Netting v. State Of Florida et al

Filing 57

ORDER denying 54 Motion for Reconsideration; denying 1 the petition; dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 2/9/2018. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

WILLIAM L. NETTING, JR.,
Petitioner,
vs.

Case No. 3:14-cv-872-J-39JBT

SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
I.

INTRODUCTION

Petitioner William L. Netting, Jr., challenges a 2008 Duval
County conviction for robbery. In his Petition (Doc. 1), he raises
eleven claims for habeas relief.
Response

to

Order

to

Show

Respondents filed an Answer in

Cause

(Response)

(Doc.

38)

with

supporting Exhibits.1 They also filed Supplemental Exhibit K (Doc.
43); a Response to Order to Show Cause (Doc. 49) concerning
appendices one through nine of Supplemental Exhibit K; and relevant
exhibits (see e.g., exhibit C (Doc. 49 at 21-49)) not found
elsewhere in the record before the Court. Petitioner filed a Reply
(Reply) (Doc. 56).

1

See Order (Doc. 6).

The Court hereinafter refers to the Exhibits as "Ex." Where
provided, the page numbers referenced in this opinion are the Bates
stamp numbers at the bottom of each page of the exhibit.
Otherwise, the page number on the particular document will be
referenced. The Court will reference the page numbers assigned by
the electronic docketing system where applicable.

II.
Petitioner
ineffective

seeks

CLAIMS OF PETITION

habeas

assistance

of

relief

counsel

on

for

eleven
failure

grounds:
to

call

(1)
alibi

witnesses; (2) ineffective assistance of counsel for failure to
properly

challenge

the

pretrial

identification

as

utilizing

suggestive procedures in creating the photo lineup, contending
counsel failed to understand the Biggers2 analysis; (3) ineffective
assistance of counsel for failure to move to suppress the in-court
identification of the perpetrator by the victim; (4) ineffective
assistance

of

counsel

for

failure

to

object

to

suggestive

photographs used in the pre-trial identification, to object to the
victim's in-court identification, and to object to prosecutorial
misconduct; (5) ineffective assistance of counsel for failure to
call Officer Sharkey; (6) ineffective assistance of counsel for
failure

to

impeach

the

testimony

of

Officer

Nelson,

Rosann

Amondala, and Susan Numbers; (7) ineffective assistance of counsel
for failure to file a motion in limine (or a motion to suppress)
seeking suppression of the evidence found in Officer Nelson's
patrol car; (8) ineffective assistance of counsel for failure to
file a motion to suppress evidence recovered at the crime scene;
(9) ineffective assistance of counsel for misadvising Petitioner
not to take the stand; (10) denial of substantial and procedural
rights due to the First District Court of Appeal's (1st DCA) denial

2

Neil v. Biggers, 409 U.S. 188 (1972).
- 2 -

of a writ of habeas corpus for belated appeal; and (11) denial of
proper

consideration

of

Petitioner's

claims

of

ineffective

assistance of trial counsel due to the trial court's denial of the
amended

3.850

motion

and/or

habeas

assistance of post conviction counsel.

corpus

for

ineffective

The Court will address the

eleven grounds raised in the Petition, see Clisby v. Jones, 960
F.2d 925, 936 (11th Cir. 1992).
Respondents urge this Court to deny the Petition without
conducting

an

evidentiary

hearing.

Response

at

55.

It

is

Petitioner's burden to establish the need for a federal evidentiary
hearing. Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060
(11th Cir. 2011), cert. denied, 565 U.S. 1120 (2012).

A district

court is not required to hold an evidentiary hearing if the record
refutes the asserted factual allegations or otherwise precludes
habeas relief.3

Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

In this case, the pertinent facts are fully developed in the record
before the Court.
[Petitioner's]

As a result, this Court can "adequately assess

claim[s]

without

further

factual

development,"

Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert.

3

It is important to note that Petitioner received a post
conviction evidentiary hearing in the trial court on claims of
ineffective assistance of counsel, and he was appointed counsel to
represent him in that post conviction proceeding which took place
on May 17, 2011, June 17, 2011, and June 30, 2011. Ex. RR; Ex. SS;
Ex. TT.
- 3 -

denied,

541

U.S.

1034

(2004),

and

no

further

evidentiary

proceedings are required in this Court.

III.

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act (AEDPA)
governs a state prisoner's federal petition for habeas corpus. See
28

U.S.C.

§

2254;

Ledford

v.

Warden,

Ga.

Diagnostic

&

Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert.
denied, 137 S.Ct. 1432 (2017).

"AEDPA limits the scope of federal

habeas review of state court judgments[.]"

Pittman v. Sec'y, Fla.

Dep't of Corr., 871 F.3d 1231, 1243 (11th Cir. 2017).

As such,

AEDPA ensures that federal habeas relief is limited to extreme
malfunctions, and not used as a means to attempt to correct state
court errors.

Ledford, 818 F.3d at 642 (quoting Greene v. Fisher,

132 S.Ct. 38, 43 (2011)).
The parameters of review are as follows:
Thus, under AEDPA, a person in custody
pursuant to the judgment of a state court
shall not be granted habeas relief on a claim
"that was adjudicated on the merits in State
court proceedings" 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; or ... 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). "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." Taylor v. Sec'y, Fla.
- 4 -

Dep't of Corr., 760 F.3d 1284, 1293–94 (11th
Cir. 2014).
As for the "contrary to" clause, "a
federal habeas court may grant the writ 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." Terry Williams v. Taylor, 529 U.S.
362, 412–13, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000). Under the "unreasonable application"
clause, a federal habeas court may "grant the
writ if the state court identifies the correct
governing legal principle from [the Supreme
Court's] decisions but unreasonably applies
that principle to the facts." Id. at 413, 120
S.Ct. 1495. "In other words, a federal court
may grant relief when a state court has
misapplied a 'governing legal principle' to 'a
set of facts different from those of the case
in which the principle was announced.'"
Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct.
2527, 156 L.Ed.2d 471 (2003) (quoting Lockyer
v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166,
155 L.Ed.2d 144 (2003)). And "an 'unreasonable
application of' [Supreme Court] holdings must
be objectively unreasonable, not merely wrong;
even clear error will not suffice." Woods v.
Donald, ––– U.S. ––––, 135 S.Ct. 1372, 1376,
191 L.Ed.2d 464 (2015) (per curiam) (quotation
omitted). To overcome this substantial 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, 103, 131
S.Ct. 770, 178 L.Ed.2d 624 (2011). This is
"meant to be" a difficult standard to meet.
Id. at 102, 131 S.Ct. 770.
Pittman, 871 F.3d at 1243-44.

- 5 -

There is a presumption of correctness of state court's factual
findings,

unless

the

convincing evidence.

presumption

is

rebutted

28 U.S.C. § 2254(e)(1).

with

clear

and

The standard of

proof is demanding, requiring that a claim be highly probable.
Bishop v. Warden, GDCP, 726 F.3d 1243, 1258 (11th Cir. 2013), cert.
denied, 135 S.Ct. 67 (2014). Also, the trial court's determination
will not be superseded if reasonable minds might disagree about the
factual finding.

Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015).

Also of note, "[t]his presumption of correctness applies equally to
factual determinations made by the state trial and appellate
courts."

Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284

(11th Cir. 2012) (quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th
Cir. 2003)), cert. denied, 568 U.S. 1233 (2013).
In applying AEDPA deference, the first step is to identify the
last state court decision that evaluated the claim on its merits.
Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th
Cir. 2016).4

Once identified, the Court reviews the state court's

decision, "not necessarily its rationale."

4

Pittman, 871 F.3d at

As suggested by the Eleventh Circuit in Butts v. GDCP
Warden, 850 F.3d 1201, 1204 (11th Cir. 2017), cert. denied, 2018 WL
491544 (U.S. Jan. 22, 2018), in order to avoid any complications if
the United States Supreme Court decides to overturn Eleventh
Circuit precedent as pronounced in Wilson v. Warden, Ga. Diagnostic
Prison, 834 F.3d 1227 (11th Cir. 2016) (en banc), cert. granted,
137 S.Ct. 1203 (2017), this Court, will employ "the more statetrial-court focused approach in applying § 2254(d)[,]" where
applicable.
- 6 -

1244 (quoting Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 785
(11th Cir. 2003) (citation omitted)).
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 indication or state-law
procedural principles to the contrary." Harrington v. Richter, 562
U.S. 86, 99 (2011). "The presumption 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 (citing Ylst
v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the last adjudication on the merits is unaccompanied by
an explanation, the petitioner must demonstrate there was no
reasonable basis for the state court to deny relief.
"[A]

habeas

court

must

determine

what

arguments

Id. at 98.
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; Marshall, 828 F.3d at 1285.
Although the § 2254(d) standard is difficult to meet, it was
meant to be difficult.

