Flowers v. Secretary, Department of Corrections et al
Filing
16
ORDER denying motion to dismiss petition as untimely; denying the Petition with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 5/19/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MICHAEL FLOWERS,
Petitioner,
v.
Case No. 3:14-cv-1515-J-39PDB
SECRETARY, DOC, et al.,
Respondents.
ORDER
I.
STATUS
Petitioner challenges a 2010 (Duval County) conviction for
armed robbery.
Petition Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus by a Person in State Custody (Petition) (Doc. 1) at 1. He
filed the Petition on December 16, 2014, pursuant to the mailbox
rule.1
He raises three grounds in the Petition.
Respondents filed
a Motion to Dismiss Petition for Writ of Habeas Corpus as Untimely
and, Alternatively, Answer to Petition (Response) (Doc. 11), and
1
The Court gives pro se inmate petitioners the benefit of the
mailbox rule. Houston v. Lack, 487 U.S. 266, 276 (1988). See 28
U.S.C. § 2244(d). In this instance, the Petition was provided to
the prison authorities for mailing and stamped on December 16,
2014. Petition at 1. See Rule 3(d), Rules Governing Section 2254
Cases in the United States District Courts. The Court will also
give Petitioner the benefit of the mailbox rule with respect to his
inmate state court filings when calculating the one-year limitation
period under 28 U.S.C. § 2244(d).
they calculate that the Petition is untimely filed.
In support of
the Response, they submitted an Appendix (Doc. 11).2
filed a Reply to the State's Response (Doc. 14).
Petitioner
See Order (Doc.
5).
Pursuant to the Antiterrorism and Effective Death Penalty Act
(AEDPA), there is a one-year period of limitation:
(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 right has been newly
recognized by the Supreme Court and
made retroactively applicable to
cases on collateral review; or
2
The Court hereinafter refers to the exhibits contained in
the Appendix as "Ex." Where provided, the page numbers referenced
in this opinion are the Bates stamp numbers at the bottom of each
page of the Appendix. 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.
- 2 -
(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).
To adequately address Respondents' contention that Petitioner
has failed to comply with the limitation period, the Court will
provide a brief procedural history.
Petitioner was charged by
amended information with armed robbery.
returned a verdict of guilty as charged.
Ex. A at 19.
A jury
Id. at 50; Ex. B at 481.
On March 3, 2010, the trial court sentenced Petitioner to 25
years in prison.
Ex. A at 112-13, 130-56.
Petitioner appealed.
Id. at 124; Ex. C; Ex. D; Ex. E; Ex. F; Ex. G.
On March 21, 2011,
the First District Court of Appeal (1st DCA) affirmed per curiam.
Ex. H.
The mandate issued on May 27, 2011.
Ex. K.
The conviction
became final on June 19, 2011 (90 days after March 21, 2011)
("According
to
rules
of
the
Supreme
Court,
a
petition
for
certiorari must be filed within 90 days of the appellate court's
entry of judgment on the appeal or, if a motion for rehearing is
timely filed, within 90 days of the appellate court's denial of
that motion.").
- 3 -
The limitation period began to run on June 20, 2011, and ran
for a period of 269 days, until Petitioner, on March 15, 2012,
filed a Petition Alleging Ineffective Assistance of Appellate
Counsel in the 1st DCA.3
Ex. L.
This post conviction motion
tolled the limitation period until the April 13, 2012 denial of the
petition alleging ineffective assistance of appellate counsel. Ex.
M.
The limitation period began to run on April 14, 2012, and ran
for a period of 95 days, until Petitioner filed a Rule 3.850 motion
on July 18, 2012.
Ex. N.
This motion tolled the limitation
3
Respondents base their calculations on the alleged filing
date, March 21, 2012, rather than the date that the document was
certified as being provided to the prison official for mailing.
Initially, the Court notes that the filing date with the clerk of
the 1st DCA does not appear on the document. Ex. L at 1. The
Attorney General's Office received the document on March 20, 2012.
Id.
The document is stamped "Received" March 15, 2012.
Id.
Petitioner, in his certificate of service, certifies that he handed
the document to a prison official for mailing on March 15, 2012.
Id. at 18. "For purposes of calculating time, [the Court applies]
the mailbox rule and refer[s] to the dates [Petitioner] signed his
motions or petitions and submitted them to prison authorities."
