Madison v. Ellis et al
Filing
15
ORDER denying the Petition and dismissing the action with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 7/6/2012. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WILLIAM RODNEY MADISON,
Petitioner,
v.
Case No. 3:09-cv-444-J-34JRK
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Madison initiated this action by filing a pro se
Petition for Writ of Habeas Corpus (Petition) (Doc. #1) under 28
U.S.C. § 2254 on May 13, 2009, pursuant to the mailbox rule.
Additionally, Madison filed a Memorandum of Law in Support of His
Petition (Memorandum) (Doc. #2).
He challenges a 2007 state court
(Duval County, Florida) judgment of conviction for robbery on five
grounds.
Respondents have submitted a memorandum in opposition to
the Petition. See Respondents' Answer in Response to Order to Show
Cause (Response) (Doc. #9); Exhibits (Resp. Ex.) (Doc. #10).
On
June 19, 2009, the Court entered an Order to Show Cause and Notice
to Petitioner (Doc. #7), admonishing Petitioner regarding his
obligations and giving Petitioner a time frame in which to submit
a reply.
2010.
Petitioner submitted a brief in reply on February 19,
See Petitioner's Reply to Respondents' Response (Reply)
(Doc. #12).
This case is ripe for review.
II. Procedural History
Petitioner was arrested for bank robbery on April 14, 2005,
when a Jacksonville Sheriff's Office patrolman (Officer Porter) saw
a car that matched the description of the getaway car.
1.
Resp. Ex.
Officer Porter observed the driver make several lane changes,
accelerate at a high rate of speed, pass other cars, and make an
illegal lane change on the Matthews Bridge.
Resp. Exs. A at 1; I
at 262 (Officer Porter's September 21, 2005 trial testimony).
After initiating a traffic stop, Officer Porter informed Madison
that he had made an illegal lane change on the bridge, that his
vehicle fit the description of a getaway car involved in an
Arlington bank robbery, and that he matched the description of the
robbery suspect.
Resp. Ex. I at 266-67.
At the request of detectives at the crime scene, Officer
Porter
transported
identification.
Madison
Id. at 267.
back
to
the
bank
for
a
show-up
Kathleen Kirkland, the bank teller
who was robbed, was unable to make a positive identification of
Madison, as the robber.
Resp. Exs. I at 233-34, 238-39, 241
(Kirkland's September 21, 2005 trial testimony); H at 73-75,
(Kirkland's August 18, 2005 deposition).
However, Tot Gill,
another bank employee, did identify Madison as the robber.
Resp.
Ex. I at 251-53 (Gill's September 21, 2005 trial testimony). Police
officers then transported Gill over the Matthews Bridge to a
convenience store parking lot, where he identified Madison's white
2
Oldsmobile as the getaway car. Id. at 254-55. During an inventory
of Madison's car, a large amount of money was found in a brown
paper bag stuffed into a tan gym bag.
Resp. Ex. A at 2.
On May 5, 2005, the State of Florida charged Madison with two
counts of robbery. Id. at 8-9, Information. After jury selection,
Madison proceeded to a jury trial on count one, and the State later
dismissed count two.
Id. at 126.
At the conclusion of the trial,
a jury found Madison guilty of robbery.
Id. at 53, Verdict.
On
October 20, 2005, the trial court sentenced Madison to a term of
imprisonment of twenty-two years.
Id. at 73-78, Judgment.
On appeal, Petitioner, through counsel, filed an Initial
Brief, arguing that the trial court erred in deeming Petitioner
"co-counsel" without first warning him of the dangers of selfrepresentation, thereby depriving him of his rights to due process
of law and to the effective assistance of counsel.
Resp. Ex. F.
On February 20, 2007, the appellate court reversed the circuit
court's order and remanded the case to the circuit court, stating:
"We are constrained to reverse Appellant's conviction and remand
this case for a new trial because the trial court designated
Appellant
as
co-counsel
without
conducting
an
inquiry
under
Faretta[1] . . . , and without advising Appellant of the dangers of
self-representation."
Madison v. State, 948 So.2d 975, 976 (Fla.
1st DCA 2007) (citation omitted); Resp. Ex. G.
1
Faretta v. California, 422 U.S. 806 (1975).
3
On remand, at a pretrial hearing, Petitioner agreed to plead
no contest to robbery, reserving the right to appeal the court's
order denying his motion to suppress.
Resp. Ex. I at 339-54.
The
trial court sentenced Petitioner, as a habitual violent felony
offender, to a term of imprisonment of ten years.
Id. at 283-88.
On appeal, Petitioner, through counsel, filed an Initial
Brief, arguing that the trial court erred in denying Petitioner's
motion
to
suppress
out-of-court
identification,
in-court
identification and physical evidence, thereby depriving him of his
rights to be free from illegal searches and seizures and to due
process of law.
Resp. Ex. J.
On March 13, 2008, the appellate
court affirmed Petitioner's conviction and sentence per curiam
without issuing a written opinion.
Madison v. State, 976 So.2d
1099 (Fla. 1st DCA 2008); Resp. Ex. K.
31, 2008.2
Resp. Ex. K.
The mandate issued on March
Petitioner did not seek review in the
United States Supreme Court.
On September 18, 2008, Petitioner filed a pro se motion for
post
conviction
relief
pursuant
to
Procedure 3.850 (Rule 3.850 motion).
Florida
Rule
of
Criminal
Resp. Ex. L at 1-44.
In his
request for post conviction relief, as ground one, Petitioner
asserted that the trial court lacked jurisdiction to enter judgment
and
impose
the
sentence
because
2
the
Information
was
fatally
Online docket, William Madison v. State of Florida, Case No.
1D07-2983, website for the First District Court of Appeal
(http://www.1dca.org).
4
defective.
