Brooks v. Secretary, Department of Corrections et al
Filing
21
ORDER denying the Amended Petition 9 and dismissing the case with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 2/22/2016. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WILLIE J. BROOKS,
Petitioner,
v.
Case No. 3:13-cv-221-J-34JBT
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Willie J. Brooks, an inmate of the Florida penal
system, initiated this action on February 28, 2013, by filing a pro
se Petition for Writ of Habeas Corpus (Petition; Doc. 1) under 28
U.S.C. § 2254. Brooks filed an Amended Petition (Amended Petition;
Doc. 9) on October 4, 2013. In the Amended Petition, Brooks
challenges a 2008 state court (Columbia County, Florida) judgment
of conviction for sale or delivery of cocaine and possession of
cocaine with intent to sell or deliver. Respondents have submitted
a
memorandum
in
opposition
to
the
Amended
Petition.
See
Respondents' Answer in Response to Order to Show Cause and Petition
for Writ of Habeas Corpus (Response; Docs. 16, 17) with exhibits
(Resp. Ex.). On November 15, 2013, the Court entered an Order to
Show Cause and Notice to Petitioner (Doc. 11), admonishing Brooks
regarding his obligations and giving Brooks a time frame in which
to submit a reply. Brooks neither submitted a reply nor requested
additional time to do so. This case is ripe for review.
II. Procedural History
On February 26, 2008, in Case No. 07-0415-CF, the State of
Florida charged Brooks with sale or delivery of cocaine (count one)
and possession of cocaine with intent to sell or deliver (count
two). Resp. Ex. A at 53-55, Amended Information. In May 2008,
Brooks proceeded to trial, see Resp. Ex. C, Transcript of the Jury
Trial (Tr.), at the conclusion of which, on May 8, 2008, a jury
found him guilty of sale or delivery of cocaine and possession of
cocaine with intent to sell or deliver, as charged. Id. at 132-33;
Resp. Ex. A at 133, Verdict. On July 16, 2008, the court sentenced
Brooks to a term of imprisonment of fifteen years for count one,
and a term of imprisonment of fifteen years for count two, such
terms to run concurrently with each other. Resp. Exs. A at 184-89,
Judgment; B, Transcript of the Motion for New Trial and Sentencing
Proceedings (Sentencing Tr.).
On direct appeal, Brooks, with the benefit of counsel, filed
an initial brief, arguing that the circuit court erred when it
adjudicated him guilty and sentenced him for both sale of cocaine
and possession of the same quantum of cocaine with intent to sell
in violation of the double jeopardy clause. Resp. Ex. D. The State
filed an answer brief. See Resp. Ex. E. On July 22, 2009, the
2
appellate court affirmed Brooks’ convictions per curiam without
issuing a written opinion. See Brooks v. State, 12 So.3d 754 (Fla.
1st DCA 2009); Resp. Ex. F. The mandate issued on August 7, 2009.
See Resp. Ex. G.
On March 4, 2010, Brooks filed a pro se motion for postconviction relief pursuant to Florida Rule of Criminal Procedure
3.850 (Rule 3.850 motion). Resp. Ex. H at 1-34. In his request for
post-conviction
relief,
Brooks
asserted
that
counsel
was
ineffective because he failed to: investigate, depose and call
three witnesses (Pat Roberts, David Allen and Kenny Tote) at trial
(ground one); inform him of “a lenient plea offer” made by the
State Attorney’s Office that would have resulted in a term of
incarceration of six months in the county jail followed by seven
years of probation (ground two); file a motion in limine to exclude
the testimony and evidence of a twenty-dollar bill (ground four);
object to the prosecutor’s remarks in closing argument (ground
five); impeach and effectively cross examine Michael Murphy, the
State’s key witness (ground six); and object to the videotape
introduced at trial and move for a mistrial to preserve the issue
for appellate review (ground seven). Additionally, Brooks asserted
that counsel was ineffective because he made “an insufficient
boilerplate motion for judgment of acquittal” (ground three), and
the trial court erred when it sentenced him as a habitual felony
offender
(ground
eight).
See
id.
3
Following
a
May
12,
2011
evidentiary hearing, see Resp. Ex. J, Transcript of the Evidentiary
Hearing (EH Tr.), the court denied the Rule 3.850 motion on June
21, 2011, see Resp. Ex. I at 108-24.
Brooks filed a notice of appeal on July 22, 2011, pursuant to
the mailbox rule. Resp. Ex. K. The appellate court directed Brooks
to show cause why the appeal should not be dismissed as untimely.
Resp. Ex. L. When the appellate court did not receive a response
from
Brooks,
the
court
dismissed
the
appeal
as
untimely
on
September 8, 2011. Resp. Ex. M. Brooks later filed a response to
the order to show cause and a motion for rehearing/reconsideration.
Resp. Exs. N; O. On November 16, 2011, the appellate court per
curiam dismissed Brooks’ appeal as untimely without prejudice to
file a motion for belated appeal. See Brooks v. State, 77 So.3d 213
(Fla. 1st DCA 2011); Resp. Ex. P. The mandate issued on February 7,
2012. See Resp. Ex. Q.
On December 2, 2011, Brooks filed a pro se petition for writ
of habeas corpus seeking a belated appeal of his post-conviction
motion. Resp. Ex. R. The appointed Special Master recommended that
Brooks be afforded a belated appeal. Resp. Ex. S. On March 22,
2012, the appellate court per curiam granted Brooks’ petition
seeking a belated appeal. See Brooks v. State, 82 So.3d 1210 (Fla.
1st DCA 2012); Resp. Ex. T. The mandate issued on April 17, 2012.
