Chitwood v. Florida Attorney General et al
Filing
15
OPINION AND ORDER dismissing the Florida Attorney General; denying each claim in 1 Petition for writ of habeas corpus. A certificate of appealability is denied. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 7/11/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ERIK D. CHITWOOD,
Petitioner,
v.
Case No: 2:15-cv-457-FtM-99MRM
FLORIDA ATTORNEY GENERAL,
THOMAS REID, Warden, and
SECRETARY, DOC,
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 Erik D.
Chitwood (“Petitioner”), a prisoner of the Florida Department of
Corrections (Doc. 1, filed July 29, 2015).
Petitioner attacks the
convictions and sentences entered against him by the Twentieth
Judicial Circuit Court in Lee County, Florida for burglary of an
unoccupied structure, grand theft, fleeing or attempting to elude
law enforcement officers, fraudulent use of a credit card, and
violation of probation. Id.
1
Respondent filed a response to the
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.
petition (Doc. 9).
Petitioner filed a reply (Doc. 14), and the
case is now ripe for review.
Petitioner raises four claims in his petition.
He asserts
that: (1) Counsel was ineffective for failing to communicate a
favorable plea offer and for failing to advise Petitioner of his
maximum
sentencing
exposure;
(2)
Counsel
was
ineffective
for
failing to investigate and call law enforcement witnesses at the
sentencing
hearing
in
support
of
a
substantial
assistance
agreement; (3) Counsel was ineffective for acting under an actual
conflict of interest; and (4) Counsel was ineffective for failing
to properly inform Petitioner of the consequence of entering an
open plea to the court under the habitual offender statute (Doc.
1 at 5-12).
Upon due consideration of the pleadings and the state court
record,
the
Court
concludes
that
each
claim
must
be
denied.
Because the Court may resolve the Petition 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).
- 2 -
I.
Background and Procedural History 2
On June 22, 2010, the State of Florida charged Petitioner
with burglary of a conveyance in case number 10-CF-017018 (Ex. 1).
Petitioner entered a plea of no contest and was placed on probation
for thirty months (Ex. 2; Ex. 3).
In May, June, and July of 2010,
the State of Florida filed affidavits alleging violations of
Petitioner's probation, and a warrant for his arrest was issued
(Ex. 4; Ex. 5; Ex. 6; Ex. 7).
On September 4, 2012, Petitioner's
probation was revoked, and he was sentenced to five years in prison
(Ex. 8; Ex. 9).
On August 16, 2011, Petitioner was charged with burglary of
a structure, grand theft, and fraudulent use of a credit card in
Lee
County
case
number
11-CF-17746
and
with
burglary
of
a
structure, grand theft, and fleeing or attempting to elude a law
enforcement officer in Lee County case number 11-CF-017748 (Ex.
10; Ex. 16). On December 7, 2011, he was charged with burglary of
a structure and grand theft in Lee County case number 11-CF-19597
(Ex. 19).
On May 29, 2012, Petitioner entered an open plea of no contest
in each case (Ex. 11; Ex. 17; Ex. 21; Ex. 25).
On September 4,
2012, Petitioner was sentenced as a habitual felony offender to
ten years on prison on each burglary charge and to five years in
2
References to exhibits are to those filed by Respondent on
January 5, 2016 (Doc. 12).
- 3 -
prison on each of the remaining counts (Ex. 14; Ex. 18; Ex. 22;
Ex. 26).
Petitioner did not appeal his conviction or sentences.
On August 17, 2013, Petitioner filed a motion for postconviction relief pursuant to Rule 3.850 of the Florida Rules of
Criminal Procedure (“Rule 3.850 motion”) (Ex. 27).
The post-
conviction court denied each claim, and Florida’s Second District
Court of Appeal affirmed (Ex. 31; Ex. 33); Chitwood v. State, 172
So. 3d 876 (Fla. 2d DCA 2015).
Petitioner signed the instant petition on July 21, 2015 (Doc.
1).
II.
A.
