Edwards v. Secretary, Department of Corrections, et al
Filing
25
ORDER denying the Petition, 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 11/13/2013. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ROY JAMES EDWARDS,
Petitioner,
vs.
Case No. 3:11-cv-310-J-37JBT
SECRETARY, DOC, et al.,
Respondents.
ORDER
Petitioner Roy James Edwards filed a pro se Petition for Writ
of Habeas Corpus (Petition) (Doc. #1) pursuant to 28 U.S.C. § 2254
on March 30, 2011 pursuant to the mailbox rule.
It challenges a
2007 state court (Duval County) conviction for possession of a
firearm by a convicted felon and two counts of aggravated assault.
Nine grounds for habeas relief are raised.
Respondents filed a
Response to Petition for Habeas Corpus (Response) (Doc. #15)1 with
Exhibits
(Doc.
#16)
(Ex.).2
Petitioner
filed
his
Reply
to
Respondents' Response to Petition for Habeas Corpus (Doc. #20)
(Reply) with Exhibits.
See Order to Show Cause and Notice to
1
Respondents calculate the Petition is timely, Response at 3,
and the Court accepts this calculation.
2
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.
Otherwise, the page
number on the particular document will be referenced.
Petitioner (Doc. #6).
No evidentiary proceedings are required in
this Court.
STANDARD OF REVIEW
The Court will analyze Petitioner's claim 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
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
- 2 -
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).
PROCEDURAL HISTORY
Upon
review
of
the
record,
the
following
transpired.
Petitioner was charged by a Second Amended Information with two
counts of possession of a firearm by a convicted felon, two counts
of aggravated assault, and carrying a concealed weapon.
31-32.
Ex. A at
The Arrest and Booking Report, in pertinent part, contains
the following description:
On 07/05/06 at 0150, myself and Ofc. G. Osilka
responded to 3406 Rogero Rd in reference to an
alleged assault involving a firearm.
Upon arrival, we found victim #1 (Ms. Foster)
and victim #2 (Mr. Southall) standing inside
the house with the door standing open. Ms.
Foster began telling us that she and Mr.
Southall (boyfriend) were threatened at
gunpoint by a known drug dealer they called
"Shorty" (suspect).
They said he was also
carrying brass knuckles in his other hand.
She further stated that the suspect punched
her on the left side of the face earlier in
the night, while the suspect and the witness
(Ms. Dinkins/roommate of victims) were arguing
outside the house.
About that time, both
victims observed the listed vehicle drive by
and shouted, "There he goes now . . . . and he
has a gun!" They pointed to a blue mid-size
car going northbound on Rogero Rd.
The
vehicle was stopped in the 5700 block of Ft.
Caroline Rd without incident. The suspect was
driving and Ms. Dinkins (witness) was the only
passenger. I asked the suspect if he was at
the victims' residence earlier and he replied.
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"Yes . . . . I know what this is about". I
then asked if there were any weapons in the
car and he said, "No".
When asked if he
minded if I checked the car for weapons, he
initially said, Why? . . . . not really". The
suspect was detained outside the car, at which
time a 9mm pistol was discovered by Ofc.
Osilka behind a child's car seat located in
the backseat. I located some brass knuckles
in the pocket on the back side of the driver's
seat, clearly reachable from the driver's
position.
The suspect was read his Miranda warning via
card, and he voluntarily signed a rights form.
He said he was a convicted felon and knew he
should not have a gun in the car, however, he
said the gun belonged to his fiancee and it
was kept there for safety reasons. As for the
brass knuckles, the suspect said it was a gift
from his wife and they have never been moved
from the seat pocket.
ID/Records (Id. #64258) verified
suspect was a convicted felon.
that
the
The suspect was taken back to the residence
where both victims positively identified the
suspect.
Ms. Foster said the suspect
approached her while she was standing in the
doorway and said, "I'm gonna kill your f______
ass", while pointing a gun at her head. Mr.
Southall said he was concerned for Ms.
Foster's safety and begged the suspect to just
leave.
Mr. Southall said the suspect then
turned the gun on him and said, 'If you f___
me one more time or call the police, I'll kill
both you all!" Both victims said the suspect
then left in a blue car with wire rims along
with the witness, Ms. Dinkins.
The suspect denied ever threatening the
victims, but admitted to having only an
argument
with
Ms.
Dinkins
outside
the
residence.
The suspect's car was seized for forfeiture
proceedings.
- 4 -
Id. at 2.
The state provided Notice of Intent to Classify Defendant as
an Habitual Felony Offender.
Id. at 88.
Initially, Regina L.
Wright, an Assistant Public Defender, represented Petitioner.
Id.
at 22. In the August 2, 2006, State's Discovery Exhibit and Demand
for Reciprocal Discovery, Cynthia Gail Dinkins is listed as a
Category
A
witness,
Jacksonville, Florida.
with
an
address
Id. at 13.
of
3604
Rogero
Road,
On September 1, 2006, the state
filed Amended Discovery, listing Ms. Dinkins' address as 3707 St.
Isbel [sic] Drive, Jacksonville, Florida.
Id. at 20.
Thereafter,
on September 12, 2006, defense counsel filed a Motion for More
Definite Address claiming that Gail Dinkins could not be located at
3707 St. Isabel [sic] Drive East.
In December, 2006, Katherine L. Littell, an Assistant Public
Defender, filed three motions in limine: (1) Motion in Limine 1,
concerning the 911 recording, id. at 39-40; (2) Motion in Limine
II, concerning the brass knuckles, id. at 41-42; and (3) Motion in
Limine
III,
concerning
testimony
with
regard
to
Petitioner
"screaming and yelling at his girlfriend, Cynthia Dinkins, inside
the house, that he was standing over Ms. Dinkins threatening
her[,]" and with respect to the threats to and/or assaults of the
victims/witnesses, id. at 43.
On December 7, 2006, the parties
entered into a written stipulation that Petitioner was convicted of
a felony on July 10, 1998.
Id. at 45.
