Flowers v. Jones et al
Filing
38
ORDER denying 13 the second 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 8/9/2019. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MICHAEL L. FLOWERS,
Petitioner,
vs.
Case No. 3:16-cv-539-J-39JRK
SECRETARY, DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
I.
INTRODUCTION
Petitioner Michael L. Flowers, an inmate of the Florida penal
system proceeding pro se, challenges his state court (Duval County)
conviction for two counts of aggravated battery through a Second
Amended Petition for writ of habeas corpus (Petition) (Doc. 13)
pursuant to 28 U.S.C. § 2254.
He is serving a term of life
imprisonment on count one and a concurrent term of twenty years in
prison on count two.
Petition at 1.
Respondents filed an Answer
to Petition for Writ of Habeas Corpus (Response) (Doc. 32).1
Thereafter, Petitioner filed a Reply to Respondents' Answer to
1
The Court hereinafter refers to the exhibits to the Appendix
(Doc. 14) 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.
Petitioner's Petition for Writ of Habeas Corpus (Reply) (Doc. 37).
The Petition is timely filed.
II.
See Response at 16-19.
EVIDENTIARY HEARING
The pertinent facts are fully developed in this record or the
record otherwise precludes habeas relief; therefore, the Court is
able to "adequately assess [Petitioner's] claim[s] without further
factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th
Cir. 2003), cert. denied, 541 U.S. 1034 (2004).
As the record
refutes the asserted factual allegations or otherwise precludes
habeas relief, the Court finds Petitioner is not entitled to an
Schriro v. Landrigan, 550 U.S. 465, 474
evidentiary hearing.
(2007).
Petitioner has not met his burden of demonstrating a need
for an evidentiary hearing.
See Chavez v. Sec'y, Fla. Dep't of
Corr., 647 F.3d 1057, 1060 (11th Cir. 2011) (opining a petitioner
bears the burden of establishing the need for an evidentiary
hearing with more than speculative and inconcrete claims of need),
cert. denied, 565 U.S. 1120 (2012).
III.
CLAIMS OF PETITION
In his Petition, Petitioner raises fourteen grounds seeking
post conviction relief.
assistance
of
trial
He primarily raises claims of ineffective
counsel,
but
also
raises
ineffective assistance of appellate counsel.
two
claims
of
The fourteen grounds
are: (1) the ineffective assistance of trial counsel by opening the
door to prejudicial evidence of Petitioner's post-arrest silence
- 2 -
and
post-Miranda
invocation
of
right
to
counsel;
(2)
the
ineffective assistance of trial counsel for failure to adequately
prepare for the state's impeachment of Shantell Smith regarding
delay in coming forward with alibi information; (3) the ineffective
assistance
of
trial
counsel
for
failure
to
object
to
the
prosecutor's closing argument with regard to excessive comments on
Petitioner's post-arrest silence and post-Miranda invocation of
right to counsel; (4) the ineffective assistance of trial counsel
for failure to object to the trial court's handling of a jury
question and refusal to read-back Jerry Strickland's testimony; (5)
the ineffective assistance of appellate counsel for failure to
raise on appeal the trial court's error in denying the motion to
dismiss information; (6) the ineffective assistance of appellate
counsel for failure to timely raise a sentencing issue on appeal;
(7) the ineffective assistance of trial counsel for failure to call
Sgt. Butler as a defense witness; (8) the ineffective assistance of
counsel
for
failure
to
request
a
cautionary
instruction
on
reliability of identification; (9) the ineffective assistance of
counsel for failure to file a motion to suppress Petitioner's
identification based on an impermissibly suggestive photo line-up;
(10)
the
ineffective
assistance
of
counsel
for
failure
to
investigate and introduce reverse Williams' rule evidence; (11) the
ineffective
assistance
prosecutorial
of
misconduct
counsel
during
- 3 -
for
failure
closing
to
argument;
object
to
(12)
the
ineffective assistance of trial counsel for failure to obtain
Petitioner's phone records and present the records at trial to
support the alibi defense; (13) the ineffective assistance of
counsel for failure to object to a sleeping juror, Ms. Batton; and
(14) the cumulative effect of trial counsel's errors rendered
counsel's assistance ineffective and deprived Petitioner of a fair
trial. In each ground, Petitioner claims deprivations of his Sixth
and Fourteenth Amendment rights.
IV.
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.
This statute "imposes important limitations on
the power of federal courts to overturn the judgments of state
courts in criminal cases."
(2019) (per curiam).
Shoop v. Hill, 139 S.Ct. 504, 506
The AEDPA statute:
"respects the authority
and ability of state courts and their dedication to the protection
of constitutional rights."
Id.
Therefore, "[u]nder AEDPA, error
is not enough; even clear error is not enough."
Meders v. Warden,
Ga. Diagnostic Prison, 911 F.3d 1335, 1349 (11th Cir. 2019) (citing
Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017) (per curiam)).
Applying the statute as amended by AEDPA, federal courts may
not grant habeas relief unless one of the claims: "(1)'was contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
- 4 -
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)." Nance v. Warden, Ga. Diagnostic
Prison, 922 F.3d 1298, 1300-1301 (11th Cir. 2019).
Thus, in order to obtain habeas relief, the state court
decision must unquestionably conflict with Supreme Court precedent.
Harrington v. Richter, 562 U.S. 86, 102 (2011).
If some fair-
minded jurists could agree with the lower court's decision, habeas
relief must be denied.
Meders, 911 F.3d at 1351.
As noted in
Richter, unless the petitioner shows the state court's ruling was
so lacking in justification that there was error well understood
and comprehended in existing law beyond any possibility for fairminded disagreement, there is no entitlement to habeas relief.
Burt v. Titlow, 571 U.S. 12, 19-20 (2013).
In undertaking its review, this Court is not obliged "to
flyspeck the state court order or grade it."
1349.
Meders, 911 F.3d at
Indeed, specificity and thoroughness of the state court
decision is not required; even if the state court fails to provide
rationale
or
reasoning,
AEDPA
deference
is
due
"absent
conspicuous misapplication of Supreme Court precedent."
a
Id. at
1350 (citation and quotation marks omitted).
Of importance, a state court's finding of fact, whether a
state trial court or appellate court, is entitled to a presumption
of correctness under 28 U.S.C. § 2254(e)(1). But, this presumption
- 5 -
of
correctness
applies
only
to
determinations of law and fact.
findings
of
fact,
not
mixed
Brannan v. GDCP Warden, 541 F.
App'x 901, 903-904 (11th Cir. 2013) (per curiam) (recognizing the
distinction between a pure question of fact from a mixed question
of law and fact), cert. denied, 573 U.S. 906 (2014).
Where
rejecting
there
a
has
federal
been
claim
one
reasoned
followed
by
state
an
court
judgment
unexplained
order
upholding that judgement, federal habeas courts employ a "look
through" presumption: "the federal court should 'look through' the
unexplained decision to the last related state-court decision that
does provide a relevant rationale. It should then presume that the
unexplained decision adopted the same reasoning."
Wilson v.
Sellers, 138 S.Ct. 1188, 1192 (2018) (Wilson).
Once a claim is adjudicated in state court and a prisoner
seeks relief in the federal court system, AEDPA's formidable
barrier to habeas relief comes into play, and it is very difficult
for a petitioner to prevail under this stringent standard.
As
such, state-court judgments will not easily be set aside once the
Court
employs
this
highly
deferential
intentionally difficult to meet.
standard
that
is
See Richter, 562 U.S. at 102.
Although AEDPA does not impose a complete bar to issuing a writ, it
severely limits those occasions to those "where there is no
possibility
fairminded
jurists
could
disagree
that
the
court's decision conflicts" with Supreme Court precedent.
state
Id.
In
sum, application of the standard set forth in 28 U.S.C. § 2254(d)
- 6 -
ensures that habeas corpus is a guard against extreme malfunctions
in the state criminal justice systems, and not a mechanism for
ordinary error correction.
Richter, 562 U.S. at 102-103 (citation
and quotation marks omitted).
V.
INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner raises numerous claims of ineffective assistance of
counsel. To prevail on his Sixth Amendment claims, Petitioner must
satisfy the two-pronged test set forth in Strickland v. Washington,
466 U.S. 668, 688 (1984), requiring that he show both deficient
performance (counsel's representation fell below an objective
standard of reasonableness) and prejudice (there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different).
See Brewster
v. Hetzel, 913 F.3d 1042, 1051-52 (11th Cir. 2019) (reviewing court
may begin with either component).
In order to obtain habeas relief, a counsel's errors must be
so great that they actually adversely effect the defense. In order
to satisfy this prejudice prong, the reasonable probability of a
different result must be "a probability sufficient to undermine
confidence in the outcome."
Strickland, 466 U.S. at 694.
The standard created by Strickland is a highly deferential
standard,
decisions.
requiring
a
most
deferential
Richter, 562 U.S. at 105.
review
of
counsel's
Not only is there the
"Strickland mandated one layer of deference to the decisions of
trial counsel[,]" there is the added layer of deference required by
- 7 -
AEDPA: the one to a state court's decision.
1303.
Nance, 922 F.3d at
Thus,
Given the double deference due, it is 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." Johnson v. Sec'y,
DOC, 643 F.3d 907, 911 (11th Cir. 2011). And,
for the reasons we have already discussed, it
is rarer still for merit to be found in a
claim that challenges a strategic decision of
counsel.
Nance, 922 F.3d at 1303.
VI.
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
The two-part Strickland standard is applicable to this claim.
Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016).
The
Eleventh Circuit describes Strickland's governance of this type of
claim:
To prevail on a claim of ineffective
assistance of appellate counsel, a habeas
petitioner must establish that his counsel's
performance was deficient and that the
deficient performance prejudiced his defense.
See Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
(1984); Brooks v. Comm'r, Ala. Dep't of Corr.,
719 F.3d 1292, 1300 (11th Cir. 2013) ("Claims
of ineffective assistance of appellate counsel
are governed by the same standards applied to
trial counsel under Strickland.") (quotation
marks
omitted).
Under
the
deficient
performance prong, the petitioner "must show
that counsel's representation fell below an
objective
standard
of
reasonableness."
Strickland, 466 U.S. at 688, 104 S.Ct. at
2064.
Rambaran v. Sec'y, Dep't of Corr., 821 F.3d 1325, 1331 (11th Cir.
2016), cert. denied, 137 S.Ct. 505 (2016).
- 8 -
As with a claim of ineffective assistance of trial counsel,
the combination of Strickland and § 2254(d) requires a doubly
deferential review of a state court decision.
U.S. at 105.
See Richter, 562
When considering deficient performance by appellate
counsel,
a court must presume counsel's performance was
"within
the
wide
range
of
reasonable
professional assistance." Id.[2] 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").