Rimmer v. Sec'y, Fla. Dep't of Corr., 876

F.3d 1039, 1053 (11th Cir. 2017) (opining that to reach the level
of an unreasonable application of federal law, the ruling must be
objectively unreasonable, not merely wrong or even clear error).
Indeed, in order to obtain habeas relief, "a state prisoner must
- 7 -

show

that

the

state

court's

ruling

on

the

claim

being

presented . . . was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement."

Richter, 562 U.S. at

103.
IV.

PROCEDURAL HISTORY

Before addressing the grounds raised in the Petition, the
Court will provide a brief procedural history.

Petitioner was

charged by amended information with robbery.

Ex. A at 17.

He

filed a Notice of Intention to Claim Alibi.

Id. at 39.

The

defense stipulated that Petitioner was legally arrested by Officer
W. H. Nelson, on October 4, 2006, for the crime of possession of
cocaine.

Id. at 161.

The stipulation required that the state

refer to the defendant being "detained on an unrelated matter."5
Id.
On February 19, 2008, the trial court conducted a jury trial.
Ex. C; Ex. D.

The jury returned a verdict of guilty.

193; Ex. D at 297.
trial.

Ex. A at

The trial court denied the motion for new

Ex. A at 196; Ex. B at 262-63.

On

March

proceeding.

26,

2008,

the

Ex. B at 239-76.

court

held

a

sentencing

The court sentenced Petitioner to a

term of fifteen years in prison.

5

trial

Id. at 275.

The court entered

The record shows that Petitioner was arrested for an
unrelated drug offense.
- 8 -

judgment on February 20, 2008, and sentence on March 26, 2008. Id.
at 197-201.
Petitioner appealed his conviction.

Id. at 206.

Through

counsel, Petitioner filed an appeal brief. Ex. E. The state filed
an answer brief.
per curiam.

Ex. F.

Ex. G.

On March 12, 2009, the 1st DCA affirmed

The mandate issued on March 30, 2009.

Id.

On January 19, 2010, pursuant to the mailbox rule, Petitioner
filed a Motion for Postconviction Relief (Rule 3.850 motion).
I at 1-58.

Ex.

The circuit court ordered the state to file a written

response. Id. at 122. The state filed its Response to Defendant's
Motion for Post-Conviction Relief.

Id. at 123-31.

The trial court appointed Kelly Papa, Esquire, as counsel for
Petitioner.

Id. at 134.

She moved to continue the evidentiary

hearing to attempt to locate witnesses.

Id. at 136-37.

She also

moved for authorization of costs for a private investigator, which
the court denied.

Id. at 140-46.

evidentiary hearing.

The trial court conducted an

Ex. RR; Ex. SS; Ex. TT.

The court provided

a Notice of Ruling, noting that it had received the state's and the
defense's

proposed

orders,

the

Defendant's

Notice

of

pending

memorandum of fact and law, and Defendant's July 7, 2011 letter.
Ex. J at 234.
The trial court denied the Rule 3.850 Motion in its Order
Denying Defendant's Motion for Post Conviction Relief Rule 3.850.
Ex. H at 50-156.

Petitioner moved for rehearing, id. at 157-64,

and the trial court denied rehearing.
- 9 -

Id. at 165.

Petitioner

appealed.

Id. at 167; Ex. K.

See Supplemental Exhibit K (Doc. 43)

& Response to Order to Show Cause (Doc. 49).
notice that it would not file a brief.

Ex. L.

September 10, 2012, per curiam affirmed.
issued on September 27, 2012.

The state filed a
The 1st DCA, on

Ex. M.

The mandate

Id.

On December 6, 2012, pursuant to the mailbox rule, Petitioner
filed a document entitled Verified 3.850 Motion and/or Habeas
Corpus for Ineffective Assistance of Postconviction Counsel in the
trial court.

Ex. N at 1-24.

On February 28, 2013, the court

denied the motion, finding that it had previously heard and ruled
upon Petitioner's Rule 3.850 motion.

Id. at 25.

Shortly thereafter, on December 17, 2012, Petitioner filed an
Amended

3.850

Motion

and/or

Habeas

Assistance of Postconviction Counsel.

Corpus

for

Ineffective

Id. at 26-54.

On February

28, 2013, the trial court denied the motion, concluding that it had
previously heard and ruled upon Petitioner's Rule 3.850 motion.
Id. at 55.

Petitioner appealed.

Id. at 56; Ex. O; Ex. P.

11, 2013, the 1st DCA affirmed per curiam.
moved for rehearing.

Ex. R.

Ex. Q.

On July

Petitioner

On December 5, 2013, the 1st DCA

entered a written opinion finding, "Florida law does not recognize
a right to the effective assistance of postconviction counsel,"
"there

is

no

binding

federal

precedent

to

the

contrary[,]"

Petitioner's claims "were properly denied as a matter of law," and
affirming the trial court's decision.

Ex. S at 10.

The mandate

issued on December 31, 2013. Id. On December 31, 2013, Petitioner
- 10 -

filed a notice to invoke discretionary jurisdiction.

Ex. JJ.

The

Supreme Court of Florida, on January 17, 2014, dismissed the case
as moot, referencing the 1st DCA's written opinion on rehearing.
Ex. KK.
On May 23, 2013, Petitioner filed a petition for writ of
mandamus in the trial court.
mandamus relief.

Id. at 19.

He filed an appeal brief.
Petitioner replied.

Ex. AA at 1-9.

Petitioner appealed.

Ex. CC.

Ex. EE.

The court denied
Id. at 20-21.

The state answered.

Ex. DD.

On July 7, 2014, the 1st DCA reversed

and remanded, directing that the trial court issue an order
instructing the clerk of court to provide Petitioner with the
requested transcripts of the three-day evidentiary hearing.6
FF.

Petitioner moved for rehearing.

rehearing.

Ex. HH.

Ex. GG.

Ex.

The 1st DCA denied

The mandate issued on August 29, 2014.

Ex.

II.
Meanwhile, on April 24, 2013, Petitioner filed a Petition for
Belated Appeal in the 1st DCA.

Ex. T.

The 1st DCA directed

Petitioner to show cause why the petition should not be converted
to a petition alleging ineffective assistance of appellate counsel.
Ex. W.
the

Petitioner responded.

petition

should

be

Ex. X.

treated

as

The 1st DCA determined that
one

alleging

ineffective assistance of appellate counsel.
on August 23, 2013, denied the petition.

6

at 3.

Ex. Y.

Ex. Z.

a

claim

of

The 1st DCA,

On September 17,

Respondents state the 1st DCA denied the appeal. Response
Upon review, the record shows otherwise. Ex. FF.
- 11 -

2013, Petitioner sought discretionary review of the 1st DCA's
August 23, 2013 decision.

Ex. PP.

The Supreme Court of Florida

dismissed the petition finding it was without jurisdiction.

Ex.

QQ.
V.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
INTRODUCTION

In order to prevail on a Sixth Amendment claim of ineffective
assistance of trial counsel, Petitioner must satisfy the twopronged test set forth in Strickland v. Washington, 466 U.S. 668,
688 (1984), requiring that he show both deficient performance
(counsel's representation fell below an objective standard of
reasonableness) and prejudice (there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different).

The Eleventh Circuit, in

Reaves v. Sec'y, Fla. Dep't of Corr., 872 F.3d 1137, 1148 (11th
Cir. 2017) (quoting Strickland, 466 U.S. at 687), instructed:

a

counsel's performance is deficient only if counsel's errors are "so
serious

that

counsel

was

not

functioning

as

the

'counsel'

guaranteed the defendant by the Sixth Amendment." And importantly,
with regard to the establishment of prejudice requirement, the
Eleventh Circuit related that the reasonable probability of a
different result must be "a probability sufficient to undermine
confidence in the outcome.

Id. (quoting Strickland, 466 U.S. at

694).

- 12 -

Notably, the trial court, in denying the Rule 3.850 motion,
referenced the applicable two-pronged Strickland standard as a
preface to addressing Petitioner's claims of ineffective assistance
of counsel.
applicable

Ex. H at 51-52.
standard,

it

The court not only recognized the

further

noted

that

all

that

is

constitutionally required is reasonably effective counsel, not
perfect or error-free counsel.

Id. at 52.

Also of significance

for all of the grounds raised in the Rule 3.850 motion, the court
credited the testimony of Petitioner's trial attorneys, Carr Smith
and

Amanda

Kuhn,

over

that

of

Petitioner,

finding

counsels'

testimonies more credible and persuasive than Petitioner's.

Id.

Upon review of Mr. Smith's evidentiary hearing testimony, the
court noted the following.

First, that Mr. Smith realized the

state's case against Petitioner was a strong one.

Id.

Second, he

said the state's case's strength derived from several factors: (1)
the identification by Ms. Numbers; (2) the DNA evidence linking
Petitioner to the crime scene by a baseball hat left behind at the
scene; (3) the cards and documents discovered in Officer Nelson's
new patrol vehicle; and (4) the potentially devastating testimony
of cooperating co-defendant Paul Swint.

Id.

