Berry v. Secretary, Department of Corrections et al
Filing
23
OPINION AND ORDER dismissing the Florida Attorney General as a named respondent; denying 1 Petition for writ of habeas corpus. A certificate of appealability and leave to appeal in forma pauperis are denied. The Clerk shall enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Judge John E. Steele on 11/2/2015. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CHARLES BERRY,
Petitioner,
v.
Case No: 2:14-cv-475-FtM-29MRM
SECRETARY,
DEPARTMENT
OF
CORRECTIONS
and
ATTORNEY
GENERAL, STATE OF FLORIDA,
Respondents. 1
OPINION AND ORDER
This matter comes before the Court upon a petition for habeas
corpus relief filed pursuant to 28 U.S.C. § 2254 by Jose Luis
Morales (“Petitioner”) who is presently confined at the Apalachee
Correctional Institution in Sneads, Florida (Doc. 1, filed August
15, 2014).
Petitioner, proceeding pro se, attacks the convictions
and sentences entered against him by the Twelfth Judicial Circuit
Court in DeSoto County, Florida for burglary of an unoccupied
dwelling, grand theft, and possession of a concealed handcuff key.
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.
Id.
Respondent filed a response to the petition (Doc. 14).
Petitioner filed a reply (Doc. 20).
I.
Background and Procedural History
On September 21, 2006, Petitioner was charged by information
with burglary of an occupied dwelling in violation of Florida
Statute
§§
810.02(1)
and
(3)(c)
(count
one);
grand
theft
in
violation of Florida Statute §§ 812.014(1) and (2) (count two);
and possession of a concealed handcuff key in violation of Florida
Statute § 843.012 (count three) (Ex. 15 at Vol. 1 at 8). 2
After a jury trial, Petitioner was found guilty of burglary
of an unoccupied dwelling, larceny of between $300 and $5000; and
possession of a concealed handcuff key (Ex. 15 at 546).
Petitioner
was sentenced to thirty years in prison on count one and to
consecutive terms of ten and five years in prison on counts two
and
three.
Id.
at
546-54;
(Vol.
1
at
496).
Petitioner's
convictions and sentences were per curiam affirmed by Florida’s
Second District Court of Appeal (Ex. 4); Berry v. State, 88 So. 3d
939 (Fla. 2d DCA 2012).
2
Unless otherwise noted, citations to exhibits and volumes
are to those filed by Respondent on February 19, 2015 (Doc. 16).
The record on direct appeal is located in Exhibit 15 and spans
several volumes.
However, each page is consecutively numbered;
therefore, citations to the exhibits in Exhibit 15 will be cited
as (Ex. 15 at ___) without reference to the specific volume number.
The trial transcript is located in volumes VII – IX of Exhibit 15
and will be cited as (T. at ___).
- 2 -
Petitioner filed a post-conviction motion pursuant to Rule
3.850 of the Florida Rules of Criminal Procedure (“Rule 3.850
motion”) in which he raised four claims of ineffective assistance
of counsel (Ex. 6).
The post-conviction court denied the Rule
3.850 motion, and Florida’s Second District Court of Appeal per
curiam affirmed (Ex. 7; Ex. 10); Berry v. State, 139 So. 3d 306
(Fla. 2d DCA 2014).
On November 13, 2012, Petitioner filed a state habeas petition
in which he alleged ineffective assistance of appellate counsel
(Ex. 12). Florida’s Second District Court of Appeal denied the
petition on January 16, 2013 (Ex. 14).
Petitioner filed the instant petition on August 15, 2014 (Doc.
1).
II.
Governing Legal Principles
A.
Standard of Review Under 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.
- 3 -
28 U.S.C. § 2254(d).
to meet.
This standard is both mandatory and difficult
White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
A state
court’s summary rejection of a claim, even without explanation,
qualifies
as
deference.
2008).
an
adjudication
on
the
merits
which
warrants
Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir.
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
issues 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
Mirzayance, 556 U.S. 111, 122 (2009)).
- 4 -
1706
(quoting
Knowles
v.
Even if there is clearly established federal law on point,
habeas relief is appropriate only 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 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.”
Williams, 529 U.S. at 406).
Bottoson,
234
F.3d
at
531
(quoting
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,
- 5 -
540 U.S. at 17-18; Ward, 592 F.3d at 1155.
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.
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); Burt v.
Titlow,
134
S.
determination
is
Ct.
not
10,
15
(2013)
unreasonable
(“[A]
merely
state-court
because
the
factual
federal
habeas court would have reached a different conclusion in the first
instance.”) (quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).
B.
Standard for 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 habeas 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
- 6 -
below
an
objective
standard
of
reasonableness
and
deficient performance prejudiced the defense. Id.
that
the
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.”
at 689.
Id.
Indeed, 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).
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
- 7 -
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.
is
“a
probability
sufficient
to
A reasonable probability
undermine
confidence
in
the
outcome.” Strickland, 466 U.S. at 694.
III. Analysis
A.
