Alderman v. Secretary, Department of Corrections et al

Filing 23

OPINION AND ORDER denying re: 1 Petition for writ of habeas corpus. Signed by Judge Sheri Polster Chappell on 3/24/2017. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LARRY G. ALDERMAN,
Petitioner,
v.

Case No: 2:14-cv-336-FtM-38CM

SECRETARY, DEPARTMENT OF
CORRECTIONS and ATTORNEY
GENERAL, STATE OF FLORIDA,
Respondents.1
/
OPINION AND ORDER2
This matter comes before the Court upon a pro se petition for habeas corpus relief
filed pursuant to 28 U.S.C. § 2254 by Larry G. Alderman (“Petitioner”) (Doc. 1, filed June
12, 2014). Petitioner, a prisoner of the Florida Department of Corrections, attacks the
convictions entered by the Twentieth Judicial Circuit Court in and for Collier County,
Florida for grand theft of a motor vehicle; burglary of a structure; and possession of a

1

When the petitioner is incarcerated and challenges his present physical
confinement “the proper respondent is the warden of the facility where the prisoner is
being held, not the Attorney General or some other remote supervisory official.”
Rumsfeld v. Padilla, 542 U.S. 426, 436 (2004) (citations omitted). In Florida, the proper
respondent in this action is the Secretary of the Florida Department of Corrections.
Therefore, the Florida Attorney General will be dismissed from this action.
2

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Web sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some
other site does not affect the opinion of the court.

concealed weapon by a convicted felon (Doc. 1 at 1).3 Respondent filed a response to
the petition (Doc. 11). Petitioner filed a reply (Doc. 16), and the petition is now ripe for
review.
Petitioner raises four claims in his petition.

Upon due consideration of the

pleadings and the state court record, the Court concludes that each claim must be denied.
Because the petition may be resolved on the basis of the record, an evidentiary hearing
is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if the record refutes
the factual allegations in the petition or otherwise precludes habeas relief, a district court
is not required to hold an evidentiary hearing).
I.

Background and Procedural History4

On March 24, 2009, the State of Florida charged Petitioner with grand theft of an
automobile, in violation of Florida Statute § 812.014 (count one); burglary of a structure,
in violation of Florida Statute § 810.02 (count two); and possession of a concealed
weapon by a convicted felon, in violation of Florida Statute § 790.23 (count three).
Prior to trial, defense counsel (“Counsel”) moved to dismiss count three on the
ground that the “concealed weapon” at issue was actually a pocket knife (Ex. 2). After a
short hearing was held on the motion, it was denied because the state had filed a traverse
in which in contested Petitioner’s factual assertions regarding the characterization of the
knife (Ex. 5). Counsel then moved for a bifurcated trial on count three to prevent the jury

3

Although Petitioner urges that he was convicted of burglary of a structure (Doc.
1 at 1), it appears as if he was actually convicted of “trespass in a structure” (Ex. 8).
4

Citations to exhibits are to those filed by Respondent on October 28, 2014 (Ex.
11). Citations to the trial transcript, located in exhibit seven, will be cited as (T. at __).

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from learning of Petitioner’s prior convictions (Ex. 6). The second motion was granted
(Ex. 7 at 10-18).
On October 22, 2009, a jury found Petitioner guilty as charged on count one and
guilty of the lesser-included offense of trespass in a structure on count two. He was also
found guilty of carrying a concealed weapon (Ex. 8). On the second part of the bifurcated
trial on count three, Petitioner waived a jury, and the trial court found him guilty of carrying
a concealed weapon by a convicted felon (Ex. 7 at 408-25). After a sentencing hearing,
the trial court sentenced Petitioner to a total term of fifteen years in prison as a habitual
felony offender (Ex. 9; Ex. 10). Florida’s Second District Court of Appeal affirmed
Petitioner’s convictions without a written opinion (Ex. 13); Alderman v. State, 60 So. 3d
393 (Fla. 2d DCA 2011).
On December 1, 2011, Petitioner moved for post-conviction relief pursuant to Rule
3.850 of the Florida Rules of Criminal Procedure (“Rule 3.850 motion”) (Ex. 14). The
state filed a response (Ex. 16). On December 5, 2012, the post-conviction court adopted
the state’s response and denied each claim in Petitioner’s Rule 3.850 motion (Ex. 18).
Florida’s Second District Court of Appeal affirmed without a written opinion (Ex. 20).
Petitioner signed the instant federal habeas petition on June 9, 2014 (Doc. 1).
II.
a.

