Cohens v. Florida Attorney General et al

Filing 14

ORDER denying 4 the amended petition, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 2/12/2018. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ERIC COHENS,
Petitioner,
vs.

Case No. 3:15-cv-1395-J-39MCR

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

Eric

INTRODUCTION

Cohens

initiated

this

case

by

filing

a

Petition for writ of habeas corpus (Doc. 1) on November 13, 2015,
pursuant to the mailbox rule.

He is proceeding on an Amended

Petition (Amended Petition) (Doc. 4) and a Memorandum of Law (Doc.
5).

In the Amended Petition, Petitioner raises three claims for

habeas relief in challenging a 2012 Putnam County conviction for
attempted first degree murder with a firearm.

Respondents filed a

Response to Order to Show Cause (Response) (Doc. 9) and an Appendix
of Exhibits to Response to Order to Show Cause (Appendix) (Doc.
10).1

Petitioner filed a Reply (Reply) (Doc. 12).

See Order (Doc.

8).

1

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 exhibit. Otherwise, the page number on the particular
document will be referenced. The Court will reference the page
numbers assigned by the electronic docketing system where
applicable.

II.

CLAIMS OF PETITION

Petitioner raises three claims:
principles

through

a

discovery

(1) a violation of Brady2

violation,

resulting

in

the

deprivation of due process and equal protection of the law; (2) the
use of prejudicial evidence at trial, resulting in the deprivation
of due process and equal protection of the law; and (3) the
ineffective assistance of counsel for misadvising Petitioner to
reject the state's plea offer and rely on a motion to dismiss to
obtain relief.
Respondents urge this Court to dismiss/deny the Petition.
Response at 12.

The Court will address the grounds raised in the

Petition, see Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992),
but

no

evidentiary

proceedings

are

required

in

this

Court.

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

Of import, a district court is not required to hold an

evidentiary hearing if the record refutes the asserted factual
allegations or otherwise precludes habeas relief.
Landrigan, 550 U.S. 465, 474 (2007).

Schriro v.

In this case, the pertinent

facts are fully developed in the record before the Court.

As a

result, the Court can "adequately assess [Petitioner's] claim[s]
without further factual development," Turner v. Crosby, 339 F.3d

2

Brady v. Maryland, 373 U.S. 83 (1963).
- 2 -

1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004),
and no evidentiary proceedings are required.
III.

STANDARD OF REVIEW

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

U.S.C.

§

2254;

Ledford

v.

Warden,

Ga.

Diagnostic

&

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

"AEDPA limits the scope of federal

habeas review of state court judgments[.]"

Pittman v. Sec'y, Fla.

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

As such,

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

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

132 S.Ct. 38, 43 (2011)).
The parameters of review are as follows:
Thus, under AEDPA, a person in custody
pursuant to the judgment of a state court
shall not be granted habeas relief on a claim
"that was adjudicated on the merits in State
court proceedings" unless the state court's
decision was "contrary to, or involved an
unreasonable
application
of,
clearly
established Federal law as determined by the
Supreme Court of the United States; or ... was
based on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding." 28 U.S.C. §
2254(d). "For § 2254(d), clearly established
federal law includes only the holdings of the
Supreme Court—not Supreme Court dicta, nor the
opinions of this Court." Taylor v. Sec'y, Fla.
Dep't of Corr., 760 F.3d 1284, 1293–94 (11th
Cir. 2014).
- 3 -