Overstreet, 811 F.3d at 1287; see also Owen v. Sec'y, Dep't of
Corr., 568 F.3d 894, 915 (11th Cir. 2009) (footnote omitted) (since
the underlying claims lack merit, "any deficiencies of counsel in
failing to raise or adequately pursue [meritless issues on appeal]
cannot
constitute
ineffective
assistance
of
counsel"),
cert.
denied, 558 U.S. 1151 (2010).
To satisfy the prejudice prong, a petitioner must show "but
for the deficient performance, the outcome of the appeal would have
2
Strickland, 466 U.S. at 689.
- 9 -
been different." Black v. United States, 373 F.3d 1140, 1142 (11th
Cir. 2004) (citations omitted), cert. denied, 543 U.S. 1080 (2005);
see Philmore v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir. 2009)
(per curiam) ("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), cert. denied, 559 U.S. 1010 (2010).
VII.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
In
his
first
Ground One
ground,
Petitioner
claims
the
ineffective
assistance of trial counsel by opening the door to prejudicial
evidence of Petitioner's post-arrest silence and post-Miranda
invocation of right to counsel.
Petition at 5.
Petitioner raised
a similar claim in his September 5, 2013 Amended Motion for
Postconviction Relief (Rule 3.850 motion). Ex. GGG at 707-15. The
circuit court denied the motion.
Id. at 1249-1403.
In its order,
the circuit court incorporated the arguments set forth in the
state's
response,
and
attached
and
incorporated
the
same
attachments attached to and referenced in the state's response.
Id. at 1249-50.
See id. at 1092-1243.
In denying relief, the circuit court found Petitioner failed
to establish either ineffectiveness or resulting prejudice. Id. at
1249.
The court held:
the
In its response to defendant's motion,
State of Florida addressed each of
- 10 -
defendant's eight separate grounds stated in
his motion for post-conviction relief.
The
Court has carefully reviewed defendant's
motion and the State's response. Having done
so, the Court concludes that the State has
demonstrated, by its legal argument and
references to attachments from the record of
the case, that the record conclusively refutes
defendant's arguments that he is entitled to
post-conviction relief. Specifically, as to
each ground defendant raised in support of his
motion, the record conclusively demonstrates
that defendant did not receive ineffective
assistance of counsel and that defendant did
not suffer prejudice resulting from the
actions of his trial counsel that were alleged
by defendant to be ineffective. When viewed
in the context of the entire trial transcript,
each of the allegedly deficient acts by trial
counsel appears reasonably calculated to
advance a legitimate interest of Defendant or
not to have resulted in any prejudice to
Defendant.
Id. (emphasis added).
Petitioner exhausted this ground by appealing its denial to
the First District Court of Appeal 1st DCA (1st DCA).
1405.
Id. at 1404-
On February 12, 2016, the 1st DCA affirmed per curiam
without explanation.
Ex. JJJ.
The mandate issued March 9, 2016.
Ex. KKK. This affirmance is an adjudication on the merits entitled
to AEDPA deference.
This Court will employ the "look through"
presumption; the Court will "look through" the unexplained decision
to the last related state court decision that provides relevant
rationale (the circuit court's decision denying post conviction
relief) and will presume the unexplained 1st DCA decision adopted
the same reasoning as the circuit court.
- 11 -
Wilson.
Notably, in its response to the Rule 3.850 motion, the state
appropriately referenced the Strickland standard, addressed the
claim, and attached relevant portions of the record.
1092-99.
Ex. GGG at
The Court is convinced that fairminded jurists could
agree with the circuit court's decision.
Thus, the trial court's
ruling incorporating the state's response and affirmed by the 1st
DCA
is
entitled
to
AEDPA
deference.
The
decision
is
not
inconsistent with Supreme Court precedent, and the state court's
adjudication of this claim is not contrary to or an unreasonable
application
of
Strickland,
determination of the facts.
or
based
on
an
unreasonable
Thus, AEDPA deference is due, and
Petitioner is not entitled to relief on ground one.
Upon review, Petitioner failed to overcome the presumption
that counsel's performance fell within the wide range of reasonably
professional assistance.
The record demonstrates, initially, the
defense called Shantell Smith out of order.
Ex. C at 449.
Ms.
Smith testified that upon Petitioner's arrest,3 Ms. Smith spoke to
the police, as she was in Petitioner's sister's apartment when
Petitioner was arrested.
Id. at 456.
Ms. Smith said the police
asked for her driver's license, which she provided.
Id.
Thus,
based on her testimony, the police were advised of her identity on
the date of Petitioner's arrest and the police also knew where
Petitioner's sister lived.
3
2004.
Ms. Smith testified she asked the
The record shows Petitioner was arrested on February 19,
Ex. A, Arrest and Booking Report.
- 12 -
police questions, but the police never came back and questioned
her.
Id.
On cross examination, the state asked whether Ms. Smith had
called the police with information concerning the alibi defense.
Id. at 465. Ms. Smith said she called Petitioner's lawyer, but she
also said she did not call the police because the police had
already been informed that Petitioner was with her at the time of
the offense.
Id. at 465-66.
Additionally on cross examination,
Ms. Smith testified:
Yes.
Well see, my instinct was he
informed the detectives that he was with me.
Their job was to get in contact with me. When
they didn't get in contact with me I got in
contact with his lawyer and told his lawyer
about the situation. And she, I thought that
she was going to take it upon herself to find
out why they didn't contact me. But I thought
they had that information already.
Id. at 467.
On re-direct, when asked if she remembered contacting Miss
Limoge, defense counsel, Ms. Smith said she contacted Miss Limoge
when she found out she was going to be Petitioner's defender.
Id.
at 470. Ms. Smith explained that she contacted Miss Limoge because
no one, meaning no detectives, had tried to get in contact with her
to obtain any information.
Id.
The state called Officer Robert Monroe. Id. at 473. On cross
examination, he testified that during the investigation, he did not
know a Ms. Smith and never made any attempt to contact her.
526-27.
Id. at
Thereafter, the state offered to allow questioning in
- 13 -
regards to the interview of Petitioner, as long as Petitioner
stipulated to the statement being freely and voluntarily made by
him after the reading of his constitutional rights. Id. at 530-31.
Ms. Limoge asked to confer with Petitioner.
Id. at 531.
After a
conference, Ms. Limoge said the defense would stipulate to the
voluntariness.
Id.
The court made further inquiry, asking
Petitioner if he agreed with the stipulation.
Petitioner responded in the affirmative.
Id. at 531-33.
Id. at 532.
After
providing further explanation, the court asked Petitioner whether
he agreed to the stipulation, and he confirmed that he was in
agreement and he wanted counsel to agree to the stipulation.
Id.
at 532-33.
Based upon the stipulation, the following occurred.
Monroe
attested
that
after
Petitioner
was
advised
Officer
of
his
constitutional rights and acknowledged he understood his rights, he
told the detectives he was aware of the incident but he was not
there,
and
during
girlfriend's house.
the
time
of
Id. at 539.
the
incident
he
was
at
his
Petitioner also told the police
it must be a case of mistaken identity.
Id.
Petitioner clarified
that he had knowledge of the incident because he had received a
phone call and was told two guys jumped another guy.
Id. at 540.
Petitioner repeated that he was with his girlfriend and it was a
case of mistaken identity. Id. Petitioner concluded his statement
by saying that if the detectives had further questions, they would
have to ask Petitioner's attorney.
- 14 -
Id.
Officer
Monroe
admitted
he
did
not
follow-up
on
the
girlfriend, nor did he attempt to contact any of Petitioner's
family members, although Officer Monroe stated he was partly
responsible for the investigation in conjunction with the homicide
unit.
Id. at 541.
When asked if it was the responsibility of the
citizen to contact the police to help conduct an investigation, Mr.
Monroe responded no.
Id.
Officer Monroe said he did interview Petitioner in June and
Petitioner agreed to talk to him, and Petitioner told the officer
his girlfriend's name was Shantell Smith, but again, Officer Monroe
did not follow-up on the information.
Id. at 542.
On re-direct,
the state asked what happens when an individual asks for an
attorney, and Officer Monroe responded the interview is concluded.
Id. at 555-56.
On re-cross examination, Officer Monroe was again
asked if Petitioner mentioned Shantell Smith on June 26, 2004, and
Officer Monroe responded that Petitioner said he may have been with
his girlfriend Shantell Smith.
Id. at 566.
Officer Monroe stated
he never made any attempt to contact Shantell Smith.
Id. at 567.
After review of the video of the interview, Officer Monroe admitted
that Petitioner said he was at Shantell Smith's house on Dunn
Avenue during the time of the incident, not that he may have been
with his girlfriend.
Id. at 578.
The Court is not convinced defense counsel's performance fell
below an objective standard of reasonableness "by opening the door"
to evidence of post-arrest silence and post-Miranda invocation of
- 15 -
right to counsel.
Defense counsel's actions were well within the
scope of permissible performance. She laid the foundation with Ms.
Smith by asking if she were present at the time of Petitioner's
arrest and eliciting testimony about providing identification, a
driver's license, which would necessarily include an address. Also
of import, although Officer Monroe said he did not know who Ms.
Smith was, he later admitted that Petitioner told him during an
interview that Petitioner's girlfriend's name was Shantell Smith.
Significantly, when the state attempted to discredit Ms. Smith's
alibi testimony, defense counsel asked Officer Monroe if it were a
citizen's responsibility to contact the police to help conduct an
investigation, and Officer Monroe responded in the negative, after
admitting that he never followed-up by reaching out to Ms. Smith
during the investigation.
With respect to the stipulation to allow questioning in
regards to the initial interview of Petitioner, the record is clear
that defense counsel conferred with Petitioner about the proposed
agreement before accepting the agreement, the court explained the
agreement and asked Petitioner several times if he agreed with the
stipulation, and ultimately, Petitioner decided to accept the
agreement
and
enter
into
the
stipulation.
Indeed,
with
Petitioner's consent and agreement, defense counsel decided to put
Petitioner's statement into evidence although it allowed the jury
to
learn
of
his
request
for
counsel
during
the
initial
interrogation because it was necessary to corroborate Ms. Smith's
- 16 -
testimony that the alibi was not a recent fabrication since
Petitioner promptly told the detectives he was at his girlfriend's
house in the initial interview.
"The standard for effective assistance is reasonableness, not
perfection."
Brewster, 913 F.3d at 1056 (citations omitted).
Petitioner has failed to establish that no competent counsel would
have taken the steps counsel did in this trial.
Petitioner
failed
to
carry
his
burden
of
showing
that
counsel's representation fell outside the wide range of reasonably
professional assistance.
