Hayes v. Secretary, Florida Department of Corrections et al
Filing
17
ORDER that the Petition 1 is denied and this case is dismissed with prejudice; directions to the Clerk. Signed by Judge Timothy J. Corrigan on 12/7/2020. (JND)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RICHARD LEROY HAYES,
Petitioner,
v.
Case No. 3:17-cv-1159-J-32PDB
SECRETARY, FLORIDA
DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.
________________________________
ORDER
I.
Status
Petitioner, Richard Leroy Hayes, an inmate of the Florida penal system,
initiated this action by filing a pro se Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. See Doc. 1. He challenges a state court (Duval
County, Florida) judgment of conviction for possession of a firearm by a
convicted felon and possession of cocaine while armed, for which he is serving a
cumulative twelve-year term of incarceration as a Habitual Felony Offender.
See id. Respondents filed a Response. See Doc. 12.1 And Petitioner filed a Reply.
See Doc. 15. This case is ripe for review.
Attached to the Response are numerous exhibits. See Doc. 12-1 through Doc.
12-10. The Court cites to the exhibits as “Resp. Ex.”
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II.
Governing Legal Principals
A. Standard Under AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner’s federal habeas corpus petition. See Ledford v.
Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016). “‘The purpose of AEDPA is to ensure that federal habeas relief functions
as a guard against extreme malfunctions in the state criminal justice systems,
and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S.
34, 38 (2011)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the petitioner’s claims on the merits. See
Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The
state court need not issue an opinion explaining its rationale in order for the
state court’s decision to qualify as an adjudication on the merits. See Harrington
v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s adjudication on the
merits is unaccompanied by an explanation,
the federal court should “look through” the unexplained
decision to the last related state-court decision that
does provide a relevant rationale. It should then
presume that the unexplained decision adopted the
same reasoning. But the State may rebut the
presumption by showing that the unexplained
affirmance relied or most likely did rely on different
grounds than the lower state court’s decision, such as
alternative grounds for affirmance that were briefed or
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argued to the state supreme court or obvious in the
record it reviewed.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
When a state court has adjudicated a petitioner’s claims on the merits, a
federal court cannot grant habeas relief unless the state court’s adjudication of
the claim 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)(1),
(2). A state court’s factual findings are “presumed to be correct” unless rebutted
“by clear and convincing evidence.” Id. § 2254(e)(1).
AEDPA “imposes a highly deferential standard for
evaluating state court rulings” and “demands that
state-court decisions be given the benefit of the doubt.”
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal
quotation marks omitted). “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
(2011) (internal quotation marks omitted). “It bears
repeating that even a strong case for relief does not
mean the state court’s contrary conclusion was
unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,
538 U.S. 63, 75 (2003)). The Supreme Court has
repeatedly instructed lower federal courts that an
unreasonable application of law requires more than
mere error or even clear error. See, e.g., Mitchell v.
Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at
75 (“The gloss of clear error fails to give proper
deference to state courts by conflating error (even clear
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error) with unreasonableness.”); Williams v. Taylor,
529 U.S. 362, 410 (2000) (“[A]n unreasonable
application of federal law is different from an incorrect
application of federal law.”).
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal
citations modified).
B. Ineffective Assistance of Trial Counsel
“The Sixth Amendment guarantees criminal defendants effective
assistance of counsel. That right is denied when a defense counsel’s
performance falls below an objective standard of reasonableness and thereby
prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)
(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.
Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a
person must show that: (1) counsel’s performance was outside the wide range of
reasonable, professional assistance; and (2) counsel’s deficient performance
prejudiced the challenger in that there is a reasonable probability that the
outcome of the proceeding would have been different absent counsel’s deficient
performance. Strickland, 466 U.S. at 687.
Notably, there is no “iron-clad rule requiring a court to tackle one prong
of the Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th
Cir. 2010). Since both prongs of the two-part Strickland test must be satisfied
to show a Sixth Amendment violation, “a court need not address the
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performance prong if the petitioner cannot meet the prejudice prong, and viceversa.” Id. (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As
stated in Strickland: “If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.” 466 U.S. at 697.