As for the "contrary to" clause, "a
federal habeas court may grant the writ if the
state court arrives at a conclusion opposite
to that reached by [the Supreme Court] on a
question of law or if the state court decides
a case differently than [the Supreme Court]
has on a set of materially indistinguishable
facts." Terry Williams v. Taylor, 529 U.S.
362, 412–13, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000). Under the "unreasonable application"
clause, a federal habeas court may "grant the
writ if the state court identifies the correct
governing legal principle from [the Supreme
Court's] decisions but unreasonably applies
that principle to the facts." Id. at 413, 120
S.Ct. 1495. "In other words, a federal court
may grant relief when a state court has
misapplied a 'governing legal principle' to 'a
set of facts different from those of the case
in which the principle was announced.'"
Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct.
2527, 156 L.Ed.2d 471 (2003) (quoting Lockyer
v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166,
155 L.Ed.2d 144 (2003)). And "an 'unreasonable
application of' [Supreme Court] holdings must
be objectively unreasonable, not merely wrong;
even clear error will not suffice." Woods v.
Donald, ––– U.S. ––––, 135 S.Ct. 1372, 1376,
191 L.Ed.2d 464 (2015) (per curiam) (quotation
omitted). To overcome this substantial hurdle,
"a state prisoner must show that the state
court's ruling on the claim being presented in
federal court was so lacking in justification
that there was an error well understood and
comprehended in existing law beyond any
possibility for fairminded disagreement."
Harrington v. Richter, 562 U.S. 86, 103, 131
S.Ct. 770, 178 L.Ed.2d 624 (2011). This is
"meant to be" a difficult standard to meet.
Id. at 102, 131 S.Ct. 770.
Pittman, 871 F.3d at 1243-44.
There is a presumption of correctness of state court's factual
findings,

unless

the

convincing evidence.

presumption

is

rebutted

28 U.S.C. § 2254(e)(1).
- 4 -

with

clear

and

The standard of

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

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

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

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

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

Once identified, the Court reviews the state court's

decision, "not necessarily its rationale."

Pittman, 871 F.3d at

1244 (quoting Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 785
(11th Cir. 2003) (citation omitted)).
Regardless of whether the last state court provided a reasoned
opinion, "it may be presumed that the state court adjudicated the

3

As suggested by the Eleventh Circuit in Butts v. GDCP
Warden, 850 F.3d 1201, 1204 (11th Cir. 2017), cert. denied, 2018 WL
491544 (U.S. Jan. 22, 2018), in order to avoid any complications if
the United States Supreme Court decides to overturn Eleventh
Circuit precedent as pronounced in Wilson v. Warden, Ga. Diagnostic
Prison, 834 F.3d 1227 (11th Cir. 2016) (en banc), cert. granted,
137 S.Ct. 1203 (2017), this Court, will employ "the more statetrial-court focused approach in applying § 2254(d)[,]" where
applicable.
- 5 -

claim on the merits in the absence of any indication or state-law
procedural principles to the contrary." Harrington v. Richter, 562
U.S. 86, 99 (2011). "The presumption may be overcome when there is
reason to think some other explanation for the state court's
decision is more likely." Richter, 562 U.S. at 99-100 (citing Ylst
v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the last adjudication on the merits is unaccompanied by
an explanation, the petitioner must demonstrate there was no
reasonable basis for the state court to deny relief.
"[A]

habeas

court

must

determine

what

Id. at 98.

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

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

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

that

the

state

court's

ruling

on

the

claim

being

presented . . . was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any

- 6 -

possibility for fairminded disagreement."

Richter, 562 U.S. at

103.
IV.

PROCEDURAL HISTORY

The Court will provide a brief procedural history. Petitioner
was charged by second amended information with attempted first
degree murder with a firearm.

Ex. A at 81.

the trial court conducted a jury trial.
The jury returned a verdict of guilty.

On January 24, 2012,

Ex. A, Trial Transcript.
Ex. A at 165.

On March 6,

2012, the trial court held a sentencing proceeding.

Ex. A,

Sentencing Transcript. The court adjudicated Petitioner guilty and
sentenced him to a term of thirty years in prison, with a twentyfive year minimum mandatory sentence.

Id. at 39.

The court

entered judgment and sentence on March 8, 2012, nunc pro tunc to
March 6, 2012.

Ex. A at 237-44.

Petitioner appealed his conviction.

Id. at 247.

public defender, Petitioner filed an Anders brief.4

Through a

Ex. B.

The

state submitted a notice that it did not attend to file a brief.
Ex. C.

Through counsel, Petitioner filed an Initial Brief of

Appellant.

Ex. D.

The state filed an Answer Brief.

Ex. E.

On

March 5, 2013, the Fifth District Court of Appeal (5th DCA)
affirmed per curiam.
Ex. G.

The mandate issued on April 1, 2013.

Petitioner sought rehearing.

rehearing.

4

Ex. F.

Ex. H.

The 5th DCA denied

Ex. I.