Governing Legal Principles
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).
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
an
adjudication
on
- 4 -
the
merits
which
warrants
deference.
2008).
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
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 there is clearly established federal law 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
- 5 -
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.”
Bottoson,
Williams, 529 U.S. at 406).
234
F.3d
at
531
(quoting
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
- 6 -
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 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 v. Cockrell, 537 U.S. 322, 340 (2003) (“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 state-court proceeding”) (dictum);
Burt v. Titlow, 134 S.
Ct. 10, 15-16 (2013) (same).
B.
Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a
two-part
test
entitled
to
for
relief
determining
on
the
whether
ground
that
a
convicted
his
person
counsel
ineffective assistance. 466 U.S. 668, 687-88 (1984).
is
rendered
A petitioner
must establish that counsel’s performance was deficient and fell
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.
- 7 -
Burt, 134 S. Ct. at 13 (citing Cullen v. Pinholster, 563 U.S. 170
(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.
“prove,
by
Indeed, the petitioner bears the heavy burden to
a
preponderance
of
the
performance was unreasonable[.]”
1285,
1293
(11th
Cir.
evidence,
that
counsel’s
Jones v. Campbell, 436 F.3d
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. FloresOrtega, 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
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
- 8 -
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.
In the context of a guilty plea, the first prong of Strickland
requires that a petitioner show his plea was not voluntary because
he received advice from counsel that was not within the range of
competence
demanded
of
attorneys
in
criminal
cases.
Hill
v.
Lockhart, 474 U.S. 52, 56-59 (1985). The second prong requires
that the petitioner show a reasonable probability that, but for
counsel's errors, he would have entered a different plea. Id.
III. Analysis
A.
Claims One and Four
In Claim One, Petitioner asserts that defense counsel Ryan
Downey 3 failed to communicate a favorable plea offer and misadvised
him as to the maximum sentence he faced if he entered an open plea
3
Petitioner was represented by two separate attorneys during
his criminal proceedings. The post-conviction court explained:
At first, Defendant was represented by the
Office of the Public Defender (hereinafter PD)
in all of the above cases and at the time of
the plea hearing. Thereafter the PD withdrew
due to a conflict of interest. At the time
of sentencing, Defendant was then represented
by the Office of Regional Counsel (hereinafter
RC).
However, the PD testified at the
sentencing hearing, after Defendant requested
that the PD testify and waived his privilege.
(Ex. 31 at 3).
- 9 -
to the court (Doc. 1 at 4).
Specifically, he asserts that Downey
“never informed the Petitioner that the State offered a 48-month
plea
offer
at
any
time
prior
to
these
proceedings.
Most
especially, trial counsel never informed the Petitioner that by
entering this plea, the Petitioner would [be] left susceptible to
the trial judge imposing a 10-year habitual offender sentence upon
the Petitioner.” Id. at 5.
Petitioner asserts that, had he known
of the plea deal, he would not have entered an open plea. Id.
In
Claim Four, Petitioner repeats his assertion that Downey failed to
properly inform him about the effects of entering a plea as a
habitual felony offender. Id. at 12.
Petitioner raised these claims in his Rule 3.850 motion, and
the post-conviction court denied them as conclusively refuted by
the record:
In the first allegation, Defendant alleges
that counsel was ineffective for failing to
communicate a favorable plea offer and
providing affirmative mis-advice concerning
the maximum sentence that could be imposed
which caused Defendant to make an open plea to
the Court. Defendant further alleges that his
understanding was that the maximum he could be
sentenced to by making an open plea to the
Court was 60 months, and less, if his
agreement to provide substantial assistance to
law enforcement under a verbal agreement with
the State Attorney’s Office proved fruitful.
Defendant also alleges that he did not know
that he could be sentenced as a HFO. Defendant
also alleges that counsel never told him about
the State’s plea offer of 48 months in prison
that included a drug treatment program.
Defendant submits that he would have accepted
- 10 -
this favorable plea offer, but for counsel’s
mis-advice.