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After a jury trial on count five, a charge of possession of a
firearm by a convicted felon, the jury returned a guilty verdict,
finding Petitioner's "possession was actual possession, and not
only constructive possession."
Id. at 73.
Petitioner moved for
a new trial, and among other issues, presented a claim that the
officer who testified the firearm was operable was not qualified as
an expert.
Id. at 74.
On February 15, 2007, the trial court
denied the motion for new trial.
Id. at 76.
were entered on February 22, 2007.
sentenced
Petitioner
to
offender.
Id. at 92-94.
Judgment and sentence
Id. at 89-94.
twenty
years
as
an
The trial court
habitual
felony
On March 8, 2007, Ms. Littell filed a
notice of appeal on count five.
Id. at 112.
In a proceeding on March 1, 2007, in discussing the up-coming
trial
on
counts
two
and
four
of
the
information,
Plaintiff
announced a conflict with counsel and a desire to proceed pro se.
Ex. F at 21-26.
The trial court found no basis to conclude that
counsel was rendering ineffective assistance, and scheduled a
hearing on whether Petitioner would be allowed to proceed pro se.
Id. at 26-28.
On March 2, 2007, the trial court, after hearing
sworn testimony from Petitioner, discharged that office of the
Public Defender, and allowed Petitioner to represent himself on
counts two and four.
Id. at 30-39.
Thereafter, on March 14, 2007,
Petitioner signed a Plea of No Contest and Negotiated Sentence on
counts two and four.
Ex. A at 98-99.
The trial court entered
judgment and sentence on two counts of aggravated assault on March
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14,
2007,
and
sentenced
Petitioner
to
concurrent
four-year
sentences.
On direct appeal (count five), M. Gene Stephens, and Assistant
Public Defender, filed an Anders3 brief.
Ex. G.
On April 18,
2008, the First District Court of Appeal affirmed per curiam.
I.
The mandate issued on June 5, 2008.
Ex.
Ex. PD-2 at 2.
On June 17, 2008, pursuant to the mailbox rule, Petitioner
filed a pro se Rule 3.850 motion in the trial court.
33.
Ex. K at 1-
Through counsel, Petitioner filed a Supplemental Motion to
Vacate/Set Aside Judgment and Sentence.
Id. at 38-40.
The trial
court conducted an evidentiary hearing on August 19, 2009.
71-160.
Jonathan Sacks, Esquire, represented Petitioner in the
post conviction proceeding.
Id.
The trial court, in its order of
January 8, 2010, denied post-conviction relief.
Petitioner appealed.
brief.
Id. at
Ex. M.
Answer Brief.
Ex. L at 210.
Id. at 41-58.
He filed a pro se appeal
The state filed a Notice that State Will Not File
Ex. N.
The First District Court of Appeal per
curiam affirmed on October 5, 2010.
November 3, 2010.
Ex. R.
denied rehearing en banc.4
Ex. O.
The mandate issued on
On January 14, 2011, the appellate court
Ex. PD-3 at 2.
On June 26, 2008, Petitioner submitted a petition for writ of
certiorari to the Supreme Court of the United States.
3
4
Ex. S.
The
Anders v. California, 386 U.S. 738 (1967).
The appellate court did not re-issue the mandate.
at 3.
- 7 -
Response
state filed a notice that it did not intend to respond to the
petition. Ex. T.
The Supreme Court denied the petition for a writ
of certiorari on October 6, 2008.
Ex. U.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Ground One
The first ground of the Petition is: "Petitioner was deprived
of his Sixth and Fourteenth Amendment of U.S. Constitution right to
reasonable assistance of counsel, and due process of law[.]"
Petition
at
5.5
In
this
ground,
Petitioner
raises
a
Sixth
Amendment claim asserting he received ineffective assistance of
trial
counsel.
In
evaluating
the
performance
prong
of
the
Strickland ineffectiveness inquiry, the Court recognizes that there
is a strong presumption in favor of competence.
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).
After conducting an evidentiary hearing, the trial court
denied the claim of ineffective assistance of trial counsel raised
in ground one.
5
Ex. K at 42-45.
First, the court recognized the
When referencing the Petition, the Court hereinafter refers
to the Electronic Filing System designated page numbers.
- 8 -
standard
set
forth
in
Strickland
ineffective assistance of counsel.
for
reviewing
Id. at 42.
a
claim
of
Next, the court, in
substantial detail, addressed the ground, made findings of fact,
and denied the claim.
Id. at 42-45.
In denying post conviction
relief, the court said:
In ground one, the Defendant asserts that
counsel was ineffective for failing to
adequately investigate his case prior to
trial.
The Defendant claims that counsel
failed to investigate the incident, and
neglected to interview witnesses and the
victims of the assault.
More specifically,
the Defendant claims that counsel failed to
properly investigate the 911 tape concerning
the incident for which the Defendant was
convicted. The Defendant further states that
counsel failed to investigate the serial
number on the gun which the Defendant was
convicted of possessing during the commission
of the crime, which the Defendant claims would
have shown that he was not the owner of the
gun.
Additionally, the Defendant argues
counsel failed to inquire as to who actually
owned the car which the Defendant was
apprehended in on the night of the crime. The
Defendant maintains that Rebecca Monnin was
the owner [of] both the vehicle and the
handgun, and therefore, the Defendant was not
in possession of the handgun on the night of
the incident. Finally, the Defendant claims
that counsel was ineffective for failing to
depose
all
Category
"A"
witnesses,
specifically, Ms. Cynthia Dinkins.
With regards to the 911 tape, the
Defendant argues that this tape was essential
to the defense argument that he never
committed an aggravated assault against either
Mr. Southall or Ms. Foster.
At the
evidentiary hearing, counsel testified that
she had no recollection of the 911 tape.
(Exhibit "C," pages 43, 48-49.) In a followup email correspondence to the evidentiary
- 9 -
hearing, which was produced for the record,
counsel testified that there was a 911 tape in
the record, but that she could only assume
that she reviewed it, and that she could find
no notes regarding this tape. (Exhibit "D.")
