Boyd v. FL Attorney General et al
Filing
21
ORDER denying 1 petition for writ of habeas corpus, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Roy B. Dalton, Jr. on 11/16/2012. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GERALD BOYD,
Petitioner,
vs.
Case No. 3:11-cv-67-J-37JRK
SECRETARY, DOC, et al.,
Respondents.
ORDER
I. Status
Petitioner Gerald Boyd initiated this action by filing a pro
se Petition (Petition) (Doc. #1) for writ of habeas corpus pursuant
to 28 U.S.C. § 2254.
The Petition challenges a 2007 state court
(Putnam County) conviction for trafficking in amphetamine (28 grams
or more).
Three grounds are raised in the Petition:
(1) a Fourth
Amendment violation due to the trial court's denial of a pre-trial
motion to suppress; (2) a Sixth Amendment violation due to the
ineffective assistance of counsel for failure to introduce at the
suppression hearing the canine's track records to impeach the
testimony of Officer Deloach regarding the canine's reliability;
and
(3)
a
Sixth
Amendment
violation
due
to
the
ineffective
assistance of counsel for failure to argue at the suppression
hearing that Petitioner's truck was equipped with daytime running
lights (DRL) which come on whenever the engine is on.
Respondents filed a Response to Petition (Response) (Doc. #8)
and
an
Appendix
#9).1
(Doc.
Petitioner
filed
a
Reply
with
Incorporated Memorandum of Law to Respondents' Response to Petition
for Writ of Habeas Corpus (Doc. #14).
See Order (Doc. #5).
In
addition, Petitioner filed the following: Petitioner's Supplemental
Appendix
(Doc.
#15);
Petitioner's
Response
with
Incorporated
Memorandum of Law to Respondents' Request for Summary Judgment and
Dismissal
(Doc.
#16);
(Notice) (Doc. #19).
and
Notice
of
Supplemental
Authority
Three 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.2
II.
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
1
The Court hereinafter refers to the exhibits in the Appendix
as "Ex."
Where provided, the page numbers referenced in this
opinion are the Bates stamp numbers at the bottom right-hand corner
of each page of the Exhibit. Otherwise, the page number on the
particular document will be referenced.
2
An evidentiary hearing was conducted in the state court on
the motion to suppress. See Ex. 1 at 314-430.
- 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).
III.
Timeliness
Respondents calculate that the Petition was timely filed.
Response at 6-7.
The Court accepts this calculation.
IV.
Ground One
Petitioner claims that the Fourth Amendment was violated when
the
trial
court
denied
a
pre-trial
motion
to
suppress.
In
Defendant's Amended Motion to Suppress, he asserted that the search
was illegal because (1) he was not committing a traffic violation
because sunrise had already occurred and taillights were not
required at the time of the traffic stop; (2) the detention was
longer than necessary to issue a traffic citation; and (3) the drug
dog was not certified by any agency or kennel for narcotics
detection at the time of the search and there was no prima facie
showing of the dog's reliability.
Ex. 1 at 189-267.
Based on
these contentions, he sought the suppression of all evidence and
- 3 -
statements obtained by the police.
Id. at 195-96.
An evidentiary
hearing was conducted by the trial court on the motion.
314-430.
Id. at
Captain Alisha Kuleski, Deputy Anton Boals, Detective
John Merchant, and Detective Homer Deloach testified for the
prosecution.
Petitioner's mother, Barbara Brantley, was called by
the defense.
The court heard argument, and the motion to suppress
was taken under advisement.
In its Order Denying Motion to Suppress Evidence, the trial
court, in a detailed and thorough decision, set forth its reasoning
for denying the motion to suppress.
Ex. 1 at 271-76.
First, the
court noted that Petitioner was asserting that the traffic stop was
illegal.
Id. at 271.
Next, the court referenced the violation
cited in the traffic citation, id. at 282, a violation of Florida
Statute 316.221, which provides:
1) Every motor vehicle, trailer, semi
trailer, and pole trailer, and any other
vehicle which is being drawn at the end of a
combination of vehicles, shall be equipped
with at least two tail lamps mounted on the
rear, which when lighted as required in s.
