Depriest v. Attorney General, State of Florida et al
Filing
22
ORDER denying 1 Petition and dismissing this action with prejudice; directing the Clerk to enter judgment accordingly and close the file. Signed by Judge Marcia Morales Howard on 7/3/2017. (JLD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JON DUKE DEPRIEST,
Petitioner,
v.
Case No. 3:14-cv-756-J-34JBT
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Jon Duke DePriest, an inmate of the Florida penal
system, initiated this action on June 25, 2014, by filing a pro se
Petition for Writ of Habeas Corpus (Petition; Doc. 1) under 28
U.S.C. § 2254. In the Petition, DePriest challenges a 2011 state
court (Nassau County, Florida) judgment of conviction for dealing
in stolen property. Respondents have submitted a memorandum in
opposition to the Petition. See Respondents' Answer in Response to
Order to Show Cause and Petition for Habeas Corpus (Response; Doc.
12) with exhibits (Resp. Ex.). On September 25, 2014, the Court
entered an Order to Show Cause and Notice to Petitioner (Doc. 8),
admonishing DePriest regarding his obligations and giving DePriest
a time frame in which to submit a reply. DePriest submitted a brief
in reply. See Reply to Respondents' Answer (Reply; Doc. 16); Notice
of Supplemental Authority (Doc. 19). This case is ripe for review.
II. Procedural History
On February 8, 2011, the State of Florida, in case number
2010-CF-1004, charged DePriest with burglary of a dwelling (count
one) and dealing in stolen property (count two). See Resp. Ex. A at
21-22, Amended Information. DePriest proceeded to trial in March
2011, see Resp. Exs. C, D, Transcripts of the Jury Trial (Tr.), at
the conclusion of which, on March 14, 2011, a jury found him guilty
of dealing in stolen property (count two), see Resp. Ex. A at 79,
Verdict, and not guilty of burglary (count one), see id. at 78,
Verdict. On April 7, 2011, the court sentenced DePriest to a term
of imprisonment of thirty years. See id. at 184-93, Judgment; Resp.
Ex. F, Transcript of the Sentencing Proceeding.
On direct appeal, DePriest, with the benefit of counsel, filed
an initial brief, arguing that the trial court erred when it failed
to give a special jury instruction (as requested by DePriest)
expanding the inference permitted if the defendant is found in
possession of recently stolen goods. Resp. Ex. G. The State filed
an answer brief, see Resp. Ex. H, and DePriest filed a reply brief,
see Resp. Ex. I. On December 19, 2011, the appellate court affirmed
DePriest's conviction per curiam, see DePriest v. State, 76 So.3d
294 (Fla. 1st DCA 2011); Resp. Ex. J, and the mandate issued on
January 17, 2012, see Resp. Ex. K.
On November 5, 2012, DePriest filed a pro se petition for writ
of habeas corpus. In the petition, he asserted that appellate
2
counsel (Assistant Public Defender David A. Davis) failed to raise
the following issues on direct appeal: the trial court erred when
it allowed the testimonial hearsay statements of Michelle Dotson (a
non-testifying witness) over a defense objection (claim one);
fundamental
error
occurred
when
the
prosecutor
made
improper
opening and closing arguments (claim two); there was insufficient
evidence to support the conviction for dealing in stolen property
(claim three); and the trial court abused its discretion when it
permitted the State to introduce Williams1 rule evidence and allow
the evidence to become a feature of the trial (claim four). Resp.
Exs. L, M. The appellate court directed the State to show cause why
the petition should not be granted. See Resp. Ex. O. The State
responded, see Resp. Exs. P; Q, and Petitioner replied, see Resp.
Ex. R. The appellate court denied the petition on the merits on
June 28, 2013. See DePriest v. State, 115 So.3d 1110 (Fla. 1st DCA
2013); Resp. Ex. S.
On September 6, 2013, pursuant to the mailbox rule, DePriest
filed a pro se motion for post-conviction relief pursuant to
1
Similar fact evidence, also known as Williams rule evidence,
is governed by the requirements and limitations of Florida Statutes
section 90.404, which permits "evidence of other crimes, wrongs, or
acts ... when relevant to prove a material fact in issue," such as
"proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident." Fla. Stat.
§ 90.404(2)(a); see Williams v. State, 110 So.2d 654 (Fla. 1959).
The similar fact evidence is inadmissible when it "is relevant
solely to prove bad character or propensity." Fla. Stat. §
90.404(2)(a).
3
Florida Rule of Criminal Procedure 3.850 (Rule 3.850 motion). See
Resp. Ex. T. In his request for post-conviction relief, he asserted
that counsel (Harrison W. Poole) was ineffective because he failed
to: adequately investigate and call Nikki Dotson and Michelle
Dotson as witnesses at trial (ground one); locate Michelle Dotson
(ground two); cross-examine Detective Rose about her investigative
report (ground three); ensure that Deputy Kelly was properly
notified of the trial date and available to testify for the defense
(ground four); advise DePriest of the negative impact of not
calling Deputy Kelly to testify (ground five); file a motion to
suppress the recorded telephone conversation between DePriest and
Michelle Dotson and object to the prosecutor's interpretation of
the inaudible portions of the recording (ground six); request a
court order to compel the State to provide the defense with
incriminating statements made by Michelle Dotson (ground seven);
argue a legally sufficient motion for judgment of acquittal (ground
eight); and seek a continuance of the trial based on his assertions
in grounds one, two, three, six and seven (ground nine). See Resp.