“The question is not whether a federal court believes the state court’s
determination under the Strickland standard was incorrect but whether that
determination was unreasonable - a substantially higher threshold.” Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If there is
“any reasonable argument that counsel satisfied Strickland’s deferential
standard,” then a federal court may not disturb a state-court decision denying
the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting Strickland’s high
bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
“Reviewing courts apply a ‘strong presumption’ that counsel’s representation
was ‘within the wide range of reasonable professional assistance.’” Daniel v.
Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting
Strickland, 466 U.S. at 689). “When this presumption is combined with §
2254(d), the result is double deference to the state court ruling on counsel’s
performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y, Dep’t
of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,
concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).
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III.
Analysis
Ground One
Petitioner argues his trial counsel was ineffective for failing to challenge
the legality of the traffic stop that led to evidence being illegally seized from
Petitioner’s vehicle. Doc. 1 at 4. He contends that police conducted the stop and
issued a citation for “improper parking within an intersection”; however, the
conduct police stated they observed did not amount to such a violation. Id. at 5.
As such, according to Petitioner, the police dismissed that traffic violation and
thus, the resulting criminal charges should have also been dismissed.2 Id.
Petitioner raised this claim in his Florida Rule of Criminal Procedure
3.850 motion for postconviction relief.3 Resp. Ex. G at 4-7. The state filed a
response to the claim, arguing the following, in relevant part:
In the instant case, the Defendant was issued two
traffic citations, to-wit: operating a motor vehicle
without a safety belt in use (Florida Statute
316.614(4)(B)) and improper parking within an
intersection (Florida Statute 316.1945(1)(A)(3)).
Neither of the traffic violations the Defendant received
require another vehicle to be impeded or hindered as
the Defendant argues in his Motion. The statute the
Petitioner also argues trial counsel should have filed a motion to suppress.
Doc. 1 at 4-5. The Court addresses Petitioner’s claim regarding trial counsel’s failure
to file a motion to suppress in Ground Two.
2
In his Rule 3.850 Motion, Petitioner also challenged the legality of the traffic
stop based on officers’ alleged racial profiling of Petitioner and that counsel should
have obtained dash cam video footage. Resp. Ex. G at 5-6. Ground One of his Petition,
however, is a more general attack regarding the legality of the stop based on the
asserted traffic violations. Doc. 1 at 5.
3
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Defendant references in his Motion, 316.2045, is
directed at a pedestrian who impedes or hinders traffic.
Thus, it is irrelevant that the arrest and booking report
did not include the information that a car was impeded
or hindered by the Defendant’s vehicle and/or whether
the defense attorney was surprised by that testimony.
Furthermore, and contrary to the Defendant’s
allegation that the officers do not handle traffic
enforcement and are members of a drug hit crew,
Nobles testified that he is a sergeant in Zone 5 and
addresses complaints from citizens, which can include
drug complaints, but also includes many other types of
complaints. Faulkner testified that he was assigned to
a unit that targeted violent crime in Zone 5. Holtsman
and Thompkins both testified that they were Zone 5
patrol officers.
During the trial, Sergeant Nobles testified that
he came into contact with the Defendant based upon a
traffic stop. Specifically, Nobles testified that he first
saw the Defendant parked about one length away from
a stop sign with a gentleman leaning into the passenger
window and a car sitting behind him waiting for him to
move out of the way. Nobles also testified that he
noticed the Defendant was not wearing a seatbelt at the
time. Nobles used a picture on Google map to explain
the exact location of his vehicle and the Defendant’s
vehicle to the jury. Nobles also testified that Officer
Faulkner was driving his patrol car directly behind him
and as he passed the Defendant’s vehicle, he notified
Faulkner that the Defendant was not wearing a
seatbelt and Faulkner confirmed that he also noticed
the Defendant was not wearing a seatbelt. Based upon
his observations, Nobles made a u[-]turn and as soon as
the Defendant pulled in front of him, he turned on his
blue lights to initiate a traffic stop. Nobles testified that
the Defendant did not stop in a normal manner, which
caused him to run up to the Defendant’s vehicle door.
