Fleming v. Secretary, Department of Corrections et al
Filing
22
ORDER denying 19 Amended Petition and dismissing this case with prejudice; directions to the Clerk. Signed by Judge Timothy J. Corrigan on 9/5/2017. (JLD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ALVA W. FLEMING,
Petitioner,
v.
Case No. 3:14-cv-1087-J-32MCR
SECRETARY OF THE FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
____________________________
ORDER
I. Status
Petitioner, an inmate of the Florida penal system, initiated this case by filing a pro se
Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1) (Petition) on
September 2, 2014. He is proceeding on an Amended Petition (Doc. 19) (Amended Petition),
filed November 15, 2016.1 He challenges a 2009 state court (Duval County) judgment of
conviction for trafficking in cocaine and possession of more than twenty grams of cannabis.
He is serving a 25-year prison sentence. Respondents contend that the Amended Petition
is untimely and the three grounds raised do not relate back to the timely-filed Petition;
alternatively, Respondents address the substance of the three claims. See Motion to Dismiss
1
Giving Petitioner the benefit of the mailbox rule, the Court finds the Petition and
Amended Petition were filed on the date Petitioner asserts that he handed the documents
to prison authorities for mailing to this Court. See Houston v. Lack, 487 U.S. 266, 276 (1988).
or Alternatively Supplemental Answer (Doc. 20) (Motion/Response).2 Petitioner filed a Reply
(Doc. 21) (Reply). The case is ripe for review.3
II. Timeliness of Amended Petition
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) amended 28
U.S.C. § 2244 by adding the following subsection:
(d)(1) A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant to
the judgment of a State court. The limitation period shall run
from the latest of-(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
2
Respondents attached relevant exhibits to the original response (Doc. 12). The Court
cites to these exhibits as “Ex.”
3
“In a habeas corpus proceeding, the burden is on the petitioner to establish the need
for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318 (11th
Cir. 2016) (citing 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) (citation omitted). “It follows that if the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district court is not required to hold an
evidentiary hearing.” Schriro, 550 U.S. at 474. The pertinent facts of this case are fully
developed in the record before the Court, and “further factual development” is not necessary.
Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003). Thus, an evidentiary hearing will not
be conducted.
2
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered
through the exercise of due diligence.
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.
28 U.S.C. § 2244(d).
Petitioner does not dispute Respondents’ calculations that show the original Petition
was timely filed, but the Amended Petition was not.4 The Court has reviewed the calculations
and agrees with Respondents’ conclusion. Petitioner does not assert any basis for equitable
tolling and upon review of the file, the Court finds equitable tolling is not warranted. Petitioner
does, however, contend that the claims in the Amended Petition relate back to the claims in
the original Petition.
“An amendment to a pleading relates back to the date of the original pleading
when . . . the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out--or attempted to be set out--in the original pleading.” Fed.
R. Civ. P. 15(c)(1)(B). An amendment to a habeas petition may relate back “[s]o long as the
original and amended petitions state claims that are tied to a common core of operative
facts.” Mayle v. Felix, 545 U.S. 644, 664 (2005). A new claim, however, does not meet the
4
Petitioner acknowledged that by the time he sought the Court’s leave to file the
Amended Petition, the one-year period of limitations had expired. See Doc. 14 at 3 (“[T]he
requested amendment will be made well after the statute of limitation[.]”).
3
standard and, thus, “does not relate back . . . when it asserts a new ground for relief
supported by facts that differ in both time and type from those the original pleading set forth.”
Id. at 650. The terms “conduct, transaction, or occurrence” are not synonymous with “trial,
conviction or sentence.” Id. at 664.
In the original Petition, Petitioner alleged that his trial counsel was ineffective for
failing to: (1) depose and investigate material witnesses; (2) depose Detective Gonzales to
confirm his position on the warrantless traffic stop; (3) object to hearsay statements of D.A.
Bishop and obtain the identity of the confidential informant; and (4) suppress or dismiss the
information and call certain named witnesses to corroborate his claim. See Petition at 5-10.
He indicated that each ground was raised in his state court postconviction motion filed
pursuant to Florida Rule of Criminal Procedure 3.850. See id. After reviewing the
Respondents’ initial response, Petitioner concluded that his claims were insufficiently pled,
so he requested permission to file the Amended Petition. See Docs. 14, 15.5 In his Amended
Petition, he raises three grounds: (1) trial counsel was ineffective for failing to investigate and
depose witnesses and present a viable defense; (2) trial counsel was ineffective for failing
to depose and investigate three witnesses that Petitioner advised counsel to call on his
behalf; and (3) the trial court erred by denying his motion for disclosure of the confidential
informant’s identity and to suppress physical evidence. See Amended Petition at 6-21.
