SMITH v. TUCKER
Filing
23
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 Brian J. Davis on 6/22/2015. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TAMMERA SMITH,
Petitioner,
vs.
Case No. 3:13-cv-129-J-39MCR
SECRETARY, DOC, et al.,
Respondents.
ORDER
I.
STATUS
Petitioner Tammera Smith challenges a 2006 (Hamilton County)
conviction for aggravated battery with a weapon in her "Person in
State Custody Application for Habeas Corpus Under 28 U.S.C. § 2254"
(Petition) (Doc. 1).
She raises four grounds for habeas relief.
The Court will address each ground, Clisby v. Jones, 960 F.2d 925,
936 (11th Cir. 1992), Dupree v. Warden, 715 F.3d 1295, 1298 (11th
Cir. 2013); however, upon review of the record, no evidentiary
proceedings are required.
Respondents filed a Response to Petition for Habeas Corpus
(Response) (Doc. 15), asserting Petitioner is not entitled to
habeas relief. They also submitted Appendices in support thereof.1
Petitioner filed a Traverse to Response to Order to Show Cause
1
The Court hereinafter refers to the exhibits contained in
the Appendices (Docs. 16 & 17) as "Ex." Where provided, the page
numbers referenced in this opinion are the Bates stamp numbers at
the bottom of each page of the Appendix.
Otherwise, the page
number on the particular document will be referenced.
(Doc. 20).
See Order (Doc. 12).
Petition is timely filed.
II.
Respondents calculate the
Response at 2.
STANDARD OF REVIEW
Petitioner's claims will be analyzed by this Court pursuant to
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,
562 U.S. 86, 98 (2011).
These designated 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.
In
its
review,
the
Court
will
Id. at 100.
give
a
presumption
of
correctness of the state courts' factual findings unless rebutted
with clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
Also
of import, the Court will apply this presumption to the factual
determinations of both trial and appellate courts.
See Bui v.
Haley, 321 F.3d 1304, 1312 (11th Cir. 2003).
III.
PROCEDURAL HISTORY
To provide historical context to Petitioner's claims, a brief
summary of the state criminal case is provided.
On September 22,
2005,
with
Petitioner
was
charged
by
information
battery: great bodily harm, with a weapon (a knife).
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aggravated
Ex. A at 1.
The
trial
court
appointed
J.
Reuben
Hamlin
Petitioner when the public defender withdrew.
as
counsel
for
Id. at 57-58.
Defense counsel filed a Demand for Discovery, requesting that
he be allowed to inspect, copy, test and photograph the information
and material within the state's possession or control.
Id. at 59.
On several occasions, he moved to continue the case in order to
complete depositions and preparation for trial.
Id. at 60-66.
Counsel also moved for transcriptions of the depositions of the
state's witnesses.
Id. at 67-69.
On August 22, 2006, defense
counsel listed the following witnesses for trial: Mary Howell
[sic], Jeremiah Jones, Kelton Johnson, and Carlos Johnson.
Id. at
70.
The jury trial began on August 30, 2006.
Ex. D.
During the
course of the trial, on August 30, 2006, a juror, Sabrina Marshall,
asked to speak to the trial judge.
Ex. E at 127.
She related: "I
just found out that I am related to Ms. Allen [the victim].
She
has never met me and I have never met her, but she is my cousin
through my father."
Id.
Ms. Marshall said she had been gone for
a long time, and she discovered the grandmothers are sisters.
at 127-28.
Id.
Upon inquiry, Ms. Marshall stated that she would be
able to be fair and impartial.
Id. at 128.
"just found out a few minutes ago."
Id.
She added that she
Both the prosecutor and
defense counsel stated that there was no legal ground to object or
request a change.
Id. at 128-29.
Mr. Hamlin told the court that
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his client would prefer that the juror be dismissed, but Mr. Hamlin
said he told her he had no legal basis to object to the juror.
at 129.
Id.
The court agreed that there was no legal basis to object
to Ms. Marshall.
Id.
On August 30, 2006, the jury returned a verdict of guilty to
aggravated battery as charged in the information and found that
there was a weapon.
Ex. A at 71; Ex. E at 289.
The court
adjudicated Petitioner guilty and sentenced her to fifteen years of
imprisonment followed by fifteen years of probation.
Ex. F at 21;
Ex. A at 77-84.