When Nobles ran up to the Defendant’s vehicle, he saw
the Defendant moving what appeared to be a large
clear plastic bag of crack cocaine from the cup holder
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into the console. Nobles testified that as he was pulling
the Defendant out of the car based upon the crack
cocaine he had seen, Officer Holtsman alerted him to a
gun in the vehicle. However, Nobles testified that until
he saw the crack cocaine, it was going to be a normal
traffic stop. Finally, Nobles testified that because he is
a sergeant, he is issued a digital camera, which he used
within one minute of the traffic stop to take
photographs of the evidence.
Officer Faulkner testified that he was travelling
behind Nobles when he saw the Defendant stopped in
the roadway just before a stop sign and saw a guy
leaning into the passenger side window of the
Defendant’s car. Officer Faulkner also testified that the
Defendant was not wearing a seatbelt and confirmed
that fact with Nobles. Faulkner testified that both he
and Nobles turned their vehicles around to stop the
Defendant and that at the time of the stop, he was right
behind Nobles. Faulkner further testified that they
reached the driver’s side of the vehicle pretty much
simultaneously and Nobles alerted him to drugs being
present in the vehicle.
Next Officer Holtsman testified that he received
a transmission that several officers were conducting a
traffic stop. Holtsman stated that when he arrived at
the scene of the traffic stop, he walked over to the
passenger side and saw the Defendant attempt to kick
a gun underneath the driver’s seat on the floorboard
and alerted the other officers. Similarly, Detective
Thompkins testified that he received a radio
transmission about a traffic stop and turned around to
head to the stop. When he arrived at the traffic stop, he
started to walk over to the passenger side of the
Defendant’s vehicle but heard Holtsman say there was
a gun so he went to the driver’s side of the vehicle.
Thompkins testified that he saw the Defendant kicking
the firearm.
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During closing arguments, the defense attorney
told the jurors that the officers pulled the Defendant
out of the car because they thought he was going to run,
which is illegal so they searched the car to find
something to support the arrest. The State objected and
the court sustained the objection with respect to the
argument that the actions of the officers were illegal.
The defense attorney also tried to argue that the
Defendant was on trial for a false probable cause, which
the court again sustained an objection for and called
the attorneys to a sidebar conference. The court told the
defense attorney that it was highly improper for her to
argue to the jury that the arrest was illegal.
Based upon the traffic tickets that were issued,
the facts as noted in the arrest and booking report and
the testimony of the officers involved in the traffic stop
and arrest of the Defendant, the defense attorney did
not have any grounds to support the filing of a motion
to suppress. Specifically, the only concern under the
Fourth Amendment relative to a traffic stop is the
validity of the basis asserted by the officer involved in
the traffic stop and not the subjective motivations of the
individual officers conducting the stop. Dobrin v.
Florida Department of Highway Safety and Motor
Vehicles, 874 So. 2d 1171, 1173 (Fla. 2004). Thus, a
traffic stop is reasonable under the Fourth Amendment
where a law enforcement officer has probable cause to
believe that a traffic violation has occurred. State v.
Thomas, 109 So. 3d 814, 817 (Fla. 5th DCA 2013), citing
Whren v. United States, 517 U.S. 806, 810 (1996). The
constitutional reasonableness of a traffic stop does not
depend on the subjective motivation of the officer who
stopped the vehicle. Id. and Whren at 813. The term
traffic violation encompasses non-criminal and nonmoving violations. State v. Arevalo, 112 So. 3d 529, 531
(Fla. 4th DCA 2013). Once a stop is made, an officer is
justified in asking a driver to exit the vehicle for officer
safety. Hatcher v. State, 834 So. 2d 314, 316 (Fla. 5th
DCA 2003).