Exs. T at 1-26; U. Additionally, he stated that counsel's "strategy
of doing nothing" and cumulative error constitutes ineffectiveness
(ground ten). Resp. Ex. T at 24. The court denied the motion on
September 11, 2013. See id. at 27-55. On appeal, DePriest filed a
pro se brief, see Resp. Ex. V, and the State filed a notice that it
would not file an answer brief, see Resp. Ex. W. On March 24, 2014,
4
the appellate court affirmed the court's denial of post-conviction
relief per curiam, see DePriest v. State, 136 So.3d 1217 (Fla. 1st
DCA 2014); Resp. Ex. X, and denied DePriest's motion for rehearing,
see Resp. Exs. Y; Z. The mandate issued on May 23, 2014. See Resp.
Ex. AA.
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).
IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner
to establish the need for a federal evidentiary hearing. See Chavez
v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir.
2011). "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); Jones v. Sec'y,
Fla. Dep't of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert.
denied, No. 16-8668, 2017 WL 1346407 (June 12, 2017). "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." Schriro, 550 U.S. at 474. The
pertinent facts of this case are fully developed in the record
before
the
Court.
Because
this
5
Court
can
"adequately
assess
[DePriest'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 Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) governs a state prisoner's federal petition for habeas
corpus. See Ledford v. Warden, Ga. Diagnostic & Classification
Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S.
Ct. 1432 (2017). "'The purpose of AEDPA is to ensure that federal
habeas relief functions as a guard against extreme malfunctions in
the state criminal justice systems, and not as a means of error
correction.'" Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)
(quotation marks omitted)). As such, federal habeas review of final
state court decisions is "'greatly circumscribed' and 'highly
deferential.'" Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343
(11th Cir. 2011) (quotation marks omitted)).
The first task of the federal habeas court is to identify the
last state court decision, if any, that adjudicated the claim on
the merits. See Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d
1227, 1235 (11th Cir. 2016) (en banc), cert. granted, 137 S. Ct.
1203 (2017); Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277,
1285 (11th Cir. 2016). Regardless of whether the last state court
provided a reasoned opinion, "it may be presumed that the state
court adjudicated the claim on the merits in the absence of any
6
indication or state-law procedural principles to the contrary."
Harrington v. Richter, 562 U.S. 86, 99 (2011) (citation omitted);
see also Johnson v. Williams, 568 U.S. 289, --, 133 S. Ct. 1088,
1096 (2013).2 Thus, the state court need not issue an opinion
explaining its rationale in order for the state court's decision to
qualify as an adjudication on the merits. See Richter, 562 U.S. at
100.
If the claim was "adjudicated on the merits" in state court,
§ 2254(d) bars relitigation of the claim unless the state court's
decision
(1)
"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) "was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d);
Richter, 562 U.S. at 97-98. As the Eleventh Circuit has explained:
First, § 2254(d)(1) provides for federal
review for claims of state courts' erroneous
legal conclusions. As explained by the Supreme
Court in Williams v. Taylor, 529 U.S. 362, 120
S. Ct. 1495, 146 L.Ed.2d 389 (2000), §
2254(d)(1) consists of two distinct clauses: a
"contrary to" clause and an "unreasonable
application" clause. The "contrary to" clause
allows for relief only "if the state court
arrives at a conclusion opposite to that
2
The presumption is rebuttable and "may be overcome when
there is reason to think some other explanation for the state
court's decision is more likely." Richter, 562 U.S. at 99-100; see
also Johnson, 133 S. Ct. at 1096-97. However, "the Richter
presumption is a strong one that may be rebutted only in unusual
circumstances . . . ." Johnson, 133 S. Ct. at 1096.
7
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."
Id. at 413, 120 S. Ct. at 1523 (plurality
opinion).
The
"unreasonable
application"
clause allows for 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.
Second, § 2254(d)(2) provides for federal
review for claims of state courts' erroneous
factual determinations. Section 2254(d)(2)
allows federal courts to grant relief only if
the state court's denial of the petitioner's
claim
"was
based
on
an
unreasonable
determination of the facts in light of the
evidence
presented
in
the
State
court
proceeding." 28 U.S.C. § 2254(d)(2). The
Supreme
Court
has
not
yet
defined
§
2254(d)(2)'s "precise relationship" to §
2254(e)(1), which imposes a burden on the
petitioner to rebut the state court's factual
findings "by clear and convincing evidence."
See Burt v. Titlow, 571 U.S. ---, ---, 134 S.
Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord
Brumfield v. Cain, 576 U.S. ---, ---, 135 S.
Ct. 2269, 2282, 192 L.Ed.2d 356 (2015).
Whatever that "precise relationship" may be,
"'a state-court factual determination is not
unreasonable merely because the federal habeas
court
would
have
reached
a
different
3
conclusion in the first instance.'"[ ] Titlow,
571 U.S. at ---, 134 S. Ct. at 15 (quoting
Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct.
841, 849, 175 L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert.
denied, No. 16-8733, 2017 WL 1386004 (U.S. June 26, 2017); see also
3
The Eleventh Circuit has described the interaction between
§ 2254(d)(2) and § 2254(e)(1) as "somewhat murky." Clark v. Att'y
Gen., Fla., 821 F.3d 1270, 1286 n.3 (11th Cir. 2016).
8
Daniel v. Comm'r, Ala. Dep't of Corr., 822 F.3d 1248, 1259 (11th
Cir. 2016). Also, deferential review under § 2254(d) generally is
limited
to
the
record
that
was
before
the
state
court
that
adjudicated the claim on the merits. See Cullen v. Pinholster, 563
U.S. 170, 182 (2011) (stating the language in § 2254(d)(1)'s
"requires an examination of the state-court decision at the time it
was made"); Landers v. Warden, Att'y Gen. of Ala., 776 F.3d 1288,
1295 (11th Cir. 2015) (regarding § 2254(d)(2)).