However,
Defendant’s
allegations
are
conclusively refuted by [the] record. All of
the above issues were discussed at length
during the plea hearing. It was clear that
Defendant was making an open plea to the Court
on all three cases without the benefit of a
negotiated sentence. It was also explained to
Defendant that he was facing a maximum
sentence of 45 years and that some of the
charges qualified for enhanced sentencing.
There was also discussion on the record that
Defendant qualified for HFO sentencing in all
three cases not just the case the Notice was
filed in. Moreover, when Defendant was asked
if anyone promised him anything in exchange
for the plea, Defendant replied, “[n]o, I was
told a general idea of what I would receive if
I cooperated, and I did so. And that’s why I’m
pleading open to the Court.” The final
allegation was that counsel never told him
about the State’s plea offer of 48 months in
prison that included a drug treatment program
is also conclusively refuted by the record.
Defendant referenced the plea offer of 48
months with drug treatment twice during the
sentencing hearing.
(Ex.
31
at
3-4)
(internal
citations
to
the
record
omitted).
Florida’s Second District Court of Appeal affirmed the postconviction court’s denial of these claims (Ex. 33).
Petitioner
now argues that the post-conviction court’s “decision to deny
relief without an evidentiary hearing is a departure from the
principals espoused in Strickland, supra.” (Doc. 1 at 5).
This
Court disagrees.
At Petitioner’s plea colloquy, he was specifically informed
by the state prosecutor that he was eligible for habitual felony
- 11 -
offender
sentencing
(Ex.
25
at
4-5).
After
consulting
with
Downey, Petitioner indicated that he still wished to enter an open
plea. Id. Petitioner was questioned by the trial court to ensure
that he understood the maximum penalty he faced if he entered an
open plea.
When asked whether he was been promised anything in
exchange for his plea, Petitioner answered that he was “told a
general idea of what I would receive if I cooperated, and I did
so.
12).
And that’s why I’m pleading open to the Court.” (Ex. 25 at
The court then questioned Petitioner to ensure he knew he
was subject to a sentence up to the statutory maximum of forty
years in prison and that some of his sentences could be doubled
under the habitual felony offender rules:
Q.
Do you understand, though, that there is
no plea – agreed upon plea negotiation on
the table, that you’re pleading to the
Court and the Court could sentence you up
to the maximum for these counts?
A.
Could you repeat that sir?
Q.
Do you understand that the Court could
sentence you up to the maximum period of
incarceration for these counts by your
entry of a plea today because there is no
negotiated plea that’s on the table?
A.
Pre-arranged, negotiated plea.
I’m
under – unfortunately, I’m aware of that.
Q.
Okay.
And the maximum number of years
for these charges before the habitual
felony offender notice is 45 years in the
Department of Corrections.
I’m not
saying that’s what you would get, but you
understand that is the maximum sentence
--
- 12 -
I’m sorry.
A.
I understand.
Q.
-- with the – with the VOP. We haven’t
gotten to the VOP yet. But 40 years for
the charges we were just discussing. And
some of these qualify as habitual felony
offenders, which could be doubled.
Do
you understand all that?
A.
I do now.
Q.
Okay. And you understand that the Court
could sentence you up to the maximum of
these cases by entry of your plea today?
A.
I do now.
...
Q.
Are you satisfied with the advice and
counsel of your attorney?
A.
Yes, I am.
Q.
Has he answered all your questions and
done everything you asked him to do in
this case?
A.
He’s been – he’s been – yes.
Q.
Has he discussed the minimum and maximum
sentences the Court could impose under
each of the counts?
A.
Yes.
(Ex. 13-25).
The representations of a defendant in open court
“carry a strong presumption of verity.”
421 U.S. 63, 74 (1977).
Blackledge v. Allison,
Given his sworn statements at the plea
colloquy, and the trial court’s thorough explanations, Petitioner
cannot show Strickland prejudice from Downey’s alleged failure to
advise him that he faced more than five years in prison as a
habitual felony offender.