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Since June 30, 2009, drivers may be stopped for
not wearing a seatbelt even if it is the primary reason
for the stop as opposed to a secondary action. See
Section 316.614 (Florida Statutes 2009) and Laws of
Florida 2009-32 (2009). Additionally, pursuant to
Section 316.1945, a driver may be stopped for parking
a vehicle on the roadway or within an intersection.
Thus, the traffic stop of the Defendant was valid
pursuant to two different statutes and the Defendant
received traffic citations for both violations. An
attorney is not ineffective for failing to make a
meritless objection. Lugo v. State, 2 So. 3d. 1 (Fla.
2008). If the record conclusively refutes a factual basis
for filing a motion to suppress, it is not ineffective
assistance of counsel to fail to file a motion to suppress.
Jackson v. State, 640 So. 2d 1173 (Fla. 2nd DCA 1994).
Furthermore, if case law demonstrates that a motion to
suppress evidence would not have been successful, then
a claim of ineffective assistance of counsel fails. Ramos
v. State, 559 So. 2d 705 (Fla. 4th DCA 1990). Because
the Defendant has failed to demonstrate that a motion,
even if filed, would have been successful in light of the
evidence in the case, the Defendant has failed to show
he has suffered any prejudice due to counsel’s failure to
file a motion to suppress. Gettel v. State, 449 So. 2d
413, 414 (Fla. 1984) and State v. Freeman, 796 So. 2d
574, 578 (Fla. 2nd DCA 2001). Post-conviction relief is
properly denied where the record rebuts a defendant’s
claim of ineffective assistance. Ferrell v. State, 29 So.3d
959, 971 (Fla. 2010). Accordingly, since the Defendant
has failed to show a prima facie case for relief as to
Ground (A)1 regarding either a legal deficiency, or
prejudice, in his attorney’s failure obtain a dash cam
video that did not exist and failure to challenge the
traffic stop, the State suggests this honorable court
may summarily deny Ground (A)1 of the Defendant’s
Motion based upon the record provided by the State and
the arguments contained within this Response, without
holding an evidentiary hearing.
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Resp. Ex. G at 20-25 (record citations omitted). The trial court then summarily
denied Petitioner’s claim, finding the following:
The Court finds that the facts alleged in the
Response to Defendant’s Motion for Post-Conviction
Relief filed by the State of Florida, and the record
excerpts attached thereto, are true and correct. The
Court also adopts the legal conclusions reached by the
State, and for the reasons asserted therein, it is,
ORDERED AND ADJUDGED:
1. Defendant’s pro se Motion for Post-Conviction Relief
is hereby DENIED.
Id. at 154-55. Petitioner appealed, Resp. Ex. H, and the First District Court of
Appeal per curiam affirmed the trial court’s denial without a written opinion,
Resp. Ex. J. Assuming the First DCA affirmed the denial on the merits, the
Court will address the claim in accordance with the deferential standard for
federal court review of state court adjudications.
A traffic stop is a seizure within the meaning of the Fourth Amendment.
Whren v. United States, 517 U.S. 806, 809-10 (1996). To comply with the Fourth
Amendment, the officer must have reasonable suspicion to conduct the traffic
stop. Heien v. North Carolina, 574 U.S. 54, 60 (2014) (“All parties agree that to
justify [a traffic stop], officers need only reasonable suspicion”). That is, the
officer must have “a particularized and objective basis for suspecting the person
stopped of criminal activity.” Navarette v. California, 572 U.S. 393, 396 (2014).
“Criminal activity includes even minor traffic violations.” United States v.
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Campbell, 970 F.3d 1342, 1351 (11th Cir. 2020) (holding “a rapidly blinking
turn signal provided [officer] with reasonable suspicion to believe that [the
defendant’s] car was in violation of the traffic code”; and thus, the traffic stop
was lawful). In addition, officers are “entitled to seize evidence revealed in plain
view in the course of the lawful stop” and to arrest passengers of a motor vehicle
“when evidence discovered in plain view [gives] probable cause to believe the
passenger[s] ha[ve] committed a crime . . . .” United States v. Hensley, 469 U.S.
221, 235 (1985) (citing Texas v. Brown, 460 U.S. 730 (1983)).