Cramer v. Sec'y, Dep't of Corr., 461 F.3d 1380, 1382 n.1 (11th Cir.
2006) (per curiam) (citation omitted).
Despite Petitioner's
failure to comply with the procedure of obtaining a date stamp with
the date and the officer's initials, see Rule 33.210.102(8)(g),
Petitioner will be given the benefit of the mailbox rule because
Respondents have not rebutted the presumption that the document was
filed on the date specified in the certificate. Cole v. McNeil,
No. 3:09cv216/WS/MD, 2010 WL 1757945, at *2 n.5 (N.D. Fla. April 1,
2010) (Not Reported in F.Supp.2d), report and recommendation
adopted by 2010 WL 2079691 (N.D. Fla. May 25, 2010). See Sargent
v. McNeil, No. 4:08cv175-SPM/WCS, 2009 WL 903279, at *2 (March 31,
2009) (Not Reported in F.Supp.2d) (finding failure to rebut the
presumption that the prisoner's document was filed on the date
specified in the certificate of service and deeming the petition
timely filed). Thus, the Court rejects Respondents' calculations
to the extent they fail to give Petitioner the benefit of the
mailbox rule.
- 4 -
period, and it remained tolled until the mandate issued on December
30, 2014.
Ex. V.
Petitioner timely filed his federal petition on
December 16, 2014, prior to the issuance of the mandate.
Based on all of the foregoing, the Petition, filed on December
16, 2014, pursuant to the mailbox rule, is timely.
Therefore,
Respondents' Motion to Dismiss Petition for Writ of Habeas Corpus
as Untimely is due to be denied.
II.
STANDARD OF REVIEW
The 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, 2017 WL 1199485 (U.S. Apr. 3, 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.'"
(quoting Greene v. Fisher, 132 S.Ct. 38, 43 (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
- 5 -
Id.
and convincing evidence.[4] Id. § 2254(e)(1);
Ferrell v. Hall, 640 F.3d 1199, 1223 (11th
Cir. 2011).
..."It bears repeating that even a strong case
for relief does not mean the state court's
contrary
conclusion
was
unreasonable."
[Harrington v. Richter, 562 U.S. 86, 101
(2011)] (citing Lockyer v. Andrade, 538 U.S.
63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144
(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,
124 S.Ct. 7, 157 L.Ed.2d 263 (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, 120 S.Ct. 1495, 146 L.Ed.2d 389
(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),
cert. denied, 135 S.Ct. 67 (2014).
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).5
Regardless of whether the last state court provided
4
"This 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, 133 S.Ct. 1625 (2013).
5
As recently suggested by the Eleventh Circuit in Butts v.
GDCP Warden, 850 F.3d 1201, 1204 (11th Cir. 2017), 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
- 6 -
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); see also Johnson v.
Williams, 133 S.Ct. 1088, 1096 (2013).
"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.
Indeed, in order to obtain habeas relief,
"a state prisoner must 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
banc), cert. granted, 137 S.Ct. 1203 (2017), this Court, will
employ "the more state-trial-court focused approach in applying §
2254(d)[,]" where applicable.
- 7 -
beyond any possibility for fairminded disagreement."
Richter, 562
U.S. at 103.
III.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
Ground One
Petitioner, in his first ground, asserts that the trial court
erred
by
excluding
evidence
relevant
to
the
alibi
defense,
resulting in the denial of Petitioner's constitutional rights under
the
Fifth
and
Constitution.
Fourteenth
Amendments
Petition at 5.
to
the
United
States
Respondents first claim that
Petitioner did not adequately exhaust this ground in the state
court system. Response at 12, 19-20. On direct appeal, Petitioner
presented
the
following
issue:
"[t]he
trial
court
committed
reversible error in excluding the invitation when the invitation
was
properly
defense
and
sanctions."
authenticated
the
court
and
failed
relevant
to
to
appellant's
consider
Ex. C at i (capitalization omitted).
any
alibi
alternative
Under the Table
of Authorities in his brief, Petitioner references the Fifth and
Fourteenth Amendments to the United States Constitution.
iii.
In the brief, Petitioner states the following:
The trial court's ruling denied appellant his
due process right under the Fifth and
Fourteenth Amendments of the United States
Constitution and Article I Section 9 of the
Florida Constitution to defend against the
State's evidence. See, generally, Chambers v.
