Farmer v. State of Florida et al
Filing
39
ORDER denying 12 second amended petition, dismissing the action with prejudice, with instructions to the Clerk; if appealed, denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Roy B. Dalton, Jr. on 6/6/2012. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CALVIN FARMER,
Petitioner,
vs.
Case No. 3:09-cv-1128-J-37JBT
SECRETARY, DOC, et al.,
Respondents.
ORDER
Petitioner is proceeding on a Second Amended Petition (Doc.
#12) (Second Amended Petition).1
He filed a Memorandum of Law in
Support of Second Amended Petition for Writ of Habeas Corpus (Doc.
#13).
The Second Amended Petition challenges a 2005 state court
(Duval County) conviction for armed robbery and resisting an
officer with violence.
Respondents filed a Response to Order to
Show Cause and Answer to Petition for Writ of Habeas Corpus (Doc.
1
The Court found Petitioner complied with the one-year period
of limitations under the Antiterrorism and Effective Death Penalty
Act. Order (Doc. #28).
#32) (Response) on December 19, 2011.2
They rely on a previously
filed Appendix (Doc. #23).3
Petitioner filed his Response to Respondents' Reply to Show
Cause Order Issued by This Honorable Court on Oct. 19, 2011 (Doc.
#37).
See Order (Doc. #15).
Four grounds for habeas relief are
raised, and the Court is mindful of its responsibility to address
each ground,
Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992);
however, no evidentiary proceedings are required in this Court.4
STANDARD OF REVIEW
The Court will analyze Petitioner's claims under 28 U.S.C. §
2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act (AEDPA).
"By its terms [28 U.S.C.] § 2254(d) bars
relitigation of any claim 'adjudicated on the merits' in state
court, subject only to th[re]e exceptions." Harrington v. Richter,
131 S.Ct. 770, 784 (2011).
The exceptions are: (1) the state
2
Although Respondents refer to the second amended petition
for writ of habeas corpus, Response at 1, and they were ordered to
respond to the Second Amended Petition, Order (Doc. #28 at 6), upon
review, Respondents have actually responded to the Amended Petition
(Doc. #4).
Similar grounds are raised in the Second Amended
Petition, except with respect to a claim of ineffective assistance
of appellate counsel (ground four of the Second Amended Petition).
3
The Court hereinafter refers to the Exhibits as "Ex." Where
provided, the page numbers referenced in this opinion are the Bates
stamp numbers at the bottom of each page of the Appendix.
Otherwise, the page number on the particular document will be
referenced.
4
An evidentiary hearing was conducted in the state court on
ground one, a claim of conflict/ineffective assistance of counsel,
of the Rule 3.850 motion. Ex. X at 6-46.
- 2 -
court's decision was contrary to clearly established federal law;
or (2) there was an unreasonable application of clearly established
federal law; or (3) the decision was based on an unreasonable
determination of the facts.
Id. at 785.
There is a presumption of correctness of state courts' factual
findings unless rebutted with clear and convincing evidence.
U.S.C. § 2254(e)(1).
28
This presumption applies to the factual
determinations of both trial and appellate courts.
See Bui v.
Haley, 321 F.3d 1304, 1312 (11th Cir. 2003).
INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner claims he received the ineffective assistance of
counsel in violation of the Sixth Amendment to the United States
Constitution.
In order to prevail on this Sixth Amendment claim,
he must satisfy the two-pronged test set forth in Strickland v.
Washington, 466 U.S. 668, 688 (1984), requiring that he show both
deficient performance (counsel's representation fell below an
objective standard of reasonableness) and prejudice (there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Ground One
The first ground of the Second Amended Petition is: "State
Habitual Offender Sentence violates due process[.]" Second Amended
Petition at 6.
In this ground, Petitioner raises a Fourteenth
- 3 -
Amendment claim asserting he was illegally sentenced under the
Florida state habitual offender laws due to the state relying on a
prior predicate conviction from the State of Virginia, received by
Petitioner's brother.
Upon review of the record, prior to trial,
the following transpired. A Notice of Intent to Classify Defendant
as an Habitual Felony Offender was filed on August 26, 2004.
C
at
20.
The
state
intended
to
rely
on
two
prior
Ex.
felony
convictions: (1) grand larceny, on April 4, 2000, in the Circuit
Court, County of South Hampton, Virginia, and (2) possession of
cocaine, on February 10, 1992, in the Circuit Court, City of
Newport News, Virginia.
Id.
