Owens v. Jones et al
Filing
11
ORDER denying 1 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 3/29/2018. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
LAPOLEAN OWENS,
Petitioner,
vs.
Case No. 3:16-cv-889-J-39JRK
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
I.
INTRODUCTION
Petitioner Lapolean Owens, challenges a 2013 Duval County
conviction for three counts of burglary of a dwelling.
In his
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (Petition) (Doc. 1), he raises two claims
of ineffective assistance of trial counsel.
Respondents filed a
Response to Petition for Writ of Habeas Corpus (Response) (Doc. 9)
with Exhibits.1
Petitioner filed a Reply to Response to Petition
for Writ of habeas Corpus (Doc. 10).
II.
See Order (Doc. 4).
CLAIMS OF PETITION
The two claims are: (1) ineffective assistance of counsel for
failure to object to prosecutorial misconduct, and (2) ineffective
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.
assistance of counsel for failure to impeach adverse witnesses,
Officer Dave Kaplitz and Sheraud Washington.
The Court will address these grounds of ineffective assistance
of counsel, 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.
It is Petitioner's 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). It is important to note
that 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 comprehensive review of the record before
the Court, the Court finds that the pertinent facts are fully
developed in this record.
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),
and
evidentiary proceedings are required in this Court.
- 2 -
no
further
III.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (AEDPA)
governs a state prisoner's federal petition for habeas corpus. See
28
U.S.C.
§
2254;
Ledford
v.
Warden,
Ga.
Diagnostic
&
Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert.
denied, 137 S.Ct. 1432 (2017).
"AEDPA limits the scope of federal
habeas review of state court judgments[.]"
Pittman v. Sec'y, Fla.
Dep't of Corr., 871 F.3d 1231, 1243 (11th Cir. 2017).
As such,
AEDPA ensures that federal habeas relief is limited to extreme
malfunctions, and not used as a means to attempt to correct state
court errors.
Ledford, 818 F.3d at 642 (quoting Greene v. Fisher,
132 S.Ct. 38, 43 (2011)).
The parameters of review are as follows:
Thus, under AEDPA, a person in custody
pursuant to the judgment of a state court
shall not be granted habeas relief on a claim
"that was adjudicated on the merits in State
court proceedings" unless the state court's
decision was "contrary to, or involved an
unreasonable
application
of,
clearly
established Federal law as determined by the
Supreme Court of the United States; or ... was
based on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding." 28 U.S.C. §
2254(d). "For § 2254(d), clearly established
federal law includes only the holdings of the
Supreme Court—not Supreme Court dicta, nor the
opinions of this Court." Taylor v. Sec'y, Fla.
Dep't of Corr., 760 F.3d 1284, 1293–94 (11th
Cir. 2014).
As for the "contrary to" clause, "a
federal habeas court may grant the writ if the
state court arrives at a conclusion opposite
- 3 -
to that reached by [the Supreme Court] on a
question of law or if the state court decides
a case differently than [the Supreme Court]
has on a set of materially indistinguishable
facts." Terry Williams v. Taylor, 529 U.S.
362, 412–13, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000). Under the "unreasonable application"
clause, a federal habeas court may "grant the
writ if the state court identifies the correct
governing legal principle from [the Supreme
Court's] decisions but unreasonably applies
that principle to the facts." Id. at 413, 120
S.Ct. 1495. "In other words, a federal court
may grant relief when a state court has
misapplied a 'governing legal principle' to 'a
set of facts different from those of the case
in which the principle was announced.'"
Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct.
2527, 156 L.Ed.2d 471 (2003) (quoting Lockyer
v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166,
155 L.Ed.2d 144 (2003)). And "an 'unreasonable
application of' [Supreme Court] holdings must
be objectively unreasonable, not merely wrong;
even clear error will not suffice." Woods v.
Donald, ––– U.S. ––––, 135 S.Ct. 1372, 1376,
191 L.Ed.2d 464 (2015) (per curiam) (quotation
omitted). To overcome this substantial hurdle,
"a state prisoner must show that the state
court's ruling on the claim being presented in
federal court was so lacking in justification
that there was an error well understood and
comprehended in existing law beyond any
possibility for fairminded disagreement."