Governing Legal Principles

Standard of Review Under the Antiterrorism Effective
Death Penalty Act (“AEDPA”)

Under the AEDPA, federal habeas relief may not be granted regarding 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

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(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.

28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet. White v.
Woodall, 134 S. Ct. 1697, 1702 (2014). A state court’s summary rejection of a claim,
even without explanation, qualifies as an adjudication on the merits which warrants
deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Notably, a state
court’s violation of state law is not sufficient to show that a petitioner is in custody in
violation of the “Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a);
Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
“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 issued its decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S.
70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).

That said, the

Supreme Court has also explained that “the lack of a Supreme Court decision on nearly
identical facts does not by itself mean that there is no clearly established federal law,
since ‘a general standard’ from [the Supreme Court’s] cases can supply such law.”
Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)).

State courts “must reasonably apply the rules ‘squarely

established’ by [the Supreme] Court’s holdings to the facts of each case.” White, 134 S.
Ct. at 1706 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).
Even if clearly established federal law is on point, habeas relief is only appropriate
if the state court decision was “contrary to, or an unreasonable application of,” that federal
law. 29 U.S.C. § 2254(d)(1). A decision is “contrary to” clearly established federal law if

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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 identifies the governing legal principle, but
applies it to the facts of the petitioner’s case in an objectively unreasonable manner,
Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th
Cir. 2000), or “if the state court either unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.” Bottoson, 234
F.3d at 531 (quoting Williams, 529 U.S. at 406). The petitioner must show that the state
court’s ruling was “so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” White,
134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)). Moreover, “it is
not an unreasonable application of clearly established Federal law for a state court to
decline to apply a specific legal rule that has not been squarely established by [the
Supreme] Court.” Knowles, 556 U.S. at 122.
Finally, when reviewing a claim under § 2254(d), a federal court must remember
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); Burt v. Titlow, 134 S. Ct. 10,
15 (2013) (“[A] state-court factual determination is not unreasonable merely because the

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federal habeas court would have reached a different conclusion in the first instance.”)
(quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).
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. This
is a “doubly deferential” standard of review that gives both the state court and the
petitioner’s attorney the benefit of the doubt. Burt, 134 S. Ct. at 13 (citing Cullen v.
Pinholster, 131 S. Ct. 1388, 1403 (2011)).
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.
The petitioner bears the heavy 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
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).
On 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).

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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.
III.

Analysis

In its response to Petitioner’s Rule 3.850 motion, the state briefly summarized the
facts surrounding Petitioner’s arrest:
The State of Florida charged Larry Alderman with three felony
charges as a result of an incident on February 20, 2009, at the
Huapilla packing house. The matter proceeded to jury trial
where testimony revealed that law enforcement officers drove
to the packing house at approximately 1:35 a.m. and the
business was closed. The officers observed a box truck with
the ignition running. Alderman ran from the truck upon
seeing police. Once police apprehended him, they found a
“jump” wire commonly used to start vehicles on Alderman’s
person. Officers also observed a sweatshirt underneath him
which was wrapped around a knife. The officers described it
as a “four-inch switchblade knife,” or a “spring-loaded knife”
with an open blade.
(Ex. 16 at 1) (internal citations to the record omitted). In the instant petition, Petitioner
raises four claims of ineffective assistance of counsel.

Specifically, he asserts that

Counsel: (1) failed to object to the victim’s interpreter not being sworn prior to the victim’s
testimony ; (2) allowed a biased juror to be empaneled; (3) failed to properly argue
Petitioner’s motion to dismiss count three; and (4) failed to move for a judgment of
acquittal on the ground that the weapon at issue was a common pocketknife (Doc. 1 at
5-10). Each claim will be addressed separately.
a.

