Gardner v. Jones et al
Filing
19
ORDER denying the 1 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 4/19/2018. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MICHAEL GARDNER,
Petitioner,
vs.
Case No. 3:16-cv-602-J-39PDB
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
I.
INTRODUCTION
Petitioner Michael Gardner, in his Petition Under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State Custody
(Petition) (Doc. 1) and Argument in Support of § 2254 (Doc. 2),
challenges a 2010 Duval County conviction for sale or delivery of
cocaine (count one) and resisting officer without violence (count
two). He raises twelve grounds in the Petition. Respondents filed
a Response to Petition for Writ of Habeas Corpus (Response) (Doc.
15).1
Petitioner filed a Reply Response (Reply) (Doc. 18).
See
Order (Doc. 9).
1
The Court hereinafter refers to the Exhibits as "Ex." Where
provided, the page numbers referenced in this opinion are the Bates
stamp numbers at the bottom of each page of the exhibit.
Otherwise, the page number on the particular document will be
referenced. The Court will reference the page numbers assigned by
the electronic docketing system where applicable.
II.
CLAIMS OF PETITION
The twelve grounds are: (1) the trial court erred in finding
probable cause for Petitioner's arrest; (2) the trial court erred
by overlooking the illegal search and seizure during the arrest, in
contravention of the Fifth and Fourteenth Amendments; (3) the trial
court deprived Petitioner of his rights under the Fifth and
Fourteenth Amendments by denying Petitioner's motion for judgment
of acquittal of sale or delivery of cocaine; (4) the trial court
abused its discretion in admitting a poor quality audio recording
of the drug transaction, depriving Petitioner of his rights under
the Fifth and Fourteenth Amendments; (5) the ineffective assistance
of counsel for failure to object and move to suppress the audio
tape; (6) the ineffective assistance of counsel for failure to
properly argue for a judgment of acquittal; (7) the ineffective
assistance of counsel for failure to file a motion to dismiss the
charges; (8) the ineffective assistance of counsel for failure to
impeach Detective Williams with prior inconsistent statements; (9)
the ineffective assistance of counsel for a failure to file a
motion for new trial based on the fact that the verdict was
contrary to the weight of the evidence; (10) the ineffective
assistance of counsel for failure to argue a Fourth Amendment
violation; (11) the ineffective assistance of counsel based on the
cumulative errors of counsel; and (12) the trial court lacked
jurisdiction to impose a sentence upon a criminal offense or theory
- 2 -
not charged in the state's information, resulting in manifest
injustice.
III.
EVIDENTIARY HEARING
Petitioner seeks an evidentiary hearing.
Petition at 43.
It
is his burden to establish the need for a federal evidentiary
hearing, and he has not met the burden.
Chavez v. Sec'y, Fla.
Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011), cert. denied,
565 U.S. 1120 (2012).
In this regard, a district court is not
required to hold an evidentiary hearing if the record refutes the
asserted factual allegations or otherwise precludes habeas relief.
Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
After a thorough
review of the record before the Court, the Court finds that the
pertinent facts are fully developed in this record or the record
otherwise precludes habeas relief.
Consequently, this 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).
Although it is clear that no evidentiary proceedings are
required in this Court, the Court will review the twelve grounds
raised in the Petition, see Long v. United States, 626 F.3d 1167,
1169 (11th Cir. 2010) ("The district court must resolve all claims
for relief raised on collateral review, regardless of whether
relief is granted or denied.") (citing Clisby v. Jones,
960 F.2d
925, 936 (11th Cir. 1992) and Rhode v. United States, 583 F.3d
- 3 -
1289, 1291 (11th Cir. 2009)), and determine whether Petitioner is
entitled to the collateral relief he seeks.
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;
Ledford
v.
Warden,
Ga.
Diagnostic
&
Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert.
denied, 137 S.Ct. 1432 (2017).
"AEDPA limits the scope of federal
habeas review of state court judgments[.]"
Pittman v. Sec'y, Fla.
Dep't of Corr., 871 F.3d 1231, 1243 (11th Cir. 2017).
This narrow
scope of review under AEDPA provides for habeas relief only if
there are extreme malfunctions, certainly not to be used as a means
to correct state court errors.
Ledford, 818 F.3d at 642 (quoting
Greene v. Fisher, 132 S.Ct. 38, 43 (2011)).
Federal courts may grant habeas relief if:
the state court's decision "was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States," or
"was based on an unreasonable determination of
the facts in light of the evidence presented
in the State court proceeding." 28 U.S.C. §
2254(d).
A state court's decision rises to the
level of an unreasonable application of
federal law only where the ruling is
"objectively unreasonable, not merely wrong;
even clear error will not suffice." Virginia
v. LeBlanc, 582 U.S. ––––, ––––, 137 S.Ct.
1726, 1728, 198 L.Ed.2d 186 (2017) (per
curiam) (quoting Woods v. Donald, 575 U.S.
––––, ––––, 135 S.Ct. 1372, 1376, 191 L.Ed.2d
- 4 -
464 (2015) (per curiam)). This standard is
"meant to be" a difficult one to meet.
Harrington v. Richter, 562 U.S. 86, 102, 131
S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).
Rimmer v. Sec'y, Fla. Dep't of Corr., 876 F.3d 1039, 1053 (11th
Cir. 2017), petition for cert. docketed by (U.S. Mar. 9, 2018) (No.
17-8046).
"We also must presume that 'a determination of a factual issue
made by a State court [is[ correct,' and the petitioner 'ha[s] the
burden of rebutting the presumption of correctness by clear and
convincing evidence.'
28 U.S.C. § 2254(e)(1)."
Morrow v. Warden,
No. 17-10311, 2018 WL 1474837, at *5 (11th Cir. March 27, 2018),
886 F.3d 1138, ---- (11th Cir. 2018).
Additionally, "[t]his
presumption
equally
of
correctness
applies
to
factual
determinations made by the state trial and appellate courts." Pope
v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012)
(quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)), cert.
denied, 568 U.S. 1233 (2013).
Recently, in Wilson v. Sellers, No. 16855, slip op. 1, 5 (U.S.
April 17, 2018), 584 U.S. ---- (2018), the Supreme Court concluded
there is a "look through" presumption in federal habeas law, as
silence implies consent.
