SOLOMON v. SEC FDOC

Filing 20

ORDER denying the Petition and dismissing the case with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 1/7/2015. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

JAMES SOLOMON,
Petitioner,
v.

Case No. 3:11-cv-1191-J-34PDB

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner James Solomon, an inmate of the Florida penal
system, initiated this action on November 28, 2011, by filing a pro
se Petition for Writ of Habeas Corpus (Petition; Doc. 1) under 28
U.S.C. § 2254. In the Petition, Solomon challenges a 2009 state
court (Suwannee County, Florida) judgment of conviction for escape
and

possession

submitted

a

of

a

memorandum

controlled
in

substance.

opposition

to

Respondents
the

Petition.

have
See

Respondents' Answer in Response to Order to Show Cause and Petition
for Writ of Habeas Corpus (Response; Doc. 12) with exhibits (Resp.
Ex.). On March 16, 2012, the Court entered an Order to Show Cause
and Notice to Petitioner (Doc. 9), admonishing Solomon regarding

his obligations and giving Solomon a time frame in which to submit
a reply. Solomon notified the Court that he did not intend to file
a brief in reply. See Doc. 18. This case is ripe for review.
II. Procedural History
On July 22, 2003, in Case No. 03-240, the State of Florida
charged Solomon with aggravated battery on a pregnant person (count
one), escape (count two), and petit theft (count three). Resp. Ex.
D at 1-2, Information. As a result of a negotiated plea agreement,
see id. at 3, the court adjudicated Solomon guilty as to counts one
and three and withheld adjudication on count two, see id. at 4-7.
The court sentenced Solomon to three months in the county jail for
count one, three months in the county jail for count three, both
terms to run concurrently, with ninety days of credit for time
served, and five years of probation for count two. Id. at 7-10.
On March 14, 2005, the State filed an Affidavit of Violation
of Probation relating to conditions (5) and (10) and special
condition

(28-3)

of

the

Order

of

Probation.

Id.

at

11.

The

violations related to Solomon failing to: live and remain at
liberty without violating any law by committing the criminal
offenses of possession of cocaine with intent to sell (count one),
and possession of narcotic paraphernalia (count two); not possess
or consume alcohol during the supervision period; and pay court
costs and fines to the probation officer in accordance with the
court's payment instructions. Id. The court issued a warrant for

2

Solomon's arrest. Id. at 18. On May 16, 2005, the court adjudicated
Solomon guilty of escape from a treatment program (Case No. 03-240,
count

two),

and

sentenced

him

to

one

year

of

drug

offender

probation, sixty days in the county jail with credit for time
served, and five years of probation. Id. at 21-24.
On March 18, 2005, in Case No. 05-116, the State charged
Solomon

with

possession

of

cocaine.

Resp.

Ex.

E

at

1-2,

Information. Solomon pled guilty, and the court sentenced him on
May 16, 2005, to one year of drug offender probation and sixty days
in the county jail with credit for time served, to run concurrently
with the term imposed in Case No. 03-240. Id. at 7-14.
In August 2005, the State filed another Affidavit of Violation
of Probation. Resp. Ex. D at 31. Solomon pled guilty, and the court
sentenced him on September 12, 2005, to two years of community
control supervision for possession of cocaine (Case No. 05-116),
and two years of community control supervision for escape (Case No.
03-240), to run concurrently with the term imposed in Case No. 05116. Id. at 43-47.
On

December

28,

2005,

the

State

filed

an

Affidavit

of

Violation of Probation, and later filed an Amended Affidavit. Id.
at 48-51. At a hearing on November 19, 2009, see Resp. Ex. F,
Transcript of the Hearing (Tr.), the court sentenced Solomon to a
term of two years of imprisonment for possession of cocaine in Case
No. 05-116, see Resp. Ex. E at 49-54, and a term of ten years of

