Candler v. Secretary, Department of Corrections et al

Filing 32

ORDER denying the Petition 1 and dismissing the case with prejudice. Signed by Judge Marcia Morales Howard on 10/25/2017. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

KEVIN E. CANDLER,
Petitioner,
v.

Case No. 3:15-cv-8-J-34JRK

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Kevin E. Candler, an inmate of the Florida penal
system, initiated this action on January 6, 2015, by filing a pro
se Petition for Writ of Habeas Corpus (Doc. 1) under 28 U.S.C. §
2254. In the Petition, Candler challenges a 2009 state court (Duval
County, Florida) judgment of conviction for dealing in stolen
property. Respondents have submitted a memorandum in opposition to
the Petition. See Respondents' Answer in Response to Order to Show
Cause and Petition for Writ of Habeas Corpus (Response; Doc. 20)
with exhibits (Resp. Ex.). On May 20, 2015, the Court entered an
Order to Show Cause and Notice to Petitioner (Doc. 7), admonishing
Candler regarding his obligations and giving Candler a time frame
in which to submit a reply. Candler submitted a brief in reply. See
Petitioner's Response to Respondents' Answer (Reply; Doc. 25). This
case is ripe for review.

II. Procedural History
On September 22, 2008, the State of Florida charged Candler
with burglary (counts one and four), resisting an officer with
violence (count two), and dealing in stolen property (count three).
See Resp. Ex. A at 87-88, Third Amended Information. Candler
proceeded to a jury trial in June 2009, see id., Transcript of the
Jury Trial (Tr.), at the conclusion of which, on June 17, 2009, the
court found him guilty of resisting an officer without violence, a
lesser included offense of count two, and dealing in stolen
property (count three), and not guilty of burglary (counts one and
four), as charged in the Information. See id. at 138-41, Verdicts.
On July 23, 2009, the court sentenced Candler to a term of
imprisonment of thirty years for dealing in stolen property, and to
a term of imprisonment of twelve months (with credit for 365 days
for time served) for resisting an officer without violence. See id.
at 158-64, Judgment.
On direct appeal, Candler, with the benefit of counsel, filed
a brief, arguing that the trial court erred when it denied his
motion to suppress as to the impermissibly suggestive pretrial
identification. Resp. Ex. B. The State filed an answer brief. Resp.
Ex. C. On August 2, 2011, the appellate court affirmed Candler's
conviction per curiam, see Candler v. State, 66 So.3d 941 (Fla. 1st
DCA 2011); Resp. Ex. D, and the mandate issued on August 18, 2011,
see Resp. Ex. E.

2

On February 14, 2012, Candler filed a pro se petition for writ
of habeas corpus in the appellate court. See Resp. Ex. R.

He

asserted that appellate counsel was ineffective because she failed
to argue on direct appeal that the trial court erred when it denied
Candler's motion for judgment of acquittal on the insufficiency of
the evidence as to dealing in stolen property. The appellate court
denied the petition on the merits on March 8, 2012, see Candler v.
State, 135 So.3d 297 (Fla. 1st DCA 2012); Resp. Ex. S, and later
denied his motion for rehearing on April 17, 2012, see Resp. Exs.
T; U.
On June 18, 2012, Candler filed a pro se petition for writ of
habeas corpus in the Florida Supreme Court. See Resp. Ex. J. The
court transferred the case to the circuit court on August 23, 2012,
for its consideration as a motion for post-conviction relief
pursuant to Florida Rule of Criminal Procedure 3.850. See Resp. Ex.
K. He filed an amended motion for post-conviction relief (Rule
3.850 motion) on October 22, 2012. See Resp. Ex. L at 1-24. In his
Rule 3.850 motion, he asserted that counsel was ineffective because
he

failed

to:

present

a

more

artful

motion

for

judgment

of

acquittal (ground one), and object to the trial court giving a
faulty jury instruction (ground two). Additionally, he stated that
the cumulative effect of counsel's errors entitled him to relief
(ground three). The circuit court denied the Rule 3.850 motion on
April 30, 2013. See id. at 25-91. On October 29, 2014, the

3

appellate court affirmed the court's denial of post-conviction
relief per curiam, see Candler v. State, 152 So.3d 567 (Fla. 1st
DCA 2014); Resp. Ex. N, and later denied Candler's motion for
rehearing on December 16, 2014, see Resp. Exs. O; P. The mandate
issued on January 2, 2015. See Resp. Ex. Q.
During

the

pendency

of

the

post-conviction

proceedings,

Candler filed a pro se petition for a new appeal in the appellate
court on March 5, 2013. See Resp. Ex. F. He asserted that appellate
counsel was ineffective because she failed to argue on direct
appeal that the trial court erred in denying Candler's motion to
dismiss based on a violation of Florida Rule of Criminal Procedure
3.140(g) (ground one), and that trial counsel was ineffective
because he failed to properly cross-examine and impeach Detective
Ardizzoni (ground two). The appellate court denied the petition on
the merits on March 27, 2013. See Resp. Ex. G. Candler filed a
notice to invoke the discretionary jurisdiction of the Florida
Supreme Court on April 21, 2013. See Resp. Ex. H. The Florida
Supreme Court dismissed the case for lack of jurisdiction on June
17, 2013. See Candler v. State, 118 So.3d 219 (Fla. 2013); Resp.
Ex. I.
III. One-Year Limitations Period
The Petition appears to be timely filed within the one-year
limitations period. See 28 U.S.C. § 2244(d).

4

IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner
to establish the need for a federal evidentiary hearing. See Chavez
v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir.
2011). "In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an
applicant to prove the petition's factual allegations, which, if
true, would entitle the applicant to federal habeas relief."
Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec'y,
Fla. Dep't of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert.
denied, 137 S.Ct. 2245 (2017). "It follows that if the record
refutes the applicant's factual allegations or otherwise precludes
habeas

relief,

a

district

court

is

not

required

to

hold

an

evidentiary hearing." Schriro, 550 U.S. at 474. The pertinent facts
of this case are fully developed in the record before the Court.
Because this Court can "adequately assess [Candler's] claim[s]
without further factual development," Turner v. Crosby, 339 F.3d
1247, 1275 (11th Cir. 2003), an evidentiary hearing will not be
conducted.
V. Governing Legal Principles
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) governs a state prisoner's federal petition for habeas