Where
the
state
court's
adjudication
on
the
merits
is
"'unaccompanied by an explanation,' a petitioner's burden under
section 2254(d) is to 'show[] there was no reasonable basis for the
state court to deny relief.'" Wilson, 834 F.3d at 1235 (quoting
Richter, 562 U.S. at 98). Thus, "a habeas court must determine what
arguments or theories supported or, as here, could have supported,
the state court's decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of
[the] Court." Richter, 562 U.S. at 102; see also Wilson, 834 F.3d
at 1235. To determine which theories could have supported the state
appellate court's decision, the federal habeas court may look to a
state trial court's previous opinion as one example of a reasonable
application of law or determination of fact. Wilson, 834 F.3d at
1239; see also Butts v. GDCP Warden, 850 F.3d 1201, 1204 (11th Cir.
9
2017).4 However, in Wilson, the en banc Eleventh Circuit stated
that the federal habeas court is not limited to assessing the
reasoning of the lower court. 834 F.3d at 1239. As such,
even when the opinion of a lower state court
contains flawed reasoning, [AEDPA] requires
that [the federal court] give the last state
court to adjudicate the prisoner's claim on
the merits "the benefit of the doubt,"
Renico,[5] 559 U.S. at 773, 130 S.Ct. 1855
(quoting Visciotti,[6] 537 U.S. at 24, 123
S.Ct. 357), and presume that it "follow[ed]
the law," Donald,[7] 135 S.Ct. at 1376 (quoting
Visciotti, 537 U.S. at 24, 123 S.Ct. 357).
Id. at 1238.
Thus, "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). "Federal courts
may grant habeas relief only when a state court blundered in a
manner so 'well understood and comprehended in existing law' and
'was so lacking in justification' that 'there is no possibility
fairminded jurists could disagree.'" Tharpe, 834 F.3d at 1338
(quoting Richter, 562 U.S. at 102-03). "If this standard is
difficult to meet, that is because it was meant to be." Richter,
4
Although the United States Supreme Court has granted
Wilson's petition for certiorari, the "en banc decision in Wilson
remains the law of the [Eleventh Circuit] unless and until the
Supreme Court overrules it." Butts, 850 F.3d at 1205 n.2.
5
Renico v. Lett, 559 U.S. 766 (2010).
6
Woodford v. Visciotti, 537 U.S. 19 (2002).
7
Woods v. Donald, 135 U.S. 1372 (2015).
10
562 U.S. at 102. Thus, to the extent that DePriest's claims were
adjudicated on the merits in the state courts, they must be
evaluated under 28 U.S.C. § 2254(d).
VI. Ineffective Assistance of Counsel
"The
Sixth
Amendment
guarantees
criminal
defendants
the
effective assistance of counsel. That right is denied when a
defense attorney'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.
11
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
1144, 1163 (11th Cir. 2010). 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." 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.
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.
12
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 v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014), cert.
denied, 135 S.Ct. 2126 (2015); 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. Ineffective Assistance of Appellate Counsel
The two-part Strickland standard also governs a claim of
ineffective assistance of appellate counsel. Overstreet v. Warden,
811 F.3d 1283, 1287 (11th Cir. 2016). The Eleventh Circuit has
stated:
To prevail on a claim of ineffective
assistance of appellate counsel, a habeas
petitioner must establish that his counsel's
performance was deficient and that the
deficient performance prejudiced his defense.
See Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
(1984); Brooks v. Comm'r, Ala. Dep't of Corr.,
719 F.3d 1292, 1300 (11th Cir. 2013) ("Claims
of ineffective assistance of appellate counsel
are governed by the same standards applied to
13
trial counsel under Strickland.") (quotation
marks
omitted).
Under
the
deficient
performance prong, the petitioner "must show
that counsel's representation fell below an
objective
standard
of
reasonableness."
Strickland, 466 U.S. at 688, 104 S.Ct. at
2064. "The standards created by Strickland and
§ 2254(d) are both highly deferential, and
when the two apply in tandem, review is doubly
so." Harrington, 562 U.S. at 105, 131 S.Ct. at
788 (quotation marks and citations omitted);
see also Gissendaner v. Seaboldt, 735 F.3d
1311, 1323 (11th Cir. 2013) ("This double
deference is doubly difficult for a petitioner
to overcome, and it will be a rare case in
which an ineffective assistance of counsel
claim that was denied on the merits in state
court is found to merit relief in a federal
habeas proceeding.") (quotation marks and
alteration omitted). "If this standard is
difficult to meet, that is because it was
meant to be." Harrington, 562 U.S. at 102, 131
S.Ct. at 786.
Rambaran v. Sec'y, Dep't of Corr., 821 F.3d 1325, 1331 (11th Cir.
2016), cert. denied, 137 S.Ct. 505 (2016).
When considering deficient performance by appellate counsel,
a court must presume counsel's performance was
"within
the
wide
range
of
reasonable
professional assistance." Id.[8] at 689, 104 S.
Ct. 2052. Appellate counsel has no duty to
raise every non-frivolous issue and may
reasonably
weed
out
weaker
(albeit
meritorious) arguments. See
Philmore v.
McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009).