An Amended Notice of Intent to
Classify Defendant as a Habitual Felony Offender was filed on March
16, 2005; however, the Amended Notice was withdrawn on that date.5
Id. at 181, 346.
A sentencing hearing was conducted on March 16, 2005.
at 334-71.
sentencing.
Ex. C
Petitioner was represented by Mr. Richard Selinger at
Id.
Once the state withdrew the amended notice of
habitual felony offender status, the state announced that it would
rely on the original notice.
Id. at 346.
The court asked defense
counsel if the judgments and sentences had been reviewed with
Petitioner,
id.
at
346-47,
and
5
grand
South
March
Ex. C
Mr.
Selinger
responded
The Amended Notice relied on two prior convictions: (1)
theft auto, April 4, 2000, in the Circuit Court, County of
Hampton, Virginia, and (2) uttering a forged instrument,
5, 2002, in the Circuit Court, City of Richmond, Virginia.
at 181.
- 4 -
affirmatively.
Id. at 347.
Mr. Selinger said Petitioner was the
same individual as that in the judgments and convictions. Id. The
court specifically inquired as to whether Petitioner agreed that he
is the same individual as referenced in the convictions.
Id.
Counsel responded:
Yes, sir, and for the record that's for
grand larceny that he was convicted on April
4th, 2000, in South Hampton, Virginia, and the
second one is for possession of cocaine,
conviction date of February 10th, 1992 in
Newport News, Virginia, and he will stipulate
to both of those.
Id. (emphasis added).
The court then asked Petitioner if he agreed that he is the
same person that was sentenced and adjudicated guilty in those two
cases.
Id.
Petitioner said yes.
Id.
The court encapsulated the
nature of the proceedings:
What we are doing at this point is taking up –
is holding our separate hearing on the State's
original notice of intent to classify the
defendant as habitual felony offender.
You
have stipulated that the packages that relate
to those convictions are Mr. Farmer. I need
to ask you whether either of you have any
evidence that Mr. Farmer has received any
relief from either of these two judgments and
sentences by way of pardon, post-conviction
relief or direct appeal.
Id. at 350.
the state.
Defense counsel responded in the negative as well as
Id.
The court concluded that Petitioner had the two requisite
prior felony convictions, with the most recent adjudication falling
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within the five-year window preceding the date of the instant
offense. Id. at 352. Petitioner was designated an habitual felony
offender, and sentenced to thirty years on count one, and ten years
on count three, to run concurrently.
Id. at 369.
Sentence were entered on March 16, 2005.
Petitioner
now
asserts
that
The Judgment and
Id. at 191-97.
the
prior
conviction
for
possession of cocaine from Newport News, Virginia, dated February
10, 1992, is actually a conviction his brother received from the
State of Virginia.
The Defendant named in the conviction is "Sean
A. Farmer," with a date of birth of December 20, 1969.6
Ex. K at
32. The court, at the sentencing proceeding, noted that, according
to the PSI, Petitioner "has used twenty-one some odd names and half
a dozen dates of birth and Social Security numbers."
Ex. C at 346.
Petitioner admitted that he had accumulated aliases in order to
avoid prosecution, and said his actual date of birth was October
25, 1972.
Id. at 354.
Respondents contend, and this Court agrees, that this ground,
claiming
an
illegal
sentence
due
to
the
state
relying
on
a
predicate conviction of Petitioner's brother, simply involves a
6
It is noted that Petitioner's date of birth recorded on the
Florida Department of Corrections' website is December 20, 1969.
See http://www.dc.state.fl.us/ActiveInmates/detail.
The Inmate
Population Information Detail includes the alias of "Shawn A.
Farmer." Id. On June 3, 2004, after Petitioner was arrested for
the instant offense, he signed his name Shawn Farmer (with a date
of birth of December 20, 1969). Ex. C at 72. On that same date,
Petitioner signed his name C. Farmer. One of his co-defendants
informed the police that Petitioner's name was Calvin Farmer, not
Shawn Farmer. Id. at 101.
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state court's interpretation and application of Florida law.
See
Response at 17-18. Petitioner has presented a state law claim, not
a claim of constitutional dimension.
As a result, this ground
should be dismissed.
Since ground one presents an issue of state law that is not
cognizable in this proceeding, this ground cannot provide a basis
for habeas corpus relief.
In the alternative, Respondents contend
that the constitutional claim is unexhausted and procedurally
defaulted.
Response at 18.
There are prerequisites to a federal habeas review. Recently,
the Supreme Court of the United States discussed the doctrine of
procedural default:
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, 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.