Anders v. California, 386 U.S. 738 (1967).
- 7 -

On July 1, 2014, pursuant to the mailbox rule, Petitioner
filed a petition for writ of habeas corpus alleging ineffective
assistance of appellate counsel in the 5th DCA.
8, 2014, the 5th DCA denied the petition.

Ex. J.

On October

Ex. K.

On January 9, 2014, pursuant to the mailbox rule, Petitioner
filed a Motion for Postconviction Relief.
a response.

Ex. M.

The state filed

Petitioner filed an Amended Motion for

Postconviction Relief Rule 3.850.
Ex. O.

Ex. L.

Ex. N.

The state responded.

The trial court denied the amended motion.

Ex. P.

Petitioner appealed, and counsel filed an Anders brief.

Ex. R.

The state filed a notice that it would not file a brief.

Ex. S.

The 5th DCA, on August 11, 2015, per curiam affirmed.
mandate issued on September 4, 2015.
V.

Ex. T.

The

Ex. U.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.

Ground One

In his first ground of the Amended Petition, Petitioner claims
there was a violation of Brady principles through a discovery
violation, resulting in the deprivation of due process and equal
protection of the law.

Amended Petition at 5.

Respondents note

that this ground correlates with the first issue of Petitioner's
direct appeal. Response at 5. However, Respondents also note that
when the discovery violation issue was raised before the 5th DCA,
it was presented solely as a matter of state law.

Id.

Issue One, as presented on direct appeal, is: "[t]he trial
court erred by failing to conduct an adequate Richardson hearing
- 8 -

and finding no discovery violation."

Ex. D at ii.

Petitioner

claimed the trial court committed reversible error by failing to
conduct a complete Richardson5 hearing, and if that particular
argument was found to lack merit, he alternatively relied on a
claim of an abuse of discretion by the trial court for making a
factual finding without conducting a hearing.

Id. at 7, 10-11.

In order to exhaust a federal claim, such as a due process
claim under Brady, a petitioner is required to fairly present his
claim in each appropriate state court.6
27, 29 (2004).

Baldwin v. Reese, 541 U.S.

In this way, a petitioner must give the state an

opportunity to rule upon and correct violations of the petitioner's
federal rights.

Id.

Upon review of Issue One of the appeal brief, no mention is
made of Brady, the Due Process Clause or the Equal Protection
Clause.

Ex. D.

See Rimmer, 876 F.3d at 1054 (recognizing Brady

principles - principles of due process).

Due to the omission of

any mention of the federal nature of the claim, Petitioner failed

5

Richardson v. State, 246 So.2d 771, 775 (Fla. 1971) (finding
when a discovery violation occurs, the trial court must conduct an
adequate inquiry as to whether the violation was willful or
inadvertent; was substantial or trivial; and had a prejudicial
effect). See Delhall v. State, 95 So.3d 134, 160 (2012) (noting
that even if the appellate court finds an abuse of discretion by
the trial court, the next step is a harmless error analysis by the
reviewing court).
6

In order to give the state courts one full opportunity to
resolve a constitutional issue, a prisoner is required to invoke
one complete round of the state's established appellate review
process. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
- 9 -

to fairly present the federal claim so that the 5th DCA could
address it.
Upon review, Petitioner failed to exhaust his federal claim in
the state court system and the claim is procedurally defaulted. He
has not shown cause and prejudice or a fundamental miscarriage of
justice would result if the claim is not addressed on its merits.
Alternatively, the Court finds Petitioner presented to the
state courts a purely state law claim, not cognizable in this
habeas proceeding.

A claim that the trial court failed to conduct

a complete Richardson hearing or improperly made a factual finding
without a complete hearing warrants no habeas relief.
Indeed,
To the extent that Petitioner asserts that the
trial court erred by failing to conduct a
Richardson hearing, the claim lacks merit.
Federal habeas relief for a person in custody
pursuant to the judgment of a state court is
available only on the ground that the custody
violates the Constitution, laws, or treaties
of the United States. 28 U.S.C. § 2254(a);
Jones v. Goodwin, 982 F.2d 464, 471 (11th Cir.
1993); Krasnow v. Navarro, 909 F.2d 451, 452
(11th Cir. 1990). A state's interpretation of
its own laws or rules provides no basis for
federal habeas corpus relief because no
federal constitutional question is presented.
28 U.S.C. § 2254(a); Estelle v. McGuire, 502
U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385
(1991) ("[I]t is not the province of a federal
habeas
court
to
reexamine
state-court
determinations on state-law questions.").
Whether the trial court failed to conduct a
Richardson hearing is a matter of state law
and is not cognizable on federal habeas corpus
review.