316.217, shall emit a red light plainly
visible from a distance of 1,000 feet to the
rear, except that passenger cars and pickup
trucks manufactured or assembled prior to
January 1, 1972, which were originally
equipped with only one tail lamp shall have at
least one tail lamp.
On a combination of
vehicles, only the tail lamps on the rear most
vehicle need actually be seen from the
distance specified. On vehicles equipped with
more than one tail lamp, the lamps shall be
mounted on the same level and as widely spaced
laterally
as
practicable.
An
object,
material, or covering that alters that tail
- 4 -
lamp's visibility from 1,000 feet may not be
placed, displayed, installed, affixed, or
applied over a tail lamp.
2) Either a tail lamp or a separate lamp
shall be so constructed and placed as to
illuminate with a white light and rear
registration plate and render it clearly
legible from a distance of 50 feet to the
rear. Any tail lamp or tail lamps, together
with
any
separate
lamp
or
lamps
for
illuminating the rear registration plate,
shall be so wired as to be lighted whenever
the head lamps or auxiliary driving lamps are
lighted. Dump trucks and vehicles having dump
bodies are exempt from the requirements of
this subsection.
3) A violation of this section is a
noncriminal traffic infraction, punishable as
a nonmoving violation as provided in chapter
318.
Ex. 1 at 271-72.
In addition, the court cited Florida Statute 316.217(1)(a),
which provides:
1) Every vehicle operated upon a highway
within this state shall display lighted lamps
and
illuminating
devices
as
here
in
respectively required for different classes of
vehicles, subject to exceptions with respect
to parked vehicles, under the following
conditions;
(a) At any time from sunset to sunrise
including the twilight hours. Twilight hours
shall mean the time between sunset and full
night or between full night and sunrise.
Ex. 1 at 272.
Recognizing that Petitioner was asserting that his stop was
illegal because the sun had already come up at the time of his
- 5 -
traffic stop, the court explained that there was a case on point,
and relying on that case, found there was probable cause for a
traffic stop because Florida Statute 316.221(2) requires the tag
light to be operational whenever the head lights are on, no matter
what time of the day.
In support of its conclusion that the
traffic stop in Petitioner's case was a legal stop, the court
credited the testimony of Deputy Anton Boals:
[H]e received a bolo (be on the lookout) for a
silver Ford pick up that was hauling a truck
and trailer without working tail lights around
7:57 A.M. That bolo was based on a tip by an
informant who allegedly saw the truck sometime
after 7:00 A.M. Deputy Boals testified that
he saw the vehicle traveling in the opposite
direction with the head lights on and no tail
lights and turned around and made the stop at
8:04 A.M. He approached the vehicle and asked
for the Defendant's driver's license. He went
to the back of the vehicle and re-inspected
the tail lights asking the Defendant to take
his foot of[f] the brakes.
Ex. 1 at 272-73.
The court found Deputy Boals had probable cause
to stop Petitioner "regardless of whether it was shortly after
sunrise[,]" as the officer saw the vehicle with its headlights on.
Id. at 273.
The court also addressed Petitioner's claim that the delay in
issuing the citation was well beyond the time necessary to complete
the citation.
Id. at 273-75.
The court relied on the testimony of
the officers and the exhibits in finding that the detention was not
unreasonably delayed or unlawful.
The court made its findings of
- 6 -
fact and conclusions of law with respect to the assertion of
unreasonable delay in issuing the citation:
Deputy Boals testified that he stopped the
vehicle at 8:04 A.M. and gave the Defendant
the written citation at 8:20 A.M.
Deputy
Boals testified that during that time, he ran
a check on the Defendant's license and
inspected the Defendant's trailer lights at
one point instructing the Defendant to take
his foot of[f] the brake pedal.
Assistant
Supervisor of Communication Captain Kuleski,
testified from dispatch records that the bolo
was received at 7:57 A.M., the Defendant was
stopped at 8:04 A.M., Detective Merchant
arrived on the scene at 8:08 A.M., and
Detective Deloach arrived on the scene with a
drug sniffing dog at 8:18 A.M.
Detective
Merchant testified that at some point the
Defendant's mother arrived at the scene.
. . . .
Deputy Boals testified that he was delayed
when the Defendant did not take his foot off
of the brake when he was instructed to. His
further inspection of the trailer would have
certainly caused a delay.