Regardless of counsel's apparent neglect of
the 911 tape, the Defendant fails to state how
this 911 tape would have changed the outcome
of his trial had counsel investigated it
further. The defendant claims that this tape
was essential to the defense that he never
committed an aggravated assault against Mr.
Southall or Ms. Foster, but neglects to offer
any
explanation
as
to
why
or
how.
Accordingly, the Defendant has failed to
establish
that
there
is
a
reasonable
probability that the outcome of the proceeding
would have been different absent counsel's
alleged deficient performance.
Strickland,
466 U.S. at 687.
Ex. K at 42-43.
The court further explained:
With regards to counsel failing to
investigate the serial number of the gun, the
Defendant argues that had counsel researched
the serial number on the gun, it would have
been discovered that the gun was owned by
Rebecca Monnin, not the Defendant. However,
section 790.23, Florida Statutes, allows for
convictions based upon constructive possession
of a handgun. Therefore, actual ownership of
the gun is not needed for a conviction, as
proof of ownership of a handgun is not
required to establish constructive possession
under section 790.23. Johnson v. State, 685
So.2d 1369, 1371 (Fla. 2d DCA 1996). Counsel,
as she explained at the evidentiary hearing,
was well aware of this fact. (Exhibit "C,"
pages 43, 46-47.) However, for added measure,
counsel did request a gun history report from
the State Attorney's Office, who explained
that there was none. (Exhibit "C," page 24).
Furthermore, there were two civilian witnesses
whose account of this incident leading to this
conviction
placed
the
firearm
in
the
Defendant's possession at the time of the
- 10 -
incident. (Exhibit "C," page 46.) Under the
first prong of Strickland, it is required that
a
defendant
establish
that
counsel's
representation fell below "an objective
standard of reasonableness." 466 U.S. at 688.
Considering that this was a constructive
possession case, counsel's explanation at the
evidentiary hearing provides a sufficient
explanation for not further pursuing the gun
history in this case.
Ex. L at 44.
The court continued:
The Defendant also claims counsel was
ineffective for failing to investigate the
owner of the vehicle in which the Defendant
was apprehended.
The Defendant claims the
fact that Ms. Monnin was the owner of both the
gun and the vehicle is evidence which negates
any charge of possession of a firearm by a
convicted felon, and should have been pointed
out by counsel at trial.
For the reasons
stated
above
concerning
counsel
not
investigating the serial number of the gun,
counsel was also not ineffective for failing
to trace the owner of the vehicle.
Finally, the Defendant alleges that
counsel was ineffective for failing to depose
all Category "A" witnesses in this case.
Regarding the Defendant's assertion that
counsel failed to interview the victims in
this
case,
counsel
testified
at
the
evidentiary hearing that the previous counsel
for the Defendant in this same case had
already
deposed
all
of
the
necessary
witnesses, and therefore, there was no need to
do so again. (Exhibit "C," page 44.)
Ex. L at 44-45.
The
trial
court
concluded
that
defense
counsel
was
not
ineffective for the reasons stated in its order. Te First District
Court of Appeal affirmed the trial court's decision.
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Ex. O.
With regard to the 911 tape, defense counsel filed a Motion in
Limine 1, asking that the state be prohibited from introducing any
evidence related to the recording of the 911 call, asserting the
recording is inadmissible hearsay evidence, it is not an excited
utterance, it is cumulative evidence, and it is not probative but
is highly prejudicial.
the motion.
Ex. A at 39-40.
Id. at 39.
The trial court granted
Obviously counsel was well-aware of the
contents of the 911 tape and made a strategic decision to seek a
ruling to prevent its use by the state.
With
respect
to
ownership
of
the
gun,
defense
counsel
testified at the evidentiary hearing she was unable to obtain a gun
history report for the gun in question as the State Attorney
informed her there was none.
Ex. K at 93-94.
Defense counsel also
testified that "we weren't able to trace it[.]" Id. at 113.
However, she also explained to Petitioner that it did not matter
who owned the gun.
Id.
Instead, the focus would be on whether
Petitioner possessed the gun.
Id.
Here, as noted by Respondents,
two eyewitnesses testified that Petitioner possessed the gun.
Response at 5.
The question of ownership of the vehicle was not of
major import since Petitioner was apprehended while driving the
vehicle.
Finally, with respect to the claim of failure to depose
witnesses,
the
record
shows
Ms.
Wright,
an
Defender, deposed the officers and victims.
Assistant
Ex. M.
Public
At the
evidentiary hearing, Petitioner attested that the house where the
- 12 -
incident took place had been condemned, but Ms. Dinkins "would have
been on Isabella Street."
Ex. K at 131.
The record before the
Court reflects that Ms. Dinkins could not be found at that address.
Ex. A at 21.
The record also shows that when the subject of Ms.
Dinkins came up at trial, Ms. Littell said: "[a]nyway this woman is
gone, we haven't even deposed her."
Ex. D at 219.
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.
See Response at 5.
Petitioner is not entitled to relief on ground one of the
Petition, the claim of ineffective assistance of trial counsel.
Deference
under
AEDPA
should
be
given
to
the
state
courts'
decisions.
Petitioner raised the issue in his Rule 3.850 motion,
the
court
trial
affirmed.
denied
the
motion,
and
the
appellate
court
The state courts' adjudication of this claim is not
contrary to or an unreasonable application of Strickland, or based
on an unreasonable determination of the facts.
Ground Two
In the second ground, Petitioner claims:
"Petitioner was
deprived of his Fourth, Sixth, and Fourteenth Amendment of U.S.
Constitution right to privacy, reasonable assistance of counsel,
and due process of law."
Petition at 6.