- 10 -

Cisneros v. McNeil, No. 8:05CV762T27TGW, 2008 WL 1836368, at *5
(M.D. Fla. Apr. 23, 2008).
B.

Ground Two

In his second ground for habeas relief, Petitioner alleges the
use of prejudicial evidence at trial resulted in a deprivation of
due process and equal protection of the law.
10.

Amended Petition at

On direct appeal, Petitioner raised the issue of the trial

court's

error

in

admitting

hearsay

testimony,

claiming

the

testimony improperly bolstered the identification of the firearm.
Ex. D at ii.

Petitioner contended, "Det. Walker's testimony

improperly bolstered Shippers['] identification of the gun and
constituted prejudicial error necessitating reversal."7 Id. at 13.
Respondents not only assert that the claim is unexhausted and
procedurally

defaulted,

they

also

contend

that

the

claim

as

presented to the state courts was presented as a matter of state
law.

Response at 7.

The record shows that Petitioner did not

raise due process and equal protection claim in his appeal brief.
Ex. D.

Thus, he did not fairly present a federal claim to the

state courts.
It is a well-accepted axiom that a petition for writ of habeas
corpus should not be entertained unless the petitioner has first
7

Julie Walker, despite a hearsay objection, was allowed to
testify that Ms. Shippers "said that appeared to be the gun." Ex.
A, Trial Transcript at 289. After the objection was overruled, the
state inquired as to whether Ms. Shippers was able to recognize the
gun, and Deputy Walker responded: "[s]he said it appeared to be the
one that the suspect had." Id. at 290.
- 11 -

exhausted his state court remedies.

Castille v. Peoples, 489 U.S.

346, 349 (1989); Rose v. Lundy, 455 U.S. 509 (1982).

A procedural

default arises "when 'the petitioner fails to raise the [federal]
claim in state court and it is clear from state law that any future
attempts at exhaustion would be futile.'"

Owen v. Sec'y, Dep't of

Corr., 568 F.3d 894, 908 n.9 (11th Cir. 2009) (quoting Zeigler v.
Crosby, 345 F.3d 1300, 1304 (11th Cir. 2003)), cert. denied, 558
U.S. 1151 (2010).

Here, it is clear that any future attempts at

exhaustion would be futile.
There are, however, allowable exceptions to the procedural
default doctrine; "[a] prisoner may obtain federal review of a
defaulted claim by showing cause for the default and prejudice from
a violation of federal law."

Martinez v. Ryan, 566 U.S. 1, 10

(2012) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

If

cause is established, a petitioner is required to demonstrate
prejudice.

In order to demonstrate prejudice, a petitioner must

show "that there is at least a reasonable probability that the
result

of

the

proceeding

would

have

constitutional violation not occurred."

been

different

had

the

Owen, 568 F.3d at 908.

More particularly, to demonstrate cause, a petitioner must
show that some objective factor external to the defense impeded his
effort to properly raise the claim in state court.

Wright v.

Hopper, 169 F.3d 695, 703 (11th Cir.), cert. denied, 528 U.S. 934
(1999).

Rather than pointing to some factor external to the

defense, Petitioner asks this Court to overlook his failure to
- 12 -

exhaust this particular ground because he did not recognize there
was error of constitutional magnitude and "it would be fruitless to
attempt to present [the] issue to state courts now."8

Petition at

12.
Upon due consideration, Petitioner has failed to show cause.
Also

of

import,

he

injustice exceptions.

does

not

meet

the

prejudice

or

manifest

Although a petitioner may obtain review of

the merits of a procedurally barred claim if he satisfies the
actual innocence "gateway" established in Schlup v. Delo, 513 U.S.
298 (1995), Petitioner has not done so.

The gateway is meant to

prevent a constitutional error at trial from causing a miscarriage
of justice and "'the conviction of one who is actually innocent of
the crime.'" Kuenzel v. Comm'r, Ala. Dep't of Corr., 690 F.3d 1311,
1314 (11th Cir. 2012) (per curiam) (quoting Schlup, 513 U.S. at
324),

cert.

denied,

569

U.S.