3

imprisonment for escape in Case No. 03-240, to run consecutively to
the term imposed in Case No. 05-116, see Resp. Ex. D at 55-60.
Solomon appealed, but later filed a notice of voluntary dismissal.
Resp. Ex. G. As such, on May 18, 2010, the appellate court
dismissed Solomon's appeal. Resp. Ex. H.
On March 1, 2011, Solomon filed a pro se motion for post
conviction relief pursuant to Florida Rule of Criminal Procedure
3.850. In his request for post conviction relief, Solomon asserted
that counsel was ineffective because he failed to: object to the
prosecutor's unsworn representations to the sentencing judge; (2)
produce records from the Georgia Department of Corrections to
confirm

Solomon's

good

behavior

and

rehabilitation

while

incarcerated; (3) call Ernestine Jones (Solomon's sister), "as a
good character witness," Resp. Ex. J at 3; and (4) call Shalonda
Walton (the victim), to testify. Id. at 1-7. The circuit court
denied Solomon's motion on June 9, 2011. Id. at 8-41. On October
10, 2011, the appellate court affirmed the trial court's denial per
curiam. See Solomon v. State, 72 So.3d 754 (Fla. 1st DCA 2011);
Resp. Ex. K. The mandate issued on November 7, 2011. See Resp. Ex.
L.
III. One-Year Limitations Period
The Petition appears to be timely filed within the one-year
limitations period. See 28 U.S.C. § 2244(d).

4

IV. Evidentiary Hearing
"In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an
applicant to prove the petition's factual allegations, which, if
true, would entitle the applicant to federal habeas relief."
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted).
"It follows that if the record refutes the applicant's factual
allegations or otherwise precludes habeas relief, a district court
is not required to hold an evidentiary hearing." Id. The pertinent
facts of this case are fully developed in the record before the
Court. Because this Court can "adequately assess [Petitioner's]
claim[s] without further factual development," Turner v. Crosby,
339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will
not be conducted.
V. Standard of Review
The Court will analyze Solomon's claims under 28 U.S.C. §
2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Section 2254(d) states:
An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any claim
that was adjudicated on the merits in State
court proceedings unless the adjudication of
the claim (1) resulted in a decision that
was contrary to, or involved an
unreasonable application of, clearly
established
Federal
law,
as
5

determined by the Supreme Court of
the United States; or
(2) resulted in a decision that
was
based
on
an
unreasonable
determination of the facts in light
of the evidence presented in the
State court proceeding.
Thus,

28

U.S.C.

§

2254(d)

"bars

religation

of

any

claim

'adjudicated on the merits' in state court, subject only to the
exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 131
S.Ct. 770, 784 (2011). As the United States Supreme Court stated,
"AEDPA erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court." Burt
v. Titlow, 134 S.Ct. 10, 16 (2013). This standard of review is
described as follows:
Under AEDPA, when the state court has
adjudicated the petitioner's claim on the
merits, a federal court may not grant habeas
relief unless the state court's decision was
"contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States," 28 U.S.C. § 2254(d)(1), or
"was based on an unreasonable determination of
the facts in light of the evidence presented
in the State court proceeding," id. §
2254(d)(2). "Under § 2254(d)(1)'s 'contrary
to' clause, we grant relief only 'if the state
court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question
of law or if the state court decides a case
differently than [the Supreme Court] has on a
set of materially indistinguishable facts.'"
Jones v. GDCP Warden, 753 F.3d 1171, 1182
(11th Cir. 2014) (quoting Williams v. Taylor,
529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d
389
(2000)).
"Under
§
2254(d)(1)'s
'unreasonable application' clause, we grant
6