Claim One and Claim Three
In Claim One, Petitioner asserts that he was denied his Sixth
Amendment right to a speedy trial (Doc. 1 at 5). Specifically, he
argues that he was represented “by a host” of court-appointed
attorneys over a three-year pre-trial period, and that conflict
existed with all but the last appointee. Id.
Petitioner raised
this claim on direct appeal, where it was rejected by Florida’s
Second DCA (Ex. 2; Ex. 4).
Petitioner asserts that the state
court’s rejection of his speedy-trial claim is contrary to, or an
unreasonable application of, clearly established law as announced
in Barker v. Wingo, 407 U.S. 514 (1972).
In
Claim
Three,
Petitioner
argues
that
counsel
was
ineffective for failing to file a sufficient motion to dismiss on
constitutional speedy trial grounds because he (counsel) did not
“articulate any of the factors outlined in Barker[.]” (Doc. 1 at
14).
Petitioner raised Claim Three in his Rule 3.850 motion (Ex.
3).
In its rejection of this claim, the post-conviction court
- 8 -
carefully
considered
the
Barker
factors
and
concluded
that
Petitioner could not demonstrate prejudice from any alleged error
because no constitutional speedy trial violation had occurred (Ex.
7).
Florida’s Second DCA per curiam affirmed (Ex. 10).
Upon
review of the record, the Court concludes that the state courts’
denials of Petitioner's constitutional speedy trial claim and
attendant ineffective assistance claim were neither contrary to,
nor an unreasonable application of, Barker or Strickland.
The Sixth Amendment to the United States Constitution affords
criminal defendants the fundamental right to a speedy trial. U.S.
Const. amend. VI. 3
factors
must
defendant's
be
Under clearly established federal law, four
balanced
constitutional
in
assessing
right
to
a
whether
speedy
a
trial
criminal
has
been
violated: (1) the length of the delay; (2) the reason for the
delay; (3) the extent to which the defendant asserted his right to
a speedy trial; and (4) any prejudice to the defendant. See Barker,
407 U.S. at 530-32. "None of these factors, taken by itself, is
'either a necessary or sufficient condition to the finding of a
deprivation of the right of speedy trial. Rather, they are related
factors
and
must
be
considered
3
together
with
such
other
This fundamental right is imposed on the states by the Due
Process Clause of the Fourteenth Amendment. Klopfer v. North
Carolina, 386 U.S. 213, 222-23 (1967).
- 9 -
circumstances as may be relevant.'" Jackson v. Ray, 390 F.3d 1254,
1260-61 (10th Cir. 2004) (quoting Barker, 407 U.S. at 533).
1.
A
delay
Length of delay
is
generally
presumptively
prejudicial
“as
it
approaches one year.” Doggett v. United States, 505 U.S. 647, 652
n.1 (1992).
However, “presumptive prejudice does not necessarily
indicate a statistical probability of prejudice; it simply marks
the point at which courts deem the delay unreasonable enough to
trigger the Barker enquiry.” Id.(internal quotations omitted).
For purposes of the constitutional analysis, the speedy trial
time period commences when the defendant is first arrested or
charged and ends when his jury trial begins. See United States v.
Marion, 404 U.S. 307, 320-21 (1971).
Petitioner was arrested on
August 28, 2006 (Ex. 15 at 2), and his trial commenced on September
21, 2009 (Ex. 15 at Vol. VII).
Because this period of time exceeds
one year, it is presumptively prejudicial and this Court will
examine the remaining Barker factors.
2.
Reasons for the delay
The second Barker factor focuses on the reason for the delay.
Government delays motivated by bad faith, harassment, or attempts
to seek a tactical advantage weigh heavily against the government,
while neutral reasons such as negligence are weighted less heavily,
and valid reasons for a delay weigh in favor of the government.
Barker, 407 U.S. at 531.
A delay attributed to the defendant, or
- 10 -
the defendant’s counsel, is charged against the defendant. Id. at
529; Coleman v. Thompson, 501 U.S. 722, 753 (1991).
Even so, in
Vermont v. Brillon, the Supreme Court recognized that “[d]elay
resulting from a systemic breakdown in the public defender system
could be charged to the State.” 129 S. Ct. 1283, 1292 (2009)
(internal
quotation
and
citation
omitted).
Petitioner
now
contends that his delay is chargeable to the State because it
resulted from a “systemic breakdown in the appointment of conflictfree counsel.” (Doc. 1 at 8).
The post-conviction court described the reasons for the delay
in bringing Petitioner to trial as follows:
As the Defendant outlined in his motion, he
was originally appointed James Beesting, of
the Office of the Public Defender (OPD), to
represent him in this case. However, several
months into the case, Mr. Beesting realized
that he knew one of the victims, and he moved
to withdraw. Thereafter, the Court appointed
a private attorney to represent Defendant, and
that attorney worked on Defendant’s case for
approximately
a
year.
Unfortunately,
Defendant and the private attorney had an
irreconcilable conflict, and the attorney was
permitted to withdraw on April 7, 2008.