Whatever failure Downey may have made
- 13 -
in that regard, the trial judge adequately explained Petitioner's
sentencing exposure. See United States v. Shedrick, 493 F.3d 292,
300 (3d Cir. 2007) (“[D]efense counsel's conjectures to his client
about sentencing are irrelevant where the written plea agreement
and
in-court
guilty
plea
colloquy
clearly
establish
the
defendant's maximum potential exposure and the sentencing court's
discretion.”).
Further, as noted by the post-conviction court, during his
sentencing hearing, Petitioner specifically referenced the earlier
plea offer of four years in prison followed by a drug offender
program (Ex. 26 at 47-48) (“The last offer [the prosecutor] had
offered me was four years and to drop two charges and to allow me
into a program.”).
Petitioner indicated that he rejected the plea
offer because he hoped to receive a lesser sentence of eighteen to
twenty-four months in prison in exchange for providing assistance
to the police. Id. at 48.
The post-conviction court reasonably
concluded that Petitioner was aware of the state’s offer prior to
entering the open plea to the court.
Petitioner
has
made
no
showing
that
the
state
court's
assessment of these claims under Strickland was “so lacking in
justification that there was an error . . . beyond any possibility
for fairminded disagreement.” Burt v. Titlow, 134 S. Ct. 10, 16
(2014).
Accordingly, Petitioner is not entitled to federal habeas
relief on Claims One or Four.
- 14 -
B.
Claim Two
Petitioner asserts that sentencing counsel Steven Zapora was
ineffective
for
failing
enforcement
witnesses
to
at
investigate
Petitioner's
and
call
sentencing
certain
hearing
law
to
support his claim that he provided substantial assistance to law
enforcement (Doc. 1 at 7).
Petitioner raised this claim in his
Rule 3.850 motion, where it was denied by the post-conviction court
on the ground that Petitioner could not demonstrate prejudice:
Defendant alleges that counsel was ineffective
for failing to investigate and call law
enforcement officers to testify concerning his
substantial assistant (sic) agreement with the
State. Defendant further alleges if Detective
O’Brien
from
the
Fort
Myers’
Police
Department, and Detectives Green and Neumann
from the Lee County Sheriff’s Office had been
called to testify the outcome would have been
different. However, Defendant admits and the
record shows that Detective O’Brien did
testify at the September 4, 2012, sentencing
hearing. Detective O’Brien's testimony was,
basically, that none of the information
provided by Defendant produce[d] any useful
results. Defendant also admits that Detective
Neumann was subpoenaed but he “failed to
answered [sic] his subpoena to appear at
sentencing.” Defendant further alleges that
counsel should have requested a continuance
until Neumann could appear. Apparently, Green
was not subpoenaed. However, Defendant alleges
that if Green and Neumann had appeared they
would
have
testified
that
Defendant
substantially
assisted
in
their
investigations, which would have resulted in
a more lenient sentence.
Even though Detectives Green and Neumann did
not testify, Defendant, the PD, and Detective
O’Brien offered testimony concerning his
- 15 -
substantial assistance to the Lee County
Sheriff’s Office. Also, when the State was
questioning the PD, he stated that “according
to the detectives [his information] was
essentially useless to them....” Even after
hearing all the evidence, the Court stated, “I
don’t think there was an agreement. I don’t
think it was broached. And I don’t think any
of the mitigating circumstances are enough to
go below guidelines.” Therefore, Defendant
cannot show prejudice for failing to call
Neumann and Green to testify when their
testimony would have been cumulative and, more
importantly, not helpful.
(Ex.
31
at
4-5)
(internal
citations
to
the
record
omitted).
Florida’s Second District Court of Appeal affirmed (Ex. 33).
Petitioner argues that the state courts’ rejection of this claim
was contrary to both Strickland and Williams v. Taylor, 529 U.S.
362 (2000) (Doc. 1 at 8). 4
A review of the record supports a
conclusion that Petitioner cannot demonstrate Strickland prejudice
from the absence of the detectives’ testimony.