Even assuming deficient performance by
counsel, Petitioner has not shown resulting prejudice.
There is
not a reasonable probability that the outcome of the case would
have
been
different
if
trial
suggested by Petitioner.
counsel
had
taken
the
actions
Defense counsel's performance did not
fall below an objective standard of reasonableness prejudicing the
defense.
As such, ground one is due to be denied.
B.
Ground Two
In his second ground, Petitioner raises a claim of the
ineffective assistance of trial counsel for failure to adequately
prepare for the state's impeachment of Shantell Smith regarding
delay in coming forward with alibi information.
Petition at 8.
Petitioner raised this issue in the second ground of his Rule 3.850
motion.
Ex. GGG at 716-20.
at 1249-50.
The circuit court denied relief.
The 1st DCA per curiam affirmed.
- 17 -
Ex. JJJ.
Id.
The
circuit
court,
in
addressing
Petitioner's
claims
of
ineffective assistance of counsel, adopted the state's response,
which set forth the two-pronged Strickland standard of review for
the claims grounded in the Sixth Amendment.
Ex. GGG at 1249-50.
Finding no deficient performance or prejudice, the circuit court
denied relief.
Id.
The record demonstrates defense counsel made a concerted
effort to diminish the impact of the state's cross examination of
Ms. Smith. As noted under ground one, the defense decided to enter
into a stipulation in order to counter the state's contention of
recent fabrication.
As the trial court stated, it is a common
question to ask an alibi witness if the witness ever tried to
contact the police.
Ex. C at 692.
In this instance, Ms. Smith had
contacted defense counsel, not the police.
Thus, the trial court
concluded that what Ms. Smith told defense counsel was irrelevant
to the state's impeachment.
Id.
As such, Petitioner failed to
demonstrate prejudice, because even if his attorney had testified
herself or called someone from her office to testify, it would not
have affected the impact of the state's cross examination of Ms.
Smith; therefore, it would not have resulted in a different
outcome.
Consequently, there was no deficient performance.
Moreover, the trial record demonstrates Petitioner's attorney
adequately prepared Ms. Smith for impeachment. Ms. Smith testified
she thought the police had been informed that Petitioner was with
- 18 -
her at the time of the offense.4
Furthermore, Ms. Smith testified
she believed it was part of the detectives's job to contact her and
obtain relevant information.
She also expressed her concern when
the detectives did not contact her.
Finally, she testified that
she took it upon herself to contact defense counsel as soon as she
found out the identity of counsel, noting that no detectives had
contacted her.
The 1st DCA per curiam affirmed the circuit court's decision.
Ex. JJJ.
This decision is an adjudication on the merits and is
entitled to deference under 28 U.S.C. § 2254(d). Applying Wilson's
look-through presumption, the rejection of the claim of ineffective
assistance of counsel for failure to adequately prepare Ms. Smith
for the state's impeachment was based on a reasonable determination
of the facts and a reasonable application of Strickland.
The 1st DCA's decision is not inconsistent with Supreme Court
precedent, and the state court's adjudication of this claim is not
contrary to or an unreasonable application of Strickland, or based
on an unreasonable determination of the facts.
When considering
the claim of ineffective assistance of counsel, this Court must try
to eliminate the distorting effects of hindsight, as counseled to
do so in Strickland, 466 U.S. at 689.
4
Of note, defense counsel and Petitioner decided to enter
into the stipulation because the state agreed to the admission of
hearsay testimony that Petitioner promptly told the police, upon
his arrest, that he was at his girlfriend's house and Petitioner
thought his being named as the perpetrator was a case of mistaken
identity.
- 19 -
The Court recognizes, "[t]here are countless ways to provide
effective assistance in any given case."
Id.
The trial court
found neither deficient performance or prejudice.
As stated
previously, AEDPA deference is warranted. The record shows the 1st
DCA affirmed the decision of the trial court in denying this
ground,
and
this
Court
will
presume
that
the
state
court
adjudicated the claim on its merits, as there is an absence of any
indication or state-law procedural principles to the contrary.
Since the last adjudication on the merits is unaccompanied by an
explanation, it is Petitioner's burden to show there was no
reasonable basis for the state court to deny relief. He has failed
to do so.
The Court concludes that the state court's adjudication
of this claim is not contrary to or an unreasonable application of
Strickland, or based on an unreasonable determination of the facts.
Based on the above, Petitioner is not entitled to habeas relief on
ground two.
C.
Ground Three
In his third ground for relief, Petitioner raises a claim of
ineffective assistance of trial counsel for failure to object to
the prosecutor's closing argument with regard to excessive comments
on Petitioner's post-arrest silence and post-Miranda invocation of
right to counsel. Petition at 10. Petitioner raised this claim in
ground three of his Rule 3.850 motion.
Ex. GGG at 721-22.
The
circuit court denied post conviction relief on this ground. Id. at
- 20 -
1249-50. Petitioner appealed the denial of his post conviction
motion, and the 1st DCA per curiam affirmed.
Ex. JJJ.
In their Response, Respondents identify the relevant trial
testimony of Officer Monroe and the prosecutor's comments at issue.
Response at 53-55.
It will not be reiterated in full; however, a
brief summary is edifying.
interviewed by detectives.
Petitioner, upon his arrest, was
Ex. C at 535.
signed a constitutional rights form.
Petitioner read and
Id. at 536-38.
Officer
Monroe testified as to the content of Petitioner's statement to the
detectives.
not
Id. at 539-40.
follow-up
on
Officer Monroe admitted that he did
Petitioner's
statement
that
he
was
at
his
girlfriend's house when the incident occurred, although Officer
Monroe stated it was his responsibility as well as other detectives
to conduct an investigation, and not that of an individual citizen
to contact the police.
Id. at 541.
In June 2004, in a follow-up
interview, Petitioner told Officer Monroe the name of Shantell
Smith.
Id. at 542.
on this information.
Officer Monroe testified he did not follow-up
Id.
In June 2004, Officer Monroe was not
aware that the State Attorney's Office deposed Ms. Smith on May 25,
2004.
Id. at 581.
Petitioner claims prosecutorial comments in closing argument
warranted an objection by defense counsel, and he points to
particular comments made during argument:
Let's
talk
about
the
defendant's
statement that he made on February 19th, 2004.
This is the day of his arrest. Judge is going
to instruct you to consider these out of court
- 21 -
statements with great caution, I suggest you
do that.
But I also remind you that in doing this
analysis
that
he
was
provided
his
constitutional rights, he understood them, he
acknowledged them, and agreed to talk to them
for a certain period of time. In fact, this
is defense evidence piece number one.
What's
so
important
about
this
conversation is that it's got to be a case of
mistaken identity. He claims to have been at
his girlfriend's house, okay, that's what he
says, claims to have been at his girlfriend's
house.
Not Sherronda Smith's house, not my
girlfriend's house on Harts Road which would
have just been as very easy to say, just my
girlfriend's house at this point and time.
And oh, by the way, if you want to ask me any
more questions talk to my lawyer.
Now [sic] got to ask yourself why
wouldn't he just flat out say right then and
there instead of girlfriend, why not say
Sherronda Smith? I submit to you the reason
is because at that point and time he hadn't
had the opportunity to talk to Miss Smith
about this, to set up this alibi, hadn't had
the chance. Figures, man, give up Sherronda
Smith now, by the time I can have an
opportunity to reach out to her, man, there's
a chance police would already talk to her. My
cover would be blown. Can't do that. So he
gives them girlfriend. That's why, how easy
would it have been just to say Sherronda
Smith, if that in fact is where he was the
night of the shooting?
Id. at 804-806.
The prosecutor went on to state there was more to the meaning
of the statement concerning the phone call from Karen Ayers,
referencing Jerry Strickland's testimony about calling Karen Ayers.
Id. at 806.
The prosecutor stressed that Petitioner did not know
the information about two guys jumping on James Banks from a phone
- 22 -
call but due to actually being present in the house on Parker
Street and having first-hand knowledge of the beating. Id. at 807808.
Of note, the prosecutor did not use the invocation of right to
counsel as substantive evidence of guilt.
Instead, the prosecutor
focused on the fact Petitioner did not specifically identify his
girlfriend in his initial statement to the police and argued
Petitioner had first-hand knowledge of Banks being jumped on by two
guys at the house on Parker Street.
the
prosecutor's
Petitioner's
focus
statement
in
to
As such, the record reflects
closing
the
was
on
detectives,
not
the
on
content
the
of
actual
invocation of right to representation and/or the right to remain
silent.
At most, during this portion of closing argument, the
prosecutor, as an aside, mentioned Petitioner's invocation of
rights when the prosecutor said: "[a]nd oh, by the way, if you want
to ask me any more questions talk to my lawyer."
Id. at 805.
There was no deficiency in counsel's performance because the
prosecutor's comments were not improper as they were based on
logical inferences based on witness testimony.
The comments did
not go directly to the invocation of the right to remain silent,
nor were the comments so harmful as to require a new trial or so
inflammatory that the jury reached a more severe verdict based on
the comments.
Thus, any failure on defense counsel's part to make
an objection did not prejudice Petitioner.
There is no reasonable
probability that the outcome of the proceedings would have been
- 23 -
different
had
counsel
objected
to
the
comments
Petitioner
references under ground three.
Of importance, attorneys are allowed wide latitude during
closing argument as they review evidence and explicate inferences
which may reasonably be drawn from it.
In order to establish a
substantial error by counsel for failure to object to prosecutorial
misconduct, the prosecutor's "comments must either deprive the
defendant of a fair and impartial trial, materially contribute to
the conviction, be so harmful or fundamentally tainted as to
require a new trial, or be so inflammatory that they might have
influenced the jury to reach a more severe verdict than it would
have otherwise."
Walls v. State, 926 So.2d 1156, 1167 (Fla. 2006)
(per curiam) (citation omitted).
Also, there must be a showing
that there was no tactical reason for failure to object.
Id.
Without a showing of the above, a petitioner fails to demonstrate
the requisite prejudice.
Id.
In this case, the comments of the prosecutor did not deprive
Petitioner of a fair and impartial trial.
Also, they were not so
inflammatory as to result in a more severe verdict than was
demonstrated by the state's evidence.
Upon review, there was
substantial and very strong testimonial evidence presented at trial
against Petitioner. In fact, both victims identified Petitioner as
the perpetrator.
object
to
the
Thus, any failure on defense counsel's part to
state's
closing
argument
significantly to the verdict.
- 24 -
did
not
contribute
Failure to object during closing argument rarely amounts to
ineffective assistance of counsel, particularly if the errors, if
any, are insubstantial.
Here, at most, there was one, somewhat
questionable comment made by the prosecutor and not objected to by
defense counsel; however, error, if any, was insubstantial.