Based on the
testimony of Boals and Detective Merchant at
the hearing, it is apparent to the Court that
Deputy Boals was involved solely with the
traffic issue and not part of any search. As
Defendant's Exhibit Marked as C (the citation)
shows, the citation was given to the Defendant
at 8:20 A.M. Detective Deloach arrived on the
scene with the drug sniffing dog at 8:18 A.M.
prior to the citation being issued. Based on
the testimony presented, a review [of] the
events from 8:04 A.M. to 8:20 A.M., 16-minutes
does not seem to be an unreasonable delay.
Additionally, the "canine search" which was
conducted
by
law
enforcement
personnel
separate and apart from the Deputy, was
initiated prior to the citation being issued.
Thus the Court concludes that the detention
under the circumstances was not unlawful.
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Ex. 1 at 273-75.
With respect to Petitioner's third and last contention in the
motion to suppress, the court relied on the testimony of Detective
Deloach that the State of Florida does not mandate certification of
the canine.
Id. at 275.
In addition, the court credited his
testimony concerning the reliability of the canine, "allowing the
Court to determine the canine detection provided probable cause for
the search."
Id.
The trial court denied the motion to suppress as to all three
grounds.
Id. at 275-76.
Thereafter, Petitioner entered a nolo
contendere plea, but reserved the right to appeal the denial of the
motion to suppress.
Id. at 433, 443-44.
On direct appeal,
Petitioner raised the following issue: "[t]he trial court erred in
the denial of Appellant's Motion to Suppress Physical Evidence and
Statements following an illegal traffic stop, seizure and a search
conducted without probable cause when the drug detection dog was
not certified and lacked a sufficient track record."
Ex. 2 at i.
Additionally, it was argued that the engagement of daytime running
lamps (DRL) does not illuminate any rear lights on a vehicle, and
the lights automatically engage when the vehicle is turned on,
presenting a problem that it would be illegal to use DRL under the
current interpretation of the law under Andrews v. State, 540 So.2d
210 (Fla. 4th DCA 1989).
Id. at 15-16.
In its Answer Brief, the state countered that there is no
requirement that a canine be certified to detect narcotics, only
- 8 -
that the canine be trained, and that the canine was properly
trained in this instance.
Ex. 3 at 4.
In addition, with respect
to the argument about daytime running lights and drivers being
subjected to traffic stops based on these automatic daytime running
lights, the state responded: "the argument is misplaced given that
section 316.221 only addresses headlamps and auxiliary driving
lamps, not DRL."
Ex. 3 at 7-8.
Petitioner replied, Ex. 4, and the
Fifth District Court of Appeal affirmed per curiam on October 21,
2008.
Ex. 5.
The mandate issued on November 7, 2008.
Ex. 6.
The Supreme Court of the United States recently explained:
"[t]he Fourth Amendment provides in relevant part that '[t]he right
of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated.'
It is beyond dispute that a vehicle is an 'effect' as
that term is used in the Amendment."
S.Ct. 945, 949 (2012).
United States v. Jones, 132
The Eleventh Circuit has recognized that
even a brief stop of a motor vehicle by the police constitutes a
Fourth Amendment seizure.
United States v. Durham, No. 12-11583,
2012 WL 4757930, at *3 (11th Cir. Oct. 5, 2012) (per curiam) (not
selected for publication in the Federal Reporter).
However, a
traffic stop is reasonable if the police have probable cause to
believe a traffic violation occurred.
United States v. Whitlock,
No. 12-10989, 2012 WL 5065667, at *3 (11th Cir. Oct. 19, 2012) (per
curiam) (not selected for publication in the Federal Reporter)
(citation omitted).
- 9 -
Although the Fourth Amendment protects the "right of the
people to be secure in their persons, houses, papers, and effects,"
including vehicles, from unreasonable searches and seizures, the
Fourth Amendment itself does not have an exclusionary rule.
v. United States, 131 S.Ct. 2419, 2426 (2011).
Davis
Indeed, exclusion
is not an individual's constitutional right, and the prudential
doctrine of exclusion is not meant to redress the injury to the
individual caused by an unconstitutional search.
