Hughes v. Secretary, Department of Corrections et al
Filing
20
ORDER denying the 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 4/4/2018. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DONNIE LAPPALE HUGHES,
Petitioner,
vs.
Case No. 3:16-cv-664-J-39MCR
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
I.
INTRODUCTION
Petitioner Donnie Lappale Hughes, in his Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody
(Petition)
(Doc.
1),
challenges
a
2010
Duval
County
conviction for dealing in stolen property (count one) and false
verification of ownership on pawnbroker transaction form (count
three).
Petitioner
raises
four
grounds
in
the
Petition.
Respondents filed an Answer to Petition for Writ of Habeas Corpus
(Response) (Doc. 14) and a Notice of Filing and Serving Exhibits
(Doc. 15).1
Petitioner filed a Notice of Intent Not to File Reply
(Doc. 18).
See Order (Doc. 7).
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 four claims raised in the Petition are: (1) the trial
court erred in instructing the jury that proof of the sale of
stolen property below the fair market value, where there was no
evidence presented of fair market value, gives rise to an inference
the seller knew or should have known the property was stolen,
resulting
assistance
in
a
process
counsel
of
due
for
violation;
failure
to
(2)
the
ineffective
call
two
exculpatory
witnesses, (3) the ineffective assistance of counsel by misadvising
Petitioner not to testify at trial, and (4) the ineffective
assistance of counsel for failure to present a valid defense and
misadvising Petitioner to reject the state's plea offer.
Petitioner seeks an evidentiary hearing.
is
Petitioner's
burden
to
establish
the
Petition at 1.
need
for
a
evidentiary hearing, and he has not met the burden.
It
federal
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
Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
habeas relief.
After a comprehensive review of the record before the Court, the
Court finds that the pertinent facts are fully developed in this
record
or
the
Consequently,
record
this
otherwise
Court
is
precludes
able
- 2 -
to
habeas
"adequately
relief.
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).
The Court will address all four grounds, 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 1289, 1291 (11th Cir. 2009)), but no evidentiary
proceedings are required in this Court.
III.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (AEDPA)
governs a state prisoner's federal petition for habeas corpus. See
28
U.S.C.
§
2254;
Ledford
v.
Warden,
Ga.
Diagnostic
&
Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert.
denied, 137 S.Ct. 1432 (2017).
"AEDPA limits the scope of federal
habeas review of state court judgments[.]"
Pittman v. Sec'y, Fla.
Dep't of Corr., 871 F.3d 1231, 1243 (11th Cir. 2017).
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 not grant habeas relief:
on "any claim that was adjudicated on the
merits in State court proceedings unless the
- 3 -
adjudication of the claim" either "(1)
resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that 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). "When
deciding that issue, we review one decision:
'the last state-court adjudication on the
merits.'" Wilson v. Warden, Ga. Diagnostic
Prison, 834 F.3d 1227, 1232 (11th Cir. 2016)
(en banc) (emphasis added) (quoting Greene v.
Fisher, 565 U.S. 34, 40, 132 S.Ct. 38, 181
L.Ed.2d 336 (2011)). This narrow evaluation is
highly deferential, for "[a] state court's
determination that a claim lacks merit
precludes federal habeas relief so long as
'fairminded jurists could disagree' on the
correctness of the state court's decision."
Harrington v. Richter, 562 U.S. 86, 101, 131
S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664, 124
S.Ct. 2140, 158 L.Ed.2d 938 (2004)). 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.
Mar. 27, 2018).
The standard of proof is demanding, requiring that a claim be
highly probable. Bishop v. Warden, GDCP, 726 F.3d 1243, 1258 (11th
Cir. 2013), cert. denied, 135 S.Ct. 67 (2014).
Also, the trial
court's determination will not be superseded if reasonable minds
might disagree about the factual finding.
S.Ct. 2269, 2277 (2015).
Brumfield v. Cain, 135
Also of note, "[t]his presumption of
- 4 -
correctness applies equally to factual determinations made by the
state trial and appellate courts."
Pope v. Sec'y for Dep't of
Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (quoting Bui v. Haley,
321 F.3d 1304, 1312 (11th Cir. 2003)), cert. denied, 568 U.S. 1233
(2013).