- 7 -
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).
In addition, the Supreme Court, in addressing the question of
exhaustion, 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)
(citation omitted)).
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) (emphasis added).
In
Baldwin, the Supreme Court recognized a variety of ways a federal
constitutional issue could be fairly presented to the state court:
by citing the federal source of law, by citing a case deciding the
claim on federal grounds, or by labeling the claim "federal."
at 32.
- 8 -
Id.
Again,
procedural
circumstances:
defaults
may
"[n]otwithstanding
be
excused
that
a
under
claim
certain
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 justice." Id. at 890 (citations omitted). 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.), cert. denied, 528
U.S. 934 (1999).
However, "[i]nadequate assistance of counsel at
initial-review collateral proceedings may establish cause for a
prisoner's procedural default of a claim of ineffective assistance
at trial."
Martinez v. Ryan, 132 S.Ct. at 1315.
"[A] federal court may also grant a habeas petition on a
procedurally
prejudice,
to
defaulted
correct
claim,
a
without
fundamental
a
showing
of
cause
or
miscarriage
of
justice."
Fortenberry v. Haley, 297 F.3d 1213, 1222 (11th Cir. 2002) (per
curiam) (citation omitted), cert. denied, 538 U.S. 947 (2003). The
fundamental miscarriage of justice exception is only available in
- 9 -
extraordinary cases upon a showing of "'actual' innocence" rather
than mere "'legal' innocence."
Johnson v. Alabama, 256 F.3d 1156,
1171 (11th Cir. 2001) (citations omitted), cert. denied, 535 U.S.
926 (2002).
Upon review, Petitioner did not raise a constitutional claim
with respect to this ground in his Rule 3.800(a) motion, Ex. K at
1-4, in his Rule 3.850 motion, Ex. W at 73-74, nor on appeal of the
denial of the Rule 3.850 motion.
Ex. BB at 18-21.
unexhausted and procedurally defaulted.
The claim is
Petitioner has not shown
cause and prejudice or a fundamental miscarriage of justice will
result if the claim is not addressed on the merits.
Thus, the
Court will apply the state procedural bar to ground one.
As a
result, this claim will not be addressed on the merits.
Of great import, Petitioner did not challenge this prior
conviction at the sentencing proceeding.
Instead, he stipulated
that the person in the prior conviction was indeed him. Of course,
the trial court had already recognized that Petitioner used a large
number
of
names,
birth
dates,
throughout his criminal history.
inquiry
as
to
whether
Petitioner's convictions.
the
and
Social
Security
numbers
The court conducted an extensive
prior
convictions
were
actually
Petitioner readily admitted that they
were his prior felony convictions.
As the trial court noted in its denial of the Rule 3.800(a)
motion, the matter could have, and should have been, litigated
during the sentencing proceeding.
Ex. K at 5.
- 10 -
Furthermore, the
court found the question Petitioner raised in his post conviction
motion did not go to whether Petitioner received an illegal
sentence under Florida law.
Id.
Petitioner is not entitled to habeas relief on ground one of
the Second Amended Petition.
Petitioner has raised a state law
claim which does not present a claim of constitutional dimension.
In
the
alternative,
constitutional
claim
Petitioner
in
the
failed
state
to
fairly
courts;
present
therefore,
a
the
constitutional claim is unexhausted and procedurally defaulted.
Finally, this claim has no merit as Petitioner stipulated that he
was the individual sentenced and adjudicated in the prior felony
offenses used for habitualization.
Ground Two
Ground two of the Second Amended Petition is:
"Denial of
Right to Conflict Free Counsel[.]" Second Amended Petition at 9.
In this ground, Petitioner asserts he was denied his constitutional
right to proceed to trial represented by standby counsel free from
conflict.
Id.
Specifically, Petitioner asserts that prior to
trial, he was appointed counsel who refused to investigate and
pursue his alibi defense.
Id.
In this regard, Petitioner claims
counsel failed to obtain exculpatory evidence by allowing the state
to introduce photographs of the white shirt rather than requiring
the actual shirt worn during the crime be produced at trial.
Id.
Petitioner asserts he could have demonstrated to the jury that the
state's evidence was inconclusive because the shirt did not fit
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him.
Id.
Petitioner contends he was denied a fair trial when
counsel stipulated to the state's evidence.
Id.
Petitioner also
claims his counsel failed to move to sever his case from his codefendant, and the co-defendant implicated Petitioner in the crime,
contributing to the guilty verdict for Petitioner.
Id.