Stone
v.
Powell,
428
U.S.
465,
486
(1976)).
Id.
(citing
Instead,
the
exclusionary rule's purpose is to deter future Fourth Amendment
violations by the police.
With this in mind, the Court will review ground one of the
Petition.
Respondents assert that Petitioner's claim is barred
from consideration pursuant to Stone v. Powell, 428 U.S. 465
(1976).
Response at 8, 12.
Upon a thorough review of the record,
the Court finds that Petitioner had a full and fair opportunity to
litigate the Fourth Amendment issue and took full advantage of that
opportunity.
A pre-trial motion to suppress was filed, and a
hearing was conducted on the motion to suppress, and the traffic
officer, the canine officer, the detective, and the supervisor of
the dispatch records testified.
Additionally, Petitioner's mother
testified. Exhibits were considered by the court. The trial court
made essential findings of fact.
See Tukes v. Dugger, 911 F.2d
508, 513-14 (11th Cir. 1990), cert. denied, 502 U.S. 898 (1991),
and the appellate court affirmed the trial court's decision.
- 10 -
Upon review, the trial court determined it was a legal stop
based on the fact that the officer saw the vehicle with its
headlights on.
Ex. 1 at 273.
The court credited the testimony of
Deputy Boals with respect to this finding.
court
concluded
certification
of
that
the
the
State
canine
of
to
Id.
Florida
conduct
Additionally, the
does
not
narcotics
mandate
searches,
crediting the testimony of the canine officer Detective Deloach.
Id. at 275.
The court also credited the testimony of Detective
Deloach concerning the reliability of the canine, finding it to be
sufficient to make the determination that the canine detection
provided probable cause for the search.
Id.
Generally, following a stop, the investigation should be
reasonably related in scope to the circumstances which justified
the stop.
United States v. Whitlock, at *4 (citing United States
v. Ramirez, 476 F.3d 1231, 1236 (11th Cir.), cert. denied, 551 U.S.
1108 (2007)).
In effect, the duration should be limited to the
time necessary to effectuate the purpose of the stop, including
prolonging the detention to investigate the driver's license and
vehicle registration and to conduct a computer search.
(citation omitted).
Id.
A Fourth Amendment violation would occur if
the police undertake an unreasonably prolonged traffic stop and
"conduct
a
dog
sniff
and
uncover
contraband[.]"
Illinois v. Caballes, 543 U.S. 405, 407-08 (2005)).
Id.
But,
a dog sniff that does not unreasonably prolong
the traffic stop is not a search subject to
the Fourth Amendment, and based on this
- 11 -
(citing
principle, the Supreme Court has "rejected the
notion that the shift in purpose from a lawful
traffic stop into a drug investigation was
unlawful because it was not supported by any
reasonable suspicion."
Id. at *4 (citing Muehler v. Mena, 544 U.S. 93 (2005)).
Indeed, traffic stops of fourteen minutes, United States v.
Purcell, 236 F.3d 1274, 1279 (11th Cir.), cert. denied, 534 U.S.
830 (2001), to fifty minutes duration, United States v. Hardy, 855
F.2d 753, 761 (11th Cir. 1988), cert. denied, 489 U.S. 1019 (1989),
have been approved.
Rigid time limitations and bright-line rules
have been rejected and "[r]easonableness is measured by examining
the totality of he circumstances."
United States v. Purcell, 236
F.3d at 1279 (citation omitted).
Based on the record before the Court, the trial court took
into account the totality of the circumstances presented during the
traffic stop, as the court found it was not unreasonable for Deputy
Boals to take sixteen minutes to conduct the stop under the
circumstances presented to him.
Ex. 1 at 274-75.
Here, the trial
court concluded that the officer's testimony was credible, finding
the officer checked Petitioner's license, inspected the trailer
lights, instructed Petitioner to take his foot off of the brake
pedal, conducted an additional inspection of the trailer, and dealt
with traffic issues during the stop.
Id.
And, of great import,
the court found that the officer actually wrote the citation after
the canine unit arrived.
Id.
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Upon review, the issues presented in ground one, the legality
of the traffic stop, the duration of the traffic stop, and the
certification and reliability of the canine that conducted the
search, are barred from this Court's consideration under Stone v.