relief only 'if the state court identifies the
correct governing legal principle from [the
Supreme] Court's decisions but unreasonably
applies that principle to the facts of the
prisoner's case.'" Id. (quoting Williams, 529
U.S. at 413, 120 S.Ct. 1495).
For § 2254(d), clearly established
federal law includes only the holdings of the
Supreme Court – not Supreme Court dicta, nor
the opinions of this Court. White v. Woodall,U.S. -, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698
(2014). To clear the § 2254(d) hurdle, "a
state prisoner must show that the state
court's ruling on the claim being presented in
federal court was so lacking in justification
that there was an error well understood and
comprehended in existing law beyond any
possibility for fairminded disagreement."
Harrington v. Richter, 562 U.S. 86, 131 S.Ct.
770, 786-87, 178 L.Ed.2d 624 (2011). "[A]n
'unreasonable application of' [Supreme Court]
holdings must be 'objectively unreasonable,'
not merely wrong; even 'clear error' will not
suffice." Woodall, 134 S.Ct. at 1702 (quoting
Lockyer v. Andrade, 538 U.S. 63, 75-76, 123
S.Ct. 1166, 155 L.Ed.2d 144 (2003)). A state
court need not cite or even be aware of
Supreme Court cases "so long as neither the
reasoning nor the result of the state-court
decision contradicts them." Early v. Packer,
537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263
(2002); accord Richter, 131 S.Ct. at 784.
"AEDPA thus imposes a highly deferential
standard for evaluating state-court rulings
and demands that state-court decisions be
given the benefit of the doubt." Renico v.
Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176
L.Ed.2d 678 (2010) (citations and internal
quotation marks omitted). And when a claim
implicates both AEDPA and Strickland, our
review is doubly deferential. Richter, 131
S.Ct. at 788 ("The standards created by
Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem,
review is doubly so." (citations and internal
quotation marks omitted)). [A petitioner] must
7

establish that no fairminded jurist would have
reached the Florida court's conclusion. See
Richter, 131 S.Ct. at 786-87; Holsey v.
Warden, Ga. Diagnostic Prison, 694 F.3d 1230,
1257-58 (11th Cir. 2012). "If this standard is
difficult to meet, that is because it was
meant to be." Richter, 131 S.Ct. at 786....
Taylor v. Sec'y, Fla. Dep't of Corr., 760 F.3d 1284, 1293-94 (11th
Cir. 2014); see also Hittson v. GDCP Warden, 759 F.3d 1210, 1230
(11th Cir. 2014).
Finally, for a state court's resolution of a claim to be an
adjudication on the merits, so that the state court's determination
will be entitled to deference for purposes of federal habeas corpus
review under AEDPA, all that is required is a rejection of the
claim on the merits, not an opinion that explains the state court's
rationale for such a ruling. Hittson, 759 F.3d at 1232 ("[T]here is
no AEDPA requirement that a state court explain its reasons for
rejecting a claim[.]"); Richter, 131 S.Ct. at 785 (holding that §
2254(d) does not require a state court to give reasons before its
decision can be deemed to have been adjudicated on the merits);
Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1255 (11th
Cir.

2002).

Thus,

to

the

extent

that

Solomon's

claims

were

adjudicated on the merits in the state courts, they must be
evaluated under § 2254(d).
VI. Ineffective Assistance of Counsel
"The Sixth Amendment guarantees criminal defendants effective
assistance

of

counsel.

That

right

8

is

denied

when

a

defense

counsel's

performance

falls

below

an

objective

standard

of

reasonableness and thereby prejudices the defense." Yarborough v.
Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith,
539 U.S. 510, 521 (2003), and Strickland v. Washington, 466 U.S.
668, 687 (1984)).
To establish deficient performance, a
person challenging a conviction must show that
"counsel's representation fell below an
objective
standard
of
reasonableness."
[Strickland,] 466 U.S. at 688, 104 S.Ct. 2052.
A court considering a claim of ineffective
assistance must apply a "strong presumption"
that counsel's representation was within the
"wide range" of reasonable professional
assistance. Id., at 689, 104 S.Ct. 2052. The
challenger's burden is to show "that counsel
made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id., at
687, 104 S.Ct. 2052.
With respect to prejudice, a challenger
must demonstrate "a reasonable probability
that, but for counsel's unprofessional errors,
the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence
in the outcome." Id., at 694, 104 S.Ct. 2052.
It is not enough "to show that the errors had
some conceivable effect on the outcome of the
proceeding." Id., at 693, 104 S.Ct. 2052.
Counsel's errors must be "so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable." Id., at 687, 104
S.Ct. 2052.
Richter, 131 S.Ct. at 787-88.
Since both prongs of the two-part Strickland test must be
satisfied to show a Sixth Amendment violation, "a court need not
address the performance prong if the petitioner cannot meet the
9