5
In granting Petitioner’s request to amend, the Court advised him that it would determine
the timeliness and merits of the claims after reviewing the parties’ filings. See Order (Doc.
18).
4
When determining whether a claim “relates back” to an earlier pleading,
[t]he key consideration is that the amended claim arises from
the same conduct and occurrences upon which the original
claim was based. . . . When the nature of the amended claim
supports specifically the original claim, the facts there alleged
implicate the original claim, even if the original claim contained
insufficient facts to support it. One purpose of an amended
claim is to fill in facts missing from the original claim.
Dean v. United States, 278 F.3d 1218, 1222 (11th Cir. 2002) (per curiam) (emphasis
added).The Court finds that the first two claims in the Amended Petition alleging ineffective
assistance of counsel relate back to the original Petition. Although the claims in the original
Petition were not artfully crafted, the Amended Petition “fill[s] in facts missing from the
original claim[s].” Id. at 1222.
The third claim in the Amended Petition is a closer call. Petitioner now attempts to
raise a claim that the trial court erred by denying his motion for disclosure of the confidential
informant’s identity and to suppress physical evidence–a claim that he raised on direct
appeal. The most similar claims in the original Petition were grounds three and four, where
Petitioner argued his counsel was ineffective for failing to obtain the identity of the
confidential informant and for failing to suppress or dismiss the information and call certain
named witnesses to corroborate his claim–claims he raised in his postconviction proceeding.
There can be no real dispute that a claim regarding trial court error is entirely different than
a claim alleging ineffective assistance of counsel. Nevertheless, at least part of the new
claim regarding the identity of the confidential informant arguably arises from the same
5
common core of operative facts. Given that it is arguable whether this claim relates back to
the original Petition, the Court will address it.6
III. Standard of Review
AEDPA governs a state prisoner’s federal habeas corpus petition. 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)).
Under AEDPA, when a state court has adjudicated the
petitioner’s claim on the merits, a federal court may not grant
habeas relief unless the state court’s decision was “contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States,” 28 U.S.C. § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” id. § 2254(d)(2). A
state court’s factual findings are presumed correct unless
rebutted by clear and convincing evidence.[7] Id. § 2254(e)(1);
Ferrell v. Hall, 640 F.3d 1199, 1223 (11th Cir. 2011).
AEDPA “imposes a highly deferential standard for
evaluating state court rulings” and “demands that state-court
decisions be given the benefit of the doubt.” Renico v. Lett, 559
U.S. 766 (2010) (internal quotation marks omitted). “A state
court’s determination that a claim lacks merit precludes federal
habeas relief so long as fairminded jurists could disagree on
6
In the Motion/Response, Respondents substantively address this claim in the
alternative.
7
“This presumption of correctness applies equally to factual determinations made by
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)).
6
the correctness of the state court’s decision.” Harrington v.
Richter, 562 U.S. 86, 101 (2011) (internal quotation marks
omitted). “It bears repeating that even a strong case for relief
does not mean the state court’s contrary conclusion was
unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75
(2003)). The Supreme Court has repeatedly instructed lower
federal courts that an unreasonable application of law requires
more than mere error or even clear error. See, e.g., Mitchell v.
Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at 75 (“The
gloss of clear error fails to give proper deference to state courts
by conflating error (even clear error) with unreasonableness.”);
Williams v. Taylor, 529 U.S. 362, 410 (2000) (“[A]n
unreasonable application of federal law is different from an
incorrect application of federal law.”).
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013).
“[A] federal court reviewing the judgment of a state court must first identify the last
adjudication on the merits. It does not matter whether that adjudication provided a reasoned
opinion because section 2254(d) ‘refers only to a decision’ and does not ‘requir[e] a
statement of reasons.’” Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235 (11th
Cir. 2016), cert. granted, 137 S. Ct. 1203 (2017), (quoting Richter, 562 U.S. at 98).
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.” Richter, 562 U.S. at 99 (citation omitted).
When the last 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). “‘[A]
habeas court must determine what arguments or theories supported or . . . could have
supported, the state court’s decision; and then it must ask whether it is possible fairminded
7
jurists could disagree that those arguments or theories are inconsistent with the holding in
a prior decision of [the] Court.’” Id. (quoting Richter, 562 U.S. at 102).