As noted above in Morrow, in applying AEDPA deference, the
first step is to identify the last state court decision that
evaluated the claim on its merits.
Marshall v. Sec'y, Fla. Dep't
of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016).2
Once identified,
the Court reviews the state court's decision, "not necessarily its
rationale." Pittman, 871 F.3d at 1244 (quoting Parker v. Sec'y for
Dep't of Corr., 331 F.3d 764, 785 (11th Cir. 2003) (citation
omitted)).
Regardless of whether the last state court provided a reasoned
opinion, "it may be presumed that the state court adjudicated the
claim on the merits in the absence of any indication or state-law
procedural principles to the contrary." Harrington v. Richter, 562
U.S. 86, 99 (2011). "The presumption may be overcome when there is
reason to think some other explanation for the state court's
2
As suggested by the Eleventh Circuit in Butts v. GDCP
Warden, 850 F.3d 1201, 1204 (11th Cir. 2017), cert. denied, 138
S.Ct. 925 (2018), in order to avoid any complications if the United
States Supreme Court decides to overturn Eleventh Circuit precedent
as pronounced in Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d
1227 (11th Cir. 2016) (en banc), cert. granted, 137 S.Ct. 1203
(2017), this Court, will employ "the more state-trial-court focused
approach in applying § 2254(d)[,]" where applicable.
- 5 -
decision is more likely." Richter, 562 U.S. at 99-100 (citing Ylst
v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the last adjudication on the merits is unaccompanied by
an explanation, the petitioner must demonstrate there was no
reasonable basis for the state court to deny relief.
"[A]
habeas
court
must
determine
what
arguments
Id. at 98.
or
theories
supported or, as here, could have supported, the state court's
decision; and then it must ask whether it is possible fairminded
jurists
could
disagree
that
those
arguments
or
theories
are
inconsistent with the holding in a prior decision of [the] Court."
Richter, 562 U.S. at 102; Marshall, 828 F.3d at 1285.
Although the § 2254(d) standard is difficult to meet, the
standard is meant to be difficult.
Rimmer v. Sec'y, Fla. Dep't of
Corr., 876 F.3d 1039, 1053 (11th Cir. 2017) (opining that to reach
the level of an unreasonable application of federal law, the ruling
must be objectively unreasonable, not merely wrong or even clear
error), petition for cert. docketed by (U.S. Mar. 9, 2018) (No. 178046).
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 citation omitted), cert. denied, 568 U.S. 1237
(2013).
must
Thus, in order to obtain habeas relief, "a state prisoner
show
that
the
state
court's
ruling
on
the
claim
being
presented . . . was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any
- 6 -
possibility for fairminded disagreement."
Richter, 562 U.S. at
103.
IV.
PROCEDURAL HISTORY
A brief procedural history will provide context for the
claims.
In an information, Petitioner was charged with dealing in
stolen property, burglary of a structure, and false verification of
ownership on pawnbroker transaction form.
Ex. A at 14-15.
The
state filed a Notice of Intent to Classify Defendant as an Habitual
Felony Offender.
Id. at 16.
conducted a jury trial.
On July 7, 2010, the trial court
Ex. B.
The jury returned a verdict of
guilty as two counts one and three, and not guilty as to count two.
Id. at 166-67; Ex. A at 38-40.
Petitioner moved for a new trial,
Ex. A at 77-78, and the trial court denied it.
On
October
proceeding.
6,
2010,
Id. at 116-37.
the
trial
court
held
Id. at 80.
a
sentencing
The court sentenced Petitioner as a
habitual felony offender to thirty years in prison on count one,
concurrent with a ten-year sentence on count three. Id. at 134-35.
The court entered judgment and sentence on October 6, 2010. Id. at
83-89.
Petitioner appealed his conviction.
Id. at 106.
Through
counsel, Petitioner filed an appeal brief. Ex. C. The state filed
an answer brief.
Ex. D.
On March 6, 2012, the First District
Court of Appeal (1st DCA) affirmed with a written opinion.
The mandate issued on March 22, 2012.
Ex. F.
Ex. E.
Petitioner sought
discretionary review, Ex. G, but the Supreme Court of Florida
- 7 -
declined to accept jurisdiction and denied the petition for review.
Ex. H.
Petitioner filed a Motion for Postconviction Relief (Rule
3.850 motion), pursuant to the mailbox rule, on October 12, 2012.