1605 (2016) (per curiam).
See Kernan v. Hinojosa, 136 S.Ct. 1603,
This presumption is employed when a
higher state court provides no reason for its decision; however, it
is just a presumption, not an absolute rule.
Wilson, slip op. at
9. "Where there are convincing grounds to believe the silent court
- 5 -
had a different basis for its decision than the analysis followed
by the previous court, the federal habeas court is free, as we have
said, to find to the contrary."
Id. at 11.
Thus, with the Supreme Court's guidance, this Court must
undertake the following review.
If the last state court to decide
a prisoner's federal claim provides an explanation for its meritsbased decision in a reasoned opinion, "a federal habeas court
simply reviews the specific reasons given by the state court and
defers to those reasons if they are reasonable."
Id. at 2.
if
merits
the
relevant
state-court
decision
on
the
is
But,
not
accompanied by a reasoned opinion, for example the decision simply
states affirmed or denied, a federal court "should 'look through'
the unexplained decision to the last related state-court decision
that does provide a relevant rationale."
Id.
At this stage, the
federal court presumes the unexplained decision adopted the same
reasoning as the lower court.
Id.
The presumption is not
irrebutable, as strong evidence may refute it. Hinojosa, 136 S.Ct.
at 1606.
The state can, however, rebut the presumption by showing
the higher state court relied or most likely relied on different
grounds than the lower state court, "such as alternative grounds
for affirmance that were briefed or argued to the state supreme
court or obvious in the record it reviewed."
Wilson, slip op. at
2.
Although the § 2254(d) standard is difficult to meet, the
standard is meant to be difficult.
- 6 -
Rimmer, 876 F.3d at 1053
(opining that to reach the level of an unreasonable application of
federal law, the ruling must be objectively unreasonable, not
merely wrong or even clear error). This Court recognizes, applying
the AEDPA standard, state court decisions must be given the benefit
of the doubt.
Trepal v. Sec'y, Fla. Dep't of Corr., 684 F.3d 1088,
1107 (11th Cir. 2012) (quotation and citations omitted), cert.
denied, 568 U.S. 1237 (2013).
V.
In
an
PROCEDURAL HISTORY
information,
Petitioner
was
charged
with
sale
or
delivery of cocaine and resisting an officer without violence. Ex.
B1 at 10-11.
The state filed a Notice of Intent to Classify
Defendant as an Habitual Felony Offender.
Id. at 12.
7, 2010, the trial court conducted a jury trial.
On January
Ex. B3; Ex. B4.
The jury returned a verdict of guilty as to the two counts.
Ex. B4
at 346-47; Ex. B1 at 50-51.
On
April
proceeding.
27,
2010,
the
Ex. B1 at 135-144.
trial
court
held
a
sentencing
The court sentenced Petitioner as
an habitual felony offender to thirty years in prison on count one,
and to time-served on count two.
Id. at 143-44.
judgment and sentence on April 27, 2010.
Ex. B1 at 102-108.
Petitioner appealed his conviction.
counsel, Petitioner filed an Anders brief.2
Petitioner filed a pro se brief.
2
Ex. F.
The court entered
Id. at 115.
Ex. C.
Through
Thereafter,
On June 15, 2011, the
Anders v. California, 386 U.S. 738 (1967).
- 7 -
First District Court of Appeal (1st DCA) per curiam affirmed.
G.
The mandate issued on July 12, 2011.
Ex.
Ex. H.
Petitioner filed a Motion for Postconviction Relief (Rule
3.850 motion), pursuant to the mailbox rule, on January 5, 2012.
Ex. I at 1-15.
He filed a Supplement to Motion for Postconviction
Relief (supplement) on March 6, 2013, pursuant to the mailbox rule.
Id. at 16-19.
supplement
The trial court denied the Rule 3.850 motion and the
in
its
Order
Motions
for
Petitioner appealed.
Ex.
J.
The state filed a notice that it would not file a brief.
Ex.
K.
The 1st DCA, on August 4, 2015, per curiam affirmed.
Postconviction Relief.
Denying
Defendant's
Id. at 24-138.
The mandate issued on September 1, 2015.
Ex. L.
Ex. O.
On July 28, 2015, Petitioner filed a Motion to Correct Illegal
Sentence pursuant to Rule 3.800(a), Fla. R. Crim. P.
The trial court denied the motion.
appealed.
Id. at 24-27.
Id. at 9-11.
He filed a brief.
filed a notice of filing no answer brief.
curiam affirmed.
Ex. U.
Ex. R at 1-4.
Ex. S.
Ex. T.
Petitioner
The state
The 1st DCA per
The mandate issued on November 29, 2016.
Ex. V.
Petitioner, on January 19, 2016, filed a Petition for Writ of
Habeas Corpus in the 1st DCA.
Ex. W.
The 1st DCA, on February 9,
2016, dismissed the petition, citing Baker v. State, 878 So.2d 1236
(Fla. 2004) (per curiam) (finding habeas corpus relief is not
available to obtain collateral post conviction relief if the claims
can be raised pursuant to Rule 3.850).
- 8 -
Ex. X.
VI.
INEFFECTIVE ASSISTANCE OF COUNSEL
In order 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).
Recently, the Eleventh Circuit, in Reaves v. Sec'y, Fla. Dep't of
Corr., 872 F.3d 1137, 1148 (11th Cir. 2017) (quoting Strickland,
466 U.S. at 687), petition for cert. docketed by (U.S. April 9,
2018)
(No.
17-8428),
instructed:
a
counsel's
performance
is
deficient only if counsel's errors are "so serious that counsel was
not functioning as the 'counsel' guaranteed the defendant by the
Sixth
Amendment."
establishment
of
And
prejudice
importantly,
requirement,
with
regard
the
Eleventh
to
the
Circuit
provided that the reasonable probability of a different result must
be
"a
probability
outcome.
sufficient
to
undermine
confidence
in
the
Id. (quoting Strickland, 466 U.S. at 694).
Finally, in order to prevail on a claim of ineffective
assistance of counsel, both parts of the Strickland test must be
satisfied.
Bester v. Warden, Att'y Gen. of the State of Ala., 836
F.3d 1331, 1337 (11th Cir. 2016) (citing Holladay v. Haley, 209
F.3d 1243, 1248 (11th Cir. 2000)), cert. denied, 137 S.Ct. 819
- 9 -
(2017).