1004

(2013).

The

fundamental

miscarriage of justice exception is only available in extraordinary
cases upon a showing of "'actual' innocence" rather than mere
"'legal' innocence."

Johnson v. Ala., 256 F.3d 1156, 1171 (11th

Cir. 2001) (citations omitted), cert. denied, 535 U.S. 926 (2002).
With respect to this unexhausted ground, Petitioner has failed to

8

Petitioner does not assert a claim of ineffective assistance
of appellate counsel as cause for his default. Even if he had,
based on a review of the record, Petitioner could not satisfy the
cause and prejudice test of Strickland v. Washington, 466 U.S. 668,
688 (1984).
See Ex. K (5th DCA order denying the petition
asserting the ineffective assistance of appellate counsel).
- 13 -

identify any fact warranting the application of the fundamental
miscarriage of justice exception.
In conclusion, the Court finds ground two is unexhausted and
procedurally defaulted.

As Petitioner has failed to establish

cause and prejudice or any factors warranting the application of
the fundamental miscarriage of justice exception to overcome the
default, this ground is due to be denied as procedurally barred.
In the alternative, Respondents contend that Petitioner has
simply presented a state law claim, couched in terms of due process
and equal protection of the law.

Response at 7.

In this regard,

Respondents argue that there is no basis for federal relief because
the question as to whether or not a statement is hearsay is a
matter of state law.

Response at 7.

When something is a matter of

state law, it necessarily involves statutory interpretation of a
state law by state courts.

In this particular instance, the

question before the trial court was whether the statements at issue
constituted hearsay under Fla. Stat. § 90.801.
Since it is not the province of a this Court to reexamine
state-court determinations on issues of state law.

See Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991), this Court must refrain from
addressing this state law claim.

"This limitation on federal

habeas review is of equal force when a petition, which actually
involves state law issues, is 'couched in terms of equal protection
and due process.'" Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir.
1988) (quoting Willeford v. Estelle, 538 F.2d 1194, 1198 (5th Cir.
- 14 -

1976)).
Florida

The federal habeas corpus court will be bound by the
court's

interpretation

of

its

own

laws

unless

that

interpretation breaches a federal constitutional mandate. McCoy v.
Newsome, 953 F.2d 1252, 1264 (11th Cir. 1992) (per curiam), cert.
denied, 504 U.S. 944 (1992).

There has been no breach of a federal

constitutional mandate in the instant case; therefore, this Court
is bound by the Florida court's interpretation of its own law on
hearsay.
Finally, Petitioner, in his Reply, seeks a stay and abeyance
to allow him to make a proper exhaustion attempt with respect to
ground two of the Amended Petition.

Reply at 3.

See Rhines v.

Weber, 544 U.S. 269 (2005). It is clear that "[d]istrict courts do
ordinarily have authority to issue stays, see Landis v. North
American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936),
where such a stay would be a proper exercise of discretion, see
Clinton v. Jones, 520 U.S. 681, 706, 117 S.Ct. 1636, 137 L.Ed.2d
945 (1997)."

Rhines, 544 U.S. at 276.

But, the enactment of the

AEDPA has changed the landscape of habeas corpus with its "goal of
streamlining federal habeas proceedings." Rhines, 544 U.S. at 277.
As a result, "stay and abeyance should be available only in limited
circumstances."

Id. (emphasis added).

The limited circumstances are as follows:
A district court should grant a stay and
abeyance if (1) the petitioner had "good
cause" for failing to exhaust the claims in
state court; (2) the unexhausted claims are
"potentially meritorious;" and (3) "there is
- 15 -

no indication that the petitioner engaged in
intentionally dilatory litigation tactics."
Id.
Thomspon v. Sec'y for Dep't of Corr., 425 F.3d 1364, 1366 (11th
Cir. 2005) (per curiam) (citing Rhines, 125 S.Ct. at 1535).
Since Petitioner does not meet the first requirement of good
cause for failing to exhaust the claims in state court, he has
failed to show that he is entitled to a stay and abeyance under the
limited circumstances outlined above.
shown

that

meritorious.

the

unexhausted

Furthermore, he has not

federal

claim

is

potentially

As noted by Respondents, the highlighted cumulative

testimony by Julie Walker was harmless as it was cumulative to
properly admitted evidence.