When the reasoning of the state trial court was reasonable,
there is necessarily at least one reasonable basis on which the
state supreme court could have denied relief and our inquiry
ends. In this way, federal courts can use previous opinions as
evidence that the relevant state court decision under review is
reasonable. But the relevant state court decision for federal
habeas review remains the last adjudication on the merits, and
federal courts are not limited to assessing the reasoning of the
lower court.
Id. at 1239.
IV. Ineffective Assistance of Counsel Law
“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); 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. 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. 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.[8]
8
See also Marshall v. Sec’y, Fla. Dep’t of Corr., 828 F.3d 1277, 1284 (11th Cir. 2016)
(“‘There is a strong presumption that counsel’s performance falls within the wide range of
professional assistance[;] the defendant bears the burden of proving that counsel’s
8
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.
It is not enough “to show that the errors had some conceivable
effect on the outcome of the proceeding.” Id. at 693. 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.
Richter, 562 U.S. at 104; Marshall, 828 F.3d at 1284 (recognizing that to proceed on a claim
of ineffective assistance of trial counsel, “the petitioner has to show both that his counsel’s
performance was deficient and that that deficient performance was prejudicial—that is, that
there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.’” (quoting Strickland, 466 U.S. at 687, 694)).
Since both prongs of the two-part Strickland “test must be satisfied to show a Sixth
Amendment violation, a court need not address the performance prong if the petitioner
cannot meet the prejudice prong, and vice-versa.” Ward v. Hall, 592 F.3d 1144, 1163 (11th
Cir. 2010) (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)).
“‘The standards created by Strickland and § 2254(d) are both highly deferential, and
when the two apply in tandem, review is doubly so.’” Marshall, 828 F.3d at 1285 (quoting
Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016)).
“The question is not whether a federal court believes the state
court’s determination under the Strickland standard was
incorrect but whether that determination was unreasonable - a
substantially higher threshold.” Knowles v. Mirzayance, 556
U.S. 111, 123 (2009) (quotation marks omitted). If there is “any
representation was unreasonable under prevailing professional norms and that the
challenged action was not sound strategy.’” (quoting Kimmelman v. Morrison, 477 U.S. 365,
381 (1986)).
9
reasonable argument that counsel satisfied Strickland’s
deferential standard,” then a federal court may not disturb a
state-court decision denying the claim. Richter, 562 U.S. at 86.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); see Knowles v. Mirzayance,
556 U.S. 111, 123 (2009).
V. Analysis
A. Ground One
Petitioner alleges that his trial counsel was ineffective for failing to investigate and
depose witnesses and present a viable defense. See Amended Petition at 6-9. He argues
that his counsel should have contacted Enterprise Rental Car (Enterprise) to clarify the
timeline of events leading to Petitioner’s arrest, and if counsel had done so, he would have
discovered that law enforcement used the inventory search as an unlawful investigatory
search. Id. at 6-7. He claims that he raised this ground in his Rule 3.850 motion. Id. at 10.
In reviewing Petitioner’s Rule 3.850 motion, this Court does not find any reference to
Enterprise. See Ex. Y at 1-9. However, in an amended motion filed pursuant to Rule 3.850,
Petitioner argued that his counsel was ineffective for failing to contact Enterprise to clarify
the timeline of events–the same claim he now presents in this Court. See Ex. Y at 26.9
9
The amended Rule 3.850 motion filed by Petitioner appears to relate to a different case,
possibly even a different defendant. The motion states that Petitioner’s counsel, John M.
Merritt and Noel Lawrence, were ineffective, see Ex. Y at 25, 31, but Petitioner was
represented at trial by Sandra Young, Esquire, see Ex. D at 2. Additionally, there was
testimony at the trial that the truck was not registered in Petitioner’s name and that Petitioner
did not own the truck, but not that it was rented from Enterprise. See Ex. D at 97, 116.
Indeed, Petitioner argued in his initial Rule 3.850 motion that the truck was owned by Cathy
Fleming. See Ex. Y at 7.
10
In the order denying Petitioner’s claims under Rule 3.850, the state court recognized
that Petitioner filed an initial motion and an amended motion. Ex. Y at 34. The court stated
that it would consider the claims raised in Petitioner’s amended Rule 3.850 motion only to
the extent such claims related back “to those issues raised in the timely filed Motion.” Id.