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In essence, Petitioner
claims counsel violated the Sixth Amendment right to effective
assistance of trial counsel by failure to investigate an alleged
illegal search and seizure without a warrant or probable cause, and
failure to file a motion to suppress the seized evidence.
trial court rejected this claim and held:
In ground two, the Defendant avers that
counsel was ineffective for failing to
"investigate" the stop and search of the
vehicle which the Defendant was driving when
he was apprehended. The Defendant claims that
his drivers license was valid, he presented
valid car insurance, and that the car did not
belong to him. The Defendant further states
that
the
Jacksonville
Sheriff's
Office
officers did not inform him of the reason he
was being stopped until after two officers
searched the inside of his vehicle and the
Defendant was placed into custody.
The
Defendant claims that this constituted an
illegal search, where the officers hand [sic]
neither a warrant nor probable cause for the
search. The Defendant further claims that the
officers did not have the authority to search
beyond the immediate control of the Defendant,
and that there was no reason for the officers
to suspect that there was a weapon in the
vehicle. The Defendant refers to the stop as
an "investigative stop", and that counsel was
ineffective for failing to file a motion to
suppress at trial with respect to the evidence
of the handgun found during this search.
According to the Arrest and Booking
Report, the arresting officers arrived at a
residence in response to an alleged assault
involving a firearm. The two victims told the
officers that they were threatened at gunpoint
by the Defendant. While interviewing the two
victims, both victims observed a vehicle drive
by and contemporaneously notified the officers
at the scene that the Defendant was in that
vehicle and that he had a gun.
That same
vehicle was subsequently pulled over by police
shortly after the identification by the
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Id. The
victims the same night, with the Defendant
driving the vehicle.
The police asked the
Defendant whether he was at the victim[']s
residence earlier, and the Defendant stated,
"Yes . . . I know what this is about." The
officers asked the Defendant if there were any
weapons in the car, to which the Defendant
replied that there were not.
The officers
then asked the Defendant if he mind [sic] if
they search the vehicle, to which he replied,
"Why? . . . not really." The Defendant was
then detained outside of the vehicle, at which
time the officers found a 9mm pistol in the
back seat of the car. (Exhibit "E.")
Ex. K at 45-66.
The court explained:
With regards to the initial traffic stop
and detention, section 901.151(2), Florida
Statutes, reads:
Whenever any law enforcement officer
of this state encounters any person
under circumstances which reasonably
indicate
that
such
person
has
committed, is committing, or is
about to commit a violation of the
criminal laws of this state or the
criminal
ordinances
of
any
municipality or county, the officer
may temporarily detain such person
for the purpose of ascertaining the
identity of the person temporarily
detained
and
the
circumstances
surrounding the person's presence
abroad which led the officer to
believe
that
the
person
had
committed, was committing, or was
about to commit a criminal offense.
This law is a codification of the principle
that all warrantless seizures of a person must
be founded on at least a reasonable suspicion
that the individual seized is engaged in
wrongdoing. Cox v. State, 975 So. 2d 1163,
1166 (Fla. 1st DCA 2008); see also United
States v. Mendenhall, 466 U.S. 544, 552 (1980)
(noting that the Fourth Amendment requires all
searches and seizures to have "an objective
- 15 -
justification.") This applies to the stop of
a motor vehicle, as an officer's stopping a
person's motor vehicle constitutes a seizure
and detention under the Fourth Amendment.
Cox, 975 So. 2d at 166.
Ex. K at 46.
The court continued:
Whether
an
officer's
suspicion
is
reasonable is determined by the totality of
the circumstances that existed at the time and
is based solely on the facts known to the
officer before he made the stop. LaFontaine
v. State, 749 So. 2d 558, 560 (Fla. 2d DCA
2000). AS for vehicle stops, "[a]ll that is
required for a valid vehicle stop . . . is a
founded suspicion on the part of the officer
effectuating the stop that the occupants have
committed or are about to commit a crime."
London v. State, 540 So.2d 211, 213 (Fla. 2d
DCA 1989). The temporal proximity between the
tip, the police response, and the sighting of
the suspect is "of crucial significance" to
the determination of reasonable suspicion.
Highsmith v. State, 843 So. 2d 369, 370 (Fla.
2d DCA 2001).
In the instant case there is no question
that the arresting officer had reasonable
suspicion to stop the Defendant's car.
The
arresting officer was speaking to the two
victims, who earlier that night called in the
complaint to the police, when the victims
shouted to the officer that a passing car was
the vehicle the Defendant was driving that
night. The victims had just explained to the
officers that the Defendant had threatened
them at gunpoint, as well as struck one of
them. Therefore, the officers had reason to
believe that the Defendant had committed a
crime. In addition, the car was stopped by
the police on a nearby road just a short time
after this identification by the victims.
Ex. K at 46-47.
The court directly addressed the issue of whether the search
violated the Fourth Amendment:
- 16 -
The next issue is whether the search of
the car violated the Fourth Amendment, and
thus, should have been raised by counsel at a
suppression hearing.
In general, a law
enforcement officer may seek consent to search
a vehicle during a legal traffic stop, and the
officer
need
not
have
an
objective
justification or reasonable suspicion to ask
for consent to search.
Cox, 975 So. 2d at
1168.
Voluntary consent is an exception to
the warrant requirement. Id. Whether consent
is voluntary is a question of fact to be
determined
under
the
totality
of
the
circumstances
and
established
by
a
preponderance of the evidence.
Id.
To
conclude that a search is involuntary, the
court must find that the defendant's "will
[was] overborne and his capacity for selfdetermination
critically
impaired."
Schneckloth v. Bustamonte, 412 U.S. 218, 225
(1973).
In the instant case, the arresting
officer asked the Defendant if he minded if
the officer check the car for weapons, the
Defendant replied "Why? . . . Not really."
From
review
of
the
record,
nothing
demonstrates that the defendant's consent was
the produce [sic] of unlawful police coercion
which would render the consent involuntary.
Regarding the scope of the search, "[t]he
scope of a warrantless search of a car is no
broader or narrower than the scope of a search
authorized by a warrant supported by probable
cause." Kimball v. State, 951 So. 2d 35, 37
(Fla. 1st DCA 2007); United States v. Ross,
456 U.S. 798, 823 (1982).
The scope is
defined by the object of the search and the
places in which there is probable cause to
believe it may be found. Kimball, 951 So.2d
at 37.