Ex. I.
He filed an Amended Motion for Post-Conviction Relief
(amended Rule 3.850 motion) on November 20, 2013.
Ex. J.
After
being directed to do so by the trial court, the state filed a
Response to Defendant's Amended Motion for Post Conviction Relief
addressing ground four of the amended motion (ground eight, as
designated by the trial court).
Petitioner replied.
Ex. K.
See Ex. M at 80.
Ex. L.
The trial court denied the Rule 3.850 motion and amended Rule
3.850
motion
in
its
Order
Denying
Defendant's
Motion
for
Postconviction Relief and Amended Motion for Postconviction Relief.
Ex. M.
Petitioner moved for rehearing.
denied rehearing.
Ex. O.
Ex. N.
Petitioner appealed.
The trial court
Ex. P.
filed a notice that it would not file a brief.
Ex. Q.
DCA, on February 18, 2016, per curiam affirmed.
mandate issued on March 15, 2016.
V.
In
order
Petitioner
must
The state
The 1st
Ex. R.
The
Ex. S.
INEFFECTIVE ASSISTANCE OF COUNSEL
to
prevail
satisfy
on
the
these
Sixth
two-pronged
Amendment
test
set
claims,
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
- 8 -
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), 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."
And importantly, with regard to the establishment of
prejudice requirement, the Eleventh Circuit provided that the
reasonable probability of a different result must be "a probability
sufficient to undermine confidence in the outcome.
Id. (quoting
Strickland, 466 U.S. at 694).
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
(2017).
However, a court need only address one prong, and if it is
found unsatisfied, the court need not address the other prong. Id.
VI.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
Ground One
In his first ground, Petitioner claims the trial court erred
in instructing the jury that proof of the sale of stolen property
below the fair market value, where there was no evidence presented
of fair market value, gives rise to an inference the seller knew or
- 9 -
should have known the property was stolen, resulting in a due
process violation. Petition at 15. Petitioner contends this issue
boils down to a due process violation as the state was allowed to
infer guilt but not present evidence to support the inference on
essential elements of the crime of dealing in stolen property. Id.
In the Response, Respondents assert that the due process claim is
unexhausted and procedurally barred.
Response at 11, 24-27.
In addressing the question of exhaustion, this Court must ask
whether Petitioner's claim was 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).
Upon review, the record shows Petitioner did not raise the
federal due process claim in his appeal brief.
Ex. C.
Thus, he
did not fairly present a federal constitutional claim to the state
courts.
In this case, it is clear that any future attempts at
exhaustion would be futile.
There are, however, allowable exceptions to the procedural
default doctrine; "[a] prisoner may obtain federal review of a
defaulted claim by showing cause for the default and prejudice from
a violation of federal law."
Martinez v. Ryan, 566 U.S. 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
would
have
violation not occurred."
been
different
had
the
constitutional
Owen, 568 F.3d at 908.
More particularly, to demonstrate cause, a petitioner must
show that some objective factor external to the defense impeded his
- 12 -
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). Here, Petitioner fails to point to some factor external to
the defense.
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).
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.3
3
Although the 1st DCA, on direct appeal, found there was no
evidence presented as to the fair market value of the compressor,
it held the giving of the inference instruction did not constitute
fundamental error as the instruction did not omit or erroneously
define an essential element of the offense. Ex. E at 5. Instead,
this instruction merely advised the jury of a permissible inference
- 13 -
In conclusion, the Court finds ground one is unexhausted and
procedurally defaulted.
As Petitioner has failed to establish
cause and prejudice or any factors warranting the application of
the fundamental miscarriage of justice exception to overcome the
default, this ground is due to be denied as procedurally barred.
B.
Ground Two
In ground two, Petitioner raises a claim of ineffective
assistance
of
counsel
for
witnesses.
Petition at 18.
failure
to
call
two
exculpatory
Petitioner exhausted this ground by
raising it in ground three of his Rule 3.850 motion and ground one
(renumbered as ground five) of the Amended Rule 3.850 motion and
appealing the denial of this ground in issue one of his appeal
brief.
Ex. I; Ex. J; Ex. P.
With respect to this ground, Petitioner claims he told his
counsel that his defense was one of true ownership of the pawned
air compressor.