However, a court need only address one prong, and if it is
found unsatisfied, the court need not address the other prong. Id.
VII.
EXHAUSTION AND PROCEDURAL DEFAULT
The Petition is timely filed.
assert,
however,
procedurally
ten
out
defaulted,
of
but
Response at 6-7.
Petitioner's
Respondents
adequately exhausted grounds six and nine.
twelve
recognize
Respondents
claims
are
Petitioner
Id. at 7, 24, 31.
Since the question of exhaustion has been raised, 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
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
- 10 -
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).
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
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 v. Ryan, 566 U.S. 1, 9-10 (2012).
The Supreme Court has imparted that a petition for writ of
habeas corpus should not be entertained unless the petitioner has
- 11 -
first exhausted his state court remedies. Castille v. Peoples, 489
U.S. 346, 349 (1989); Rose v. Lundy, 455 U.S. 509 (1982).
A
procedural default arises "when 'the petitioner fails to raise the
[federal] claim in state court and it is clear from state law that
any future attempts at exhaustion would be futile.'"
Owen v.
Sec'y, Dep't of Corr., 568 F.3d 894, 908 n.9 (11th Cir. 2009)
(quoting Zeigler v. Crosby, 345 F.3d 1300, 1304 (11th Cir. 2003)),
cert. denied, 558 U.S. 1151 (2010).
There are, however, allowable exceptions to the procedural
default doctrine; "[a] prisoner may obtain federal review of a
defaulted claim by showing cause for the default and prejudice from
a violation of federal law."
Martinez, 566 U.S. at 10 (citing
Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
If cause is
established, a petitioner is required to demonstrate prejudice. In
order to demonstrate prejudice, a petitioner must show "that there
is at least a reasonable probability that the result of the
proceeding
violation
would
not
have
been
occurred."
different
Owen,
had
568
the
F.3d
constitutional
at
908.
More
particularly, to demonstrate cause, a petitioner must show that
some objective factor external to the defense impeded his effort to
properly raise the claim in state court.
Wright v. Hopper, 169
F.3d 695, 703 (11th Cir.), cert. denied, 528 U.S. 934 (1999).
After a thorough review of the record before the Court, the
Court
concludes
Petitioner
exhausted
all
of
his
claims
of
ineffective assistance of counsel. Thus, not only did he exhaust
- 12 -
grounds six and nine, he also exhausted grounds five, seven, eight,
ten, and eleven.
See Reply at 2.
He raised these claims in his
Rule 3.850 motion, the trial court addressed the grounds applying
the Strickland two-pronged test, and denied the claims.
24-37.
Petitioner
completed
the
exhaustion
Ex. I at
requirements
by
appealing the denial of the Rule 3.850 motion,3 and the 1st DCA per
curiam affirmed.
Ex. L.
Petitioner exhausted grounds one and two by presenting these
grounds in his pro se brief on direct appeal.
Ex. F.
In Point One
on direct appeal, Petitioner relied on the Fourth Amendment to the
United States Constitution and referenced Jenkins v. State, 978
So.2d 116, 121 (Fla. 2008) ("The Florida Constitution now expressly
provides that the right shall be construed in conformity with the
Fourth Amendment to the United States Constitution, as interpreted
by the United States Supreme Court."), a case addressing the
reasonableness of a search under the Fourth Amendment. Ex. F at 57.
In
Point
Three
on
direct
appeal,
Petitioner
raised
the
following claim: "[t]rial court erred in violation of Appellant's
Fourth Constitutional Amendment right in Article 1, Section 12
Illegal Search and Seizure."
Ex. F at 9.
Within the body of Point
Three, he repeatedly referenced the Fourth Amendment and argued the
3
As noted by Petitioner in his Reply at 10, Petitioner was
not required to file a brief on appeal of the denial of his Rule
3.850 motion as he did not receive an evidentiary hearing on his
motion. See Rule 9.141(b)(2)(C)(i), Fla. R. App. P. Therefore, by
appealing the denial of his post conviction motion, he successfully
exhausted his state court remedies.
- 13 -
officer did not have probable cause to conduct a search and
seizure.
Id. at 10-11.
Petitioner admits that the constitutional claims raised in
grounds three and four are unexhausted.
As cause, he claims his
appellate counsel performed deficiently by failing to raise these
constitutional
claims
on
direct
appeal,
and
Petitioner
was
unrepresented in his post conviction proceeding, so he asks that
the Martinez [v. Ryan, 566 U.S. 1 (2012)] exception be extended to
these grounds.
Reply at 6-8.
Unfortunately for Petitioner, the
narrow exception set forth in Martinez has not been extended to
allow a federal court to hear a substantial, but procedurally
defaulted claim of ineffective assistance of appellate counsel.
Indeed, in Davila v. Davis, 137 S.Ct. 2058, 2065-66 (2017), the
Supreme Court specifically declined to allow this extension. Thus,
grounds three and four are unexhausted and procedurally defaulted.
Petitioner has failed to show cause, and he does not meet the
prejudice or manifest injustice exceptions.
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).
- 14 -
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 these unexhausted grounds, Petitioner
has failed to identify any fact warranting the application of the
fundamental miscarriage of justice exception.
In conclusion, the Court finds grounds three and four are
unexhausted and procedurally defaulted.
As Petitioner has failed
to establish cause and prejudice or any factors warranting the
application of the fundamental miscarriage of justice exception to
overcome the default, these grounds are due to be denied as
procedurally barred.
With respect to the issue of exhaustion, the last matter the
Court will address is whether ground twelve of the Petition has
been properly exhausted in the state court system.
Upon review,
Petitioner presented this ground in his Motion to Correct Illegal
Sentence.
Ex.
R
at
1-4.
He
claimed
his
"constitutionally intolerable[.]" Id. at 1.
thirty-year
sentence
was
unconstitutional
sentence
was
He asserted his
because
he
was
not
Id.
He
referenced due process principles in the body of his motion.
Id.
charged as a principal in the state's information.
at 2.