5

corpus. See Ledford v. Warden, Ga. Diagnostic & Classification
Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S.Ct.
1432 (2017). "'The purpose of AEDPA is to ensure that federal
habeas relief functions as a guard against extreme malfunctions in
the state criminal justice systems, and not as a means of error
correction.'" Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)
(quotation marks omitted)). As such, federal habeas review of final
state court decisions is "'greatly circumscribed' and 'highly
deferential.'" Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343
(11th Cir. 2011) (quotation marks omitted)).
The first task of the federal habeas court is to identify the
last state court decision, if any, that adjudicated the claim on
the merits. See Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d
1227, 1235 (11th Cir. 2016) (en banc), cert. granted, 137 S.Ct.
1203 (2017); Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277,
1285 (11th Cir. 2016). Regardless of whether the last state court
provided a reasoned opinion, "it may be presumed that the state
court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary."
Harrington v. Richter, 562 U.S. 86, 99 (2011) (citation omitted);
see also Johnson v. Williams, 568 U.S. 289, --, 133 S.Ct. 1088,
1096 (2013).1 Thus, the state court need not issue an opinion

1

The presumption is rebuttable and "may be overcome when
there is reason to think some other explanation for the state
court's decision is more likely." Richter, 562 U.S. at 99-100; see
6

explaining its rationale in order for the state court's decision to
qualify as an adjudication on the merits. See Richter, 562 U.S. at
100.
If the claim was "adjudicated on the merits" in state court,
§ 2254(d) bars relitigation of the claim unless the state court's
decision

(1)

"was

contrary

to,

or

involved

an

unreasonable

application of, clearly established Federal law, as determined by
the Supreme Court of the United States;" or (2) "was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d);
Richter, 562 U.S. at 97-98. As the Eleventh Circuit has explained:
First, § 2254(d)(1) provides for federal
review for claims of state courts' erroneous
legal conclusions. As explained by the Supreme
Court in Williams v. Taylor, 529 U.S. 362, 120
S. Ct. 1495, 146 L.Ed.2d 389 (2000), §
2254(d)(1) consists of two distinct clauses: a
"contrary to" clause and an "unreasonable
application" clause. The "contrary to" clause
allows for relief only "if the state court
arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question
of law or if the state court decides a case
differently than [the Supreme] Court has on a
set of materially indistinguishable facts."
Id. at 413, 120 S. Ct. at 1523 (plurality
opinion).
The
"unreasonable
application"
clause allows for relief only "if the state
court identifies the correct governing legal
principle from [the Supreme] Court's decisions
but unreasonably applies that principle to the
facts of the prisoner's case." Id.

also Johnson, 133 S.Ct. at 1096-97. However, "the Richter
presumption is a strong one that may be rebutted only in unusual
circumstances . . . ." Johnson, 133 S.Ct. at 1096.
7

Second, § 2254(d)(2) provides for federal
review for claims of state courts' erroneous
factual determinations. Section 2254(d)(2)
allows federal courts to grant relief only if
the state court's denial of the petitioner's
claim
"was
based
on
an
unreasonable
determination of the facts in light of the
evidence
presented
in
the
State
court
proceeding." 28 U.S.C. § 2254(d)(2). The
Supreme
Court
has
not
yet
defined
§
2254(d)(2)'s "precise relationship" to §
2254(e)(1), which imposes a burden on the
petitioner to rebut the state court's factual
findings "by clear and convincing evidence."
See Burt v. Titlow, 571 U.S. ---, ---, 134 S.
Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord
Brumfield v. Cain, 576 U.S. ---, ---, 135 S.
Ct. 2269, 2282, 192 L.Ed.2d 356 (2015).
Whatever that "precise relationship" may be,
"'a state-court factual determination is not
unreasonable merely because the federal habeas
court
would
have
reached
a
different
conclusion in the first instance.'"[2] Titlow,
571 U.S. at ---, 134 S. Ct. at 15 (quoting
Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct.
841, 849, 175 L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert.
denied, 137 S.Ct. 2298 (2017); see also Daniel v. Comm'r, Ala.
Dep't of Corr., 822 F.3d 1248, 1259 (11th Cir. 2016). Also,
deferential review under § 2254(d) generally is limited to the
record that was before the state court that adjudicated the claim
on the merits. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011)
(stating the language in § 2254(d)(1)'s "requires an examination of
the state-court decision at the time it was made"); Landers v.

2

The Eleventh Circuit has described the interaction between
§ 2254(d)(2) and § 2254(e)(1) as "somewhat murky." Clark v. Att'y
Gen., Fla., 821 F.3d 1270, 1286 n.3 (11th Cir. 2016), cert. denied,
137 S.Ct. 1103 (2017).
8

Warden, Att'y Gen. of Ala., 776 F.3d 1288, 1295 (11th Cir. 2015)
(regarding § 2254(d)(2)).
Where

the

state

court's

adjudication

on

the

merits

is

"'unaccompanied by an explanation,' a petitioner's burden under
section 2254(d) is to 'show[] there was no reasonable basis for the
state court to deny relief.'" Wilson, 834 F.3d at 1235 (quoting
Richter, 562 U.S. at 98). Thus, "a habeas court must determine what
arguments or theories supported or, as here, could have supported,
the state court's decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of
[the] Court." Richter, 562 U.S. at 102; see also Wilson, 834 F.3d
at 1235. To determine which theories could have supported the state
appellate court's decision, the federal habeas court may look to a
state trial court's previous opinion as one example of a reasonable
application of law or determination of fact. Wilson, 834 F.3d at
1239; see Butts v. GDCP Warden, 850 F.3d 1201, 1204 (11th Cir.
2017), petition for cert. filed, No. 17-512 (Sept. 29, 2017).3
However, in Wilson, the en banc Eleventh Circuit stated that the
federal habeas court is not limited to assessing the reasoning of
the lower court. 834 F.3d at 1239. As such,