Powell.
Ground one is not cognizable in a federal habeas corpus
proceeding because Petitioner had a full and fair opportunity to
litigate the Fourth Amendment issue and took full advantage of that
opportunity.
The trial court made explicit findings on matters
essential to the Fourth Amendment issue.
The trial court denied
the Fourth Amendment claim, and the appellate court affirmed.
Under the principles of Stone v. Powell, federal habeas review of
Petitioner's claim is precluded.
See Streets v. Sec'y Dep't of
Corr., No. 8:10-cv-1131-T-33TGW, 2011 WL 3171263, at *12 (M.D. Fla.
July 27, 2011) (finding "Stone bars federal habeas review" of a
Fourth Amendment claim when "Florida clearly afforded [Petitioner]
a full and fair opportunity to litigate" the claim).
Thus, ground
one, asserting a Fourth Amendment violation, is barred and will not
be addressed by this Court.
V.
Ground Two
In his second ground, Petitioner raises a Sixth Amendment
claim contending he received the ineffective assistance of trial
counsel based on counsel's failure to introduce at the suppression
hearing the canine's track records to impeach the testimony of
Officer Deloach regarding the canine's reliability. This claim was
raised by Petitioner in his post-conviction motion, and rejected by
- 13 -
the trial court.
The trial court, in considering the claim of
ineffective assistance of counsel, recognized the two-prong test
set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984).
The court, in denying this ground, held:
After a review, although it appears that
there was no extensive challenge by Trial
Counsel during the suppression hearing in
regards to the drug dog's reliability and
"track record", during cross examination,
there was testimony brought out by the State,
noting that the drug dog had been used several
times in the past with apparent success in
those cases. (See Collective Appendix A, Page
84, Transcript of Motion to Suppress Hearing
held on September 11, 2007).
Additional
review of the Court file and Transcript of the
Motion to Suppress hearing shows that in
addition to the other compelling arguments
pursued
by
Trial
Counsel,
the
dog's
certification was challenged extensively both
in the written Motion and at the hearing. As
noted in Watterhouse [sic], above, the
Defendant is not entitled to perfect or error
free Counsel, only to reasonably effective
Counsel. With the evidence (although sparse)
brought out that the drug dog had been used
several times in the past with success, it
could be concluded that Trial Counsel's
strategy not to pursue an extensive challenge
of the drug dog's track record may have been
sound.
Thus, the Court
the first or the
Strickland test above
Defendant's Amended
summarily denied.
concludes that neither
second prongs of the
has been met. Thus, the
Supplemental Claim is
- 14 -
Ex. 22 at 4.
On August 24, 2010, the decision was per curiam
affirmed by the Fifth District Court of Appeal.3
mandate issued on October 8, 2010.
Ex. 28.
The
Ex. 31.
Upon review, there was no unreasonable application of clearly
established law in the state courts' decisions to reject the
Strickland ineffectiveness claim.
Indeed, the decisions rejecting
the claim of ineffective assistance of trial counsel are entitled
to deference under AEDPA. See 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."), cert. denied, 544 U.S. 982 (2005).
The
adjudications of the state courts resulted in decisions that
involved a reasonable application of clearly established federal
law, as determined by the United States Supreme Court.
Therefore,
Petitioner is not entitled to relief on ground two, the claim of
ineffective assistance of trial counsel, because the state courts'
decisions were not contrary to clearly established federal law, did
not involve an unreasonable application of clearly established
3
Although in his Notice Petitioner references Shelton v.
Sec'y, Dep't of Corr., 802 F.Supp.2d 1289 (M.D. Fla. 2011) for the
proposition that a per curiam affirmance is not an adjudication on
the merits, this assertion has been soundly rejected by the
Eleventh Circuit. See Shelton v. Sec'y, Dep't of Corr., 691 F.3d
1348, 1353 (11th Cir. 2012), reversing the decision of the Middle
District of Florida. This Court is compelled to presume that the
Fifth District Court of Appeal rendered an adjudication on the
merits entitled to AEDPA deference.
- 15 -
federal law, and were not based on an unreasonable determination of
the facts in light of the evidence presented in the state court
proceedings.