He also relied on United States v. Prentiss, 256 F.3d 971
(10th Cir. 2001) (recognizing the Fifth Amendment's requirement
that the government prove each and every element of a crime beyond
- 15 -
a reasonable doubt), overruling in part on other grounds recognized
by Pioneer Centres Holding Co. Employee Stock Ownership Plan and
Trust v. Alerus Financial, N.A., 858 F.3d 1324 (10th Cir. 2017).
See Ex. R at 2.
The trial court denied this claim for relief on its merits,
finding
it
unnecessary
"that
an
indictment
or
information
specifically charge a person under the principal theory to sustain
a conviction under the theory."
Ex. R at 10 (citation omitted).
Petitioner appealed, and the 1st DCA per curiam affirmed.
Ex. U.
Therefore, the Court concludes that Petitioner exhausted ground
twelve in the state court system and it is not procedurally barred.
To summarize, the Court finds only grounds three and four are
unexhausted and procedurally defaulted. The Court will address the
remainder of Petitioner claims.
VIII.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
Ground One
In the first ground of the Petition, Petitioner raises a claim
of trial court error in finding probable cause for Petitioner's
arrest.
Petitioner raised this Fourth Amendment claim on direct
appeal.
The 1st DCA affirmed.
Ex. G.
Of interest, in his Rule 3.850 motion, Petitioner blamed his
trial counsel for failure to file a motion to dismiss, asserting
there was no probable cause to arrest because no police officer
observed Petitioner engaging in criminal activity and there was a
lack of evidence against him.
The trial court found Petitioner's
- 16 -
allegations "nonsensical." Ex. I at 31. The court pointed out the
strength of the state's evidence:
As described above, Detective Walton testified
that he saw Defendant with crack cocaine in
his possession and Defendant agreed to make a
sale to Steele. (Ex. E at 181.) Detective
Walton further testified that, while he did
not see an actual transaction, he viewed
Defendant and Steele walk around the corner of
a building and afterwards, Steele emerged with
cocaine. (Ex. E at 181-82.) Further, Steele
testified that Defendant sold her drugs behind
the building because he only wanted to deal
with her. (Ex. E at 228-30.)
Ex. I at 31.
"A warrantless arrest is supported by probable cause if the
arresting officer, at the time of arrest, had reasonable grounds to
believe that a felony was being, or had been, committed and that
the person to be arrested participated in that felony." Jarrell v.
Balkcom, 735 F.2d 1242, 1249 (11th Cir. 1984), cert. denied, 471
U.S. 1103 (1985).
See Case v. Eslinger, 555 F.3d 1317, 1327 (11th
Cir. 2009)("Probable cause to arrest exists when law enforcement
officials have facts and circumstances within their knowledge
sufficient to warrant a reasonable belief that the suspect had
committed or was committing a crime.") (citation omitted).
Of import, probable cause does not require overwhelmingly
convincing evidence, but simply requires reasonably trustworthy
information.
Id. (citations and quotations omitted).
There was
certainly sufficient information gathered showing a "probability or
chance of criminal activity."
Id. (quoting Illinois v. Gates, 462
- 17 -
U.S. 213, 245 n.13 (1983)).
In this case, the evidence presented
concerning the police officers encounter with Petitioner translated
into a well-founded suspicion that Petitioner had committed, was
committing or was about to commit a crime to justify the seizure.
Therefore, ground one is due to be denied.
The Court finds that Petitioner adequately exhausted his claim
by presenting it on direct appeal.
curiam.
Ex. G.
The 1st DCA affirmed per
Thus, there is a qualifying state court decision
under AEDPA.
Here, deference under AEDPA should be given to the 1st DCA's
adjudication.
precedent.
Its decision is not inconsistent with Supreme Court
The state court's adjudication of this claim is not
contrary to or an unreasonable application of Supreme Court law, or
based on an unreasonable determination of the facts. Petitioner is
not entitled to habeas relief based on this claim.
Thus, ground
one is due to be denied.
B.
Ground Two
In his second ground for relief, Petitioner raises a claim of
trial court error, claiming the trial court overlooked the illegal
search and seizure during the arrest. On direct appeal, Petitioner
raised a Fourth Amendment claim, arguing the officers did not have
probable cause to conduct a search and seizure.
curiam affirmed.
The 1st DCA per
Ex. G.
Helpfully, the trial court, in denying the Rule 3.850 motion,
summarized the relevant evidence presented at trial:
- 18 -
Further, during trial, Detective Lester
J. Walton ("Detective Walton") testified on
behalf of the State.
(Ex. E at 154.)
Detective Walton stated that he was working
undercover when he came into contact with
Defendant's
co-defendant,
Diane
Steele
("Steele").
(Ex. E at 159-60.)
Detective
Walton testified that he asked Steele about
where he could buy drugs and Steele directed
him to a nearby pawn shop where they came into
contact with Defendant.
(Ex. E at 160-62.)
Detective Walton testified that he was
equipped with audio recording equipment during
the encounter. (Ex. E at 163.) This audio
recording was played during Detective Walton's
testimony (Ex. E at 165-80.)
While the
transcript depicts that some of the statements
are "inaudible," Defendant's voice was heard
on
the
recording
and
Detective
Walton
testified about the actions taking place.
(Ex. E at 165-80.) Detective Walton testified
that he never saw Defendant actually engage in
a transaction because Defendant would only
make the sale to Steele. (Ex. E at 180-81.)
Detective Walton, however, did see cocaine in
Defendant's possession and watched Steele go
around the back of a building with Defendant
and emerge with cocaine.
(Ex. E at 181.)
This cocaine was also admitted into evidence
during Officer Walton's testimony. (Ex. E at
182.)
Ex. I at 27-28.
The police officers encounter with Petitioner translated into
a
well-founded
suspicion
that
Petitioner
had
committed,
was
committing or was about to commit a crime to justify the seizure.
Indeed, there was a probability or chance of criminal activity. As
such, the police officers could conduct an arrest, and as part of
that arrest, the officers may search the person arrested and the
area within the person's immediate presence for fruits of the crime
or articles used in the commission of the crime.
- 19 -
Fla. Stat. §
901.21 (Search of person arrested). See United States v. Robinson,
414 U.S. 218, 234 (1973) (the search-incident-to-arrest warrant
exception permits a search and inspection of the contents of
personal items found on the arrestee, recognizing the need to
disarm the suspect and to preserve evidence).