See Resp. Ex. U.
On June 11, 2012, Brooks filed a pro se initial appellate
brief, addressing grounds one through seven, and conceding ground
4
eight. Resp. Ex. Y. The State filed a notice that it did not intend
to file an answer brief. Resp. Ex. Z. On November 20, 2012, the
appellate court affirmed the trial court’s denial per curiam
without issuing a written opinion, see Brooks v. State, 101 So.3d
841 (Fla. 1st DCA 2012); Resp. Ex. AA, and the mandate issued on
December 18, 2012, see Resp. Ex. BB.
During the pendency of Brooks’ appeal of the circuit court’s
denial of his Rule 3.850 motion, he filed a Motion to Correct
Illegal Sentence and Emergency Petition for Writ of Habeas Corpus
(Rule 3.800 motion) pursuant to Florida Rule of Criminal Procedure
3.800(a) on September 26, 2011. Resp. Ex. CC at 1-11. In his Rule
3.800 motion, he asserted that his sentence is illegal because
Florida Statutes section 893.101 is facially unconstitutional. The
trial court denied the motion on December 12, 2011. Id. at 12-14.
On appeal, he filed an initial brief, see Resp. Ex. DD, and the
State filed a notice that it did not intend to file an answer
brief, see Resp. Ex. EE. The appellate court affirmed the circuit
court's denial per curiam on May 4, 2012, see Brooks v. State, 90
So.3d 835 (Fla. 1st DCA 2012); Resp. Ex. FF, and later denied
Brooks’ motion for rehearing on July 5, 2012, see Resp. Ex. GG. The
mandate issued on July 23, 2012. See Resp. Ex. HH.
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).
5
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 Brooks’ 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
6
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
relitigation
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, 562
U.S. 86, 98 (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
relief only ‘if the state court identifies the
7
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
establish that no fairminded jurist would have
reached the Florida court’s conclusion. See
8
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), cert. denied, 135 S.Ct. 2323 (2015); see also Hittson
v. GDCP Warden, 759 F.3d 1210, 1230 (11th Cir. 2014), cert. denied,
135 S.Ct. 2126 (2015).
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, 562 U.S. at 100 (holding and
reconfirming that Ҥ 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 Brooks’
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
9
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, 562 U.S. at 104. The Eleventh Circuit has recognized “the
absence of any iron-clad rule requiring a court to tackle one prong
of the Strickland test before the other.” Ward v. Hall, 592 F.3d at
1163. Since both prongs of the two-part Strickland test must be
10
satisfied to show a Sixth Amendment violation, “a court need not
address the performance prong if the petitioner cannot meet the
prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley,
209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If
it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often be so,
that course should be followed.” Strickland, 466 U.S. at 697.
The United States Supreme Court has long recognized that
Strickland’s two-part inquiry applies to ineffective assistance of
counsel claims arising out of the plea process. See Hill v.
Lockhart, 474 U.S. 52 (1985). In 2012, in companion decisions in
Missouri v. Frye, 132 S.Ct. 1399 (2012), and Lafler v. Cooper, 132
S.Ct. 1376 (2012), the Supreme Court clarified that the Sixth
Amendment right to the effective assistance of counsel extends
specifically “to the negotiation and consideration of plea offers
that lapse or are rejected.” In re Perez, 682 F.3d 930, 932 (11th
Cir. 2012) (per curiam) (footnote omitted). In Lafler, the Supreme
Court articulated a three-part test to prove prejudice in the
context of a foregone guilty plea.
In contrast to Hill, here the ineffective
advice led not to an offer’s acceptance but to
its rejection. Having to stand trial, not
choosing to waive it, is the prejudice
alleged. In these circumstances a defendant
must show that but for the ineffective advice
of counsel there is a reasonable probability
that the plea offer would have been presented
to the court (i.e., that the defendant would
have accepted the plea and the prosecution
would not have withdrawn it in light of
11
intervening circumstances), that the court
would have accepted its terms, and that the
conviction or sentence, or both, under the
offer’s terms would have been less severe than
under the judgment and sentence that in fact
were imposed.
132 S.Ct. at 1385; see Frye, 132 S.Ct. at 1409; Gissendaner v.
Seaboldt, 735 F.3d 1311, 1317-19 (11th Cir. 2013), cert. denied,
135 S.Ct. 159 (2014).
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). “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
12
considering whether to grant federal habeas relief from a state
court's decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th
Cir. 2004). As such, “[s]urmounting Strickland’s high bar is never
an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
VII. Findings of Fact and Conclusions of Law
A. Ground One
As ground one, Brooks asserts that the state court “committed
fundamental error” when it adjudicated him guilty and sentenced him
for both sale of cocaine and possession of the same quantum of
cocaine with intent to sell. Amended Petition at 4. Brooks argued
this issue on direct appeal, see Resp. Ex. D at 6-9, and the State
filed an answer brief, see Resp. Ex. E at 3-4. Ultimately, the
appellate court affirmed Brooks’ convictions and sentences per
curiam without issuing a written opinion. See Brooks, 12 So.3d 754;
Resp. Ex. F.
In its appellate brief, the State addressed the claim on the
merits, see Resp. Ex. E at 3-4, and therefore, the appellate court
may have affirmed Brooks’ conviction based on the State’s argument.
If the appellate court addressed the merits, the state court’s
adjudication of this claim is entitled to deference under AEDPA.
After a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of this claim was not
contrary to clearly established federal law and did not involve an
unreasonable application of clearly established federal law. Nor
13
was
the
state
court’s
adjudication
based
on
an
unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings. Accordingly, Brooks is not entitled to
relief on the basis of this claim.