Additionally, he alleged that his counsel (Karl Green)
was ineffective because he: failed to file an adequate and timely
motion to dismiss the defective Information and failed to conduct
a reasonable investigation (ground two); failed to consult with
Petitioner and investigate the facts prior to the suppression
proceeding
and
conceded
Petitioner's
guilt
at
the
proceeding
(ground three); failed to impeach Kathleen Kirkland and Detective
Padgett relating to the show-up identification and failed to object
to
the
prosecutor's
misconduct
(ground
four);
and
failed
to
investigate and object to the State's factual basis for the plea
and to consider the availability of the lesser offense of theft
(ground five).
Moreover, as ground six, Petitioner asserted that
he was deprived of a fair suppression hearing due to the cumulative
effect of counsel's deficient performance.
The circuit court
denied Madison's Rule 3.850 motion on October 14, 2008. Id. at 4548.
Madison appealed the denial and filed a brief.
Resp. Ex. M.
The State filed a notice that it would not file an Answer Brief.3
On April 15, 2009, the appellate court affirmed the denial per
curiam, see Madison v. State, 8 So.3d 1137 (Fla. 1st DCA 2009);
Resp. Ex. N, and the mandate issued on May 12, 2009, see Resp. Ex.
N.
3
Madison v. State, Case No. 1D08-5810, http://www.1dca.org.
5
III. One-Year Limitations Period
The Petition is timely filed within the one-year period of
limitations.
See 28 U.S.C. § 2244(d); Response at 4-5.
IV. Evidentiary Hearing
"In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an
applicant to prove the petition's factual allegations, which, if
true, would entitle the applicant to federal habeas relief."
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted).
"It follows that if the record refutes the applicant's factual
allegations or otherwise precludes habeas relief, a district court
is not required to hold an evidentiary hearing."
Id.
The
pertinent facts of this case are fully developed in the record
before the Court.
[Petitioner's]
Because this Court can "adequately assess
claim[s]
without
further
factual
development,"
Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert.
denied, 541 U.S. 1034 (2004), an evidentiary hearing will not be
conducted.
V.
Standard of Review
The Court will analyze Petitioner's claims under 28 U.S.C. §
2254(d).
This standard is described as follows:
As explained by the Supreme Court, the
phrase
"'clearly
established
Federal
law' . . . refers to the holdings . . . of
[the Supreme Court's] decisions as of the time
of
the
relevant
state-court
decision."
Williams v. Taylor, 529 U.S. 362, 412, 120
6
S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). We
have held that to be "contrary to" clearly
established federal law, the state court must
either (1) apply a rule "that contradicts the
governing law set forth by Supreme Court case
law," or (2) reach a different result from the
Supreme Court "when faced with materially
indistinguishable facts." Putman v. Head, 268
F.3d 1223, 1241 (11th Cir. 2003).
As regards the "unreasonable application"
prong of § 2254(d)(1), we have held as
follows:
A state court decision is an
unreasonable application of clearly
established law if the state court
unreasonably extends or fails to
extend a clearly established legal
principle to a new context.
An
application of federal law cannot be
considered
unreasonable
merely
because it is, in our judgment,
incorrect or erroneous; a state
court
decision
must
also
be
unreasonable. Questions of law and
mixed questions of law and fact are
reviewed de novo, as is the district
court's conclusion regarding the
reasonableness of the state court's
application of federal law.
Jennings v. McDonough, 490 F.3d 1230, 1236
(11th
Cir.
2007)
(quotation
marks
and
citations omitted). In sum, "a federal habeas
court making the 'unreasonable application'
inquiry should ask whether the state court's
application of clearly established federal law
was objectively unreasonable." Williams, 529
U.S. at 409, 120 S.Ct. at 1521. Finally, 28
U.S.C. § 2254(e)(1) commands that for a writ
to issue because the state court made an
"unreasonable determination of the facts," the
petitioner must rebut "the presumption of
correctness [of a state court's factual
7
findings] by clear and convincing evidence."[4]
28 U.S.C. § 2254(e)(1).
Ward v. Hall, 592 F.3d 1144, 1155-56 (11th Cir. 2010), cert.
denied, 131 S.Ct. 647 (2010).
Finally, for a state court's resolution of a claim to be an
adjudication on the merits, so that the state court's determination
will be entitled to deference for purposes of federal habeas corpus
review under AEDPA, all that is required is a rejection of the
claim on the merits, not an opinion that explains the state court's
rationale for such a ruling. Harrington v. Richter, 131 S.Ct. 770,
785 (2011) (holding that section 2254(d) does not require a state
court to give reasons before its decision can be deemed to have
been adjudicated on the merits);
Wright v. Sec'y for the Dep't of
Corr., 278 F.3d 1245, 1255 (11th Cir. 2002), cert. denied, 538 U.S.
906 (2003).
Thus, to the extent that Petitioner's claims were
adjudicated on the merits in the state courts, they must be
evaluated under § 2254(d).
VI. Exhaustion/Procedural Default
There are prerequisites to a federal habeas review.
Before
bringing a § 2254 habeas action in federal court, a petitioner must
exhaust all state court remedies that are available for challenging
his state conviction.
See 28 U.S.C. § 2254(b), (c).
4
To exhaust
This presumption of correctness applies equally to factual
determinations made by state trial and appellate courts." Bui v.
Haley, 321 F.3d 1304, 1312 (11th Cir. 2003) (footnote omitted)
(citing Sumner v. Mata, 449 U.S. 539, 547 (1981)).
8
state remedies, the petitioner must "fairly present[]" every issue
raised in his federal petition to the state's highest court, either
on direct appeal or on collateral review. Castille v. Peoples, 489
U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust
a claim, "state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one
complete
round
process."
of
the
State's
established
appellate
review
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In addressing exhaustion, the United States Supreme Court
explained:
Before seeking a federal writ of habeas
corpus,
a
state
prisoner
must
exhaust
available
state
remedies,
28
U.S.C.
§
2254(b)(1), thereby giving the State the
"'"opportunity to pass upon and correct"
alleged violations of its prisoners' federal
rights.'" Duncan v. Henry, 513 U.S. 364, 365,
115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per
curiam) (quoting Picard v. Connor, 404 U.S.