Harrington v. Richter, 562 U.S. 86, 103, 131
S.Ct. 770, 178 L.Ed.2d 624 (2011). This is
"meant to be" a difficult standard to meet.
Id. at 102, 131 S.Ct. 770.
Pittman, 871 F.3d at 1243-44.
There is a presumption of correctness of state court's factual
findings,
unless
the
convincing evidence.
presumption
is
rebutted
28 U.S.C. § 2254(e)(1).
with
clear
and
The standard of
proof is demanding, requiring that a claim be highly probable.
- 4 -
Bishop v. Warden, GDCP, 726 F.3d 1243, 1258 (11th Cir. 2013), cert.
denied, 135 S.Ct. 67 (2014). Also, the trial court's determination
will not be superseded if reasonable minds might disagree about the
factual finding.
Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015).
Also of note, "[t]his presumption of correctness applies equally to
factual determinations made by the state trial and appellate
courts."
Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284
(11th Cir. 2012) (quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th
Cir. 2003)), cert. denied, 568 U.S. 1233 (2013).
In applying AEDPA deference, the first step is to identify the
last state court decision that evaluated the claim on its merits.
Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th
Cir. 2016).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
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 -
procedural principles to the contrary." Harrington v. Richter, 562
U.S. 86, 99 (2011). "The presumption may be overcome when there is
reason to think some other explanation for the state court's
decision is more likely." Richter, 562 U.S. at 99-100 (citing Ylst
v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the last adjudication on the merits is unaccompanied by
an explanation, the petitioner must demonstrate there was no
reasonable basis for the state court to deny relief.
"[A]
habeas
court
must
determine
what
Id. at 98.
arguments
or
theories
supported or, as here, could have supported, the state court's
decision; and then it must ask whether it is possible fairminded
jurists
could
disagree
that
those
arguments
or
theories
are
inconsistent with the holding in a prior decision of [the] Court."
Richter, 562 U.S. at 102; Marshall, 828 F.3d at 1285.
Although the § 2254(d) standard is difficult to meet, it was
meant to be difficult.
Rimmer v. Sec'y, Fla. Dep't of Corr., 876
F.3d 1039, 1053 (11th Cir. 2017) (opining that to reach the level
of an unreasonable application of federal law, the ruling must be
objectively unreasonable, not merely wrong or even clear error),
petition for cert. docketed by (U.S. Mar. 9, 2018) (No. 17-8046).
Indeed, in order to obtain habeas relief, "a state prisoner must
show
that
the
state
court's
ruling
on
the
claim
being
presented . . . was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any
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possibility for fairminded disagreement."
Richter, 562 U.S. at
103.
IV.
PROCEDURAL HISTORY
In order to provide context, the Court provides the relevant
procedural
history
of
the
criminal
case.
In
an
amended
information, Petitioner was charged with three counts of burglary
of a dwelling.
Id. at 53-54.
jury trial.
Ex. A at 35.
Petitioner filed a Notice of Alibi.
On March 11-13, 2013, the trial court conducted a
Ex. C; Ex. D; Ex. E.
guilty as charged.
The jury returned a verdict of
Ex. A at 111-15; Ex. E at 596.
Petitioner
moved for a new trial, Ex. A at 161, and the trial court denied it.
Id. at 162.
On April 11-12, 2013, the trial court held a sentencing
proceeding.
Ex. B at 281-382.
The court sentenced Petitioner to
concurrent twelve-year prison terms for the three offenses. Id. at
380-82. The court entered judgment and sentence on March 13, 2013.
Petitioner appealed his conviction.
Id. at
Through counsel, Petitioner filed an appeal brief.
Ex. J.
Ex. A at 177-82.
193.
The state filed an answer brief.
L.
Ex. K.
Petitioner replied.
Ex.
On July 17, 2014, the First District Court of Appeal (1st DCA)
per curiam affirmed.
2014.
Ex. M.
The mandate issued on August 25,
Id.
Petitioner filed a Motion for Post Conviction Relief Pursuant
[to] Fla. R. Crim. P. 3.850 (Rule 3.850 motion), pursuant to the
mailbox rule, on March 31, 2015.