Third, there was no

plea offer by the state (meaning Petitioner was left with the
choice to go to trial or plead straight up).

Id.

Mr. Smith attested that he sought the aid and advice of more
experienced employees in the Public Defender's Office and used the
Office's resources. Id. at 53. Mr. Smith said he investigated the
- 13 -

alibi witness leads provided by Petitioner, but he did not find a
credible or solid alibi witness. Id. Upon investigation, he found
that the witnesses were not able to establish an alibi or were
otherwise so potentially detrimental to Petitioner's case that the
defense could not risk calling the witnesses.

Id.

Although Mr.

Smith found Cynthia Goodman to be the most helpful alibi witness,
he ultimately concluded that her presence at trial was potentially
very

damaging

propensities.

due

to

her

knowledge

of

Petitioner's

violent

Id.

In preparing to challenge the identification testimony of Ms.
Numbers, Mr. Smith said that he researched the issue and filed
pretrial motions, hoping they would lead to the suppression of both
the pre-trial and in-trial identifications.

Id.

He also sought

advice from experienced and qualified attorneys with regard to the
DNA evidence.

Id.

Mr. Smith also sought a jury view of the patrol

vehicle in an attempt to demonstrate the unlikelihood of Petitioner
being able to hide cards in the vehicle.

Id. at 54.

With regard to the claim of failure to call Mr. Swint, Mr.
Smith testified that he opted not to call co-defendant Swint as a
witness; however, Mr. Smith explained that he was prepared to
impeach Swint's trial testimony after locating the impeachment
witnesses.

Id.

Due to the large gap between the time of the robbery and
Petitioner's arrest, Mr. Smith stated that it was apparent that
Petitioner could have changed clothes between the robbery and
- 14 -

arrest. Id. Mr. Smith testified "he had great difficulty locating
witnesses who were firm as to when or even which day they saw the
Defendant in relation to the robbery, let alone what he might have
been wearing."

Id.

Mr. Smith said he was convinced that it was

not in his client's best interest to testify, as Petitioner was a
convicted felon and the state's cross examination of him might be
quite damaging.

Id.

Ms. Kuhn, another assistant public defender, testified that
she knew of the excited utterance exception to the hearsay rule,
but did not recall why she did not assert it when she attempted to
introduce a description by Ms. Numbers regarding her assailant
through cross examination of Officer Sharkey.

Id. at 55.

In seeking post conviction relief, Petitioner criticized Mr.
Smith for failing to call Mike Casey, Robert Sharkey, Leslie Boyce,
Kevin Storch, Veronica Stamper, Cindy Goodman, Erica Chambers, and
Pat Chambers to establish an alibi or a time line of events.
Petitioner

also

said

he

wanted

Mr.

Smith

to

obtain

Id.
an

identification expert. Id. Petitioner questioned the advisability
of

Mr.

Smith's

closing

argument,

expressing

surprise

at

its

content. Id. Petitioner was also critical of Mr. Smith's handling
of the physical evidence, including that which flowed from the
unrelated drug arrest, and the failure to bring Petitioner's
clothes from his arrest before the jury.

Id. at 55-56.

Although acknowledging his colloquy with the court concerning
the right to testify, Petitioner insisted that the blame should
- 15 -

fall on counsel for providing Petitioner with erroneous advice not
to testify.

Id. at 56.

Petitioner admitted that his first

criminal arrest occurred twenty-five years prior to the robbery
arrest.

Id.

He also represented that he had been in court and

represented by counsel in numerous other criminal cases.

Id.

Finally, although not presented as a claim in his Rule 3.850
motion, the court construed a claim of factual innocence based on
Petitioner's contention that he had a medical condition that would
have rendered him physically unable to commit the crime.

Id.

After summarizing the evidence presented at the evidentiary
hearing, the court made the following assessment of the testimonies
and performance of defense counsel:
The Court accepts the testimonies of Mr.
Carr and Ms. Kuhn, and finds that they were
not ineffective in their investigation and
preparation of the defense in this case. The
Court finds that the trial decisions made by
Mr. Smith and Ms. Kuhn, which are under attack
by the Defendant in the instant Motion,
constituted sound trial strategy of defense
attorneys. See Stronger v. State, 419 So.2d
1044 (Fla. 1982); Gonzalez v. State, 579 So.2d
145, 146 (Fla. 3d DCA 1991) ("Tactical
decisions of counsel do not constitute
ineffective assistance of counsel.") Finally,
before reaching the merits of the Defendant's
arguments, the Court notes that the Defendant
established
from
each
witness
at
the
evidentiary hearing that their memories were
much better around the time of the crime in
question and the Defendant's trial. The Court
has taken this fact into consideration.
Ex. H at 56-57.
GROUNDS OF THE PETITION
- 16 -

A.

Ground One

In ground one, Petitioner raises a claim of ineffective
assistance of trial counsel, complaining that counsel failed to
call alibi witnesses.

Petition at 9-12.

As noted by Respondents,

Petitioner raised this claim of ineffective assistance of counsel
in claim two of his Rule 3.850 motion.

Response at 12.

Relying on a number of sound reasons, the trial court rejected
this claim.

The court recognized that defense counsel made

extensive efforts to develop an alibi defense and find witnesses to
support the previously noticed alibi claim.

Ex. H at 57.

In

particular, counsel filed a motion for continuance in an attempt to
form his defense and prepare for trial.

Id.

Not only that, the

court found that Mr. Smith undertook the appropriate measures to
prepare for trial, taking depositions, performing investigations,
and attempting to build an alibi defense.

Id.

But, after hearing

Mr. Smith's evidentiary hearing testimony, the court concluded
"that none of the witnesses provided by the Defendant, singularly
or cumulatively, could have supplied the Defendant with a credible
or solid alibi to the crime in question."

Id. at 57-58.

Furthermore, the court determined that Mr. Smith made a
tactical decision to wait until the last moment to abandon the
alibi defense, finding the potential alibi witnesses suffering from
credibility issues and poor memory, including an inability to place
Petitioner elsewhere at the time of the instant offense.
58.

Id. at

The court found counsel's assessment of the effectiveness of
- 17 -

the alibi defense persuasive, recognizing that the defense "was
dependent upon the testimony of the Defendant's cohorts, most of
whom, if not all, were incarcerated, involved in drugs, on drugs
during the time of the instant crime and maintained long felony
records."

Id.

In sum, the court was convinced that defense

counsel's assessment that the alibi defense, as it stood, was
"tantamount to no defense at all," and was persuaded that counsel
was accurate in his assessment that such a defense would cause more
harm than good.

Id.

As such, the court found defense counsel was

not ineffective for failing to present the alibi defense as
counsel's assessment was a reasonable one.

Id.

Additionally, the court found counsel's decision not to call
Kelvin Williams, Michael Casey, and Paul Swint as defense witnesses
constituted another tactical decision.
Michael

Casey

were

listed

as

Id.

witnesses

Kelvin Williams and
to

provide

rebuttal

testimony if the co-defendant, Paul Swint, took the stand against
Petitioner.

Id.

Since the state did not call the co-defendant,

the testimony of the rebuttal witnesses became irrelevant and would
have been deemed inadmissible hearsay.

Id.

Mr. Smith explained

that he did not call Mr. Swint as a witness because he had been a
cooperating

state's

witness

and

would

have

likely

Petitioner in the robbery if called to the stand.

Id.

implicated
The court

did not find deficient performance by defense counsel in this
regard.

Id.

- 18 -

"Which witnesses, if any, to call . . . is the epitome of a
strategic decision, and it is one that [a court] will seldom, if
ever, second guess."

Waters v. Thomas, 46 F.3d 1506, 1512 (11th

Cir. 1995), cert. denied, 516 U.S. 856 (1995).

In order to

demonstrate ineffectiveness, the decision must be so patently
unreasonable that no competent attorney would have chosen that
path.

Dingle v. Sec'y for the Dep't of Corr. 480 F.3d 1092, 1099

(11th Cir. 2007) (quotation omitted), cert. denied, 552 U.S. 990
(2007).

See Rizo v. United States, No. 03-20010-CIV, 2014 WL

7152755, at *5 (S.D. Fla. Dec. 15, 2014), aff'd, 662 F. App'x 901
(11th Cir. 2016)

(finding counsel's decision not to call alibi

witnesses was not unreasonable, particularly where the alibis were
not airtight, avoiding leaving the jury with the conundrum as to
whether to focus more on the proof of the alibi than on whether the
state has met its burden of proof).
In this instance, Petitioner has not shown that Mr. Smith's
decision not to present an alibi defense was an unreasonable
strategic

move

that

no

competent

counsel

would

have

taken.

Consequently, Petitioner's counsel's decision not to call the alibi
witnesses was not unreasonable or otherwise deficient.