270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971))
To provide the State with the necessary
"opportunity," the prisoner must "fairly
present" his claim in each appropriate state
court (including a state supreme court with
powers of discretionary review), thereby
alerting that court to the federal nature of
the claim.
Duncan, supra, at 365-366, 115
S.Ct. 887; O'Sullivan v. Boerckel, 526 U.S.
838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1
(1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
Recently,
the
United
States
doctrine of procedural default:
9
Supreme
Court
discussed
the
Federal habeas courts reviewing the
constitutionality of a state prisoner's
conviction and sentence are guided by rules
designed to ensure that state-court judgments
are
accorded
the
finality
and
respect
necessary to preserve the integrity of legal
proceedings within our system of federalism.
These rules include the doctrine of procedural
default, under which a federal court will not
review the merits of claims, including
constitutional claims, that a state court
declined to hear because the prisoner failed
to abide by a state procedural rule. See,
e.g., Coleman,[5] supra, at 747–748, 111 S.Ct.
2546; Sykes, supra, at 84–85, 97 S.Ct. 2497.
A state court's invocation of a procedural
rule to deny a prisoner's claims precludes
federal review of the claims if, among other
requisites, the state procedural rule is a
nonfederal ground adequate to support the
judgment and the rule is firmly established
and consistently followed. See, e.g., Walker
v. Martin, 562 U.S. --, --, 131 S.Ct. 1120,
1127–1128, 179 L.Ed.2d 62 (2011); Beard v.
Kindler, 558 U.S. --, --, 130 S.Ct. 612,
617–618, 175 L.Ed.2d 417 (2009). The doctrine
barring procedurally defaulted claims from
being heard is not without exceptions. A
prisoner may obtain federal review of a
defaulted claim by showing cause for the
default and prejudice from a violation of
federal law. See Coleman, 501 U.S., at 750,
111 S.Ct. 2546.
Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012).
Thus,
procedural
defaults
may
be
excused
under
certain
circumstances: notwithstanding that a claim has been procedurally
defaulted, a federal court may still consider the claim if a state
habeas
petitioner
can
show
either
(1)
cause
for
and
actual
prejudice from the default; or (2) a fundamental miscarriage of
5
Coleman v. Thompson, 501 U.S. 722 (1991).
10
justice.
omitted);
Maples v. Thomas, 132 S.Ct. 912, 922 (2012) (citations
In
Re
Davis,
(citation omitted).
565
F.3d
810,
821
(11th
Cir.
2009)
In order for Petitioner to establish cause,
the procedural default "must result from some
objective factor external to the defense that
prevented [him] from raising the claim and
which cannot be fairly attributable to his own
conduct."
McCoy v. Newsome, 953 F.2d 1252,
1258 (11th Cir. 1992) (quoting Carrier, 477
U.S. at 488, 106 S.Ct. 2639).
Under the
prejudice prong, [a petitioner] must show that
"the
errors
at
trial
actually
and
substantially disadvantaged his defense so
that he was denied fundamental fairness." Id.
at 1261 (quoting Carrier, 477 U.S. at 494, 106
S.Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999), cert. denied,
528 U.S. 934 (1999).
In Martinez, the Supreme Court modified the general rule
expressed in Coleman6 to expand the circumstances falling within
the
definition
of
"cause"
to
excuse
a
procedural
default.
Martinez, 132 S.Ct. at 1315.
claim
Allowing a federal habeas court to hear a
of ineffective assistance of trial
6
"Negligence on the part of a prisoner's postconviction
attorney does not qualify as 'cause.'" Maples v. Thomas, 132 S.Ct.
912, 922 (citing Coleman, 501 U.S. at 753). The Court reasoned
that, under principles of agency law, the attorney is the
prisoner's agent, and therefore, the principal bears the risk of
negligent conduct on the part of his agent. Coleman, 501 U.S. at
753-54. In Coleman, the alleged ineffectiveness of counsel was on
appeal from an initial-review collateral proceeding, and in that
proceeding the prisoner's claims had been addressed by the state
habeas trial court.
Id. at 755.
However, the Martinez Court
addressed inadequate assistance of counsel at an initial-review
collateral proceeding.
11
counsel when an attorney's errors (or the
absence of an attorney) caused a procedural
default in an initial-review collateral
proceeding acknowledges, as an equitable
matter, that the initial-review collateral
proceeding, if undertaken without counsel or
with ineffective counsel, may not have been
sufficient to ensure that proper consideration
was given to a substantial claim. From this
it follows that, when a State requires a
prisoner to raise an ineffective-assistanceof-trial-counsel
claim
in
a
collateral
proceeding, a prisoner may establish cause for
a default of an ineffective-assistance claim
in two circumstances. The first is where the
state courts did not appoint counsel in the
initial-review collateral proceeding for a
claim of ineffective assistance at trial. The
second is where appointed counsel in the
initial-review collateral proceeding, where
the claim should have been raised, was
ineffective under the standards of Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). To overcome the
default, a prisoner must also demonstrate that
the
underlying
ineffective-assistance-oftrial-counsel claim is a substantial one,
which is to say that the prisoner must
demonstrate that the claim has some merit. Cf.
Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct.
1029, 154 L.Ed.2d 931 (2003) (describing
standards for certificates of appealability to
issue).
Id. at 1318-19.
In
the
petitioner
absence
may
of
receive
a
showing
of
consideration
cause
on
and
the
prejudice,
merits
of
a
a
procedurally defaulted claim if he can establish that a fundamental
miscarriage of justice, the continued incarceration of one who is
actually innocent, otherwise would result.
has explained:
12
The Eleventh Circuit
[I]f a petitioner cannot show cause and
prejudice, there remains yet another avenue
for him to receive consideration on the merits
of his procedurally defaulted claim. "[I]n an
extraordinary case, where a constitutional
violation has probably resulted in the
conviction of one who is actually innocent, a
federal habeas court may grant the writ even
in the absence of a showing of cause for the
procedural default."