Even assuming that the state court’s adjudication of this
claim is not entitled to deference, Brooks’ claim is, nevertheless,
without merit. Under Florida law, convictions and sentences for
sale and possession of the same quantum of cocaine do not violate
the Double Jeopardy Clause because the greater offense of sale of
a controlled substance does not necessarily include possession;
each crime includes an element that the other does not. See State
v. McCloud, 577 So.2d 939, 941 (Fla. 1991) (per curiam) (citing
Fla. Stat. § 775.021(4)(b) (Supp. 1988)); Seward v. State, 937
So.2d 767 (Fla. 5th DCA 2006) (holding that convictions for sale of
cocaine and possession of cocaine with intent to sell or deliver
did not violate prohibition against double jeopardy). Consequently,
there was no double jeopardy violation, and therefore, Brooks is
not entitled to federal habeas relief on ground one.
B. Ground Two
As ground two, Brooks asserts that counsel (Assistant Public
Defender Joseph Gerard Wirth) was ineffective because he failed to
investigate and call three witnesses (Pat Roberts, David Allen and
Kenneth Tote) at trial. Brooks raised the ineffectiveness claim in
his Rule 3.850 motion, as ground one, in state court, and the
14
circuit court held an evidentiary hearing concerning this issue.1
Identifying the two-prong Strickland ineffectiveness test as the
controlling law, the post-conviction court denied the Rule 3.850
motion with respect to this claim, stating in pertinent part:
In the instant motion, the Defendant
alleges that his trial counsel was ineffective
for failing to investigate and depose three
witnesses: Pat Roberts, David Allen, and Kenny
Tote. The Defendant claims that each of these
witnesses would have testified that the
Defendant “never sold Michael Murph[y] crack
cocaine and that the police officer [sic] the
gum container in his hand not Defendant.”
Motion at 7. The Defendant further claims that
he suffered prejudice because the testimony of
these three potential witnesses “would have
impeached the States [sic] witness Michael
Murphy.” Motion at 8.
This Court determined that it was unable
to rule on the merits of this ground without
an
evidentiary
hearing.
Therefore,
an
evidentiary hearing was held on May 12, 2011.
At said hearing, the Defendant claimed that
there were four potential witnesses that he
made his trial counsel aware of (David Allen,
Gloria
Brooks
(she
was
not
originally
mentioned in the Defendant’s motion), Kenneth
Toot, and Patricia Roberson). Evidentiary
Hearing Transcript at 6.[2] The Defendant
claimed that he made his trial counsel aware
of these witnesses while he was in jail.
Evidentiary Hearing Transcript at 7. The
Defendant’s trial counsel disagrees: “I
1
Any claim that Brooks was not provided counsel during the
Rule 3.850 proceeding, see Amended Petition at 5, is unfounded. Mr.
Clifton Wilson represented Brooks at the state court evidentiary
hearing. See EH Tr. at 1,2; Resp. Ex. H at 83-84, Order Setting
Evidentiary Hearing on Post-Conviction Motion (appointing counsel
to represent Brooks), filed February 22, 2011.
2
See EH Tr. at 6.
15
remember him talking about Mr. Allen. In fact,
he brought Allen to our office and I was able
to interview him. Other witnesses I don’t
recall him mentioning any other names to me as
being potential witnesses in the case.”
Evidentiary Hearing Transcript at 35. The
Defendant’s trial counsel explained exactly
how he handles any potential witnesses that
his clients inform him of:
POST-CONVICTION COUNSEL: Mr. Wirth,
as far as the witnesses, or lack
thereof, that Mr. Brooks gave you,
what do you normally do when
somebody gives you witnesses?
TRIAL COUNSEL: If I have a good
address, I’ll simply prepare a
discovery disclosure and file it
with the clerk and send a copy to
the State. If I don’t have addresses
or if I just have a phone number, I
work with one of my investigators to
try to track down a person, get an
address so that we could disclose
them and get at least a brief
statement from them.
POST-CONVICTION COUNSEL: Okay. So if
he gives you an address and a name,
then that’s somebody you immediately
disclose?
TRIAL COUNSEL: Correct.
POST-CONVICTION
always do that?
COUNSEL:
Do
you
TRIAL COUNSEL: Yes, sir.
Evidentiary Hearing Transcript at 45. In
addition to describing what he would have done
if the Defendant had made him aware of any
potential witnesses, the Defendant’s trial
counsel explained that one of the witnesses,
Mr. David Allen, was brought to his attention
by the Defendant.
16
STATE:
Okay.
Let
me
talk
specifically now, Mr. Wirth, if you
don’t mind, about the allegation
that Mr. Brooks provided you with,
at one point was three names, now
appears to be four names. What do
you recall regarding a conversation
w[hen] Mr. [Brooks] asked you to
look
for
some
witnesses
to
investigate his case?
. . . .
TRIAL COUNSEL: I remembered [sic]
him talking about Mr. Allen. In
fact, he brought Allen to our office
and I was able to interview him.
Other witnesses I don’t recall him
mentioning any other names to me as
being potential witnesses in this
case.
. . . .
STATE: Can you please check your
notes and see if you have any notes
regarding any other names other than
Mr. David Allen? (Brief pause in
proceedings while witness refers to
his file)
TRIAL COUNSEL: No, Mr. Allen was the
only person I was told was nearby
and could [have] seen what was going
on.
Evidentiary Hearing Transcript at 35-36. The
Defendant’s trial counsel, in fact, deposed
Mr. Allen. Evidentiary Hearing Transcript at
37. However, the Defendant’s trial counsel did
not call Mr. Allen as a witness at the
Defendant's trial:
STATE: All right. And, Mr. Wirth,
did you call that witness [Mr.
