2 at 19). However, a review of the record supports the state
court’s adjudication of this claim.
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The charging information filed by the State charged Petitioner with eight separate
counts (Ex. 1). Defense counsel filed a motion for severance of unrelated offenses on
June 29, 2004 (Ex. 2). The State filed a response to the motion in which they agreed
that the counts should be severed pursuant to Dupree v. State, 705 So. 2d 90 (Fla. 4th
DCA 1998) (Ex. 16 at Att. 8). Subsequently, in a motion in limine filed on April 5, 2005,
defense counsel identified the counts in the information as severed (Ex. 16 at Att. 9).
Petitioner proceeded to trial on only counts III and IV of the information (Ex. 6). At
Petitioner's motion to withdraw his plea on counts I and II of the information, it was
explained to Petitioner that there were several counts in his information and that the
counts had been severed for trial (Ex. 16 at Att. 10).
Petitioner does not explain why, in light of clear record evidence indicating
otherwise, he believes the post-conviction court unreasonably determined that the counts
in his information had been severed. However, Petitioner’s arguments appear to be
based upon his belief that a signed, written order on the motion to sever was not properly
filed with the Clerk of the Court (Doc. 2 at 18). To the extent Petitioner argues that the
state courts unreasonably applied, or misinterpreted, Florida procedural law when it ruled
on this claim, such an argument is not cognizable in federal habeas proceedings. See
Branan v. Booth, 861 F.2d 1507 (11th Cir. 1988) (a habeas petition grounded on issues
of state law provides no basis for habeas relief). Even had counsel raised this issue, the
record is clear that the trial court determined that Petitioner's counts had been severed,
and this determination was upheld on appeal. Accordingly, in order to grant relief on this
claim, this Court would have to conclude that the post-conviction court and the Second
District Court of Appeal misinterpreted Florida law when it determined that the parties
could, and did, stipulate to a severance of Petitioner's counts. It is not the province of
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this Court to second guess state courts on issues of state law. Herring v. Secretary, Dept.
of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) (“The Florida Supreme Court already
has told us how the issues would have been resolved under Florida state law had
[petitioner's counsel] done what [petitioner] argues he should have done. . . . It is a
fundamental principle that state courts are the final arbiters of state law, and federal
habeas courts should not second-guess them on such matters.”) (citing Agan v. Vaughn,
119 F.3d 1538, 1549 (11th Cir. 1997) (internal quotations omitted)). Trial counsel was not
ineffective for not seeking to dismiss the remaining counts in the information on the basis
that the counts had not been severed; the trial court would have rejected any attempt to
do so. See Rasheed v. Smith, 221 F. App’x 832, 836 (11th Cir. 2007) (failure to file a
motion which would be futile is not deficient performance of counsel under Strickland).
The state court’s adjudication of this claim did not result in an unreasonable
application of federal law and was not based upon an unreasonable determination of the
facts presented in the state court proceeding. Petitioner is not entitled to federal habeas
relief on Claim Five. 28 U.S.C. § 2254(d).
f.
Claim Six
Petitioner asserts that the cumulative effects of his trial counsel’s ineffective
assistance justify vacating his conviction and sentence (Doc. 1 at 25). In Morris v. Sec’y,
Dept. of Corr., 677 F.3d 117, 1132 (11th Cir. 2012), the Eleventh Circuit recognized that
“[t]he cumulative error doctrine provides that an aggregation of non-reversible errors (i.e.,
plain errors failing to necessitate reversal and harmless errors) can yield a denial of the
constitutional right to a fair trial, which calls for reversal.” Id. at 1132 (quoting United States
v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005)). The court noted, however, that a
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cumulative error claim must fail when none of the petitioner’s individual claims of error
have merit. Id.
This Court has addressed each of Petitioner’s claims and found no individual
errors. Accordingly, no cumulative errors can exist, and Claim Six is denied. See Mullen
v. Blackburn, 808 F.2d 1143, 1147 (5th Cir. 1987) (Petitioner could not obtain habeas
relief through aggregation of individual meritless claims he had averred; twenty times zero
is zero); Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998) (“Cumulative error
analysis applies where there are two or more actual errors; it does not apply to the
cumulative effect of non-errors.”).
Any of Petitioner's allegations not specifically addressed herein have been found
to be without merit.
IV.
Certificate of Appealability
Petitioner is not entitled to a certificate of appealability. A prisoner seeking a writ
of habeas corpus has no absolute entitlement to appeal a district court's denial of his
petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of
appealability (“COA”).
“A [COA] may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make such a showing, Petitioner must demonstrate that “reasonable jurists would find the
district court's assessment of the constitutional claims debatable or wrong,” Tennard v.
Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)),
or that “the issues presented were ‘adequate to deserve encouragement to proceed
further.’” Miller–El, 537 U.S. at 335–36. Petitioner has not made the requisite showing in
these circumstances.
Because Petitioner is not entitled to a certificate of appealability, he is not entitled
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to appeal in forma pauperis.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.
The Petition for Writ of Habeas Corpus filed by Gregory Bolden is DENIED
and this case is DISMISSED WITH PREJUDICE.
2.
Petitioner is DENIED a Certificate of Appealability.
3.
The Clerk of the Court is directed to terminate any pending motions, enter
judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this 17th day of March, 2014.
SA: OrlP-4 3/17/14
Copies: Gregory Bolden
Counsel of Record
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