Accordingly, the Court then re-appointed the
OPD, but due to the conflict of Mr. Beesting,
the OPD immediately withdrew from the case. As
a result, the Court then appointed the Office
of Regional Counsel (ORC); however, around
that time, Mr. Beesting moved from the OPD to
ORC, and for this reason, ORC moved to
withdraw.
Because Mr. Beesting was no longer with the
OPD, the Court once again appointed OPD to
represent Defendant, believing the conflict to
- 11 -
be cured. Nevertheless, Defendant filed a
petition for writ of mandamus in the Second
District Court of Appeal[], seeking to have
new counsel appointed to his case. While this
petition was pending, Mr. Beesting was rehired by the OPD. As a result, the OPD once
again moved to withdraw. For this reason, the
Court allowed OPD to withdraw and appointed
another private attorney in March 2009.
Thereafter, Defendant’s private counsel was
forced to seek two continuances, as he was
brought
up
to
speed
with
the
case.
Nevertheless, the case still proceeded in a
timely fashion, and a jury verdict was
rendered on September 22, 2009. Accordingly,
on review of the record, it is clear that there
was a valid reason for the delay in this case,
and that the delay was not deliberate.
Therefore, this factor weighs little, if at
all, against the State. See Vermont v.
Brillon, 129 S. Ct. 1283 (U.S. 2009).
Ex. 7 at 5-6).
A review of the record supports the post-conviction
court’s conclusion that there were valid reasons for the delays in
this case.
Public Defender James Beesting was appointed to represent
Petitioner soon after his 2006 arrest (Doc. 1 at 5). In April of
2007, Beesting moved to withdraw due to a conflict of interest, 4
and Drake Buckman was immediately appointed as a special public
4
Petitioner asserts in his petition that “apparently, Mr.
Beesting had a person friendship with the victim that spanned many
years but, ironically, it took Mr. Beesting seven months to figure
out that he personally knew the victim in the case.” (Doc. 1 at 5)
(emphasis in original). Petitioner does not explain how Beesting’s
failure to realize that he knew one of the victims is chargeable
to the State.
- 12 -
defender
(Ex.
1
at
19-20).
Buckman
immediately
requested
a
fifteen day extension to “attack any defects as to the information
filed herein.” (Ex. 15 at 21).
Buckman filed a motion for
withdrawal of counsel on April 10, 2008, citing a conflict of “such
a nature and character that it has gravely and irreparably affected
the
attorney-client
Public
Defender
relationship.”
James
Jacobs
Id.
was
at
26.
appointed
Subsequently,
to
represent
Petitioner, but Petitioner asserts that he “immediately” moved to
withdraw in May of 2008 (Doc. 1 at 6). 5
Petitioner claims that
James Beesting, who now worked for the Second District Office of
Criminal Conflict was re-appointed in May of 2008, but moved to
withdraw due to the prior conflict. Id.
Petitioner alleges that
“the trial court waited 6 months before granting withdrawal and
appointing new counsel Id. (Emphasis in original). 6
5
Jacobs was apparently concerned that the conflict of
interest expressed by Beesting should be imputed to the entire
Public Defender’s Office. However, Beesting no longer worked for
the Public Defender at the time because he had moved to the Second
District Office of Criminal Conflict and Civil Regional Counsel.
When Beesting was re-hired by the Public Defender’s Office, private
counsel was appointed (Ex. 15 at 413, 414).
6
To the extent Petitioner wants the Court to conclude that
he was without representation from May of 2008 until November of
2008, such conclusion would not be supported by the record. On
September 18, 2008, Jacobs wrote a letter to Petitioner in which
he answered a question regarding the issues currently raised in
Claims Four and Five. In the same letter, Jacobs wrote:
We need to move forward on the “real” issues
of this case. I do thank you both personally
- 13 -
Despite Petitioner's emphatic implication that he was without
counsel for six months, in his next paragraph, he asserts that
Jacobs was re-appointed in July of 2008 and remained his counsel
until March of 2009 when Mark Maynard was appointed (Doc. 1 at 6).
Indeed, during this time, Jacobs worked diligently on Petitioner's
defense, filed numerous motions, and wrote letters to Petitioner. 7
and professionally for your compliments about
how I presented your motions this past Monday.
. . .
Mr. Steven Watson and I have been in contact
about your case. He is coming out here the
morning of October 02 so we can discuss this
matter and to see you exclusively. I strongly
urge you to have patience and realize we have
given your case the highest of priorities.
(Ex. 15 at 171).
In addition to Jacobs’ letter, Petitioner filed
a lawsuit in this Court on July 15, 2008 in which he complained
that “Jacobs has been re-appointed yet again, and refuses to work
on my case because he still feels that a conflict exists, despite
the Judges’ finding of otherwise.” (MDFL Case No. 2:08-cv-559-JESDNF at Doc. 1). Even Petitioner's current petition states that
Jacobs was re-appointed as counsel in July of 2008 (Doc. 1 at 6).