Carrier, 477 U.S. at
496, 106 S.Ct. at 2649.[7] "This exception is
exceedingly narrow in scope," however, and
requires proof of actual innocence, not just
legal innocence. Johnson v. Alabama, 256 F.3d
1156, 1171 (11th Cir. 2001).
Id.
"To meet this standard, a petitioner must 'show that it is
more likely than not that no reasonable juror would have convicted
him' of the underlying offense."
Johnson v. Alabama, 256 F.3d
1156, 1171 (11th Cir. 2001) (quoting Schlup v. Delo, 513 U.S. 298,
327 (1995)), cert. denied, 535 U.S. 926 (2002).
Additionally,
"'[t]o be credible,' a claim of actual innocence must be based on
reliable evidence not presented at trial."
Calderson v. Thompson,
523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324).
With
the rarity of such evidence, in most cases, allegations of actual
innocence are ultimately summarily rejected.
Schlup, 513 U.S. at
324.
VII. Ineffective Assistance of Counsel
"The Sixth Amendment guarantees criminal defendants effective
assistance of counsel.
counsel's
7
performance
That right is denied when a defense
falls
below
an
objective
Murray v. Carrier, 477 U.S. 478 (1986).
13
standard
of
reasonableness and thereby prejudices the defense."
Yarborough v.
Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith,
539 U.S. 510, 521 (2003), and Strickland v. Washington, 466 U.S.
668, 687 (1984)).
To establish deficient performance, a
person challenging a conviction must show that
"counsel's representation fell below an
objective
standard
of
reasonableness."
[Strickland,] 466 U.S. at 688, 104 S.Ct. 2052.
A court considering a claim of ineffective
assistance must apply a "strong presumption"
that counsel's representation was within the
"wide range" of reasonable professional
assistance. Id., at 689, 104 S.Ct. 2052. The
challenger's burden is to show "that counsel
made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment."
Id., at
687, 104 S.Ct. 2052.
With respect to prejudice, a challenger
must demonstrate "a reasonable probability
that, but for counsel's unprofessional errors,
the result of the proceeding would have been
different.[8] A reasonable probability is a
probability sufficient to undermine confidence
in the outcome." Id., at 694, 104 S.Ct. 2052.
It is not enough "to show that the errors had
some conceivable effect on the outcome of the
proceeding."
Id., at 693, 104 S.Ct. 2052.
Counsel's errors must be "so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable." Id., at 687, 104
S.Ct. 2052.
Harrington, 131 S.Ct. at 787-88.
8
In the context of an ineffective assistance challenge to the
voluntariness of a guilty or no contest plea, Petitioner must show
there is a "reasonable probability that, but for counsel's errors,
he would not have pleaded guilty and would have insisted on going
to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
14
The two-part Strickland test applies to ineffective assistance
claims concerning both the decision to accept a guilty plea offer
and the decision to forgo a plea offer and stand trial.
Hill v.
Lockhart, 474 U.S. 52, 58-59 (1985). Since both prongs of the twopart Strickland test must be satisfied to show a Sixth Amendment
violation, "a court need not address the performance prong if the
petitioner cannot meet the prejudice prong, and vice-versa." Ward,
592 F.3d at 1163 (citation omitted).
high bar is never an easy task."
"Surmounting Strickland's
Harrington, 131 S.Ct. at 788
(quoting Padilla v. Kentucky, 130 S.Ct. 1473, 1485 (2010)).
A state court's adjudication of an ineffectiveness claim is
accorded great deference. "The standards created by Strickland and
§ 2254(d) are both 'highly deferential,' [Strickland], at 689, 104
S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct.
2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem,
review is 'doubly' so, Knowles[9], 556 U.S., at ----, 129 S.Ct. at
1420."
Harrington, 131 S.Ct. at 788.
The question "is not whether a federal
court
believes
the
state
court's
determination" under the Strickland standard
"was incorrect but whether that determination
was unreasonable - a substantially higher
threshold." Schriro, supra, at 473, 127 S.Ct.
1933. And, because the Strickland standard is
a general standard, a state court has even
more latitude to reasonably determine that a
defendant has not satisfied that standard.
See Yarborough v. Alvarado, 541 U.S. 652, 664,
9
Knowles v. Mirzayance, 556 U.S. 111 (2009).
15
124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)
("[E]valuating whether a rule application was
unreasonable requires considering the rule's
specificity. The more general the rule, the
more leeway courts have in reaching outcomes
in case-by-case determinations").
Knowles
v.
Mirzayance,
556
U.S.
111,
123
(2009);
see
also
Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004) ("In
addition to the deference to counsel's performance mandated by
Strickland, the AEDPA adds another layer of deference--this one to
a state court's decision--when we are considering whether to grant
federal habeas relief from a state court's decision.").
VIII. Findings of Fact and Conclusions of Law
A. Ground One
As ground one, Madison claims that the trial court lacked
jurisdiction to enter judgment and impose the sentence because the
Assistant State Attorney filed a fraudulent felony Information that
was based solely on second-hand hearsay evidence contained in the
investigating officer's arrest affidavit, instead of testimony
under oath from the material witness. Petition at 8; Memorandum at
2-9.
As acknowledged by the parties, Petitioner raised this claim
in his Rule 3.850 motion.
Resp. Ex. L at 3-7.
The trial court
denied the Rule 3.850 motion with respect to this issue, stating:
Defendant asserts that he was unlawfully
convicted because the Information filed
against him herein (copy attached) was not
supported by sworn testimony from a material
witness.
Defendant does not, and cannot,
claim that the Information wholly failed to
state a crime, though. Accordingly, relief as
16
to this ground must be denied. See, Haselden
v. State, 386 So.2d 624 (Fla. 4th DCA
1980).[10]
Resp. Ex. L at 45.
Upon Petitioner's appeal, the appellate court
affirmed the trial court's denial per curiam.
Respondents contend that the claim was not properly exhausted
and therefore is procedurally barred since it was raised in a
procedurally incorrect manner in state court.