"Generally, only when ignored issues are
clearly stronger than those presented, will
the presumption of effective assistance of
counsel be overcome." Smith v. Robbins, 528
U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756
(2000) (quoting Gray v. Greer, 800 F.2d 644,
646 (7th Cir. 1986)); see also Burger v. Kemp,
8
Strickland, 466 U.S. at 689.
14
483 U.S. 776, 784, 107 S. Ct. 3114, 97 L.Ed.2d
638 (1987) (finding no ineffective assistance
of counsel when the failure to raise a
particular issue had "a sound strategic
basis").
Overstreet, 811 F.3d at 1287; see also Owen v. Sec'y, Dep't of
Corr.,
568
F.3d
894,
915
(11th
Cir.
2009)
(stating
"any
deficiencies of counsel in failing to raise or adequately pursue
[meritless
issues
on
appeal]
cannot
constitute
ineffective
assistance of counsel").
To satisfy the prejudice prong, a petitioner must show a
reasonable probability that "but for the deficient performance, the
outcome of the appeal would have been different." Black v. United
States, 373 F.3d 1140, 1142 (11th Cir. 2004) (citations omitted);
see Philmore v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir. 2009)
("In order to establish prejudice, we must first review the merits
of
the
omitted
claim.
Counsel's
performance
will
be
deemed
prejudicial if we find that 'the neglected claim would have a
reasonable
probability
of
success
on
appeal.'")
(citations
omitted).
VIII. Findings of Fact and Conclusions of Law
A. Ground One
As ground one, DePriest asserts that his appellate counsel was
ineffective because he failed to raise the following issue on
direct
appeal:
the
trial
court
erred
when
it
allowed
the
testimonial hearsay statements of Michelle Dotson (a non-testifying
15
witness), over a defense objection, in violation of Crawford v.
Washington, 541 U.S. 36 (2004),9 and Davis v. Washington, 547 U.S.
813 (2006).10 See Petition at 7-15; Reply at 2-7. DePriest raised
the ineffectiveness claim in his state petition for writ of habeas
corpus. See Resp. Ex. L at 7-15. The State responded and argued as
follows:
Under ground one, Petitioner alleges that
the trial court committed error by allowing
introduction of testimonial hearsay statements
of Michelle Dotson (a non-testifying witness)
over defense objection. The State disagrees.
During the investigation into the home
burglaries and dealing in stolen property to
which the Petitioner was charged, a known
associate of Petitioner participated in a
controlled recorded telephone conversation
with the Petitioner. During the controlled
call, the associate discusses the stolen
property that the Petitioner took from the
home burglaries. The Petitioner given the
opportunity to deny knowledge of the substance
of the conversation instead made incriminating
admissions to the associate.
At trial, the State admitted the evidence
through the law enforcement officer who was
present during the telephone call and who
9
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme
Court held that the Confrontation Clause prohibits the introduction
of "[t]estimonial statements of witnesses absent from trial" unless
"the declarant is unavailable, and ... the defendant has had a
prior opportunity to cross-examine" the witness. Id. at 59. The
admission of an absent witness's nontestimonial statements, on the
other hand, does not run afoul of the Confrontation Clause. Id. at
68.
10
In Davis, the Supreme Court elaborated on the differences
between nontestimonial and testimonial statements to the police.
See Davis, 547 U.S. at 822.
16
could hear both the associate's and the
Petitioner's side of the conversation. The
officer was able to identify the Petitioner's
voice on the telephone call because he was
familiar with the Petitioner. Defense counsel
objected to the admission of the recorded call
on the grounds that because the associate was
not testifying it violated the Petitioner's
right to confrontation.
The Florida Supreme Court in Globe v.
State, 877 So.2d 663 (Fla. 2004), addressed
the issue whether adoptive admissions violate
the right to confrontation. In Globe, the
State introduced a confession by a nontestifying codefendant. Globe was present
during the codefendant's statement and had a
chance to contradict the statements. Instead
of denying or contradicting the statements,
Globe verbally affirmed what the codefendant
stated and added details. The Court held that
admissions by acquiescence or silence do not
implicate the Confrontation Clause and are
admissible. Globe at 672. Based on Globe,
Petitioner's statements to his associate do
not violate the Confrontation Clause as they
were adoptive admissions.
Petitioner's argument under ground one
fails because he did not prove that appellate
counsel's performance deviated from the norm
under the first prong of the Strickland
analysis. As there was no error below,
appellate counsel cannot be deemed ineffective
for failing to raise this claim. The failure
of appellate counsel to brief an issue which
is
without
merit
is
not
a
deficient
performance which falls measurably outside the
range
of
professionally
acceptable
performance. Thus, Petitioner's judgment and
sentence should be affirmed.
Resp. Ex. P at 5-7. Petitioner replied, see Resp. Ex. R at 1-4, and
the appellate court ultimately denied the petition on the merits,
see Resp. Ex. S.
17
Thus, as there is a qualifying state court decision, the Court
will address 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 court's adjudication of this claim was not contrary
to clearly established federal law, did not involve an unreasonable
application of clearly established federal law, and was not based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. Thus, DePriest
is not entitled to relief on the basis of this claim.
Moreover, even assuming that the state court's adjudication of
this claim is not entitled to deference, DePriest's ineffectiveness
claim is without merit.
DePriest
has
failed to establish that
appellate counsel's failure to raise the issue on direct appeal was
deficient performance. He asserts that Dotson's statements on the
tape-recorded controlled telephone call were testimonial because
law enforcement officers provided her with questions to pose to
DePriest as a means "to inculpate [him] ... in a criminal episode."