The Court

will not address the prejudice prong as Petitioner has failed to
establish the first prong of Strickland.7

7

In order to show a violation of the Sixth Amendment, both
parts of the test must be satisfied. Bester v. Warden, Att'y Gen.
of the State of Ala., 836 F.3d 1331, 1337 (11th Cir. 2016) (citing
Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)), cert.
- 19 -

With regard to the rebuttal witnesses, given the fact that the
state did not call the co-defendant to the stand, counsel's
decision not to call the rebuttal witnesses was also a sound
tactical decision.

Based on the record, there was certainly good

reason for Mr. Smith to be circumspect about the potential content
of Mr. Swint's testimony as Swint had been the state's cooperating
witness and had already pled to the crime.
decision

was

not

so

patently

Mr. Smith's strategic

unreasonable

that

no

competent

attorney would have elected not to call the co-defendant to the
stand.
The decision to deny this claim of ineffective assistance of
counsel is not inconsistent with Strickland.

"Only those habeas

petitioners who can prove under Strickland that they have been
denied a fair trial by the gross incompetence of their attorneys
will be granted the writ."

Marshall, 828 F.3d at 1290 (quoting

Kimmelman v. Morrison, 477 U.S. 365, 382 (1986)). This standard is
extremely difficult to meet, and even a strong case for habeas
relief will not prevail as long as the state court's contrary
conclusion was reasonable.

Here, the trial court found Petitioner

failed to satisfy the performance prong of Strickland and denied
post conviction relief.
trial court.

Ex. M.

The 1st DCA affirmed the decision of the
The 1st DCA did not give reasons for its

denied, 137 S.C. 819 (2017). A court need only address one prong,
and if it is found unsatisfied, the court need not address the
other. Id.
- 20 -

summary affirmance; however, if there was any reasonable basis for
the court to deny relief, the denial must be given deference by
this Court.

Cullen v. Pinholster, 563 U.S. 170, 187-88 (2011).

There is a qualifying state court decision and AEDPA deference
is warranted.
decision

that

The adjudication of the state court resulted in a
involved

a

reasonable

application

of

clearly

established federal law, as determined by the United States Supreme
Court.

Therefore, Petitioner is not entitled to relief on ground

one because the state court's decision was not contrary to clearly
established federal law, Strickland and its progeny, did not
involve an unreasonable application of clearly established federal
law, and was not based on an unreasonable determination of the
facts.
B.
Petitioner,

in

his

Ground Two

second

ground,

raises

a

claim

of

ineffective assistance of counsel for failure to properly challenge
the pretrial identification as utilizing suggestive procedures in
creating the photo lineup, asserting this deficiency in performance
was caused by counsel's failure to understand the Biggers analysis.
Petitioner raised two grounds in his Rule 3.850 motion with respect
to this issue: claims twelve and sixteen.

See Response at 17-18;

Ex. H at 68.
As the Court previously noted, before addressing specific
grounds for relief, the trial court set forth the Strickland
standard in its order.

Ex. H at 51-52.
- 21 -

In addressing grounds

twelve and sixteen of the Rule 3.850 motion, the trial court first
noted that defense counsel filed a motion in limine objecting to
the state's use of the lineup photograph and seeking exclusion of
it at trial.

Id. at 69.

motion in part.
court's order.

Of significance, the court granted the

See exhibits "F" and "G" attached to the trial
Ex. H at 148-150.

Additionally, the court found

the issue properly preserved for appeal purposes.

Id. at 69.

Moreover, the court concluded, based on defense counsel's
testimony at the evidentiary hearing, that he fully understood the
Biggers analysis.

Id.

Mr. Smith explained why he did not pursue

such an attack, stating that he did not believe that he could
satisfy the preliminary issue because the police did not utilize
suggestive procedures in creating the photo lineup. Id. Believing
it would have been a futile argument that would be readily denied
by the trial court, Mr. Smith decided not to pursue that avenue.
Id.
The Eleventh Circuit explained the evaluation process when
addressing

the

question

of

admissibility

of

an

out-of-court

identification:
This court consistently has followed a
two-step
analysis
in
assessing
the
constitutionality of a trial court's decision
to admit out-of-court identifications. First,
we must determine whether the original
identification
procedure
was
unduly
suggestive. Dobbs v. Kemp, 790 F.2d 1499, 1506
(11th Cir. 1986), modified in part on other
grounds, 809 F.2d 750 (11th Cir.), cert.
denied, --- U.S. ----, 107 S.Ct. 2203, 95
L.Ed.2d 858 (1987). If we conclude that the
- 22 -

identification procedure was suggestive, we
must then consider whether, under the totality
of the circumstances,[8] the identification was
nonetheless reliable. See Neil v. Biggers, 409
U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d
401 (1972); Dobbs, 790 F.2d at 1506. This
second stage involves consideration of five
factors identified by the Supreme Court in
Neil v. Biggers: opportunity to view, degree
of attention, accuracy of the description,
level of certainty, and length of time between
the crime and the identification. 409 U.S. at
199, 93 S.Ct. at 382.
Cikora v. Dugger, 840 F.2d 893, 895 (11th Cir. 1988).
The trial court, after considering the evidentiary hearing
testimony,
deficient.

found

that

defense

counsel's

performance

was

not

The court determined that counsel understood the

Biggers analysis, but Mr. Smith decided it would be futile to
challenge the procedures in creating the photo lineup because they
were not suggestive, thus, although aware of the Biggers factors,
he did not reach the second stage - the reliability question.
Counsel did, however, file a motion in limine, objecting to the
state's use of the lineup photograph, and obtained some relief from
the court, with the court disallowing the use of the term booking
photo or JPIC photo.

See Exhibit "G" attached to the order.

Ex.

H at 150.

8

Importantly, under the totality of the circumstances
approach, the Court must ask, even if the police procedure is found
to be both suggestive and unnecessary, "whether improper police
conduct created a 'substantial likelihood of misidentification.'"
Perry v. New Hampshire, 565 U.S. 228, 239 (2012) (quoting Biggers,
409 U.S. at 201).
- 23 -

The trial court employed the Strickland standard and found no
deficient performance.

Thus, the court found the first prong of

the Strickland standard had not been met. The record shows the 1st
DCA affirmed the decision of the circuit court in denying this
ground,

and

this

Court

will

presume

that

the

state

court

adjudicated the claim on its merits, as there is an absence of any
indication or state-law procedural principles to the contrary.
Since the last adjudication on the merits is unaccompanied by an
explanation, it is Petitioner's burden to show there was no
reasonable basis for the state court to deny relief. He has failed
in this regard.
Upon review, there is a reasonable basis for the court to deny
relief; therefore, the denial must be given deference.

The 1st

DCA's decision is not inconsistent with Supreme Court precedent,
including Stickland and its progeny.

Thus, the state court's

adjudication of this claim is not contrary to or an unreasonable
application

of

Strickland,

determination of the facts.

or

based

on

an

unreasonable

Accordingly, ground two is due to be

denied.
C.

Ground Three

In his third ground, Petitioner asserts that he received the
ineffective assistance of counsel for failure to move to suppress
the in-court identification of the perpetrator by the victim.
Petition at 18.

Upon consideration of the record, this claim was

exhausted when it was presented in claim thirteen (a claim of
- 24 -

ineffective assistance for failure to object to the victim's incourt identification of the defendant as the perpetrator because
Ms. Numbers had attended all pre-trial hearings resulting in a
tainted identification) and claim seventeen (a claim of ineffective
assistance of counsel for failure to move to suppress the in-court
identification by the victim of the defendant as the perpetrator)
of the Rule 3.850 motion.

See Ex. H at 69-70.

As noted by

Respondents, the trial court properly employed the Strickland test
when it reviewed Petitioner's claim of ineffective assistance of
counsel.

Response at 23.

In denying these claims, the trial court first noted that the
victim identified Petitioner in a pre-trial array of photographs.
Ex. H at 70.

The court also found: "[t]here is no indication that

the victim's identification of the Defendant as the assailant was
tainted[.]" Id. The court recognized that defense counsel did make
some argument to the jury that the identification was tainted. Id.
Additionally, the court noted that defense counsel filed a motion
in limine to suppress the victim's pre-trial identification, as
well as any in-court identification of the defendant by the victim.
Id.

See exhibit "H" attached to the order, Defendant's Third

Motion in Limine to Suppress Pretrial Identification and In-Court
Identification.

Ex. H at 151-53.

The trial court opined that

defense counsel could not be blamed for the trial court's decision
to deny the defense motion.

Id. at 70.

Additionally, the court

pointed out that defense counsel raised the issue of the denial of
- 25 -

the motion to suppress the in-court identification in a motion for
new trial.

Id.

See exhibit "J" attached to the order.

Ex. H at

155-56.
Based on all of the above, the trial court concluded that, in
its assessment, there was no other action that defense counsel
could or should have taken with regard to the identification issue,
and counsel was not ineffective for failing to take any additional
steps. Id. Not only did the court find that counsel's performance
was not deficient, it also found Petitioner failed to satisfy the
prejudice prong of the Strickland test.
affirmed.

Id. at 71.

The 1st DCA

Ex. M.