(citing Richardson v. State, 890 So. 2d 1197, 1198 (Fla. 5th DCA 2005)).10 The state court
did not address the arguments in the amended motion regarding Enterprise; apparently, the
court found the claim to be untimely. See id. at 34-38. In fact, Petitioner agrees that the state
court found the claim to be untimely. See Doc. 14 at 6 (“Thus, essentially, the postconviction
court found Petitioner’s new claims . . . to be untimely.”). The state court’s decision finding
Petitioner’s claim untimely, though not clearly expressed, rests on an independent and
adequate state procedural ground, and the First District Court of Appeal (DCA) per curiam
affirmed the state trial court’s decision without issuing a written opinion. Ex. Z. Thus, this
claim is procedurally defaulted.
“A state prisoner may overcome the prohibition on reviewing procedurally defaulted
claims if he can show ‘cause’ to excuse his failure to comply with the state procedural rule
and ‘actual prejudice resulting from the alleged constitutional violation.’” Davila v. Davis, 137
S. Ct. 2058, 2064-65 (2017) (citing Wainwright v. Sykes, 433 U.S. 72, 84 (1977); Coleman
v. Thompson, 501 U.S. 722, 750 (1991)). To show cause for a procedural default, “the
petitioner must demonstrate ‘some objective factor external to the defense’ that impeded his
10
A Rule 3.850 motion must be filed no later than two years after the judgment and
sentence become final, unless an exception applies. Fla. R. Crim. P. 3.850(b). In
Richardson, 890 So. 2d at 1198, the Fifth DCA upheld a trial court’s decision summarily
denying a petitioner leave to amend his Rule 3.850 motion, because the petitioner sought
to add new substantive grounds for relief after the two-year limitations period had expired.
11
effort to raise the claim properly in state court.” Ward, 592 F.3d at 1157 (quoting Murray v.
Carrier, 477 U.S. 478, 488 (1986)).11 “[T]o show prejudice, a petitioner must demonstrate
that ‘the errors at trial actually and substantially disadvantaged his defense so that he was
denied fundamental fairness.’” Id. (quoting McCoy v. Newsome, 953 F.2d 1252, 1261 (11th
Cir. 1992) (per curiam)).
Even if a petitioner cannot show cause and prejudice, a court may review a
procedurally defaulted claim if the petitioner can show that a fundamental miscarriage of
justice would otherwise result. See id.
11
Generally, neither negligence nor ineffective assistance on the part of a prisoner’s
postconviction attorney qualifies as cause to excuse a procedural default. See Davila, 137
S. Ct. at 2065; Maples v. Thomas, 565 U.S. 266, 280 (2012). However, in Martinez v. Ryan,
566 U.S. 1, 14 (2012),
[t]he U.S. Supreme Court enunciated a narrow exception to the
general rule that the lack of an attorney or attorney error in
state post-conviction proceedings does not establish cause to
excuse the procedural default of a substantive claim. The
Supreme Court, however, set strict parameters on the
application of this exception. It applies only where (1) state law
requires a prisoner to raise ineffective-trial-counsel claims
during an initial collateral proceeding and precludes those
claims during direct appeal; (2) the prisoner failed to properly
raise ineffective-trial-counsel claims during the initial collateral
proceeding; (3) the prisoner either did not have counsel or his
counsel was ineffective during those initial state collateral
proceedings; and (4) failing to excuse the prisoner’s procedural
default would result in the loss of a “substantial”
ineffective-trial-counsel claim. The Supreme Court later
extended Martinez’s rule to cases where state procedures, as
a practical matter, make it “virtually impossible” to actually raise
ineffective-trial-counsel claims on direct appeal. Trevino, 569
U.S. at - - - , 133 S.Ct. at 1918-21.
Lambrix v. Sec’y, Fla. Dep’t of Corr., 851 F.3d 1158, 1164 (11th Cir. 2017) (some citations
omitted).
12
[I]n an extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in the
absence of a showing of cause for the procedural default. This
exception is exceedingly narrow in scope, however, and
requires proof of actual innocence, not just legal innocence.
Id. (quotations and citations omitted).
Petitioner has not shown both cause excusing the default and actual prejudice
resulting from the bar. Neither has he met the Martinez standard, as he has not shown that
failing to excuse the default would result in the loss of a “substantial” claim. See supra n. 9.
Finally, he has not shown that he is entitled to the fundamental miscarriage of justice
exception. Petitioner is not entitled to federal habeas relief on ground one.