Thereafter, Petitioner appealed her conviction.
Ex. G; Ex. H; Ex. I; Ex. J.
Ex. A at 99;
On April 23, 2008, the First District
Court of Appeal affirmed with an opinion. Ex. K. Petitioner moved
for rehearing and rehearing en banc.
Ex. L.
On May 21, 2008, the
First District Court of Appeal denied rehearing and rehearing en
banc.
Ex. M.
The mandate issued on June 6, 2008.
Supreme Court of Florida denied discretionary review.
Ex. N.
The
Ex. O.
On August 7, 2009, Petitioner filed a 3.850 Motion for PostConviction Relief.
Ex. P, Motion for Post Conviction Relief and
Memorandum. The trial court entered an order denying grounds three
and five, and scheduling an evidentiary hearing on grounds one,
two, and four.
Relief.
Ex. P, Order Regarding Motion for Post Conviction
The trial court conducted an evidentiary hearing on
November 2, 2011, and Petitioner was represented by counsel.
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Ex.
P, Motion Hearing.
The trial court, on December 22, 2011, denied
the motion for post conviction relief. Ex. P, Order Denying Motion
for Post Conviction Relief.
Petitioner appealed.
filed an appeal brief.
Ex. P, Notice of Appeal.
Ex. Q.
Petitioner
The state filed a notice that it
did not intend to file an answer brief.
a Notice of Supplemental Authority.
Ex. R.
Ex. S.
Petitioner filed
On November 15, 2012,
the First District Court of Appeal affirmed per curiam.
The mandate issued on December 11, 2012.
IV.
Ex. T.
Id.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
Ground One
In ground one, Petitioner claims she received the ineffective
assistance of trial counsel for failure to convey a favorable plea
offer before rejecting it without the Petitioner's knowledge.
Petition at 4.
In this ground, Petitioner asserts that she
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, she must satisfy the twoprong test set forth in Strickland v. Washington, 466 U.S. 668, 688
(1984),
requiring
that
she
show
both
deficient
performance
(counsel's representation fell below an objective standard of
reasonableness) and prejudice (there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different).
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Petitioner
proceedings.
exhausted
this
See Response at 3.
one of her Rule 3.850 motion.
Relief at 2-3.
ground
in
the
state
court
She raised this claim in ground
Ex. P, Motion for Post Conviction
After conducting an evidentiary hearing, the trial
court denied relief on this ground.
Court of Appeal affirmed.
Ex. P.
The First District
Ex. T.
Of note, the trial court referenced the applicable two-pronged
standard as set forth in Strickland as a preface to addressing
Petitioner's claims of ineffective assistance of counsel.
Order Denying Motion for Post Conviction Relief at 1-2.
Ex. P,
Thus, the
court was well-aware of the applicable standard.
In addressing the first ground, the court summarized the
testimony presented at the evidentiary hearing with regard to
ground one.
Id. at 2-3.
In denying ground one, the court said:
The allegations in Ground One boil down
to an issue of credibility.
The Defendant
testified that Mr. Hamlin failed [to] convey
any plea offer to her.
In contrast, Mr.
Hamlin testified that the State's offer was
conveyed. To support this statement, a letter
from Mr. Hamlin to the Defendant was
introduced which discussed a plea offer.
Similarly, Mr. Hamlin testified it was his
general practice to relay plea offers to his
clients.
Accordingly, this Court finds Mr.
Hamlin's testimony to be more credible. Thus
the Court finds the Defendant's Ground One to
be without merit.
Hence, the Defendant has
failed to demonstrate ineffective assistance
of counsel.
Accordingly, Ground One is
DENIED.
Id. at 5.
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At the evidentiary hearing, defense counsel testified that he
sent a copy of the plea offer to Petitioner.
at 13-14.
Ex. P, Motion Hearing
He mentioned sending a letter to Petitioner dated
January 26, 2006, and enclosing a copy of a plea offer from the
state.
Id.; Ex. P, Letter & Offer of Plea.
testified
that
he
discussed
the
plea
offer
Defense counsel
in
detail
Petitioner in the Board of County Commissioner's Room.
Motion
Hearing
at
15.
Defense
counsel
further
with
Ex. P,
stated
that
Petitioner appeared to understand the contents of the plea offer,
which included prison time followed by probation, and she soundly
rejected the offer as she "was adamant that she had not committed
the crime and was not going to take an offer for something she did
not do."