Mississippi, 410 U.S. 284 (1973). Appellant
is, therefore, entitled to a new trial.
Ex. C at 27.
- 8 -
Id. at
Respondents urge this Court to find that this ground is
procedurally defaulted.
In addressing the question of exhaustion,
this Court must ask whether Petitioner's claim was properly raised
in the state court proceedings:
Before seeking § 2254 habeas relief in
federal court, a petitioner must exhaust all
state court remedies available for challenging
his conviction. See 28 U.S.C. § 2254(b), (c).
For a federal claim to be exhausted, the
petitioner must have "fairly presented [it] to
the state courts." McNair v. Campbell, 416
F.3d 1291, 1302 (11th Cir. 2005). The Supreme
Court has suggested that a litigant could do
so by including in his claim before the state
appellate court "the federal source of law on
which he relies or a case deciding such a
claim on federal grounds, or by simply
labeling the claim 'federal.'" Baldwin v.
Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158
L.Ed.2d 64 (2004). The Court's guidance in
Baldwin "must be applied with common sense and
in light of the purpose underlying the
exhaustion requirement"—namely, giving the
state courts "a meaningful opportunity" to
address the federal claim. McNair, 416 F.3d at
1302. Thus, a petitioner could not satisfy the
exhaustion requirement merely by presenting
the state court with "all the facts necessary
to support the claim," or by making a
"somewhat similar state-law claim." Kelley,
377 F.3d at 1343–44. Rather, he must make his
claims in a manner that provides the state
courts
with
"the
opportunity
to
apply
controlling legal principles to the facts
bearing upon (his) [federal] constitutional
claim." Id. at 1344 (quotation omitted).
Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351-52 (11th Cir.
2012), cert. denied, 133 S.Ct. 875 (2013).
Upon
due
consideration,
Petitioner
fairly
presented
the
constitutional issue presented in ground one to the state court.
- 9 -
He provided the federal source of law.
He referenced the United
States Constitution in the Table of Authorities.
In the body of
the appeal brief, he provided the state court with a meaningful
opportunity to address his constitutional claim.
The Court finds
that Petitioner adequately exhausted the constitutional due process
claim raised in ground one.
Alternatively, Respondents address the merits of ground one.
Response at 21-34. Petitioner claims that the trial court's ruling
prevented him from defending against the state's evidence. In this
regard, the question arises as to whether Petitioner was deprived
of a fair trial:
The right of an accused in a criminal
trial to due process is, in essence, the right
to a fair opportunity to defend against the
State's accusations. The rights to confront
and cross-examine witnesses and to call
witnesses in one's own behalf have long been
recognized as essential to due process. Mr.
Justice Black, writing for the Court in In re
Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507,
92 L.Ed. 682 (1948), identified these rights
as among the minimum essentials of a fair
trial:
'A person's right to reasonable
notice of a charge against him, and
an opportunity to be heard in his
defense—a right to his day in
court—are basic in our system of
jurisprudence; and these rights
include, as a minimum, a right to
examine the witnesses against him,
to offer testimony, and to be
represented by counsel.'
Chambers v. Mississippi, 410 U.S. 284, 294 (1973).
- 10 -
Of initial significance to this Court's review, "federal
courts will not generally review state trial courts' evidentiary
determinations."
Taylor v. Sec'y, Fla. Dep't of Corr., 760 F.3d
1284, 1295 (11th Cir. 2014) (citations omitted), cert. denied, 135
S.Ct. 2323 (2015).
Since it is not the province of this Court to
reexamine such evidentiary determinations, habeas relief is invoked
only if state court error denied Petitioner fundamental fairness,
that is "the error 'so infused the trial with unfairness as to deny
due process of law.'" Id. (quoting Lisenba v. California, 314 U.S.
219, 228 (1941)).
The record shows that Petitioner's aunt, Tunessia Bell King
testified at the trial.
Ex. B at 355-72.
She testified that
during the time of the robbery, Petitioner attended a baby shower
and slept on a couch.
Id. at 356-57.
Ms. Bell King testified that
she overheard the baby's mother say that February 22, 2009 was the
date of the baby shower.
Id. at 358.
Ms. Bell King explained that
she received an invitation, but she did not keep it.
Id. at 359.