Ex. N at 1-34.
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The trial court
ordered the state to file a response.
Id. at 35-37.
The state
filed a Response to Defendant's Motion for Post-Conviction Relief.
Id. at 60-149.
Petitioner replied.
Id. at 150-56.
The trial court denied the Rule 3.850 motion in its Order
Denying Defendant's Motion for Post Conviction Relief. Id. at 157227.
Petitioner filed a Notice of Appeal.
an Initial Brief.
Ex. O.
not file a brief.
curiam affirmed.
The 1st DCA, on April 22, 2016, per
The mandate issued on June 17, 2016.
Petitioner moved for rehearing.
2016, denied rehearing.
V.
He filed
The state filed a notice that it would
Ex. P.
Ex. Q.
Id. at 228.
Ex. R.
Id.
The 1st DCA, on June 2,
Ex. S.
INEFFECTIVE ASSISTANCE OF COUNSEL
In this habeas petition, Petitioner raises two claims of
ineffective assistance of trial counsel, and in order to prevail on
these Sixth Amendment claims, Petitioner must satisfy the twopronged test set forth in Strickland v. Washington, 466 U.S. 668,
688 (1984), requiring that he show both deficient performance
(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),
instructed: a counsel's performance is deficient only if counsel's
errors are "so serious that counsel was not functioning as the
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'counsel' guaranteed the defendant by the Sixth Amendment."
importantly,
with
regard
to
the
establishment
of
And
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).
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.
VI.
Id.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
Ground One
In ground one, Petitioner raises a claim of ineffective
assistance of counsel for failure to object to prosecutorial
misconduct.
Petition at 5.
Petitioner exhausted this ground by
raising it in ground one of his Rule 3.850 motion and appealing the
denial of this claim.
It is important to note that on direct appeal, Petitioner,
through counsel, claimed "[t]he cumulative nature of improper
comments in the state's closing argument rose to the level of
fundamental error and deprived the defendant of a fair trial." Ex.
J at i.
The 1st DCA affirmed per curiam.
- 9 -
M.
In the Petition, Petitioner focuses on what he claims were
significant, improper comments that counsel failed to object to
during closing arguments.
The first alleged improper comment
concerns an accusation that Ms. Ashley Kendrick-Owens fabricated
her testimony to help her husband, the Petitioner.
Petition at 6.
The second comment at issue is a statement by the prosecutor: "You
know who doesn't have an interest in the outcome?
detectives.
Id.
The three
They have no interest in the outcome of the case."
Petitioner complains that this comment improperly bolstered
the credibility of the detectives.
Id.
Finally, the third
comments at issue concern a description of Lapolean Owens and the
assertion he was in the driver's seat of the car.
Id.
In addition to these alleged improper comments made at trial,
Petitioner complains that his counsel failed to object to the
prosecutor making improper comments at sentencing about "thoughts"
that the victims and their family members shared with her.
Id.
Petitioner asserts these shared "thoughts" served to inflame the
passion of the sentencing judge and resulted in a harsher sentence.
Notably, the trial court, in denying the Rule 3.850 motion,
referenced the applicable two-pronged Strickland standard as a
preface to addressing Petitioner's claims of ineffective assistance
of counsel.
Ex. N at 157-58.
The court explained its basis for
denying the claim of counsel's failure to object to improper
prosecutorial comments:
- 10 -
Attorneys are given wide latitude during
closing argument "to review the evidence and
to explicate those inferences which may
reasonably be drawn from the evidence."
Bertolotti v. State, 476 So.2d 130, 134 (Fla.
1985).
"An attorney is allowed to argue
reasonable inferences from the evidence and to
argue credibility of witnesses or any other
relevant issue so long as the argument is
based on the evidence." Miller v. State, 926
So.2d 1243, 1254-55 (Fla. 2006).
Ex. N at 158.
The trial court also addressed the negative impact of improper
bolstering: "[i]mproper bolstering occurs when the State places the
prestige of the government behind the witness or indicates that
information not presented to the jury supports the witness's
testimony."
Id. (quoting Hutchinson v. State, 882 So.2d 943, 954
(Fla. 2004) (abrogated on other grounds)).