This Court agrees.
See Response at 5.
Petitioner has not shown either cause excusing
the default or actual prejudice resulting from the bar.
Moreover,
he has failed to identify any fact warranting the application of
the fundamental miscarriage of justice exception.
Even assuming that the claim is not procedurally barred,
Madison's
plea
of
guilty
operated
as
a
waiver
nonjurisdictional defects in the criminal proceeding.
10
The failure to timely raise a defect in
an information constitutes a waiver of the
defect unless the information wholly fails to
charge a crime. State v. Taylor, 283 So.2d
882 (Fla. 4th DCA 1973); Tracey v. State, 130
So.2d 605 (Fla. 1961). The failure to allege
one ingredient of an offense does not render
an information invalid as wholly failing to
state a crime.
Id. at 611.
Although the
information here is defective, it does not
wholly fail to state a crime, and the
appellant's failure to raise the defect in the
trial court constituted a waiver of the
defect.
17
all
See United
In Haselden, the state appellate court stated:
Haselden, 386 So.2d at 624-25.
of
States v. Bonilla, 436 Fed.Appx. 901, 903 (11th Cir. 2011) (per
curiam) (not selected for publication in the Federal Reporter)
(citation omitted) (stating that Bonilla, by pleading guilty,
waived the nonjurisdictional argument relating to alleged defects
in his indictment).
Moreover, Madison's claim is, nevertheless, without merit.
For a defective Information to be a cognizable claim in a federal
habeas corpus action, the charging document must be so defective
that it deprives the court of jurisdiction.
DeBenedictis v.
Wainwright, 674 F.2d 841, 842 (11th Cir. 1982) (citations omitted)
("The sufficiency of a state indictment or information is not
properly the subject of federal habeas corpus relief unless the
indictment or information is so deficient that the convicting court
is deprived of jurisdiction."). Under Florida law, the state
circuit courts have jurisdiction over all felony charges. See Fla.
Stat. § 26.012(2)(d). Moreover, the Information, see Resp. Ex. A at
8, properly set forth the elements of robbery, see Fla. Stat. §
812.13(2)(c),
invoking
the
and
therefore
jurisdiction
met
the
minimum
of
the
state
11
requirement
circuit
for
court.11
Madison's reliance on Gerstein v. Pugh, 420 U.S. 103 (1975),
is misplaced. In Gerstein, the United States Supreme Court held
that there must be a determination of probable cause to believe
that the defendant has committed a crime in order for the State to
restrain his liberty. Florida Rule of Criminal Procedure
3.133(a)(1) provides the following safeguard: "In all cases in
which the defendant is in custody, a nonadversary probable cause
determination shall be held before a judge within 48 hours from the
time of the defendant's arrest; provided, however, that this
18
Additionally, the Information contains the required sworn oath of
the Assistant State Attorney, certifying that the allegations in
the Information "are based upon facts that have been sworn to as
true, and which, if true, would constitute the offense therein
charged," that the prosecution "is instituted in good faith," and
"that testimony under oath has been received from the material
witness(es) for the offense."
Such a sworn oath by the prosecutor
that he received testimony under oath from the material witness(es)
for the offense is sufficient pursuant to applicable Florida law.
See Fla. R. Crim. P. 3.140(g).12
Therefore, Petitioner is not
entitled to habeas relief on ground one.
B. Ground Two
As ground two, Petitioner claims that counsel was ineffective
because he failed to investigate the facts and research the
relevant law and failed to file a motion to dismiss the Information
or a petition for writ of prohibition based on double jeopardy
grounds.
Petition
at
10;
Memorandum
of
Law
at
9-13.
As
acknowledged by the parties, Petitioner raised this claim in his
proceeding shall not be required when a probable cause
determination has been previously made by a judge and an arrest
warrant issued for the specific offense for which the defendant is
charged."
12
Florida Rule of Criminal Procedure 3.140(g) provides: "No
objection to an information on the ground that it was not signed or
verified, as herein provided, shall be entertained after the
defendant pleads to the merits."
19
Rule 3.850 motion.
Resp. Ex. L at 8-10.
The trial court denied
the Rule 3.850 motion with respect to this issue, stating:
Defendant asserts that he received ineffective
assistance of trial counsel because his lawyer
failed to investigate the facts in his case,
and the law pertinent thereto. Accordingly,
Defendant claims that he was not given
adequate counsel before deciding to enter into
a Plea of No Contest and Negotiated Sentence
(copy
attached),
which
underlies
his
conviction.
Attached hereto, however, is a
transcript of the proceeding held May 25,
2007, in which the Defendant pled guilty and
was sentenced. There, Defendant swore under
oath that he was satisfied with his attorney's
services and that there was nothing he had
wanted the attorney to do in preparation of
his case that had not been done. Defendant
may not now be heard to go behind his sworn
testimony to make the assertions he now
claims. See, Stano v. State, 520 So.2d 278
(Fla. 1988); Mikenas v. State, 460 So.2d 359
(Fla. 1984); Bir v. State, 493 So.2d 55 (Fla.
1st DCA 1986).
Resp. Ex. L at 45-46.
Upon Petitioner's appeal, the appellate
court affirmed the trial court's denial per curiam.
Assuming the appellate court affirmed the denial of the Rule
3.850 motion as to this claim on the merits, there are qualifying
state court decisions.
Therefore, this claim will be addressed
applying the deferential standard for federal court review of state
court adjudications required by AEDPA.
After a review of the
record and the applicable law, the Court concludes that the state
courts' adjudications of this claim were not contrary to clearly
established
federal
law
and
did
not
involve
application of clearly established federal law.
20
an
unreasonable
Nor were the
adjudications based on an unreasonable determination of the facts
in light of the evidence presented in the state court proceedings.
Thus, Petitioner is not entitled to relief on the basis of this
claim.
Alternatively, if the state courts' adjudications of this
claim are not entitled to deference under AEDPA, Petitioner's claim
is, nevertheless, without merit.
court's findings.