Response at 7; Ex. E at 17.

The trial

record demonstrates that Ms. Shippers had already described and
identified the firearm, and Deputy Walker had already testified
about Ms. Shippers' description of the gun and their finding it.
Thus, the Court finds that stay and abeyance is inappropriate.
C.

Ground Three

In his third and final ground for habeas relief, Petitioner
raises a claim of ineffective assistance of trial counsel for
misadvising Petitioner to reject the state's plea offer and rely on
a motion to dismiss to obtain relief.
order

to

prevail

on

a

Sixth

Amended Petition at 12.

Amendment

claim

of

In

ineffective

assistance of trial counsel, Petitioner must satisfy the twopronged test set forth in Strickland v. Washington, 466 U.S. 668,
688 (1984), requiring that he show both deficient performance
- 16 -

(counsel's representation fell below an objective standard of
reasonableness) and prejudice (there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different).

The Eleventh Circuit, in

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

a

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

that

guaranteed

counsel

the

was

defendant

importance,

with

regard

requirement,

the

Eleventh

not

functioning

by

the

to

the

Circuit

Sixth

as

the

'counsel'

Amendment."

establishment
stated

that

of
the

Also

of

prejudice
reasonable

probability of a different result must be "a probability sufficient
to undermine confidence in the outcome.

Id. (quoting Strickland,

466 U.S. at 694).
Notably, the trial court, in denying the Rule 3.850 motion,
referenced the applicable two-pronged Strickland standard as a
preface to addressing Petitioner's claims of ineffective assistance
of counsel.

Ex. P at 1-2.

In order to show a violation of the

Sixth Amendment, both parts of the test must be satisfied.

Bester

v. Warden, Att'y Gen. of the State of Ala., 836 F.3d 1331, 1337
(11th Cir. 2016) (citing Holladay v. Haley, 209 F.3d 1243, 1248
(11th Cir. 2000)), cert. denied, 137 S.C. 819 (2017). A court need
only address one prong, and if it is found unsatisfied, the court
need not address the other.

Id.

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Respondents, in their Response, refer to ground one of the
amended

Rule

3.850

motion,

noting

it

generally

presents

pertinent claim of ineffective assistance of counsel.
8.

the

Response at

The trial court succinctly described Petitioner's claim:
[T]he Defendant claims that Trial Counsel
waived his opportunity for a plea offer from
the State when he commenced a hearing for a
Motion to Dismiss, based on the Information
being filed without a sworn statement from a
material witness. The Defendant claims that
he would not have agreed to commence the
hearing, knowing the State would make no
offers once the hearing commenced, and that he
would have taken an agreed upon plea to a
lesser charge, thus receiving less time in
DOC.
The Defendant contends that Trial
Counsel did not properly research the issue
raised for dismissal and used inadequate case
law.

Ex. P at 2.
In denying this ground, the trial court found the record
clearly refutes Petitioner's claim.

Id.

The court noted that

defense counsel relied on the ruling in State v. Weinberg, 780
So.2d 214 (Fla. 5th DCA) to make his case that the detective's
swearing under oath was insufficient because he was not a material
witness.

Ex. P at 2.

After hearing argument, the court found

Weinberg distinguishable, concluding that Detective Sander became
a material witness when he took sworn statements, examined a gun,
and looked at the scene.

Id. at 3.

In coming to this conclusion,

the court considered defense counsel's actions within the broad
range of reasonably competent counsel under prevailing professional
norms.

Id.

To his credit, the court found counsel's argument in
- 18 -

support of his motion both compelling and competent, but in this
instance, the court decided that the detective had done enough to
be considered to be a material witness.
The record shows the following.

Id.
Defense counsel filed a

motion to dismiss on March 23, 2011, asserting Detective Sanders
was not a material witness to the offense since he was an simply an
investigator.
day,

"the

Ex. A at 15.

last

date

that

The court scheduled a last chance plea
the

Court

negotiated pleas," for August 1, 2011.

will

agree

Id. at 41.

to

consider

The proceeding

on the motion to dismiss took place on June 24, 2011.