Petitioner appealed the denial of his Rule 3.850 motion.
Pursuant to Wilson, it is assumed the 1st DCA adopted the reasoning
of the trial court in denying the Rule 3.850 motion.
not attempted to rebut this presumption.
The state has
Deference under AEDPA
should be given to the last adjudication on the merits provided by
the 1st DCA.
is
not
Ex. JJJ.
inconsistent
Upon review, the Florida court's decision
with
Stickland and its progeny.
claim
is
not
contrary
to
Supreme
Court
precedent,
including
The state court's adjudication of this
or
an
unreasonable
application
of
Strickland, or based on an unreasonable determination of the facts.
As such, ground three is due to be denied.
D.
Ground Four
In his fourth ground, Petitioner raises a claim of the
ineffective assistance of trial counsel for failure to object to
the trial court's handling of a jury question and refusal to readback Jerry Strickland's testimony.
Petition at 12-13.
Petitioner
raised this issue in ground seven of his Rule 3.850 motion.
GGG at 740-44.
Ex.
The trial court denied the post conviction motion,
id. at 1249-50, and the 1st DCA affirmed per curiam.
- 25 -
Ex. JJJ.
The record demonstrates, during deliberation, the jury sent a
question: "is there a way to have read Strickland's testimony
again."
Ex. C at 840.
The court immediately said: "[a]nd my
answer would be no."
Id.
Defense counsel requested that the
testimony be re-read.
Id.
The court responded, "I don't really
think it's proper to reread one witness' testimony in its entirety
and nobody else's."
Id.
Defense counsel commented that it had
been done before in other trials.
Id.
had a real problem with doing so.
The court responded that it
Id.
Defense counsel firmly
stated she believed the jury is entitled to hear the testimony.
Id.
The
court
reiterated,
testimony to them frankly.
"I
have
a
problem
rereading
any
You always run into the problem then
have we emphasized that testimony over everything else in the
trial."
Id. at 840-41.
After
defense
counsel
clarified
for
the
court
that
the
requested testimony was the live testimony, the court said it does
not usually do read-backs, and then denied the jury's request and
denied counsel's request that the testimony be re-read.
841.
The court told the jury:
Ladies and gentlemen, you've sent me a
request to have Mr. Strickland's testimony
read again. And I can't do that. What you're
suppose to do is each discuss your memory of
what was said and what happened and try to
come to some group agreement about what that
testimony was.
Id.
- 26 -
Id. at
Petitioner
asserts
that
his
counsel's
performance
was
deficient because defense counsel failed to object after the court
denied the request to have Mr. Strickland's testimony read back,
leaving the matter unpreserved for direct appeal.
Petition at 13.
Although Petitioner would have preferred that the jury be
reminded of the content of Mr. Strickland's testimony, the court
denied both the jury's request and counsel's separate request that
the testimony be re-read.
The court, in its answer to the jury's
question, reminded the jury that they had to rely on the in-court
testimony, by discussing "your memory of what was said and what
happened" and coming to an agreement "about what that testimony
was."
Ex. C at 841.
Rule 3.410, Fla. R. Cr. P., provides that a court may, in its
discretion, have portions of trial testimony read back to the jury
upon request.
At the time of Petitioner's trial, it was clear:
Under Florida Rule of Criminal Procedure
3.410, the trial court has wide latitude in
the area of reading testimony to the jury.
Indeed, "[a] trial court need only answer
questions of law, not of fact, when asked by a
jury and has wide discretion in deciding
whether to have testimony reread." Coleman v.
State, 610 So.2d 1283, 1286 (Fla. 1992)(no
abuse of discretion found in refusing to
reread testimony of witness and instructing
jury to rely on collective memory of the
evidence). We find no abuse of discretion in
the trial court's refusal to reread the first
officer's testimony and instructing the jury
to rely on its collective memory.
Infantes v. State, 941 So.2d 432, 434 (Fla. 3d DCA 2006).
- 27 -
Thus, this was a matter within the "wide discretion" of the
trial
court
when
presented
with
Strickland's testimony read back.
979 (Fla. 2nd DCA 2013).
the
question
to
have
Mr.
Adams v. State, 122 So.3d 976,
Given this wide latitude, it was
certainly in the province of the trial court to deny the jury's
request and counsel's request for a read back and to instruct the
jury to rely on collective memory.
More recently, and long after Petitioner's 2005 trial, the
Florida Supreme Court, in Hazuri v. State, 91 So.3d 836, 846 (Fla.
2012) and State v. Barrow, 91 So.3d 826, 834 (Fla. 2012), adopted
rules applicable to responding to jury requests for transcripts:
(1) the court should not use any language misleading a jury into
believing read-backs are prohibited, and (2) if denying a request
for transcripts, the trial judge is to inform the jury of the
possibility of a read-back. See Delestre v. State, 103 So.3d 1026,
1028 (Fla. 5th DCA 2012) (generally, a court's failure to inform
the jury of a right to request a read-back is not considered
fundamental error). But, "while a trial court has broad discretion
in determining whether to grant a jury's read-back request, it may
not, over objection, simply instruct the jurors to rely on their
own collective recollection of the evidence so as to possibly
mislead the jurors into believing that read-backs are prohibited."
Id. at 1027 (citing Hazuri, 91 So.3d at 46; Barrow, 91 So.3d at
834).
- 28 -
Defense counsel specifically made a request that Strickland's
testimony be read-back.
The trial court denied counsel's request.
The record demonstrates defense counsel did not agree with the
trial court's proposed response, thus preserving possible error for
appellate
review.
Petitioner's
counsel
See
did
Adams,
not
122
use
So.3d
magic
at
words
979.
to
Although
state
her
objection, she was adamant that the jury was entitled to hear the
testimony read back.
Here, the attorney's articulated concern was
sufficiently specific to inform the trial court of the alleged
error, and the trial court was fully aware that defense counsel
disagreed with its actions, preserving the matter for appeal.
Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001).
Since the matter was preserved for appeal, counsel did not
perform deficiently.
Moreover, there was no prejudice, because
even if counsel had used magic words, Petitioner has failed to
demonstrate there is a reasonable probability that a more specific
objection would have succeeded.
Indeed, it is quite apparent from
the trial court's announced position, it would not have been
successful.
In short, counsel's performance was not deficient. Petitioner
received effective representation, and counsel's performance did
not so undermine the proper functioning of the adversarial process
that Petitioner was deprived of a fair trial.
If there is any reasonable basis for the court to deny relief,
the denial must be given deference. With regard to this claim of
- 29 -
ineffective assistance of counsel, AEDPA deference should be given
to the state court's decision.
The state court's ruling is well-
supported by the record and by controlling case law, Strickland and
its progeny.
Petitioner raised the issue in his post conviction
motion, the trial court denied the motion, finding Petitioner
failed to establish either the performance prong or prejudice
prong, and the appellate court affirmed.
This Court concludes the
state court's adjudication of this claim is not contrary to or an
unreasonable application of Strickland, or based on an unreasonable
determination of the facts.
Petitioner is not entitled to habeas
relief on ground four.
E.
Ground Five
In his fifth ground for relief, Petitioner raises a claim of
the ineffective assistance of appellate counsel for failure to
raise on appeal the trial court's error in denying the motion to
dismiss information.
Petition at 15.
Petitioner exhausted this
ground in the state court system by raising it as ground three of
his petition alleging ineffective assistance of appellate counsel.
Ex. H at 21-27.
The 1st DCA denied this ground.
Ex. M.
Upon review of the record, the state filed an information on
March 9, 2004, and an amended information on April 7, 2005.
at 8-9, 82-83.
Ex. A
The Arrest Report contains the sworn statement by
a law enforcement officer, R. L. Jenkins.
Id. at 1-2.
Affiant is a JSO Office[r] with 4 1/2 years
experience. Affiant responded to the scene of
a double shooting at 1700 Wambolt Street on
- 30 -
It states:
the evening of February 8th. I observed two
male victims, one shot in the back, shoulder
and elbow, and the other shot in the right
thigh.
Five or more witnessed [sic] were
interviewed.
Based on the witness interviews, it was
determined that the victims were initially
parked at the side of the road in their
vehicle when a white or silver Chevrolet Astro
van pulled alongside. Witnesses described the
black male suspect exiting the van from the
passenger side and approaching the driver's
side of the victims' vehicle.
Multiple
gunshots were heard and the suspect re-entered
the Astro Van and then [the] van fled the
scene.
Witnesses described the same vehicle returning
to the scene briefly [a] few minutes later.
Both victims were interviewed at Shands
Hospital by homicide detectives, and each
named the shooter as being known to them as
"Fly."
He was reported to have been armed
with a black, semi-automatic pistol.
I
visited with victim one (still in the
hospital, paralyzed from the waist down) and
victim two at home, and showed each a
photospread including the suspect's picture.
Each victim chose the suspect's picture within
three seconds, and stated the suspect was the
shooter. JSO records also reflect that this
suspect is known by the nickname "Fly."
The suspect was brought to the homicide office
and interviewed by Det. Gupton and Det. Ford.
The suspect was provided his constitutional
rights by form and signed the form.
The
suspect advised detectives he understood his
rights.
Detective Gupton advised the suspect he was
wanted for an aggravated battery that occurred
at Swift and Lamboll St. The suspect advised
he was aware of the incident but he was not
there.
He
advised
he
was
at
his
girlfriends[']
house
when
the
incident
occurred.
He had knowledge of the incident
because he had received a phone call and was
- 31 -
told two guys jumped on another guy.
The
suspect again stated he was with his
girlfriend and did not know why people were
saying it was him.
The suspect again said it was a case of
mistaken identity and told detectives if he
[sic] had any other questions for him we would
have to ask his attorney.
Detectives terminated the interview with the
suspect.
Ex. A at 1-2.
The
amended
information
is
signed
by
Angela
B.
Corey,
Assistant State Attorney, and contains the following:
Personally appeared before me, Angela B.
Corey, Bar No. 0300942, Assistant State
Attorney for the Fourth Judicial Circuit of
the State of Florida, in and for Duval County,
who is personally known to me, and who being
duly first sworn, says that the allegations as
set forth in the foregoing information are
based upon facts that have been sworn to as
true, and which, if true, would constitute the
offense therein charged, and that this
prosecution is instituted in good faith, and
hereby certifies that testimony under oath has
been received from the material witness(es)
for the offense.
Id. at 82 (emphasis added).5
5
Petitioner has not, and cannot, allege the amended
information fails to state a crime as the amended information
charges aggravated battery (two counts).
Therefore, the trial
court was not deprived of jurisdiction.