B. Ground Two
Petitioner contends that his trial counsel was ineffective for failing to depose and
investigate three witnesses that Petitioner advised counsel to call on his behalf. See
Amended Petition at 11-13. He argues that these witnesses would have “changed the
outcome of the proceeding by casting light on the timing of the event” and the
inconsistencies in the testimony of the law enforcement officers. Id. at 12. He acknowledges
that he raised this claim in his Rule 3.850 motion in state court. Id. at 14. Respondents argue
that this claim is insufficiently pled, and Petitioner agrees. See Reply at 4 (“Petitioner
concedes that this claim is insufficient and cannot be correct because he has lost the
witnesses names.”). While this could be construed as an abandonment of this claim, in an
abundance of caution, the Court will address it. See generally Clisby v. Jones, 960 F.3d 925,
936 (11th Cir. 1992).
13
To the extent Petitioner is raising the same ground he raised in his Rule 3.850 motion,
the claim is without merit. Petitioner argued in his Rule 3.850 motion that counsel should
have called Cathy Fleming, the owner of the truck that Petitioner was driving, and Derick
Byrd, the individual who possessed the truck prior to Petitioner picking it up. Ex. Y at 7. In
addressing this claim, the state trial court found:
In Ground Four, the Defendant argues that his attorney was
ineffective for failure to call certain named witnesses that would
have corroborated the Defendant’s claim that the illegal drugs
were in the borrowed vehicle without his knowledge when it
came into his possession. . . . Here, the Defendant proffers
corroborating testimony that he was not the owner of the
vehicle and had no knowledge of the presence of drugs in the
vehicle. Both facts were asserted repeatedly by his attorney
during his trial. However, two detectives testified that, during
questioning, the Defendant claimed he was transporting the
drugs to a mechanic to exchange for repairs on his vehicle.
Also, during questioning, the Defendant acknowledged the
vehicle in which he was arrested was “his” truck. Given these
self-incriminating statements, the Defendant has failed to
demonstrate how the omission of the witness[es]’s testimony
prejudiced him to the degree that a different outcome in the
proceedings was reasonably probable. Relief is denied.
Id. at 37 (citations omitted). Petitioner appealed, and the First DCA per curiam affirmed the
trial court’s decision without issuing a written decision. Ex. Z. Therefore, there is a qualifying
state court decision under AEDPA. Upon a thorough review of the record, this Court finds
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. Petitioner is not entitled to relief on the basis of this claim.
14
C. Ground Three
Petitioner argues that the trial court erred in denying his motion for disclosure of the
confidential informant’s identity and to suppress physical evidence. See Amended Petition
at 15-21. The state trial court held hearings on Petitioner’s motions prior to trial. Ex. C at 33077, 381-98, 402-21. After hearing testimony from two police officers who were involved in
Petitioner’s arrest, the parties presented the following arguments regarding the motion to
compel the identity of the confidential informant:
[DEFENSE COUNSEL]: . . . [T]he defense’s perspective
of the facts offered are just these: That but this confidential
informant telling Detective Hughey on the date in question, the
same date of this stop and plan to stop Mr. Fleming, that large
quantities of drugs would be in Mr. Fleming’s truck, the
confidential informant had to know something about it
intimately, be intimately familiar to provide such information on
such short notice with Mr. Fleming.
Detective Hughey wasn’t able to tell me during
deposition, nor was he able to tell me today how that informant
came up with that information, and, of course, my assertion is
that the informant may have had some direct tie to planting
this, especially in light of the fact that the informant gets paid.
He gets paid money, and Detective - - he knows that Detective
Hughey would use his information and the amount of drugs to
determine how much money he would get paid. And the
defense’s perspective would be that, you know, I don’t know
whether this informant was out of money and needed money
and set Mr. Fleming up for that matter.
I believe that the case law speaks specifically to a fair
determination and having information that may be used in the
fair determination of the cause at issue.
THE COURT: Well, let me ask you this. Even if I
authorize you to put thumbscrews on him, what are the
chances that the confidential informant is going to say, I
planted the dope because I needed $100?
15
[DEFENSE COUNSEL]: He may not say that, sir, but I
would hope that my ability to get him some - - to say something
that may be useful in the case would come out of a deposition
or questioning of this particular informant. I don’t necessarily
state that I could get him to say that, but it may be that I could
get him to state something.