"If probable cause justifies the
search of a lawfully stopped vehicle, it
justifies the search of every part of the
vehicle and its contents that my conceal the
object of the search." Id. (citing Ross, 456
U.S. at 825). Here, the officer was searching
the car for weapons, as the victims told the
officers that the Defendant was carrying a gun
and brass knuckles.
Thus, the Defendant's
assertion that the officer exceeded the scope
- 17 -
of the search for weapons by looking in the
back seat of the passenger compartment of the
vehicle is incorrect.
For the reasons given supra, counsel was
not ineffective for failing to pursue a motion
to suppress the evidence of the firearm found
in the vehicle. Applying Strickland, even if
counsel's conduct here was outside the wide
range of reasonable professional assistance,
and this Court finds that it was not, the
Defendant still cannot show that counsel's
deficient performance prejudiced the defense,
as the record demonstrates that the firearm
was obtained via a lawful stop and search of
the vehicle which the Defendant was driving.
466 U.S. at 687.
Ex. K at 47-48.
The appellate court affirmed the trial court's
decision.
Upon review, at a post-trial hearing on March 1, 2007, counsel
explained that Petitioner asked her to file a motion to suppress,
but she determined there was "no valid reason to do so."
25.
Ex. F at
And, with regard to the remaining two counts, counsel also
found no valid reason to file a motion to suppress.
Id. at 25-26.
In addition, at the evidentiary hearing on the post conviction
motion, counsel explained her decision not to file a motion to
suppress:
I did not feel that there was a suppression
issue and I reviewed the police report prior
to this hearing and that was based on the
police officer stopping the vehicle because
the witnesses had told them while they were
talking to them that the vehicle that just
drove by was Mr. Edwards, that there was a gun
in that car, so they, therefore, had a reason
to stop the vehicle.
Those witnesses were
reporting a crime and then, according to the
police report, Mr. Edwards agreed to let them
- 18 -
look in it. So I –- you know, I didn't –- did
not see a valid motion to suppress that I
could file.
Ex. K at 97.
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.
See Response at 6.
The decisions of the state courts are entitled to deference
under AEDPA.
The decisions 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 federal law, and were not based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings.
Ground Three
In his third ground, Petitioner raises another claim of
ineffective assistance of counsel. Petition at 8. He alleges that
counsel
failed
to
investigate
Petitioner's
background
for
mitigation evidence, including evidence of psychological problems.
Id.
In addition, he asserts that counsel's failure to call his
- 19 -
uncle
as
a
witness
at
performance by counsel.
sentencing
also
constituted
deficient
Id.
Petitioner raised this claim in his post conviction motion,
and the trial court denied the claim finding:
In ground three, the Defendant contends
that counsel was ineffective for failing [to]
investigate the Defendant's background and
present mitigation evidence at sentencing.
The Florida Supreme Court recently addressed
this issue in Pagan v. State, 34 Fla. L.
Weekly S561 (Fla. Oct. 1, 2009) . . . .
Even
if
counsel
should
have
presented
mitigating
evidence
at
sentencing,
the
Defendant still must show that counsel's
failure to do so prejudiced him. Anderson v.
State, 18 So. 3d 501, 512 (Fla. 2009). "In
assessing prejudice, we reweigh the evidence
in aggravation against the totality of the
mental health mitigation presented during the
postconviction
evidentiary
hearing
to
determine if our confidence in the outcome of
the penalty phase trial is undermined." Id.
(citing Hannon v. State, 941 So. 2d 1109, 1134
(Fla. 2006)); see also Asay v. State, 769 So.
2d 974, 985 (Fla. 2000) ("When evaluating
claims that counsel was ineffective for
failing to present mitigating evidence, this
Court has phrased the defendant's burden as
showing
that
counsel's
ineffectiveness
'deprived the defendant of a reliable penalty
phase proceeding.'")
Ex. K at 48-49.
The court considered and credited counsel's testimony as
follows:
At the evidentiary hearing counsel stated
that she met with the Defendant at the jail to
discuss sentencing, at which time he told her
that he did not wish to call any witnesses,
nor did he wish to speak himself at the
hearing.
(Exhibit "C," pages 30-31.)
When
- 20 -
asked if she considered having the Defendant
evaluated by doctors for any mitigation
evidence to present at sentencing, counsel
stated:
I did not. I looked through all my
notes that I received this morning
and there is no mention of me
getting him evaluated by a doctor or
that that was a concern or that he
had ever indicated to me that he had
any such issue. I can say that I'm
very liberal about getting my
clients evaluated.
I normally do
get them evaluated before a major
sentencing hearing, just in case a
psychologist had something that we
can use for mitigation.
But I
didn't have any concerns regarding
Mr. Edward[s]' mental health and he
made it pretty clear to me that he
did not want to present anything at
the sentencing hearing.
So I did
not do anything.
(Exhibit "C," pages 31-32.)
The Defendant
claims in his motion that he had previously
been diagnosed with post-traumatic stress
disorder.
The Defendant stated at the
evidentiary hearing that he told counsel of
this diagnosis, and that he wished to have his
uncle speak at the sentencing hearing.
(Exhibit "C," page 60.)
However, the
Defendant's
claims
are
completely
contradictory to what counsel stated on the
record at the evidentiary hearing. (Exhibit
"C," pages 30-32.) Furthermore, the Defendant
admitted that the uncle he wished to have
speak at the sentencing hearing knew little to
nothing about the Defendant's psychological
issues. (Exhibit "C," page 60.) In light of
the Court's decision in Pagan, 34 Fla. L.
Weekly S561, it is clear that counsel had no
absolute duty to present mitigating evidence
at sentencing in this case.
Further, not
calling any witnesses was reasonable since
counsel did not know of any witnesses to call,
nor did she know of, or have reason to
believe,
that
the
Defendant
had
any
- 21 -
psychological issues which warranted an
evaluation
by
a
medical
professional.