Id.
Finally, defense counsel attested that he discussed
with Petitioner the possible maximum sentence that she could
receive if she were found guilty.
In
evaluating
the
Id. at 16.
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).
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Upon review, the record includes copies of defense counsel's
letter to Petitioner and the referenced plea offer. The transcript
of the evidentiary hearing contains defense counsel's testimony
that he provided Petitioner with a copy of the plea offer, they
thoroughly discussed the plea offer, and Petitioner rejected the
offer.
Also, counsel testified that he advised Petitioner of the
maximum penalty she faced.
deficient
performance,
Not only has Petitioner failed to show
she
has
failed
to
show
that
she
was
prejudiced by counsel's performance.
Of note, the court specifically found that "[c]ounsel is wellqualified and experienced in the practice of law."
Denying Motion for Post Conviction Relief at 5.
Ex. P, Order
The court also
found that "[t]he Defendant is a convicted felon, and has a strong
desire to be released from prison.
This desire creates a motive
for the Defendant to give inaccurate testimony." Id. As such, the
trial court credited defense counsel's testimony.
Id.
There was no unreasonable determination of the facts in light
of the evidence presented in the state court proceedings.
U.S.C. § 2254(d)(1).
28
See Landers v. Warden, the Attorney General
of the State of Ala., 776 F.3d 1288, 1298 (11th Cir. 2015)
(addressing the issue of resolving a credibility dispute on the
basis of dueling affidavits).
the
presumption
findings.
application
of
Also, Petitioner has not overcome
correctness
of
28 U.S.C. § 2254(e)(1).
of
clearly
established
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the
state
court's
factual
There was no unreasonable
law
in
the
state
court's
decision
to
reject
the
Strickland
ineffectiveness
claim.
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 court's decision.
Petitioner raised the issue in her post conviction motion, the
trial court denied the motion, and the appellate court affirmed.
This Court concludes that the state court's adjudication of this
claim
is
not
contrary
to
or
an
unreasonable
application
of
Strickland, or based on an unreasonable determination of the facts.
B.
Ground Two
In her second ground, Petitioner claims her trial counsel was
ineffective
witnesses.
for
failure
Petition at 5.
to
call,
interview,
or
investigate
She specifically mentions counsel's
failure to call Doug House, an allegedly available witness, a
person she claims would have testified that he was a witness to the
offense and Petitioner was not present.
Id.
Petitioner further
states that she was unable to procure "multiple witnesses" on short
notice.
Id. at 5-6.
In her Rule 3.850 motion, Petitioner named five witnesses whom
she alleged witnessed the incident and would have testified that
Petitioner was not part of the attack.
These alleged witnesses
were George Curry, Ernestine Williams, Conny Henry, Christine
Jones, and Doug House. Ex. P, Motion for Post Conviction Relief at
3-4.
The trial court, in its order denying the motion after the
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evidentiary
hearing,
summarized
the
pertinent
testimony
of
Petitioner as follows:
At the hearing, the Defendant testified
that during a pre-trial court date, she gave
Mr. Hamlin a list of witnesses that she
desired to be called during the trial.
Transcript 8.
The Defendant named these
witnesses as Mary House, Christina Jones, and
Carols [sic] Johnson.
Transcript 8-9.
The
Defendant testified that, to her knowledge,
Mr. Hamlin never talked to or deposed any of
these witnesses. Transcript 9. The Defendant
further testified that she gave additional
names of witnesses to Mr. Hamlin including
George Curry, Doug House, Ernestine Williams,
and Connie Bristol on the night before trial.
Transcript 9-10. The Defendant testified she
believed that Mr. Hamlin never talked to these
witnesses either. Transcript 10. According
to the Defendant, prior to the court date
which the Defendant gave the first group of
witnesses to Mr. Hamlin, Mr. Hamlin never
asked the Defendant for any witnesses or
emphasized a need for securing such witnesses.
Transcript 10-11.
Ex. P, Order Denying Motion for Post Conviction Relief at 3.
The trial court summarized defense counsel's testimony as
follows:
Mr. Hamlin testified that he deposed all
the witnesses that were known in this case.