Allen] as a - on behalf of the
defense in the trial for Willie
Brooks?
17
TRIAL COUNSEL: No, I didn’t.
STATE: And why did you decide not to
call him?
TRIAL COUNSEL: He had claimed that
he didn’t see the CI [(confidential
informant)] at the house on the day
that the sale was alleged to have
taken place. However he was mistaken
by the CI’s race.
STATE: He was mistaken about the
race?
TRIAL COUNSEL: Yes.
STATE: Okay. What was the race of
the CI in this case?
TRIAL COUNSEL: He was white.
STATE: And during deposition what
did he say that the supposed Michael
Murphy that he knew, what race was
that person?
TRIAL COUNSEL: He said he was black.
STATE: Okay. Was -- other than the
race, was Mr. Allen certain as to
the date and the facts as Mr. Brooks
had conveyed them to you?
TRIAL COUNSEL: No. He -- his
description of it was a little
confusing. He talked about Spurlock
coming there and walking around his
house. Walking around Mr. Brooks[’s]
house. And at one point he said Mr.
Brooks isn’t there. And at another
time Mr. Brooks is sitting there.
And it didn’t match up with what I
was told. That and along with Mr.
Allen’s prior convictions, at least
the ones that he told us about.
18
STATE: Okay. Did you discuss with
Mr. Brooks, your client in this
case, the testimony that David Allen
had provided you at deposition?
TRIAL COUNSEL: May I refer to my
notes?
STATE: Sure.
TRIAL COUNSEL: I believe I did, but
I didn’t document it.
STATE: Okay. And the best that you
can recall was there -- was that a
strategic decision that you made not
to call that witness?
TRIAL COUNSEL: Yes.
STATE: And what was the reasoning
behind not calling Mr. Allen?
TRIAL COUNSEL: I think the mistake
as to the CI’s race would have been
something to impeach him on at trial
and it would have lost a good deal
of credibility. And if Mr. Brooks
had decided to take the stand it
would have conflicted with his own
testimony.
. . . .
STATE: How about the convictions
that Mr. Allen said that [he] had
been convicted of?
TRIAL COUNSEL: He had at least two
felonies that he mentioned to us in
depositions.
STATE: And were you concerned that,
once again, how the jury would see a
witness like that even if Mr. Brooks
didn’t take the stand that the jury
would
now
know
that
he
was
19
associating or with
were convicted?
persons
that
TRIAL COUNSEL: Yes. And Mr. Allen
wasn’t certain as to his convictions
exactly what they were for, if they
had been pled down, and any mistake
on that would bring to light the
specific charges that he would have
had in his history.
Evidentiary Hearing Transcript at 37-40. Based
on the above discussion, this Court finds that
the
Defendant’s
trial
counsel
clearly
investigated Mr. David Allen and his potential
testimony and made a strategic decision not to
call him as a witness. “Strategic decisions of
counsel
will
not
be
second-guessed
on
collateral attack.” Wilson v. Wainwright, 474
So. 2d 1162, 1163 (Fla. 1985). Therefore, the
Defendant’s trial counsel was not ineffective
with regard to this specific allegationfailure to investigate and call Mr. David
Allen.
Next, this Court will address the second
witness mentioned at the hearing, Gloria
Brooks. . . . However, assuming arguendo that
the Defendant had properly pled Gloria Brooks
as a potential witness, his trial counsel
would not have been ineffective for failing to
call her. As the Defendant admits, Mrs.
Brooks, the Defendant’s wife, was not present
at the scene during the alleged sale of
cocaine.
STATE: And then Gloria Brooks?
DEFENDANT: I called her and told her
over the phone what was going on,
Pete Spurlock standing in my yard
with dope in his hand, saying it’s
mine, in a blue container.
STATE: And Mr. Brooks, since you
called her on the phone, where was
she as far as you know?
20
DEFENDANT: She was home.
STATE: Do you use
phone to call her?
your
cellular
DEFENDANT: Yes, ma’am, I did.
STATE: Or did you use David Allen’s
phone?
DEFENDANT:
I
don’t
use
other
people’s phones. I have my own.
STATE:
Okay.
So
the
best
of
your understanding Gloria Brook[s]
is at your home, your [sic] over DEFENDANT: No, she wasn’t
home, she was at her home.
at
my
STATE: Okay. So would Ms. Brooks
have seen Mr. Spurlock -DEFENDANT: Pete Spurlock.
STATE: - from where she was?
DEFENDANT: No. She can’t see him
from Lake Butler.
Evidentiary Hearing Transcript at 27-28.
Accordingly, Gloria Brooks was not present
prior to or during the alleged sale and would
not have been able to present any eyewitness
testimony of any value. Accordingly, even if
the Defendant had made his trial counsel aware
of her existence and properly included her in
his 3.850 motion, the Defendant’s trial
counsel’s behavior would still not have
amounted to ineffective assistance of counsel
for failure to call Gloria Brooks as a
witness.
Finally,
regarding
the
final
two
witnesses, Kenneth Tote and Pat Roberts, this
Court
agrees
with
the
Defendant’s
post-conviction counsel, there is “a conflict
in
the
testimony.”
Evidentiary
Hearing
21
Transcript at 58. The Defendant steadfastly
maintains that he informed his trial counsel
of three (or four) potential witnesses. The
Defendant’s trial counsel disagreed and
recalled only being made aware of Mr. David
Allen. The Defendant’s trial counsel further
explained exactly what he would have done if
the Defendant had made him aware of any
additional
potential
witnesses.