Petitioner claims he was denied his constitutional rights
under the Sixth and Fourteenth Amendments due to the performance of
defense
counsel.
In
order
to
sustain
his
conflict
claim,
Petitioner must show "that an actual conflict of interest adversely
affected his lawyer's performance."
Cuyler v. Sullivan, 446 U.S.
335, 348 (1980) (footnote omitted).
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.
Id. at 349-50.
In order to establish the constitutional
predicate and utilize the more lenient Cuyler standard, which
presumes prejudice, Petitioner has to show "that his counsel
actively represented conflicting interests."
Here,
Petitioner
has
failed
represented conflicting interests.
to
show
Id. at 350.
that
his
See Response at 8-9.
counsel
Instead,
what he has shown is that Mr. Selinger planned to present a defense
of
abandonment,
which
he
considered
to
be
supported
by
the
testimony of the victims of the robbery and the rendition of the
offense
provided
by
Petitioner.
The
Eleventh
Circuit
has
recognized that "[c]ounsel has a constitutional, independent duty
to investigate and prepare a defense strategy prior to trial."
- 12 -
Williams v. Allen, 598 F.3d 778, 792 (11th Cir. 2010), cert.
denied, 131 S.Ct. 906 (2011).
Based on the record, Mr. Selinger
satisfied this duty to investigate, develop and prepare a defense
strategy.
Shortly before trial, Petitioner decided he wanted to present
an alibi defense and requested to proceed pro se at trial.
"[A]
disagreement between counsel and client that arises when the
attorney's professional judgment dictates an action or strategy
different
from
that
desired
by
his
or
her
client
does
not
constitute a legal or ethical conflict of interest requiring the
appointment of new counsel."
(Fla. 5th DCA 2008).
Gonzalez v. State, 993 So.2d 55, 57
Indeed, the trial court, after conducting a
Nelson inquiry on February 10, 2005, decided that there was no
legitimate reason to discharge Mr. Selinger and appoint a different
attorney to represent Petitioner.
Ex. C at 300-10.
Petitioner raised his conflict/ineffectiveness claim in his
Rule 3.850 motion, and the trial court conducted an evidentiary
hearing on this particular claim.
In its Final Order Denying
Motion for Post-conviction Relief, the court found and concluded:
Six days prior to the commencement of the
trial herein, the Defendant moved the Trial
Court to appoint him new trial counsel based
upon allegations that he was receiving
ineffective assistance from his lawyer.
Thereupon, the Court conducted an appropriate
inquiry pursuant to Nelson v. State, 274 So.2d
256 (Fla. 4th DCA 1973) and Hardwick v. State,
521 So.2d 1071 (Fla. 1988) (a "Nelson
hearing").
The Court then determined that
Defendant's trial counsel had not been
- 13 -
rendering ineffective assistance.
When the
Defendant then insisted that he wished to
proceed to trial without his attorney, the
Court next engaged in a full inquiry pursuant
to Feretta v. California, 422 U.S. 806 (1975).
During that hearing the Court properly advised
the Defendant that if he represented himself,
he would not be able to assert claims of
ineffective assistance of counsel for events
which happened at trial.[7]
Ex. W at 92-93.
The court continued:
Because matters relating to the effective
assistance of trial counsel were heard by the
original Trial Court, it appears that they are
now procedurally barred.
See, Johnson v.
State,
593
So.2d
206
(Fla.
1992).
Nonetheless, Defendant contends that he
received ineffective assistance of trial
counsel because his lawyer urged him to use an
"abandonment" defense rather than an "alibi"
defense at trial; because his lawyer did not
arrange for production at trial of a certain
shirt, which Defendant claims the assailant in
the commission of this crime wore, but which
would not fit him; and because his lawyer did
not move to sever his trial from that of his
co-defendant.
Defendant cannot now demonstrate any
basis upon which his trial could have been
severed from that of his co-defendant; much
less how he was prejudiced by any nonseverance.
The other matters raised by him
were clearly within his own control when he
conducted his own trial.
7
In Faretta v. California, 422 U.S. 806 (1975), the Supreme
Court decided that defendants have a right to represent themselves,
recognizing that "[i]f there is any truth to the old proverb that
one who is his own lawyer has a fool for a client, the Court . . .
now bestows a constitutional right on one to make a fool of
himself." United States v. Brown, 393 Fed.Appx. 686, 695 (11th
Cir. 2010) (per curiam) (quoting Faretta, 422 U.S. at 838-39),
cert. denied, 131 S.Ct. 2975 (2011).