The adjudication of the state appellate court resulted in a
decision
that
involved
a
reasonable
application
of
clearly
established federal law, as determined by the United States Supreme
Court.
Ex. G.
Therefore, Petitioner is not entitled to relief on
this ground because the 1st DCA's decision was not contrary to
clearly established federal law, did not involve an unreasonable
application of clearly established federal law, and was not based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings.
Petitioner is
not entitled to habeas relief on ground two.
C.
Ground Five
In ground five, Petitioner raises a claim of ineffective
assistance of counsel for failure to object to the introduction of
the audio tape and for failure to move to suppress the audio tape.
Petitioner exhausted this ground by raising it in ground one of his
Rule 3.850 motion and appealing the denial of this ground in issue
one of his post conviction appeal brief.
Ex. I; Ex. J; Ex. L.
The trial court, before addressing Petitioner's claim of
ineffective
assistance
of
counsel,
set
forth
the
two-pronged
Strickland standard of review for this claim grounded in the Sixth
- 20 -
Amendment.
Ex. I at 25.
Petitioner urged the trial court to find
his counsel was ineffective for failure to seek the suppression of
the audio tape based on an allegation that the majority of the tape
was
inaudible.
Id.
at
26.
Petitioner
claimed
the
alleged
deficiencies in the recording rendered the recording untrustworthy.
Id.
Moreover, he asserted the recording offered no evidence of a
drug transaction.
Id.
The trial court, in addressing the claim of ineffectiveness,
noted that the trial court had conducted a Nelson hearing, and at
that hearing, defense counsel stated he did not have legal grounds
to file a motion to suppress.
Id. at 26-27.
As such, the court
concluded that counsel could not be found ineffective for failing
to file a motion that would have been denied.
Id.
Thus, the trial
court found no deficient performance.
Additionally,
performance,
the
court
Petitioner
counsel's performance.
held,
failed
Id. at 28.
to
even
show
he
assuming
was
deficient
prejudiced
by
The court said that even if the
audio recording and the cocaine had been suppressed, the jury would
have heard the testimony of Detective Walton.
Id.
The 1st DCA per curiam affirmed the trial court's decision.
Ex. L.
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.
- 21 -
In denying this ground, not only did the trial court find no
deficient performance, the court also found Petitioner was not
prejudiced by counsel's performance.
Thus, the court determined
that the suppression of the audio tape would not have changed the
outcome of Petitioner's trial as required by Strickland.
In
essence, the court found there is not a probability of a different
result sufficient to undermine confidence in the outcome of the
trial if counsel had acted as Petitioner claimed he should have.
Strickland, 466 U.S. at 694.
the trial court.
The 1st DCA affirmed the decision of
Ex. L.
Again, in order to prevail on his claim of ineffective
assistance of counsel, Petitioner has to satisfy both parts of the
Strickland test.
Bester, 836 F.3d at 1337.
With respect to this
claim, Petitioner failed to do so.
The record shows the 1st DCA affirmed the decision of the
trial court in denying this ground.
Thus, AEDPA deference is
warranted. 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.
Petitioner is not entitled to habeas relief on ground five.
D.
Ground Six
In ground six, Petitioner claims he received the ineffective
assistance of counsel for failure to properly argue for a judgment
of
acquittal
on
the
charge
of
sale
or
delivery
of
cocaine.
Petitioner exhausted this ground by raising it in ground two of his
- 22 -
Rule 3.850 motion4 and appealing the denial of this ground in issue
two of his post conviction appeal brief.
Ex. I; Ex. J; Ex. L.
The Due Process Clause of the Fourteenth Amendment requires
the state to prove beyond a reasonable doubt each element of the
offense charged. Thompson v. Nagle, 118 F.3d 1442, 1448 (11th Cir.
1997)(citing Jackson v. Virginia, 443 U.S. 307, 314 (1979)), cert.
denied, 522 U.S. 1125 (1998).
"[T]his court must presume that
conflicting inferences to be drawn from the evidence were resolved
by the jury in favor of the State."
Thompson, 118 F.3d at 1448
(citing Machin v. Wainwright, 758 F.2d 1431, 1435 (11th Cir.
1985)).
The relevant question is whether any rational jury, after
viewing
the
evidence
in
the
light
most
favorable
to
the
prosecution, could have found the essential elements of the charged
offense beyond a reasonable doubt.
Thompson, 118 F.3d at 1448.
The trial court instructed the jury that in order to prove the
crime of sale or delivery of cocaine, "the State must prove the
following two elements beyond a reasonable doubt: One, Michael
McCay Gardner sold or delivered a certain substance; two, the
substance was cocaine."
Ex. B4 at 332.
The court defined sell, as
"to transfer or deliver something to another person in exchange for
money or something of value or a promise of money or something of
value."
4
Id.
The
court
defined
deliver,
as
"the
actual
Petitioner claimed his counsel's performance was deficient
for failure to argue that there was no evidence presented at trial
to show Petitioner had any drugs or money on his person or that he
engaged in criminal activity. Ex. I at 5.
- 23 -
constructive or attempted transfer from one person to another of a
controlled
substance,
relationship."
Id.
whether
or
not
there
is
an
agency
The records shows the jury, after hearing the
trial court's instructions, returned a verdict finding Petitioner
guilty of sale or delivery of cocaine.
Id. at 346-47.
The trial court, in denying post conviction relief, found this
claim of ineffective assistance of counsel meritless. Ex. I at 29.
The court first noted that defense counsel moved for judgment of
acquittal.
Id.
See Ex. B3 at 283.
Not only did he so move, the
record demonstrates he renewed the motion after the defense rested.
Ex. B3 at 294.
In its order denying post conviction relief, the trial court
rejected the claim of ineffective assistance of counsel, finding
"[t]here is no reasonable probability that, had counsel argued as
Defendant suggests, the trial court would have granted the motion."
Ex. I at 29.
Thus, the court concluded Petitioner failed to
establish prejudice.
See Bester, 836 F.3d at 1337 (finding a
petitioner must satisfy both prongs of the Strickland test in order
to prevail on his claim of ineffective assistance of counsel).
In sum, the trial court found Petitioner did not demonstrate
prejudice under Strickland.