Petition at 18.
In support of this stated
defense, he avers he informed his counsel that Pastor Johnson was
mistaken in his belief that the red Sears Craftsman air compressor
was
his
own,
self-described,
black,
air
compressor.
Id.
Petitioner said it was "a case of mistaken identity supported by
circumstantial evidence of photos of the Petitioner found at the
scene."
Id.
that it was free to accept or reject.
- 14 -
Id.
More
performance
specifically,
was
Plaintiff
deficient
for
contends
failure
to
his
call
counsel's
Mrs.
Rosetta.
Petitioner claims Mrs. Rosetta would have testified that the red
air compressor was originally hers, but she had given it to
Petitioner
in
Additionally,
exchange
for
Petitioner
work
asserts
performed
for
her.
counsel's
performance
deficient for his failure to call Ms. Earlene Collins.
alleges
Ms.
Collins
would
have
testified
that
she
Id.
was
Petitioner
witnessed
Petitioner working on Mrs. Rosetta's vehicles with the red air
compressor, and Ms. Collins could attest that the compressor had
been given to Petitioner.
Id. at 19.
"Which witnesses, if any, to call . . . is the epitome of a
strategic decision, and it is one that [a court] will seldom, if
ever, second guess."
Waters v. Thomas, 46 F.3d 1506, 1512 (11th
Cir. 1995), cert. denied, 516 U.S. 856 (1995).
In order to
demonstrate ineffectiveness, the decision must be so patently
unreasonable that no competent attorney would have chosen that
path.
Dingle v. Sec'y for the Dep't of Corr. 480 F.3d 1092, 1099
(11th Cir.) (quotation omitted), cert. denied, 552 U.S. 990 (2007).
See Rizo v. United States, No. 03-20010-CIV, 2014 WL 7152755, at *5
(S.D. Fla. Dec. 15, 2014), aff'd, 662 F. App'x 901 (11th Cir. 2016)
(finding counsel's decision not to call alibi witnesses was not
unreasonable, particularly where the alibis were not airtight,
avoiding leaving the jury with the conundrum as to whether to focus
- 15 -
more on the proof of the alibi than on whether the state has met
its burden of proof).
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
Amendment.
Ex. M at 80-82.
The court outlined the particular
claim of ineffectiveness:
In Ground Three, Defendant claims counsel
failed to adequately investigate his case.
According to Defendant, he requested counsel
call two unnamed Defense witnesses to prove he
received the air compressor from someone for
whom he did car repairs.
In Ground Five,
Defendant identifies the two exculpatory
Defense witnesses: Ms. Rosetta, a friend; and
Ms. Earlene Collins, his fiancee at the time
of the offense. (Def's Am. Mot. 7.) First,
according to Defendant, Mrs. Rosetta would
have testified the pawned, red air compressor
originally belonged to her, but she gave it to
him as a gift.
Therefore, the pawned air
compressor did not belong to Pastor Johnson,
as Pastor Johnson's air compressor was black
in color, not red.
Second, Defendant avers
Ms. Collins would have testified that, for
two-and-one-half years prior to the offense,
she witnessed Defendant working on cars using
the pawned, red air compressor.
Defendant
contends the outcome of his trial would have
been different had these two witnesses
testified on his behalf.
Ex. M at 86-87 (accent omitted).
In finding the claim to be without merit, the court opined:
The
Court
finds
trial
counsel
exhaustively questioned Pastor Johnson during
cross-examination about his identification of
the air compressor, and especially about how
he forgot the color of it during trial. (Ex.
E at 24, 38, 43-45.)
Indeed, counsel
- 16 -
presented Pastor Johnson with his previous
written statement, within which he wrote his
air compressor was black in color, but he
recognized in open court for the jury that the
pawned air compressor was red. (Ex. E at 4647.)
Thus,
the
Court
finds
counsel
established the very same evidentiary effect
through his questioning of the victim as
presentation of these two witnesses would
have, that is, the pawned air compressor did
not belong to Pastor Johnson. The Court finds
the testimony of these two witnesses would not
have changed the outcome of Defendant's trial
as required by Strickland. As such, these two
grounds for relief are denied.
Ex. M at 87.
The 1st DCA per curiam affirmed the trial court's decision.
Ex. R.