7
These motions include: (1) July 29, 2008 Motion for Nelson
Inquiry and Faretta Hearing (Ex. 15 at 31); (2) July 30, 2008
Motion to Dismiss Count Three (Ex. 15 at 32); (3) August 20, 2008
Amended and Verified Motion to Dismiss Count (3) (Ex. 15 at 43);
(4) September 11, 2008 Motion for Change of Venue (Ex. 15 at 52);
(5) October 2, 2008 Motion for Recusal of Trial Court Judge (Ex.
15 at 56); (6) October 2, 2008 Motion for Severance (Ex. 15 at
58); (7) October 2, 2008 Amended Motion for Change of Venue (Ex.
15 at 60); (8) October 3, 3008 Brief in Support of Motion for
Severance (Ex. 15 at 64); (9) December 23, 2008 Motion to Strike
Witnesses (Ex. 15 at 205); (10) January 13, 2009 Motion to Dismiss
Based on Violation of Speedy Trial (Ex. 15 at 208); (11) January
28, 2009 Motion to Recuse (Ex. 15 at 255); (12) February 19, 2009
Counsel’s Motion to Withdraw (Ex. 15 at 339); (13) February 19,
- 14 -
Meanwhile, Petitioner filed a federal lawsuit against Jacobs on
July 16, 2008 in which he asserted that “Jacobs refuses to work on
my case” (MDFL Case No. 2:08-cv-559 at Doc. 1).
Petitioner also
filed a Florida Bar Complaint against Jacobs.
Petitioner then
filed an emergency motion for a Nelson hearing in which he asserted
that Jacobs’ representation “fails to meet professional norms,”
after which Jacobs filed a motion to withdraw due to Petitioner's
apparent dissatisfaction with his representation (Ex. 15 at 322,
339).
By that time, Beesting had been re-hired by the Office of
the Public Defender and a conflict once again existed. Id. at 414.
Mark Maynard was appointed as defense counsel on March 18,
2009
(Ex.
15
at
414).
Subsequently,
on
September
3,
2009,
Petitioner filed a grievance against Maynard with the Florida Bar.
Id. at 428.
Maynard sought to withdraw, asserting that there was
no longer a conflict with the Office of Regional Counsel (because
Beesting had gone back to the Public Defender’s Office) and that
it should represent Petitioner. Id. at 428.
does
not
reflect
whether
Maynard’s
Although the record
motion
to
withdraw
was
considered, Maynard represented Petitioner at his trial.
Petitioner does not explain how Beesting’s conflict and then
subsequent job changes can be attributed to the State for speedy
2009 Emergency Motion to Stay (Ex. 15 at 341); and February 23,
2009 Motion to Permit Additional Peremptory Challenges (Ex. 15 at
347).
- 15 -
trial purposes.
To the contrary, these are issues that are solely
attributable to defense counsel, and the Supreme Court is clear
that because “the attorney is the [defendant’s] agent when acting,
or failing to act, in furtherance of the litigation, delay caused
by the defendant’s counsel is also charged against the defendant.”
Brillon, 129 S. Ct. at 1290-91 (alteration in original, quotation
omitted).
Likewise,
Petitioner’s
numerous
motions,
bar
complaints, interlocutory appeals, and federal lawsuit cannot be
charged against the State. See United States v. Corbin, 607 F.
App’x 136, 139 (3d Cir. 2015) (a defendant’s continuance requests
and
numerous
pretrial
motions
cannot
be
attributed
to
the
government); United States v. Loud Hawk, 474 U.S. 302 (1986) (“A
defendant who resorts to an interlocutory appeal normally should
not be able upon return to the district court to reap the award of
dismissal
for
failure
to
receive
a
speedy
trial).
Finally,
although Petitioner now complains that he “languished” for six
months after Maynard’s appointment (Doc. 1 at 7), on three separate
occasions,
Plaintiff
either
requested
or
stipulated
that
the
trial, which had been scheduled on February 23, 2009, be delayed.
Id. at 341, 423, 427.
This delay cannot be attributed to the
State.
Because the delay in bringing Petitioner to trial can be
attributed solely or primarily to Petitioner, the second Barker
factor weighs heavily against Petitioner. Brillon, 129 S. Ct. at
- 16 -
1291 (“An assigned counsel’s failure to move the case forward does
not
warrant
attribution
of
delay
to
the
State.”)(internal
quotations omitted).
3.
Petitioner's request for a speedy trial
Turning to the third factor, the "failure to assert the right
[to a speedy trial] will make it difficult for a defendant to prove
that he was denied a speedy trial." Barker, 407 U.S. at 532.
every
invocation
of
the
right
will
do.
Defendants
Not
must
"appropriately assert[]" their speedy-trial rights, as viewed in
"light of [their] other conduct." Loud Hawk, 474 U.S. at 314. Thus,
it is possible for a defendant to insufficiently assert his speedytrial rights despite "repeatedly mov[ing] for dismissal on speedy
trial grounds." Id.
Petitioner asserts, without explanation, that “[t]he record
is
replete
with
examples
of
Petitioner
asserting
his
Sixth
Amendment right to a speedy trial on numerous occasions.” (Doc. 1
at 8).