In failing to satisfy the prejudice
prong of Strickland, Petitioner could not prevail on his claim of
ineffective assistance of counsel.
The 1st DCA affirmed.
Ex. L.
The state court's ruling is well-supported by the record and
by controlling case law, Strickland and its progeny.
- 24 -
Petitioner
raised the issue in his post conviction motion, the trial court
denied the motion, and the appellate court affirmed.
Ex. L.
This
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. Petitioner is
not entitled to habeas relief on ground six.
E.
In
his
seventh
Ground Seven
ground,
Petitioner
raises
a
claim
of
ineffective assistance of counsel for failure to file a motion to
dismiss the charges.
Petitioner exhausted this ground by raising
it in ground three of his Rule 3.850 motion and appealing the
denial of this ground in issue two of his post conviction appeal
brief.
Ex. I; Ex. J; Ex. L.
Again, Petitioner claims there was no probable cause to arrest
him because the police did not observe him engage in criminal
activity
and
there
was
no
evidence
against
him.
As
previously, the court found this assertion "nonsensical"
the evidence presented at trial.
referenced
the
evidence:
Detective
Ex. I at 31.
Walton
noted
based on
The court
testified
he
saw
Petitioner with crack cocaine, Petitioner agreed to sell cocaine to
Steele, Petitioner and Steele walked around the corner of the
building, and Steele emerged with the cocaine.
Id.
Moreover, the
court pointed out that co-defendant Steele took the stand and
testified Petitioner sold her drugs behind the building.
- 25 -
Id.
Again, the court found defense counsel could not be deemed
ineffective for failure to file a motion which would have been
properly denied, citing Branch v. State, 952 So.2d 470, 476 (Fla.
2006) (per curiam).
Ex. I at 31.
Finally, the court held
Petitioner failed to establish prejudice, the second prong of the
two-part Strickland test.
In
denying
this
Ex. I at 31.
ground,
the
trial
court
concluded
that
Petitioner failed to show that he was prejudiced by counsel's
alleged error and denied post conviction relief.
affirmed.
Id.
The 1st DCA
Ex. L.
In this instance, deference under AEDPA should be given to the
state court's decision.
Its decision is not inconsistent with
Supreme Court precedent, including Stickland and its progeny.
The
state court's adjudication of this claim is not contrary to or an
unreasonable application of Strickland, or based on an unreasonable
determination of the facts.
As such, ground seven is due to be
denied.
F.
In
his
eighth
Ground Eight
ground,
Petitioner
presents
a
claim
of
ineffective assistance of counsel for failure to impeach Detective
Williams with prior inconsistent statements.
Petitioner exhausted
this ground by raising it in ground four of his Rule 3.850 motion
and appealing the trial court's decision to the 1st DCA.
Ex. J; Ex. L.
- 26 -
Ex. I;
Notably, the trial court, in denying the Rule 3.850 motion,
referenced the applicable two-pronged Strickland standard as a
preface to addressing Petitioner's claim of ineffective assistance
of counsel.
Ex. I at 25.
In its decision, the court assuming
arguendo deficient performance, found there was no showing of
prejudice due to the testimony of Detective Hux.
Initially,
the
court
succinctly
Id. at 32-33.
described
Petitioner's
contention:
In Ground Four, Defendant claims that
counsel was ineffective for failing to impeach
Detective
James
Williams
("Detective
Williams") with prior inconsistent statements
given during his deposition.
According to
Defendant, Detective William's deposition
testimony
consisted
of
the
following:
Defendant was "[b]asically walking from the
back of the pawnshop towards University
Boulevard . . . me and Detective Hux . . . get
out of the car, we kind of split [up] . . .
[a]nd I actually lost sight of Mr. Gardner for
just a second or two due to a car . . . in
that area. And as I came around one of those
cars, ordered Mr. Gardner to the ground and he
complied . . . ."
(Def's Mot. at 8-9.)
Detective Williams, however, testified at
trial that he chased after Defendant who did
not initially comply with commands to stop.
(Ex. E at 274-75.) Defendant avers that had
counsel impeached Detective Williams there is
a reasonable probability that Defendant would
not have been found guilty of Resisting
Officer Without Violence to His or Her Person.
Ex. I at 31-32.
Next, the court explained its reasoning for denying the claim
based on failure to show prejudice, the second prong of Strickland:
Detective Hux and Detective Williams were
the arresting officers in Defendant's case.
- 27 -
(Ex. E at 251-52.)
Detective Hux testified
that during the transaction at the pawn shop,
he
and
Detective
Williams
positioned
themselves in front of the pawn shop to make a
swift apprehension.
(Ex. E at 252.)
Detective Hux stated that when the undercover
officers gave the "takedown signal," Defendant
was already walking toward the west side of
the pawn shop, toward the takedown officers.
(Ex. E at 253-54.)
Detective Hux further
testified that when he got out of the vehicle
and made eye contact with Defendant, Defendant
ran around the vehicle in front of Detective
Hux in an attempt to flee on foot. (Ex. E at
254.) Detective Hux stated that Defendant did
not initially obey commands to stop, but
eventually
gave
up
before
getting
to
University Boulevard, which was thirty to
forty feet from the takedown vehicle. (Ex. E
at 254.)
Detective Hux also testified that
during this takedown, he and Detective
Williams were wearing police tactical uniforms
that clearly displayed "Police."
(Ex. E at
254.)
Ex. I at 32.
In its conclusion, the court opined Detective Hux's testimony
alone would have been sufficient for the jury to find Petitioner
guilty of resisting arrest without violence.
Id. at 33.
Finally,
the court determined Petitioner failed to show he was prejudiced by
the failure of counsel to impeach Detective Williams.
Id.
Thus, in denying this ground, the trial court concluded that
Petitioner failed to satisfy the prejudice prong under Strickland.
The 1st DCA affirmed.
Ex. L.
Deference under AEDPA should be
given. The state court's decision is not inconsistent with Supreme
Court precedent, including Stickland and its progeny.
The state
court's adjudication of this claim is not contrary to or an
- 28 -
unreasonable application of Strickland, or based on an unreasonable
determination of the facts.
As such, ground eight is due to be
denied.
G.
Ground Nine
In his ninth ground for habeas relief, Petitioner claims his
counsel was ineffective for failure to file a motion for new trial
based on the fact that the verdict was contrary to the weight of
the evidence.