There is a reasonable basis for the state court to deny
relief, and this decision must be given deference.
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.
As noted by the trial court, counsel chose to exhaustively
question Pastor Johnson on cross examination and impeach his
testimony with his prior written statement concerning the color of
his air compressor.
Initially, defense counsel inquired about the
color of the air compressor as described to the detective.
at 46.
Ex. B
Pastor Johnson said he told the detective he didn't know if
it was black or red.
Id.
Upon further inquiry, Pastor Johnson
said he forgot the color, but when he saw the compressor he knew
it.
Id.
- 17 -
Defense
counsel
asked
Pastor
Johnson
to
read
statement to himself to refresh his recollection.
his
Id.
prior
Counsel
then inquired:
Q
And, Mr. Johnson, in this statement
you wrote on the 24th shortly after this
incident, you wrote down that it was a black
air compressor; is that right?
A
That's correct.
Q
You didn't write
couldn't remember, right?
A
paper.
No.
down
that
you
I didn't write that on the
Q
The only thing you wrote was the
color black, right, sir?
A
That's correct.
Q
And that air compressor
Would you agree on that?
A
is
red.
Yes.
Id. at 47.
The record before the Court supports the conclusion that
counsel's performance was not deficient.
It shows that on cross
examination of Pastor Johnson, defense counsel asked the pastor
about the description of the air compressor provided to the
detective.
Pastor Johnson conceded he had not written that he did
not remember the color, or written it was black or red, but instead
described the color of the compressor as black in his statement
written shortly after the incident.
Thus, counsel's effective
cross examination of Pastor Johnson demonstrated to the jury that
- 18 -
the witness did not describe the compressor as being black and red,
or red. Instead, Pastor Johnson claimed a black air compressor had
been taken from church property.
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.
This Court must consider that counsel is given wide latitude in
making tactical decisions, like selecting who to call as witnesses.
Id.
Although Mrs. Rosetta or Ms. Collins were not called to
testify at trial, defense counsel effectively cross examined Pastor
Johnson, which revealed that he claimed he owned a black air
compressor, not a red one.
The Court recognizes, "[t]here are
countless ways to provide effective assistance in any given case."
Id.
The trial court found that counsel "established the very same
evidentiary effect" through cross examination of Pastor Johnson as
would have been achieved by calling the two suggested witnesses.
Ex. M at 87.
Indeed, defense counsel showed through effective
cross examination that Pastor Johnson said he owned a black air
compressor, not the red, pawned air compressor.
Ex. M at 87.
Counsel's decision to attack the state's case in this manner
was not so patently unreasonable that no competent attorney would
have chosen that path.
His tactic of using extensive cross
examination of Pastor Johnson concerning his claimed ownership of
a black air compressor placed the focus of the jury on whether the
- 19 -
state had met its burden of proof.
Indeed, defense counsel argued
in closing:
And the most important thing is the
color. And he [Pastor Johnson] sat right up
there and testified that this was a black
compressor. And it was tried to be made that
this is a black compressor, even though this
big tank here is glowing red. But that's like
saying, you know, if you have a yellow car but
the bumpers are black, that it's a black car.
It's a red compressor. It's right there.
So much so that the pawn people
corroborate that. That's what they wrote
pawn slip, and this will go back with
They didn't write black compressor.
clear. Red Compressor.
even
on a
you.
Very
Ex. B at 130-31.
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, concluding "the testimony of
these
two
witnesses
would
not
have
changed
Defendant's trial as required by Strickland."
the
outcome
of
Ex. M at 87.
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 called the two witnesses.
U.S. at 694.
Strickland, 466
The 1st DCA affirmed the decision of the trial court.
Ex. R.
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.
claim, Petitioner failed to do so.
- 20 -
With respect to this
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
contrary.
Since
or
the
state-law
last
procedural
adjudication
principles
on
the
to
merits
the
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.
Petitioner is not entitled to habeas relief on ground two.
C.
Ground Three
In his third ground, Petitioner seeks habeas relief based on
a claim of ineffective assistance of counsel for misadvising
Petitioner not to testify at trial.
Petition at 20.
Petitioner
contends counsel's advice not to testify was unreasonable under the
circumstances.
Id.
Petitioner claims he was "constitutionally
entitled" to present evidence to support his defense theory that he
owned the air compressor and Pastor Johnson misidentified the
compressor as being his own compressor.