After reviewing the allegedly improper comments, the trial
court held:
The record supports that the arguments
were either made in rebuttal to defense
argument, were a fair reference to the
evidence on defense argument or were objected
to by defense counsel.
Ex. N at 158.
at
With regard to the allegedly improper comments made
sentencing,
the
court
found
that
the
prosecutor
properly
presented and argued aggravation and mitigation, including victim
impact.
Id. at 159.
In denying this ground, the trial court determined that
counsel could not be deemed deficient for failing to object to
prosecutorial
arguments
and
comments
- 11 -
that
were
proper.
Id.
Finally, the trial court held Petitioner failed to satisfy either
the performance or prejudice prong of Strickland.
Id.
In reviewing a claim of prosecutorial misconduct, it is
important to remember that a prosecutor should not make "[i]mproper
suggestions, insinuations, or assertions" that are intended to
mislead the jury or appeal to passions or prejudices during closing
arguments; United States v. Hope, 608 F. App'x 831, 840 (11th Cir.
2015) (per curiam), but a prosecutor is entitled to offer the jury
his or her view of the evidence presented.
With regard to the
comments made at trial, that is exactly what the prosecutor did;
she argued the testimony showed the occurrence of specific events,
prompting certain conclusions.
Finally, in closing, she asked the
jury to draw all logical inferences from the evidence presented at
trial.
Particular comments are at issue. Some background information
is required to address the disputed comments. In closing argument,
defense counsel argued that Mr. Washington, the co-defendant, had
"a tremendous interest in how this case should be decided."
at 548.
Ex. E
To counter this contention, the state, in rebuttal
closing, made the following argument:
[T]hey talked about an interest in the
case and who has an interest in this case.
Now I want to talk a little bit about Ashley
Owens. She has an absolute interest in this
case.
The defendant is her husband, the
father of her child. She told you she does
not want him to go to prison. She has every
reason in the world to get on that stand and
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try to tell you, he didn't do it; he was with
me.
Id. at 563-64.
The prosecutor descried how pre-trial, Ms. Owens
provided a different time-frame for being with Petitioner on the
day of one of the burglaries.
Id. at 564.
The prosecutor
emphasized the fact that Ms. Owens expanded the time-period in her
testimony at trial.
Upon
review,
this
was
testimony provided at trial.
certainly
a
fair
comment
on
the
Ms. Owens testified on direct that
she picked Petitioner up between 11:00 and 12:00 on January 27,
2011.
Ex. E at 478, 483.
On cross examination, the prosecutor
asked Ms. Owens about her previous deposition testimony, in which
she stated she picked Petitioner up on that date between 12:45 and
1:00, failing to cover the critical time period of the crime.
at 488.
Id.
Ms. Owens finally said the time period stretched between
11:00 and 1:00.
Id.
There was nothing improper about the
prosecutor's comments regarding Ms. Owens' changed testimony.
Defense counsel did not perform ineffectively by electing not to
object.
Petitioner also claims his counsel's performance was deficient
because he should have objected when the prosecutor said in
rebuttal closing:
But you know who doesn't have an interest
in the outcome? The three detectives. They
have no interest in the outcome of this case.
Id. at 564.
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In conjunction with the above comments, the prosecutor argued
that the detectives demonstrated their impartiality by not overcharging the defendant with crimes; the detectives only brought
charges concerning the burglaries to which Petitioner confessed,
not the ones the detectives may have suspected he had done.
565.
Again, this was a fair comment on the evidence.
Id. at
Detective
Thompson testified that Petitioner pointed out the houses he
burglarized, and that when Detective Thompson asked Petitioner
about
another
home
burglarizing it.
on
Westport
Id. at 430.
Bay
Drive,
Petitioner
denied
The detective decided to charge
Petitioner with only three burglaries of the houses specifically
pointed out by Petitioner.
Concerning
additional
Id. at 431.
comments
made
by
the
prosecutor,
Petitioner complains defense counsel failed to object to several
statements about Petitioner's identity or a description of his
person.
In particular, Petitioner claims the prosecutor made a
"false statement" in closing argument when she said "[t]here was a
description of Lapolean Owens."
Ex. E at 565.