Upon review of the record, the Court finds a single motion,
written on January 13, 2009, in which Petitioner sought dismissal
of his claim due to a violation of his speedy trial right (Ex. 15
at 208).
However, Petitioner did not ask for a trial at this
time, and when the State filed a demand for a trial sixteen days
later, Petitioner filed an emergency motion to stay. Id.at 341.
Moreover, as noted by the State in its own demand for a speedy
trial, Petitioner asked for 24 continuances throughout the pre-
- 17 -
trial period. Id. at 263.
actually
wanted
a
speedy
This does not show that Petitioner
trial.
To
the
contrary,
like
the
defendant in Barker, “the record strongly suggests that while
[Petitioner] hoped to take advantage of the delay . . . and thereby
obtain a dismissal of the charges, he definitely did not want to
be tried.” Barker, 407 U.S. at 535; United States v. Frye, 489
F.3d 201, 212 (5th Cir. 2007) ("A motion for dismissal is not
evidence that the defendant wants to be tried promptly."); United
States v. Kresler, 392 F. App’x 765, 771 (11th Cir. 2010) (“[W]here
a defendant is aware that charges are pending against him, his
failure to make any effort to secure a timely trial on them (and
his apparent desire to avoid one) manifests a total disregard for
his speedy trial right.”) (internal quotation omitted).
The third Barker factor weighs heavily in the State’s favor.
4.
Prejudice
In assessing whether a Petitioner has alleged prejudice with
sufficient particularity, the Court must focus on the interests
the
speedy-trial
"prevent[ing]
"minimiz[ing]
right
was
oppressive
anxiety
and
designed
pretrial
concern
of
to
safeguard:
incarceration";
the
accused";
and
(1)
(2)
(3)
"limit[ing] the possibility that the defense will be impaired."
Barker, 407 U.S. at 532.
Petitioner asserts that “prejudice is
evident considering that the primary evidence in the case was the
eyewitness
identification
of
Petitioner
- 18 -
by
a
State
witness.
Eyewitness
accounts
are
inherently
questionable/unreliable
to
begin with, but when said identification and account is dragged on
for
over
3
years
then
the
probability
of
mistaken
identity
increases.” (Doc. 1 at 8) (emphasis in original).
Petitioner has not disclosed any particular instance in which
a witness had difficulty remembering facts that would have favored
his defense.
The mere possibility of prejudice is not sufficient
to support Petitioner's position that his speedy trial rights were
violated. Loud Hawk, 474 U.S. at 315. Moreover, Petitioner's
conviction was not based solely on eyewitness testimony.
Rather,
the strongest evidence against Petitioner was a detailed and
lengthy
recorded
confession
that
he
made
to
his
mother.
See
discussion infra Part III(D). Finally, the Eleventh Circuit has
consistently
held
that
“conclusory
including
unsubstantiated
memories,
are
assertions
allegations
insufficient
to
of
constitute
of
prejudice,
witnesses’
proof
of
faded
actual
prejudice.” United States v. Hayes, 40 F.3d 362, 366 (11th Cir.
1994); United States v. Woodley, 484 F. App’x 310, 319 (11th Cir.
2012) (“The defendant must proffer more than conclusory assertions
of prejudice or unsubstantiated allegations of witnesses’ faded
memories”) (internal citations omitted).
The Fourth Barker factor
weighs heavily in favor of the State.
Because
the
last
three
Barker
factors
favor
the
State,
Petitioner has not established that the state court’s rejection of
- 19 -
this claim was “so lacking in justification that there was an error
well
understood
and
comprehended
in
existing
possibility for fairminded disagreement.”
law
beyond
any
White, 134 S. Ct. at
1702. Likewise, because even a facially sufficient motion for
dismissal based on a constitutional speedy trial violation would
have
been
denied,
Petitioner
cannot
demonstrate
Strickland
prejudice from counsel’s failure to include a discussion of the
Barker factors in his motion.
Claims One and Three are denied
pursuant to 28 U.S.C. § 2254(d).
B.
Claim Two
Petitioner asserts that each of his trial attorneys was
ineffective for failing to file notices of expiration of speedy
trial
based
on
Florida’s
speedy
trial
rule
(Doc.
1
at
10).
Petitioner raised this claim in his Rule 3.850 motion where it was
denied by the post-conviction court as follows:
In his first ground, Defendant alleges that
his counsel was ineffective for failing to
file a notice of expiration of speedy trial
pursuant to Fla. R. Crim. P. 3.191. However,
Defendant acknowledges in his motion that the
reason his trial was continued multiple times
was so that he could obtain conflict-free
counsel. Fla. R. Crim. P. 3.191(j) provides
that if an accused is not brought to trial
within the designated periods of time, his
pending motion for discharge should be
granted, unless the accused is unavailable for
trial, among other reasons. In this regard, an
accused is considered unavailable when his
counsel has been discharged due to a conflict
of interest and there has been an inadequate
opportunity for newly appointed counsel to
- 20 -
prepare the case for trial. See Brown v.