Assuming the amended
information had been dismissed, the state would have simply cured
the deficiency by filing a new information. Ford v. Campbell, 697
So.2d 1301, 1303 (Fla. 1st DCA 1997). As such, Petitioner cannot
demonstrate prejudice. See Alba v. State, 541 So.2d 747, 748 (Fla.
3d DCA 1989) (being tried upon an unsworn information is not error
sufficient to entitle a defendant to release from the charges
against him). The information includes the signature and oath of
an assistant state attorney required under Rule 3.140(g);
- 32 -
Based on all of the above, Petitioner is not entitled to
habeas corpus relief on a claim of ineffective assistance of
appellate counsel for failure to raise on appeal the trial court's
error in denying the motion to dismiss information. The sworn oath
of the prosecutor that she received testimony under oath from the
material witness or witnesses for the offense is sufficient under
Florida law. Bromell v. McNeil, No. 07-61917-CIV, 2008 WL 4540054,
at *17 (S.D. Fla. Oct. 10, 2008); Ruiz v. Sec'y, Dep't of Corr.,
No. 8:06-cv-2086-T-17TGW, 2008 WL 786327, at *4-*5 (M.D. Fla. Mar.
20, 2008) (rejecting a claim of ineffective assistance of counsel
for failure to move for dismissal based on a deficient information,
unsupported by a sworn statement of a material witness).
In State
v. Perkins, 977 So.2d 643, 646 (Fla. 5th DCA 2008), the court
explained that an assistant state attorney signing the information
charging a felony does not have to personally administer the oath
and question the material witness or witnesses upon which the
charges are based, but must simply receive and consider the sworn
testimony.
The record demonstrates Petitioner filed a pro se motion to
dismiss the information.
Ex. A at 41-45.
At a hearing on the
matter, the court discharged the public defender, at Petitioner's
request, and appointed the public defender as stand-by counsel.
consequently, counsel had no basis on which to object to the
information, and appellate counsel had no reason to include the
claim on direct appeal. See Jones v. Barnes, 463 U.S. 745, 751
(1983) (counsel has no duty to raise a frivolous issue).
- 33 -
Id.
at
231.
information.
The
court
denied
Id. at 231, 233-36.
the
motion
to
dismiss
Petitioner repeated his request
to have the motion to dismiss granted.
Id. at 238-39.
denied the pro se motion for rehearing.
Id. at 239.
dismissed the interlocutory appeal.
Ex. B.
another motion to dismiss the information.
was denied.
the
The court
The 1st DCA
Petitioner filed
Ex. A at 75-77.
It too
Id. at 246-51.
It has been recognized, to prevail on a claim of ineffective
assistance of appellate counsel, the burden is heavy. A petitioner
must:
first show that his counsel was objectively
unreasonable, see Strickland, 466 U.S., at
687–691, 104 S.Ct. 2052, in failing to find
arguable issues to appeal—that is, that
counsel unreasonably failed to discover
nonfrivolous issues and to file a merits brief
raising them. If [a petitioner] succeeds in
such a showing, he then has the burden of
demonstrating prejudice. That is, he must show
a reasonable probability that, but for his
counsel's unreasonable failure to file a
merits brief, he would have prevailed on his
appeal. See id., at 694, 104 S.Ct. 2052
(defendant must show "a reasonable probability
that, but for counsel's unprofessional errors,
the result of the proceeding would have been
different").
Smith v. Robbins, 528 U.S. 259, 285–86 (2000).
Here, Petitioner has not satisfied the Strickland requirements
with regard to this claim of ineffective assistance of appellate
counsel.
He has not shown that the 1st DCA decided this claim in
a manner contrary to Strickland, or that the 1st DCA's application
- 34 -
of Strickland was objectively unreasonable.
It is axiomatic, a
defendant has a constitutional right to effective assistance of
counsel on direct appeal, but "there is no constitutional duty to
raise every nonfrivolous issue." Grossman v. Crosby, 359 F.Supp.2d
1233, 1261 (M.D. Fla. 2005) (citation omitted).
With respect to
the underlying claim that the trial court erred in denying the
motion to dismiss the information, appellate counsel could have
reasonably decided to winnow out this weaker argument.
Upon the filing of Petitioner's state petition for writ of
habeas corpus, Ex. H, the 1st DCA reviewed Petitioner's arguments
concerning claims Petitioner argued his appellate counsel should
have raised on direct appeal, and the 1st DCA denied this claim,
finding it to be without merit, thus making its determination that
no appellate relief would have been forthcoming on this particular
ground.
Ex. M at 3.
Thus, Petitioner has failed to show a
reasonable probability the outcome of the direct appeal would have
been
different
had
appellate
counsel
argued
as
Petitioner's
suggests appellate counsel should have on direct appeal.
The
appellate
denial
of
counsel
relief
claim
on
was
the
ineffective
neither
unreasonable application of Strickland.
contrary
Ground Six
- 35 -
to,
nor
of
an
Therefore, Petitioner is
not entitled to habeas relief on ground five.
F.
assistance
In ground six, Petitioner raises another claim of ineffective
assistance of appellate counsel, claiming his appellate counsel was
ineffective for failure to timely raise a sentencing issue on
appeal.
Petition at 17.
Respondents succinctly describe the
claim:
Petitioner
alleges
that
appellate
counsel, specifically Charles Fletcher, was
ineffective by failing to timely argue in the
second appeal that the mandatory minimum life
sentence on Count I is erroneous. Petitioner
asserts that under law in effect at the time
of his first appeal and second appeal his
minimum mandatory life sentence was erroneous.
Petitioner asserts that by the time of the
third appeal, the Florida Supreme Court had
decided that life imprisonment is proper.
Response at 75.
In this ground, Petitioner challenges the performance of
appellate
appeal.
counsel
Charles
Fletcher,
appointed
for
the
second
The First District Court of Appeal found he failed to
preserve a sentencing issue by filing a Rule 3.800(b)(2) motion in
the trial court. However, a claim of ineffective assistance of Mr.
Fletcher was not before the 1st DCA and the 1st DCA did not find
Mr. Fletcher ineffective under the Strickland two-pronged standard,
or under any other standard.
Instead, the 1st DCA found counsel
misunderstood its previous ruling:
The defendant prevailed on a claim of
ineffective assistance of appellate counsel in
a previous appearance before this court, see
Flowers v. State, 695 So.2d 1233 (Fla. 1st DCA
2007), and he was granted a new direct appeal
- 36 -
on two issues: whether the trial court failed
to conduct a proper hearing under Nelson v.
State, 274 So.2d 256 (Fla. 4th DCA 1973), and
whether his sentence was illegal. He is now
before the court on the new direct appeal. We
affirm as to the Nelson issue but grant him a
new direct appeal, once again, on the
sentencing issue.
In our previous opinion, we concluded
that the defendant would have had a reasonable
probability of success in his original direct
appeal on a sentencing issue, but that he did
not receive effective assistance of counsel,
because the lawyer appointed to represent him
on appeal failed to preserve the issue by
filing a motion under rule 3.800(b)(2) of the
Florida Rules of Criminal Procedure.
We
explained that we could not decide the
sentencing issue on the merits, because it had
not yet been presented to the trial court.
The appellate lawyer representing the
defendant in the present appeal argued that
the previous appellate lawyer was ineffective.
However, that issue was determined in the
prior opinion of this court. Evidently, the
lawyer representing the defendant in the
present appeal misunderstood our previous
opinion. He did not preserve the sentencing
issue for review on the merits by filing a
rule 3.800(b)(2) motion in the trial court.
As
a
consequence
of
this
apparent
misunderstanding, appellate counsel failed to
cure the deficiency identified in the opinion.
The posture of the case remains the same: the
defendant still has a reasonable possibility
of success on a sentencing issue that has not
yet been preserved for review on appeal.
Ex. MM at 1-2.
- 37 -
With that, on March 31, 2010, the 1st DCA affirmed in part and
remanded the case.6
Id. at 3.
For the third appeal, Ryan
Truskoski, new appellate counsel, filed a motion to correct on
January 12, 2011, but he pointed out that his argument that the
minimum mandatory of life imprisonment was too high had been cast
into doubt by Mendenhall v. State, 48 So.3d 740 (Fla. 2010) (per
curiam) (Mendenhall).
Ex. TT at 3.
The trial court denied the
motion to correct, relying on Mendenhall.
Ex. TT at 5-8.
Mr.
Truskoski filed an appeal brief, again recognizing the adverse
decision of Mendenhall.
Ex. UU.
On September 16, 2011, the 1st
6
The record demonstrates, the 1st DCA, on September 28, 2007,
granted Petitioner's claim of ineffective assistance of appellate
counsel, Marjorie C. Holladay, an Assistant Public Defender, and
stated the court would refrain from concluding the sentence was
illegal, but opined: "there does appear to be a reasonable
probability that petitioner's Yasin [v. State, 896 So.2d 875 (Fla.
5th DCA 2005) (finding a 10/20/life sentence of 25 years followed
by 20 years of probation was not proper because the 10/20/life
provision while authorizing a mandatory sentence in excess of the
statutory maximum did not change the statutory maximum for other
purposes, making it improper to tack on the 20-year probationary
term)] challenge will ultimately result in a more favorable
sentence." Ex. M at 2. By the time of the second appeal, however,
the 5th DCA had rejected the extension of Yasin's holding to
include the claim that the 10/20/life minimum mandatory must fit
within the statutory maximum of 30 years. See Mendenhall v. State,
999 So.2d 665 (Fla. 5th DCA December 5, 2008) (finding the
10/20/life statute allows the trial court the discretion to impose
a minimum mandatory from 25 years to life regardless of the
statutory maximum), and the 1st DCA's projection of the reasonable
probability of success on Petitioner's sentencing claim had already
been cast into doubt. See Ex. DD, Answer Brief of Appellee at 8-11
(dated May 1, 2009).
- 38 -
DCA affirmed Petitioner's life sentence, with a minimum mandatory
of life, for aggravated battery with a firearm.
Respondents
assert
Petitioner's
Ex. WW at 4.
claim
of
assistance of Mr. Fletcher is not properly exhausted.
76.
ineffective
Response at
Upon review, the Court first finds the claim is unexhausted
and procedurally defaulted.
The record shows Petitioner did not
file a petition for writ of habeas corpus in the state appellate
court
claiming
the
ineffective
assistance
of
Mr.
Fletcher.
Petitioner filed one petition for writ of habeas corpus in the 1st
DCA, Ex. H, and it concerned the performance of Ms. Holladay, the
Assistant Public Defender appointed for the first appeal. Although
the 1st DCA found Mr. Fletcher misunderstood its first opinion on
direct appeal, the appellate court was not addressing any assertion
of Mr. Fletcher's ineffectiveness.
As such, Respondents submit,
the claim has not been properly exhausted and is procedurally
barred.