Petitioner also
claims counsel was ineffective for failing to object to the
following portion of closing argument:
Just the other day, you heard from Ganell
Ingram, who is a U.S. Postal Service worker
who works in that area. She observed the blue
Dodge Magnum that is the defendant's car
backed into the driveway of that house. She
observed two black males, who matched the
description of Mr. Washington and that
defendant, carrying stuff out.
Now, Mr.
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Washington was observed carrying a TV.
Mr.
Owens was in the driver's seat of that car.
Id. at 517.
The prosecutor went on to say Ms. Ingram provided "a
description of this defendant[.]"
Id. at 517-18.
The Court is not convinced that the prosecutor made a "false
statement" in closing or that counsel performed deficiently by
failing to object.
including
testimony
There was a wealth of evidence at trial,
of
the
co-defendant,
supporting
the
prosecutor's closing remarks concerning Petitioner being the driver
of the vehicle and matching the description of the driver provided
to the police officers and released in a BOLO.
With respect to the description of Petitioner at trial, the
record shows the following.
Ms. Ingram testified that the person
driving the blue Magnum car looked slender, a little bit taller
than the man carrying the television, had a darker complexion, and
was wearing a do-rag on his head.
Ex. D at 256.
She described the
person carrying the television as a not very large person, a little
bit stocky, clean-cut, African-American, with a short hairstyle and
a clean-shaven face.
Id. at 255.
Officer Dave Kaplitz said the BOLO issued stated there were
two black males, one with dreads, and the other person being a
short black male with short hair.
Id. at 307.
Detective D. Groves
testified that when he called Ms. Ingram, she described two
individuals: a black male sitting in the car seat, with long
dreads, and a black male carrying a TV.
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Id. at 319.
After
obtaining this information, Detective Groves put out the radio
BOLO,3 regarding two black males, one really short with short hair,
and the other with long dreads sitting in the car, blue Dodge
Magnum.
Id. at 320.
Detective Groves explained that he did not
put the description of the driver in his report, but he did put it
in the BOLO and on the MDC.
Id. at 321.
Responding to the question why he remembered the description
of Petitioner's hair, Detective Groves explained that when asked
about the height of the driver, Ms. Ingram responded that she could
not see his height, but she did see the driver had long dreadlocks.
Id. at 344.
Detective Groves said the BOLO, "both the typed one
that I sent out on the computer plus the one I put on the air,"
provided the description of Petitioner with dreadlocks.
355.
Id. at
Officer Dave Kaplitz testified that, after receiving the
BOLO, he pulled Petitioner over driving a blue Dodge Magnum, and
Petitioner's appearance seemed to match that contained in the BOLO.
Ex. D at 309.
The comments about which Petitioner complains did not amount
to improper suggestions, insinuations, or assertions.
The Court
finds Petitioner's contention that these comments mislead the jury
in some way unavailing.
Petitioner's counsel cannot be deemed
ineffective for failing to object to the prosecutor's closing
remarks.
3
The remarks were supported by the evidence at trial.
The term BOLO is an acronym for "be on the look out."
- 16 -
Attorneys are allowed wide latitude during closing argument as they
review the evidence and explicate inferences which may reasonably
be drawn from it.
There is no reasonable probability that the outcome of the
proceedings would have been different had counsel objected to all
of the comments Petitioner's references under ground one.
Even if
defense counsel had objected, the trial court would not have
sustained the objections to the prosecutor's comments as they were
extrapolated from the evidence presented at trial.
In order to establish a substantial error by counsel for
failure to object to prosecutorial misconduct, the prosecutor's
"comments must either deprive the defendant of a fair and impartial
trial, materially contribute to the conviction, be so harmful or
fundamentally
tainted
as
to
require
a
new
trial,
or
be
so
inflammatory that they might have influenced the jury to reach a
more severe verdict than it would have otherwise." Walls v. State,
926 So.2d 1156, 1167 (Fla. 2006) (per curiam) (citation omitted).
Also, there must be a showing that there was no tactical reason for
failure to object.
Id.
Without a showing of the above, a
petitioner fails to demonstrate the requisite prejudice.
Id.