Therefore,
counsel[']s
representation
regarding this matter was not ineffective.
The Defendant has also failed to demonstrate
that counsel's failure to call any witnesses
at sentencing deprived the defendant of a
reliable
penalty
phase
proceeding,
and
therefore cannot show that he suffered any
prejudice. Asay, 769 So.2d at 985.
Ex. K at 49-50.
The First District Court of Appeal affirmed this
decision.
The transcript from the sentencing proceeding on February 22,
2007, shows that when the trial court asked if Petitioner wanted to
present evidence concerning the habitual felony offender issue,
defense counsel conferred with Petitioner.
was made concerning one prior offense.
Ex. A at 147.
Id. at 148.
Mention
When the court
inquired as to whether or not the defense wished to offer evidence
at sentencing, defense counsel responded that there would be no
witnesses, except Petitioner.
Id. at 149.
With respect to the
presentence investigation, defense counsel again conferred with
Petitioner.
Id. at 150.
Thereafter, defense counsel mentioned a
prior offense and Petitioner's concerns about that listed offense.
Id. Thereafter, Petitioner provided sworn testimony. When counsel
asked if Petitioner had any mental health issues, he responded:
"[o]nly in prison once."
with
a
stress
Id. at 153.
disorder,
suffered
He said he was diagnosed
from
depression,
and
Department of Corrections classified him as a "psyche 3."
When
asked
about
the
"psyche
3"
- 22 -
classification,
the
Id.
Petitioner
explained that he needed to be watched now and then, and on
occasion might need medication.
Id.
However, when asked whether
the stress disorder had something to do with the current offense,
Petitioner responded: "[b]asically I just think that alcohol and
the marijuana played a role in my incident and I made a bad choice
with that."
Id. at 154.
Petitioner repeated he made a bad choice.
Id.
During
argument,
counsel
referenced
the
presentence
investigation report showing Petitioner had a difficult young life
as he was raised in foster homes with limited family in the area.
Id. at 156.
She stated: "[a]s you can see, I didn't even call any
witnesses to speak on his own behalf.
It's Mr. Edwards and myself
arguing in front of the court today."6
Id.
She also referenced
that Petitioner suffers from depression and has a problem dealing
with stress.
Id.
Petitioner did not interject that he desired to
have his uncle called to testify.
Concerning ground three, 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
6
At the post conviction evidentiary hearing, Petitioner
testified that his uncle was not present at the sentencing
proceeding. Ex. K at 144.
- 23 -
since he has neither shown deficient performance nor resulting
prejudice.
See Response at 6-7.
Upon review, there was no unreasonable application of clearly
established law in the state court's decision to reject the
Strickland ineffectiveness claim.
Indeed, the decision rejecting
the claim of ineffective assistance of trial counsel is entitled to
deference under AEDPA.
The adjudication 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 three of the Petition, 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 federal law, and
were not based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings.
Ground Four
In his fourth ground, Petitioner claims that trial counsel
failed to object to evidence of government misconduct or to file a
motion to suppress the evidence.
Petition at 9.
Petitioner
alleges that the state prosecutor conspired with the arresting
officer to take the firearm out of the county to test the operation
of the gun.
Id.
The trial court denied Petitioner's claim.
In
doing so, the court noted that there was no suggestion that the gun
was tampered with in any way.
Ex. K at 51.
- 24 -
Additionally, the
court recognized that the focus of Petitioner's claim was that the
officer violated an internal operating order by taking the gun
home.7
Id.
The court concluded that "a mere break in the chain of
custody is not in and of itself a basis for exclusion of physical
evidence."
Id. (citation omitted).
Indeed, the court found that
Petitioner could not establish with any likelihood that the firearm
would have been suppressed had counsel filed a motion to suppress.
Id.
As a result, the court concluded that Petitioner has not show
prejudice, failing to satisfy the second prong under Strickland.
Id. at 51-52.
In sum, the trial court denied post conviction
relief, and the appellate court affirmed.
At trial, Officer Jeff Brown testified that he test-fired the
firearm and it was found to be operable.
Ex. D at 194.
He
explained that he took the firearm to his home, located in Baker
County, and test-fired it. Id. at 197. Officer Brown returned the
firearm to the Assistant State Attorney, and Officer Brown notified
the Assistant State Attorney of the date he fired the weapon.
at 198.
Id.
Defense counsel objected to the admission of the test-
fired casings, but the trial court admitted the evidence of the
casings finding "[t]his goes to the weight of the evidence."
Id.
at 198-99. Defense counsel cross-examined Officer Brown concerning
7
During the post conviction evidentiary hearing, defense
counsel testified that she considered any evidence of a violation
of an internal operational procedure as going to impeachment of the
witness, not grounds for a motion to suppress. Ex. K at 103.
- 25 -
his test-firing the weapon at his home.
Id. at 214-15.
Brown
explained that he conferred with the State Attorney prior to taking
the weapon home.
Id. at 215-16.
There is no assertion or suggestion by Petitioner that the
firearm found in the vehicle was not operational.
The Arrest and
Booking Report reflects that Petitioner told the officers the gun
"belonged to his fiancee and it was kept there for safety reasons."
Ex. A at 2.
Of import, Gene Southall, a victim/witness, testified
that the gun introduced at trial was the same gun and it was in the
same condition as it was the night Petitioner pointed it at his
head.
Ex. D at 168.
Based on the above, 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
Petitioner has alleged should have been provided.
that
Accordingly,
Petitioner's ineffectiveness claim is without merit since he has
neither shown deficient performance nor resulting prejudice.
The decisions of the state courts are entitled to deference
under AEDPA.
They 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
four of the Petition, 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 federal law, and were not based
- 26 -
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings.
Ground Five
In his fifth ground, Petitioner claims that his counsel was
ineffective for failure to object to the imposition of a public
Defender lien without proper notice by the court.
Petition at 11.
Respondents rely on the decision of the trial court in denying this
claim.
Response at 9.
claim has no merit.
