James v. Palmer et al

Filing 58

ORDER denying the Amended Petition 28 and dismissing the case with prejudice, with instructions to the Clerk. Signed by Judge Marcia Morales Howard on 8/17/2015. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

WILLIAM JAMES, JR.,
Petitioner,
v.

Case No. 3:13-cv-341-J-34PDB

SECRETARY OF THE FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner William James, Jr., an inmate of the Florida penal
system, initiated this action on March 29, 2013, by filing a pro se
Petition for Writ of Habeas Corpus (Doc. 1) under 28 U.S.C. § 2254.
James filed an Amended Petition (Doc. 5) on April 22, 2013; a
Second Amended Petition (Doc. 12) on June 28, 2013; a Third Amended
Petition (Amended Petition; Doc. 28) on February 10, 2014; an
Amended Memorandum of Law (Amended Memorandum; Doc. 25) on February
3, 2014; and supplements (Docs. 31, 34) in April 2014. In the
Amended Petition (Doc. 28), James challenges a 2008 state court
(Duval County, Florida) judgment of conviction for burglary of a
dwelling. Respondents have submitted a memorandum in opposition to

the Petition. See Respondents' Answer to Petition for Writ of
Habeas Corpus (Response; Doc. 43) with exhibits (Resp. Ex.). On
April 23, 2014, the Court entered an Order to Show Cause and Notice
to

Petitioner

(Doc.

33),

admonishing

James

regarding

his

obligations and giving James a time frame in which to submit a
reply. James submitted a brief in reply on May 19, 2015. See
Petitioner's Amended Reply (Doc. 56). This case is ripe for review.
II. Procedural History
On May 7, 2008, the State of Florida charged James with
burglary of a dwelling, the property of Shakekee M. Bryant (count
one); burglary of a dwelling, the property of Demetria Singleton
(count two); and burglary of a dwelling, the property of Vicky
Littles (count three). Resp. Ex. 2, Amended Information. James
proceeded to trial on count one in September 2008, see Resp. Ex. 4,
Transcript of the Jury Trial (Tr.), at the conclusion of which, on
September 10, 2008, a jury found him guilty of burglary of a
structure, as charged, with a finding that the structure was a
dwelling, see Resp. Ex. 5, Verdict; Tr. at 199. On October 9, 2008,
the court sentenced James to a term of imprisonment of thirty years
for count one with a minimum mandatory fifteen-year term as a
prison releasee reoffender. Resp. Exs. 8 at 104-05; 10, Judgment.
On appeal, James, with the benefit of counsel, filed an
initial brief in April 2009, arguing that the trial court erred
when it gave the standard criminal jury instruction on stealth.

2

Resp. Ex. 12. The State filed an answer brief. Resp. Ex. 13. On
November 18, 2009, the appellate court affirmed the trial court's
decision per curiam without issuing a written opinion, see James v.
State, 23 So.3d 112 (Fla. 1st DCA 2009) (per curiam); Resp. Ex. 14,
and the mandate issued on December 4, 2009, see Resp. Ex. 14. James
did not seek review in the United States Supreme Court.
James filed a pro se motion for post conviction relief
pursuant to Florida Rule of Criminal Procedure 3.850 on June 21,
2010, pursuant to the mailbox rule. Resp. Ex. 15. He also filed
several amendments and supplements to the motion. Resp. Exs. 16;
17; 18; 19; 20. He filed an amended motion on September 12, 2010,
pursuant to the mailbox rule. Resp. Ex. 21. In his request for post
conviction relief, James asserted that counsel was ineffective
because he failed to: move the court for a jury instruction to
explain his use of psychotropic medication (ground one); move the
court for a mental examination (ground two); familiarize himself
with the case and impeach the State's key witness, victim Shakekee
Bryant (ground three); contest the shoe print evidence (ground
four); object to discovery violations relating to James' shoes and
the shoe print evidence (ground five); investigate a third phone
call from witness Wylie Watkins (ground six); move for a dismissal
based on Officer Gay's alleged mishandling of evidence (ground
seven); investigate and depose Vontasha Gray, a Category B witness
(ground

eight);

and

impeach

Officer

3

Moon

(ground

nine).