State, 328 So. 2d 497 (1976). Defendant
acknowledges this point in his motion when he
states that he could not have been brought to
trial within the recapture period without
violating his right to conflict-free counsel.
Therefore, because Defendant in this case was
not “continuously available” for trial, he
would not have been eligible for discharge on
speedy trial grounds. Accordingly, Defendant
suffered no prejudice from his counsel’s
failure to file a notice of expiration of
speedy trial pursuant to Fla. R. Crim. P.
3.191.
(Ex. 7 at 3).
The post-conviction court’s rejection of this claim
was per curiam affirmed by Florida’s Second DCA (Ex. 10).
Florida's speedy trial rule provides that a trial shall
commence within 175 days of arrest when a defendant is charged
with a felony. Fla. R. Crim. P. 3.191(a). The speedy trial period
commences when a person is taken into custody.
of
the
prescribed
time,
a
defendant
may
After expiration
file
a
"notice
of
expiration of speedy trial time," and within five days of filing
the notice, the state court shall hold a hearing on the notice.
With some exceptions, trial must thereafter commence within ten
days or the defendant is forever discharged from the crime. See
Fla. R. Crim. P. 3.191(p)(3).
A defendant is bound by a demand for speedy trial.
In other
words, he cannot make a speedy trial demand unless he is actually
prepared to go to trial:
A demand for speedy trial binds the accused
and the state. No demand for speedy trial
- 21 -
shall be filed or served unless the accused
has a bona fide desire to obtain a trial sooner
than otherwise might be provided. A demand for
speedy trial shall be considered a pleading
that the accused is available for trial, has
diligently investigated the case, and is
prepared or will be prepared for trial within
5 days. A demand filed by an accused who has
not diligently investigated the case or who is
not timely prepared for trial shall be
stricken
as
invalid
on
motion
of
the
prosecuting attorney. A demand may not be
withdrawn by the accused except on order of
the court, with consent of the state or on
good cause shown. Good cause for continuances
or delay on behalf of the accused thereafter
shall not include nonreadiness for trial,
except as to matters that may arise after the
demand for trial is filed and that reasonably
could not have been anticipated by the accused
or counsel for the accused. A person who has
demanded speedy trial, who thereafter is not
prepared for trial, is not entitled to
continuance or delay except as provided in
this rule.
Fla. R. Crim. P. 3.191(g).
Petitioner admits he would not have
been ready to go to trial within ten days of a demand because he
refused
to
waive
any
conflict
with
counsel
(Doc.
1
at
11).
Therefore, a demand for a speedy trial would not have been a “bona
fide desire to obtain a trial sooner than otherwise might be
provided[.]”
Fla. R. Crim. P. 3.191(g).
Accordingly, defense
counsel could not have filed a speedy trial demand in good faith.
The constitution does not required defense counsel to engage in
unethical or unprofessional conduct. Lockhart v. Fretwell, 506
U.S. 364, 382 (1993) (“[I]neffective-assistance claims predicated
on failure to make wholly frivolous or unethical arguments will
- 22 -
generally be dispensed with under Strickland's first prong[.]”);
United States v. Cronic, 466 U.S. 648, 657 (1984) (“Of course, the
Sixth Amendment does not require that counsel do what is impossible
or
unethical.”);
Nix
v.
Whiteside,
475
U.S.
157,
166
(1986)
(“Although counsel must take all reasonable lawful means to attain
the objectives of the client, counsel is precluded from taking
steps or in any way assisting the client in presenting false
evidence or otherwise violating the law.”).
The state courts’ rejection of this claim was neither contrary
to Strickland nor based upon an unreasonable determination of the
facts.
Claim Two is denied pursuant to 28 U.S.C. § 2254(d).
C.
Claim Four and Claim Five
In Claim Four, Petitioner asserts that trial counsel was
ineffective for failing to subpoena both the video of Petitioner
accepting a plea and testimony of his prior counsel who attended
the plea hearing (Doc. 1 at 17).
In Claim Five, Petitioner asserts
that the trial court and the State colluded to delete record
evidence of Petitioner accepting a plea on November 15, 2006. Id.
at 20.
Petitioner does not contest that the plea into which he
allegedly entered was made contingent upon the victim accepting
the plea.
However, he argues that the plea was final prior to the
state making its offer contingent upon the victim’s acceptance
(Ex. 15 at 151).
- 23 -
Petitioner raised both of the instant claims as Ground Three
of his Rule 3.850 motion (Ex. 6), and they were denied by the postconviction court as follows:
In his third ground, Defendant makes two
claims,
both
related
to
his
supposed
acceptance of an early plea offer.
In his
first claim, Defendant argues that his counsel
was ineffective for failing to subpoena both
the video of Defendant accepting the plea and
the testimony of his prior counsel who
attended the plea hearing.
This claim is
without merit.
On November 15, 2006, the date that Defendant
claims he entered his plea, it appears that
the parties started to proceed with a plea
agreement, and then chose to delay the matter
to a later date. In a letter to Defendant, Mr.