3

Although the United States Supreme Court has granted
Wilson's petition for certiorari, the "en banc decision in Wilson
remains the law of the [Eleventh Circuit] unless and until the
Supreme Court overrules it." Butts, 850 F.3d at 1205 n.2.
9

even when the opinion of a lower state court
contains flawed reasoning, [AEDPA] requires
that [the federal court] give the last state
court to adjudicate the prisoner's claim on
the merits "the benefit of the doubt,"
Renico,[4] 559 U.S. at 773, 130 S.Ct. 1855
(quoting Visciotti,[5] 537 U.S. at 24, 123
S.Ct. 357), and presume that it "follow[ed]
the law," Donald,[6] 135 S.Ct. at 1376 (quoting
Visciotti, 537 U.S. at 24, 123 S.Ct. 357).
Id. at 1238.
Thus, "AEDPA erects a formidable barrier to federal habeas
relief for prisoners whose claims have been adjudicated in state
court." Burt v. Titlow, 134 S.Ct. 10, 16 (2013). "Federal courts
may grant habeas relief only when a state court blundered in a
manner so 'well understood and comprehended in existing law' and
'was so lacking in justification' that 'there is no possibility
fairminded jurists could disagree.'" Tharpe, 834 F.3d at 1338
(quoting Richter, 562 U.S. at 102-03). "This standard is 'meant to
be' a difficult one to meet." Rimmer v. Sec'y, Fla. Dep't of Corr.,
864 F.3d 1261, 1274 (11th Cir. 2017) (quoting Richter, 562 U.S. at
102). Thus, to the extent that Candler's claims were adjudicated on
the merits in the state courts, they must be evaluated under 28
U.S.C. § 2254(d).

4

Renico v. Lett, 559 U.S. 766 (2010).

5

Woodford v. Visciotti, 537 U.S. 19 (2002).

6

Woods v. Donald, 135 U.S. 1372 (2015).
10

B. Ineffective Assistance of Counsel
"The

Sixth

Amendment

guarantees

criminal

defendants

the

effective assistance of counsel. That right is denied when a
defense attorney's performance falls below an objective standard of
reasonableness and thereby prejudices the defense." Yarborough v.
Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith,
539 U.S. 510, 521 (2003), and Strickland v. Washington, 466 U.S.
668, 687 (1984)).
To establish deficient performance, a
person challenging a conviction must show that
"counsel's representation fell below an
objective
standard
of
reasonableness."
[Strickland,] 466 U.S. at 688, 104 S.Ct. 2052.
A court considering a claim of ineffective
assistance must apply a "strong presumption"
that counsel's representation was within the
"wide range" of reasonable professional
assistance. Id., at 689, 104 S.Ct. 2052. The
challenger's burden is to show "that counsel
made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id., at
687, 104 S.Ct. 2052.
With respect to prejudice, a challenger
must demonstrate "a reasonable probability
that, but for counsel's unprofessional errors,
the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence
in the outcome." Id., at 694, 104 S.Ct. 2052.
It is not enough "to show that the errors had
some conceivable effect on the outcome of the
proceeding." Id., at 693, 104 S.Ct. 2052.
Counsel's errors must be "so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable." Id., at 687, 104
S.Ct. 2052.

11

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized "the
absence of any iron-clad rule requiring a court to tackle one prong
of the Strickland test before the other." Ward v. Hall, 592 F.3d
1144, 1163 (11th Cir. 2010). Since both prongs of the two-part
Strickland

test must be satisfied to show a Sixth Amendment

violation, "a court need not address the performance prong if the
petitioner cannot meet the prejudice prong, and vice-versa." Id.
(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)).
As stated in Strickland: "If it is easier to dispose of an
ineffectiveness

claim

on

the

ground

of

lack

of

sufficient

prejudice, which we expect will often be so, that course should be
followed." Strickland, 466 U.S. at 697.
A state court's adjudication of an ineffectiveness claim is
accorded great deference.
"[T]he
standard
for
judging
counsel's
representation is a most deferential one."
Richter, - U.S. at -, 131 S.Ct. at 788. But
"[e]stablishing
that
a
state
court's
application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d)
are both highly deferential, and when the two
apply in tandem, review is doubly so." Id.
(citations and quotation marks omitted). "The
question is not whether a federal court
believes the state court's determination under
the Strickland standard was incorrect but
whether that determination was unreasonable a substantially higher threshold." Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411,
1420, 173 L.Ed.2d 251 (2009) (quotation marks
omitted). If there is "any reasonable argument
that
counsel
satisfied
Strickland's
deferential standard," then a federal court
12

may not disturb a state-court decision denying
the claim. Richter, - U.S. at -, 131 S.Ct. at
788.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014), cert.
denied, 135 S.Ct. 2126 (2015); Knowles v. Mirzayance, 556 U.S. 111,
123 (2009). "In addition to the deference to counsel's performance
mandated

by

Strickland,

the

AEDPA

adds

another

layer

of

deference--this one to a state court's decision--when we are
considering whether to grant federal habeas relief from a state
court's decision." Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th
Cir. 2004). As such, "[s]urmounting Strickland's high bar is never
an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
C. Ineffective Assistance of Appellate Counsel
The two-part Strickland standard also governs a claim of
ineffective assistance of appellate counsel. Overstreet v. Warden,
811 F.3d 1283, 1287 (11th Cir. 2016). The Eleventh Circuit has
stated:
To prevail on a claim of ineffective
assistance of appellate counsel, a habeas
petitioner must establish that his counsel's
performance was deficient and that the
deficient performance prejudiced his defense.
See Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
(1984); Brooks v. Comm'r, Ala. Dep't of Corr.,
719 F.3d 1292, 1300 (11th Cir. 2013) ("Claims
of ineffective assistance of appellate counsel
are governed by the same standards applied to
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."
13

Strickland, 466 U.S. at 688, 104 S.Ct. at
2064. "The standards created by Strickland and
§ 2254(d) are both highly deferential, and
when the two apply in tandem, review is doubly
so." Harrington, 562 U.S. at 105, 131 S.Ct. at
788 (quotation marks and citations omitted);
see also Gissendaner v. Seaboldt, 735 F.3d
1311, 1323 (11th Cir. 2013) ("This double
deference is doubly difficult for a petitioner
to overcome, and it will be a rare case in
which an ineffective assistance of counsel
claim that was denied on the merits in state
court is found to merit relief in a federal
habeas proceeding.") (quotation marks and
alteration omitted). "If this standard is
difficult to meet, that is because it was
meant to be." Harrington, 562 U.S. at 102, 131
S.Ct. at 786.
Rambaran v. Sec'y, Dep't of Corr., 821 F.3d 1325, 1331 (11th Cir.
2016), cert. denied, 137 S.Ct. 505 (2016).
When considering deficient performance by appellate counsel,
a court must presume counsel's performance was
"within
the
wide
range
of
reasonable
professional assistance." Id.[7] at 689, 104 S.
Ct. 2052. Appellate counsel has no duty to
raise every non-frivolous issue and may
reasonably
weed
out
weaker
(albeit
meritorious) arguments. See
Philmore v.
McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009).
"Generally, only when ignored issues are
clearly stronger than those presented, will
the presumption of effective assistance of
counsel be overcome." Smith v. Robbins, 528
U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756
(2000) (quoting Gray v. Greer, 800 F.2d 644,
646 (7th Cir. 1986)); see also Burger v. Kemp,
483 U.S. 776, 784, 107 S. Ct. 3114, 97 L.Ed.2d
638 (1987) (finding no ineffective assistance
of counsel when the failure to raise a
particular issue had "a sound strategic
basis").