Petition at 13. At trial, Detective Charity Rose testified about
Dotson's involvement in a Nassau County Sheriff's Office burglary
investigation. See Tr. at 145-52. According to Detective Rose, she
and Detective Patterson met Dotson at her residence where they
recorded a conversation between Dotson and DePriest, see id. at
152; Rose heard both sides of the live telephone conversation, and
18
recognized DePriest's voice, see id. at 152-53, 277-78, 285, 287.
Defense counsel objected to the State seeking to introduce the
recording
on
the
ground
that
the
defense
would
not
have
an
opportunity to cross-examine Dotson. See id. at 153. The court
heard argument from the State and defense, see id. at 152-61,
sustained the defense's objection,11 see id. at 161-62, stated the
court's
ruling
"goes
only
as
to
[Dotson's]
portion
of
the
conversation, see id. at 162, and affirmed that the court would
revisit the issue of admitting the recording if the State could
locate Dotson, see id. The State provided additional argument,12 see
id. at 162-64, to which the defense responded, see id. at 164-65.
After additional discussion with the parties, see id. at 165-68,
the court ultimately admitted a redacted13 audible version of the
recording based on Hernandez v. State, 979 So.2d 1013, 1016-17
(Fla. 3rd DCA 2008), and the state appellate court's citations to
Globe v. State, 877 So.2d 663 (Fla. 2004), and Crawford. See Tr. at
168, 278. The jury heard the recording, see id. at 279-84, after
which the trial judge commented: "I could not understand a word of
11
The trial judge stated: "Hernandez seems to support my
ruling." Tr. at 162 (emphasis added); State v. Hernandez, 875 So.2d
1271 (Fla. 3rd DCA 2004).
12
See Globe v. State, 877 So.2d 663, 673 (Fla. 2004) (stating
that the admission of the codefendant's statements as adoptive
admissions pursuant to section 90.803(18)(b) did not violate the
Confrontation Clause); Hernandez v. State, 979 So.2d 1013, 1016-17
(Fla. 3rd DCA 2008).
13
The State agreed to redact portions of the recording where
there were "no explicit admissions." Tr. at 167.
19
that. Put that on the record," id. at 285.14 The trial court did not
abuse its discretion when it admitted a redacted version of the
recording.
Given
the
record,
DePriest
has
not
shown
a
reasonable
probability exists that the claim would have been meritorious on
direct appeal, if counsel had raised the claim in the manner
suggested by DePriest. DePriest's ineffectiveness claim is without
merit
since
he
has
shown
neither
deficient
performance
nor
resulting prejudice. Accordingly, DePriest is not entitled to
federal habeas relief on ground one.
B. Ground Two
As ground two, DePriest asserts that his appellate counsel was
ineffective because he failed to raise the following issue on
direct appeal: fundamental error occurred when the prosecutor made
improper
Petition
comments
at
during
16-23;
opening
Reply
at
and
7-12.
closing
statements.
DePriest
raised
See
the
ineffectiveness claim in his state petition for writ of habeas
corpus. See Resp. Ex. L at 15-21. The State opposed the petition as
to this claim and argued as follows:
14
The official court reporter inserted a note in the trial
transcript, stating: "The Judge told me not to worry about taking
this audio because it was totally inaudible, but I told him that we
have to take what we can for appeal purposes, which I was not able
to understand one complete sentence or to even be able to
distinguish between who was speaking, the male or the female." Tr.
at 278-79.
20
Petitioner alleges, in ground two, that
fundamental error occurred when the prosecutor
made improper opening and closing arguments.
The State disagrees. Petitioner specifically
argued four alleged ways the prosecutor
engaged in improper arguments.
First, Petitioner argues [sic] that the
prosecutor "in opening, closing, and rebuttal"
argued about "Michelle Dotson receiving a
'Mickey Mouse piece of memorabilia from this
defendant' which Ms. Dotson turned over to
Detective Rose" is completely unsupported by
the evidence. (petition at 17). However, the
jury
was
instructed
prior
to
opening
statements that what the attorneys say is not
evidence it is simply what they believe will
be the evidence adduced at trial. (Ex. C, p.
70). Although the prosecutor did make that
comment
in
opening
statements,[15]
the
prosecutor did not make that statement during
closing or rebuttal arguments. During trial
there was testimony from Detective Rose that
she collected a piece of Mickey Mouse
memorabilia from Ms. Dotson. (Ex. C, p. 170).
The victim testified that the pin had been
stolen during the burglary. (Ex. C, p. 96).
During closing argument the prosecutor stated
these facts, that the detective recovered a
Mickey Mouse pin from Ms. Dotson which had
been stolen from the victim. (Ex. C, p.
332-333). Further, there was no objection
during opening statements to the comment and
it does not rise to the level of fundamental
error. Appellate counsel could have reasonably
decided that the one comment during opening
statements was not sufficient to rise to the
level of fundamental error. Thus, as it was
arguable whether error occurred or not,
appellate counsel is not ineffective as courts
"have emphasized the importance of winnowing
out weaker arguments on appeal and focusing on
one central issue if possible, or at most on a
15
See Tr. at 79 (prosecutor's comment that "Michelle Dotson
provided "a little Mickey Mouse piece of memorabilia that she
received from this defendant").
21
few key issues." Jones v. Barnes, 463 U.S.
745, 751-52 (1983).