In undertaking a review of this type of claim, the key
question

is

suggestive.

whether

the

photographic

lineup

was

irreparably

O'Brien v. Wainwright, 738 F.2d 1139, 1140 (11th Cir.

1984), cert. denied, 469 U.S. 1162 (1985).

In Simmons v. United

States, 390 U.S. 377, 384 (1968), the Supreme Court held that an
in-court

eyewitness

identification

following

a

pretrial

identification by photograph will be set aside "only if the
photograph identification procedure was so impermissibly suggestive
as to give rise to a very substantial likelihood of irreparable
misidentification."
Petitioner's

argument

The

trial

that

court

the

pretrial

photograph was improperly suggestive.
reliability

of

identification

is

remained

unconvinced

identification

by
by

Further scrutiny of the

uncalled

for

under

these

circumstances because in order to reach the second sage of inquiry,
- 26 -

the court must first be convinced that the identification procedure
was suggestive, otherwise, the inquiry is at end.
Again, the post conviction court applied the two-pronged
Strickland standard, finding Petitioner failed to satisfy both
prongs of the two-part test.

Of importance, the 1st DCA affirmed

the decision of the circuit court in denying this ground, and this
Court will presume that the state court adjudicated the claim on
its merits, as there is an absence of any indication or state-law
procedural principles to the contrary. Since the last adjudication
on

the

merits

is

unaccompanied

by

an

explanation,

it

is

Petitioner's burden to show there was no reasonable basis for the
state court to deny relief.

He has failed in this regard.

Upon review, there is a reasonable basis for the court to deny
relief; therefore, the denial must be given deference.

The 1st

DCA's decision is not inconsistent with Supreme Court precedent,
including Stickland and its progeny.

Thus, the state court's

adjudication of this claim is not contrary to or an unreasonable
application

of

Strickland,

or

based

on

an

unreasonable

determination of the facts. Accordingly, ground three is due to be
denied.
D.

Ground Four

In his fourth ground, Petitioner re-raises the claims of
ineffective assistance of trial counsel presented in issues twelve
and thirteen of his post conviction motion, and adds one new claim,
a claim of ineffective assistance of counsel for failure to object
- 27 -

to prosecutorial misconduct.
Petitioner

is

re-raising

Petition at 21.

claims

of

To the extent

ineffective

assistance

of

counsel previously addressed by this Court, no further review is
necessary.

The Court will consider the claim of ineffective

assistance of counsel for failure to object to prosecutorial
misconduct as it has not been previously addressed in this opinion.
Petitioner did raise a claim of ineffective assistance of
counsel for failure to object to fabrications made by the state
during opening arguments (claim 14 of the Rule 3.850 motion),9 and
that claim is ripe for review.

Ex. I at 35-36.

Specifically, the

opening statement at issue is: "[a]nd she [Ms. Susan Numbers] will
tell you that he [the detective] showed her pictures and that when
she looked through those pictures, she picked out one person." Id.
at 35.

In context, the prosecutor made the following remarks in

opening statement:
And she will tell you that he showed her
pictures and that when she looked through
those pictures, she picked out one person.
She picked out the one person who robbed her
the day before. And the photograph of the one
person that she picked out was the defendant,
William Netting.
Ex. C at 22-23.
Thereafter, during the course of the trial, Ms. Numbers
testified:

9

Respondents refer to claim 15 of the Rule 3.850 motion, but
that claim is a claim of prosecutorial misconduct, not a claim of
ineffective assistance of counsel. See Response at 25.
- 28 -

A
Well, at that point I flipped them [the
photographs] all over and I immediately shoved
all but two aside. And then there were two
that I looked at more closely.
And then I
took one of the two and shoved that aside and
it left me with just one.
. . . .
A
I told the detective at that point in
time that I believed this was the man that had
attacked me, although I could not be 100
percent sure.
. . . .
A
He
[the
detective]
asked
me what
percentage did I believe I could identify
this, and I said at least 75 percent, at which
point in time he handed me a pen and said,
Write that on the back and sign it, which is
what I did.
Q
And the front of that –- is that the
picture of the defendant that's on trial
today?
A

That's the picture that I picked out.

Ex. C at 57-58 (emphasis added).
In denying post conviction relief, the trial court found the
prosecutor's
evidence.

opening

Ex. H at 71.

statement

was

proper

and

supported

by

Upon finding the statements were properly

made, the court said trial counsel could not be deemed ineffective
for failing to object to the prosecutor's opening remarks. Id. In
support, the court highlighted Ms. Number's testimony that she
shoved the other photograph aside, leaving just one.

Id.

Upon review, the opening statements were supported by the
evidence presented at trial. Ms. Numbers testified that pre-trial,
- 29 -

she shoved one picture aside, leaving one picture, which she
believed to be a photograph of the man that had attacked her.

She

explained that she was 75 percent sure that the picture was of the
perpetrator.
The cross examination of Ms. Numbers is telling.

Defense

counsel asked Ms. Numbers if she at first narrowed it to two
photographs.

Ex. C at 62.

She confirmed that was the case.

Id.

She also confirmed that she was only 75 percent sure that the
photograph she picked out was the perpetrator.

Id.

The circuit court rejected Petitioner's claim of ineffective
assistance of counsel, finding he failed to demonstrate deficient
performance by defense counsel, failing to satisfy the first prong
of Strickland.
Ex. M.

The 1st DCA affirmed without a written decision.

The Court will presume, under these circumstances, the 1st

DCA adjudicated the claim on its merits as there is an absence of
any indication or state-law procedural principles to the contrary.
Petitioner has failed to meet his burden to show that there was no
reasonable basis for the state court to deny relief.
Upon review, there is a reasonable basis for the court to deny
relief; therefore, the denial must be given deference.

Thus,

deference under AEDPA should be given to the last adjudication on
the merits provided by the 1st DCA.
decision
including

is

not

inconsistent

Stickland

and

its

Given due consideration, its

with

Supreme

progeny.

Court

The

precedent,

state

court's

adjudication of this claim is not contrary to or an unreasonable
- 30 -

application

of

Strickland,

determination of the facts.

or

based

on

an

unreasonable

As such, ground four is due to be

denied.
Alternatively, Petitioner has failed to carry his burden of
showing that his counsel's representation fell outside the widerange

of

reasonably

professional

assistance.

Moreover,

even

assuming deficient performance, Petitioner has not shown resulting
prejudice.

Indeed, he has not shown that a reasonable probability

exists that the outcome of the case would have been different if
his counsel had objected to the prosecutor's opening statement or
her "fabrications and obfuscations [sic]."

Petition at 21.

In

sum, Petitioner's ineffectiveness claim is without merit since he
has neither shown deficient performance nor resulting prejudice.
E.

Ground Five

In his fifth ground, Petitioner raises another claim of
ineffective assistance of counsel.

He submits that his defense

counsel was ineffective for failing to call Officer Sharkey.
Petition at 24.

Petitioner raised this issue in his Rule 3.850

motion in the state trial court as claim four.

He claimed Officer

Sharkey could have attested to the vague description given by the
victim at the crime scene, that of a white male, 5'10", and
unshaven.

Ex. I at 18.

In finding this claim of ineffective assistance of counsel to
be without merit, the court opined:

- 31 -

First and foremost, Defense Counsel conducted
an effective cross-examination of Officer
Sharkey. There is nothing in the record to
indicate that Defense Counsel was unable to
address any questions or concerns from Officer
Sharkey without making him a Defense witness.
In reference to Argument Three above, the
Officer still would have been prohibited from
testifying as to the victim's identification
of the perpetrator because such a statement
would remain inadmissible hearsay.
In
addition, despite the Defendant's contention,
Officer Sharkey could not testify as to the
photo spreads because Officer Sharkey neither
compiled the photo spreads nor administered
them to the victim. Thus, the Officer was not
qualified to testify as to the content of the
photo spreads. The proper person to testify
about the photo spreads must have been the
creator of the spreads, Detective Gagnon.
Upon review of the trial transcripts, the
Court finds that Defense Counsel properly
questioned Detective Gagnon regarding the
photo spreads, specifically eliciting the fact
that he created them. (Exhibit "E," pgs. 145,
149.)
Ex. H at 60-61.
The 1st DCA affirmed this decision.

Ex. M.

There is a

reasonable basis for the state court to deny relief, and this
decision must be given deference.

The 1st DCA's decision is not

inconsistent with Supreme Court precedent, and the state court's
adjudication of this claim is not contrary to or an unreasonable
application

of

Strickland,

or

based

on

an

unreasonable

determination of the facts.
The record before the Court supports the conclusion that
counsel's performance was not deficient.

It shows that on cross

examination of Ms. Numbers, defense counsel asked her about the
- 32 -

description of the perpetrator of the robbery she gave to Officer
Sharkey.

Ex. C at 61.

Ms. Numbers remembered giving some

description, but she admitted that she did not provide a very
strong or detailed description.
perpetrator
sunglasses.

was

wearing

a

Id.