On

September 28, 2010, James filed a supplement and added ground ten:
counsel was ineffective because he stipulated, without James'
consent, to evidence that qualified him as a habitual felony
offender and prison releasee reoffender. Resp. Ex. 22. James later
amended ground six. Resp. Ex. 23.
The court directed the State to respond. Resp. Ex. 24. The
State responded, see Resp. Ex. 25, and James replied, see Resp. Ex.
26. On October 12, 2011, James amended his reply and addressed
ground seven. Resp. Ex. 27. James later filed a motion to amend his
request for post conviction relief to add a claim: that counsel was
ineffective because he failed to object to the sufficiency of the
charging document in that it failed to charge that "an offense
intended to be committed" (ground eleven). Resp. Ex. 28. On
November 8, 2011, he moved to add another claim: that the trial
court lacked subject matter jurisdiction (ground twelve). Resp. Ex.
29. On January 3, 2012, the circuit court denied the Rule 3.850
motion as to grounds one through ten. Resp. Ex. 30. James appealed
the circuit court's decision. Resp. Ex. 31. On June 25, 2012, the
appellate court dismissed the appeal for lack of jurisdiction
because the circuit court had not ruled on James' motions to amend
to add grounds eleven and twelve, and therefore "did not address
and dispose of all the pending issues." Resp. Ex. 32.
James filed a pro se motion to voluntarily dismiss ground
eleven and twelve, see Resp. Ex. 33, but later filed a motion to

4

dismiss the motion to voluntarily dismiss, see Resp. Ex. 34. On
August 12, 2012, James filed another motion to voluntarily dismiss
grounds eleven and twelve. Resp. Ex. 35. Without ruling on James'
second motion to voluntarily dismiss, the court denied the motion
as to grounds eleven and twelve on November 29, 2012. Resp. Ex. 36.
On appeal, James filed an initial brief and a supplemental brief,
see Resp. Exs. 38; 40, and the State notified the court that it did
not intend to file an answer brief, see Resp. Ex. 41. On March 19,
2013, the appellate court affirmed the trial court's denial per
curiam, see James v. State, 109 So.3d 785 (Fla. 1st DCA 2013);
Resp. Ex. 42, and the mandate issued on April 16, 2013, see Resp.
Ex. 42.1
On March 9, 2014, pursuant to the mailbox rule, James filed a
pro se emergency petition for writ of habeas corpus in the circuit
court. Resp. Ex. 51. He filed an amended petition on April 6, 2014.
Resp. Ex. 52. In the petitions, he asserted that the trial court
lacked subject matter jurisdiction to preside over his case. He
argued that the Assistant State Attorney assigned to his case
lacked the authority to sign the Information. On August 14, 2014,
the circuit court construed the petitions as a motion for post
conviction relief and found the motion to be untimely. Resp. Ex. 53

1

During the pendency of the Rule 3.850 motion, James filed a
motion to correct illegal sentence, see Resp. Exs. 49; 50; a
petition for writ of habeas corpus, see Resp. Exs. 43; 44; and a
petition for writ of quo warranto, see Resp. Exs. 45; 46; 47; 48.
5

at

2-3.

Additionally,

the

court

stated:

"Even

if

[James']

contentions were not procedurally barred and his arguments were
correct, this Court finds [his] claims still fail and are legally
without merit." Id. at 3. On appeal, James filed an initial brief,
see Resp. Ex. 55, and the State notified the appellate court that
it did not intend to file an answer brief, see Resp. Ex. 56. On
November 25, 2014, the appellate court affirmed the trial court's
denial per curiam, see James v. State, 163 So.3d 1184 (Fla. 1st DCA
2014), and the mandate issued on January 27, 2015.2
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); Response at 2-11.
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

2

See http://www.1dca.org, online docket, William James, Jr.
v. State of Florida, No. 1D14-3941.
6

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 James' 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
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
7

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
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
8

'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
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).
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
9

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 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 James' 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
counsel's

of

counsel.

performance

That

right

is

denied

when

falls

below

an

objective

a

defense

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
10

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 S.Ct. at 104. 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 prejudice prong, and vice-versa." Ward
v. Hall, 592 F.3d 1144, 1163 (11th Cir. 2010)(citation omitted).
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
11

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
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, James asserts that his conviction for burglary
of a dwelling is null and void because the jurisdiction of the
trial court was not properly invoked due to the state prosecutor's
failure

to

comply

with

Florida

law

in

filing

the

charging

Information. See Amended Petition at 5; Amended Memorandum at 3-8.
James states that, in filing the Information, the prosecutor did
not receive testimony under oath from a material witness to the
offense, and therefore, the trial court did not have jurisdiction.
He raised the claim in his Rule 3.850 motion in state court, see
12