Claim One

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Petitioner asserts that Counsel failed to object to the victim’s interpreter not being
sworn prior to the victim’s testimony at trial (Doc. 1 at 5). Petitioner urges that, as an
interpreter from Collier County, “[the interpreter] was prone to be slanted towards [the
state and] her translations were probably not true, accurate, and correct without taints or
twists.” (Doc. 1-1 at 4). Petitioner raised this claim in his Rule 3.850 motion (Ex. 14), and
the post-conviction court, adopting the state’s response, denied it (Ex. 18). Specifically,
the post-conviction court concluded that Petitioner could not demonstrate prejudice
because, had Counsel objected, the trial court “would have remedied the situation by
administering the oath” (Ex. 16 at 6). Florida’s Second District Court of Appeal affirmed
(Ex. 20). A review of the record supports the state courts’ conclusion that Petitioner
cannot demonstrate Strickland prejudice resulting from Counsel’s failure.
Prior to hearing trial testimony from victim Janara Huapilla, the trial judge told the
jury he only recently discovered that Mr. Huapilla would testify in Spanish (T. at 225).
The court explained that “[w]e’re going to use a Collier County interpreter, whose job it is
to interpret from Spanish to English and English to Spanish to the best of his ability . . .
[s]o [Huapilla’s] testimony will be given through our interpreter, all right?” Id. at 225-26.
During his interpreted testimony, Huapilla, the tenant of the property where his truck was
located, described the property and testified that he had not given Petitioner permission
to be there. Id. at 227-28. He also testified that he owned the truck and had not given
Petitioner permission to use it. Id. at 241-42. Huapilla testified that he was not on the
property when his truck was taken; accordingly, Huapilla did not provide any eyewitness
testimony.

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Petitioner has the burden of showing a reasonable likelihood of a different jury
verdict had Counsel insisted upon the interpreter being sworn before Huapilla’s testimony.
Strickland, 466 U.S. at 696. As noted by the post-conviction court, even had Counsel
objected to the interpreter not being sworn, the trial court would have simply remedied
the situation by placing the interpreter under oath. Moreover, Petitioner does not point
to any of Huapilla’s testimony he believes to have been erroneously translated; nor does
he assert that Huapilla’s interpreted testimony was untrue. At most, Petitioner urges that
the interpreter could have “tainted or twisted” the testimony without providing evidence
that the interpreter, in fact, did so (Doc. 1-1 at 4). Petitioner has not met his burden of
showing Strickland prejudice because there is no evidence that the interpreter
deliberately (or inadvertently) misinterpreted anything. Rather, Claim One is based upon
speculation, and mere speculation cannot support an ineffective assistance claim. See
Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or
unsupported allegations cannot support an ineffective assistance of counsel claim);
Purvis v. Crosby, 451 F.3d 734, 738-39 (11th Cir. 2006) (“We do not know, and when we
do not know[,] the party with the burden loses[.]”).
The state courts’ denial of Claim One was neither contrary to Strickland nor based
upon an unreasonable determination of the facts, and the claim is denied. 28 U.S.C. §
2254(d).

b.

Claim Two

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Petitioner asserts that Counsel was ineffective for allowing an unqualified juror to
be empaneled (Doc. 1 at 7). Specifically, Petitioner urges that Juror Ross Barnard was
biased because, in response to Counsel’s question regarding a defendant’s right to
remain silent, Barnard stated that “Just that you [defense counsel] should be able to prove
his innocence to us, you know, without a reasonable doubt.” (Doc. 1-1 at 2).
Petitioner raised this claim in his Rule 3.850 motion (Ex. 14), and the postconviction court, adopting the state’s response, denied it (Ex. 18). The post-conviction
court noted that, in addition to Barnard’s brief comment on defense counsel’s
responsibilities, he also stated that he would “absolutely” find Petitioner not-guilty if the
State failed to prove the charges against him and that he would return a guilty verdict if
the State proved the charges beyond a reasonable doubt (Ex. 16 at 4).