Florida

Id. at 61-62.

She testified that the
State

baseball

cap

and

Finally, she stated she could not

identify any clothing of the perpetrator, other than she just knew
that the individual had on long pants because she did not recall
seeing hairy legs.

Id. at 62.

Counsel's effective cross examination of Ms. Numbers before
the jury showed that Ms. Numbers was unable to give a detailed or
strong description of her assailant immediately after the robbery.
Indeed, she readily admitted that she was unable to provide
specific descriptors of the assailant, as he had on sunglasses and
a baseball cap, and she was unable to describe his clothing.
When

considering

the

claim

of

ineffective

assistance

of

counsel, this Court must try to eliminate the distorting effects of
hindsight, as counseled to do so in Strickland, 466 U.S. at 689.
This Court must consider that counsel is given wide latitude in
making tactical decisions, like selecting who to call as a witness.
Id.

Although counsel did not call Officer Sharkey, Mr. Smith

effectively

cross

examined

Ms.

Numbers,

which

revealed

her

inability to provide a detailed and strong description of the
perpetrator of the robbery immediately after the incident.

The

Court recognizes, "[t]here are countless ways to provide effective
- 33 -

assistance in any given case."

Id.

Under these circumstances,

counsel's performance was not deficient and Petitioner is not
entitled to habeas relief.

F.

Ground Six

In ground six of his Petition, Petitioner raises a claim of
ineffective assistance of counsel for failure to impeach the
testimony of Officer Nelson, Rosann Amondala, and Susan Numbers.
Petition at 27.

Petitioner exhausted this ground in the state

court system in claims nine, ten and eleven of his Rule 3.850
motion. Id. The trial court rejected Petitioner's contention that
counsel was ineffective for failing to introduce evidence, impeach
or elicit prior inconsistent statements of Officer Nelson.
at 66.

Ex. H

After review of the trial transcript, the court found that

defense counsel impeached Officer Nelson through cross examination.
Id. The court, after further review of the record, determined that
counsel did in fact impeach Ms. Amondala through cross examination.
Id. at 67.

Also of import, the court concluded that a Richardson

Hearing, suggested by Petitioner to be desirable and necessary,
"would have been futile[.]" Id.
Finally, with regard to Ms. Numbers, the court found that
counsel

vigorously

identification

of

questioned
Petitioner,

Ms.
and

- 34 -

Numbers

regarding

her

properly

challenged

the

credibility of her identification through cross examination.10
at 68.

Id.

Afterwards, counsel argued that Ms. Numbers could only

identify her assailant with 75 percent certainty, as she admitted
on cross examination that she was only 75 percent certain that the
photograph she selected was her assailant's photograph, casting
some doubt on her identification of the defendant as the assailant.
Again, the court concluded that counsel did not render

Id.

ineffective assistance in his cross examination.

Id.

"Strickland does not guarantee perfect representation, only a
'reasonably

competent

attorney.'"

Richter,

562

U.S.

at

110

(quoting Strickland, 466 U.S. at 687) (internal quotation omitted).
Here, defense counsel's representation did not so undermine the
proper functioning of the adversarial process that Petitioner was
deprived of a fair trial.

On the contrary, Petitioner received

effective representation.
It is noteworthy that "there is no expectation that competent
counsel will be a flawless strategist or tactician[.]"
562

U.S.

at

110.

Again,

perfection

is

not

the

Richter,
standard.

Petitioner has the burden to show that his counsel's representation
fell below an objective standard of reasonableness. Petitioner has
failed to meet this burden.

He has not shown that his attorney's

10

The trial court did not deem counsel's performance deficient
when questions were not allowed based on rules governing
admissibility, finding counsel cannot be blamed for the rulings of
the trial court. Ex. H at 68. See Ex. C at 65.
- 35 -

representation was so filled with such serious errors that defense
counsel was not functioning as counsel guaranteed by the Sixth
Amendment, admittedly a high bar that is difficult to reach.

Id.

at 104 (citation omitted).
In denying claims nine, ten and eleven of the Rule 3.850
motion, the court concluded that counsel's performance was not
deficient under Strickland.

The 1st DCA affirmed.

Ex. M.

Its

adjudication on the merits is unaccompanied by an explanation.
Thus, the Court presumes that the 1st DCA adjudicated the claim on
its merits, as there is an absence of any indication or state-law
procedural principles to the contrary.

Now it is Petitioner's

burden to show there was no reasonable basis for the state court to
deny relief.

If he fails to accomplish this task, he cannot

prevail on ground six.
Upon review, there is a reasonable basis for the court to deny
relief; therefore, the denial must be given deference.

In this

instance, deference under AEDPA should be given to the last
adjudication on the merits provided by the 1st DCA.

Given due

consideration, its decision is not inconsistent with Supreme Court
precedent, including Stickland and its progeny.

The state court's

adjudication of this claim is not contrary to or an unreasonable
application

of

Strickland,

determination of the facts.

or

based

on

an

unreasonable

As such, ground six is due to be

denied.

- 36 -

G.

Ground Seven

In his seventh ground for habeas relief, Petitioner asserts
that he received the ineffective assistance of counsel for failure
to file a motion in limine (or a motion to suppress) seeking
suppression of the evidence found in Officer Nelson's patrol car.
Petition at 30-31. Petitioner presented this argument in claim six
of his Rule 3.850 motion, and the trial court denied this ground
finding that such a motion would not have been granted, there was
nothing

unconstitutional

about

the

arrest,

and

as

a

result,

Petitioner has failed to satisfy the prejudice prong of Strickland
because, if the suppression motion would not have properly been
granted, prejudice cannot be established in failure to file the
motion.

Ex. H at 62-63.

The 1st DCA affirmed without opinion.

Ex. M.
This

Court

in

Grinard-Henry

v.

United

States,

No.

8:03CR-437T17MAP, 2006 WL 2265416, at *3 (M.D. Fla. Aug. 8, 2006),
explained:
Defense counsel cannot be deemed to have
performed deficiently by failing to file a
motion that would have been futile. For the
same reason, [the petitioner] cannot satisfy
the "prejudice" prong of Strickland. See also
Salcedo-Palma v. United States, 2005 WL
1243775 (M.D. Fla. 2005) (Bucklew, J.)
(finding
that
defense
counsel
was
not
ineffective in failing to file a "futile"
motion to suppress because the defendant
signed a plea agreement in which he admitted
that the vessel on which he was traveling was
"subject to the jurisdiction of the United
States").
- 37 -

In the case at bar, the trial court determined that a motion
to suppress would have been futile; therefore, counsel was not
ineffective for failing to file a motion seeking suppression of the
evidence.

As such, Petitioner's defense counsel cannot be deemed

to have performed deficiently by failing to file the motion, and
it follows that Petitioner cannot satisfy the prejudice prong of
Strickland due to the futility of such a motion.
Even if counsel's performance was deemed deficient, Petitioner
has

not

established

prejudice prong.

prejudice,

failing

to

meet

Strickland's

Petitioner has failed to show "that it was

'reasonably likely' that, but for counsel's deficient performance,
the result of the proceeding would have been different."

Stoddard

v. Sec'y, Dep't of Corr., 600 F. App'x 696, 709 (11th Cir.) (per
curiam) (citation omitted), cert. denied, 136 S.Ct. 114 (2015).
Therefore, he is not entitled to habeas relief.
Petitioner is not entitled to relief on ground seven of the
Petition, the claim of ineffective assistance of trial counsel.
Deference, under AEDPA, should be given to the state court's
decision.

The state court's adjudication of this claim is not

contrary to or an unreasonable application of Strickland, or based
on an unreasonable determination of the facts.

Consequently,

Petitioner is not entitled to habeas relief on ground seven.
H.

Ground Eight

- 38 -

Petitioner, in his eighth ground for relief, raises a claim of
ineffective assistance of counsel for failure to file a motion to
suppress evidence recovered at the crime scene.

Petition at 34.

Apparently, Petitioner suspects or surmises that intermeddlers
handled the evidence and broke the chain-of-custody of the evidence
found in the grocery store parking lot: the map and the baseball
hat. Petitioner raised this claim in issue seven of his Rule 3.850
motion, and the trial court addressed it, finding that even if the
chain-of-custody had been broken and the evidence handled by
intermeddlers, that in and of itself is not enough to render the
evidence inadmissible.

Ex. H at 63.

The court opined that a mere

possibility of tampering is not enough; a defendant bears the
burden of showing there was a probability of tampering with the
evidence.

Id.

In denying this ground, the trial court described Petitioner's
belief that intermeddlers handled the cap and map as a speculative
belief, and this "mere possibility of tampering," did not prove a
probability of tampering with the evidence. Id. at 64. To support
this holding, the court relied on the fact that Petitioner was not
present at the crime scene when the items were found.

Id.