Ordinarily, a petitioner must exhaust state court remedies
prior to presenting a claim to this Court:
An applicant's federal writ of habeas
corpus will not be granted unless the
applicant exhausted his state court remedies.
28 U.S.C. § 2254(b), (c). A claim must be
presented to the highest court of the state to
satisfy the exhaustion requirement. O'Sullivan
v. Boerckel, 526 U.S. 838 (1999) ; Richardson
v. Procunier, 762 F.2d 429, 430(5th Cir.
1985); Carter v. Estelle, 677 F.2d 427,
443(5th Cir. 1982). In a Florida non-capital
case, this means the applicant must have
- 39 -
presented his claims in a district court of
appeal. Upshaw v. Singletary, 70 F.3d 576, 579
(11th Cir. 1995). The claims must be presented
in State court in a procedurally correct
manner. Id. Moreover, the habeas applicant
must have presented the State courts with the
same federal constitutional claim that is
being asserted in the habeas petition. "It is
not sufficient merely that the federal habeas
petitioner has been through the state courts
... nor is it sufficient that all the facts
necessary to support the claim were before the
state courts or that a somewhat similar
state-law claim was made." Kelley v. Sec'y,
Dep't of Corr., 377 F.3d 1317 (11th Cir. 2004)
(citing Picard v. Connor, 404 U.S. 270, 275–76
(1971)); Anderson v. Harless, 459 U.S. 4, 6
(1982). A petitioner is required to present
his claims to the state courts such that the
courts
have
the
"opportunity
to
apply
controlling legal principles to the facts
bearing upon [his] constitutional claim."
Picard v. Connor, 404 U.S. 270, 275–77 (1971).
To satisfy this requirement, "[a] petitioner
must alert state courts to any federal claims
to allow the state courts an opportunity to
review and correct the claimed violations of
his federal rights." Jimenez v. Fla. Dep't of
Corr., 481 F.3d 1337 (11th Cir. 2007) (citing
Duncan v. Henry, 513 U.S. 364, 365 (1995).)
"Thus, to exhaust state remedies fully the
petitioner must make the state court aware
that the claims asserted present federal
constitutional issues." Snowden v. Singletary,
135 F.3d 732, 735 (11th Cir. 1998).
Aguilera v. Jones, No. 15-CV-20406, 2016 WL 791506, at *7 (S.D.
Fla. Jan. 13, 2016), report and recommendation adopted by No.
15-20406-CIV, 2016 WL 932808 (S.D. Fla. Mar. 10, 2016).
There are 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
- 40 -
violation of federal law."
Martinez v. Ryan, 566 U.S. 1, 10
(citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Petitioner
has not shown cause and prejudice nor a manifest injustice will
result if this claim is not addressed its merits.
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 identify any fact warranting the
application of the fundamental miscarriage of justice exception.
In
light
unexhausted
procedurally
of
and
the
above,
procedurally
defaulted
as
it
the
Court
finds
defaulted.
The
is
abundantly
ground
claim
clear
six
is
is
also
that
this
unexhausted claim would be procedurally barred in state court.
As
Petitioner has failed to establish cause and prejudice or any
- 41 -
factors warranting the application of the fundamental miscarriage
of justice exception to overcome the default, ground six is
procedurally barred and due to be denied as barred.
Alternatively, this claim has no merit.
Although the 1st DCA
stated there was a reasonable probability that Petitioner's Yasin
challenge asking that Yasin be construed to include a challenge to
the mandatory minimum term of life and result in a more favorable
sentence, the Florida Supreme Court rejected a similar contention
and
found
the
specific
provisions
of
the
10-20-life
statute
concerning mandatory minimums control over the general provisions
of section 775.087, Florida Statutes, Mendenhall, 48 So.3d at 742,
thus affirming a trial court's discretion to impose a mandatory
minimum of 25 years to life, even if the mandatory minimum exceeds
the statutory maximum.
In doing so, the Florida Supreme Court
affirmed the decision of Mendenhall, 999 So.2d 665, a case relied
upon by the state in response to Petitioner's second appeal.
DD at 8-11.
Ex.
As noted by Respondents, Petitioner would not have
prevailed on a claim of ineffective assistance of Mr. Fletcher for
failure to properly preserve and raise an ultimately unsuccessful
proposition, and no prejudice has been demonstrated.
79.
Response at
Petitioner's sixth ground is due to be denied.
G.
Grounds
Grounds Seven, Twelve, and Thirteen
seven,
twelve,
procedurally defaulted.
and
thirteen
are
unexhausted
and
Petitioner blames his failure to exhaust
- 42 -
his state court remedies on the fact that he had no counsel to
prepare his postconviction motion.
Reply at 63.
Petitioner also
seems to be relying on the fact he requested a stay and abeyance to
exhaust his state court remedies to excuse his default.
Reply at
62-63.
The record shows, after Petitioner filed his initial petition
(Doc. 1), this Court gave Petitioner the opportunity to file a
notice of abandonment with respect to his unexhausted claims or
file a motion to stay and abeyance.
Order (Doc. 2).
Petitioner
sought a stay and abeyance (Doc. 3).
The Court found: "Petitioner
has demonstrated good cause for his failure to exhaust his claims
in state court as he has apparently exhausted half of his claims
and is attempting to exhaust the remaining grounds."
5 at 2).
Order (Doc.
The Court further noted Petitioner was attempting to
raise claims of ineffective assistance of counsel, "potentially
meritorious claims," and there was no evidence of intentional
dilatory tactics.
abeyance.
Id.
The Court granted the requested stay and
Id. at 2-3.
Petitioner filed the issues raised in grounds seven, twelve,
and thirteen in a successive Rule 3.850 motion, but the trial court
found the motion to be untimely filed. Although this Court granted
the stay and abeyance of the federal case, Petitioner did not meet
the state's procedural requirements in his attempt to exhaust state
court remedies.
- 43 -
The
record
demonstrates
that
grounds
seven,
twelve,
and
thirteen were raised in a Rule 3.850 motion filed on May 19, 2016,
Ex. LLL at 4-6, 21-24, and the trial court dismissed the motion as
untimely filed.
Id. at 61-85.
without a written opinion.
The 1st DCA affirmed per curiam,
Ex. PPP.
The mandate issued September
22, 2017. Ex. QQQ. The state court's determination rested clearly
and expressly on a state procedural bar. Alderman v. Zant, 22 F.3d
1541, 1549 (11th Cir.), cert. denied, 513 U.S. 1061 (1994).
See
Whiddon v. Dugger, 894 F.2d 1266 (11th Cir. 1990) (a late filing
beyond the two-year time limit of Rule 3.850 is a procedural
default), cert. denied, 498 U.S. 834 (1990). "A procedural default
bars the consideration of the merits of an issue in federal court
only when the state court itself applies the procedural default
rule." Dobbert v. Strickland, 718 F.2d 1518, 1524 (11th Cir. 1983)
(per curiam) (citation omitted), cert. denied, 468 U.S. 1220
(1984).
Here, the state court expressly applied the procedural
default rule.
In addressing the question of exhaustion, this Court must ask
whether Petitioner's claims were fairly raised in the state court
proceedings:
Before seeking § 2254 habeas relief in
federal court, a petitioner must exhaust all
state court remedies available for challenging
his conviction. See 28 U.S.C. § 2254(b), (c).
For a federal claim to be exhausted, the
petitioner must have "fairly presented [it] to
the state courts." McNair v. Campbell, 416
- 44 -
F.3d 1291, 1302 (11th Cir. 2005). The Supreme
Court has suggested that a litigant could do
so by including in his claim before the state
appellate court "the federal source of law on
which he relies or a case deciding such a
claim on federal grounds, or by simply
labeling the claim 'federal.'" Baldwin v.
Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158
L.Ed.2d 64 (2004). The Court's guidance in
Baldwin "must be applied with common sense and
in light of the purpose underlying the
exhaustion requirement"—namely, giving the
state courts "a meaningful opportunity" to
address the federal claim. McNair, 416 F.3d at
1302. Thus, a petitioner could not satisfy the
exhaustion requirement merely by presenting
the state court with "all the facts necessary
to support the claim," or by making a
"somewhat similar state-law claim." Kelley,
377 F.3d at 1343–44. Rather, he must make his
claims in a manner that provides the state
courts
with
"the
opportunity
to
apply
controlling legal principles to the facts
bearing upon (his) [federal] constitutional
claim." Id. at 1344 (quotation omitted).
Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351-52 (11th Cir.
2012), cert. denied, 568 U.S. 1104 (2013).
Of course, in this
instance, the claims were not fairly and timely raised in the state
court proceedings.
The doctrine of procedural default requires the following:
Federal habeas courts reviewing the
constitutionality of a state prisoner's
conviction and sentence are guided by rules
designed to ensure that state-court judgments
are
accorded
the
finality
and
respect
necessary to preserve the integrity of legal
proceedings within our system of federalism.
These rules include the doctrine of procedural
default, under which a federal court will not
review the merits of claims, including
constitutional claims, that a state court
- 45 -
declined to hear because the prisoner failed
to abide by a state procedural rule. See,
e.g., Coleman, supra, at 747–748, 111 S.Ct.
2546; Sykes, supra, at 84–85, 97 S.Ct. 2497. A
state court's invocation of a procedural rule
to deny a prisoner's claims precludes federal
review of the claims if, among other
requisites, the state procedural rule is a
nonfederal ground adequate to support the
judgment and the rule is firmly established
and consistently followed. See, e.g., Walker
v. Martin, 562 U.S. ––––, ––––, 131 S.Ct.
1120, 1127–1128, 179 L.Ed.2d 62 (2011); Beard
v. Kindler, 558 U.S. ––––, ––––, 130 S.Ct.
612, 617–618, 175 L.Ed.2d 417 (2009). The
doctrine barring procedurally defaulted claims
from being heard is not without exceptions. A
prisoner may obtain federal review of a
defaulted claim by showing cause for the
default and prejudice from a violation of
federal law. See Coleman, 501 U.S., at 750,
111 S.Ct. 2546.
Martinez, 566 U.S. at 9-10.
In Martinez, the Supreme Court expanded the "cause" that may
excuse a procedural default.
Id. at 9.