THE COURT: Well, it doesn’t bear on the issue before
me but, you know, having practiced law for quite a[]while I think
that empty chair is probably more valuable to you, but that’s
just my opinion.
[DEFENSE COUNSEL]: It may be, sir, but just in light of
the fact that this is a very serious case with very serious
consequences of which this confidential informant obviously by
Detective Hughey’s testimony has worked for him four to five
years, provided information, got paid for that information, thus
may be in the business, as far as I’m concerned, of setting
individuals up to get paid, just to get paid. That would be my
assertion, and that I believe is enough.
THE COURT: Well, you raise an interesting point that I
hadn’t considered before, but that being, you know, it’s a
possibility that - - what had occurred to me is the possibility that
the confidential informant is a supplier or customer. That he
may be in the business of doing this with another, and
commendably a creative idea, which I’m not saying ain’t true.
I don’t know.
....
[THE STATE]: . . . Were this a crime of sale I would
certainly agree that that defense is available to the defendant
and then that argument would be applicable, but this is a crime
of possession trafficking and all of the elements of the crime
were committed in front of the law enforcement officers that the
State intends to call at trial.
We don’t intend to call the informant. The confidential
informant was not a witness of the crime charged, which is the
possession, that the defendant, per the officers’ testimony,
admitted to knowledge of the drugs, so the fact that it was a
setup - 16
THE COURT: Right, the crime, the crime is possession
of X amount of narcotics while sitting on the side of I-95 on a
certain date at a certain time of day.
[THE STATE]: Yes, Your Honor, and that would be my
argument, is that even if there was a setup, as defense argued,
and it’s a possibility I would concede, that the defendant had
knowledge of that. So therefore the crime was still committed
and the CI was not a witness to this crime that we’ve charged.
....
[DEFENSE COUNSEL]: Well, you know, just as sale
has an affirmative defense of entrapment, I’m just not sure
where I can go with it but, and thus that’s why I say “may bring
up an affirmative defense,” because even though the
allegations at this - - as they are allegations at this point is that
Mr. Fleming was in possession of drugs, if this individual, and
I assert that he was instrumentally involved with the State or an
instrumental arm of the State and that he did set Mr. Fleming
up, then there might be an affirmative defense that comes out
of that, and I think that may be huge.
[THE COURT]: All right. Well, let me tell you this, I do
not find that the evidence that I have received so far
establishes a predicate for disclosure of the confidential
informant on that basis. . . . [W]hat I find today though is that
the confidential informant was not a witness to the charged
offense. I don’t find that the identity is relevant or helpful to the
accused or that it is essential to a fair determination of the
cause at issue.
I further find, based on Detective Hughey’s testimony
that, even absent a traffic stop, based on his recognition of and
testimony regarding the previous reliability of the confidential
informant that Detective Hughey had probable cause to stop
and search the vehicle, regardless of any traffic offense that he
might have observed. For those reasons the motion is denied.
Ex. C at 363-69. The state court later heard additional testimony from another police officer
involved in Petitioner’s arrest and argument from counsel on the motion to suppress physical
17
evidence and statements. See id. at 381-98, 402-21. The state court denied the motion to
suppress. See id. at 420-21.
After he was convicted, Petitioner, through counsel, filed a direct appeal in which he
argued that the trial court erred in denying the motion for disclosure of the confidential
informant’s identity and to suppress physical evidence. Ex. H. The State filed an answer brief
on the merits. Ex. I. The First DCA per curiam affirmed Petitioner’s judgment of conviction
without issuing a written opinion. Ex. J.
Respondents argue that the First DCA’s decision is entitled to deference under
AEDPA, and this Court agrees. Upon a thorough review of the record, the Court finds 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, Petitioner is not entitled to relief on the basis of this claim.
Accordingly, it is
ORDERED:
1.
The Amended Petition (Doc. 19) is DENIED and this case is DISMISSED with
prejudice.
2.
The Clerk shall enter judgment dismissing this case with prejudice and close
the file.
18
3.
If Petitioner appeals this Order, the Court denies a certificate of appealability.12
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.
DONE AND ORDERED at Jacksonville, Florida, this 5th day of September, 2017.
JAX-3 8/31
c:
Alva W. Fleming, #278259
Counsel of Record
12
This Court should issue a certificate of appealability only if 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, 336 (2003) (quoting Slack, 529 U.S. at 484). “Where a
district court has rejected the constitutional claims on the merits, . . . [t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” 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. After consideration of the record as a whole, the
Court will deny a certificate of appealability.
19
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