The record supports the trial
In evaluating the performance prong of the
Strickland ineffectiveness inquiry, there is a strong presumption
in favor of competence. The presumption that counsel's performance
was reasonable is even stronger when, as in this case, counsel is
an
experienced
criminal
defense
attorney.13
The
inquiry
is
"whether, in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent
assistance."
Strickland, 466 U.S. at 690.
"[H]indsight is
discounted by pegging adequacy to 'counsel's perspective at the
time' . . . and by giving a 'heavy measure of deference to
13
"When courts are examining the performance of an experienced
trial counsel, the presumption that his conduct was reasonable is
even stronger." Chandler v. United States, 218 F.3d 1305, 1316
(11th Cir. 2000) (en banc), cert. denied, 531 U.S. 1204 (2001); see
Williams v. Head, 185 F.3d 1223, 1229 (11th Cir. 1999) (noting that
"[i]t matters to our analysis" whether the attorney is an
experienced criminal defense attorney), cert. denied, 530 U.S. 1246
(2000). Karl Green was admitted to the Florida Bar in 1991. See
http://www.floridabar.org. Thus, at the time of Madison' pretrial
suppression hearing and no contest plea in May 2007, Green had been
practicing law for approximately sixteen years.
Moreover, the
trial judge complimented Green on his "fine" lawyering skills. See
Resp. Ex. I at 310, 346.
21
counsel's judgments.'" Rompilla v. Beard, 545 U.S. 374, 381 (2005)
(citations omitted).
Thus, Petitioner must establish that no
competent attorney would have taken the action that counsel, here,
chose.
Dingle v. Sec'y for Dept. of Corr., 480 F.3d 1092, 1099
(11th Cir. 2007) ("The question is whether some reasonable lawyer
at the trial could have acted as defense counsel acted in the trial
at issue and not what 'most good lawyers' would have done.")
(citation omitted), cert. denied, 552 U.S. 990 (2007).
Petitioner has failed to carry this burden.
In 2005, a jury
found him guilty of robbery, and the trial judge sentenced him to
a term of twenty-two years of imprisonment.
The appellate court
reversed the circuit court's order and remanded the case to the
circuit court for a new trial due to a Faretta error.
948 So.2d 975.
See Madison,
Thus, Madison was not entitled to discharge on
double jeopardy grounds.
Even
assuming
arguendo
deficient
performance
counsel, Petitioner has not shown prejudice.
by
defense
Petitioner has not
shown a "reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on going to
trial."
Hill, 474 U.S. at 59.
Indeed, having gone through a full
trial on the merits, he fails to identify what facts or law his
lawyer
failed
to
investigate
in
the
subsequent
proceeding.
Moreover, as part of the plea, the State agreed to a sentence of
ten years of imprisonment and also agreed to nolle prosequi count
22
two.
See Resp. Ex. I at 342.
If Madison had proceeded to trial
and a jury had found him guilty of the robbery, he would have faced
a maximum term of imprisonment of thirty years, as a habitual
violent felony offender, with a ten-year minimum mandatory term of
imprisonment.
Id. at 344.
As Petitioner expressed at the plea
hearing, he believed that entering the no contest plea was in his
best interest.
Therefore, Petitioner's ineffectiveness claim is
without merit since he has shown neither deficient performance nor
resulting prejudice.
C. Ground Three
As ground three, Petitioner claims that his conviction was
obtained by use of evidence gained pursuant to an unconstitutional
search
and
seizure
and
an
unlawful
arrest.
He
asserts
following facts in support of the claim:
[The]
[p]atrol
officer's
stop
of
the
Petitioner's vehicle for an alleged illegal
lane change was unreasonably pretexual because
the officer never issued the Petitioner a
citation or written warning.
The continued
detention
was
unreasonable
and
without
objective evidentiary justification because
the patrol officer testified in his pre-trial
deposition that there was no evidence or
reasonable suspicion that the Petitioner has
committed, is committing, or was about to
commit a crime. The Petitioner was unlawfully
transported to the crime scene for a possible
identification in a show-up type situation
which was overly suggestive and in a
constitutionally defective manner, and the
victim failed to identify the Petitioner as
the perpetrator. These circumstances viewed
objectively did not rise to the level of
probable cause sufficient for the Jacksonville
23
the
Sheriff's officers to make the formal arrest
without a warrant.
Petition at 12.
Respondents contend, see Response at 8, and this
Court agrees, that under the principles of Stone v. Powell, 428
U.S. 465, 494-95 (1976), federal habeas review of Petitioner's
illegal
search
and
seizure
claim
is
not
cognizable
in
this
proceeding because Petitioner had a full and fair opportunity to
litigate his Fourth Amendment issue in state court.
In this case, defense counsel filed a pretrial motion to
suppress, Resp. Ex. H at 18-20, and memorandum in support of the
motion, id. at 22-76.
189; I at 190-274.
reviewed
the
The State responded.
Resp. Exs. H at 77-
At the May 25, 2007 hearing, the trial judge
evidence
and
allowed
both
parties
to
present
arguments. See Resp. Ex. I at 307-37. Thereafter, the trial judge
made the following findings:
I certainly agree with you as to the last
point.
These matters are determined by the
totality of the circumstances and we're not
going to ever find a case right on point.
I want to make the following findings:
First, that the information in the BOLO was
reasonably reliable in that it came from an
employee of the bank which had just been
robbed and he was able to identify the
defendant as the only person who had just
walked out of the bank when they -- other
employees came out and said did you see the
guy that just left.
It's true that the
Oldsmobile was described as a 98 instead of an
88, but that didn't play any role in the BOLO
itself.
The BOLO described there being one
person in the car who was a heavy-set black
male and that the car was a white Oldsmobile.
24
All of those descriptions match that of the
defendant. Some 16 minutes later on a route
leaving out of this neighborhood, which the
defendant could reasonably be -- the robber
could reasonably be expected to be using, he
was, in fact, spotted and didn't match all of
the description of the BOLO as we have
discussed, but I think it's significant when
the police officer pulled in behind him, he
started speeding away from him and driving
erratically.