In this case, the comments of the prosecutor did not deprive
Petitioner of a fair and impartial trial.
Also, they were not so
inflammatory as to result in a more severe verdict than was
demonstrated by the state's evidence.
After reviewing the record,
it is clear there was substantial and very strong testimonial and
- 17 -
physical evidence presented at trial against Petitioner.
Under
these circumstances, any failure on defense counsel's part to
object
to
the
state's
closing
argument
did
not
contribute
significantly to the verdict.
Upon review, the prosecutor properly undertook an overall
review of the evidence and explicated those inferences which may be
drawn from it, including that of the description of Petitioner as
the driver.
As such, defense counsel's failure to object during
closing argument did not amount to deficient performance and
Petitioner has failed to satisfy the prejudice prong as there is no
reasonable probability that had defense counsel objected to the
statements of the prosecutor in closing, the outcome of the trial
would have been different.
Also in ground one, Petitioner contends that the prosecutor
intended to appeal to the court's passions during sentencing, and
defense counsel should have objected to the prosecutor comments
about "thoughts" that the victims and their family members shared
with her.
Of note, the victims and their family members did not
testify at sentencing.
The trial court found that the statements
provided by the prosecutor were in rebuttal to the mitigation and
properly conveyed the impact of the crimes on the victims' and
their families.
Ex. N at 159.
Instead of attacking the prosecutor's claim of victimization,
defense counsel chose another tactic.
He elected not to object to
the remarks or to dispute the allegations of victimization, but
- 18 -
instead he focused his closing argument on all of the people who
came forward in support of Petitioner at sentencing. Ex. B at 36466.
The court expressed its appreciation for the conduct of
counsel, recognizing he zealously and aggressively represented his
client, while ethically and professionally conducting himself
before the court.
Id. at 370.
The court said it was a rare event
to have a courtroom full of witnesses speaking on behalf of a
defendant. Id. at 371. After argument, the court decided this was
the unusual case requiring further reflection after the substantial
evidence presented at sentencing.
Although the court had been
prepared to sentence the Petitioner that day, after hearing the
testimony and argument, the judge decided to take considerably more
time for reflection, continuing the proceeding until the following
day.
Id. at 373-74.
Upon review of the sentencing record, the prosecutor asked for
a sentence of thirty years.
Id. at 364.
Petitioner faced a
maximum sentence of forty-five years, with the possibility of
consecutive sentences based on the three burglaries.
Id.
After
considerable reflection, the Court sentenced Petitioner to three,
concurrent twelve-year prison sentences, less than half of the time
requested by the state.
Id. at 380-82.
Based on the seriousness
and number of crimes, the court's sentence reflects the impact of
strong mitigation testimony and persuasive argument on the court's
decision-making.
- 19 -
This Court is charged with recognizing that, "[t]here are
countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a
particular client in the same way." Strickland, 466 U.S. at 689–90
(citation omitted).
challenging
the
Here, defense counsel elected to forego
statements
of
the
prosecutor
at
sentencing
concerning victimization, a relatively sensitive subject given the
nature (burglaries of dwellings) and number (three) of felonies
committed; instead, defense counsel presented and relied upon a
wealth of mitigation evidence from numerous witnesses, a sound and
effective strategy as evidenced by the trial court's pronouncement
of relatively light and concurrent sentences. Again, the state was
seeking a thirty-year sentence and Petitioner was facing a maximum
of forty-five years and the possibility of consecutive sentences.
"Intensive scrutiny of counsel and rigid requirements for
acceptable
assistance
could
dampen
independence of defense counsel[.]
the
ardor
and
Id. at 690.
impair
the
This Court will
not unduly scrutinize the performance of defense counsel, and finds
this was acceptable and reasonable assistance considering the
circumstances.
In
order
to
show
a
violation
of
the
Sixth
Amendment, both parts of the Strickland test must be satisfied.
Even assuming deficient performance, Petitioner has not shown
resulting
prejudice.
The
trial
court
could
have
reasonably
concluded that Petitioner failed to establish that the outcome of
the sentencing hearing would have been different had counsel
- 20 -
objected to the comments. Of import, Petitioner has not shown that
a reasonable probability exists that the outcome of the sentencing
proceeding would have been different if his counsel had objected to
the prosecutor's comments.