Id.
Petitioner exhausted this ground by raising it in the Amended
Rule 3.850 motion as ground four (renumbered as ground eight). Ex.
J.
The state filed a response to this ground.
- 21 -
Ex. K.
Petitioner
replied.
93.
Ex. L.
The trial court denied the claim.
Ex. M at 91-
Petitioner appealed the denial of this claim, raising it in
issue two of his post conviction appeal brief, and the 1st DCA
affirmed.
Ex. P; Ex. R.
It is important to note that in the reply brief filed in the
trial court, Petitioner conceded the claim that counsel misadvised
Petitioner that if he testified the jury would learn the nature of
his prior convictions, finding it "conclusively refuted by the
record[.]" Ex. L at 75.
Nevertheless, Petitioner still claimed
trial counsel's misadvice not to testify prejudiced the defense
because it deprived Petitioner of the opportunity to present his
defense.
Upon review of the trial record, it is quite apparent that the
defense strategy did not include the presentation of evidence. Ex.
B at 102.
In fact, defense counsel announced to the court that no
evidence would be presented. Id. The record also shows, after the
state rested, the following colloquy took place between the court
and Petitioner:4
THE COURT:
Mr. Hughes, I need you to
come up front for a moment please.
THE DEFENDANT: (Complying.)
THE COURT: Mr. Hughes, as the defendant
in a criminal case, you have the right to
choose whether or not you want to testify.
4
Of note, the trial court did not place Petitioner under
oath.
- 22 -
Most people if they get a subpoena, they
got to come –- they got to testify, but since
you're the defendant, your Constitutional
Right against self-incrimination says that if
you want to testify, you can testify. If you
don't want to testify, you don't have to.
Mr. Niemczyk [defense counsel] can advise
you about what he thinks you ought to do, but
he can't make the decision for you.
The
decision has to be made by you and you alone.
If you choose not to testify, I will
instruct the jury that they can't consider
that as any admission of guilt on your part,
and they can't be influenced by your decision
in any way in rendering your verdict.
If you choose to testify, you have to
answer the State's questions as well as your
lawyer[']s questions, and you will be asked
how many times you've been convicted of a
felony or a crime involving dishonesty.
As long as you and the State agree on
what that number is, the jury only hears the
number of prior convictions.
They don't go
into any of [the] charges.
If you and the State cannot agree on a
number, then the State's entitled to place
into
evidence
certified
copies
of
any
judgments they have against you.
If that
happens, the jury learns the nature of your
prior convictions as well as the number. But
as long as you and the State agree on the
number, that's all that the jury hears.
Also, if you choose not to testify since
you're not a witness, your prior record is
irrelevant and doesn't come into trial in any
manner. Do you understand all those?
THE DEFENDANT:
Yes, sir.
THE COURT: Have you had a chance
discuss all of this with Mr. Niemczyk?
THE DEFENDANT: Yes, sir.
- 23 -
to
Ex. B at 102-104.
The trial court continued its inquiry:
THE COURT: Have you made a decision about
whether you want to testify or not?
THE DEFENDANT: Yes.
THE COURT: You haven't made a decision?
THE DEFENDANT: I don't want to testify.
THE COURT: You have made a decision?
THE DEFENDANT: Yes, sir.
THE COURT: And you don't want to testify?
THE DEFENDANT: No, sir.
THE COURT: Do you want Mr. Niemczyk to
call any witnesses other than yourself to
testify?
MR. NIEMCZYK: We don't have any.
THE DEFENDANT: We don't have any.
Id. at 104.
The Eleventh Circuit discussed the fundamental right of a
criminal defendant to testify:
It is by now abundantly clear that a
criminal defendant has a fundamental right to
testify on his own behalf at trial. Rock v.
Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 97
L.Ed.2d 37 (1987); United States v. Teague,
953 F.2d 1525, 1532 (11th Cir. 1992) (en
banc). That right "cannot be waived either by
the trial court or by defense counsel," and a
"criminal defendant cannot be compelled to
remain silent by defense counsel." Teague, 953
F.2d at 1532.
- 24 -
Nejad v. Att'y Gen., State of Ga., 830 F.3d 1280, 1289–90 (11th
Cir. 2016).