When the stop was eventually
made, it was made in a reasonable fashion in
that the police officer waited for back-up to
join him before a stop was made, and the
defendant at that time was sweating profusely,
although it was a cool day, and I believe all
of that gave reasonable suspicion to Officer
Porter to proceed to detain the defendant for
a reasonable period of time necessary to
effectuate the purpose of conducting a showup.
And the rest, as they might say, is
history. He was identified at the show-up. I
find nothing unreasonably suggestive about the
show-up procedure. It was simply the defendant
standing on the sidewalk, he didn't have
handcuffs on or anything of that nature. He
was some 15 feet away from the eyewitnesses
and he was certainly directly identified and
partly identified by two witnesses.
And I find that under the totality of
circumstances and the law enunciated by
Supreme Court in Hunter v. State[14] that
entire procedure was reasonable, that
defendant's Fourth Amendment Rights were
violated and I will deny the motion
suppress thereupon . . . .
14
the
our
the
the
not
to
See Hunter v. State, 660 So.2d 244, 249 (Fla. 1995) (stating
that the relevant factors in assessing the legitimacy of a vehicle
stop pursuant to a "be on the lookout" (BOLO) alert include: the
length of time and distance from the offense, the route of flight,
the specificity of the description of the vehicle and its
occupants, and the source of the BOLO information).
25
Id. at 337-39. In a written order, the trial court denied the
motion for the reasons expressed on the record.
Resp. Ex. H at 20.
This Court has reviewed the record of the suppression hearing
and finds that Petitioner had a full and fair opportunity to argue
his Fourth Amendment claim in state court.
In addition, on direct
appeal, Petitioner argued that the trial court erred in denying his
motion to suppress, and the trial court's decision with regard to
this issue was affirmed.
In sum, Petitioner was afforded every
full and fair opportunity to litigate and have adjudicated his
Fourth Amendment claim, and therefore, under Stone v. Powell, he
should not be permitted to further litigate this claim in this
Court.
Thus, this ground for relief is barred.
Alternatively,
assuming
that
the
claim
is
not
barred,
Petitioner, nevertheless, is not entitled to relief on the basis of
this claim.
Resp. Ex. J.
Petitioner raised this issue on direct appeal.
See
The appellate court may have affirmed Petitioner's
conviction and sentence based on the merits.
If the appellate
court addressed the merits, Petitioner would not be entitled to
relief because the state court's adjudication of this claim is
entitled to deference under AEDPA.15
After a review of the record
and the applicable law, the Court concludes that the state court's
adjudication of this claim was not contrary to clearly established
federal law, did not involve an unreasonable application of clearly
15
See Wright, 278 F.3d at 1255.
26
established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings.
Thus, Petitioner is not entitled to
relief on the basis of this claim.
D. Ground Four
As
ground
four,
Petitioner
asserts
that
counsel
was
ineffective because he failed to adequately represent him at the
suppression hearing.
Respondents argue that the claim "was not
fairly presented to the state court" and therefore is procedurally
barred. See Response at 8-9.
This Court opines that Petitioner
sufficiently exhausted the issue in his Rule 3.850 motion.
At the suppression hearing, the trial judge complimented both
attorneys on their preparation.
I want to begin by commending counsel.
You both did a great job of getting me ready
for this, both in terms of providing me with
documents and also transcripts. I have read
the transcript of the deposition of Officer
Derrick Porter.
I've also read his trial
testimony, and I read the deposition of
Kathleen Ann Kirkland, though I'm not sure
that it has a whole lot to do with why we're
here. I understand she may not have identified
defendant. The State asserts that others did
and I'm sure he couldn't have been convicted
at trial if somebody hadn't identified him.
Resp. Ex. I at 310-11.
At the plea hearing, Petitioner affirmed that he was pleading
guilty because he believed it was in his best interest, that he had
sufficient time to discuss his options with his attorney, and that
27
he was satisfied with his attorney's representation.
Id. at 345.
When the trial judge asked Petitioner whether there was anything
counsel had not done towards preparing the case that Petitioner
wanted him to do, Petitioner replied, "No, Your Honor." Id. After
referring to Petitioner's counsel as a "very fine lawyer," the
trial judge proceeded to ask Petitioner additional questions to
ensure that he was freely, voluntarily, and intelligently entering
the plea.
Id. at 346.
The United States Supreme Court has determined that "the
representations of the defendant . . . [at a plea proceeding] as
well
as
any
constitute
a
findings
made
formidable
by
the
barrier
in
judge
any
accepting
subsequent
the
plea,
collateral
proceedings. Solemn declarations in open court carry a strong
presumption of verity." Blackledge v. Allison, 431 U.S. 63, 73-74
(1977).
Moreover, "[a] reviewing federal court may set aside a
state court guilty plea only for failure to satisfy due process: If
a defendant understands the charges against him, understands the
consequences of a guilty plea, and voluntarily chooses to plead
guilty, without being coerced to do so, the guilty plea . . . will
be upheld on federal review." Stano v. Dugger, 921 F.2d 1125, 1141
(11th Cir.) (en banc), cert. denied, 502 U.S. 835 (1991).
Required to establish that no competent attorney would have
taken the action that counsel, here, chose, Petitioner has failed
to carry this burden of showing deficient performance by counsel.
28
See Response at 9-11.
Therefore, Petitioner's ineffectiveness
claim is without merit since he has shown neither deficient
performance nor resulting prejudice.
E. Ground Five
As ground five, Petitioner claims that counsel was ineffective
because, prior to Petitioner's entering the no contest plea,
counsel failed to discuss and advise him of the available defenses
and mitigating circumstances relative to an unarmed robbery charge.