Upon review of the record, Petitioner's
At sentencing the trial court announced that
it was imposing a $1,000.00 Public Defender lien.
Ex. A at 158.
The court advised Petitioner that he had the right to contest the
lien.
Id.
Petitioner was further advised that he had to do it in
writing within thirty days.
Id.
The trial court denied this claim finding full compliance with
statutory
requirements
on
the
part
of
the
ineffectiveness of counsel for failing to object.
court
and
no
Ex. K at 53-54.
The trial court's denial of Petitioner's claim of ineffective
assistance of counsel was affirmed by the First District Court of
Appeal.
Thus, there is a qualifying decision under AEDPA.
The adjudication of this claim of ineffective assistance of
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.
Petitioner has not established the first prong of
- 27 -
Strickland, that trial counsel's performance was deficient.
has
he
shown
Strickland.
prejudice,
as
required
by
the
second
prong
Nor
of
Therefore, ground five of the Petition does not
warrant habeas relief.
Ground Six
In ground six, Petitioner claims trial counsel was ineffective
for failure to attack an unverified information.
Specifically,
Petitioner
complains
that
the
Petition at 12.
information
unsupported by a sworn affidavit from a material witness.
trial
court
denied
this
ground
finding
that
the
was
The
information
contained the "testimony of the designated assistant state attorney
who properly certified that testimony under oath has been received
from the material witness(es) for the offense."
Ex. K at 55.
The
court further found that there was no valid basis for an objection
to the information; therefore, Petitioner failed to satisfy either
prong of Strickland.
Id.
Upon review, the record shows that the trial court made a
finding of probable cause to detain on July 5, 2006.
Ex. A at 9.
The state filed a second amended information on November 28, 2006.
Id. at 31-32.
The Arrest and Booking Report contains the sworn
document by a law enforcement officer.
Id. at 2-3.
The second
amended information is signed by the Assistant State Attorney and
contains the following:
Personally appeared before me, Alan
Mizrahi, Assistant State Attorney, for the
Fourth Judicial Circuit of the State of
- 28 -
Florida, in and for Duval County, who is
personally known to me, and who being first
duly sworn, says that the allegations as set
forth in the foregoing information are based
upon facts that have been sworn to as true,
and which, if true, would constitute the
offense therein charged, and that this
prosecution is instituted in good faith, and
hereby certifies that testimony under oath has
been received from the material witness(es)
for the offense.
Id. at 31-32.
Petitioner's assertion in ground six is belied by
the record.8
Based on all of the above, Petitioner is not entitled to
habeas corpus relief on a claim of ineffective assistance of
counsel for failure to attack the information.
The sworn oath of
the prosecutor that he or she received testimony under oath from
the material witness or witnesses for the offense is sufficient
under Florida law.
4540054,
at
*17
Bromell v. McNeil, No. 07-61917-CIV, 2008 WL
(S.D.
Fla.
Oct.
10,
2008)
(not
reported
in
F.Supp.2d); Ruiz v. Sec'y, Dep't of Corr., No. 8:06-cv-2086-T17TGW, 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,
witness).
8
unsupported
by
a
sworn
statement
of
a
material
As explained in State v. Perkins, 977 So.2d 643, 646
Assuming the second amended information had been dismissed,
the state would have simply cured the deficiency by filing a new
information. Petitioner has not, and cannot, allege the second
amended information fails to state a crime. Therefore, the trial
court was not deprived of jurisdiction.
- 29 -
(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.
Petitioner is not entitled to relief on ground six of the
Petition, the claim of ineffective assistance of trial counsel.
Deference, under AEDPA, should be given to the state courts'
decisions.
Petitioner raised the issue in his post conviction
motion, the trial court denied the motion, and the appellate court
affirmed.
The state courts' adjudication of this claim is not
contrary to or an unreasonable application of Strickland, or based
on an unreasonable determination of the facts.
Ground Seven
In his seventh ground, Petitioner complains that trial counsel
was ineffective for failure to inform the trial court of an
irreconcilable conflict between counsel and Petitioner. In denying
this ground, the trial court said:
In ground eight, the Defendant claims
that counsel was ineffective for failing to
inform this Court of the alleged conflict
between herself and the Defendant. This Court
notes that ". . . 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."
Gonzales v. State, 993 So.2d 55, 57 (Fla. 5th
DCA 2008). In the instant case there was a
- 30 -
Nelson hearing conducted, and this Court
determined that counsel was not providing
ineffective assistance.
At the evidentiary
hearing counsel testified as follows regarding
her relationship with the Defendant:
Mr. Skinner: Now regarding issue No.
8, and Mr. Edwards is alleging that
you failed to tell the court of an
irreconcilable conflict between him
an[d] yourself. First, did you ever
feel the need to bring to the Court
bring
that
to
the
Court's
attention, and, if so, tell us why
or why not?
Ms. Littell: Not until we had the
Nelson hearing and obviously that
came about at some, you know, at
some point.
But prior to that,
which was after sentencing his - on
his case, Mr. Edwards and I did have
a difficult relationship, but it
certainly wasn't anything that I
felt prohibited me from representing
him to my bets [sic] ability, so I
never raised that issue with the
Court.
Mr. Skinner: Okay.
And did you
represent him to the best of you[r]
abilities?
Mr. Littell: Yes, I did.
(Exhibit, "C," page 38.) Here, there was no
legal or ethical conflict between counsel and
the Defendant which would require counsel to
file a motion to withdraw.
Counsel stated
that her relationship with the Defendant,
albeit strained, did not prevent her from
effectively carrying out her duties as
counsel.
Upon review of he record, nothing
suggests that counsel's representation fell
below any reasonable standard of assistance in
this case, and therefore the Defendant's claim
fails
to
satisfy
either
prong
of
the
Strickland test. 466 U.S. at 687.
- 31 -
Ex. K at 55-56 (footnote omitted).
Of import, after he was convicted and sentenced on the
possession of a firearm by a convicted felon count, Petitioner
complained to the court about a conflict with counsel.