The post-

conviction court also noted that the jury was reminded that the presumption of innocence
stays with the defendant as to each material allegation. Id. The court determined that
Petitioner could not demonstrate Juror Barnard’s bias on the face of the record, and
accordingly, Petitioner could not demonstrate Strickland prejudice. Id. Florida’s Second
District Court of Appeal affirmed (Ex. 20). A review of the record supports the state
courts’ rejection of Claim Two.
The Sixth Amendment guarantees the accused a trial by an impartial jury in federal
criminal prosecutions. U.S. Const. amend VI. Because “trial by jury in criminal cases is
fundamental to the American scheme of justice,” the Due Process Clause of the
Fourteenth Amendment guarantees the same right to the accused in state criminal
prosecutions. Duncan v. Louisiana, 391 U.S. 145, 149 (1968). As with federal law, the
test for determining juror competency in the Florida courts is “whether the juror can lay

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aside any bias or prejudice and render his verdict solely upon the evidence presented
and the instructions on the law given to him by the court.” Lusk v. State, 446 So.2d 1038,
1041 (Fla. 1984).
Petitioner has not satisfied Strickland’s performance prong because nothing in the
record suggests that no reasonable competent attorney would have decided against
striking Juror Barnard from the jury panel. Barnard told the trial court he could reach a
fair decision based only on the evidence presented at trial and that, if the state failed to
prove the charges beyond a reasonable doubt, he would return a not-guilty verdict (T. at
79).

Upon review of the trial transcript, it appears that Juror Barnard’s statement

regarding Counsel’s “job” at trial was not a direct comment upon Petitioner’s right to
remain silent. Rather, Counsel asked the jurors, “So if [the defense] [doesn’t] have any
other witnesses to call, and he has the right to remain silent, what should I do as my job?
Does anyone have any thoughts on that?” (T. at 123).

Barnard responded, “[j]ust that

you should be able to prove his innocence to us, you know, without a reasonable doubt.”
Id. at 124. Counsel then asked if any other juror felt that way, and corrected Barnard’s
statement, noting that “[i]t’s up to the State to prove [Petitioner’s] guilt. It’s not up to me
to prove his innocence.” Id.
The Eleventh Circuit has cautioned that courts applying Strickland must “defer to
trial counsel’s performance and eschew the distorting effects of hindsight” when
interpreting a prospective juror’s statements and trial counsel’s decision whether to leave
that person on the jury. Harvey v. Warden, Union Correctional Institution, 629 F.3d 1228,
1247 (11th Cir. 2011) (internal quotation omitted); see also Babb v. Crosby, 197 F. App’x
885, 887 (11th Cir. 2006) (“the Supreme Court has not concluded that a lawyer who

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leaves an arguably biased juror on a jury is per se ineffective”). Moreover, “[a]ssessing
jurors during voir dire also requires an evaluation of demeanor and credibility. Review of
counsel’s performance is highly deferential in any case, but the case for deference is even
greater when counsel is evaluating credibility.” Bell v. United States, 351 F. App’x 357,
360 (11th Cir. 2009) (internal citation omitted).

Under these standards, reasonable

competent counsel could have determined that Juror Barnard understood that the state
bears the burden of proof at a criminal trial.
Likewise, because empaneled jurors are presumed impartial, to satisfy Strickland’s
prejudice prong, Petitioner must show that Juror Barnard was actually biased against him.
Smith v. Phillips, 455 U.S. 209, 215 (1982); Rogers v. McMullen, 673 F.2d 1185, 1189
(11th Cir. 1982) (defendant’s Sixth Amendment right to a fair and impartial jury was not
violated absent a showing that a jury member hearing the case was actually biased
against him). The trial court instructed the panel that “[t]he defendant is not required to
prove anything” and that it was the jury’s “solemn responsibility to determine if the State
has proved its accusations beyond a reasonable doubt against the defendant.” (T. at 92,
170). The trial court also told the jury that “[a]t no time is it the duty of a defendant to
prove his innocence.” Id. at 173. During the jury charge, the trial court reiterated:
The defendant has entered a plea of not guilty. This means
you must presume or believe the defendant is innocent. The
presumption stays with the defendant as to each material
allegation in the Information through each stage of the trial
unless it has been overcome by the evidence to the exclusion
of and beyond a reasonable doubt.
To overcome the defendant’s presumption of innocence, the
State has the burden of proving the crime with which the
defendant is charged was committed and the defendant is the
person who committed the crimes. The defendant is not
required to present or prove anything.