After Ms. Bell King's testimony, defense counsel, Amanda Kuhn,
stated that she had an invitation in her possession.
Id. at 364.
She said that for strategic reasons, she had not planned to use it,
nor had she disclosed it to the state.
evidence.
Id. at 365.
Id.
She proffered the
Ms. Bell King said it was similar to her
invitation, but it was not the one she had received.
66.
Id. at 365-
On voir dire, Ms. Bell King said she did not bring the
- 11 -
invitation to court and she did not know where it came from.
Id.
at 366-67.
Ms. Kuhn explained that she had obtained the invitation from
the defendant's mother, who did not attend the baby shower. Id. at
367.
The state objected, claiming a Richardson violation.
368.
The court inquired as to whether defense counsel had any way
to authenticate the invitation.
Id. at 369.
Id. at
Ms. Kuhn suggested
that Ms. Bell King might be able to, but the court promptly
rejected that suggestion based on the fact that Ms. Bell King
already said that she did not know where the invitation came from
and she did not bring it to court.
Id.
Alternatively, Ms. Kuhn suggested that the defendant's mother
might be able to authenticate the invitation because she took the
invitation out of the baby's mother's baby book.
Id. at 372.
The
court promptly rejected this suggestion because the defendant's
mother sat through the entire trial.
defendant's
mother
Foster's baby book.
had
retrieved
the
Id. at 372-73.
invitation
Also, the
from
Rashida
Id. at 373.
The court said that Rashida Foster, who was under subpoena and
listed as a witness, could possibly authenticate the invitation if
counsel wanted to call her.
Id.
The court stated that it would
not allow the defendant's mother, who did not attend the shower,
who sat through the entire trial, and who had never been listed as
a witness, to be called for that purpose.
Id. at 374.
The court
left it to defense counsel to decide whether or not to call Ms.
- 12 -
Foster.
Id.
Petitioner took the stand and testified that he
attended the shower and slept on the couch.
Id. at 378.
Ultimately, Ms. Kuhn did not call Ms. Foster. Id. at 398-99.
The court asked whether the defense was going to call Ms. Foster
as, arguably through her, it would not be hearsay evidence. Id. at
399.
The court asked whether Petitioner had discussed the matter
with counsel, and Petitioner responded affirmatively. Id. He told
the court that he was in agreement with his attorney that he did
not want to call Ms. Foster.
Id.
Respondents argue that Petitioner has not established a due
process violation, or that the state court's ruling was contrary to
or an unreasonable application of Chambers, or that the state
court's adjudication resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented.
Response at 29-30.
Of import, the trial court based
its decision on the fact that Petitioner had not called the
appropriate witness to authenticate the invitation, and the trial
court gave Petitioner the opportunity to call Ms. Foster, if
Petitioner so desired.
Petitioner and his counsel conferred and
decided not to call Ms. Foster.
Thus, the defense failed to
present "[p]rima facie evidence . . . to prove that the evidence
[was] authentic."
State v. Love, 691 So.2d 620, 621 (Fla. 5th DCA
1997) (citation omitted).
Based on the above, the trial court did not err in excluding
the evidence of the baby shower invitation.
- 13 -
Even if the court did
err, the ruling did not fatally infect the entire trial so as to
justify habeas relief.
Petitioner had a fair opportunity to
present other critical evidence to support his alibi defense.
took the stand and testified that he attended the shower.
He
He also
presented the testimony of his aunt who corroborated his testimony
that he attended the shower and slept on the couch.
The exclusion
of the evidence of the baby shower invitation did not render
Petitioner's trial fundamentally unfair.
Thus, the 1st DCA's
resolution of this claim was not contrary to, or an unreasonable
application of, clearly established federal law.
B.
Ground Two
In his second ground, Petitioner claims his appellate counsel
was ineffective for failing to raise the issue challenging the
sentencing
judge's
consideration
of,
and
impermissible factors when imposing the sentence.
reliance
upon
Petition at 10.
Petitioner raised this claim in his Petition Alleging Ineffective
Assistance of Appellate Counsel.
Petitioner
exhausted
this
Ex. L.
ground
in
Respondents concede that
the
state
court
system.
Response at 12, 36. Petitioner argued that he should have received
a sentence of less than 13 years, as he was not as culpable as his
co-defendant Timothy Cooper, who actually had a gun and pistol
whipped the victim.