At
the
sentencing
hearing,
Downey
(Petitioner's
prior
counsel) testified that, although there was no formal agreement
with the state, he understood that if Petitioner provided valuable
information about the criminal activity in which he and others
were involved, the state might have been “able to get in the 18
month to 24 month range with – with a program or something like
4
In Williams, the United States Supreme Court found the
death-sentenced petitioner’s counsel ineffective for failing to
present substantial mitigation evidence at the sentencing phase of
trial.
- 16 -
that – somewhere in that area.” (Ex. 26 at 19, 22).
Downey then
affirmed that, even though the information provided by Petitioner
was “essentially useless” to the police, the state had offered a
lenient sentence of 48 months in prison, to be followed by a drug
treatment program because Petitioner had attempted to cooperate
with the police. Id. at 22.
Fort Myers Police Department Detective
O’Brien testified that the information provided by Petitioner was
not useful, primarily because it was stale information from before
he was in custody or concerned criminal activity outside her
jurisdiction. Id. at 27-28. 5
Although Petitioner asserts that, had Zapora called them to
testify at the sentencing hearing, Detectives Green and Neumann
would
have
testified
that
Petitioner
did
in
fact
provide
substantial assistance to the police, he has not provided any
evidence to the Court in support of his assertion. He does not
explain
the
detectives,
nature
nor
does
of
he
the
assistance
provide
a
he
sworn
provided
to
these
statement
of
these
detectives’ putative testimony. Consequently, the claim is too
speculative to warrant relief. See Johnson v. Alabama, 256 F.3d
1156, 1187 (11th Cir. 2001) (“Johnson offers only speculation that
the missing witnesses would have been helpful.
This kind of
speculation is ‘insufficient to carry the burden of a habeas corpus
5
Petitioner was in custody for about six months prior to
meeting with the police (Ex. 26 at 28, 54).
- 17 -
petition.’ ”) (quoting Aldrich v. Wainwright, 777 F.2d 630, 636
(11th Cir. 1985)); see also United States v. Ashimi, 932 F.2d 643,
650 (7th Cir. 1991) (“[E]vidence about the testimony of a putative
witness must generally be presented in the form of actual testimony
or by the witness by affidavit.
that
the
testimony
would
A defendant cannot simply state
have
been
favorable;
self-serving
speculation will not sustain an ineffective assistance claim.”).
The state courts’ adjudication of the issues raised in Claim
Two were neither contrary to, nor an unreasonable application of
Strickland or Williams.
Nor was the adjudication based upon an
unreasonable determination of the facts.
Claim Two is denied. 28
U.S.C. § 2254(d).
C.
Claim Three
Petitioner asserts that Zapora was ineffective because he
“labored under an actual conflict of interest.” (Doc. 1 at 9).
Specifically,
he
asserts
that
he
(Petitioner)
provided
confidential information to law enforcement officers concerning
John Link, another jail inmate, who was also represented by Counsel
for
a
period
of
time,
presumably
on
unrelated
charges.
Id.
Petitioner asserts that Zapora “informed Mr. Link that Petitioner
had provided substantial assistance agreement to the L.E.O.’s
concerning his case.” Id. at 10.
He claims that the conflict
resulted in Zapora’s failure to act in Petitioner's best interest
at the sentencing proceedings – namely, he claims that Zapora
- 18 -
failed to call Detectives Neumann and Green to testify at the
sentencing proceedings because of this conflict. Id.
Petitioner raised a similar claim in his Rule 3.850 motion,
and
the
post-conviction
court
denied
it
on
the
ground
that
Petitioner failed to demonstrate the existence an actual conflict
of interest:
Defendant alleges that RC [regional conflict
counsel] was ineffective for failing to
withdraw after a second conflict of interest
developed when RC was representing both
Defendant and Lee County Jail Inmate, John
Link, for a period of six weeks. Defendant
alleges that he was also providing the State
information on Link, and was in fear of the
potential harm that may have come to him if
other inmates knew he was assisting police.