Second, Petitioner argues that the
prosecutor misstated what was said during the
controlled call.[16] (petition at 18). Although
the trial court and the court reporter noted
that it was difficult to understand the
recording (Ex. C, p. 278-279, 285), however,
the detective who was present during the
recording testified that it was easier to hear
the conversation when the volume was not
turned up so high. (Ex. C, p. 286). However,
as noted by the prosecutor during closing, the
jurors had the CD of the conversation in the
jur[y] room during deliberations and the
prosecutor argued that the jurors should
listen to the recording again. (Ex. C, p.
331). Thus, it cannot be presumed that what
the prosecutor stated was the contents of the
conversation was not actually the contents of
the conversation. Just because the court
reporter said that portions were inaudible in
open
court
doesn't
mean
that
during
deliberations the jurors [...] replayed [sic]
the CD and were able to understand every word.
As what was said during the recorded
conversation is questionable, it was arguable
whether error occurred or not, appellate
counsel is not ineffective as courts "have
emphasized the importance of winnowing out
weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few
key issues." Jones v. Barnes, 463 U.S. 745,
751-52 (1983).
Third,
Petitioner
argues
that
the
prosecutor's comments violated the court's
order granting the defendant's Motion in
Limine regarding giving a "detailed sequence
of events of the investigation." (petition at
18-19). The State points out that the trial
court's order actually was in regards to an
anonymous tip through crime stoppers not Ms.
16
See Tr. at 77-79 (prosecutor's comments relating to the
controlled telephone call between DePriest and Dotson).
22
Dotson's participation.17 (Ex. B, p. 6-8). The
prosecutor did not detail the sequence of
events with regard to the anonymous tipsters
and thus, there is no error. Petitioner's
argument under this argument fails because he
did not prove that appellate counsel's
performance deviated from the norm under the
first prong of the Strickland analysis. As
there was no error below, appellate counsel
cannot be deemed ineffective for failing to
raise this claim. The failure of appellate
counsel to brief an issue which is without
merit is not a deficient performance which
falls
measurably
outside
the
range
of
professionally acceptable performance.
Fourth, Petitioner argues that the
opening statement by the prosecutor, "if the
Mickey Mouse pin were the only evidence that
the State had, that would be sufficient to
show this defendant's guilt of delivering that
piece of property that he knew was stolen to
Michelle Dotson,"[18] failed to remain neutral
but rather obscured the jury's view with
personal opinion, emotion, and non-record
evidence. (petition at 20). "[A] defendant is
entitled to a fair trial, but not a perfect
one, for there are no perfect trials." Brown
v. United States, 411 U.S. 223, 231-232
(1973); State v. Anderson, 537 So.2d 1373,
1375 (Fla. 1989). Here, the prosecutor was
merely drawing a conclusion, although it could
be argued that it was improper for opening
remarks, it was not objected to and thus,
would have to rise to the level of fundamental
error, or in other words, vitiate the entire
trial in order to be reversible. Thus, as it
was arguable whether error occurred or not,
appellate counsel is not ineffective as courts
"have emphasized the importance of winnowing
out weaker arguments on appeal and focusing on
one central issue if possible, or at most on a
17
See Resp. Ex. B at 8.
18
See Tr. at 79.
23
few key issues." Jones v. Barnes, 463 U.S.
745, 751-52 (1983).
Resp. Ex. P at 7-10. Petitioner replied, see Resp. Ex. R at 4-11,
and the appellate court ultimately denied the petition on the
merits, see Resp. Ex. S.
There is a qualifying state court decision. Therefore, the
Court will address 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 court's adjudication of this claim was not
contrary to clearly established federal law, did not involve an
unreasonable application of clearly established federal law, and
was not based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings.
Thus, DePriest is not entitled to relief on the basis of this
claim.
Moreover, even assuming that the state court's adjudication of
this claim is not entitled to deference, DePriest's ineffectiveness
claim is without merit.
DePriest
has
failed to establish that
appellate counsel's failure to raise the issue on direct appeal was
deficient performance. Attorneys are permitted wide latitude in
their opening and closing arguments, and the record reflects that
the trial judge instructed the jury that the attorneys were not
witnesses in the case, and therefore their statements and arguments
were not evidence. See Tr. at 70-71, 318; Hammond v. Hall, 586 F.3d
24
1289, 1334 (11th Cir. 2009); Brown v. Jones, 255 F.3d 1273, 1280
(11th Cir. 2001) (stating that "jurors are presumed to follow the
court's instructions.").
Given
the
record,
DePriest
has
not
shown
a
reasonable
probability exists that the ineffectiveness claim would have been
meritorious on direct appeal,19 if counsel had raised the claim in
the manner suggested by DePriest. DePriest's ineffectiveness claim
is without merit since he has shown neither deficient performance
nor resulting prejudice. Accordingly, DePriest is not entitled to
federal habeas relief on ground two.
C. Ground Three
As ground three, DePriest asserts that his appellate counsel
was ineffective because he failed to argue on direct appeal that
there was insufficient evidence to support the conviction for
dealing in stolen property in the state of Florida. See Petition at
23-26; Reply at 12-14. DePriest raised the ineffectiveness claim in
his state petition for writ of habeas corpus. See Resp. Ex. L at
21-25. The State responded and argued as follows:
19
See Braddy v. State, Nos. SC15-404, SC16-481, 2017 WL
2590802, *11-12 (Fla. June 15, 2017); Braddy v. State, 111 So.3d
810, 837 (Fla. 2012) ("As for those comments to which Braddy did
not object at trial but now appeals, we apply fundamental error
review.") (citation omitted); see Brooks v. State, 762 So.2d 879,
899 (Fla. 2000) (defining fundamental error as that which "reaches
down into the validity of the trial itself to the extent that a
verdict of guilty could not have been obtained without the
assistance of the alleged error") (quoting McDonald v. State, 743
So.2d 501, 505 (Fla. 1999)).