Beesting, who was Defendant’s attorney at that
time, described why the plea was not taken:
[I]t is my recollection that after
negotiation with Guy Flowers, Assistant
State
Attorney,
the
plea
agreement
contained in the Acknowledgment and
Waiver of Rights form was reached, subject
to the State Attorney giving final
approval. I believe that the final
approval was contingent on Mr. Flowers
obtaining approval to the plea by the
victim alleged . . . It is my recollection
(although I cannot say positively) that
there was a discussion (which does not
appear in the transcript furnished)
regarding Mr. Flowers’ unavailability or
lack of approval by the victim, which
resulted in the entire case being put over
to the next docket. It is also my
recollection that the State Attorney’s
office soon thereafter denied final
approval, and I believe I was informed
that the denial was based on objection to
the plea by the victim alleged.
- 24 -
Accordingly, both the transcript of the
supposed plea hearing and the recollection of
Defendant's prior counsel support a conclusion
that there was no plea taken on November 15,
2006.
In
addition,
the
record
reflects
that
Defendant's subsequent attorney did, in fact,
investigate this mater.
In a letter to the
Defendant, counsel stated the following:
I have extensively reviewed the Court
file, documents in our files, and also
have made requests to the Court Reporter
as to any formal colloquy that would have
finalized the plea agreement. I also
carefully listened to statements made by
Mr. Flowers on the record to the Court.
Nowhere does there appear to have been a
formal acceptance of a plea. In fact, I
did locate in our files the original of
the written plea and waiver form. Had the
actual plea taken place, that original
would be in the Court file.
Moreover, even the Official Court Reporter
confirmed that there was no video from this
alleged plea hearing. Accordingly, based on
the foregoing, the Court cannot conclude that
defense counsel was ineffective for failing to
subpoena the non-existent video or the adverse
testimony of Defendant's prior counsel.
In his second claim, Defendant alleges that
“the Court and the State colluded to willfully
delete record evidence of the Defendant
accepting the November 15, 2006 plea.” Based
on the record as discussed above, this claim
is completely without merit, and requires no
further discussion.
Accordingly, because
both of the claims in this ground are
meritless, Ground Three is denied.
(Ex. 7 at 8-9) (internal citations to the record omitted).
The
post-conviction court’s rejection of this claim was per curiam
affirmed by Florida’s Second DCA (Ex. 10).
- 25 -
The post-conviction court’s conclusion that there was not a
formal acceptance of the November 15, 2006 plea is a finding of
fact.
A determination of a factual issue by a state court is
presumed correct unless rebutted by clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
Petitioner has presented no evidence that
a plea was finalized.
On September 21, 2009, a hearing was held on Petitioner's
claim that he had already entered a plea (Ex. 15 at Vol. VI).
At
the hearing, Petitioner asserted that he entered a plea in November
of 2006 which had been accepted by the trial court. Id.
After
listening to the evidence, the court stated that it did not
recollect accepting any judgment and sentence, and told Petitioner
that he (Petitioner) was “the only one who believe[d] [he] entered
a plea.” Id. at 104.
Prior to trial, Petitioner again argued that
he had already entered a plea.
The Court explained:
Mr. Berry, we’ve been over that.
You were
fixing to enter a plea and the plea for
whatever reason was not accomplished.
You
[were] never sentenced, the plea dialogue was
never finished. You were never sentenced to
anything on it.
And we actually gave a
continuance to maybe enter a plea at a later
time. You did not enter a plea. I don’t know
why you can’t get that through your head. You
didn’t do it.
The transcript speaks for itself, and we got
the
transcript,
and
Mr.
Beesting’s
recollection also.
And his recollection is
like everybody else, you were the only one who
has a recollection different from anybody
else.
- 26 -
(T. at 9-10).
In addition to the court’s conclusion that it had
not accepted a plea, both Beesting and Jacobs informed Petitioner
that
no
actual
plea
had
taken
place
because
acceptance
was
contingent upon the victim’s approval which she refused to give
(Ex. 15 at 171, 309).
In a letter to Petitioner, Beesting
explained that entry of the contingent plea would have allowed
Petitioner a more rapid entry into a treatment facility had the
state attorney given approval. Id. at 309.
Finally, the court
reporter informed Petitioner that there was no video tape from the
November 15, 2006 hearing and that the limited transcript available
was the entire official transcript of what transpired. Id. at 152. 8
Petitioner
has
not
rebutted
the
state
court’s
factual
conclusion that he did not formalize his November 15, 2006 guilty
plea.
Accordingly, he has not demonstrated Strickland prejudice
from counsel’s failure to subpoena Beesting or to seek video
evidence
of
the
alleged
colloquy.
Likewise,
Petitioner's
incredible assertion that the State, the trial court judge, and
his own counsel conspired against him to deprive him the benefit
of a valid plea agreement is unsubstantiated and conclusory. Tejada
v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (“A petitioner is
not entitled to an evidentiary hearing, however, when his claims
8
The limited transcript indicates that after the plea was
explained to Petitioner, defense counsel suggested that the plea
hearing be delayed until December 14, 2006 (Ex. 15 at 149).