Transcript 18. Mr. Hamlin further testified
that he did his best to receive the names of
all the possible witnesses from the Defendant.
Transcript 18. Mr. Hamlin explained that the
evidence against the Defendant was strong and,
therefore, witnesses were very important to
refute the State's case. Transcript 18. Mr.
Hamlin acknowledged that there were a lot of
people around the crime scene, however, they
did not have anyone come forward with
favorable testimony for the defense until one
favorable witness called Mr. Hamlin a week
before trial. Transcript 18-19. Mr. Hamlin
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testified that he did not remember which
witnesses he ended up using during the trial.
Transcript at 19-20. Mr. Hamlin acknowledged
that the Defendant gave him the names and
addresses of other witnesses. Transcript 1920. However, based upon his discussions with
the Defendant, Mr. Hamlin concluded that these
witnesses were not valuable because they could
not address the key issue in this case - who
was responsible for cutting the victim.
Transcript 20. Therefore, because Mr. Hamlin
believed the witnesses named by the Defendant
could not speak to this issue, Mr. Hamlin did
not depose or call these people during the
trial. Transcript 20.
On cross, Mr. Hamlin testified that he
did not depose or talk to the witnesses named
by the Defendant. Transcript 24. Mr. Hamlin
explained he discussed with the Defendant what
testimony these witnesses could provide.
Transcript 24. Mr. Hamlin testified that the
only witness he believed to possess favorable
testimony was the one that contacted Mr.
Hamlin directly. Transcript 25.
Ex. P, Order Denying Motion for Post Conviction Relief at 4.
The trial court denied relief providing this explanation:
This Court concludes that the Defendant
has failed to establish ineffective assistance
in Ground Two. Mr. Hamlin explained that he
chose not to depose or call the witnesses
named by the Defendant because the Defendant
herself advised Mr. Hamlin what testimony
these witnesses were able to convey. Because
the key issue in this case was who was
responsible for cutting the victim during the
fight and since Defendant advised Mr. Hamlin
that these witnesses could not testify to this
issue, Mr. Hamlin chose not to contact these
witnesses.
In other words, because these
witnesses could not speak to the relevant
issue, whether the Defendant was responsible
for the knife attack, Mr. Hamlin felt
contacting these witnesses would not be
beneficial to the Defendant's case.
Hence,
this Court finds this to be a strategic
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decision of Mr. Hamlin.
Furthermore, Mr.
Hamlin testified that he emphasized to the
Defendant the need to find witnesses that
could provide testimony regarding who actually
stabbed the victim. Accordingly, this Court
finds Mr. Hamlin was acting as a reasonable
prudent attorney in his case. Furthermore, at
the evidentiary hearing, the Defendant did not
call the witnesses she alleged in her motion
to hold favorable testimony.
Failure to
secure the testimony of these witnesses
suggests that the Defendant's Ground Two
allegations are disingenuous.
Accordingly,
this Court concludes that the Defendant has
not met her burden of establishing ineffective
assistance of counsel.
Accordingly, Ground
Two is DENIED.
Id. at 5.
Of importance, in denying ground two of the Rule 3.850 motion,
the court recognized the standard for ineffectiveness as set forth
in Strickland by referencing the seminal case and quoting the
applicable
standard,
and
rejected
Petitioner's
claim
finding
Petitioner failed to meet her burden in establishing ineffective
assistance of trial counsel.
rejected
Petitioner's
Id. at 1-2, 5.
Sixth
Amendment
Thus, the trial court
claim
of
ineffective
assistance of counsel. The First District Court of Appeal affirmed
the decision of the trial court.
Ex. T.
Petitioner has not shown that a reasonable probability exists
that the outcome of the proceeding would have been different if her
lawyer had given the assistance that Petitioner has alleged should
have been provided. As noted by the trial court, Petitioner failed
to present the witnesses at the evidentiary hearing she submitted
would have provided favorable testimony.
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Also of note, at trial
defense counsel actually called Carlos Johnson, Nakia Dye, Tina
Denise Johnson, Mary House, and Petitioner.
For the defense,
Carlos Johnson testified that he did not see Petitioner involved in
the fight.
Ex. E at 132-35, 140.
Nakia Dye testified that
Petitioner was not there during the fight, and she did not show up
until afterwards.
Id. at 152-53, 163.