Here, Sergeant Nobles, an officer who was previously on the sheriff’s
office narcotics task force, testified that he was patrolling Zone 5 when he saw
Petitioner in the driver’s seat of a vehicle that was stopped in the middle of the
street. Resp. Ex. B at 197-204. Nobles stated a pedestrian was leaning into
Petitioner’s passenger side window. Id. at 203-04. Nobles immediately noticed
Petitioner was not wearing a seatbelt and radioed Officer Faulkner, who was
following Nobles, and Faulkner confirmed Petitioner did not have on a seatbelt.
Id. at 204. Nobles then initiated a traffic stop and radioed for officer assistance
because once he was behind Petitioner, Petitioner rapidly accelerated before
pulling into a nearby driveway. Id. at 203. Nobles exited his police cruiser and
approached Petitioner’s vehicle and when he was within “touching” distance, he
looked inside the vehicle’s open window and saw Petitioner moving a large,
clear bag of crack cocaine from the cup holder to the center console. Id. At that
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time, Officers Thompkins, Faulkner, and Holtsman arrived at the scene. Id.
Faulkner walked up behind Nobles, and Holtsman walked up to the passenger
side of the vehicle. Id. Nobles signaled to the other officers that there were drugs
in the vehicle before asking Petitioner to step out of the car. Id. at 214-15.
Petitioner voluntarily opened his car door to exit, but “tensed up” before he got
out. Id. At that time, Holtsman notified the other officers that there was a
firearm in the car. Id. Nobles and Faulkner then grabbed Petitioner and
handcuffed him. Id. at 215. Holtsman testified that when Petitioner first opened
his door to get out of the car, he saw a gun lying on the driver’s side floorboard,
and that Petitioner was attempting to kick the gun further under the seat. Id.
at 271.
Operating a vehicle without a safety belt is a violation of Florida Statute
section 316.614(4)(B). Because Petitioner was violating this traffic statute, the
initial traffic stop was lawful. Further, once the officers conducted the lawful
stop, “they were authorized to take such steps as were reasonably necessary to
protect their personal safety and to maintain status quo during the course of
the stop.” Hensley, 469 U.S. at 684. In the course of the stop, officers saw drugs
and a firearm suggesting that Petitioner was engaged in illegal activity and
giving the officers probable cause to arrest Petitioner and subsequently seize
the items. See, e.g., id. (holding that “police were entitled to seize evidence
revealed in plain view in the course of lawful stop, to arrest . . . passenger when
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evidence discovered in plain view gave probable cause to believe passenger had
committed a crime, . . . and subsequently to search the passenger compartment
. . . because it was within passenger’s immediate control.”).
Based on this evidence, trial counsel was not deficient for failing to raise
a meritless argument challenging the traffic stop or the subsequent seizure of
the cocaine and firearm. See Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136,
1142 (11th Cir. 2005) (holding counsel cannot be ineffective for failing to raise
a meritless argument); Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir.
1994) (noting that “it is axiomatic that the failure to raise nonmeritorious issues
does not constitute ineffective assistance”). Accordingly, upon thorough review
of the record and the applicable law, the Court concludes that the state court’s
adjudication of this claim was neither contrary to nor an unreasonable
application of Strickland, and it is not based on an unreasonable determination
of the facts in light of the evidence presented to the state court. See 28 U.S.C.
§ 2254(d). Ground One is due to be denied.
Ground Two
Petitioner argues his trial counsel was ineffective for failing to file a pretrial motion to suppress the cocaine because it was the product of an illegal
search of his vehicle. Doc. 1 at 6. According to Petitioner, even assuming the
initial traffic stop was proper, officers lacked probable cause to believe that
Petitioner possessed drugs, and thus, could not have searched Petitioner’s
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vehicle without his consent. Id. He asserts that officers “pulled” him out of his
car because they thought Petitioner was going to run; however, Petitioner avers
such action is illegal and they “searched Petitioner’s car to find something to
support the arrest.” Id.
Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. G at 7-11.
The state responded, arguing in pertinent part:
Once a driver is lawfully stopped for a traffic
violation, an officer is authorized to order him out of the
vehicle. Reid v. State, 898 So. 2d 248, 249 (Fla. 4th DCA
2005). In the Beard case, the officer stopped the
defendant for speeding, asked him to step out of the
vehicle and noticed a white powdery substance on the
front seat which he believed to be cocaine. Beard v.
State, 548 So. 2d 675, 676 (Fla. 5th DCA 1989). The
appellate court held that once the officer saw the
substance he believed to be cocaine in plain view in the
vehicle, the officer had the right to arrest and search
incident to arrest. Id. In the case sub judice, as noted in
Ground [(A)](1) above, Sergeant Nobles testified that
he saw the Defendant stopped about one length away
from a stop sign with a gentleman leaning into the
passenger window with a car waiting for him to move
out of the way. Nobles also testified that the Defendant
was not wearing a seatbelt. . . . Thus, Nobles had
probable cause to believe a traffic violation had
occurred. . . . . [And] when an officer stops a vehicle for
a violation of a traffic law, probable cause is present for
the stop. . . . .
Once the Defendant’s vehicle was lawfully
stopped, each officer testified as to what they saw in
terms of the crack cocaine and the firearm being located
inside the vehicle. Specifically, Nobles testified when
he got to the window of the Defendant’s vehicle, he
looked in and the Defendant was in the process of
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moving what appeared to be a large bag of crack cocaine
from the cup holder and putting it inside the center
console. Nobles also testified that once the Defendant
moved the cocaine from the cup holder to inside the
console, the Defendant closed the lid of the console.
Thus, Nobles[’] testimony was consistent with the
testimony of Faulkner and Thompkins, who both
testified that the cocaine was inside the closed console
when they arrived at the Defendant’s vehicle. Nobles
further testified that at that point he knew he had
felony charges on the Defendant for the cocaine.
Finally, and contrary to the Defendant’s conclusory and
speculative allegation that his attorney should have
obtained Nobles’ dash cam video, Nobles testified that
he was only issued a digital camera, which he used
within one minute of the traffic stop to take
photographs of the evidence. When the State initially
moved the crack cocaine into evidence, the defense
attorney objected based upon the State failing to lay a
proper foundation and chain of custody. However, the
State was able to lay a proper foundation and the crack
cocaine was admitted over the defense attorney’s
objection. After Officer Holtsman testified, the defense
attorney renewed her motion to suppress the cocaine
based upon the officer’s testimony that the console was
closed at the time he approached the vehicle. The court
denied the defense attorney’s motion to suppress.
....
Because the Defendant has failed to demonstrate
that a motion, even if filed, would have been successful
in light of the evidence in the case, the Defendant has
failed to show he has suffered any prejudice due to
counsel’s failure to file a motion to suppress. . . . In the
case sub judice, as noted above, the record conclusively
refuted the Defendant’s claim that his attorney was
ineffective for failing to file a motion to suppress either
the cocaine in plain view, or the firearm subsequently
located under the driver’s seat, as both were inside the
lawfully stopped vehicle.
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Resp. Ex. G at 25-28. The trial court adopted the state’s legal conclusions and
summarily denied Petitioner’s claim. Id. at 154-55. The First DCA per curiam
affirmed the trial court’s denial without a written opinion. Resp. Ex. J.
Assuming the First DCA affirmed the denial on the merits, the Court will
address the claim in accordance with the deferential standard for federal court
review of state court adjudications.
As explained in Ground One, the cocaine and the firearm were in plain
view during the lawful traffic stop; and thus, officers had probable cause to
believe Petitioner was committing a crime, and probable cause to arrest
Petitioner and subsequently conduct a search of his vehicle. See Hensley, 469
U.S. at 684. Trial counsel was not deficient for failing to file a meritless motion
to suppress the cocaine and/or firearm. See Diaz, 402 F.3d at 1142. As such,
upon thorough review of the record and the applicable law, the Court concludes
that the state court’s adjudication of this claim was neither contrary to nor an
unreasonable application of Strickland, and it is not based on an unreasonable
determination of the facts in light of the evidence presented to the state court.