The

court further found that Petitioner had "no knowledge of whether or
not the items were actually intermeddled with by unauthorized
persons." Id. The court was persuaded by Mr. Smith's testimony at
the evidentiary hearing revealing that he understood the legal

- 39 -

standards involved, but also believed the argument to be nonmeritorious.

Id.

Finally, the court denied this ground, finding

that a motion to suppress would not have properly been granted;
thus, Petitioner failed to establish prejudice under Strickland.
Ex. H at 64.

The 1st DCA affirmed.

Ex. M.

Again, the post conviction court applied the two-pronged
Strickland standard.

Of importance, the 1st DCA affirmed the

decision of the trial court in denying this ground, and this Court
presumes that the 1st DCA adjudicated this claim on its merits, as
there is an absence of any indication or state-law procedural
principles to the contrary.

Since the last adjudication on the

merits is unaccompanied by an explanation, it is Petitioner's
burden to show there was no reasonable basis for the state court to
deny relief.

He has failed to do so.

There is certainly a reasonable basis for the court to deny
relief; therefore, the denial must be given deference by this
Court.

The 1st DCA's decision is not inconsistent with Supreme

Court precedent, including Stickland and its progeny.

Thus, the

state court's adjudication of this claim is not contrary to or an
unreasonable application of Strickland, or based on an unreasonable
determination of the facts. Accordingly, ground eight is due to be
denied.
I.

Ground Nine

- 40 -

In his ninth ground, Petitioner seeks habeas relief based on
a claim of ineffective assistance of counsel for misadvising
Petitioner not to take the stand.

Petition at 37.

Upon review of

the trial record, after the state rested, defense counsel notified
the court that Petitioner intended to become a witness.
219.

The following colloquy took place:
THE COURT: Okay.
come forward, please.
with your counsel.

Mr. Netting, if you'll
Stand before the bench

Mr. Netting, the court has now received
all of the evidence in this case.
I have
noted that your attorney has advised the court
that you wish to become a witness in this
case, you wish to testify.
It is your
absolute constitutional right to remain silent
and not to become a witness in this trial, but
it is also your right, of course, to become a
witness.
If you chose [sic] not to testify, the
jury will be instructed by this court that you
have [an] absolute right to remain silent and
that the jury must not view this as an
admission of guilt or be influenced in any way
by your decision. However, I must advise you
that the decision is yours alone.
Your
attorneys are there to advise you and give you
their advice based on their knowledge and
experience, but the decision rests solely with
you.
Have you had an opportunity to consult
with your attorney and listen to your
attorney's advice about becoming a witness in
this trial?
THE WITNESS: Yes, I have.
THE
COURT:
Having
considered
your
attorney's advice, is it your choice to become
a witness in this trial?
- 41 -

Ex. D at

THE WITNESS: I believe it would be wise.
Ex. D at 219-20 (emphasis added).
The trial court asked the following questions of counsel:
THE COURT: State, are there any felony
convictions or crimes of dishonesty that you
will be attempting to use to impeach Mr.
Netting during his testimony?
MS. RUSSELL: Yes, Your Honor, Mr. Netting
has one prior felony conviction and he has
five prior crimes of dishonesty.
THE COURT: And, Mr. Smith and Ms. Kuhn,
were you aware of those prior convictions.
MS. KUHN: We were.
MR. SMITH: Yes, Your Honor.
THE COURT: And have you discussed that
with Mr. Netting with regard to how it can be
used during cross examination?
MS. KUHN: We have, Your Honor. I would
want to know ahead of time if the State's
intending to ask about the exact dates of each
of those. I want to make sure he doesn't open
any doors by not knowing the exact dates of
every charge.
MR. RUSSELL: Your Honor, I think that
that would depend on what the defendant says
during his cross examination.
THE COURT: The law is clear as to how
felony convictions and crimes of dishonesty
may be asked of a witness.
If there is
something outside of those questions, Have you
been convicted of a felony, if there is
anything outside of that, please proffer it
before you go into those questions on your
cross examination of the defendant.
MR. RUSSELL: Yes, Your Honor.

- 42 -

THE COURT: Any other issues regarding his
prior convictions?
MR. KUHN: No, Your, Honor.
Id. at 220-21.
The trial court then inquired of Petitioner:
THE COURT: Mr. Netting, do you have an
understanding of how your prior felony
convictions and crimes of dishonesty can be
used against you while you are testifying in
this case?
THE WITNESS: I understand it's not good,
yes.
THE COURT: And knowing that, you still
wish to become a witness?
THE WITNESS: Yes, ma'am.
THE COURT: Okay. If you change your mind
and choose not to become a witness between the
time that the jury is brought in, please let
your attorneys know and they will advise me.
THE WITNESS: Okay.
Id. at 221-22.
After a short pause in the proceedings, Ms. Kuhn asked for
another opportunity to confer with Mr. Netting. Id. at 222. After
a brief recess, Ms. Kuhn announced that Petitioner no longer
desired to be a witness.

Id. at 223.

When the court asked about

the reversal of his decision, Petitioner responded that he had a
further conference with his counsel.
more

time

to

speak

with

his

Id.

attorneys

- 43 -

When asked if he needed
about

his

decision,

Petitioner responded: "I'm going to take the recommendation.
recommended I don't, so I accept that."11

They

Id.

With regard to the criminal defendant's right to testify, the
Eleventh Circuit opined:
It is by now abundantly clear that a
criminal defendant has a fundamental right to
testify on his own behalf at trial. Rock v.
Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 97
L.Ed.2d 37 (1987); United States v. Teague,
953 F.2d 1525, 1532 (11th Cir. 1992) (en
banc). That right "cannot be waived either by
the trial court or by defense counsel," and a
"criminal defendant cannot be compelled to
remain silent by defense counsel." Teague, 953
F.2d at 1532.
Nejad v. Att'y Gen., State of Ga., 830 F.3d 1280, 1289–90 (11th
Cir. 2016).
Of course, the record reflects that defense counsel did not
compel Petitioner to remain silent.

In fact, defense counsel

announced to the court that Petitioner intended to take the stand.
The court thoroughly explained that it was Petitioner's right to
decide whether to take the stand.
was his decision alone.

The court advised Petitioner it

The court explained that the attorneys

were there to offer advice, but ultimately it was Petitioner's sole
decision.

Importantly, Petitioner then heard that the state would

conduct cross examination, and Petitioner had a prior felony and

11

Page 224 of the trial transcript may be found in exhibit "E"
attached to the trial court's order denying the Rule 3.850 motion.
Ex. H at 143 (page 224 of the trial transcript). That page is
missing from the trial transcript provided as Exhibit D.
- 44 -

five misdemeanors involving dishonesty.

His attorneys confirmed

that they were aware of these prior convictions. Petitioner stated
that he understood that the impact of this testimony would not be
good, but he still desired to be a witness.

After further

conference with his attorneys, Petitioner changed his mind and told
the court that he decided to accept his counsels' recommendation
and not take the stand.

Again, this was clearly Petitioner's

choice and his decision.
In reviewing this ground, presented as claim eight in the Rule
3.850 motion, the trial court found that it was without merit as
the trial transcript refuted Petitioner's claim. Ex. H at 64. The
court referenced the detailed colloquy between the court and
Petitioner concerning his right to remain silent or to take the
stand.

Id. at 65.

After reviewing the colloquy, the court found

that Petitioner "understood his constitutional right to testify and
voluntarily

and

knowingly

waived

it."

Id.

at

66.

After

considering the testimony presented at the evidentiary hearing, the
court

credited

the

testimony

of

Petitioner's

defense

relating that Petitioner decided to take the stand.

Id.

counsel
Not only

did the trial court deny this ground, the 1st DCA per curiam
affirmed, without a written opinion.
If there is any reasonable basis for the court to deny relief,
the denial must be given deference.

With regard to this claim of

ineffective assistance of counsel, AEDPA deference should be given

- 45 -

to the state court's decision.

The state court's ruling is well-

supported by the record and by controlling case law, Strickland and
its progeny.

Petitioner raised the issue in his post conviction

motion, the trial court denied the motion, and the appellate court
affirmed. This Court concludes that the state court's adjudication
of this claim is not contrary to or an unreasonable application of
Strickland, or based on an unreasonable determination of the facts.
Petitioner is not entitled to habeas relief on ground nine.
J.
In

ground

ten,

Ground Ten

Petitioner

claims

he

has

been

denied

substantial and procedural rights due to the 1st DCA's denial of
his Petition for Belated Appeal. Petition at 39-40. In this state
petition, Petitioner alleged that his post conviction counsel
failed to file a proper designation and had to have supplemental
records sent to the appellate court.

Ex. T at 3.

Additionally,

Petitioner claimed that his post conviction counsel did not have
the complete record to establish sound arguments based on the
record.

Id.

It is abundantly clear Petitioner is not entitled to post
conviction relief based on this claim.

The record shows that

Petitioner did file a document entitled a Petition for Belated
Appeal in the 1st DCA.

Ex. T.