- 14 -
Ex. W at 93.
At the Faretta inquiry, the trial court found that Petitioner
was competent to waive his right to counsel, and his waiver was
knowingly and intelligently made.
discharged as counsel.
Id.
Ex. C at 328.
Mr. Selinger was
Mr. Selinger was re-appointed as
standby counsel. Id. The trial court instructed Mr. Selinger that
he was to be present, "but you're not to actively participate in
it."
Id.
Prior to opening statements, the trial court asked
Petitioner if he wished to proceed pro se, and Petitioner confirmed
that he did not want Mr. Selinger re-appointed.
Ex. D at 139-40.
Immediately thereafter, Petitioner, proceeding pro se, agreed that
the pictures could come into evidence, including the picture of the
white shirt (State's Exhibit 4).
Id. at 140-41, 290-91.
Based on the above, Petitioner elected to represent himself,
and, as a result, agreed to suffer the consequences or inure the
benefits of that self-representation.
Petitioner was fully warned
that he could not claim ineffective assistance of trial counsel
because his counsel was discharged prior to trial.
Upon review of
the record, Mr. Selinger did not actively participate in the jury
trial. Thus, any claim that counsel was ineffective for failing to
have the shirt admitted as evidence at trial and to pursue the
alibi defense at trial has no merit.
It was up to Petitioner to
present his case at trial as he was no longer represented by
counsel.
Petitioner has only himself to blame for failing to
- 15 -
ensure that the white shirt was brought to trial and admitted into
evidence.
See Ex. X at 23.
At the evidentiary hearing, Mr. Selinger attested that the
planned defense was going to be an abandonment defense.
26.
Ex. X at
Once the cases were not severed (a co-defendant moved for
severance,
but
his
request
was
denied
by
the
trial
court),
Petitioner decided that he wanted to proceed with an alibi defense.
Id.
Defense counsel confirmed that he did not plan on submitting
the white shirt into evidence as the planned defense included
admission as to Petitioner's presence at the scene but abandonment
of any improper deeds.
Id. at 28.
Counsel attested that he did
not move for severance prior to trial because there were no grounds
to support a request for severance.
Id. at 32-33.
He further
testified that he was present at the trial, but "had no role or
part in it."
Id. at 29.
Petitioner did not present evidence at the evidentiary hearing
in state court which adequately supported his claim of conflict.
He did not show any link between the alleged conflict (counsel
wanting to pursue an abandonment defense and Petitioner wanting to
pursue an alibi defense) and his counsel's decision to forgo the
alternative strategy of defense. Counsel attested that although he
thoroughly investigated and planned to put on an abandonment
defense, he could have gone forward representing Petitioner at
trial with an alibi defense, although he advised Petitioner that he
was uneasy about the last-minute change of defense based on the
- 16 -
fact, throughout counsel's period of representation, Petitioner had
said he was present at the scene of the offense.
Id. at 33-34.
Under these circumstances, Strickland is the controlling legal
authority.8
In light of all the circumstances, defense counsel's
performance
was
competence.
prejudice
not
outside
the
wide
range
of
professional
Furthermore, Petitioner has failed to satisfy the
prong
of
Strickland.
Upon
review,
there
was
no
unreasonable application of clearly established law in the state
court's decision to reject the ineffectiveness claim. The decision
was not contrary to clearly established federal law and was not
based on an unreasonable determination of the facts.
In
evaluating
the
performance
prong
of
the
Strickland
ineffectiveness inquiry, the Court recognizes that there is a
strong presumption in favor of competence.
The presumption that
counsel's performance was reasonable is even stronger when, as in
8
Even assuming the more lenient Cuyler standard is applicable
to this claim, Petitioner has failed to show counsel actively
represented conflicting interests.
Furthermore, Petitioner has
failed to show that counsel's performance was negatively affected
by his decision to pursue the abandonment defense based on the
witnesses' rendition of the robbery, the identification of
Petitioner as one of the robbers, and Petitioner's ever-fluctuating
account of the robbery (Petitioner was present, but it was meant to
be an arranged theft or petit theft, with Tim-Tam's employees
involved in the theft; Petitioner was present, but he abandoned any
intent to commit a crime; Petitioner's son was involved, and
Petitioner was not the individual in the white shirt; and
Petitioner was completely innocent).
Apparently at one point,
Petitioner's son admitted to Mr. Selinger that he was the robber,
but then he recanted that admission. Ex. X at 29-30. Counsel
discussed the alibi defense with Petitioner, but it was an
"imperfect alibi," because the witnesses could not cover the entire
period of the robbery. Id. at 31-32.