7

Strickland, 466 U.S. at 689.
14

Overstreet, 811 F.3d at 1287; see also Owen v. Sec'y, Dep't of
Corr.,

568

F.3d

894,

915

(11th

Cir.

2009)

(stating

"any

deficiencies of counsel in failing to raise or adequately pursue
[meritless

issues

on

appeal]

cannot

constitute

ineffective

assistance of counsel").
To satisfy the prejudice prong, a petitioner must show a
reasonable probability that "but for the deficient performance, the
outcome of the appeal would have been different." Black v. United
States, 373 F.3d 1140, 1142 (11th Cir. 2004) (citations omitted);
see Philmore v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir. 2009)
("In order to establish prejudice, we must first review the merits
of

the

omitted

claim.

Counsel's

performance

will

be

deemed

prejudicial if we find that 'the neglected claim would have a
reasonable

probability

of

success

on

appeal.'")

(citations

omitted).
VI. Findings of Fact and Conclusions of Law
A. Ground One
As ground one, Candler asserts that the trial court erred when
it denied his motion to suppress the out-of-court and in-court
identifications. See Petition at 4-10. Candler argued this issue on
direct appeal, see Resp. Ex. B, the State filed an answer brief,
see

Resp. Ex. C, and the appellate court affirmed Candler's

conviction per curiam, see Candler, 66 So.3d 941; Resp. Ex. D.

15

In its appellate brief, the State addressed the claim on the
merits, see Resp. Ex. C at 4-8, and therefore, the appellate court
may

have

affirmed

Candler's

conviction

based

on

the

State's

argument. If the appellate court addressed the merits, the state
court's adjudication of this claim is entitled to deference under
AEDPA. After a review of the record and the applicable law, the
Court concludes that the state court's adjudication of this claim
was not contrary to clearly established federal law and did not
involve an unreasonable application of clearly established federal
law.

Nor

was

the

state

court's

adjudication

based

on

an

unreasonable determination of the facts in light of the evidence
presented in the state court proceedings.

Accordingly, Candler is

not entitled to relief on the basis of this claim.
Even assuming that the state court's adjudication of this
claim is not entitled to deference, and that the claim presents an
issue

of

federal

constitutional

dimension,8

Candler's

claim,

nevertheless, is without merit.9 Upon review, the trial court
properly denied Candler's motion to suppress the out-of-court and
in-court identifications. The Supreme Court has recognized "a due
process

check

on

the

admission

of

eyewitness

identification,

applicable when the police have arranged suggestive circumstances

8

See Response at 5-6; Reply at 2.

9

Candler acknowledges that the claim is without merit. See
Reply at 2. Nevertheless, he elects to pursue the claim. See
Response to Court Order (Doc. 27).
16

leading

the

witness

to

identify

a

particular

person

as

the

perpetrator of a crime." Perry v. New Hampshire, 565 U.S. 228, 232
(2012). An out-of-court identification is subject to exclusion if
the identification procedure was unduly suggestive such that it
created a substantial risk of misidentification. Neil v. Biggers,
409 U.S. 188, 199 (1972). In determining whether an identification
violates due process, a court undertakes a two-part analysis.
"First, we must determine whether the original identification
procedure was unduly suggestive. . . . If we conclude that the
identification procedure was suggestive, we must then consider
whether,

under

the

totality

of

the

circumstances,

the

identification was nonetheless reliable." Cikora v. Dugger, 840
F.2d 893, 895 (11th Cir. 1988) (citing Biggers, 409 U.S. at 199).
In Biggers, the Supreme Court identified five factors to be
considered in determining whether the identification was reliable.
They are: the witness's opportunity to view the suspect at the time
of the crime, the witness's degree of attention, the accuracy of
the description of the suspect, the level of certainty of the
identification, and the length of time between the crime and the
identification.

See

Biggers,

409

U.S.

at

199.

In

Manson

v.

Brathwaite, 432 U.S. 98 (1977), the United States Supreme Court
stated that absent "a very substantial likelihood of irreparable
misidentification," the identification of a suspect by a witness is

17

evidence for the jury to weigh. Id. at 116 (citation and internal
quotation marks omitted).
We are content to rely upon the good sense and
judgment of American juries, for evidence with
some element of untrustworthiness is customary
grist for the jury mill. Juries are not so
susceptible
that
they
cannot
measure
intelligently the weight of identification
testimony that has some questionable feature.
Id.

In the instant case, Candler, with the benefit of counsel,
filed a motion to suppress. See Resp. Ex. A at 82-85. In the
motion,

Candler

requested

that

the

trial

court

suppress

any

pretrial identification as well as any in-court identification of
him by Karrina Wood (a neighbor and eyewitness) and Robert Brozoski
(one of the victims). The trial court held a hearing on October 23,
2008, at which Candler appeared pro se, and Officer Myers, Wood,
and Brozoski testified. See id., Transcript of the Suppression
Hearing (Supp. Tr.).
Officer Myers testified that he was speaking to the victims
when Officer Soucek called him for assistance. See id. at 7-8.
According to Myers, the be-on-the-lookout dispatch described the
suspect as a black male wearing black shorts and a yellow hat and
possibly a black shirt, see id. at 8-9, and the black male suspect
was wearing black shorts, but no hat or shirt, when Myers arrived
to assist Officer Soucek, see id. at 11. Myers described his

18

initial encounter with the suspect on Gaillardia Road, which is
approximately one-half of one mile from the crime scene. See id. at
27.
We were going to detain the defendant to
conduct a showup at the location on Galardia
[sic], but I never made it a point of
explaining that to the defendant because he
was belligerent and refused to cooperate.
. . . .
When I approached the defendant, like I
said, he was belligerent, told me to get the
f..k off his property. And I didn't even get a
chance to explain myself, what was going on.
And then as I approached the defendant, I was
on one side and Officer Soucek was on the
other side. And at that point the defendant
came up swinging, striking my chest. And
that's when the struggle ensued.
. . . .
At that time [Candler] w[as] placed under
arrest for battery on a law enforcement
officer. But to finish out the investigation,
we went around there to conduct a showup at
the scene where the victim and witnesses were.
Id. at 14, 15, 16. According to Myers, he told Wood and Brozoski
about the physical altercation with Candler after they "positively
identified" him. Id.