Upon review, there is a reasonable basis for the court to deny
relief; therefore, the denial must be given deference.
Thus,
deference under AEDPA should be given to the last adjudication on
the
merits
provided
by
the
1st
DCA.
Ex.
Q.
Given
due
consideration, its decision is not inconsistent with Supreme Court
precedent, including Stickland and its progeny.
The state court's
adjudication of this claim is not contrary to or an unreasonable
application
of
Strickland,
determination of the facts.
or
based
on
an
unreasonable
As such, ground one is due to be
denied.
B.
Ground Two
In ground two, Petitioner raises a claim of ineffective
assistance of counsel for failure to impeach two adverse witnesses:
Officer Dave Kaplitz and Sheraud Washington.
Petition at 8.
Petitioner exhausted this ground in the state court system in
ground two of his Rule 3.850 motion.
After citing the Strickland
two-pronged standard of review to prevail on a claim of ineffective
assistance of counsel, the trial court rejected this ground.
N at 157-159.
Ex.
The court stated: "[a] review of the testimony
pointed to by the defendant shows that counsel did not fail to
- 21 -
impeach the witnesses, and therefore cannot be ineffective."
Id.
at 159.
"Strickland does not guarantee perfect representation, only a
'reasonably
competent
attorney.'"
Richter,
562
U.S.
at
110
(quoting Strickland, 466 U.S. at 687) (internal quotation omitted).
Here, defense counsel's representation did not so undermine the
proper functioning of the adversarial process that Petitioner was
deprived of a fair trial.
On the contrary, Petitioner received
effective representation.
Petitioner suggests that Ms. Ganell Ingram's testimony could
have been used to impeach Officer Kaplitz's testimony that he
pulled Petitioner over based on the description given by the
witness.
Petition at 8.
In this regard, Petitioner claims he did
not match the description of the participant in the burglary.
Id.
At trial, on direct, Officer Kaplitz testified he came into
contact with Petitioner during a traffic stop after receiving a
BOLO for several burglaries in the area, and the BOLO described a
certain vehicle and its occupants.
Ex. D at 307.
The BOLO
included a description of a blue Dodge Magnum with lots of chrome,
especially around the windows.
Id.
The BOLO also stated the
vehicle may be occupied by two black males, one with dreads, and
one a shorter black male with short hair.
Id.
Officer Kaplitz
attested he observed such a vehicle on January 28, 2011.
308.
Id. at
The Officer said the individuals' appearance seemed to match
that of the subjects of the BOLO. Id. at 309.
- 22 -
Defense counsel, through cross examination, focused on the
fact Petitioner did not attempt to flee from the police.
310-11.
Id. at
Officer Kaplitz stated there was no improper or erratic
driving. Id. at 311. He testified Petitioner promptly stopped the
car at Forrest High School and there was no attempt to elude.
at 311-12.
Id.
Defense counsel also inquired as to whether there were
any furtive movements in the car or any attempts to throw anything
out of the window.
observe any.
Id.
the
Id. at 313.
Defense counsel also asked if the occupants of
were
vehicle
affirmatively.
Officer Kaplitz said he did not
cooperative,
and
Officer
Kaplitz
responded
Id. at 314.
Ganell Ingram testified the car she saw was navy, with tinted
windows and nice chrome wheels.
Id. at 255.
She described the
driver as a darker complected African American male, a little bit
taller than the other perpetrator, with a do-rag on his head.
Id.
at 256.
Ms. Ingram said she could not tell the type of hair of the
driver.
Id.
Sheraud Washington, the co-defendant, testified on direct that
Petitioner committed the three burglaries.
Id. at 362.
Mr.
Washington testified he was living with Petitioner at the time of
the
burglaries
and
they
were
teammates.
Id.
at
363.
Mr.
Washington described Petitioner as the driver of the vehicle, the
blue Dodge Magnum.
Id. at 365, 378, 381.
Mr. Washington told the
police Petitioner participated in the burglaries.
Id. at 383-84.
Mr. Washington identified a photograph of Petitioner and stated
- 23 -
that was how he looked on the days of the three burglaries.