Based on the trial court's inquiry and Petitioner and his
defense counsel's responses, the defense clearly expressed it
intention not to call any witnesses.
counsel
told
the
court
they
did
Both Petitioner and defense
not
have
any
witnesses.
Petitioner, in response to the extensive inquiry by the trial
court, said he did not want to testify.
In fact, he repeatedly
stated his position on the matter.
If there was any misadvice on the part of counsel, the trial
court cured it by correctly informing Petitioner about his absolute
right to testify on his own behalf and the fact that it was
Petitioner's decision, and his alone as to whether to testify or
not.
Importantly, the court reminded Petitioner his attorney was
there to provide advice, but ultimately it was Petitioner's sole
decision as to whether to take the stand.
The record demonstrates Petitioner is an habitual felony
offender.
Ex. A at 16.
At sentencing, the defense stipulated to
seven prior felony convictions.
Id. at 120.
As previously noted,
the court thoroughly explained to Petitioner that the jury would,
at a minimum, be apprised of the number of Petitioner's prior
felony convictions if he took the stand.
In its order denying post conviction relief, the trial court
rejected the claim of ineffective assistance of counsel.
91-93.
The court held:
- 25 -
Ex. M at
In Ground Eight, Defendant argues counsel
was ineffective for misadvising him to not
testify at trial on his own behalf. Defendant
contends counsel told him if he decided to
take the witness stand, the jury would learn
about the specific nature of his previous
convictions, including prior convictions for
Burglary.
(Def.'s Am. Mot. 16.)
Defendant
argues that, had he testified, he would have
told the jury the air compressor he pawned
belonged to Mrs. Rosetta, but she gave it to
him and he sold it. (Def's Am. Mot. 16-17.)
As noted supra, the Court previously directed
the State to respond to this allegation. In
its response, the State argues the record
refutes Defendant's instant claim for relief
and it should be denied.
Specifically, the
State avers even if counsel advised Defendant
as he alleges, the trial court remedied such
advice by apprising Defendant of the potential
ramifications if he chose to testify on his
own behalf.
The Court adopts the State's
response as to its latter contention and
denies Defendant relief.
Ex. M at 91.
The court found Petitioner did not demonstrate prejudice under
Strickland
due
misadvice.
Id. at 91-92.
to
the
fact
that
the
trial
court
cured
any
Addressing this ground, the trial court
assumed arguendo Petitioner's allegations were true, but still
found Petitioner failed to demonstrate prejudice.
Id. at 92-93.
In doing so, the court opined, "the evidence presented at trial
overwhelmingly demonstrates Defendant's guilt[.]" Id. at 93.
In
failing to satisfy the prejudice prong of Strickland, Petitioner
could not prevail on his claim of ineffective assistance of
counsel. See
Bester, 836 F.3d at 1337 (finding a petitioner must
- 26 -
satisfy both prongs of the Strickland test in order to prevail on
his claim of ineffective assistance of counsel).
If there is any reasonable basis for the court to deny relief,
the denial must be given deference.
With regard to this claim of
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, and the appellate court
affirmed.
Ex. R.
This Court concludes that 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
Petitioner is not entitled to habeas
relief on ground three.
D.
Ground Four
In his fourth and final ground, Petitioner raises a claim of
ineffective assistance of counsel for failure to present a valid
defense and misadvising Petitioner to reject the state's plea
offer.
Petition at 21.
Petitioner raised this claim in the state
court system in ground three of his Amended Rule 3.850 motion
(renumbered as ground seven). Ex. J. Raising this ground as issue
four of his post conviction appeal brief, he appealed the trial
court's ruling, exhausting his claim in the state courts.
- 27 -
Ex. P.
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. M at 80-82.
In a well-reasoned decision, the
court rejected this claim finding counsel did not render deficient
performance.
First,
Id. at 90.
the
court
succinctly
described
Petitioner's
contentions:
In Ground Seven, Defendant argues counsel
misadvised him about his chances of prevailing
at trial, and because of this misadvice, he
rejected a favorable plea offer from the State
and proceeded to trial. In support, Defendant
contends the State offered him a plea offer of
five years of incarceration as a non-HFO, but
he rejected this offer upon counsel's "bad
advice" about the merits of misidentification
defense.