Ex. L at 3.
Petitioner described his role as
minor because he was the getaway driver.
Id. at 4.
The trial court sentenced Petitioner to 25 years in prison,
providing this explanation:
- 14 -
Mr. Flowers, here's what I'm sentencing you
for.
The jury found you guilty of armed
robbery. And in this armed robbery you, being
as culpable as the others, drove a car to a
business where a completely innocent person
who was working that night goes out back of
his business to take a break. And then two of
your cohorts jump out of that car and not only
take what he had on him but hit him.
He
didn't resist. I mean, there was no reason
for that. He was hit causing him injury to
his face.
And then you, sir, drove the car. And at
that point you're not –- the victim of the
robbery isn't at risk, but when you're driving
that car fleeing from the police you put
yourself, the people in the car, the police,
anybody else on the road you put at risk then
and create a danger.
. . . It is clear to me, Mr. Flowers that you
will not abide by the law and are willing to
harm innocent people and put our community at
risk.[6]
Based on the jury finding you guilty of
armed robbery, I will adjudicate you to be
guilty of that armed robbery and sentence you
to 25 years in the Florida State Prison[.]
Ex. A at 154-55.
The
1st
DCA
denied
the
petition
assistance of appellate counsel.
Ex. M.
alleging
ineffective
Thus, there is a
qualifying state court opinion for AEDPA purposes.
Based on the
1st DCA's denial of the claim on its merits, this Court must
"review it using the deferential standard set out in § 2254(d)(1)."
6
The trial court referenced Petitioner's juvenile record, the
repeated opportunities given to him "to get straight," and
Petitioner's failure to abide by the law. Ex. A at 155.
- 15 -
Rambaran v. Sec'y, Dep't of Corr., 821 F.3d 1325, 1330 (11th Cir.),
cert. denied sub nom. Rambaran v. Jones, 137 S.Ct. 505 (2016).
When addressing a claim of ineffective assistance of appellate
counsel, the two-part Strickland standard is applicable:
To prevail on a claim of ineffective
assistance of appellate counsel, a habeas
petitioner must establish that his counsel's
performance was deficient and that the
deficient performance prejudiced his defense.
See Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
(1984); Brooks v. Comm'r, Ala. Dep't of Corr.,
719 F.3d 1292, 1300 (11th Cir. 2013) ("Claims
of ineffective assistance of appellate counsel
are governed by the same standards applied to
trial counsel under Strickland.") (quotation
marks
omitted).
Under
the
deficient
performance prong, the petitioner "must show
that counsel's representation fell below an
objective
standard
of
reasonableness."
Strickland, 466 U.S. at 688, 104 S.Ct. at
2064. "The standards created by Strickland and
§ 2254(d) are both highly deferential, and
when the two apply in tandem, review is doubly
so." Harrington, 562 U.S. at 105, 131 S.Ct. at
788 (quotation marks and citations omitted);
see also Gissendaner v. Seaboldt, 735 F.3d
1311, 1323 (11th Cir.2013) ("This double
deference is doubly difficult for a petitioner
to overcome, and it will be a rare case in
which an ineffective assistance of counsel
claim that was denied on the merits in state
court is found to merit relief in a federal
habeas proceeding.") (quotation marks and
alteration omitted). "If this standard is
difficult to meet, that is because it was
meant to be." Harrington, 562 U.S. at 102, 131
S.Ct. at 786.
Rambaran v. Sec., Dept. of Corrections, 821 F.3d at 1331.
Petitioner was convicted of armed robbery, while his codefendant, Mr. Cooper, was convicted of unarmed robbery.
- 16 -
See Ex.
A at 147-53.
Not only did the trial court reference the finding of
the jury that Petitioner was guilty of armed robbery,7 it also
referenced other factors to support its decision to sentence
Petitioner to twenty-five years, including relying on Petitioner's
past record with numerous un-seized opportunities to change his
life; his being the driver of the car that went to a business where
his
co-horts
Petitioner's
robbed
overall
and
injured
inability
to
an
abide
innocent
by
the
worker;
and
law
his
and
willingness to harm innocent people and place others at risk.
Upon review of the entire record, appellate counsel did not
perform deficiently. Appellate counsel raised the issue concerning
the exclusion of the evidence of the baby shower invitation.