Petitioner exhausted this ground by raising it in
ground five of his Rule 3.850 motion and appealing the trial
court's decision to the 1st DCA.
Ex. I; Ex. J; Ex. L.
The trial court denied relief, concluding failure to preserve
an issue for appeal does not show the necessary prejudice under
Strickland, and finding, based on the overwhelming evidence of
guilt, there was no reasonable probability that the trial court
would have granted a motion for new trial.
Ex. I at 34.
In denying post conviction relief, the trial court explained:
This Court is not convinced of any strong
likelihood that a new trial would have been
ordered had counsel filed a motion for new
trial.
Defendant avers that no one ever
observed him with any drugs in his possession.
Detective Walton, however, testified that he
saw Defendant with crack cocaine in his
possession and witnessed Defendant agree to
make a sale to Steele.
(Ex. E at 181.)
Defendant also claims that no one ever
observed
him
engage
in
a
transaction.
Detective Walton, however, testified that
while he did not see a transaction, he viewed
Defendant and Steele walk around the corner of
a building and Steele emerged with cocaine
afterwards. (Ex. E at 181-82.) Steele also
testified that Defendant sold her drugs behind
- 29 -
the building because he only wanted to deal
with her. (Ex. E at 228-30.)
Defendant next maintains that no drugs or
money were in his possession when he was
arrested. Detective Hux, however, testified
that while Defendant was running away from
him, Detective Hux observed Defendant discard
an object that he recognized as "crumpled-up
money."
(Ex. E at 254-55.)
Based on the
overwhelming evidence of guilt, there is not a
reasonable probability that this Court would
have granted a motion for new trial.
Ex. I at 33-34.
The 1st DCA affirmed.
Ex. L.
In order to show a violation of the Sixth Amendment, both
parts of the Strickland test must be satisfied.
deficient
prejudice.
performance,
Petitioner
has
not
Even assuming
shown
resulting
The trial court concluded that Petitioner failed to
establish that there was a reasonable probability that the trial
court would have granted a motion for new trial, even assuming one
was filed by counsel.
As the state court's decision is not inconsistent with Supreme
Court precedent, including Stickland and its progeny, deference
under AEDPA should be given.
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.
As such, ground nine is due to be denied.
H.
Ground Ten
In ground ten, Petitioner claims his counsel was ineffective
for failure to argue a Fourth Amendment violation.
this ground by raising it in the supplement.
- 30 -
He exhausted
Ex. I at 17.
He
completed the exhaustion requirement by appealing the denial of the
motion.
The 1st DCA affirmed.
Ex. L.
Petitioner, in ground nine of the supplement, claimed his
counsel was ineffective for failing to file a motion to suppress or
a motion to dismiss based on a Fourth Amendment violation.
at
17.
In
support
of
this
ground,
Petitioner
Ex. I
contends
the
detectives never obtained probable cause to arrest him. Id. at 18.
The trial court, in its order denying relief, renumbered this claim
ground six.
Id. at 34 n.2.
The trial court denied this claim finding a motion to suppress
or dismiss based on a Fourth Amendment violation would not have
been granted, there was nothing unconstitutional about the arrest
because the detectives obtained the necessary probable cause to
arrest Petitioner, and as a result, Petitioner has failed to
satisfy the prejudice prong of Strickland because, if these motions
would
not
have
properly
been
granted,
prejudice
established in failure to file the motions.
cannot
be
Ex. I at 34-35.
Finally, the trial court rejected Petitioner's claim of manifest
injustice as being without merit because counsel's decision "was
premised upon his understanding that there were no legal grounds in
which to file such a motion."
without opinion.
This
Court
Id. at 35.
The 1st DCA affirmed
Ex. L.
in
Grinard-Henry
v.
United
States,
No.
8:03CR-437T17MAP, 2006 WL 2265416, at *3 (M.D. Fla. Aug. 8, 2006),
explained:
- 31 -
Defense counsel cannot be deemed to have
performed deficiently by failing to file a
motion that would have been futile. For the
same reason, [the petitioner] cannot satisfy
the "prejudice" prong of Strickland. See also
Salcedo-Palma v. United States, 2005 WL
1243775 (M.D. Fla. 2005) (Bucklew, J.)
(finding
that
defense
counsel
was
not
ineffective in failing to file a "futile"
motion to suppress because the defendant
signed a plea agreement in which he admitted
that the vessel on which he was traveling was
"subject to the jurisdiction of the United
States").
In the case at bar, the trial court determined that a motion
to suppress/dismiss would have been futile; therefore, counsel was
not ineffective for failing to file these motions.
As such,
Petitioner's defense counsel cannot be deemed to have performed
deficiently by failing to file the motions, and it follows that
Petitioner cannot satisfy the prejudice prong of Strickland due to
the futility of such motions.
Even if counsel's performance was deemed deficient, Petitioner
has
not
established
prejudice prong.
prejudice,
failing
to
meet
Strickland's
Petitioner has failed to show "that it was
'reasonably likely' that, but for counsel's deficient performance,
the result of the proceeding would have been different."
Stoddard
v. Sec'y, Dep't of Corr., 600 F. App'x 696, 709 (11th Cir.) (per
curiam) (citation omitted), cert. denied, 136 S.Ct. 114 (2015).
Therefore, he is not entitled to habeas relief.
Petitioner is not entitled to relief on ground ten of the
Petition, the claim of ineffective assistance of trial counsel.
- 32 -
Deference, under AEDPA, should be given to the state court's
decision.
Ex. L.
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. Consequently,
Petitioner is not entitled to habeas relief on ground ten.
I.
In
ground
eleven,
Ground Eleven
Petitioner
claims
he
received
the
ineffective assistance of counsel based on the cumulative errors of
counsel.
He exhausted ground eleven by raising it in ground seven
of his Rule 3.850 motion and appealing the trial court's decision
to the 1st DCA.
Since
none
Ex. I; Ex. J; Ex. L.
of
Petitioner's
grounds
claiming
ineffective
assistance of counsel provide a basis for habeas relief, the
cumulative effect of these grounds certainly does not provide any
foundation for granting habeas relief.
An explanation follows.