As
the
Defendant’s
trial
counsel
properly
investigated and deposed Mr. David Allen, and
there is no reason to doubt whether he would
have done the same with additional potential
witnesses, and the Defendant’s trial counsel’s
notes failed to reflect that he was made aware
of the additional potential witnesses, this
Court finds that the Defendant’s trial counsel
was not made aware of any additional witnesses
by the Defendant. If a trial counsel is not
advised by his or her client of the existence
of any potential witnesses, trial counsel
cannot be ineffective for failing to call them
at trial. Accordingly, the Defendant’s trial
counsel was not ineffective with regard to
Ground One. Ground One is DENIED.
Resp. Ex. I at 109-13 (emphasis deleted). On Brooks’ appeal, the
appellate court affirmed the trial court's denial per curiam. See
Brooks, 101 So.3d 841; Resp. Ex. AA.
Given the record in the instant action, the appellate court
may have affirmed the denial of Brooks’ motion for post-conviction
relief on the merits. If the appellate court addressed the merits,
Brooks 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
22
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, Brooks is not entitled to relief
on the basis of this claim.
Moreover, even assuming that the appellate court did not
affirm the denial of the post-conviction motion on the merits or
that the state courts’ adjudications of the claim are not entitled
to deference under AEDPA, Brooks’ ineffectiveness claim is still
without merit. The record supports the trial court’s conclusion.
After the evidentiary hearing in state court concerning this issue,
the circuit court resolved the credibility issue in favor of
believing counsel’s testimony over that of Brooks. See Resp. Ex. I
at
112-13;
EH
Tr.
at
58.
The
Court
notes
that
credibility
determinations are questions of fact. See Martin v. Kemp, 760 F.2d
1244, 1247 (1985) (per curiam) (finding that factual issues include
basic, primary, or historical facts, such as external events and
credibility determinations). Here, Brooks has not rebutted the
trial court’s credibility finding by clear and convincing evidence.
See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Given the
trial court’s credibility determination, Brooks’ claim is wholly
unsupported, and therefore must fail.
In
evaluating
the
performance
prong
of
the
Strickland
ineffectiveness inquiry, there is a strong presumption in favor of
23
competence. See Anderson v. Sec’y, Fla. Dep’t of Corr., 752 F.3d
881, 904 (11th Cir. 2014), cert. denied, 135 S.Ct. 1483 (2015). 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). Thus, Brooks 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).
24
On this record, Brooks has failed to carry his burden of
showing that his counsel’s representation fell outside that range
of reasonably professional assistance. As the Eleventh Circuit has
recognized, “[t]here is much wisdom for trial lawyers in the adage
about
leaving
well
enough
alone.”
Waters,
46
F.3d
at
1512.
Counsel’s decision as to “[w]hich witnesses, if any, to call, and
when to call them, is the epitome of a strategic decision, and it
is one that [the court] will seldom, if ever, second guess.” Id.;
Chandler v. United States, 218 F.3d 1305, 1314 n.14 (11th Cir.
2000) (describing the decision to call some witnesses and not
others as “the epitome of a strategic decision” (quotation marks
and citation omitted)). Moreover, “evidence about the testimony of
a putative witness must generally be presented in the form of
actual testimony by the witness or on affidavit. A defendant cannot
simply state that the testimony would have been favorable; selfserving speculation will not sustain an ineffective assistance
claim.” United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991).
Even
assuming
arguendo
deficient
performance
by
defense
counsel, Brooks 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 investigated and called David
Allen, Gloria Brooks, Pat Roberts and Kenneth Tote as witnesses at
trial. Brooks’ ineffectiveness claim is without merit since he has
shown
neither
deficient
performance
25
nor
resulting
prejudice.
Accordingly, Brooks is not entitled to federal habeas relief on
ground two.
C. Ground Three
As ground three, Brooks asserts that counsel was ineffective
because counsel failed to inform Brooks of “a lenient plea offer”
made
by
the
State
that
would
have
resulted
in
a
term
of
incarceration of six months in the county jail followed by seven
years of probation. See Amended Petition at 6. Brooks raised the
ineffectiveness claim in his Rule 3.850 motion, as ground two, in
state court, and the circuit court held an evidentiary hearing
concerning this issue. Ultimately, the post-conviction court denied
the Rule 3.850 motion with respect to this claim, stating in
pertinent part:
In Ground Two, the Defendant claims that
his trial counsel was ineffective because he
failed to inform the Defendant that the State
Attorney’s Office had offered a “lenient plea
offer of six (6) months County Jail time
followed by seven (7) years probation.”
Motion at 9. The Defendant claims that his
trial counsel failed to communicate this offer
to him and, had it been properly conveyed, the
Defendant would have accepted the lesser
offer.
The Defendant relies on the following
brief excerpt from the Motion for New Trial
and Sentencing Proceedings Transcript to show
that a plea offer was made by the State:
TRIAL COUNSEL: [The Defendant] was
previously extended the offer of
seven years of probation and six
months of county jail. (Motion for
26
New Trial and Sentencing Proceedings
Transcript at 7.).[3]
. . .
STATE: Your Honor, the Defense
argued, I guess, that at some point
the State had offered probation,
therefore,
Your
Honor
should
consider that. I just want to
clarify to the Court that at the
time that that offer was made that
was before the new charges came up.