(Def.'s Am. Mot. 13.)
Defendant
further avers he rejected the plea offer upon
counsel's belief the Defense would prevail at
trial because (1) the State's case was weak,
and (2) the victim misstated the stolen air
compressor was black and not red, showing
Defendant
pawned
a
different,
red
air
compressor, and not the victim's black one.
(Def's Am. Mot. 12-13.)
Ex. M at 90.
Thereafter, the court set forth what would be expected to be
shown under Strickland to adequately support a claim of this
nature:
the defendant must assert more than
merely that counsel advised against
accepting a plea, that the defendant
took the advice, and that ultimately
a greater sentence was imposed. On
its
face,
such
an
allegation
- 28 -
identifies no failing on counsel's
part.
Rather,
some
specific
deficiency must be alleged: for
instance, that counsel advised the
client to reject the plea without
preparing or knowing the operative
facts of the case, or that counsel
neglected to identify the material
legal issues, or that counsel
otherwise did not fully perform as a
lawyer.
Dines v. State, 909 So.2d 521, 523 (Fla. 2d
DCA 2005).
Ex. M at 90.
Finally,
the
court
rejected
the
claim
of
ineffective
assistance of trial counsel. Id. The court opined that failure to
prevail at trial after a recommendation to reject a plea offer does
not mean the pre-trial advice was per se misadvice.5
Id.
The
court noted, according to Petitioner, defense counsel made his
recommendation to proceed to trial, "after carefully assessing the
State's case/evidence and the victim's inability to identify the
color of his missing air compressor[.]" Id. at 92.
As such, the
court concluded that even Petitioner's contentions showed counsel's
"diligent investigation and knowledge of the case/facts[.]" Id.
Applying the Strickland, standard, the court rejected this
claim of ineffectiveness, finding Petitioner failed to meet his
burden under Strickland.
5
It is noteworthy that "there is no
It is important to recognize that Petitioner prevailed, in
part, at trial. The jury found Petitioner not guilty of burglary
of a structure, a result supporting the conclusion that counsel
diligently investigated the case and prepared for trial, and
effectively represented his client at trial. Ex. A at 39, 41.
- 29 -
expectation that competent counsel will be a flawless strategist or
tactician[.]"
Richter, 562 U.S. at 110.
the standard.
Again, perfection is not
Petitioner has the burden to show his counsel's
representation fell below an objective standard of reasonableness.
With respect to this ground, Petitioner has failed to meet this
burden. He has not shown that his attorney's representation was so
filled with serious errors that defense counsel was not functioning
as counsel guaranteed by the Sixth Amendment.
In
denying
this
ground,
the
trial
court
concluded
that
counsel's performance was not deficient under Strickland, and
denied post conviction relief.
The 1st DCA affirmed.
Ex. R.
Its
adjudication on the merits is unaccompanied by an explanation.
Thus, the Court presumes that the 1st DCA adjudicated the claim on
its merits, as there is an absence of any indication or state-law
procedural principles to the contrary. Notably, it is Petitioner's
burden to show there was no reasonable basis for the state court to
deny relief.
If he fails to accomplish this task, he cannot
prevail on ground four of the Petition.
Upon review, there is a reasonable basis for the state court
to deny relief; therefore, the denial must be given deference.
In
this instance, deference under AEDPA should be given to the last
adjudication on the merits provided by the 1st DCA.
Ex. R.
Given
due consideration, its decision is not inconsistent with Supreme
Court precedent, including Stickland and its progeny.
The state
court's adjudication of this claim is not contrary to or an
- 30 -
unreasonable application of Strickland, or based on an unreasonable
determination of the facts.
As such, ground four is due to be
denied.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
2.
The Clerk shall enter judgment accordingly and close this
3.
If Petitioner appeals the denial of his Petition, the
case.
Court denies a certificate of appealability.6
has
determined
that
a
certificate
of
Because this Court
appealability
is
not
warranted, the Clerk shall terminate from the pending motions
report any motion to proceed on appeal as a pauper that may be
filed in this case.
Such termination shall serve as a denial of
the motion.
6
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.
- 31 -
DONE AND ORDERED at Jacksonville, Florida, this 4th day of
April, 2018.
sa 4/3
c:
Donnie Lappale Hughes
Counsel of Record
- 32 -
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