- 17 -
this case, counsel is an experienced criminal defense attorney.9
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 counsel's judgments.'"
Rompilla v. Beard, 545 U.S.
374, 381 (2005) (citations omitted).
The
trial
court
concluded
that
defense
ineffective for failing to seek a severance.
counsel
was
not
Not only did the
court find counsel's performance within the range of reasonably
competent counsel, the court also found Petitioner failed to show
prejudice because the court found Petitioner could not demonstrate
any basis upon which his trial could have been severed.
9
"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). Mr. Selinger had been a member of the Florida Bar since
1997. Ex. X at 35. Thus, at the time of the instant case, Mr.
Selinger had been practicing criminal law for approximately eight
years.
He attested that he met with Petitioner at the jail,
reviewed the police reports, spoke with Petitioner's witnesses,
went through depositions and reviewed those depositions with
Petitioner, conducted legal research, prepared for trial, and
prepared Petitioner for trial. Id. at 35-36. Counsel explained
that he was unable to locate witness Brenda Southwood, although his
investigator attempted to find her. Id. at 38-39.
- 18 -
Even assuming deficient performance, Petitioner has not shown
prejudice, as the trial court was convinced that the there was no
basis to seek severance, and Petitioner was not prejudiced by the
actions
of
counsel.
Thus,
Petitioner
has
not
shown
that
a
reasonable probability exists that the outcome of the proceeding
would have been different if his lawyer had given the assistance
that
Petitioner
has
alleged
should
have
been
provided.
Accordingly, Petitioner's ineffectiveness claim is without merit
since he has neither shown deficient performance nor resulting
prejudice.
Finally, Petitioner represented himself at trial.
was
responsible
for
presenting
his
alibi
defense
Thus, he
at
trial,
including seeking the admission of the white shirt. This he failed
to do.
Although Petitioner seeks to blame standby counsel for the
decisions
Petitioner
made
at
trial,
standby
counsel
did
not
participate at trial and can not be held accountable for the
actions or inactions of Petitioner at trial.
Petitioner is not entitled to relief on ground two of the
Petition, the claim of ineffective assistance of trial counsel due
to a conflict. He did not establish an actual conflict of interest
existed, and assuming arguendo he did establish such a conflict, he
failed to demonstrate that the conflict adversely affected Mr.
Selinger's representation.
Simply, "Petitioner has not shown that
his Sixth Amendment right to counsel was violated due to a conflict
of interest."
Gilbrook v. Sec'y, Dep't of Corr., No. 5:10-cv-355- 19 -
Oc-10TBS, 2012 WL 1549994, at *5 (M.D. Fla. April 30, 2012).
Alternatively, deference under AEDPA should be given to the
state court's decision.
Petitioner appealed to the First District
Court of Appeal, Ex. BB, and the appellate court per curiam
affirmed on April 6, 2009.
2009.
Ex. GG.
Ex. DD.
The mandate issued on May 4,
The state courts' adjudication of this claim is not
contrary to or an unreasonable application of Strickland or Cuyler
or based on an unreasonable determination of the facts. Petitioner
is not entitled to habeas relief on ground two.
Ground Three
Ground three of the Second Amended Petition is:
"Petitioner
[was] denied [the] Sixth Amendment right to a fair trial by an
impartial jury."
Second Amended Petition at 12.
In this ground,
it is asserted that Petitioner was deprived of a fair trial by an
impartial jury, in violation of the Sixth Amendment of the United
States Constitution.
Petitioner alleges he was involved in a
Id.
physical altercation at his workplace with one of the selected
jurors,
Mr.
Carl
Norman.
Id.
However,
recognize Mr. Norman during jury selection.
Petitioner's
Petitioner's
Petitioner
girlfriend
attention
realized
he
brought
during
knew
the
Mr.
Mr.
Petitioner
Id.
Norman.
of
not
It was not until
Norman's
course
did
the
Id.
identity
trial
to
that
Petitioner,
proceeding pro se, did not bring the issue to the court's attention
during the trial because "he could not recall specifically who
Norman was" during the proceeding. Id.
- 20 -
Petitioner alleges that
his girlfriend "refreshed his memory as to exactly who Norman was
before the end of trial[.]"
Id.
The record shows that Petitioner waited until after the
verdict
was
attention.10
published
to
bring
the
matter
to
the
court's
After the jury was polled and the court was excusing
the jurors, Petitioner announced to the court that he knew Mr.