25
Petitioner alleges, in ground three, that
there was insufficient evidence to support the
conviction for dealing in stolen property in
the State of Florida.
Petitioner was charged with dealing in
stolen property in Nassau County[,] Florida.
The property that Petitioner was charged with
dealing in was stolen from a home located in
Nassau County and sold to a pawn shop in the
State of Georgia. In order for a defendant to
be convicted of dealing in stolen property in
Nassau County, the record had to support the
jury's conclusion that a defendant dealt in
stolen property in Nassau County. State v.
Crider, 625 So.2d 957, 959 (Fla. 5th DCA
1993). However, unlike essential elements of a
crime, venue need not be proven beyond a
reasonable doubt. Crider at 959. It is
sufficiently proven if a jury can reasonably
infer from the evidence that the offense was
committed in the county where the charges were
brought. Id.
Here, there was testimony from the home
owner that certain jewelry was stolen from her
house. (Ex. C, p. 84-85). The victim then
testified that she viewed her stolen jewelry
at a jewelry store in Georgia which she
subsequently had to repurchase from the store.
(Ex. C, p. 89-90). The jewelry store owner
testified that Petitioner sold the jewelry to
him. (Ex. C, p. 134-136). The owner testified
that Petitioner was accompanied by another man
during the transaction. (Ex. C, p. 135). The
other man, a codefendant of Petitioner,
testified that the Petitioner stole the
jewelry in question and he drove the
Petitioner to Georgia with the specific intent
to sell the jewelry to gain money to buy
drugs. (Ex. C, p. 253-254). Based on Crider,
there was sufficient evidence to prove venue.
Petitioner's argument under ground three
fails because he did not prove that appellate
counsel's performance deviated from the norm
under the first prong of the Strickland
analysis. As there was no error below,
26
appellate counsel cannot be deemed ineffective
for failing to raise this claim. The failure
of appellate counsel to brief an issue which
is
without
merit
is
not
a
deficient
performance which falls measurably outside the
range
of
professionally
acceptable
performance. Thus, Petitioner's judgment and
sentence should be affirmed.
Resp. Ex. P at 10-12. Petitioner replied, see Resp. Ex. R at 11-14,
and the appellate court ultimately denied the petition on the
merits, see Resp. Ex. S.
As there is a qualifying state court decision, the Court will
address 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 court's adjudication of this claim was not contrary to
clearly established federal law, did not involve an unreasonable
application of clearly established federal law, and was not based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. Thus, DePriest
is not entitled to relief on the basis of this claim.
Additionally,
even
assuming
that
the
state
court's
adjudication of this claim is not entitled to deference, DePriest's
ineffectiveness claim is without merit. DePriest has failed to
establish that appellate counsel's failure to raise the issue on
direct appeal was deficient performance. At trial, Timothy Buck
Higginbotham testified that DePriest delivered the stolen property
to him. See Tr. at 253-54, 256-57, 258, 259-60. Defense counsel
27
moved for a judgment of acquittal and argued that the State had not
presented a prima facie case for dealing in stolen property. See
id. at 288-89. After hearing argument, the court denied the motion
for judgment of acquittal.20 See id. at 290-91. At the close of the
evidence, the court instructed the jury as follows:
As to count two, to prove the crime of
dealing in stolen property, the State must
prove the following two elements beyond a
reasonable doubt:
1. Jon
property.
Duke
DePriest
trafficked
in
2. Jon Duke DePriest knew or should have
known that the property was stolen.
. . . .
It must be proved only to a reasonable
certainty that the alleged crime was committed
in Nassau County, Florida.
Id. at 351-52, 356. Thus, given Higginbotham's testimony that
DePriest delivered the stolen property to Higginbotham's Nassau
County home, see id. at 106, 250, there was evidence that DePriest
had committed the crime of dealing in stolen property in Nassau
County.
Given
the
record,
DePriest
has
not
shown
a
reasonable
probability exists that the claim would have been meritorious on
direct appeal, if counsel had raised the claim in the manner
20
Upon the court's inquiry, defense counsel affirmed that
Higginbotham had testified that DePriest brought the stolen goods
to Higginbotham's house. See Tr. at 291.
28
suggested by DePriest. DePriest's ineffectiveness claim is without
merit
since
he
has
shown
neither
deficient
performance
nor
resulting prejudice. Accordingly, DePriest is not entitled to
federal habeas relief on ground three.
D. Ground Four
As ground four, DePriest asserts that trial counsel was
ineffective because he failed to: (a) adequately investigate and
call Nikki Dotson and Michelle Dotson as witnesses at trial; (b)
locate Michelle Dotson; (c) cross-examine Detective Rose about her
investigative report; (d) ensure that Deputy Kelly was properly
notified of the trial date and available to testify at trial; (e)
advise DePriest of the negative impact of not calling Deputy Kelly
to testify; (f) file a motion to suppress the recorded conversation
between DePriest and Michelle Dotson and object to the prosecutor's
interpretation of the inaudible portions of the recording; (g)
request a court order to compel the State to provide the defense
with incriminating statements made by Michelle Dotson; (h) argue a
legally sufficient motion for judgment of acquittal; and (i) seek
a continuance of the trial. Petition at 27-45; Reply at 14-16.
Petitioner raised these ineffectiveness claims in his Rule 3.850
motion
in
state
court.
See
Resp.
Ex.