Tina Denise Johnson
testified that she did not see Petitioner during the fight. Id. at
183, 194.
Finally, Mary House testified that she did not see
Petitioner that evening.
Id. at 216, 222.
Therefore, the record supports the trial court's conclusion
that counsel made sound strategic decisions in preparing for trial
and defended Petitioner well within the range of professional
competence.
Indeed,
"[t]here
are
countless
ways
to
provide
effective assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client in the same
way."
Strickland, 466 U.S. at 689.
Accordingly, Petitioner's ineffectiveness claim is without
merit
since
she
has
resulting prejudice.
neither
shown
deficient
performance
nor
She is not entitled to relief on ground two
of the Petition, the claim of ineffective assistance of trial
counsel.
Deference under AEDPA should be given to the state
court's decision.
Petitioner raised the issue in his Rule 3.850
motion, the trial court denied the motion, and the appellate court
affirmed.
The state court's adjudication of this claim is not
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contrary to or an unreasonable application of Strickland, or based
on an unreasonable determination of the facts.
C.
Ground Three
In ground three, Petitioner claims her trial counsel was
ineffective
for
failure
to
object
to
a
specific
juror,
Ms.
Marshall, after the juror disclosed that she was related to the
victim. Petition at 6. While first recognizing the two-prong test
for evaluating claims of ineffective assistance of counsel as set
forth in Strickland, the trial court rejected this claim without an
evidentiary hearing.
Ex. P, Order Regarding Motion for Post
Conviction Relief at 1-3.
The trial court held:
Under Ground Three, the Defendant argues
counsel was ineffective for failing to object
to
one
of
the
jurors
in
her
case.
Specifically, the Defendant contends that this
juror was related to the victim and, despite
this, counsel failed to object to this juror.
The argument is without merit.
First, the
Defendant has failed to establish this juror
held an actual bias against the Defendant.
See Johnston v. State, 36 Fla. L. Weekly S122
(Fla. 2011) (To be entitled to relief on
postconviction claim of juror bias, the
defendant must show that the juror was
actually biased, not merely that there was
doubt about her impartiality.). Second, this
issue was addressed at trial. Transcript 127129. After relaying her relationship to the
Court, the issue was discussed in chambers.
The juror explained that "I just found out
that
I
am
related
to
[the
victim]."
Transcript 127. The juror further explained
that the victim was her cousin through her
father but that she had never met the victim
before.
Transcript 127.
The juror further
acknowledged that she would be able to remain
fair and impartial. Transcript 128. At [sic]
the juror left chambers, counsel acknowledged
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that the defendant preferred to have the juror
stricken.
Transcript 129.
Despite this,
counsel conceded that there was not a legal
ground to challenge [the] juror. Transcript
129.
This Court agrees.
"The test for
determining juror competency is whether the
juror can lay aside any bias or prejudice and
render a verdict solely on the evidence
presented and the instructions on the law
given by the court."
Busby v. State, 894
So.2d 88, 95 (Fla. 2004). The juror expressly
explained that her relationship with the
victim would not affect her impartiality.
Therefore, as there was no legal basis to
challenge the juror, any objection by counsel
would have been denied. Hence, this argument
lacks merit and counsel cannot be ineffective
for failing to raise a meritless claim.
Dailey v. State, 965 So.2d 38 (Fla. 2007).
Accordingly, Ground Three is DENIED.
Ex. P, Order Regarding Motion for Post Conviction Relief at 3.
Petitioner has not referenced any expression of bias on the
part of juror Marshall.
Brown v. Sec'y, Doc, No. 2:10-CV-304-
FTM29, 2013 WL 2147794, at *9 (M.D. Fla. 2013) (Not Reported in
F.Supp.2d) (rejecting an ineffectiveness claim when there was no
showing of bias on the part of jurors that were not challenged by
counsel).
Petitioner simply states that she was "not comfortable"
with Ms. Marshall serving on the jury.
Petition at 6.
Petitioner
has not shown that defense counsel's failure to object to this
juror was deficient or that it caused her prejudice.
In light of
these circumstances, defense counsel's performance was not outside
the wide range of professional competence. Furthermore, Petitioner
has failed to satisfy the prejudice prong of Strickland.
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The circuit court applied the appropriate standard, and found
Petitioner was not entitled to post conviction relief on this
ground. The appellate court affirmed the circuit court's decision.