at 16, 20. Myers recounted the show-up

procedure: Wood and Brozoski, standing five feet from the police
car, positively identified Candler as the suspect through an
untinted window, see id. at 17, 22, 28; they identified Candler by
his face because they were in "close quarters" with him in broad
daylight, just fifteen to twenty minutes before the show-up, see

19

id. at 17, 29; and they identified Candler without any hesitation,
see id. at 28.
Wood testified that she identified Candler by his face because
she "was within a foot of [him]," id. at 46, when she initially
confronted him and conversed for over two minutes, see id. at 31,
33, 45. According to Wood, when Brozoski came outside to join the
conversation, they both talked to Candler for five to ten minutes.
See id. at 47.
I was focused on your face. I would not
forget the face. I wasn't focused fully on
your clothing.
. . . .
I seen you walking down the street the
first time, drew my suspicion, so I chained my
dog up out front. My dog proceeded to bark. I
come outside, look out my window. You're
coming out from underneath Mr. Bruzawski's
[sic] carport with the two weed eaters in your
hand. Then I decided to come out and approach
you.
. . . .
I asked
doing taking
were my best
have because

you what did you think you were
my neighbor's stuff because they
friends. I know everything they
I have also borrowed it.

Id. at 32-33, 33. She testified that the show-up occurred within
fifteen to twenty minutes of her conversation with Candler. See id.
at 48.
The cop pulled
car. The cop came up
positively identify
one who was just up

back up with you in the
there and said, "Can you
this gentlem[a]n as the
here and stole the weed
20

eaters?" I therefore walked out to the car and
looked in the car by myself and said, "Yes,
this is the same gentlem[a]n." I walked back
up towards the house and then Robert came out
and identified you.
. . . .
We all came up to the police car
individually and identified you. Afterwards
when the police were getting our statements,
having us fill out the reports, we were all
together then. That was after we had already
positively identified you individually. We
were all standing together, writing on a piece
of paper what had happened. That's when we all
stated the fact that we knew that you were the
same person that stole the weed eaters.
. . . .
And when the cops brought you back to identify
you, you never got out of the car. They did
not get you out of the car, so I identified
you by your face not by your clothing.
Id. at 36, 42, 45. According to Wood, Officer Myers told her about
the physical altercation with Candler after she had identified
Candler as the suspect. See id. at 34, 35. Brozoski testified that
he stood within two to three feet of Candler, as they spoke that
day. See id. at 53. He recalled that he had described the suspect
as a black male, approximately mid-forty or mid-fifty in age, clean
cut with black shorts, a yellow hat, and a black or yellow tank
top. See id. at 55.
Both Wood and Brozoski spoke with Candler for five to ten
minutes that day, and therefore, had the opportunity to observe
Candler's face and clothing while they conversed in broad daylight.

21

Wood initially confronted Candler, and both Wood and Brozoski
inquired about Candler's presence on Brozoski's property. They were
both duly focused on Candler and his responses. Candler presumably
had their full attention as he told them he had permission to
borrow the weed eaters. Wood and Brozoski's separate descriptions
of Candler were similar; they both described the suspect as a black
male wearing a hat, tank top and black shorts. Their descriptions
matched Candler to the extent that he wore black shorts, was seen
by another neighbor throwing off some of his clothes as he left the
area, and was stopped less than a mile from the crime scene.10
Moreover,

both

Wood

and

Brozoski

identified

Candler

shortly

thereafter and were certain about their identifications. Neither
witness was persuaded by the other's identification of Candler
since the police conducted separate show-ups.
The state court denied Candler's motion to suppress. See Resp.
Ex. A at 102. In doing so, the trial judge stated:
For the record I do find that the
officers had reasonable suspicion for the stop
on Mr. Candler and that the -– after the
altercation they had probable cause to
actually detain and arrest Mr. Candler. But
even had they not, the detention to take him
back to the showup was lawful and not
unreasonably suggestive and the conditions of
the showup were not unreasonably suggestive.
I might add I don't think I have seen a
more
adamant
witness
in
her
positive
identification of the suspect than Ms. Wood.

10

See Supp. Tr. at 37, 38.
22

So, I will deny the motion to suppress incourt and out-of-court identification of the
defendant, and deny the oral motion to find
that the stop was unjustified and unlawful.
And I'll take that as a motion to suppress all
of the evidence guarded [sic] as a result of
that stop and I'll deny that motion.
Id. at 75-76.
On this record, even assuming that the show-up identification
procedure was suggestive, the identification was reliable. The
trial court properly denied Candler's motion to suppress, and no
due process violation occurred. Thus, Candler is not entitled to
federal habeas relief on ground one.
B. Ground Two
As ground two, Candler asserts that counsel was ineffective
because she failed to argue on direct appeal that the trial court
erred when it denied his motion for judgment of acquittal as to
dealing in stolen property. See Petition at 11-14. Candler raised
the ineffectiveness claim in his state petition for writ of habeas
corpus. See Resp. Ex. R. The appellate court ultimately denied the
petition on the merits, see Resp. Ex. S, and later denied his
motion for rehearing, see Resp. Exs. T; U.
As there is a qualifying state court decision, the Court will
address this claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review
of the record and the applicable law, the Court concludes that the
state court's adjudication of this claim was not contrary to

23

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, Candler is
not entitled to relief on the basis of this claim.
Moreover, even assuming that the state court's adjudication of
this claim is not entitled to deference, Candler's ineffectiveness
claim is without merit.

Candler

has

failed to establish that

appellate counsel's failure to raise the issue on direct appeal was
deficient

performance.

The

State

presented

ample

evidence

to

support Candler's conviction for dealing in stolen property. The
Due Process Clause of the Fourteenth Amendment requires the State
to prove each element of the offense charged beyond a reasonable
doubt. Thompson v. Nagle, 118 F.3d 1442, 1448 (11th Cir. 1997)
(citing

Jackson

v.

Virginia,

443

U.S.

307,

314

(1979)).