When Petitioner presented this ground to the trial court in
ground seven of his post conviction motion, the court rejected it,
finding none of the individual claims of ineffective assistance
with merit, thereby concluding a claim of cumulative error also
being without merit.
Ex. I at 35-36.
The First District Court of
Appeal affirmed the decision per curiam.
Ex. L.
Also of significance, the court rejected Petitioner's attempt
to challenge the sufficiency of the evidence through a post
conviction motion:
- 33 -
This Court further finds that Defendant's
allegations in Grounds one through Seven are
an attempt to contest the facts and evidence
upon which his conviction is premised, and is
trying to circumvent these facts by disguising
his claims under the cloak of ineffective
assistance of counsel.
It is well settled
that a defendant may not challenge the
validity or sufficiency of the evidence
against him in a motion seeking postconviction
relief. Betts v. State, 792 So.2d 589, 590
(Fla. 1st DCA 2001); Jackson v. State, 640
So.2d 1173, 1174 (Fla. 2d DCA 1994).
Ex. I at 36.
With respect to the claim of cumulative errors of counsel, the
1st
DCA's
decision
is
entitled
to
deference
under
AEDPA.
Petitioner is not entitled to relief on ground eleven of the
Petition because the state court's decision was not contrary to
clearly established federal law, did not involve an unreasonable
application of clearly established federal law, and was not based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings.
Alternatively, this "cumulative effect" claim simply has no
merit.
If Petitioner's ineffective assistance of counsel claims
are insufficient individually, raising them cumulatively does not
render them 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, 134 S.Ct. 93 (2013).
- 34 -
As a result, the Court finds the cumulative deficiencies of
counsel claim is without merit:
As set forth above, [Petitioner] 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).
Since there were no errors of constitutional
dimension, the cumulative effect of any errors would not subject
Petitioner to a constitutional violation.
286 n.6.
See Miller, 200 F.3d at
Thus, the Court finds Petitioner is not entitled to
habeas relief on the basis of this claim of ineffective assistance
of counsel alleging the cumulative errors of counsel.
Ground
eleven is due to be denied.
J.
Ground Twelve
In his last ground, ground twelve, Petitioner claims the
trial court lacked jurisdiction to impose a sentence upon a
criminal offense or theory not charged in the state's information,
resulting in manifest injustice.
In this ground, he contends the
trial court erred in instructing the jury on the law of principals
when Petitioner was not charged as a principal to sale of cocaine
in the information. Petitioner exhausted this ground by raising it
in his Rule 3.800(a) Motion to Correct Illegal Sentence.
- 35 -
Ex. R at
1-4.
The trial court denied the motion.
appealed.
Id. at 24.
Id. at 9-11.
The 1st DCA per curiam affirmed.
The record shows the following.
Petitioner
Ex. U.
Petitioner was charged by
information with sale or delivery of cocaine.
Ex. B1 at 10.
In
count one of the information, it charges: "on January 2, 2009, in
the County of Duval and the State of Florida, [Petitioner] did
unlawfully sell or deliver a controlled substance as named or
described in Section 893.039(2)(a)4, Florida Statutes, to-wit:
Cocaine, contrary to the provisions of Section 893.13(1)(a)1,
Florida Statutes."
Ex. B1 at 10.
The trial court instructed the
jury:
Principals.
If the defendant helped
another person or persons commit or attempt to
commit a crime, the defendant is a principal
and must be treated as if he had done all the
things the other person or persons did if,
one, the defendant had a conscious intent that
the criminal act be done and, two, the
defendant did some act or said some word which
was intended to and which did incite, cause,
encourage, assist or advise the person or
persons to actually commit or attempt to
commit the crime.
To be a principal, the
defendant does not have to be present when the
crime is committed or attempted.
Ex. B4 at 333-34.
The trial court, in denying this ground, opined: "[b]ecause
there is no requirement that a person be specifically charged under
the principal theory, this Court finds any alleged error in
Defendant's Information is without merit." Ex. R at 10. The court
- 36 -
noted, in Florida, a person charged with commission of a crime may
be convicted under the principal theory.
Id.
Importantly, even if a defendant is not specifically charged
with aiding and abetting the sale or delivery of cocaine, when
there is sufficient evidence adduced in the state's case-in-chief
to support a principals instruction to the jury, the instruction is
properly given.
Roberts v. State, 813 So.2d 1016, 1017 (Fla. 1st
DCA 2002) (per curiam) (citing Jacobs v. State, 184 So.2d 711 (Fla.
1st DCA 1966) and State v. Roby, 246 So.2d 566 (Fla. 1971)).
As found by the trial court, there was certainly sufficient
evidence presented in the state's case-in-chief to allow for the
principals instruction to be given in this case.
See Response at
82-83. In this case, the trial court properly gave a principals
jury instruction.
See Reed v. Sec'y, Dep't of Corr., No. 6:09-cv-
1083-Orl-35GJK, 2011 WL 4975371, at *7 (M.D. Fla. Oct. 19, 2011)
(finding no ineffectiveness for failure to object to the principals
jury instruction even though the defendant was only charged with
the substantive offense of delivery of ecstasy because of the proof
presented at trial).
As the evidence warranted the giving of the principals jury
instruction, Petitioner is not entitled to habeas relief.
The
trial court denied the claim presented in the Rule 3.800(a) motion,
and the 1st DCA affirmed.
Thus, there is a qualifying state court
decision under AEDPA.
- 37 -
Deference under AEDPA should be given.
The state court's
decision is not inconsistent with Supreme Court precedent.
Its
adjudication of this claim is not contrary to or an unreasonable
application of clearly established federal law, or based on an
unreasonable determination of the facts.
Therefore, Petitioner is
not entitled to habeas relief based on this claim.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.
The Petition for Writ of Habeas Corpus (Doc. 1) is
DENIED.
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 Petition, the
case.
Court denies a certificate of appealability.5
has
determined
that
a
certificate
of
Because this Court
appealability
is
not
warranted, the Clerk shall terminate from the pending motions
5
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.
- 38 -
report any motion to proceed on appeal as a pauper that may be
filed in this case.
Such termination shall serve as a denial of
the motion.
DONE AND ORDERED at Jacksonville, Florida, this 19th day of
April, 2018.
sa 4/18
c:
Michael Gardner
Counsel of Record
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