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(T. at 393). A jury is presumed to follow its instructions. Weeks v. Angelone, 528 U.S.
225, 226 (2000). Accordingly, it is presumed that the jury, including Juror Barnard,
concluded that the state proved each element of the crimes with which Petitioner was
charged beyond a reasonable doubt.
Petitioner presents no evidence that Barnard, or any other juror, was actually
biased, and he has satisfied neither prong of the Strickland ineffectiveness test.
Accordingly, the state court’s conclusions were neither contrary to, nor an unreasonable
application of, Strickland. Nor were they based upon an unreasonable determination of
the facts in light of the evidence presented in the state court proceedings. Petitioner is
not entitled to federal habeas corpus relief on Claim Two. 28 U.S.C. § 2254(d).
c.

Claim Three

Petitioner asserts that Counsel was ineffective for failing to introduce the actual
knife at issue during the evidentiary hearing on his motion to dismiss count four5 of the
information (Doc. 1 at 8). Prior to trial, Counsel had filed a motion to dismiss count four
of the information—possession of a concealed weapon by a convicted felon—on the basis
that the knife found in Petitioner’s possession was not a “concealed weapon” as a matter
of law, but rather a four-inch common pocketknife (Ex. 2). The state filed a traverse to
the motion alleging that the “discovery provided to Defense Counsel provides that
[Petitioner] possessed a 4 [inch] spring loaded, switch blade-type knife” (Ex. 3). An
evidentiary hearing was held (Ex. 4). After the hearing, the trial court denied the motion

5

Although labeled as a motion to dismiss count four of the information, it appears
that the motion was actually directed towards count three of the information—possession
of a concealed weapon by a convicted felon, in violation of Florida Statute § 790.23 (Ex.
1; Ex. 2).

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to dismiss because the State’s traverse denied material facts, and as a result, the trial
court was bound by what was stated in the pleadings. Id. Petitioner now urges that
Counsel was ineffective for failing to bring the knife at issue to the evidentiary hearing so
that the “court would have obviously seen it was only three and one half inches, granted
the motion because the common pocket knife is a statutory exception to the definition of
weapon and the concealed weapon charge would have been dismissed” (Doc. 16 at 11).
Petitioner raised this claim in his Rule 3.850 motion (Ex. 14), and the postconviction court, adopting the state’s response, denied it (Ex. 18). Specifically, the postconviction court concluded that Counsel’s performance was not deficient because the trial
court’s denial of the motion to dismiss was mandatory under Florida law; the state had
filed a traverse disputing material facts alleged in the motion to dismiss (Ex. 14); citing
Boler v. State, 678 So. 2d 319, 323 (Fla. 1996); State v. Lewis, 463 So. 2d 561, 563 (Fla.
2d DCA 1985); State v. Paleveda, 745 So. 2d 1026, 1027 (Fla. 2d DCA 1999); State v.
Miller, 710 So. 2d 686, 687 (Fla. 2d DCA 1998). Florida’s Second District Court of
Appeal affirmed (Ex. 20). A review of the record and applicable state law supports the
state courts’ rejection of Claim Three.
Rule 3.190(c)(4) of the Florida Rules of Criminal Procedure permits a defendant to
move to dismiss a charge when “[t]here are no material disputed facts and the undisputed
facts do not establish a prima facie case of guilt against the defendant.”