(Motion for New Trial and Sentencing
Proceedings Transcript at 10.)[4]
This Ground was argued during the
evidentiary hearing. Again, there is a
conflict
in
the
testimony:
when
the
Defendant’s post-conviction counsel asked
whether his trial counsel “ever talk[ed] to
[him] about a plea offer,” the Defendant
responded, “If he did I don’t know nothing
about it.” (Evidentiary Hearing Transcript at
11); while the Defendant’s trial counsel
testified that he recalled conveying the plea
offer to the Defendant and that the Defendant
“said that he didn’t do it, and he wasn’t
taking any offers.” Evidentiary Hearing
Transcript at 40.
Once again, this Court faces a conflict
in the testimony and must determine whether
the Defendant’s trial counsel made him aware
of the State’s plea offer. After a careful
review of the court record and the transcript
from the evidentiary hearing, this Court finds
that the Defendant’s trial counsel, in
accordance with his testimony during the
evidentiary hearing, informed the Defendant
about the plea offer and that the Defendant
refused to accept that offer. This is further
3
4
See Sentencing Tr. at 7.
See Sentencing Tr. at 10; EH Tr. at 40-41; Resp. Ex. A at
99.
27
supported by the Defendant’s claim, in both
his 3.850 motion and at the evidentiary
hearing, that the first time he had heard of
any plea offer by the State was when a “law
clerk” in prison pointed out to him the brief
discussion in the Motion for New Trial and
Sentencing Proceedings Transcript.[5] Contrary
to the Defendant’s claim, the State pointed
out during its closing argument at the end of
the evidentiary hearing that the Defendant was
present during his sentencing hearing when the
plea offer was briefly referred to by the
Defendant’s trial counsel and again mentioned
by the State. Evidentiary Hearing Transcript
at 63. As such, this Court finds that the
Defendant was informed of the plea offer by
his trial counsel. Therefore, the Defendant’s
trial counsel’s conduct regarding Ground Two
was not ineffective. Ground Two is DENIED.
Resp. Ex. I at 113-14 (emphasis deleted). On appeal, the appellate
court affirmed the trial court's denial per curiam.
Assuming the appellate court affirmed the denial on the
merits, the Court considers this claim 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 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, Brooks is not entitled to relief on the basis of
this claim.
5
See Sentencing Tr. at 11-12.
28
Moreover, even assuming that the appellate court did not
affirm the denial of the post-conviction motion on the merits or
that the state courts' adjudications of this claim are not entitled
to
deference
under
AEDPA,
Brooks’
ineffectiveness
claim,
nevertheless, is without merit. The record fully supports the trial
court's conclusion. After the evidentiary hearing in state court
concerning this issue, the circuit court resolved the credibility
issue in favor of believing counsel’s testimony over that of
Brooks. See Resp. Ex. I at 113 (stating “this Court finds that the
Defendant’s trial counsel, in accordance with his testimony during
the evidentiary hearing, informed the Defendant about the plea
offer and that the Defendant refused to accept that offer”). Here,
Brooks has not rebutted the trial court’s credibility finding by
clear and convincing evidence. Given the trial court’s credibility
determination, Brooks’ claim is wholly unsupported, and therefore
must fail.
As previously discussed, the United States Supreme Court held
that defense counsel has a duty to communicate formal offers from
the prosecution to accept a plea on terms that may be favorable to
the accused, prior to the offer’s expiration, and defense counsel’s
failure to inform a defendant of a written plea offer before it
expired satisfies the deficient performance prong of the Strickland
standard. See Frye, 132 S.Ct. at 1409. The Court further held that
to show prejudice from ineffective assistance of counsel where a
29
plea offer has lapsed or been rejected because of counsel’s
deficient performance, a defendant must demonstrate a reasonable
probability he would have accepted the earlier plea offer had he
been afforded effective assistance of counsel, and he must also
demonstrate a reasonable probability the plea would have been
entered without the prosecution canceling it or the trial court
refusing to accept it, if they had the authority to exercise that
discretion under state law. Id.
Since both prongs of the two-part Strickland test must be
satisfied to show a Sixth Amendment violation, a court does not
need to address the performance prong if the petitioner cannot meet
the prejudice prong, and vice-versa. See Ward, 592 F.3d at 1163. On
this record, Brooks has failed to carry his burden of showing that
his counsel's representation fell outside that range of reasonably
professional assistance. At trial, the defense theory was that
Brooks was not the man who sold cocaine to Mike Murphy on April 25,
2007. See Tr. at 15, 106. Moreover, at the evidentiary hearing in
May 2011, defense counsel testified that he recalled conveying the
State’s plea offer to Brooks and that Brooks said that he did not
commit the offenses, and therefore, would not accept any offers.
See EH Tr. at 40. On this record, Brooks’ ineffectiveness claim is
without
merit
since
he
has
not
shown
deficient
performance.
Accordingly, Brooks is not entitled to federal habeas relief on
ground three.
30
D. Ground Four
As ground four, Brooks asserts that counsel was ineffective
because he failed to file a motion in limine to exclude testimony
on evidence that was not admitted at trial. See Amended Petition at
7. Brooks raised the ineffectiveness claim in his Rule 3.850
motion, as ground four, in state court. Ultimately, after an
evidentiary hearing on other issues,6 the post-conviction court
denied the Rule 3.850 motion with respect to this claim, stating in
pertinent part:
The Defendant claims that his trial
counsel was ineffective for failing “to timely
file a motion in limie [sic] to exclude the
[S]tate from introducing testimony evidence of
a twenty (20) dollar bill not entered into
evidence.” Motion at 15. The Defendant
essentially argues that his trial counsel
should have filed a pre-trial motion in limine
which sought to have any mention of a twenty
dollar bill prohibited at trial because (1) it
was not and could not be admitted into
evidence, and (2) its “probative value” was
“substantially outweighed by the likelihood of
unfair
prejudice.”