In

reviewing the sufficiency of the evidence, "this court must presume
that conflicting inferences to be drawn from the evidence were
resolved by the jury in favor of the State." Thompson, 118 F.3d at
1448 (citing Machin v. Wainwright, 758 F.2d 1431, 1435 (11th Cir.
1985)). Jackson "provides the federal due process benchmark for
evidentiary sufficiency in criminal cases." Williams v. Sec'y for
Dep't of Corr., 395 F. App'x 524, 525 (11th Cir. 2010) (per curiam)
(citing Green v. Nelson, 595 F.3d 1245, 1252-53 (11th Cir. 2010)).
In accordance with this authority, the relevant question is whether

24

any rational jury, after viewing the evidence in the light most
favorable to the prosecution, could have found the essential
elements of the charged offense beyond a reasonable doubt. Jackson,
443 U.S. 319.
The Third Amended Information charging Candler with dealing in
stolen property states, in pertinent part:
KEVIN CANDLER on September 11, 2007, in
the County of Duval and the State of Florida,
did traffic in or endeavor to traffic in
property of Eva Brozoski, to-wit, a pressure
washer, that he knew, or should have known was
stolen, contrary to the provisions of Section
812.019(1), Florida Statutes.
Resp. Ex. A at 87-88. At trial, the trial judge instructed the jury
as follows:
I will now define the elements of dealing
in stolen property. To prove the crime of
dealing in stolen property the state must
prove the following two elements beyond a
reasonable doubt: Number one, Kevin E. Candler
trafficked in or endeavored to traffic in a
pressure washer. Number two, Kevin E. Candler
knew or should have known that the pressure
washer was stolen.
Proof of possession of property recently
stolen unless satisfactorily explained gives
rise to the inference that the person in
possession of the property knew or should have
known that the property had been stolen. Proof
of the purchase or sale of stolen property at
a price substantially below fair market value
unless satisfactorily explained gives rise to
the inference that the person buying or
selling the property knew or should have known
that it was stolen.

25

Tr. at 339-40. After viewing the evidence in the light most
favorable to the prosecution, a rational trier of fact could have
found Candler committed the crime of dealing in stolen property,
and as such, the essential elements of the charged offense to
support the conviction for dealing in stolen property. Competent
evidence of the elements of the offense was introduced at trial,
and no due process violation occurred. The jury was entitled to
believe the State witnesses' accounts. See Tr. at 175-78, 180, 21213, 215, 243-44, 256. Additionally, the jury heard Candler's
testimony during trial, see id. at 275-76, 283, and therefore was
entitled to make its own determination as to how he acquired the
pressure washer. Given the record, the trial court did not err in
denying Candler's motions for judgment of acquittal, see id. at
260, 292; the evidence was sufficient to justify the court's
submission of the case to the jury as to dealing in stolen
property; and the evidence at trial amply supported the elements
required for a conviction as to dealing in stolen property.
Given

the

record,

Candler

has

not

shown

a

reasonable

probability exists that the claim would have been meritorious on
direct appeal, if counsel had raised the claim in the manner
suggested by Candler. Accordingly, Candler's ground two is without
merit

since

he

has

neither

shown

resulting prejudice.

26

deficient

performance

nor

C. Ground Three
As ground three, Candler asserts that counsel was ineffective
because he failed to present "a more artful" motion for judgment of
acquittal. Petition at 15. He raised the claim in his Rule 3.850
motion in state court. See Resp. Ex. L at 5-12. The post-conviction
court ultimately denied the Rule 3.850 motion with respect to the
claim, stating in pertinent part:
Defendant alleges that counsel was
ineffective because he did not present
"artful" motions for judgment of acquittal as
they pertained to Defendant's charge of
Dealing in Stolen Property because the
evidence was circumstantial, contradictory,
and insufficient to prove he knew or should
have known the items were stolen. Def. Mot. 5,
9. He also alleges that the Court "abused its
discretion and committed reversible error by
not granting the judgment of acquittal." Def.
Mot. 11.
It is well settled that a court will not
grant a motion for judgment of acquittal
"unless the evidence is such that no view
which the jury may lawfully take of it
favorable to the opposite party can be
sustained under the law." Lynch v. State, 293
So. 2d 44, 45 (Fla. 1974); see State v. Prehn,
566 So. 2d 1362, 1363 (Fla. 1st DCA
1990)(holding that purpose of motion for
judgment
of
acquittal
is
to
challenge
sufficiency of evidence). When a defendant
makes a motion for judgment of acquittal, he
or she "admits not only the facts stated in
the evidence adduced, but also admits every
conclusion favorable to the adverse party that
a jury might fairly and reasonably infer from
the evidence." Darling v. State, 808 So. 2d
145, 155 (Fla. 2002). When the state has
brought forth competent evidence to support
every element of the crime, a judgment of
acquittal is not proper. Prehn, 566 So. 2d at
27

1363. If the evidence is contradictory, a
court should not grant a motion for judgment
of acquittal because it is the province of the
jury to weigh the evidence. Williams v. State,
967 So. 2d 735, 755 (Fla. 2007); Fitzpatrick
v. State, 900 So. 2d 495, 508 (Fla. 2005).
Finally,
when
a
case
is
built
on
circumstantial evidence, a court should deny a
motion for judgment of acquittal if the state
presents sufficient evidence to establish each
element of the offense and excludes every
reasonable hypothesis except guilt. Hunter v.
State, 8 So. 3d 1052, 1066 (Fla. 2008).
To constitute dealing in stolen property,
the evidence must establish that "[a]ny person
who traffics in, or endeavors to traffic in,
property that he or she knows or should know
was stolen shall be guilty of" dealing in
stolen property. § 812.019, Fla. Stat. (2007).
It is essential that a defendant know that the
property was stolen. M.L.K. v. State, 454 So.
2d 753, 755 (Fla. 1st DCA 1984).
The
police
arrested
Defendant
on
September 13, 2007, after a witness called the
police when Defendant attempted to steal
garden tools from the home of Robert Brozoski
("Robert") and his mother, Eva. Karrina Nicole
Wood testified that she saw Defendant leave
Robert's carport with the weed eaters. (Ex. D.
at 146-47.) According to Ms. Wood, Defendant
told her he had permission to borrow the
tools. (Ex. D. at 147.) She testified that she
"told him no, he didn't, and I proceeded to
walk up to Robert's door to get Robert, and
[Defendant] followed and came with me." (Ex.
D. at 147.) According to Ms. Wood and Robert,
they talked to Defendant for approximately ten
minutes. (Ex. D. at 148, 163.) When Robert
called 911, Defendant left Robert's property.
(Ex. D. at 148, 163-64.) Robert testified that
Defendant had come to his home a few days
before Defendant's arrest. (Ex. D. at 159.)
According to Robert, Defendant asked "if a
certain individual lived there." (Ex. D. at
159.) The State questioned Robert as follows:

28

Q: Did you know the person that this
defendant was talking about?
A: No, I did not.
Q: Had anyone else ever come to your
house asking about this person the
defendant was talking about?
A: No, ma'am.
Q: Have you ever gotten any mail for
the person this defendant was
talking about?
A: No, ma'am.
(Ex. D. at 159-60.) Moreover, Eva testified
that she had seen Defendant before when "he
had gone up and down the neighborhood and came
to our front door one day." (Ex. D. at 172.)
Robert testified that he discovered Eva's
pressure washer was missing before Defendant's
arrest on September 13, 2007. (Ex. D. at 164.)
He also testified that he had not reported
this to the police. (Ex. D. at 165.) Eva
testified that she owned the pressure washer,
that she pawned the pressure washer before
January 26, 2007, and that she reclaimed the
pressure washer on February 25, 2007. (Ex. D.
at 176-78.) She also testified that she
discovered the pressure washer was missing on
September 12, 2007, and that she did not have
time to report this. (Ex. D. at 176.) Finally,
Eva stated that she stored the pressure washer
in the carport with the weed eaters. (Ex. D.
at 160, 164, 174- 76.) Neither Robert nor Eva
gave Defendant permission to borrow the tools.
(Ex. D. at 160, 173.)
Adam Ardizzoni, an officer with the
Jacksonville Sheriff's Office, testified that
Robert told him the pressure washer had been
taken from the Brozoski residence. (Ex. D. at
211.) According to the officer, he then
conducted a pawn transaction search and
identified the pressure washer's serial
29

number. (Ex. D. at 211-12.) He found two
transactions involving this serial number, one
for Eva and one for Defendant, the latter
occurring when the pressure washer was missing
from the Brozoski residence. (Ex. D. at 21213.) The State presented the pawn transaction
forms Officer Ardizzoni uncovered to establish
that Defendant pawned Eva's pressure washer on
September 11, 2007, two days before his
arrest. (Ex. D. at 213-14.)
Defendant testified that he purchased the
pressure washer from his neighbor. (Ex. D. at
276, 283.) On cross-examination, Defendant
revealed that he had a bill of sale for the
purchase and that he never gave it to his
attorneys.
Q: Do you have a receipt for that
purchase?
A: I had a bill of sale. Yes, I do.
Q: Do you have it with you that I
can see that?
A: No, I don't, ma'am.
Q: Have you provided that to your
attorney?
A: No, I haven't, ma'am. At the time
that
this
happened
I
was
incarcerated, so I couldn't provide
Q: You were arrested on September
13th, 2007.
A: Yes, ma'am.
Q: That's almost two years ago?
A: Yes, ma'am.
Q: And you haven't thought to
provide
that
receipt
to
your
attorney?
30

A: And, ma'am, I was still been
[sic] incarcerated two thousand ...
Q: And you didn't have someone who
could get a copy of that receipt to
your attorney?
A: No, ma'am, because at that point
I didn't know I was going to trial.
I thought this would have been
resolved by now.
. . . .
Q: And you came into this courtroom
and in front of this Judge you
received a copy of the formal
charges against you. You had an
attorney and you entered a plea of
not guilty at that time?
A: Yes, I did.
Q: Okay. So since October 4th of
2007, you knew that you have been
charged with these crimes?
A: Yes.
Q: And you knew
evidence that you
exonerate you of
correct?

that you had
believed would
these crimes,

A: I had a bill of sale, yes.
(Ex. E. at 283-84, 285.) Defendant went on to
testify that he talked to his first attorney
about the document but never gave it to the
attorney because he never thought he would go
to trial. (Ex. D. at 286-87.) The exchange
continued:
Q: Don't you think today would have
been an important day to provide
that
piece
of
paper
to
your
attorney?

31

A: Well, how could I as in 2007
while I was locked up to get out of
jail that they evicted me and all of
my furniture and everything was
gone, I guess I wouldQ: Oh, now your receipt is gone.
A: I would have done that if it
wasn't for me being falsely accused
of these charges.
(Ex. D. at 287.)
Even in light of Defendant's allegation
that he had a bill of sale for the pressure
washer,
the
State
presented
sufficient
evidence to contradict his allegation and to
support the Court's denial of Defendant's
motions for judgment of acquittal. See
Ferguson v. State, 593 So. 2d 508, 511 (Fla.
1992). ("Although in hindsight one can
speculate that a different argument may have
been more effective, counsel's argument does
not fall to the level of deficient performance
simply because it ultimately failed."). The
State presented competent evidence to support
every element of the crime, thus, it was
proper that the case went to the jury. Any
additional argument by counsel would have been
futile. See Willacy v. State, 967 So. 2d 131,
140 (Fla. 2007) (holding that counsel is not
ineffective for making a futile objection);
Vining v. State, 827 So. 2d 201, 213 (Fla.
2002) (holding that where Florida courts
reject substantive argument, counsel is not
ineffective for not making a meritless
argument). Defendant is not entitled to
relief.
Resp. Ex. L at 27-32 (footnote omitted). The appellate court
affirmed the court's denial of post-conviction relief per curiam,
see Resp. Ex. N, and later denied Candler's motion for rehearing,
see Resp. Exs. O; P.

32

To the extent that the state appellate court affirmed the
post-conviction court's denial on the merits, the Court will
address the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review
of the record and the applicable law, the Court concludes that the
state court's adjudication of the 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, Candler is
not entitled to relief on the basis of the claim.
Moreover,

even

assuming

the

state

appellate

court's

adjudication of the claim is not entitled to deference, Candler's
claim,

nevertheless,

is

without

merit.

In

evaluating

the

performance prong of the Strickland ineffectiveness inquiry, there
is a strong presumption in favor of competence. See Anderson v.
Sec'y, Fla. Dep't of Corr., 752 F.3d 881, 904 (11th Cir. 2014). The
inquiry is "whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance." Strickland, 466 U.S. at 690.
"[H]indsight

is

discounted

by

pegging

adequacy

to

'counsel's

perspective at the time' . . . and by giving a 'heavy measure of
deference to counsel's judgments.'" Rompilla v. Beard, 545 U.S.