To avoid

dismissal under Rule 3.190(c)(4), the State must file a traverse denying under oath the
material facts alleged in the motion to dismiss. See Fla. R. Crim. P. 3.190(d). In the
traverse, the State is not required to pre-try its case, only to present sufficient facts which,
when viewed in a light most favorable to the State, show that a reasonable jury could find

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in its favor. See State v. Terma, 997 So.2d 1174, 1177-78 (Fla. 3d DCA 2008) (the state
is entitled to the most favorable construction of the facts possible); State v. Ortiz, 766
So.2d 1137, 1141-42 (Fla. 3d DCA 2000) (when considering a Rule 3.190(c)(4) motion,
“the state is entitled to the most favorable construction of the evidence with all inferences
being resolved against the defendant”).
Here, Petitioner’s Rule 3.190(c)(4) motion to dismiss alleged that the weapon at
issue was merely a four inch pocket knife, and was not one of the statutorily defined
weapons under Florida Statute § 790.001(13) (Ex. 2). In its traverse, the State noted:
Counsel for the Defendant alleges that a 4” pocket knife does
not constitute a concealed weapon under statute. However,
the Defendant is not alleged to have possessed a pocket
knife.
The discovery provided to Defense Counsel provides that the
Defendant possessed a 4” spring loaded, switch blade-type
knife.
Florida Statute 790.001(13) includes within the definition of
“weapon” any dirk or knife, except a common pocket knife,
plastic knife, or blunt bladed table knife.
The Defendant is not alleged to have possessed one of the
types of knives excluded from the concealed weapons statute.
(Ex. 3). The express terms of Rule 3.190(d) provide that a Rule 3.190(c)(4) motion to
dismiss must be denied “if the state files a traverse that, with specificity, denies under
oath the material fact or facts alleged in the motion to dismiss.” This is precisely what
the trial court did (Ex. 4).6 Reasonable competent counsel could have decided against

6

To the extent Petitioner urges that the trial court incorrectly determined state law
on this issue, “[it] is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991);
see also Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984) (although ineffective
assistance of counsel is a question of federal law, when the answer to the question turns
on whether counsel should have raised issues of state law, § 2254(d) requires the federal

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introducing the knife in question at the evidentiary hearing on the motion to dismiss
because doing so would be futile; the state’s traverse clearly denied the material facts
alleged therein. See Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (counsel
was not ineffective for failing to raise issues that clearly lack merit).

Accordingly,

Petitioner has not satisfied the performance prong of Strickland’s ineffectiveness test, and
the state courts’ rejection of Claim Three was neither contrary to Strickland nor based
upon an unreasonable determination of the facts.
d.

Claim Four

Petitioner asserts that Counsel was ineffective for failing to include an argument in
his motion for a judgment of acquittal on the concealed weapons charge that the weapon
at issue was a common pocket knife (Doc. 1 at 4).7 Petitioner raised this claim in his
Rule 3.850 motion (Ex. 14), and the post-conviction court, adopting the state’s response,
denied it (Ex. 18). Specifically, the post-conviction court determined that Petitioner could
not demonstrate deficient performance nor resulting prejudice from Counsel’s failure to
make this argument because no evidence was presented at trial that Petitioner’s knife
was a common pocket knife:
Florida courts have repeatedly commented on the definition
of an ordinary pocket knife which is exempt from the definition
of a weapon. L.B. v. State, 700 So. 2d 370, 372 (Fla. 1997)
(“we can infer that the legislature’s intended definition of
‘common pocketknife’ was: ‘A type of knife occurring
frequently in the community which has a blade that folds into
court defer to the state court’s decision regarding its own laws) (superseded by statute
on other grounds).
7

After the state presented its case, Counsel moved for a judgment of acquittal on
the grounds that the state had not proved all the elements of burglary or grand theft auto.
Counsel also argued that the state had not proven that the weapon at issue (the knife)
had been “concealed” by Petitioner (T. at 309-15).