prejudice prong, and vice-versa." Ward v. Hall, 592 F.3d 1144, 1163
(11th Cir. 2010)(citation omitted). "Surmounting Strickland's high
bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371
(2010).
A state court's adjudication of an ineffectiveness claim is
accorded great deference.
"[T]he
standard
for
judging
counsel's
representation is a most deferential one."
Richter, - U.S. at -, 131 S.Ct. at 788. But
"[e]stablishing
that
a
state
court's
application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d)
are both highly deferential, and when the two
apply in tandem, review is doubly so." Id.
(citations and quotation marks omitted). "The
question is not whether a federal court
believes the state court's determination under
the Strickland standard was incorrect but
whether that determination was unreasonable a substantially higher threshold." Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411,
1420, 173 L.Ed.2d 251 (2009) (quotation marks
omitted). If there is "any reasonable argument
that
counsel
satisfied
Strickland's
deferential standard," then a federal court
may not disturb a state-court decision denying
the claim. Richter, - U.S. at -, 131 S.Ct. at
788.
Hittson, 759 F.3d at 1248; Knowles v. Mirzayance, 556 U.S. 111, 123
(2009); see also Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th
Cir. 2004) ("In addition to the deference to counsel's performance
mandated

by

Strickland,

the

AEDPA

adds

another

layer

of

deference--this one to a state court's decision--when we are

10

considering whether to grant federal habeas relief from a state
court's decision.").
VII. Findings of Fact and Conclusions of Law
A. Ground One
As ground one, Solomon asserts that counsel (Assistant Public
Defender James Michael Janousek, II) was ineffective because he
failed to object to the prosecutor's unsworn statements to the
judge

at

the

November

19,

2009

violation

of

probation

and

sentencing hearing. Solomon raised this ineffectiveness of trial
counsel claim in his Rule 3.850 motion in state court. Identifying
the two-prong Strickland ineffectiveness test as the controlling
law, the court denied the post conviction motion with respect to
this claim, stating in pertinent part:
In Ground One, the Defendant argues that
Counsel was ineffective for failing to object
to the State Attorney's vivid description of
the
Defendant's
alleged
attack
on
his
girlfriend that was the basis of the Georgia
convictions
of
Battery
and
Aggravated
Assault.[1] The Defendant argues that this
failure caused the judge to impose a harsher
sentence.
Ground One fails. As discussed above,
hearsay is admissible at a VOP hearing as long
as it does not form the sole basis of a
court's revocation. The State Attorney's
hearsay description did not form the sole
basis of the revocation, since the Defendant
was actually convicted in Georgia of the
Battery and Aggravated Assault that the State
Attorney described, and these convictions
1

See Tr. at 12-13.
11

constituted only two of his several violations
in the instant case. Therefore, it was
permissible for the State Attorney to present
this hearsay evidence to this Court. Because
the statements of the State Attorney did not
warrant
an
objection,
Counsel
was
not
ineffective for failing to object; counsel
cannot be ineffective for failing to raise a
meritless claim. Dailey v. State, 965 So.2d
38, 47 (Fla. 2007). Therefore, Ground One is
DENIED.
Resp. Ex. J at 10 (emphasis deleted). The appellate court affirmed
the trial court's denial per curiam.
Assuming the appellate court affirmed the denial on the
merits, there are qualifying state court decisions. Thus, the Court
considers this claim in accordance with the deferential standard
for federal court review of state court adjudications. After a
thorough review of the record and the applicable law, the Court
concludes that the state courts' adjudications of this claim were
not contrary to clearly established federal law, 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.
Thus, Solomon is not entitled to relief on the basis of this claim.
Moreover, even assuming the state courts' adjudications of
this claim are not entitled to deference, Solomon's ineffectiveness
claim is still without merit. The trial court's conclusion is fully
supported by the record. In evaluating the performance prong of the
Strickland ineffectiveness inquiry, there is a strong presumption