Motion
at
16.
The
Defendant, however, fails to establish why it
would have been appropriate and necessary for
his trial counsel [to] file a motion in
limine.
A motion in limine is the proper method
to exclude the introduction of prejudicial
evidence. A motion in limine seeks to prevent
any reference to the offending or prejudicial
6
See Resp. Ex. I at 107-08 (“At this hearing, only Grounds
One, Two, Five, and Six were argued as this Court had determined
that the remaining four grounds (Three, Four, Seven, and Eight)
could be addressed and resolved based upon the record and
applicable law.”).
31
evidence during trial. Here, the Defendant
alleges that “the testimony evidence of a
twenty (20) dollar bill” should have been
excluded by way of a timely filed motion in
limine. The Defendant, however, is incorrect.
The Defendant was charged with two drug
offenses. One of the offenses, Count One, was
for the sale or delivery of cocaine. In order
for the State to show that a sale had
occurred, the State would need to establish
(at a minimum) that one party (presumably the
Defendant) possessed cocaine; that another
party (here, the confidential informant)
desired to purchase the cocaine; and that the
two parties made an exchange (often, as here,
cocaine is exchanged for money). In order to
establish that the Defendant committed the
crime of S[ale] or Delivery of Cocaine, the
State was required to delve into the fact that
the Defendant was given a sum of cash by the
confidential
informant.[7]
The
testimony
regarding this sum of cash was certainly
prejudicial to the Defendant - it helped
tremendously to show that the sale had
occurred. However, the probative value of the
evidence outweighed any prejudice. In order
for the State to show that a sale occurred,
it must establish that the Defendant sold the
cocaine to the confidential informant.[8] The
fact
that
the
confidential
informant
furnished a sum of money to the Defendant in
exchange for the cocaine he received is highly
probative in this case as it relates directly
to one of the elements of Count One. This
Court is well aware that the twenty dollar
bill that the Defendant refers to was not
admitted as evidence. However, this Court
would like to point out that after the
confidential informant gave the twenty-dollar
bill to the Defendant, the twenty-dollar bill
became the property of the Defendant. The
State was subsequently unable to recover the
7
See Tr. at 119 (court’s instructions to the jury).
8
See Tr. at 118 (court’s instructions to the jury).
32
bill;[9] however, the State and its witnesses
were certainly permitted to discuss the bill
even without its admittance into evidence. As
such, the Defendant’s trial counsel was not
legally obligated to file a motion in limine.
Furthermore, even if the Defendant’s trial
counsel had filed a motion in limine seeking
to exclude any testimony or reference to the
unrecovered twenty-dollar bill, the motion
would have been denied by this Court. As case
law has repeatedly held, a defendant’s trial
counsel cannot be found to be ineffective for
failing to raise a meritless claim. Dailey v.
State, 965 So.2d 38, 47 (Fla. 2007); Card v.
State, 498 So.2d 1169 (Fla. 1986). As such,
Ground Four is accordingly DENIED.
Resp. Ex. I at 115-16 (emphasis deleted). On appeal, 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 the claim 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 the 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, Brooks is
not entitled to relief on the basis of this claim.
9
See Tr. at 34, 37, 39, 40, 50, 55.
33
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, Brooks’ 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
file a motion in limine to exclude testimony referring to the
twenty-dollar bill, Brooks has not shown prejudice. Thus, Brooks’
ineffectiveness claim fails because he has shown neither deficient
performance nor resulting prejudice. Accordingly, Brooks is not
entitled to federal habeas relief on ground four.
E. Ground Five
As ground five, Brooks asserts that Florida Statutes sections
893.13 and 893.101 are unconstitutional, and the trial court erred
when it sentenced him to a term of incarceration of fifteen years
as a habitual felony offender for a “strict liability offense.”
Amended Petition at 8. Brooks raised the claim in his Rule 3.800
motion in state court. See Resp. Ex. CC at 1-11. On December 12,
2011, the court denied the Rule 3.800 motion with respect to this
claim, stating in pertinent part:
The Defendant argues that a recent
federal decision finding section 893.13, Fla.
Stat., unconstitutional renders his Columbia
County
convictions
and
sentences
void.
34
However, the Defendant's motion is without
merit for two reasons: (1) this Court is not
bound by the federal decision that the motion
relies upon; and (2) this Court is bound by
contrary decisions of the Florida District
Courts of Appeal.
On July 27, 2011, the United States
District Court for the Middle District of
Florida, Orlando Division, held that Florida’s
drug possession and trafficking statute, §
893.13, Fla. Stat., as amended by § 893.101,
Fla. Stat., is unconstitutional on its face
under the United States Constitution’s due
process clause because it eliminates the
requirement that the State prove that the
Defendant had knowledge that the substances
she or he possessed or delivered were illegal.
Shelton v. Sec’y. Dept. of Corr., No.
6:07-cv-839-Orl-35-KRS, 2011 WL 3236040 (M.D.
Fla. July 27, 2011).[10]
The court reasoned that, because a person
can be punished for this offense without proof
of intent, section 893.13, Fla. Stat. is
essentially a strict liability offense, which
the court noted are generally disfavored.
Further, the court found that the statutory
construction
does
not
comply
with
well-established
principles
of
strict
liability offenses for three reasons: (1) the
punishment
is
far
too
severe
(minimum
mandatory sentences of up to thirty years and
a $100,00[0] fine etc.,) where comparable
strict
liability
offenses
are
punished
typically by a maximum of one to two years);
(2)
a
conviction
under
the
statutes
"besmirch[es] a person’s reputation," causing
a substantial social stigma; and (3) the
statute
“regulates
inherently
innocent
conduct.” Id. The instant petition requests
that this Court follow the Shelton decision.