However,
in
order
to
prevail
on
this
allegation, Defendant must establish that an
actual conflict of interest existed that
adversely affected his lawyer's performance.
Hunter v. State, 817 So. 2d 786, 791 (Fla.
2002). Defendant has failed to show that
counsel was acting for the benefit of another
defendant or person, or for counsel’s own
personal benefit. Therefore, Defendant has
failed to meet his burden.
(Ex. 31 at 5-6). Florida’s Second District Court of Appeal affirmed
(Ex.
33).
Petitioner
again
asserts
that
the
state
courts’
rejections of this claim were contrary to Strickland (Doc. 1 at
11).
However, a review of the record supports the state courts’
conclusions
that
Petitioner
failed
to
show
how
Zapora’s
representation of Link had an adverse effect on his representation
of Petitioner.
- 19 -
On
alleging
federal
that
representations
habeas
review,
an
attorney
of
defendants
ineffective
engaged
with
in
assistance
concurrent
conflicting
claims
multiple
interests
governed by Cuyler v. Sullivan, 446 U.S. 335 (1980).
are
Under the
rule in Sullivan, prejudice is presumed if the petitioner can
demonstrate an actual conflict of interest that affected his
attorney’s performance.
See Strickland v. Washington, 466 U.S.
668, 692 (1984) (“Prejudice is presumed only if the defendant
demonstrates
that
counsel
‘actively
represented
conflicting
interests’ and that ‘an actual conflict of interest adversely
affected his lawyer's performance.’ ”) (quoting Sullivan, 446 U.S.
at 348, 350).
Petitioner, presumably relying in on Sullivan,
asserted in his Rule 3.850 motion that “a defendant who shows that
a conflict of interest actually affected the adequacy of his
representation need not demonstrate prejudice in order to obtain
relief.” (Ex. 27 at 24).
Respondent also appears to rely on
Sullivan and urges that, “[w]here a defendant claims that his
attorney represented conflicting interests, he is not required to
demonstrate prejudice under Strickland.” (Doc. 9 at 10-11)(citing
Gonzales v. Mize, 565 F.3d 373, 381 (7th Cir. 2009)).
The Court disagrees that Petitioner has no obligation to
demonstrate
Strickland
prejudice
in
the
instant
case;
the
Strickland prejudice standard applies when, as here, the quality
of representation is alleged to have been compromised by a conflict
- 20 -
other than the concurrent representation of co-defendants. See
Mickens v. Taylor, 535 U.S. 162, 174-75 (2002) (noting, in dicta,
that,
although
Courts
of
Appeals
have
applied
Sullivan
“unblinkingly to all kinds of alleged attorney ethical conflicts,”
including “when representation of the defendant somehow implicates
counsel's
personal
or
financial
interests,”
the
“language
of
Sullivan itself does not clearly establish, or indeed even support,
such expansive application”) (internal citations and quotation
marks omitted). Although the Mickens observation was dicta, the
Eleventh Circuit has expressly agreed with the decision, stating
that, “there is no Supreme Court decision holding that any kind of
presumed
prejudice
rule
applies
outside
the
multiple
representation context.” Schwab v. Crosby, 451 F.3d 1308, 1327
(11th Cir. 2006).
Petitioner does not allege that Link was
Petitioner's co-defendant in any case or that he and Link had
competing
interests
which
representing Petitioner. 6
foreclosed
Zapora
from
adequately
Therefore, Petitioner must demonstrate
Strickland prejudice before he is entitled to habeas relief on
Claim Three. See Hunter v. Sec’y, Dep’t of Corr., 395 F.3d 1196,
1201-02 (11th Cir. 2005).
Even if this Court were to apply the Sullivan standard to
this case, Petitioner has presented nothing but mere speculation
6
Zapora no longer represented
Petitioner's sentencing hearing.
- 21 -
Link
at
the
time
of
that Zapora’s performance at sentencing was affected by the alleged
conflict.