12

in favor of competence. See Anderson v. Sec'y, Fla. Dep't of Corr.,
752 F.3d 881, 904 (11th Cir. 2014). The inquiry is "whether, in
light of all the circumstances, the identified acts or omissions
were

outside

assistance."

the

wide

Strickland,

range
466

of

U.S.

professionally
at

690.

competent

"[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).
Thus, Solomon must establish that no competent attorney would have
taken the action that counsel, here, chose.
Moreover, the test for ineffectiveness is neither whether
counsel could have done more nor whether the best criminal defense
attorneys might have done more; in retrospect, one may always
identify shortcomings. Waters v. Thomas, 46 F.3d 1506, 1514 (11th
Cir. 1995) (stating that "perfection is not the standard of
effective assistance") (quotations omitted). Instead, the test is
whether what counsel did was within the wide range of reasonable
professional assistance. Ward v. Hall, 592 F.3d at 1164 (quotations
and citation omitted); Dingle v. Sec'y for Dep't of Corr., 480 F.3d
1092,

1099

(11th

Cir.

2007)

("The

question

is

whether

some

reasonable lawyer at the trial could have acted as defense counsel
acted in the trial at issue and not what 'most good lawyers' would
have done.") (citation omitted).

13

On the record in this case, counsel's performance was well
within the wide range of professionally competent assistance. The
prosecutor's summary of the facts underlying Solomon's Georgia
conviction for battery and aggravated assault was based on the
Americus, Georgia, Police Department's Family Violence Incident
Report, dated June 29, 2007, see Resp. Ex. M, and the "State of
Florida Department of Corrections Addendum to Violation Report
Dated January 5, 2005," dated October 5, 2007, see Resp. Ex. N. As
such, counsel cannot be faulted for failing to object to the
prosecutor's rendition of the facts. Solomon failed to carry his
burden of showing that his counsel's representation fell outside
that range of reasonably professional assistance. Even assuming
arguendo deficient performance by defense counsel, Solomon has not
shown prejudice. He has not shown that a reasonable probability
exists that the outcome of the case would have been different if
counsel

had

objected

to

the

prosecutor's

factual

summation.

Therefore, Solomon's ineffectiveness claim is without merit since
he has shown neither deficient performance nor resulting prejudice.
B. Ground Two
As ground two, Solomon asserts that counsel was ineffective
because he failed to produce records from the Georgia Department of
Corrections to confirm Solomon's good behavior and rehabilitative
efforts while incarcerated. Solomon raised this ineffectiveness of
trial counsel claim in his Rule 3.850 motion in state court.

14

Ultimately, the circuit court denied the post conviction motion
with respect to this claim, stating in pertinent part:
In Ground Two, the Defendant argues that
Counsel was ineffective for failing to obtain
records from the Georgia prison system
confirming
his
good
behavior
and
rehabilitation
during
incarceration.
The
Defendant argues that this failure caused the
judge
to
impose
a
harsher
sentence,
"particularly in light of the fact that my
counsel presented no mitigating evidence."
Motion at 3.
Ground Two fails for two reasons. First,
the Defendant's claim that Counsel presented
no mitigating evidence is refuted by the
record, as the attached Transcript reflects
that Counsel called the Defendant as a witness
to describe factors in mitigation.[2] See
attached Transcript.
Second, the Defendant's conviction and
imprisonment in another state was itself a
violation
of
the
felony
probation
the
Defendant was serving in the instant case.
Therefore, his good behavior while serving a
sentence that constituted a violation of the
terms of this Court's sentence is likely not a
"truly mitigating" circumstance. Miller v.
State, 770 So.2d 1144, 1149 (Fla. 2000)
(finding that trial courts must determine
whether each mitigating factor is supported by
the greater weight of the evidence and, if so,
whether it is truly mitigating). Therefore,
Counsel's failure to obtain prison records
describing the Defendant's good behavior
during incarceration was not ineffective;
counsel cannot be ineffective for failing to
raise a meritless claim. Dailey v. State, 965
So.2d 38, 47. As a result, Ground Two is
DENIED.