10
Shelton v. Sec’y, Dep’t of Corr., 802 F. Supp. 2d 1289 (M.D.
Fla. 2011), rev’d, Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348
(11th Cir. 2012), cert. denied, 133 S.Ct. 1856 (2013).
35
However, this Court is bound by contrary
decisions of the Florida District Courts of
Appeal. First, the rules of stare decisis do
not require the courts of Florida to follow
federal district court decisions that construe
Florida’s
substantive
law.
Bridges
v.
Williamson, 449 So.2d 400 (Fla. 2d DCA 1984).
See also Stonom v. Wainwright, 235 So.2d 545,
547 (Fla. 1st DCA 1970) (of even more
importance, it is axiomatic that a decision of
a Federal trial court, while persuasive if
well reasoned, is not by any means binding on
the courts of a state); Mora v. Abraham
Chevrolet-Tampa, Inc., 913 So.2d 32 (Fla. 2d
DCA 2005) (In the realm of federal statutory
law, decisions of federal circuit courts are
persuasive, but state courts are bound only by
decisions of the United States Supreme Court).
Second, several District Courts of
Appeal, including the First District, have
addressed and upheld the constitutionality of
section 893.13, Fla. Stat., as amended by
section 893.101, Fla. Stat., to eliminate
knowledge of the illicit nature of the
substances as an element of the offense.
Harris v. State, 932 So.2d 551 (Fla. 1st DCA
2006); Burnette v. State, 901 So. 2d 925 (Fla.
2d DCA 2005); Taylor v. State, 929 So.2d 665
(Fla. 3d DCA 2006); Wright v. State, 920 So.2d
2l (Fla. 4th DCA 2005).
Since the Shelton decision, the First
District Court of Appeal has reaffirmed its
holding that section 893.13, Fla. Stat., as
amended by section 893.101, Fla. Stat., is
constitutional. See Holmes v. State, 36 Fla.
L. Weekly D2222 (Fla. 1st DCA Oct. 6, 2011)
(“Appellant asserted that, at the time the
initial brief was filed, appellant’s counsel
was unaware of a constitutional challenge to
the drug possession statute raised in Shelton
v. Secretary, Department of Corrections, 23
Fla. L. Weekly Fed. D11,_ F.Supp.2d _, 2011 WL
3236040 (M. D. Fla. July 27, 2011). This court
previously addressed the very same issue
raised in Shelton in Williams v. State, 45
So.3d 14 (Fla. 1st DCA 2010), and upheld the
36
drug possession statute as constitutional.
Accordingly, we deny the request to provide
supplemental briefing on the matter.”). Also,
on October 14, 2011, the First District again
reaffirmed
that
section
893.13
is
constitutional and forcefully rejected the
Shelton holding. Flagg v. State, 36 Fla. L.
Weekly 02276 (Fla. 1st DCA Oct. 14, 2011).
Therefore, because this Court is not
bound by the Shelton decision and, instead, is
bound by the contrary decisions of the First
District Court of Appeal upholding the
constitutionality of section 893.13, Fla.
Stat., as amended by section 893.101, Fla.
Stat., this Court finds that section 893.101,
Fla. Stat. is not unconstitutional. As the
statute
is
not
unconstitutional,
the
Defendant’s conviction is not contrary to law.
Id. at 12-14. On Brooks’ appeal, the appellate court affirmed the
circuit court's denial per curiam on May 4, 2012, see Brooks, 90
So.3d 835; Resp. Ex. FF, and later denied Brooks’ motion for
rehearing on July 5, 2012, see Resp. Ex. GG.
Assuming the appellate court affirmed the denial on the
merits, the Court considers this claim 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 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
37
proceedings. Thus, Brooks is not entitled to relief on the basis of
this claim.
Moreover, even assuming that the appellate court did not
affirm the denial of the post-conviction motion on the merits or
that the state courts' adjudications of this claim are not entitled
to
deference
under
AEDPA,
Brooks’
ineffectiveness
claim,
nevertheless, is without merit. The record fully supports the trial
court's conclusion. Brooks’ arguments based on Shelton v. Sec’y,
Dep’t of Corr., 802 F. Supp. 2d 1289 (M.D. Fla. 2011), are
unconvincing. See Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348
(11th Cir. 2012) (reversing the district court’s decision that
Florida’s drug statute is unconstitutional for failing to provide
a mens rea element; holding that the district court’s failure to
accord deference to the state court decision violated AEDPA); State
v. Adkins, 96 So.3d 412, 423 (Fla. 2012) (“The statutory provisions
do not violate any requirement of due process articulated by this
Court or the Supreme Court. In the unusual circumstance where a
person possesses a controlled substance inadvertently, establishing
the
affirmative
defense
available
under
section
893.101
will
preclude the conviction of the defendant.”). Accordingly, in light
of Shelton, 691 F.3d 1348, Brooks is not entitled to federal habeas
relief on ground five.
38
VIII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Brooks 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, Brooks “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
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
39
consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Amended Petition (Doc. 9) is DENIED, and this action
is DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment denying the
Amended Petition and dismissing this case with prejudice.
3.
If Brooks appeals the denial of the Amended Petition, the
Court denies a certificate of appealability. Because this Court has
determined that a certificate of appealability is not warranted,
the Clerk shall terminate from the pending motions 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.
4.
The Clerk of the Court is directed to close this case and
terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 22nd day of
February, 2016.
sc 2/19
c:
Willie J. Brooks, FDOC #I02657
Counsel of Record
40
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