See 28 U.S.C. § 2254(d). Ground Two is due to be denied.
Ground Three
Petitioner argues his trial counsel was ineffective for failing to “prepare
and file a pre-trial motion to depose” state witness Faulkner. Doc. 1 at 8.
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According to Petitioner, had counsel properly prepared for this witness, she
would have been able to impeach Faulkner’s trial testimony that he was the
officer who “submit[ted] the gun into property,” because the property storage
card clearly showed that it was Holtsman who provided the gun to the evidence
custodian. Id. Petitioner asserts that had counsel highlighted inconsistencies in
Faulkner’s trial testimony, he would have been found not guilty of the
possession of a firearm charge and would not have been found guilty of
possession of cocaine while armed. Id.
In his Rule 3.850 motion, Petitioner made a general argument that his
trial counsel was ineffective for failing to use depositions to impeach the officers
during trial. Resp. Ex. G at 11-12. The state responded to the claim, explaining
in relevant part:
This is the same argument that the Defendant
presented to the court during his sentencing hearing.
Specifically, he argued that his attorney never
requested to take depositions and that she did not cross
examine the officers regarding the inconsistencies in
the police report.
In the instant case, the State called four police
officers as witnesses during the Defendant’s trial, towit: Sergeant J.C. Nobles, Officer J.M. Faulkner, III,
Officer F.R. Holtsman and Officer G.G. Thompkins. Of
those witnesses, Officer Thompkins wrote the arrest
and booking report and Officers Nobles, Faulkner and
Holtsman were discussed in the report. Additionally,
Officer Faulkner wrote the two traffic tickets. Finally,
the officers were also listed on the State’s initial
discovery. An attorney is not ineffective for failing to
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depose a witness if he or she knows what the witness is
going to testify to based upon reports and statements
and there is no reason for the attorney to believe the
witnesses would change their testimony. At the
sentencing hearing on June 25, 2013, the defense
attorney told the court that she explained to the
Defendant that a deposition and an arrest and booking
report are both a sworn statement; therefore, she
decided not to depose the officers. The defense attorney
further stated that she was very clear on what the
officers were going to testify to and there were no
surprises during the trial regarding their testimony.
Finally, the defense attorney noted that there were
certain questions that the Defendant wanted her to ask
when questioning some of the officers during the trial,
but the rules of evidence did not allow her to ask the
questions.
However,
she
did
address
the
inconsistencies between the officers’ testimony. In fact,
the defense attorney’s cross examination of each officer
that testified was lengthy and detailed and several
inconsistencies were pointed out to the jury. Thus, the
Defendant’s
uncorroborated
and
unsupported
conclusory allegation that his attorney should have
deposed the officers does not establish prejudice
because it fails to establish that the attorney would
have discovered unknown information had [s]he
deposed the witness. Ferrell v. State, 29 So. 3d 959, 969
(Fla. 2010) and Davis v. White, 928 So. 2d 1089, 1117
(Fla. 2005), citing Brown v. State, 846. So. 2d 1114,
1124 (Fla. 2003). Merely alleging that a deposition
would have revealed a number of reliability and
impeachment issues is insufficient to demonstrate
prejudice. Ferrell at 969.
Although an attorney can always be secondguessed for not doing more, such as deposing a witness
in the hopes the witness will deviate from the
previously provided written and recorded statement,
such speculation is not the standard by which counsel’s
performance is to be evaluated under Strickland.
Kilgore v. State, 55 So. 3d 487, 500 (Fla. 2010). When a
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defendant fails to establish prejudice resulting from an
attorney’s decision not to depose a witness, the outcome
of the trial is not undermined and the claim is without
merit. Ferrell at 969. Without a showing of prejudice, a
defendant’s claim of ineffective assistance of counsel
cannot be successful. McCoy v. State, 598 So. 2d 169,
172 (Fla. 1st DCA 1992). Therefore, Defendant’s
allegation fails as the Defendant has failed to
demonstrate a legal deficiency or prejudice.