T
at
1-26.
The
court
ultimately denied the post-conviction motion with respect to these
claims, stating in pertinent part:
As to Point I: Defendant argues his counsel
was ineffective for failing to call Nikki
29
Dotson and Michelle Dotson as witnesses at his
trial. Defendant was asked twice at the end of
the trial if there were any additional
witnesses or evidence he wished presented and
he answered in the negative. See pages 293 and
294 and 306 and 307 of the trial transcript
from March 14, 2011, copies of which are
attached.[21]
As to Point II: Defendant argues his counsel
was ineffective for failing to locate Michelle
Dotson. See response to Point I.
As to Point III: Defendant argues his counsel
was ineffective for failing to ask Detective
Rose about her investigative report which
stated that Michelle Dotson received the
Mickey Mouse pin "from her daughter Nikki."
Defendant fails to disclose that in the report
Detective Rose actually reports that the
Mickey Mouse pin was "given to [Michelle
Dotson's]
daughter,
by
Jon
DePriest."
(Emphasis added). Please see Exhibit "A" of
defendant's Appendix of Exhibits.[22]
As to Points IV and V: Defendant argues his
counsel was ineffective for failing to have
Officer Kelly present at trial to testify.
Defendant expressly waived his right to appeal
this matter, for when discussing Officer
Kelly's absence and his counsel's suggestion
of "possibly coming back tomorrow" to have
Officer Kelly present, the defendant announced
to the Court: "Well, Your Honor, sir, there
was one [Officer Kelly], but he's not here, so
we're just going to go without him, sir."
Please see pages 306 and 307 of the trial
transcript from March 14, 2011, copies of
which are attached hereto.
As to Point VI: Defendant argues his counsel
was ineffective for failing to file a motion
21
See also Tr. at 292.
22
See Resp. Ex. U, Exhibit A, Nassau County Sheriff's Office
Investigative Summary.
30
to suppress a taped telephone conversation
between the defendant and Michelle Dotson.
Defense counsel did object at trial to
introduction
of
the
taped
telephone
conversation but his objection was overruled
after lengthy argument. See pages 153-168 from
the trial transcript of March 14, 2011, copies
of which are attached hereto. The issue of the
admission of the tape was also presented on
appeal.[23] See paragraph 3 of defendant's
Statement of Judicial Acts to be Reviewed, a
copy of which is attached hereto.
As to Point VII: Defendant argues his counsel
was ineffective for failing to obtain a copy
of the taped telephone conversation prior to
trial. Defense counsel's arguments referred to
in Point VI (pages 153-168 of the trial
transcript copies of which are attached
hereto) clearly refutes this. His argument at
trial shows a clear understanding of the
contents of the tape and his legal citations
evidence extensive research prior to the
trial.
As to Point VIII: Defendant argues his counsel
was ineffective for failing to present "a
legally sufficient Motion for Judgment of
Acquittal." Defense counsel made a wellreasoned motion for judgment of acquittal.
Please see pages 288-291 from the trial
transcript from March 14, 2011, copies of
which are attached hereto.
As to Point IX: Defendant argues his counsel
was ineffective for failing to seek a
continuance of the trial based on his
arguments contained in Points I, II, III, VI
and VII. The Court has found these points to
23
Notably, trial counsel listed the issue relating to
admission of the recording as one of the "judicial acts to be
reviewed upon the appeal." See Resp. Ex. A at 197-98, Statement of
Judicial Acts To Be Reviewed. However, DePriest, with the benefit
of appellate counsel, failed to argue the issue on appeal. See
Resp. Exs. G; I.
31
be insufficient and this ground is therefore
without legal support.
See Resp. Ex. T at 27-29. On DePriest's appeal, the appellate court
affirmed the trial court's denial per curiam, see DePriest, 136
So.3d
1217;
Resp.
Ex.
X,
and
denied
DePriest's
motion
for
rehearing, see Resp. Exs. Y; Z.
To the extent that the state appellate court affirmed the
trial court's denial on the merits, the Court will address 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 court's
adjudication of this claim was not contrary to clearly established
federal law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings. Thus, DePriest is not entitled to
relief on the basis of these ineffectiveness claims.
Moreover,
adjudication
even
of
these
assuming
claims
the
is
state
not
appellate
entitled
to
court's
deference,
DePriest's ineffectiveness claims are still without merit. 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).
The
inquiry
is
"whether,
in
light
of
all
the
circumstances, the identified acts or omissions were outside the
32
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, DePriest 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, 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, DePriest 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
33
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, DePriest has not shown any resulting 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
prepared the case differently and more thoroughly; called Deputy
Kelly, Michelle Dotson, and/or Nikki Dotson to testify at trial;
and filed additional pretrial motions and argued at trial in the
manner
suggested
by
DePriest.
His
ineffectiveness
claims
are
without merit since he has shown neither deficient performance nor
resulting prejudice. Accordingly, DePriest is not entitled to
federal habeas relief on ground four.
34
IX. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If DePriest 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, DePriest "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
35
consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment denying the
Petition and dismissing this case with prejudice.
3.
If DePriest appeals the denial of the Petition, the Court
denies a certificate of appealability. Because this Court has
determined that a certificate of appealability is not warranted,
the Clerk shall terminate from the pending motions report any
motion to proceed on appeal as a pauper that may be filed in this
case. Such termination shall serve as a denial of the motion.
4.
The Clerk of the Court is directed to close this case and
terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 3rd day of
July, 2017.
36
sc 6/30
c:
Jon Duke DePriest
Counsel of Record
37
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