Of
See Response at 13-17.
note,
at
the
suppression
hearing,
Detective
Deloach
testified that the dog had never alerted falsely, explaining that
there were, of course, occasions where the dog would make a
positive alert and no drugs would be found in a vehicle, but this
was due to the presence of paraphernalia or drugs in the vehicle in
the past.
Ex. 1 at 395-96.
Detective Deloach provided some
background as to K-9 Max's training, stating that Max had been
assigned to him since April of 2006, and the search was conducted
on January 19, 2007.
Id. at 387, 389.
Detective Deloach attested
that both he and the dog had gone through training.
Id. at 397.
Most of the training was done through the Sheriff's Office. Id. at
398.
Detective Deloach described Max's training as "a passive
alert."
Id. at 392.
Finally, there was testimony that in this
instance, Max alerted at both vehicles, and methamphetamine was
found in both vehicles.
Id. at 376, 393.
Deference is due to the decisions of the state courts.
Petitioner is not entitled to habeas relief on ground two.
VI.
Ground Three
In his third and final ground, Petitioner raises a Sixth
Amendment claim, alleging the ineffective assistance of counsel for
failure to argue at the suppression hearing that Petitioner's truck
was
equipped
with
daytime
running
- 16 -
lights
(DRL)
which
are
automatically engaged whenever the engine is on.
raised in a post-conviction motion.
This claim was
The trial court considered
Petitioner's claim that "Trial Counsel should have argued that the
Defendant's daytime running lamps were illuminated instead of his
headlights/taillights being turned on a the time of his traffic
stop."
Ex. 19 at 104, page 2.
review set forth in Strickland.
The court applied the standard of
Id.
It held:
After review of the transcripts, it is
clear that witness Deputy Anton Boals and
witness Homer Deloach testified that the
headlights were on and Boals testified that
the taillights were off.
(See Appendix B,
Motion to Suppress Transcripts, Pages 17-50
and Page 86). The Court agrees with the State
that the case Andrews v. State, 540 So.2d 210
(Fla. 4 the [sic] DCA 1989) was discussed in
detail at the Motion hearing. In Andrews, the
Court dealt specifically with the issue of the
requirement for taillights to properly work if
the headlights are turned on. Based on this
argument and other arguments made surrounding
whether there was sufficient probable cause
for the stop, it appears that had Trial
counsel made the argument regarding the
"running lamps", the outcome of the proceeding
would not likely have been any different.
Thus, the second prong of Strickland would
have not been met and this Ground should be
summarily denied as well.
Ex. 19, at 104, page 4.
This decision was per curiam affirmed by
the Fifth District Court of Appeal.
Ex. 28.
The decisions of the state trial and appellate courts are
entitled to deference under AEDPA.
The adjudications of the state
courts resulted in decisions that involved a reasonable application
of clearly established federal law, as determined by the United
- 17 -
States Supreme Court.
Therefore, Petitioner is not entitled to
relief on ground three of the Petition, a claim of ineffective
assistance of trial counsel, because the state courts' decisions
were not contrary to clearly established federal law, did not
involve an unreasonable application of clearly established federal
law, and were not based on an unreasonable determination of the
facts in light of the evidence presented in the state court
proceedings.
In the alternative, this claim has no merit.
17.
See Response at
The testimony from the suppression hearing was that the
headlights were on, but the taillights were not on.
362.
Ex. 1 at 334,
It was confirmed, by inspection, that the taillights were
inoperative.4
Id. at 337.
Finally, the statute at issue concerns
head lamps or auxiliary driving lamps, not daytime running lights.
Fla. Stat. § 316.221(2).
VII.
If
Petitioner
Certificate of Appealability
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
4
Apparently there was a battery connected to the taillights,
but the taillights were inoperable. Ex. 1 at 356.
- 18 -
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.
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 for Writ of Habeas Corpus (Doc. #1) is
DENIED, and this action is DISMISSED WITH PREJUDICE.
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2.
The Clerk of the Court shall enter judgment accordingly
and close this case.
3.
If Petitioner appeals the denial of his 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.
DONE AND ORDERED at Jacksonville, Florida, this 16th day of
November, 2012.
sa 11/13
c:
Gerald Boyd
Ass't A.G. (Compton)
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