C; Ex. D; Ex. E; Ex. F.
After the issue was fully briefed, the 1st
DCA scheduled oral argument.
curiam affirmed.
Ex.
Ex. G.
In the end, the 1st DCA per
Ex. H.
Upon review, there is a reasonable basis for the state court
to deny relief on the claim of ineffective assistance of appellate
counsel; therefore, the denial must be given deference. Ex. M. On
this record, the Court finds that the 1st DCA could have reasonably
determined that appellate counsel was not ineffective for not
raising this particular claim on direct appeal.
"Claims of
ineffective assistance of appellate counsel are governed by the
same
standards
7
applied
to
trial
counsel
under
Strickland."
Petitioner's conviction for armed robbery, rather than
simple robbery, is a distinction that certainly makes a difference.
- 17 -
Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009) (per
curiam) (citing Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir.
1991).
The Eleventh Circuit has explained that "[i]n assessing an
appellate attorney's performance, we are mindful that 'the Sixth
Amendment does not require appellate advocates to raise every
non-frivolous issue.' [...]
Rather, an effective attorney will
weed out weaker arguments, even though they may have merit."
Id.
(citing Heath, 941 F.2d at 1130-31).
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 two is due to be
denied.
C.
Ground Three
In his third ground, Petitioner raises a claim of ineffective
assistance of counsel for failure to object when the sentencing
court
impermissibly
unsubstantiated
sentence.
relied
allegations
Petition at 15.
upon
of
uncharged
misconduct
when
conduct
and
imposing
its
In order to prevail on this Sixth
Amendment claim, Petitioner must satisfy the two-pronged 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
- 18 -
counsel's unprofessional errors, the result of the proceeding would
have been different).
Petitioner exhausted this ground by raising it in his Rule
3.850 motion, Ex. N, and his Third Amended Motion.
Ex. P.
The
trial court denied relief, Ex. Q, and the First District Court of
Appeal per curiam affirmed.
Ex. S.
ground is properly exhausted.
Respondents concede that this
Response at 12, 53.
Upon review, the circuit court set forth the applicable twopronged Strickland standard as a preface to addressing the claims
of ineffective assistance of counsel.
Ex. Q at 46.
Petitioner
contends that he received a greater sentence than his more culpable
co-defendant
because
the
circuit
court
unlawfully
relied
on
uncharged offenses, including battery, aggravated battery, or
fleeing
and
eluding
a
law
enforcement
officer.
Id.
at
50.
Petitioner believes that he and his co-defendant should have
received comparable sentences.
In addressing the claim of ineffective assistance of counsel,
the circuit court recognized that,
When imposing a sentence, a sentencing
court cannot rely upon "unsubstantiated
allegations of misconduct or speculation that
the
Defendant
probably
committed
other
crimes." Craun v. State, 124 So.3d 1027, 1029
(Fla. 2d DCA 2013) (citation omitted).
"An
ineffective
assistance
claim
based
on
counsel's failure to object to a sentencing
court's consideration of improper factors is
cognizable in a motion for postconviction
relief."
Id. (citation omitted).
However,
the record substantiates that the Defendant
did provide critical assistance to help his
- 19 -
co-defendants commit a violent crime with a
firearm and that he fled law enforcement
officers in a reckless and dangerous manner.
The State was not required to charge the
Defendant with battery, aggravated battery, or
fleeing and eluding a law enforcement officer,
or prove each element of those crimes, before
the sentencing judge could take into account
the facts and circumstances surrounding the
Defendant's actions in providing assistance to
the Armed Robbery. As such, defense counsel
was not ineffective for failing to object to
the basis for the sentence because they were
not improper.
Ex. Q at 50-51.
The
circuit
court
rejected
assistance of trial counsel.
this
claim
of
ineffective
The First District Court of Appeal
(the 1st DCA) affirmed.
Thus, there is a qualifying state court
decision under AEDPA.
This 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.
Also of note, the last adjudication on the merits is unaccompanied
by an explanation.
Thus, it is Petitioner's burden to show there
was no reasonable basis for the state court to deny relief.
He has
not accomplished that task.
Indeed, if there is any reasonable basis for the court to deny
relief, the denial must be given deference.