Resp. Ex. 29, and the circuit court denied the post conviction
motion with respect to this claim, stating in pertinent part:
In ground twelve, the Defendant claims
that
the
Court
lacked
subject
matter
jurisdiction over this case because the
Information was not supported by the sworn
testimony of a material witness, resulting in
fundamental error. Specifically, the Defendant
maintains that the State relied on Officer
Moon's, the arresting officer, sworn affidavit
in the arrest and booking report as the
necessary material witness statement to file
the Information. The Defendant contends that
this constitutes a violation of Florida Rule
of Criminal Procedure 3.140(g), because
Officer Moon was not a material witness to the
offense.
The person who signs the information
charging
a
felony
need
not
personally
administer the oath to, nor personally
question or hear the live questioning of the
material witness whose testimony the charges
are based upon. State v. Perkins, 977 So.2d
643, 646 (Fla. 5th DCA 2008). The court in
State v. Hartung, 543 So.2d 236, 237 (Fla. 5th
DCA 1989), stated:
We hold that the testimony of such
witnesses may be sworn to before
anyone authorized to administer
oaths and their testimony under oath
may be given out of the presence of
the state attorney or his designated
assistant, and that sworn testimony
documented
or
evidenced
stenographically or electronically
in
the
form
of
affidavits,
depositions, video tapes, magnetic
tapes,
or
otherwise,
and
the
evidence of the sworn testimony of
such material witnesses may be
"received" and considered by the
state attorney or his designated
assistant who may then properly
certify that he has "received
13

testimony under oath from the
material witness or witnesses for
the offense" as provided in Florida
Rule of Criminal Procedure 3.140(g).
Contrary to the Defendant's assertions,
Officer Moon was a material witness, as
Officer Moon actually observed the Defendant
committing the burglary and apprehended the
Defendant at the scene.[3] (Exhibit "B.")[4]
Therefore, Officer Moon was a material
witness, and [her] personal observations in
the arrest and booking report affidavit would
be sufficient for purposes of satisfying Rule
3.140(g).
Furthermore, the Court would still have
subject
matter
jurisdiction
over
the
Defendant's case even if there was a defect in
the
Information.
Pursuant
to
section
26.012(2)(d), Florida Statutes, circuit courts
have subject matter jurisdiction over "all
felonies." Carbajal v. State, 75 So.3d 258,
262 (Fla. 2011). "While an information or
indictment is 'an essential requisite of
jurisdiction which cannot be waived,' defects
in the charging instrument do not necessarily
render void a conviction based on the
defective
information."
Id.
(internal
citations omitted).
Finally, Rule 3.140(o) states:
No indictment or information, or any
count thereof, shall be dismissed or
judgment arrested, or new trial
granted on account of any defect in
the form of the indictment or
information or of misjoinder of
offenses
or
for
any
cause
whatsoever, unless the court shall
be
of
the
opinion
that
the

3

See Tr. at 81-82 (Officer Jennifer Moon's trial testimony).
4

See Resp. Ex. 1, Arrest and Booking Report, Jacksonville
Sheriff's Office, dated March 31, 2008.
14

indictment or information is so
vague, indistinct, and indefinite as
to mislead the accused and embarrass
him or her in the preparation of a
defense or expose the accused after
conviction
or
acquittal
to
substantial
danger
of
a
new
prosecution for the same offense.
Here, the Defendant has not alleged that the
information was so vague, indistinct, and
indefinite as to mislead and embarrass him in
the preparation of a defense. Upon review,
this Court does not find that the Information
was lacking in such a way as to prejudice the
Defendant in preparing a defense.
Resp. Ex. 36 at 2-4. On James' appeal, the appellate court affirmed
the trial court's denial per curiam. See James, 109 So.3d 785;
Resp. Ex. 42.
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, James 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, and that the claim
15

presents a sufficiently exhausted issue of federal constitutional
dimension,5 James' claim is still without merit. The record fully
supports the trial court's conclusion. For a defective Information
to present a cognizable claim in a federal habeas corpus action,
the charging document must be so defective that it deprives the
court of jurisdiction. DeBenedictis v. Wainwright, 674 F.2d 841,
842 (11th Cir. 1982) (citations omitted) ("The sufficiency of a
state indictment or information is not properly the subject of
federal habeas corpus relief unless the indictment or information
is

so

deficient

that

the

convicting

court

is

deprived

of

jurisdiction."). Under Florida law, the state circuit courts have
jurisdiction

over

all

felony

charges.

See

Fla.

Stat.

§

26.012(2)(d). Moreover, the Amended Information, see Resp. Ex. 2,
properly set forth the elements of burglary of a dwelling, see Fla.
Stat. § 810.02(3)(b), and therefore met the minimum requirement for
invoking the jurisdiction of the state circuit court. Additionally,
the Amended Information contains the required sworn oath of the
Assistant State Attorney, certifying that the allegations in the
Amended Information "are based upon facts that have been sworn to
as true, and which, if true, would constitute the offense therein
charged," that the prosecution "is instituted in good faith," and
"that testimony under oath has been received from the material
witness(es) for the offense." Resp. Ex. 2. Such a sworn oath by the

5

See Response at 19.
16

prosecutor that he received testimony under oath from the material
witness(es) for the offense is sufficient pursuant to applicable
Florida law. See Fla. R. Crim. P. 3.140(g).