Norman and explained that they had worked together.
Ex. D at 507.
Mr. Norman responded that Petitioner's face looked familiar.
Id.
Norman
but
said
he
initially
kept
looking
at
Petitioner,
Petitioner's face "didn't ring a bell." Id. The court inquired as
to
whether
there
was
anything
that
familiarity
that
influenced Mr. Norman's verdict in the case.
Id. at 508.
The
juror responded in the negative.
about
Id.
Petitioner raised this issue in his Rule 3.850 motion.
at 70-72.
Ex. W
The trial court found that this claim "could have, and
should have, been raised before the trial court; or on direct
appeal."
Id. at 81.
The court concluded that the claim was
procedurally barred from review.
Appeal affirmed.
Id.
The First District Court of
Ex. DD.
Upon review, Petitioner did not present this claim in a
procedurally correct manner.
See Response at 14.
Thus, it is procedurally defaulted.
Petitioner has not shown cause and prejudice
or a fundamental miscarriage of justice will result if the claim is
10
The jury found Petitioner guilty of armed robbery and
resisting an officer with violence. Ex. D at 502-503.
- 21 -
not addressed on the merits.
As a result, the Court will apply the
state procedural bar to ground three and not address the claim on
the merits.
Thus, ground three of the Second Amended Petition is
due to be denied.11
Ground Four
The
fourth
ground
of
the
Second
Amended
Petition
is:
"Ineffective Assistance of Appellate Counsel."
Second Amended
Petition
of
at
15.
Petitioner
raises
a
claim
ineffective
assistance of appellate counsel for failure to raise a claim
concerning the trial court's denial of his motion to dismiss the
charging information.
Id.
Petitioner contends that the state
relied on the testimony of the investigating officer to charge the
crime, contrary to Florida law.
Id.
Petitioner asserts that the
investigating officer is not a material witness; therefore, the
information could not be based solely on his testimony.
Respondents
did
not
address
this
claim
of
Id.
ineffective
assistance of appellate counsel in their Response. In establishing
a claim of ineffective assistance of appellate counsel, there must
be a showing that appellate counsel's performance was so deficient
11
Petitioner has failed to establish Mr. Norman was biased
against him. See Response at 15-17. Indeed, based on the record,
Petitioner and Mr. Norman did not recognize each other during jury
selection. Petitioner said his girlfriend recognized Mr. Norman
during the trial, but Petitioner failed to bring the matter to the
court's attention until after the verdict was rendered.
In
addition, Petitioner has failed to demonstrate he was deprived of
a constitutionally fair trial as Mr. Norman assured the court he
did not recognize Petitioner's face and any vague familiarity with
Petitioner did not influence the verdict.
- 22 -
that it fell below an objective standard of reasonableness, but
also, there must be a demonstration "that but for the deficient
performance, the outcome of the appeal would have been different."
Ferrell v. Hall, 640 F.3d 1199, 1236 (11th Cir. 2011) (quoting
Black v. United States, 373 F.3d 1140, 1142 (11th Cir. 2004)).
The record shows that Petitioner filed a pro se Motion to
Dismiss the information on February 11, 2005.12
Ex. C at 46.
trial court heard the motion on February 14, 2005.
The
Ex. E at 18-23.
The state informed the court that Detective Parrott responded to
the scene and conducted the show-ups.
Id. at 19.
Parrott also conducted the interrogation.
Id.
Detective
The prosecutor
described Detective Parrott as not only a material witness, but a
key witness.
Id. at 21.
Id. at 19-20.
Detective Parrott was the affiant.
The trial court found Detective Parrott's affidavit
sufficient; "[t]he reports available to the State Attorney and the
testimony of Detective Parrott were sufficient for the State
Attorney to sign the information."13 Id. at 23. With that finding,
12
As background, Mr. Selinger, on October 13, 2004, informed
the court that Petitioner had asked him to file a motion to compel
to gain the information the state relied upon, including the sworn
statements relied upon in filing the information. Ex. C at 219.
Counsel did so, and the state provided him with the filing
affidavit, which counsel found to be sufficient. Id. Petitioner
disagreed with counsel's assessment, and requested counsel file a
motion to dismiss the information. Id. Counsel informed the court
that he did not believe it to be a valid motion, and he would not
adopt it and file it with the court. Id.
13
The record shows that there was a sworn Arrest and Booking
Report, dated June 3, 2004. Ex. C at 1-5. Also, multiple police
reports were made, including a very detailed Supplemental Report by
- 23 -
the court denied the motion on February 14, 2005.