Here, deference under
AEDPA should be given to the 1st DCA's adjudication.
is
not
inconsistent
with
Stickland and its progeny.
claim
is
not
contrary
to
Supreme
Court
Its decision
precedent,
including
The state court's adjudication of this
or
an
- 20 -
unreasonable
application
of
Strickland, or based on an unreasonable determination of the facts.
Ground three is due to be denied.
The circuit court determined that the basis for the sentence
was not improper, and therefore, counsel could not be ineffective
for failing to object to the court's reliance on the fact that the
victim had been battered and injured and the Defendant had placed
an entire community at risk by fleeing and eluding law enforcement
officers.
Ex. Q at 50-51.
In this instance, the circuit court
opined that improper factors were not taken into account at
sentencing as the court did not rely on unsubstantiated allegations
of misconduct or mere speculation, but instead relied upon a record
showing Petitioner's critical assistance with the crime resulting
in injury to the victim and risk to the community.
Id.
Indeed,
[i]f any one participant in a robbery carried
a firearm during the commission of the crime,
all of the participants are guilty as
principals under section 777.011, Florida
Statutes (1993). See § 812.13(2)(a)(1993);
Hicks v. State, 583 So.2d 1106 (Fla. 2d DCA
1991); Hough v. State, 448 So.2d 628 (Fla. 5th
DCA 1984). Second, it is sufficient for the
jury to find that appellant aided and abetted
the codefendant to find him also guilty of any
crime
committed
by
the
codefendant
in
pursuance of the common scheme. Davis v.
State, 275 So.2d 575 (Fla. 1st DCA 1973). To
be found guilty as a principal it is not
necessary for the aider and abettor to know of
every detail of the crime so long as there
exists evidence of the aider's intent to
participate.
Jones v. State, 648 So.2d 1210, 1211 (Fla. 4th Dist. App. 1995)
(per curiam).
- 21 -
Although Petitioner did not pistol-whip the victim, Petitioner
participated in the crime as the driver, and the jury found him
guilty of armed robbery with a firearm as a principal, not just
robbery.8
The victim testified that two robbers exited the vehicle
and they had guns.
Ex. B at 250-51.
The victim also testified
that after he was robbed, the driver of the car, the third
participant, sped away after the two robbers returned to the car.
Id. at 254.
The victim attested that he did not get a good look at
the driver due to the dark tinted windows of the vehicle.
Id.
Officer Joseph Overall pursued the vehicle at a high rate of speed
and the driver began running stop signs.
Id. at 270-72.
Officer
Overall tried a pit maneuver, but it was unsuccessful. Id. at 272.
Here, unlike Craun v. State, 124 So.3d 1027, 1030-31 (Fla. 2nd
DCA 2013), there was more than unsubstantiated allegations of
misconduct or mere speculation about events. The state's witnesses
presented detailed testimony about the crime, the driver's evasive
maneuvers, and the extended police chase.
Even if counsel had
objected, based on the record, the objection would have been
overruled.
Here, defense counsel was not ineffective for failure to
object.
Under these circumstances, defense counsel's performance
cannot be deemed deficient.
8
On this record, Petitioner has failed
Again, a jury found Petitioner's co-defendant, Timothy
Cooper, guilty of a lesser offense, and the circuit court sentenced
Mr. Cooper to thirteen years in prison. Ex. A at 145.
- 22 -
to carry his burden of showing that his counsel's representation
fell outside that range of reasonably professional assistance for
failing to object to these statements.
Even assuming deficient
performance by his counsel, Petitioner has not shown prejudice.
Petitioner has not shown that a reasonable probability exists that
the outcome of the proceeding would have been different if his
lawyer had objected. Petitioner's ineffectiveness claim is without
merit
since
he
has
shown
neither
deficient
performance
nor
resulting prejudice.
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
is
including
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
application
of
Strickland,
determination of the facts.
or
based
on
an
unreasonable
As such, ground three is due to be
denied.
Accordingly, it is now
ORDERED:
1.
Respondents' Motion to Dismiss Petition for Writ of
Habeas Corpus as Untimely (Doc. 11) is DENIED.
- 23 -
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.
4.
If Petitioner appeals the denial of his Petition, the
Court denies a certificate of appealability.9
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 19th day of
May, 2017.
sa 5/10
c:
9
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.
- 24 -
Michael Flowers
Counsel of Record
- 25 -
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