Although
Petitioner
“reasonable
probability”
Zapora
now
asserts
would
have
that
there
called
is
a
Detectives
Neumann and Green at the sentencing hearing had there not been a
conflict of interest, he points to nothing in the record to support
a conclusion that Zapora did not call these witnesses due to his
representation of Link or that the sentencing court imposed a
harsher sentence because of these witnesses’ failure to testify.
Notably, Detective Neumann was subpoenaed by Zapora, but failed to
show at the hearing (Ex. 27 at 14).
Zapora’s issuance of a
subpoena to Detective Neumann is inconsistent with Petitioner's
current assertion that Zapora deliberately failed to call him as
a witness due to a conflict.
Moreover, a review of the sentencing
transcript does not suggest that the outcome of the sentencing
hearing
was
affected
in
any
manner
by
the
alleged
conflict.
Petitioner's prior counsel testified at the sentencing hearing
that Petitioner met with three police detectives and provided them
with
information
regarding
the
identity
of
a
person
in
a
surveillance video and the location of stolen property (Ex. 26 at
18-19).
He also testified that Petitioner attempted to assist the
police, but that the agencies did not find Petitioner's information
helpful. Id. at 20-22.
Zapora offered the testimony of Pastor
John Burroughs who testified that Petitioner would have a place in
a drug rehabilitation program if released from confinement. Id. at
- 22 -
30-32.
Petitioner's former wife asked the Court to send him to a
strict
drug
rehabilitation
program.
Id.
at
36.
Petitioner
testified that he committed the crimes due to a serious drug
problem, but that he was attempting to turn his life around. Id.
at 36-40.
Tamara
He told the sentencing court that he had identified
Stackhouse
to
Detective
O’Brien
as
the
person
in
a
surveillance video and told the detective where to find a briefcase
and tools he had stolen. Id. at 44-45.
He argued that he was
entitled to an 18 to 24 month sentence based on information
provided to Detectives O’Brien and Green. He explained that he
turned down the state’s four-year plea offer, “which did include
a
drug
program”
because
he
felt
entitled
to
“be
sentenced
underneath the guidelines for my mitigating circumstances.” Id. at
48.
Zapora also argued for a downward departure at Petitioner's
sentencing hearing based on mitigating circumstances. Id. at 60.
The sentencing court determined that no agreement had been reached
between Petitioner and the state regarding Petitioner's assistance
to the police, and stated that none of the mitigating circumstances
were “enough to go below guidelines.” Id. at 62.
Nothing in the
record suggests that the hypothetical testimony of Detectives
Green and Neumann would have altered Petitioner's sentence or
benefited Link at Petitioner's expense. See discussion supra Claim
Two (noting that a defendant cannot simply state that a missing
- 23 -
witness’ testimony would have been favorable because self-serving
speculation will not sustain an ineffective assistance claim).
The Florida courts did not unreasonably apply Sullivan or
Strickland in finding that Petitioner failed to demonstrate how an
actual
conflict
performance.
of
interest
adversely
affected
Zapora’s
Accordingly, Petitioner is not entitled to federal
habeas relief on Claim Three.
Any of Petitioner's allegations not specifically addressed
herein have been found to be without merit.
IX.
Certificate of Appealability Pursuant to 28 U.C.S. §
2253(c)(1) 7
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
7
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.” As this Court has
determined that Petitioner is not entitled to habeas corpus relief,
it must now consider whether he is entitled to a certificate of
appealability.
- 24 -
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 v. Cockrell, 537 U.S. 322, 335–36
(2003) (citation omitted). Petitioner has not made the requisite
showing in these circumstances.
Because
Petitioner
is
not
entitled
to
a
certificate
of
appealability, he may not appeal in forma pauperis.
Therefore, it is now ORDERED AND ADJUDGED:
1.
The Florida Attorney General is dismissed from this
action.
2.
Each claim in 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 July, 2016.
SA: OrlP-4
Copies: Erik D. Chitwood
Counsel of Record
- 25 -
11th
day
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?