- 27 -
are merely conclusory allegations unsupported by specifics or
contentions that in the face of the record are wholly incredible.”)
(internal quotations omitted).
The state courts’ denials of Claims Three and Four were
neither contrary to or an unreasonable application of clearly
established
federal
law
determination of the facts.
nor
based
upon
an
unreasonable
These claims are denied pursuant to
28 U.S.C. § 2254(d).
D.
Claim Six
Petitioner asserts that his Fourth Amendment rights were
violated
“when
encounter,
he
was
handcuffed,
suggestively
taken
driven
identified.”
forcefully
to
(Doc.
from
alleged
1
at
place
crime
23).
of
scene
lawful
to
be
Specifically,
Petitioner asserts that he was unlawfully detained by the Arcadia
Sheriff’s Office and transported against his will to the crime
scene “without founded suspicion [of] criminal activity” where he
was identified as the person seen fleeing from the victim’s home.
Id.
Petitioner asserts that the police should have held him “at
place of lawful encounter, and called in to the have witness
transported to said location for a show-up identification.” Id. at
24.
Petitioner raised this claim on direct appeal where it was
denied by Florida’s Second DCA (Ex. 4).
Upon review of the record,
the Court concludes that Petitioner is not entitled to habeas
relief on this claim.
- 28 -
In § 2254 proceedings, a court must assess the prejudicial
impact of constitutional error in a state-court criminal trial
under the standard set forth by Brecht v. Abrahamson, 507 U.S.
619, 637 (1993); Fry v. Pliler, 551 U.S. 112 (2007). Pursuant to
Brecht, a constitutional error does not warrant habeas relief
unless it "had substantial and injurious effect or influence in
determining the jury's verdict." Brecht, 507 U.S. at 637 (internal
quotation omitted). It is unnecessary for this Court to determine
whether Petitioner's brief pre-arrest detention and transportation
resulted in a Fourth Amendment violation because any error in
denying his motion to suppress an allegedly tainted identification
was harmless.
In addition to the identification of Petitioner as the person
seen running from the victim’s home (T. at 183-84), Petitioner was
found with the victim’s jewelry. Id. at 194-85.
However, the most
incriminating evidence was Petitioner's recorded statements during
a prison telephone conversation with his mother. Id. at 280-88.
In the statement, Petitioner admitted that he robbed the victim’s
house and described exactly what had happened:
Anyway, I’m in the house, right? I had the
shit bagged up by the back door, ready to go.
Camcorder, fucking DVD player and bullshit all
in a little suitcase ready to go.
Well, I already had my laptop, but I needed
the power cords and all the little hookups,
but those went through the back of the
entertainment center.
So I’m trying to get
- 29 -
all the wires through the hole in the back of
the board, you know, but it’s all intertangled with all the stereo and TV shit. So
I’m working blind.
And one of the little
things that I would do is I would – when I
first go in, I’d – I’d try to establish which
door they use, the main door, right?
. . .
At this house I had the sliding glass door
open, ready to go. I already got the shit.
Now,
I
need
the
power
cord,
because
(inaudible) ain’t going to take it without the
power cord – well, he’d a took it, but it’s
going to cut what I got in half.
. . .
Well, I’m getting it and I see – I’m getting
the cords and I see like light reflection go
on the wall. . . . It was a car pulling into
the driveway. This happened at like 1:04. .
. I look and she’s getting out of her damn
black SUV, going and checking her mailbox. .
. I get the hell on right then.
. . .
Didn’t bring nothing. But I had some jewelry
in my pocket. I had it in – I’m wearing khaki
shorts, right? Cargo shorts; you know what I
mean? Down to your knees. I'm wearing a black
T-shirt with La Espiranza, this Mexican
restaurant.
Anyway, I hauled ass.
I cut through three
back yards. On the third house down, a lady
– an old lady seeks me cutting through her
back yard.
. . .
All right.
She sees me through her fucking
little kitchen window of her back – the back
of the house. And fucking she come then, I
cut across, I’m back to where I’m hauling ass.
- 30 -
(T.
at
280-84).
admission
to
his
Given
Petitioner's
mother,
and
detailed
substantiated
which
explicit
the
witness’
identification and was played for the jury, this Court concludes
that any impermissible identification did not have “substantial
and
injurious
effect
or
influence
verdict." Brecht, 507 U.S. at 637.
in
determining
the
jury's
Claim Six is denied.
Any of Petitioner's allegations not specifically addressed
herein have been found to be without merit.
IV.
Certificate of Appealability 9
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
9
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.
- 31 -
(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 v. Cockrell, 537 U.S. 322, 335–36
(2003).
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:
1.
The Florida Attorney General is dismissed from this
action.
2.
Petitioner's 28 U.S.C. § 2254 petition is DENIED.
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
of November, 2015.
SA: OrlP-4
Copies: Charles Berry
Counsel of Record
- 32 -
2nd
day
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