Therefore, Petitioner

is not entitled to federal habeas relief on ground one.
B. Ground Two
As ground two, James asserts that counsel was ineffective
because he failed to file a motion to dismiss based on governmental
misconduct. See Amended Petition at 6; Amended Memorandum at 8-10.
He states that he advised his counsel to file a pretrial motion to
dismiss the charge because the evidence technician "mishandled
relevant and material evidence" when she returned the physical
evidence to the victims at the crime scene. Amended Memorandum at
8. James raised the ineffectiveness claim in his Rule 3.850 motion
in state court. Resp. Ex. 21 at 16-30. Identifying the two-prong
Strickland ineffectiveness test as the controlling law, the circuit
court denied the post conviction motion with respect to this claim,
stating in pertinent part:
In ground seven, Defendant claims there
is a reasonable probability that, but for
Counsel's failure to move for dismissal, based
on Officer Gay's alleged mishandling of
evidence, Defendant would have had a viable
defense at trial, and the outcome of the trial
would have been different. Specifically,
Defendant alleges that, had Officer Gay
checked for fingerprints on items inside the
home, such as the DVD case, it would be proven
that Defendant's fingerprints were not on the
items.

17

Although this Court does not find
Defendant's claim to be procedurally barred,
as the State avers in its first and second
arguments in its response to ground seven,[6]
this Court does agree with the State's
argument that there was no legal basis for
Counsel to move for dismissal because the
State had a plethora of other evidence to
support the charge,[7] as set forth in the
State's response to grounds three, four, and
five.[8] Moreover, assuming arguendo that no
fingerprints were discovered after the items
had been tested, this still would not create a
reasonable probability that Defendant would
have been acquitted at trial in light of the
overwhelming evidence against Defendant. Among
other evidence, this Court notes that witness
Watkins testified that he saw Defendant at the
home committing both burglaries and that one
of the suspects wore long jean shorts with a
long white T-shirt (TT. 41, 44-49.) Officer
Moon testified that Defendant was wearing a
white T-shirt with pockets and jean shorts,
and he had a garden glove in his pocket. (TT.
82-87.) Defendant testified he had gloves on
him and that he was wearing a white T-shirt,
blue jean shorts, and black loafers. (TT. 127,
132, 135.) Both witness Watkins and Officer
Moon identified Defendant in court as being at
the house during the burglaries. (TT. 44-49,
81.)
Defendant
testified
that
he
was
apprehended inside the home (TT. 126.)
Defendant testified that his shoe print was on
the door.[9] (TT. 133-34.) The DVD in
Defendant's possession was of the same title,
"Thick Sistas," as the DVD case, which was
found on the premises, and the victim
testified to owning the DVD and its case. (TT.
31, 81-82, 135-36; State's Exhibit C.) Many of

6

See Resp. Ex. 25 at 15.

7

See Resp. Ex. 25 at 15.

8

See Resp. Ex. 25 at 8-13.

9

See Tr. at 133 ("I stepped on the door to gain entrance.").
18

the
victim's
belongings
were
found
on
Defendant or co-defendant Ted Pollard. (TT.
30-35, 66-75, 81-86; State's Exhibit C.) In
light
of
the
overwhelming
inculpatory
evidence, any lack of fingerprint evidence on
the DVD case would have been only potentially
useful: "the loss or destruction of evidence
that is only potentially useful to the defense
violates due process only if the defendant can
show bad faith on the part of the police or
prosecution." State v. Thomas, 826 So.2d 1048,
1049 (Fla. 2d DCA 2002) [(citing Arizona v.
Youngblood, 488 U.S. 51, 58 (1988)]. Defendant
has not met his burden of showing bad faith by
Officer Gay, nor has he shown prejudice.
Accordingly, Defendant's seventh ground for
relief is denied.
Resp. Ex. 30 at 4-6. On James' appeal, the appellate court affirmed
the trial court's denial per curiam, see James, 109 So.3d 785;
Resp. Ex. 42.
Given the record in the instant action, the appellate court
may have affirmed the denial of James' motion for post conviction
relief on the merits. If the appellate court addressed the merits,
James 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

19

the state court proceedings. Thus, James is not entitled to relief
on the basis of this claim.10
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, James' 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 in favor of 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

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, James 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

10

James' reliance on Arizona v. Youngblood is misplaced. See
Response at 29-32; Amended Memorandum at 9.
20

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).
On this record, James has 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, James 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 filed a motion to dismiss the charge based on Officer Gay's
alleged mishandling of the evidence. Thus, James' ineffectiveness
claim fails because he has shown neither deficient performance nor
resulting prejudice. He is not entitled to federal habeas relief as
to ground two.

21

VIII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If James 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
jurists

showing,

would

find

James
the

"must

district

demonstrate
court's

that

reasonable

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
22

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. 28) 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 James 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 17th day of
August, 2015.

sc 8/14
c:
William James, Jr.
Ass't Attorney General (Jordan)
23