Id., Motion

to Dismiss Transcript. Petitioner was present. Id. At the outset
of the proceeding, defense counsel announced:
Your Honor, the State Attorney, Ms.
Opsahl, has just indicated to me that if we
proceed with this motion to dismiss, that the
State would not be prepared or would not make
any plea offers whatsoever. My client did not
know anything about that until just probably
two or three minutes ago.
Id. at 4.
After hearing this ultimatum from the state and talking to the
filer of the information, Assistant State Attorney Raymond A.
David, Jr., defense counsel asked the court for additional time to
confer with his client about the decision to pursue the motion.
Id. at 5, 8.

The court granted defense counsel an opportunity to

confer with his client.

Id. at 9.

Defense counsel returned after

a brief recess, announced that his client was prepared to go
forward with the hearing and understood that the state will not
- 19 -

make any plea offers.

Id. at 10.

After hearing testimony and

argument, the court denied the motion.

Id. at 40-41.

The Court finds glaring weaknesses in Petitioner's claim of
ineffectiveness.

Although he alleges that the prosecutor had

placed a plea offer on the table, the number of years is blank.
Amended Petition at 12.

Apparently, there was never a plea offer.

In the State's Response to Defendant's Motion for Post-Conviction
Relief, it is noted: "[t]here was no plea offer made prior to or at
the hearing on a motion to dismiss."

Ex. M.

As thoroughly

discussed, there was certainly not one made after the hearing on
the motion to dismiss.
Although Petitioner claims his counsel performed deficiently,
the record demonstrates otherwise.

Significantly, Petitioner had

the benefit of experienced counsel: "[w]hen courts are examining
the performance of an experienced trial counsel, the presumption
that his conduct was reasonable is even stronger."

Cummings v.

Sec'y for Dep't of Corr., 588 F.3d 1331, 1364 (11th Cir. 2009)
(quoting Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir.
2000)), cert. denied, 562 U.S. 872 (2010).

The trial court

described defense counsel as "learned on cross-examination[.]" Ex.
A, Trial Transcript at 230.

Moreover, the judge praised the

lawyers: "I appreciate the collegiality, the preparedness, and the
high level of professionalism from both of you.
well-tried case."

Id. at 655-56.

- 20 -

It was a very

Of

importance,

all

that

is

constitutionally

required

is

reasonably effective counsel, not perfect or error-free counsel.
"Strickland does not guarantee perfect representation, only a
'reasonably

competent

attorney.'"

Richter,

562

U.S.

at

110

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

As such, Petitioner received effective

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

U.S.

at

110.

Again,

perfection

is

not

the

Richter,
standard.

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

He has not shown that his attorney's

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

Id.

at 104 (citation omitted).
In denying this ground of the amended Rule 3.850 motion, the
trial court concluded that counsel's performance was not deficient
under Strickland, and denied post conviction relief.
5th DCA affirmed.

Ex. T.

Ex. P.

The

Its adjudication on the merits is

unaccompanied by an explanation. Thus, the Court presumes that the
5th DCA adjudicated the claim on its merits, as there is an absence
- 21 -

of

any

indication

contrary.

or

state-law

procedural

principles

to

the

Now it is Petitioner's burden to show there was no

reasonable basis for the state court to deny relief.

If he fails

to accomplish this task, he cannot prevail on ground three of the
Petition.
Upon review, there is a reasonable basis for the state court
to deny relief; therefore, the denial must be given deference.

In

this instance, deference under AEDPA should be given to the last
adjudication on the merits provided by the 5th DCA.

Given due

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

The state court's

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

of

Strickland,

determination of the facts.

or

based

on

an

unreasonable

As such, ground three is due to be

denied.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.

The Amended Petition (Doc. 4) is DENIED, and this action

is DISMISSED WITH PREJUDICE.
2.

The Clerk of the Court shall enter judgment accordingly

and close this case.

- 22 -

3.

If Petitioner appeals the denial of his Amended Petition,

the Court denies a certificate of appealability.9

Because this

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

Such termination shall serve as a denial of

the motion.
DONE AND ORDERED at Jacksonville, Florida, this 12th day of
February, 2018.

sa 2/6
c:
Eric Cohens
Counsel of Record

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.
- 23 -