Id. at
387.
Jason
M.
Washington.
Gropper,
Id. at 390.
defense
counsel,
cross
examined
Mr.
He effectively attacked Mr. Washington's
assertion that he just wanted to be honest, and pointed out that he
failed to contact the police about the burglaries.
Mr.
Gropper
challenged
the
witness,
asking
Id. at 390-91.
him
if
he
was
immediately honest with the police when he was pulled over. Id. at
392.
Mr. Gropper also inquired about Mr. Washington's failure to
admit to more than one burglary.
Id. at 393.
In addition, Mr. Gropper effectively impeached Mr. Washington
concerning his plea deal.
Id. at 394.
On cross, Mr. Washington
admitted that the outcome of Petitioner's case could affect Mr.
Washington's case.
Id.
Mr. Gropper impeached Mr. Washington's
testimony with his prior statement.
admitted
that
concurrently.
the
agreement
Id. at 397-98.
said
Id. at 397.
the
Mr. Washington
sentence
would
run
Importantly, Mr. Gropper asked
pointed questions, and Mr. Washington admitted that, on occasion,
he had driven the blue Dodge Magnum and was able to borrow the car
and drive it, contrary to his testimony on direct.
Id. at 398-99.
Mr. Gropper impeached Mr. Washington's testimony with his
previous sworn statement.
Ex. E at 409-10.
Mr. Washington
admitted that when they were pulled over, he did not tell the
police about Mr. Owens' involvement.
Id. at 410.
Mr. Washington
admitted that he did not mention Mr. Owens' involvement until much
- 24 -
later, after they were both questioned at the Police Memorial
Building.
Id. at 413.
Petitioner asserts that counsel failed to adequately examine
Mr. Washington about what kind of benefit he would receive for
testifying at Petitioner's trial.
Petition at 8.
review of the record, this contention has no merit.
Based on a
The record
reflects that defense counsel effectively examined Mr. Washington
about the benefits he was receiving or expecting to receive from
the state by testifying against Petitioner.
very
effective,
particularly
after
Mr.
This examination was
Washington
denied
any
benefit on direct, when he was clearly receiving some benefit and
expecting a beneficial sentence.
Petitioner also contends his attorney failed to adequately
impeach Mr. Washington about being able to drive the car.
the
record
shows
defense
Washington's testimony.
counsel
adequately
Again,
impeached
Mr.
On direct Mr. Washington denied that he
was allowed to drive the car by himself.
On cross, he admitted
that he was allowed to borrow and drive the car.
After
due
consideration,
the
Court
finds
Petitioner's
contention of inadequate impeachment of adverse witnesses is nonmeritorious.
Defense
counsel
performed
effectively,
if
not
perfectly; "there is no expectation that competent counsel will be
a flawless strategist or tactician[.]"
Richter, 562 U.S. at 110.
Under Strickland, perfection is not the standard.
Petitioner has
the burden to show that his counsel's representation fell below an
- 25 -
objective standard of reasonableness.
meet
this
burden.
He
has
not
Petitioner has failed to
shown
that
his
attorney's
representation was so filled with such serious errors that defense
counsel was not functioning as counsel guaranteed by the Sixth
Amendment, admittedly a high bar that is difficult to reach.
Id.
at 104 (citation omitted).
In denying ground two of the Rule 3.850 motion, the court
concluded
that
Strickland.
counsel's
performance
The 1st DCA affirmed.
was
Ex. Q.
not
deficient
under
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.
Now it is Petitioner's burden to show
there was no reasonable basis for the state court to deny relief.
If he fails to accomplish this task, he cannot prevail on ground
two.
Upon review, there is a reasonable basis for the 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. Q.
Given
due consideration, its decision is not inconsistent with Supreme
Court precedent, including Stickland and its progeny.
The state
court's adjudication of this claim is not contrary to or an
unreasonable application of Strickland, or based on an unreasonable
- 26 -
determination of the facts.
As such, ground two 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.4
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.
4
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.
- 27 -
DONE AND ORDERED at Jacksonville, Florida, this 29th day of
March, 2018.
sa 3/26
c:
Lapolean Owens
Counsel of Record
- 28 -
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