The Supreme Court
explained:
Allowing a federal habeas court to hear a
claim of ineffective assistance of trial
counsel when an attorney's errors (or the
absence of an attorney) caused a procedural
default in an initial-review collateral
proceeding acknowledges, as an equitable
matter, that the initial-review collateral
proceeding, if undertaken without counsel or
with ineffective counsel, may not have been
sufficient to ensure that proper consideration
was given to a substantial claim. From this it
follows that, when a State requires a prisoner
to raise an [ineffective assistance of trial
counsel] claim in a collateral proceeding, a
prisoner may establish cause for a default of
an
ineffective-assistance
claim
in
two
- 46 -
circumstances. The first is where the state
courts did not appoint counsel in the
initial-review collateral proceeding for a
claim of ineffective assistance at trial. The
second is where appointed counsel in the
initial-review collateral proceeding, where
the claim should have been raised, was
ineffective under the standards of Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). To overcome the
default, a prisoner must also demonstrate that
the underlying [ineffective assistance of
trial counsel] claim is a substantial one,
which is to say that the prisoner must
demonstrate that the claim has some merit. Cf.
Miller–El v. Cockrell, 537 U.S. 322, 123 S.Ct.
1029, 154 L.Ed.2d 931 (2003) (describing
standards for certificates of appealability to
issue).
Martinez, 566 U.S. at 14.
Respondents assert that grounds seven, twelve, and thirteen
are unexhausted and procedurally defaulted and must be denied as
such.
After giving due consideration to this assertion, the Court
finds that grounds seven, twelve, and thirteen are unexhausted
because Petitioner failed to fairly and properly raise these claims
in the state court system, thus the trial court never considered
the merits of these claims.
Procedural
defaults
may
be
excused
under
certain
circumstances; "[a] petitioner who fails to exhaust his claim is
procedurally barred from pursuing that claim on habeas review in
federal court unless he shows either cause for and actual prejudice
from the default or a fundamental miscarriage of justice from
applying the default."
Lucas, 682 F.3d at 1353 (citing Bailey v.
- 47 -
Nagle, 172 F.3d 1299, 1306 (11th Cir. 1999) (per curiam)).
The
fundamental miscarriage of justice exception is only available in
extraordinary cases upon a showing of "'actual' innocence" rather
than
mere
"'legal'
innocence."
Johnson,
256
F.3d
at
1171
(citations omitted).
Petitioner
did
not
properly
and/or
timely
present
federal constitutional claims to the state courts.
these
Any further
attempts to seek post conviction relief in the state courts on
these grounds will be unavailing.
As such, he has procedurally
defaulted grounds seven, twelve, and thirteen claiming ineffective
assistance of counsel.
In his Reply, Petitioner submits this procedural default
should be excused because he meets the narrow exception under
Martinez.
Reply at 63.
See Motion to Stay and Request That
Petition Be Place[d] in Abeyance (Doc. 3 at 1-2).
overcome
his
default,
Petitioner
must
In order to
demonstrate
underlying ineffectiveness claims are substantial.
that
the
Indeed, "[t]o
overcome the default, a prisoner must also demonstrate that the
underlying
ineffective-assistance-of-trial-counsel
claim
is
a
substantial one, which is to say that the prisoner must demonstrate
that the claim has some merit." Martinez, 566 U.S. at 14 (citation
omitted).
As discussed in the alternative merits analysis that follows,
the ineffectiveness claims raised in grounds seven, twelve, and
- 48 -
thirteen lack any merit.
Therefore, Petitioner has not shown that
he can satisfy an exception to the bar.
A discussion follows.
In ground seven of the Petition, Petitioner claims his counsel
was ineffective for the failure to call Sgt. Butler as a defense
witness.
Petition at 20.
The record demonstrates that the state
called Officer Christina Rosario to testify as to her encounter
with the victim, Mr. Strickland.
Ms. Rosario attested that Mr.
Strickland was on his cell phone talking and screaming.
399.
Ex. C at
Ms. Rosario said she called rescue and rescue first attended
to the victim in the car who was very seriously injured.
Id.
While waiting for rescue, Mr. Strickland was making statements and
told Officer Rosario, "Fly shot him."
Id.
Plaintiff asserts that his counsel's performance was deficient
for failing to call Sgt. Butler, the supervisor on the scene, who
would
have
testified
information
during
that
the
Mr.
Strickland
investigation
that
never
gave
night,
nor
helpful
did
he
identify the shooter by name. Petition at 20. Petitioner contends
that Sgt. Butler should have been called to impeach Officer
Rosario's testimony.
Upon
review
of
the
portion
of
Sgt.
Butler's
deposition
submitted to the Court by Petitioner, Sgt. Butler was not in the
best position to hear Mr. Strickland's statements.
said:
- 49 -
Sgt. Butler
Well, where I was standing, Officer
Rosario was closer to him than what I was in
trying to get the rescue units down to him.
And I was pretty much, I was back away from
him a little bit, but I was still watching
what was going on between her and him. And I
just remember that he was on a cell phone, and
he said something along the lines or kept
saying that he had been shot.
Petitioner's Appendix D at 43-44 (Doc. 14-4).
Thus, based on Sgt. Butler's deposition testimony, Officer
Rosario was closer to the victim and was in the best position to
hear Mr. Strickland's statements. Sgt. Butler was further away and
busy attempting to get the rescue units down to Mr. Strickland.
Sgt. Butler said they (the officers) obtained the name of Michael
Flowers, but he did not recall how they obtained the name.
Id. at
39.
Based on a review of the portion of the deposition provided,
defense counsel's performance was not deficient for failing to call
Sgt. Butler, the supervisor at the scene, as he could not recall
how the officers obtained the name of Michael Flowers ("Fly").
Moreover, Sgt. Butler was not the officer closest in proximity to
the victim.
Sgt. Butler said he was dealing with getting rescue
personnel to Mr. Strickland, suggesting his attention was directed
to other, more urgent matters.
The Court is not convinced that ground seven has some merit.
As such, Petitioner has failed to show that he falls within the
narrow parameters of the ruling in Martinez, in which the Supreme
- 50 -
Court recognized a narrow exception for ineffective assistance of
counsel/absence
proceedings.
of
counsel
at
initial-review
collateral
Since Petitioner has failed to demonstrate that the
underlying ineffective assistance of counsel claim is a substantial
one, he does not fall within this narrow exception.
Thus, he has
failed to establish cause for the procedural default of his claim
of ineffective assistance of trial counsel raised in ground seven
of the Petition.
In ground twelve of the Petition, Petitioner claims his
counsel was ineffective for failure to obtain Petitioner's phone
records and present the records at trial to support the alibi
defense.
Petition at 33.
In the supporting facts, Petitioner
states he made several phone calls and received several phone calls
the evening of February 8, 2004, and counsel could have shown the
cell tower used to send and receive calls was in proximity to
Shantell Smith's residence, not twenty minutes away at the scene of
the shooting.
Id.
Again, the Court is not convinced that counsel's performance
was deficient for failing to obtain phone records for Petitioner's
cell phone. Of import, even if Petitioner's cell phone was located
at Shantell Smith's residence, that does not mean Petitioner was
also at the residence.
Indeed, phone records would not have shown
who was speaking on the phone or who actually had possession of the
phone.
The records would simply show the phone was used to send
- 51 -
and/or receive calls.
Also, it is important to recognize that
counsel did have the person who was able to provide alibi testimony
testify at trial:
Shantell Smith.
Counsel's decision to call the
person best able to support the alibi defense does not amount to
deficient performance.
The Court is not convinced that ground
twelve has some merit.
Therefore, Petitioner has failed to show
that he falls within the narrow parameters of the ruling in
Martinez.
Since Petitioner has failed to demonstrate that the
underlying ineffective assistance of counsel claim is a substantial
one, he does not fall within this narrow exception.
Thus, he has
failed to establish cause for the procedural default of his claim
of ineffective assistance of trial counsel raised in ground twelve
of the Petition.
In
ground
thirteen,
Petitioner
raises
a
claim
of
the
ineffective assistance of counsel for failure to object to a
sleeping juror, Ms. Batton.
Petition at 35.
Petitioner claims
that while defense counsel was cross examining the victims, Mr.
Strickland and Mr. Johnson, Ms. Batton was sleeping, as evidenced
by the fact that the juror was rocking back and forth with her eyes
closed.
Id.
Petitioner states he wrote counsel a note about Ms.
Batton's actions, counsel appeared to look at the note, and she
held up an index finger.
Id.
Petitioner contends counsel's
performance was deficient for failing to object and move for a
mistrial. Id. Petitioner asserts, upon objection, the trial court
- 52 -
would have declared a mistrial as there was no remaining alternate.
Id.
The Court has carefully reviewed the entire trial record and
there is no evidence of a sleeping juror in the record.
The trial
judge, as keeper of decorum in the courtroom, would be watching the
jurors to determine if anyone was sleeping, otherwise distracted,
or causing a disruption in the courtroom.
Additionally, both the
prosecutor and defense counsel would be watching and assessing the
alertness of jurors, making sure that no one slept through the
proceedings.
Petitioner's description of Ms. Batton, rocking back
and forth with her eyes closed, does not support his conclusion
that Ms. Batton was sleeping.
Clearly, the described movement
exhibits alertness on the part of the juror.
Notably, the record shows Mr. Johnson was the first witness
(by video) and Mr. Strickland was the third witness called by the
state.
Thus, the victims' testimony came at the inception of the
trial testimony, after opening statements.
Also, it is important
to note that Petitioner claims counsel looked at the note and held
up
her
finger,
acknowledging
Petitioner
and
his
note,
while
indicating Petitioner should wait, and apparently making a decision
not to pursue the issue or make an objection as evidenced by her
non-action and lack of objection.
Here, the matter of a juror being briefly inattentive or
resting her eyes did not prompt counsel to make an objection or
- 53 -
seek a curative instruction.
Under these circumstances, defense
counsel's performance cannot be deemed deficient.
On this record,
Petitioner has failed to carry his burden of showing that his
counsel's representation fell outside that wide range of reasonably
professional assistance.
Even if counsel had objected, at most,
under the circumstances described, with a juror rocking back and
forth with her eyes closed, the judge would likely have instructed
the jury to stay alert and perhaps offer a comfort break.
The
Court is certainly not convinced a juror would have been excused
for rocking back and forth and closing her eyes, nor would a
mistrial have been declared. As such, Petitioner has neither shown
deficient performance or prejudice.
In sum, the Court is not convinced that ground thirteen has
some merit. Therefore, Petitioner has failed to show that he falls
within the narrow parameters of the ruling in Martinez.
Petitioner
has
failed
to
demonstrate
that
the
Since
underlying
ineffective assistance of counsel claim is a substantial one, he
does not fall within the narrow Martinez exception.
Thus, he has
failed to establish cause for the procedural default of his claim
of
ineffective
thirteen
of
assistance
the
of
Petition.
trial
counsel
Procedural
raised
default
consideration of grounds seven, twelve, and thirteen.
these grounds are due to be denied as barred.
H.