2

See Tr. at 7-8, 14-15.
15

Resp. Ex. J at 10-11 (emphasis deleted). The appellate court
affirmed the trial court's denial per curiam.
Given the record in the instant action, the appellate court
may

have

affirmed

the

denial

of

Solomon's

motion

for

post

conviction relief on the merits. If the appellate court addressed
the merits, Solomon would not be entitled to relief because the
state courts' adjudications of this claim are entitled to deference
under AEDPA.

After a review of the record and the applicable law,

the Court concludes that the state courts' adjudications of this
claim were not contrary to clearly established federal law and did
not involve an unreasonable application of clearly established
federal law. Nor were the state court adjudications based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Thus, Solomon is not
entitled to relief on the basis of these claims.
Even assuming that the appellate court did not affirm the
denial of the Rule 3.850 motion on the merits or that the state
courts' adjudications of this claim are not entitled to deference
under AEDPA, Solomon's claim is still without merit. The trial
court's conclusion is fully supported by the record. Based on the
record in the instant case, counsel's performance was within the
wide range of professionally competent assistance. Even assuming
arguendo deficient performance by defense counsel for failing to
produce

Solomon's

records

from

16

the

Georgia

Department

of

Corrections

to

demonstrate

Solomon's

good

behavior

and

rehabilitative efforts while incarcerated, Solomon has not shown
prejudice. Thus, Solomon's ineffectiveness claim fails because he
has shown neither deficient performance nor resulting prejudice.
C. Grounds Three and Four
Solomon asserts that counsel was ineffective because he failed
to call: Solomon's sister (ground three), and Shalonda Walton, the
victim of the 2007 battery and aggravated assault in Georgia
(ground

four),

as

character

witnesses.

Solomon

raised

these

ineffectiveness claims in his Rule 3.850 motion in state court, and
the circuit court denied the post conviction motion as to these
claims, stating in pertinent part:
In Grounds Three and Four, the Defendant
argues that Counsel was ineffective for
failing to call his sister and "the alleged
victim" as character witnesses. The Defendant
argues that this failure caused the judge to
impose a harsher sentence, "particularly in
light of the fact that my counsel presented no
mitigating evidence."
Grounds Three and Four fail for several
reasons. First, the grounds are facially
insufficient.
When
a
defendant
alleges
ineffective assistance of counsel for failure
to call a witness, the defendant must state
with particularity the identity of the
witness, the substance of the expected
testimony, and how the omission of this
evidence prejudiced the outcome of the trial.
Highsmith v. State, 617 So.2d 825 (Fla. 1st
DCA 1993). A defendant must also allege that
the witness was available to testify at trial.
Nelson v. State, 875 So.2d 579 (Fla. 2004).

17

Here, the Defendant has alleged that his
sister "would have testified that I am a good
person at heart, a good brother, a good
father, and that I am serious about my
rehabilitation" and that "the alleged victim
... would have testified that what the State
Attorney said was untrue." Motion at 3, 4.
However, the Defendant has failed to allege
that the witnesses were actually available to
testify and has failed to identify how the
omission of this evidence prejudiced the
outcome of the VOP hearing. The Defendant
merely makes the conclusory statements that,
(1) his sister's testimony "would have
influenced my sentencing judge to impose a
less severe sentence, particularly since my
counsel presented no mitigating evidence" and,
(2) that "the alleged victim['s] testimony
"would have changed the outcome to my
benefit." Motion at 4. Conclusory statements
such as these are insufficient to support
postconviction relief. Atwater v. State, 788
So.2d 223 (Fla. 2001).
This Court will not grant the Defendant
leave to amend these insufficiencies, as it is
clear that the defects cannot be corrected.
See Parsons v. State, 981 So.2d 1249, 1250
(Fla. 5th DCA 2008) ("In Spera, our Supreme
Court ruled that a defendant who files a
legally insufficient rule 3.850 motion should
be given at least one opportunity to correct
the deficiency, unless it is apparent that the
defect
cannot
be
corrected.") (emphasis
added).
These defects cannot be corrected for
several reasons. First, as discussed in Ground
Two, the claim that Counsel presented no
mitigating evidence is refuted by record (the
attached Transcript reflects that Counsel
called the Defendant as a witness to describe
factors
in
mitigation).
See
attached
3
Transcript.[ ] Further, the sentencing of the
Defendant and the revocation of his probation