33

374, 381 (2005). Thus, Candler must establish that no competent
attorney would have taken the action that counsel, here, chose.
Notably, the test for ineffectiveness is neither whether
counsel could have done more nor whether the best criminal defense
attorneys might have done more; in retrospect, one may always
identify shortcomings. Waters v. Thomas, 46 F.3d 1506, 1514 (11th
Cir. 1995) (stating that "perfection is not the standard of
effective assistance") (quotations omitted). Instead, the test is
whether what counsel did was within the wide range of reasonable
professional assistance. Ward, 592 F.3d at 1164 (quotations and
citation omitted); Dingle v. Sec'y for Dep't of Corr., 480 F.3d
1092,

1099

(11th

Cir.

2007)

("The

question

is

whether

some

reasonable lawyer at the trial could have acted as defense counsel
acted in the trial at issue and not what 'most good lawyers' would
have done.") (citation omitted).
On this record, Candler has failed to carry his burden of
showing that his counsel's representation fell outside that range
of reasonably professional assistance. Even assuming arguendo
deficient performance by defense counsel, Candler has not shown any
resulting prejudice. He has not shown that a reasonable probability
exists that the outcome of the case would have been different if
counsel had presented a "more artful" motion for judgment of
acquittal. His ineffectiveness claim is without merit since he has
shown

neither

deficient

performance

34

nor

resulting

prejudice.

Accordingly, Candler is not entitled to federal habeas relief on
ground three.
D. Ground Four
As ground four, Candler asserts that counsel was ineffective
because he failed to object to the trial court giving "a faulty
jury instruction." Petition at 19. He raised the claim in his Rule
3.850 motion in state court. See Resp. Ex. L at 13-16. The postconviction court ultimately denied the Rule 3.850 motion with
respect to the claim, stating in pertinent part:
Defendant alleges that counsel was
ineffective for failing to object to a
"faulty" jury instruction. Defendant bases his
argument on the State failing "to introduce
competent evidence inconsistent with the
Defendant's theory of events ... " because he
gave "an unrefuted explanation for having
possession of the pressure washer." Def. Mot.
15-16.
A "trial counsel's failure to object to
standard jury instructions that have not been
invalidated by this Court does not render
counsel's performance deficient." Rodriguez v.
State, 919 So. 2d 1252, 1272 (Fla. 2005). The
Court gave the standard jury instruction for
Dealing in Stolen Property. (Ex. H.)[11] The
evidence that Defendant stole the pressure
washer and pawned it was sufficient to merit
this instruction. Therefore, counsel would
have made a futile objection had he objected
to this jury instruction. See Willacy, 967 So.

11

See Resp. Exs. L at 90-91; A at 122.
35

2d at 140;[12] Vining, 827 So. 2d at 213.[13]
Defendant is not entitled to relief.
Underlying Defendant's allegation that
the jury instruction for Dealing in Stolen
Property was "faulty" is his contention that
the evidence was insufficient to support the
instruction. As established above, a defendant
cannot challenge the sufficiency of the
evidence in a motion for postconviction
relief. See Betts, 792 So. 2d at 590.
Moreover, a defendant may not seek to avoid
this procedural bar by couching his or her
allegations in terms of ineffective assistance
of counsel. Arbelaez v. State, 775 So. 2d 909
(Fla. 2000); Cherry v. State, 659 So. 2d 1069
(Fla. 1995); Chandler v. State, 634 So. 2d
1066 (Fla. 1994); Swafford v. State, 569 So.
2d 1264 (Fla. 1990). Under this analysis,
Defendant's claim is procedurally barred.
Nonetheless, even if Defendant's allegation is
not procedurally barred, the Court has
determined that he is not entitled to relief.
Id. at 33-34. The appellate court affirmed the court's denial of
post-conviction relief per curiam, and later denied Candler's
motion for rehearing.
To the extent that the state appellate court affirmed the
post-conviction court's denial on the merits, the Court will
address the claim in accordance with AEDPA's deferential standard
for federal court review of state court adjudications. After a
review of the record and the applicable law, the Court concludes
that the state court's adjudication of the claim was not contrary
to clearly established federal law, did not involve an unreasonable

12

Willacy v. State, 967 So. 2d 131 (Fla. 2007).

13

Vining v. State, 827 So. 2d 201 (Fla. 2002).
36

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, Candler is
not entitled to relief on the basis of the claim.
Moreover,

even

assuming

the

state

appellate

court's

adjudication of the claim is not entitled to deference, Candler's
claim is still without merit. The trial court instructed the jury
on

the

presumption

provided

for

in

Florida

Statutes

section

812.022(2) and Florida Standard Jury Instruction (Criminal) 14.2.
Proof of possession of property recently
stolen unless satisfactorily explained gives
rise to the inference that the person in
possession of the property knew or should have
known that the property had been stolen.[14]
Tr. at 340; see Resp. Ex. A at 122, Jury Instruction, Dealing in
Stolen Property (Fencing). On this record, Candler has failed to
carry his burden of showing that his counsel's representation fell
outside that range of reasonably professional assistance.
Assuming arguendo deficient performance by defense counsel,
Candler has not shown any resulting prejudice. He has not shown
that a reasonable probability exists that the outcome of the case
would have been different if counsel had objected to the jury
instruction. His ineffectiveness claim is without merit since he
has shown neither deficient performance nor resulting prejudice.

14

See Fla. Stat. § 812.022(2) (2006).
37

Accordingly, Candler is not entitled to federal habeas relief on
ground four.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Candler seeks issuance of a certificate of appealability,
the undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this
substantial showing, Candler "must demonstrate that reasonable
jurists

would

find

the

district

court's

assessment

of

the

constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Where

a

constitutional

district
claims

court
on

the

has

rejected

merits,

the

a petitioner's
petitioner

must

demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. See
Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
38

right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling." Id. Upon
consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

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

DISMISSED WITH PREJUDICE.
2.

The Clerk of the Court shall enter judgment denying the

Petition and dismissing this case with prejudice.
3.

If Candler appeals the denial of the Petition, the Court

denies a certificate of appealability. Because this Court has
determined that a certificate of appealability is not warranted,
the Clerk shall terminate from the pending motions report any
motion to proceed on appeal as a pauper that may be filed in this
case. Such termination shall serve as a denial of the motion.

39

4.

The Clerk of the Court is directed to close this case and

terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 25th day of
October, 2017.

sc 10/25
c:
Kevin E. Candler, FDOC #J39509
Counsel of Record

40