The 1st DCA, after directing

Petitioner to show cause why the petition should not be converted
to a petition alleging ineffective assistance of appellate counsel,

- 46 -

Ex. W, held that the petition should be treated as one alleging a
claim of ineffective assistance of appellate counsel. Ex. Y. Upon
review, there was no error; in the state petition, Petitioner
complained about the actions of his post conviction counsel on
appeal of the denial of the Rule 3.850 motion.

Ex. T at 3.

1st DCA, on August 23, 2013, denied the state petition.

The

Ex. Z.

Petitioner claims the state court erred in construing the
petition as one of ineffective assistance of appellate counsel, and
he urges this Court to find that this error prevented his post
conviction appeal from ever being addressed, and to find that he is
entitled to consideration of his claims. Petition at 39-40. There
are several glaring weaknesses in Petitioner's argument. First, by
this

ground,

Petitioner

alleges

a

defect

in

the

state

post

conviction process; therefore, he does not state a claim for habeas
relief.
The Eleventh Circuit has found: "defects in state collateral
proceedings do not provide a basis for habeas relief."

Carroll v.

Sec'y, DOC, 574 F.3d 1354, 1365 (11th Cir.) (citations omitted),
cert. denied, 558 U.S. 995 (2009).

As such, the claim raised in

ground ten is not a claim of constitutional dimension.
Dep't

of

Corr.,

Fla.,

610

F.3d

1318,

1325-26

Alston v.

(11th

Cir.)

(recognizing that challenges to a collateral proceeding do not
undermine the legality of the conviction itself; therefore, habeas
relief is inappropriate), cert. denied, 562 U.S. 1113 (2010).

- 47 -

Petitioner

has

failed

to

present

a

claim

of

constitutional

dimension; therefore, he is not entitled to habeas relief on ground
ten.
Second, Petitioner received the process to which he was
entitled.

Indeed, his post conviction appeal was addressed in the

state courts.

The record demonstrates that he filed a Rule 3.850

motion. Ex. I. Once it was determined that an evidentiary hearing
should be conducted, he was appointed counsel.

A full-blown

evidentiary proceeding took place over a period of several days.
The trial court denied relief.
appealed.12

Id. at 167; Ex. K.

Ex. H at 50-156.
The 1st DCA affirmed.

Petitioner
Ex. M.

Third and finally, Petitioner has not demonstrated that the
denial of his petition for belated appeal alleging the ineffective
assistance of post conviction counsel was contrary to or an
unreasonable application of federal law. Response at 51. As such,
he is not entitled to relief.
K.

Ground Eleven

In his eleventh and final ground for relief, Petitioner
claims

the

denial

of

proper

consideration

of

his

claims

of

ineffective assistance of trial counsel due to the trial court's
denial of the amended 3.850 motion and/or habeas corpus for
ineffective assistance of post conviction counsel. Petition at 42.
12

The record shows that a supplemental record was received by
the 1st DCA on August 20, 2012, upon request from the 1st DCA.
Response to Order to Show Cause (Doc. 49 at 19-20).
- 48 -

Petitioner complains that his post conviction issues have been
barred by the Florida Courts, contrary to the Due Process and Equal
Protection Clauses.

Id. at 43.

As previously noted, the record shows that Petitioner filed a
Rule 3.850 motion, the motion was addressed and denied, and the 1st
DCA affirmed.

Sometime thereafter, Petitioner filed an Amended

3.850 Motion and/or Habeas Corpus for Ineffective Assistance of
Postconviction Counsel.

Ex. N at 26-54.

The trial denied this

motion, finding it had previously heard and ruled upon a Rule 3.850
motion.

Id. at 55.

Petitioner appealed this decision, id. at 56;

Ex. O. Ex. P, and the 1st DCA affirmed.

Ex. Q.

On rehearing, the

1st DCA issued a written opinion, finding Florida law does not
recognize a right to the effective assistance of post conviction
counsel, finding no binding federal precedent to the contrary, and
affirming the decision below.

Ex. S at 10.

Complaining about these negative rulings, Petitioner alleges
he is entitled to relief because Florida fails to provide "non
futile" vehicles to obtain relief in the state court's multi-tiered
system.

Petition

at

42.

Petitioner's

challenge

to

the

effectiveness of Florida's state court collateral proceedings does
not undermine the legality of the conviction itself; therefore,
Petitioner is not entitled to habeas relief on this ground.
Petitioner merely complains about the availability of effective,

- 49 -

"non futile" post conviction process in Florida.

This is not a

claim of constitutional dimension.
Respondents contend this ground is not cognizable on habeas
corpus review as the purpose of a federal habeas proceeding is
review of the lawfulness of Petitioner's custody to determine
whether that custody is in violation of the Constitution or laws or
treaties of the United States, not to consider a challenge to state
court deficiencies.
501 U.S. 722 (1991).

Response at 52-54.

See Coleman v. Thompson,

The writ of habeas corpus under 28 U.S.C. §

2254 "was not enacted to enforce State-created rights."

Cabberiza

v. Moore, 217 F.3d 1329, 1333 (11th Cir. 2000) (citing Branan v.
Booth, 861 F.2d 1507, 1508 (11th Cir. 1988)), cert. denied, 531
U.S. 1170 (2001).

The Eleventh Circuit allows that only in cases

of federal constitutional error will a federal writ of habeas
corpus be available. See Jones v. Goodwin, 982 F.2d 464, 471 (11th
Cir. 1993); Krasnow v. Navarro, 909 F.2d 451, 452 (11th Cir. 1990).
It has long been held that it is not the province of this
Court to reexamine state-court determinations on issues of state
law.

See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

"This

limitation on federal habeas review is of equal force when a
petition, which actually involves state law issues, is 'couched in
terms of equal protection and due process[,]'" as it was here.
Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (quoting
Willeford v. Estelle, 538 F.2d 1194, 1198 (5th Cir. 1976)).

- 50 -

This

Court is bound by the Florida court's interpretation of its own
laws unless that interpretation breaches a federal constitutional
mandate.

McCoy v. Newsome, 953 F.2d 1252, 1264 (11th Cir. 1992)

(per curiam), cert. denied, 504 U.S. 944 (1992).
At most, Petitioner alleges a defect in the state post
conviction process.

As a result, his claim is not construed to be

related to the cause of his detention.

Consequently, there has

been no breach of a federal constitutional mandate in the instant
case.
In conclusion, the Court finds the claim raised in ground
eleven

amounts

proceedings

to

an

collateral

attack
to

on

the

Petitioner's

state

post

detention.

conviction
Quince

v.

Crosby, 360 F.3d 1259, 1261-62 (11th Cir. 2004), cert. denied, 543
U.S. 960 (2004). Since ground eleven presents an issue that is not
cognizable in this proceeding, this ground cannot provide a basis
for federal habeas corpus relief.

Therefore, the claim raised in

ground eleven is due to be denied.
VI.

MOTION FOR RECONSIDERATION

The final issue before this Court is Petitioner's Motion for
Reconsideration (Motion) (Doc. 54). The Court construes the Motion
to be a motion for reconsideration of the Court's Order (Doc. 53)
striking the Reply and Supplemental Exhibits (Doc. 52).

In its

Order (Doc. 53), the Court allowed Petitioner to file a reply of
not more than fifty-six pages, and advised Petitioner there should

- 51 -

be no further submission of documents as the Appendices have been
accounted for in Respondents' submissions to the Court.

Since the

striking of the Reply and Supplemental Exhibits, Petitioner has
filed a Reply (Doc. 56) in compliance with the Court's Order (Doc.
53).
Petitioner asks that this Court accept his earlier filed reply
and supplemental exhibits and/or provide him with an evidentiary
hearing.

The Court has considered Petitioner's recently filed

Reply (Doc. 56), not the stricken reply and supplemental exhibits
(Doc. 52) for the reasons stated in its Order (Doc. 53).

See also

Orders

with

(Docs.

48

&

51).

Petitioner

was

provided

an

evidentiary hearing in the state trial court and no further
evidentiary proceedings are required in this Court.

Therefore,

Petitioner's Motion is due to be denied.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.

Petitioner's Motion for Reconsideration (Doc. 54) is

DENIED.
2.

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

DISMISSED WITH PREJUDICE.
3.

The Clerk of the Court shall enter judgment accordingly

and close this case.

- 52 -

4.

If Petitioner appeals the denial of his Petition, the

Court denies a certificate of appealability.13
has

determined

that

a

certificate

of

Because this Court

appealability

is

not

warranted, the Clerk shall terminate from the pending motions
report any motion to proceed on appeal as a pauper that may be
filed in this case.

Such termination shall serve as a denial of

the motion.
DONE AND ORDERED at Jacksonville, Florida, this 9th day of
February, 2018.

13

This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
constitutional right."
28 U.S.C. § 2253(c)(2).
To make this
substantial showing, Petitioner "must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Upon due consideration, this Court will deny a
certificate of appealability.
- 53 -

sa 1/31
c:
William L. Netting, Jr.
Counsel of Record

- 54 -