3

See Tr. at 7-8, 14-15.
18

were solely within this Court's discretion
subjected [sic] to a lower evidentiary
standard, and testimony of two witnesses with
clear bias (the Defendant's sister and the
Defendant's girlfriend, who was "the alleged
victim"), would have likely held little
weight. Even if this Court had heard testimony
from "the alleged victim" that the State
Attorney's description of the manner of the
Battery/Aggravated Assault was untrue, this
Court would have been required to weigh the
credibility of the actual judgments and
convictions against the victim's testimony.
Russell v. State, 982 So.2d 642, 646 (Fla.
2008) (the statements of the victim and the
probationer, the type of injury, the demeanors
of the victim and the probationer, and the
credibility of the witnesses all factor into
the trial court's weighing of the evidence at
a VOP hearing).
Further, even if this Court had heard and
believed testimony from the Defendant's sister
regarding his good character, this Court was
still faced with sentencing the Defendant
based on all of his actual violations of his
probation,
which
included:
the
Georgia
convictions of Battery and Aggravated Assault;
failing to report; failing to complete the
required activities log; being absent from his
approved residence without permission; and,
significantly, testing positive for cocaine
use - a crime for which the Defendant was
serving felony probation concurrent to the
instant case when he was convicted of the
Georgia attack. See attached Transcript.
In addition, this Court will not grant
leave to amend the instant motion because the
Defendant could likely not meet the prejudice
prong of the Strickland standard even if he
amended
his
motion,
as
Counsel's
representation ultimately resulted in the
Defendant's being sentenced to only ten years
in DOC on the instant case, when the seconddegree felony could have resulted in a

19

sentence of fifteen years.[4] Fla. Stat. §
775.082. Accordingly, Grounds Three and Four
are DENIED with prejudice.
Resp. Ex. J at 11-12 (selected emphasis deleted). On appeal, the
appellate court affirmed the denial per curiam.
Assuming the appellate court affirmed the denial on the
merits, there are qualifying state court decisions. Thus, the Court
considers these claims in accordance with the deferential standard
for federal court review of state court adjudications. After a
review of the record and the applicable law, the Court concludes
that the state courts' adjudications of these claims 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.
Thus, Solomon is not entitled to relief on the basis of this claim.
Moreover, even assuming the state courts' adjudications of
these

claims

are

not

entitled

to

deference,

Solomon's

ineffectiveness claims, nevertheless, are without merit because the
trial court's conclusions are supported by the record. Counsel's
performance was well within the range of professionally competent
assistance. Solomon has failed to carry his burden of showing that
his counsel's representation fell outside that range of reasonable
professional assistance when counsel failed to call Solomon's

4

See Tr. at 13, 16.
20

sister

and

character

Shalonda
and

Walton

to

rehabilitative

testify

as

to

Solomon's

accomplishments.

Even

good

assuming

arguendo deficient performance by defense counsel, Solomon has not
shown prejudice. Therefore, Solomon's ineffectiveness claims are
without merit since he has shown neither deficient performance nor
resulting prejudice.
VIII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Solomon seeks issuance of a certificate of appealability,
the undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. §2253(c)(2). To make this
substantial showing, Solomon "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. See
21

Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling." Id. Upon
consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

The Petition (Doc. 1) is DENIED, and this action is

DISMISSED WITH PREJUDICE.
2.

The Clerk of the Court shall enter judgment denying the

Petition and dismissing this case with prejudice.
3.

If Solomon appeals the denial of the 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 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.

22

4.

The Clerk of the Court is directed to close this case and

terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 7th day of
January, 2015.

sc 1/5
c:
James Solomon
Ass't Attorney General (Heller)

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