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the handle and that can be carried in one’s pocket.’ We
believe that in the vast majority of cases, it will be evident to
citizens and fact-finders whether one’s pocketknife is a
‘common’ pocketknife under any intended definition of that
term.”); Walls v. State, 730 So.2d 294 (Fla. 1st DCA 1999)
(definition of common pocketknife may be invoked only by a
defendant who establishes conclusively that the knife in
question has a blade length of four inches or less and that it
was carried in a folded position); Browder v. State, 27 So. 3d
150, 151 (Fla. 2d DCA 2010) (in case of undisputed assertion
that blade of knife was less than four inches long and closed,
motion to dismiss should have been granted).
There was no testimony at trial that Alderman carried a pocket
knife, that it was in the closed position, or that the blade was
less than four inches long. In fact, a State’s witness described
it as a “four-inch switchblade knife,” or a “spring-loaded knife”
with an open blade. Alderman in the instant motion and
counsel in the motion to dismiss both described it as having a
four-inch blade, not less than four inches. The knife was
published to this Court and the jury. The jury received
instruction that a weapon is not a common pocket knife, and
found Alderman guilty beyond a reasonable doubt. Even if
counsel had made the argument suggested by Alderman, it
would have been denied. Tefeteller, 734 So.2d at 1020. Thus,
this ground for relief should be denied as he has failed to
demonstrate deficient performance or prejudice.
(Ex. 16 at 7) (internal citations to the record omitted). Florida’s Second District Court of
Appeal affirmed (Ex. 20). A review of the record supports the state courts’ rejection of
Claim Three.
Under Florida law, a motion for judgment of acquittal is designed to challenge the
legal sufficiency of the state’s evidence. State v. Williams, 742 So.2d 509, 510 (Fla. 1st
DCA 1999). In moving for a judgment of acquittal, a defendant admits not only the facts
stated in the evidence, but also every reasonable conclusion favorable to the state that
the fact-finder might fairly infer from the evidence. Williams, 742 So.2d at 510 (citing
Lynch v. State, 293 So.2d 44, 45 (Fla. 1974)). If the state presents competent evidence
to establish each element of the crime, a motion for a judgment of acquittal should be

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denied. Id. at 510. In other words, a trial court may not grant the motion for a judgment
of acquittal unless the evidence, when viewed in a light most favorable to the state, fails
to establish a prima facie case of guilt. Id.
The jury convicted Petitioner of carrying a concealed weapon (Ex. 8). The Florida
Statutes define a concealed weapon:
“Concealed weapon” means any dirk, metallic knuckles, slung
shot, billie, tear gas gun, chemical weapon or device, or other
deadly weapon carried on or about a person in such a manner
as to conceal the weapon from the ordinary sight of another
person.
Fla. Stat. § 790.001(3)(a) (2009). In its charge to the jury, the trial court specifically noted
that “a common pocket knife, a plastic knife or blunt-bladed table knife” were exempt from
the definition of weapon (T. at 390); see also Fla. Stat. § 790.001(13). The gravamen of
the instant claim is that Counsel should have moved for a judgment of acquittal based
upon an argument that the knife at issue was a “common pocket knife” and that insufficient
evidence had been presented to prove otherwise. However, Deputy Allen Catlin testified
that he found a “four-inch switchblade” underneath Petitioner upon apprehension (T. at
191, 193).

Corporal James Hopkins also testified that a “switchblade knife” was

recovered from Petitioner (T. at 212).
Evidence was presented that Petitioner was in possession of a switchblade knife,
not a common pocket knife, when he was arrested. Therefore, reasonable competent
counsel could have decided against arguing that Petitioner was entitled to a judgment of
acquittal on the ground that he carried only a common pocket knife. Moreover, had
Counsel done so, the motion would have been denied. Accordingly, the state court’s
conclusion that Petitioner demonstrated neither deficient performance nor resulting

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prejudice was not contrary to Strickland nor based upon an unreasonable determination
of the facts. Claim Four is denied. 28 U.S.C. § 2254(d).
Any of Petitioner’s allegations not specifically addressed herein have been found
to be without merit.
IV.

Certificate of Appealability8

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
to appeal in forma pauperis.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

The Florida Attorney General is DISMISSED as a named Respondent.

8

Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts, the “district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” Id. As this Court has determined
that Petitioner is not entitled to habeas corpus relief, it must now consider whether
Petitioner is entitled to a certificate of appealability.

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2.

The 28 U.S.C. § 2254 petition for habeas corpus relief filed by Larry G.

Alderman is DENIED, and this case is dismissed with prejudice.
3.

Petitioner is DENIED a certificate of appealability.

4.

The Clerk of Court is directed to terminate any pending motions, enter

judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this 24th day of March, 2017.

SA: OrlP-4
Copies: Larry G. Alderman
Counsel of Record

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