He raised
the matter on March 1, 2007, after the February 22, 2007 sentencing
proceedings.
Ex. F at 21.
Generally, he complained that counsel
failed to file some things, she failed to work with him, and he did
not get all of the documentation from the first case.
22.
Id. at 21-
When the court asked Petitioner to be specific as to what
counsel failed to provide him, he responded sworn statements.
at 23.
Id.
Petitioner admitted that he already had copies of the
deposition transcripts.
Id.
Both the prosecutor and defense
counsel advised the court that there were no sworn statements other
than
the
Petitioner.
depositions,
which
had
already
been
provided
to
Id. at 23-24.
Ms. Littell stated that she previously provided Petitioner
with the discovery documents in the case, but she would provide him
with a second copy. Id. at 24. Petitioner complained that counsel
failed to file "things" that were important to his defense.
25.
Id. at
When the court asked counsel if she refused to file anything
in the possession of a firearm case, she responded that Petitioner
asked her to file a motion to suppress, and she declined to do so
because she found no valid reason to file one.
Id.
With respect
to the aggravated assault charges, counsel said that she had not
- 32 -
yet discussed potential motions to suppress with her client, but
she had not found any grounds for such.
Id. at 25-26.
Petitioner responded that "it's a conflict of interest for
counsel going forward with me."
Id.
He stated that they "don't
get along," and "[s]he's not working in the best of her ability
towards this case toward me."
absolutely
no
basis
to
Id.
conclude
The court concluded "there is
that
counsel
is
rendering
ineffective assistance of counsel which means I am not going to
order a new lawyer for you."
Id. at 26-27.
Petitioner expressed
a desire to represent himself, id. at 27, and the court considered
that request on March 2, 2007.
Ex. F at 30-39.
After hearing from
Petitioner, the court discharged the Public Defender.
Id. at 39.
Upon review, there was no unreasonable application of clearly
established law in the state court's decision to reject the
Strickland ineffectiveness claim.
The First District Court of
Appeal affirmed the trial court's decision.
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 States Supreme Court.
Therefore, Petitioner is not entitled to relief on ground seven,
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
- 33 -
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.
Ground Eight
In his final claim of ineffective assistance of trial counsel,
Petitioner
claims
his
counsel's
failure
amounted to deficient performance.9
to
call
Ms.
Dinkins
The trial court, in denying
this ground, credited the testimony of defense counsel at the
evidentiary hearing that she was concerned that Ms. Dinkins would
have testified that Petitioner was driving the vehicle, there was
a gun in the vehicle, and Petitioner was a convicted felon.
at
57.
Defense
counsel
explained
that
she
considered
Ex. K
this
testimony detrimental to the defense because it would have placed
Petitioner in close proximity to the firearm immediately after the
two victims/witnesses told the police that Petitioner displayed a
firearm and drove off in a vehicle.
Id.
Upon review of the record, before trial, defense counsel filed
a Motion in Limine III to prevent testimony concerning Petitioner's
interaction with Ms. Dinkins.
Ex. A at 43-44.
This evidence
included Petitioner "screaming and yelling" at Ms. Dinkins inside
of the house, and Petitioner standing over her and threatening her.
Id. at 43.
Of import, apparently neither the prosecution nor the
defense was able to locate Ms. Dinkins prior to trial.
9
Although
The police listed Ms. Dinkins as the passenger/witness in
the vehicle. Ex. A at 2.
- 34 -
the state listed her as a category A witness and provided an
address for her, Ms. Dinkins was not located at the address
provided by the state.
Ex. A at 13.
She was also not located at
the alternative address provided by the state and mentioned by
Petitioner.
Id. at 21; Ex. K at 131.
By the date of the trial,
Ms. Dinkins had neither been located nor deposed. At trial defense
counsel said: "How do I know she's not cooperative?
woman is gone, we haven't even deposed her."
Anyway this
Ex. D at 219.
Petitioner is not entitled to relief on ground eight of the
Petition.
Deference under AEDPA should be given to the state
court's decision, which was affirmed on appeal.
The adjudication
of this claim is not contrary to or an unreasonable application of
the law, or based on an unreasonable determination of the facts.
Ground eight is due to be denied.
Ground Nine
In his ninth and final ground, Petitioner asserts a denial of
due process of law based on the First District Court of Appeal's
affirmance
of
the
conviction motion.
trial
court's
decision
denying
his
post
In particular, Petitioner complains that the
deposition transcripts were not transmitted to the First District
Court of Appeal, and the appellate court conducted its review of
the
trial
court's
decision
without
reviewing
the
deposition
transcripts. See Ex. Q at 18-19. Respondents contend this type of
alleged error in a state collateral proceeding is not cognizable in
federal habeas review.
Response at 13.
- 35 -
First, the Court notes that the trial court was not presented
with
the
deposition
conviction
motion.
transcripts
Ex.
K.
for
its
review
Additionally,
of
the
the
post
deposition
transcripts were not submitted at the evidentiary hearing.
Ex. K.
As noted by Respondents, the appellate court implicitly determined
that the record was sufficient to resolve the issues before it when
it denied rehearing en banc.
Upon review, the First District Court of Appeal affirmed the
decision of the trial court and denied rehearing en banc.
These
decisions of the First District Court of Appeal are entitled to
deference under AEDPA.
They 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 nine of the Petition because the state court's 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,
to
the
extent
that
Petitioner
is
complaining about a defect in the collateral proceeding (the denial
of the post conviction appeal and the denial of rehearing en banc),
he does not state a claim for habeas relief.
has repeatedly found:
The Eleventh Circuit
"defects in state collateral proceedings do
not provide a basis for habeas relief." Carroll v. Sec'y, DOC, 574
- 36 -
F.3d 1354, 1365 (11th Cir.) (citations omitted), cert. denied, 558
U.S. 995 (2009).
A claim of constitutional dimension has not been
presented, and the ground is due to be dismissed.
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.
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
- 37 -
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.
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 13th day of
November, 2013.
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sa 11/5
c:
Roy James Edwards
Counsel of Record
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