Although Petitioner presented ineffectiveness claims in his pro se
Rule 3.850 motion, he failed to argue the facts underlying this
ineffectiveness ground. See Resp. Ex. L at 23-28, Ground Five. In
the
Rule
3.850
motion,
Petitioner
claimed
that
counsel
was
ineffective because he failed to object to the factual basis
offered
by
the
State
to
support
his
conviction
at
his
plea
proceeding and that counsel "failed to consider the availability of
the lesser included offense of theft defense."
Id. at 24.
Respondents contend that the claim was not properly exhausted
and therefore is procedurally barred since it was raised in a
procedurally incorrect manner in state court.
See Response at 11.
This Court agrees. Petitioner has not shown either cause16 excusing
16
"To overcome the default, a prisoner must also demonstrate
that the underlying ineffective-assistance-of-trial-counsel claim
is a substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit." Martinez, 132 S.Ct. at
1318 (citation omitted). As shown in the alternative merits
analysis, this ineffectiveness claim lacks any merit. Thus,
Petitioner has not shown he can satisfy an exception to the bar.
29
the default or actual prejudice resulting from the bar.
Moreover,
he has failed to identify any fact warranting the application of
the fundamental miscarriage of justice exception.
Even assuming that the claim is not procedurally barred,
Petitioner, nevertheless, is not entitled to relief on the basis of
this claim.
At the plea hearing, Petitioner affirmed that he was
satisfied with counsel's representation and that he had had enough
time to discuss his options with counsel.
Resp. Ex. I at 345.
Moreover, upon the trial judge's request, the prosecutor set forth
the factual basis for the plea:
If this case had proceeded to trial again, the
State would be prepared to prove beyond and to
the exclusion of every reasonable doubt that
William Rodney Madison, on the 14th day of
April, 2005, in the County of Duval and the
State of Florida, did unlawfully by force,
violence, assault or putting in fear, take
money or other property, to wit: U.S.
Currency, the property of Wachovia Bank as
owner or custodian, from the person or custody
of Kathleen Kirkland, with the intent to
permanently or temporarily deprive Wachovia
Bank of the money or other property, contrary
to
the
provisions
of
Section
812.13
paren[thesis] 2C Florida Statutes.
Id. at 348-39.
Noting that counsel had investigated the matter,
the trial judge asked counsel if he had any objection or exception
to the prosecutor's recitation of the facts.
Id. at 349.
Counsel
did not object or offer any exception, stating: "if I could stand
mute on it as far as the fact that he's entering a no contest
30
plea."
Id.
The trial judge concluded that there was a factual
basis for the entry of the plea.
Id.
Given the substantial evidence against Madison, that a jury
had found him guilty of the robbery in 2005, and that the previous
trial judge (Peter L. Dearing) had sentenced him to twenty-two
years of imprisonment,17 counsel's performance (advising Petitioner
to enter a no contest plea with a sentence of ten years of
imprisonment and a right to appeal the court's ruling on the motion
to suppress) was not deficient. Petitioner must establish that no
competent attorney would have taken the action that counsel, here,
chose.
Petitioner has failed to carry this burden.
Even
assuming
arguendo
deficient
performance
counsel, Petitioner has not shown prejudice.
by
defense
Petitioner has not
shown a reasonable probability that, but for counsel's errors, he
would not have entered the no contest plea and would have insisted
on going to trial.
As part of the plea, the State agreed to a
sentence of ten years of imprisonment and also agreed not to
prosecute him with respect to count two.
Since a jury had found
Petitioner guilty of the robbery in 2005, and that trial judge had
sentenced him to a term of twenty-two years of imprisonment,
Petitioner knew that if he proceeded to trial again and a jury
17
After the 2005 trial, the court sentenced Madison, as a
habitual violent felony offender and prison releasee re-offender,
to twenty-two years of imprisonment.
Resp. Ex. A at 73-78,
Judgment, filed October 20, 2005.
31
found him guilty of the robbery, he would have faced a maximum term
of
imprisonment
sentenced
to
of
more
thirty
than
years
ten
and
likely
years.
would
Therefore,
have
been
Petitioner's
ineffectiveness claim is without merit since he has shown neither
deficient performance nor resulting prejudice.
IX. Conclusion
Upon consideration of the foregoing, the undersigned finds
that "[u]nder the doubly deferential judicial review that applies
to a Strickland claim evaluated under the § 2254(d)(1) standard,
see Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S.Ct. 1, 157 L.Ed.2d
1 (2003) (per curiam)," Petitioner's ineffective assistance claims
fail.
claims
Knowles, 556 U.S. at 123.
are
either
The remainder of Petitioner's
procedurally
barred
or
without
merit.
Accordingly, for these reasons, the Petition will be denied, and
this case will be dismissed with prejudice.
X. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If
Petitioner
appealability,
appealability
the
is
seeks
issuance
undersigned
not
warranted.
of
opines
This
a
that
certificate
a
Court
certificate
should
issue
of
of
a
certificate of appealability only if the Petitioner makes "a
substantial showing of the denial of a constitutional right."
U.S.C. §2253(c)(2).
28
To make this substantial showing, Petitioner
"must demonstrate that reasonable jurists would find the district
court's
assessment
of
the
constitutional
32
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)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Where
a
constitutional
district
claims
court
on
the
has
rejected
merits,
the
a petitioner's
petitioner
must
demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.
Slack, 529 U.S. at 484.
See
However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling."
Id.
Upon consideration of the record as a whole, this Court will deny
a certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Petition (Doc. #1) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment denying the
Petition and dismissing this case with prejudice.
33
3.
If Petitioner appeals the denial of the Petition, the
Court denies a certificate of appealability.
has
determined
that
a
certificate
of
Because this Court
appealability
is
not
warranted, the Clerk shall terminate from the pending motions
report any motion to proceed on appeal as a pauper that may be
filed in this case.
Such termination shall serve as a denial of
the motion.
4.
The Clerk of the Court shall close this case.
DONE AND ORDERED at Jacksonville, Florida, this 6th day of
July, 2012.
sc 4/24
c:
William Madison
Ass't Attorney General (Duffy)
34
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