Remaining Grounds
- 54 -
in
ground
prohibits
As such,
The remaining grounds, (8) the ineffective assistance of
counsel
for
failure
to
request
a
cautionary
instruction
on
reliability of identification; (9) the ineffective assistance of
counsel for failure to file a motion to suppress Petitioner's
identification based on an impermissibly suggestive photo line-up;
(10)
the
ineffective
assistance
of
counsel
for
failure
to
investigate and introduce reverse Williams' rule evidence; (11) the
ineffective
assistance
of
counsel
for
failure
to
object
to
prosecutorial misconduct during closing argument; and (14) the
cumulative effect of trial counsel's errors rendered counsel's
assistance ineffective and deprived Petitioner of a fair trial, are
procedurally defaulted.
The Court will provide a brief, relevant
procedural history to provide context for its decision.
On October 6, 2011, Petitioner filed an extremely lengthy Rule
3.850 motion and a motion to accept the motion in excess of the 50page limit set forth in Rule 3.850.
Ex. YY at 1-87; Ex. ZZ.
The
trial court, on May 7, 2012, dismissed the motion, finding it
violated the fifty-page limit as set forth in Rule 3.850(c), Fla.
R. Crim. P.
Ex. YY at 88–89.
The trial court dismissed the motion
without prejudice for Petitioner to re-file "a proper and timely
Rule 3.850 motion."
filed
a
belated
Id. at 88.
motion
for
On January 28, 2013, Petitioner
rehearing,
overlooked his motion to accept.
- 55 -
asserting
Ex. AAA at 1-15.
the
court
The trial
court, in an order docketed on April 24, 2013, denied the motion.
Id. at 16-17.
Meanwhile, on May 16, 2012, Petitioner filed a forty-five-page
amended Rule 3.850 motion raising eight grounds of ineffective
assistance of counsel.
Ex. YY at 180-227.
However, on May 22,
2012, he filed a thirty-eight-page supplemental Rule 3.850 motion
raising an additional five grounds of ineffective assistance of
counsel and one claim of cumulative error of counsel.
69.
Id. at 228-
The trial court dismissed the Rule 3.850 motion and its
supplement, finding Petitioner's attempt to circumvent the fiftypage
limit
by
splitting
his
document
into
two
parts
was
unacceptable, noting Petitioner had not received leave of court to
exceed the fifty-page limit.
Id. at 270-72.
The court dismissed
the motion without prejudice with leave to amend.
Petitioner
supplement.
appealed
the
Id. at 363-64.
dismissal
of
Id. at 271.
his
motion
and
After briefing (Ex. BBB; Ex. CCC; Ex.
DDD), the 1st DCA granted the state's motion to dismiss the appeal.
Ex. EEE.
The mandate issued on September 24, 2013.
Ex. FFF.
On September 5, 2013, Petitioner filed an amended Rule 3.850
motion raising eight claims of ineffective assistance of counsel.
Ex. GGG at 703-51.
On September 9, 2013, Petitioner sought an
extension of time to file a supplemental motion beyond the two-year
time period.
supplement
to
Id. at 752-55.
raise
an
He also filed a motion for leave to
additional
- 56 -
six
claims
of
ineffective
assistance of counsel.
Id. at 757-60.
On October 10, 2013,
Petitioner filed an appendix in support of his motion. Id. at 7641061.
In an order filed February 22, 2014, the trial court, once
again, denied Petitioner's request for leave to file a Rule 3.850
motion in excess of fifty pages.
Id. at 1066-68.
The court found
Petitioner timely sought to include additional grounds, so the
court permitted Petitioner to amend the pending amended Rule 3.850
motion beyond the two-year limitation period.
Id. at 1067.
The trial court explained:
In addition to the restriction on page
limits, the Defendant is also required to give
"a brief statement of the facts and other
conditions relied on in support of the
motion."
Fla. R. Crim. P. 3.850(c)(7)
(emphasis added). The Defendant has not shown
how summarizing his claims, in compliance with
the requirement of brevity, will force him to
omit any of the six grounds. Therefore, the
Defendant has not shown good cause for
exceeding the page limit established at
Florida Rule of Criminal Procedure 3.850(d).
However, because the Defendant timely sought
to include the additional grounds in his
Amended Motion, the Defendant is permitted to
amend the pending Amended Motion beyond the
two year time limit for filing claims for
relief. . . .
Ex. GGG at 1067 (emphasis added).
Petitioner moved for rehearing.
Id. at 1079-84.
The state
responded, attaching portions of the record in response.
1092-1243.
Id. at
In an Order Denying Defendant's Amended Motion for
Post-Conviction Relief, filed on June 26, 2015, the trial court
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denied the eight claims of ineffective assistance of counsel raised
in the amended motion, attaching portions of the record.
1249-1403.
Petitioner appealed.
Ex. HHH; Ex. III.
on February 12, 2016, per curiam affirmed.
issued on March 9, 2016.
Ex. JJJ.
Id. at
The 1st DCA,
The mandate
Ex. KKK.
As such, ground eight was raised in the supplemental post
conviction motion which was never accepted by the trial court.
Petitioner attempted to raise the claim in a successive post
conviction motion filed on May 19, 2016, Ex. LLL at 7-9, however,
the trial court dismissed the motion as untimely filed, beyond the
two-year time limit.
Id. at 61-85.
Petitioner appealed, Ex. OOO,
and the 1st DCA affirmed per curiam on August 25, 2017.
The mandate issued on September 22, 2017.
Ex. PPP.
Ex. QQQ.
The state court's determination rested clearly and expressly
on a state procedural bar.
Alderman, 22 F.3d at 1549.
See
Whiddon, 894 F.2d at 1266 (a late filing beyond the two-year time
limit of Rule 3.850 is a procedural default).
The state court's
application of the procedural default rule bars this Court's
consideration of the merits of ground eight.
Dobbert, 718 F.2d at
1524. The same is true of grounds nine, ten, eleven, and fourteen.
These
claims
were
all
raised
in
the
post
conviction
motion
dismissed as untimely filed beyond the two-year limitation period.
Ex. LLL at 10-12, 13-15, 16-21, 25-27, 61-63. The 1st DCA affirmed
the trial court's ruling on appeal.
- 58 -
Ex. PPP.
As such, procedural
default bars consideration of the merits of grounds nine, ten,
eleven, and fourteen as well.
Petitioner has not demonstrated cause and prejudice or a
fundamental miscarriage of just will result if the merits of these
claims are not addressed by the Court.
Thus, the Court finds
grounds eight, nine, ten, eleven, and fourteen are barred from
federal habeas review.
I.
Fourteenth Amendment
To the extent Petitioner is claiming trial counsel's errors
deprived Petitioner of a fair trial in violation of the Fourteenth
Amendment's Due Process Clause, the Court concludes he is not
entitled to habeas relief.
In the Petition, Petitioner presented
insufficient separate and individual ineffective assistance of
counsel claims; therefore, even considered cumulatively, these
assertions do not render the claim of ineffective assistance of
counsel sufficient. Robertson v. Chase, No. 1:07-CV-0797-RWS, 2011
WL 7629549, at *23 (N.D. Ga. Aug. 12, 2011) (citations omitted),
report and recommendation adopted by No. 1:07-CV-797-RWS, 2012 WL
1038568 (N.D. Ga. Mar. 26, 2012), aff'd by 506 F. App'x 951 (11th
Cir. 2013), cert. denied, 571 U.S. 842 (2013). As such, Petitioner
is not entitled to habeas relief.
In
considering
a
claim
of
cumulative
error
under
the
cumulative error doctrine, the district court considers whether:
- 59 -
"an aggregation of non-reversible errors
(i.e., plain errors failing to necessitate
reversal and harmless errors) can yield a
denial of the constitutional right to a fair
trial, which calls for reversal." United
States v. Baker, 432 F.3d 1189, 1223 (11th
Cir. 2005) (internal quotation marks omitted).
We address claims of cumulative error by first
considering the validity of each claim
individually, and then examining any errors
that we find in the aggregate and in light of
the trial as a whole to determine whether the
appellant was afforded a fundamentally fair
trial. See United States v. Calderon, 127 F.3d
1314, 1333 (11th Cir. 1997).
Morris v. Sec'y, Dept. of Corr., 677 F.3d 1117, 1132 (11th Cir.
2012).
In Forrest v. Fla. Dep't of Corr., 342 F. App'x 560, 564
(11th Cir. 2009) (per curiam) (citing United States v. Cronic, 466
U.S. 648, 659 n.26 (1984)), cert. denied, 562 U.S. 589 (2010), the
Eleventh Circuit explained, although the Supreme Court has not
specifically addressed the applicability of the cumulative error
doctrine when addressing an ineffective assistance of trial counsel
claim, it has held there is no basis for finding a constitutional
violation unless the petitioner can point to specific errors of
counsel which undermined the reliability of the finding of guilt.
Thus, a cumulative errors of counsel claim lacks merit without a
showing
of
specific
errors
of
counsel
which
undermine
the
conviction in their cumulative effect, amounting to prejudice.
Petitioner has not demonstrated any of his trial counsel's
alleged errors, considered alone, rise to the level of ineffective
assistance
of
counsel;
therefore,
- 60 -
there
are
no
errors
to
accumulate, and Petitioner is not entitled to habeas relief.
As
the threshold standard of Strickland has not been met, Petitioner
has failed to demonstrate that his trial was fundamentally unfair
and his counsel ineffective.
Moreover, the Court finds Petitioner
has not shown specific errors which undermine the conviction in
their cumulative effect; therefore, he has failed to demonstrate
prejudice.
Not only is Petitioner not entitled to relief on his Sixth
Amendment claim, he is also not entitled to habeas relief on his
Fourteenth Amendment claim that he was deprived of the right to a
fair trial.
Through his Petition, Petitioner has not shown he was
deprived of a fair trial:
[he] has not demonstrated error by trial
counsel; thus, by definition, [Petitioner] has
not demonstrated that cumulative error of
counsel deprived him of a fair trial.
See
Yohey v. Collins, 985 F.2d 222, 229 (5th Cir.
1993) (explaining that because certain errors
were not of constitutional dimension and
others
were
meritless,
petitioner
"has
presented nothing to cumulate").
Miller v. Johnson, 200 F.3d 274, 286 n.6 (5th Cir.), cert. denied,
531 U.S. 849 (2000).
Based on all of the above, the Court denies federal habeas
relief.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Second Amended Petition (Doc. 13) is DENIED.
- 61 -
2.
This action is DISMISSED WITH PREJUDICE.
3.
The Clerk shall enter judgment accordingly and close this
4.
If Petitioner appeals the denial of his Second Amended
case.
Petition,
Because
the
this
Court
denies
Court
has
a
certificate
determined
that
of
a
appealability.7
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 9th day of
August, 2019.
7
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.
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sa 7/31
c:
Michael L. Flowers
Counsel of Record
- 63 -
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