Ex. T.
Thus, the decision to deny this ground is entitled to AEDPA
deference.
Upon review, there was no unreasonable application of
clearly established law in the state court's decision to reject the
Strickland ineffectiveness claim. The decision was not contrary to
clearly
established
unreasonable
federal
determination
of
law
the
and
was
facts.
not
based
Petitioner
on
is
an
not
entitled to habeas relief on ground three.
D.
Ground Four
In her fourth and final ground, Petitioner claims that she
received the ineffective assistance of counsel based on counsel's
failure to inform her of the maximum potential penalty if she
rejected the plea offer.
In addressing this ground after the
evidentiary hearing, the trial court noted the relevant testimony
of defense counsel at the evidentiary hearing:
At the hearing, the Defendant testified
that Mr. Hamlin never advised her about the
maximum possible sentence.
Transcript 7-8.
In contrast, Mr. Hamlin testified that he had
discussed the maximum possible sentence with
the Defendant.
Transcript 16.
Mr. Hamlin
further testified he believed the maximum
sentenced was indicated on the plea offer.
Transcript 12. However, as noted during the
defense's closing, the plea offer simply
stated the Defendant was charged with an
"F1/L8"
offense.
State's
Exhibit
2;
Transcript 27. The form does not explain what
type of sentence is associated with this level
offense. State's Exhibit 2; Transcript 27.
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Ex. P, Order Denying Motion for Post Conviction Relief at 4.
Once again, the court found defense counsel's testimony more
credible than that of Petitioner.
The court explained:
The allegations in Ground Four boil down
to an issue of credibility.
The Defendant
testified that she was never advised of her
maximum possible sentence. In contrast, Mr.
Hamlin testified that information regarding
the maximum possible sentence was conveyed to
the Defendant.
Given the nature of the
proceeding, this Court finds the testimony of
Mr. Hamlin more credible. The Defendant is a
convicted felon that has a strong motive to
provide inaccurate testimony in this case.
Mr. Hamlin does not have a similar motive.
Similarly, this Court takes into account the
fact that the Defendant testified under oath a
plea offer was never conveyed to her by Mr.
Hamlin, yet Mr. Hamlin produced a letter where
such information was disclosed. Accordingly,
this Court concludes that the Defendant has
not met her burden of establishing ineffective
assistance of counsel.
Accordingly, Ground
Four is DENIED.
Id. at 5-6.
Again, at the evidentiary hearing defense counsel testified
that he sent the plea offer to Petitioner.
at 14.
Ex. P, Motion Hearing,
He also attested that it was his practice to include a
score sheet with the offer.
Id. at 14-15.
He also testified that
he discussed the plea offer with Petitioner in detail.
Id. at 15.
He also remembered that Petitioner soundly rejected the offer and
insisted on going to trial.
Id.
Finally, he responded in the
affirmative to the question as to whether he had discussed the
possible maximum sentence that Petitioner could receive if she were
found guilty.
Id. at 16.
The trial court credited defense
- 17 -
counsel's testimony in rejecting ground four of the Petition.
First District Court of Appeal affirmed.
The
Ex. T.
Upon review, there was no unreasonable determination of the
facts in light of the evidence presented in the state court
proceedings. 28 U.S.C. § 2254(d)(1). In this instance, Petitioner
has not overcome the presumption of correctness of the state
court's factual findings.
28 U.S.C. § 2254(e)(1).
There was no
unreasonable application of clearly established law in the state
court's decision to reject the Strickland ineffectiveness claim.
Deference, under AEDPA, should be given to the state court's
decision.
Petitioner raised the issue in her post conviction
motion, the trial court denied the motion, and the appellate court
affirmed. This Court concludes that the state court's adjudication
of this claim is not contrary to or an unreasonable application of
Strickland, or based on an unreasonable determination of the facts.
Thus, Petitioner is not entitled to relief on the fourth ground of
her Petition.
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 accordingly
and close this case.
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3.
If Petitioner appeals the denial of her Petition, the
Court denies a certificate of appealability.2
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 22nd day of
June, 2015.
sa 6/18
c:
Tammera Smith
Counsel of Record
2
This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
constitutional right."
28 U.S.C. § 2253(c)(2).
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)).
Upon due consideration, this Court will deny a
certificate of appealability.
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