Id.; Ex. C at
51.
Petitioner was tried on an information dated June 16, 2004.
Ex. C at 8-9.
Even if the information had been dismissed, the
state would have simply cured the deficiency by filing a new
information.
Petitioner
has
not,
and
cannot,
allege
the
information fails to state a crime. Therefore, the trial court was
not deprived of jurisdiction.
The sworn oath of the prosecutor
that he received testimony under oath from the material witness or
witnesses for the offense is sufficient under Florida law. Bromell
v. McNeil, No. 07-61917-CIV, 2008 WL 4540054, at *17 (S.D. Fla.
Oct. 10, 2008) (not reported in F.Supp.2d).
See Ruiz v. Sec'y,
Dep't of Corr., No. 8:06-cv-2086-T-17TGW, 2008 WL 786327, at *4-*5
(M.D. Fla. Mar. 20, 2008) (not reported in F.Supp.2d) (rejecting a
claim of ineffective assistance of counsel for failing to move for
dismissal based on a deficient information, unsupported by a sworn
statement of a material witness).
As explained in State v.
Perkins, 977 So.2d 643, 646 (Fla. 5th DCA 2008), the assistant
state attorney signing the information charging a felony does not
have to personally administer the oath and question the material
witness or witnesses upon which the charges are based, but simply
receive and consider the sworn testimony.
Detective Parrott, dated June 9, 2004.
- 24 -
Id. at 129-33.
This claim of ineffective assistance of appellate counsel was
raised in a Petition for Writ of Habeas Corpus filed with the First
District Court of Appeal.
Ex. Q.
Petitioner asserted the trial
court erred in denying his motion to dismiss the information, and
appellate counsel was ineffective for failing to raise this point
on direct appeal.
On July 18, 2007, the state appellate court
denied the petition alleging ineffective assistance of appellate
counsel on the merits.
Ex. S.
On July 20, 2007, Petitioner moved
for leave to supplement the petition, Ex. T, and the motion to
supplement was denied.
Ex. U.
Two grounds were raised on direct appeal: (1) the trial court
erred
in
denying
identification
the
and
motion
in-court
to
suppress
identification
the
of
out-of-court
Petitioner
by
witnesses Steinmetz and Compton, and (2) the trial court reversibly
erred
in
overruling
the
defense
objection
to
Ms.
Steinmetz'
testimony thereby allowing prejudicial irrelevant testimony to be
presented
to
the
jury.
Ex.
F
at
i.
Appellate
counsel's
performance was not deficient for failing to include a claim that
the
trial
court
information.
erred
in
denying
the
motion
to
dismiss
the
Such a claim would have been unsuccessful, as
evidenced by the ruling of the First District Court of Appeal
denying the Petition for Writ of Habeas Corpus.
Furthermore,
Petitioner has not met his burden to show that the outcome of the
appeal would have been different if appellate counsel had raised
this claim on direct appeal.
Appellate counsel's performance did
- 25 -
not fall below an objective standard of reasonableness based on
these circumstances.
The state court's refusal to grant relief on the basis of
ineffective assistance of appellate counsel was not contrary to
clearly established federal law, did not involve an unreasonable
application of clearly 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.
Finally,
Petitioner has failed to demonstrate that, but for the alleged
deficient performance of appellate counsel, the outcome of the
appeal would have been different.
Therefore, ground four does not
warrant relief.
CERTIFICATE OF APPEALABILITY
If
Petitioner
appeals,
the
undersigned
certificate of appealability is not warranted.
opines
that
a
See Rule 11, Rules
Governing Section 2254 Cases in the United States District Courts.
This Court should issue a certificate of appealability only if the
Petitioner
makes
"a
substantial
constitutional right."
showing
of
the
28 U.S.C. §2253(c)(2).
denial
of
a
To make this
substantial showing, Petitioner "must demonstrate that reasonable
jurists
would
find
the
district
court's
assessment
of
the
constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
- 26 -
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 Second Amended Petition (Doc. #12) is DENIED, and
this action is DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment accordingly
and close this case.
3.
If Petitioner appeals the denial of his Second Amended
Petition, the Court denies a certificate of appealability. Because
this Court has determined that a certificate of appealability is
not warranted, the Clerk shall terminate from the pending motions
- 27 -
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.
DONE AND ORDERED at Jacksonville, Florida, this 6th day of
June, 2012.
sa 6/4
c:
Calvin Farmer
Ass't A.G. (Heller)
- 28 -
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