Resp. Ex. E at 12-14. The trial court adopted the state’s legal conclusions and
summarily denied Petitioner’s claim. Id. at 154-55. Petitioner filed a motion for
rehearing arguing that trial counsel should have impeached Faulkner using the
property storage card.4 Id. at 162, 177. The trial court denied the motion for
rehearing, see id. at 166, and Petitioner argued this fact during his
postconviction appeal, see Resp. Ex. H. The First DCA per curiam affirmed the
trial court’s denial without a written opinion. Resp. Ex. J. Assuming the First
DCA affirmed the denial on the merits, the Court will address the claim in
accordance with the deferential standard for federal court review of state court
adjudications.
As the state noted in its response, during Petitioner’s sentencing hearing,
Petitioner argued he was not able to conduct pre-trial depositions. Resp. Ex. A
at 199. His trial counsel explained to the trial court that she considered
Respondents argue that Petitioner failed to present this sub-claim to the trial
court, and thus, it is unexhausted. Resp. at 29-30. Respondents, however, fail to
acknowledge this claim was raised in Petitioner’s motion for rehearing.
4
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deposing the officers but made a strategic decision to not do so. Id. at 205. She
made the following statement:
I did indicate to Mr. Hayes that a deposition is a sworn
statement, an arrest and booking report narrative is a
sworn statement, and that the police would testify to
what was in the sworn statement and that could be
used to impeach them. I did make the decision not to
depose the officers. That was my decision to be made,
and I felt it necessary, and I was very clear on what the
officers were going to testify to. And much of what they
said, there were no real surprises in trial.
Id. Further, during trial counsel’s cross-examinations of the officers, she
challenged Nobles’ credibility about the location of all the officers during the
traffic stop, Resp. Ex. B at 232-35; elicited testimony from Faulkner that he did
not see any cocaine or a firearm until after Petitioner’s arrest, see id. at 259;
and highlighted that Holtsman also did not see the cocaine until after
Petitioner’s arrest, see id. at 279. Trial counsel also questioned Thompkins at
length regarding the contents of the arrest and booking report and the
inconsistencies between the report and the evidence produced at trial. Id. at
303-07. As such, “the challenged action might be considered sound trial
strategy”; and Petitioner has failed to demonstrate deficient performance.
Strickland, 466 U.S. at 689.
In addition, even assuming trial counsel was deficient in failing to
impeach Faulkner with the property storage card after he testified that he
submitted the firearm to the property custodian, Petitioner cannot demonstrate
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the necessary prejudice under Strickland. Although the subject property
storage card for which Petitioner relies provides that the “Submitting Officer”
of the firearm was Holtsman, see Resp. Ex. G at 177, the name of the “Reporting
Officer” was redacted, and thus, Faulkner’s participation in transferring
custody of the firearm to the property custodian cannot be entirely excluded.
Also, assuming trial counsel did impeach Faulkner with the property storage
card, Petitioner fails to argue or demonstrate that the state would have been
prohibited from presenting the firearm as evidence during Holtsman’s trial
testimony. As such, Petitioner has failed to show that but for trial counsel’s
alleged failure, the outcome of his trial would have been different. Accordingly,
upon thorough review of the record and the applicable law, the Court concludes
that the state court’s adjudication of this claim was neither contrary to nor an
unreasonable application of Strickland, and it is not based on an unreasonable
determination of the facts in light of the evidence presented to the state court.
See 28 U.S.C. § 2254(d). Ground Three is due to be denied.
Ground Four
Petitioner argues that the postconviction court erred in failing to allow
Petitioner an opportunity to amend his Rule 3.850 motion before summarily
denying his claims. Doc. 1 at 10. He also claims that the postconviction court
failed to attach to its order relevant portions of the record supporting its
summary denial. Id.
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Petitioner’s claims that the state court made errors in his postconviction
proceedings solely addresses Florida law and does not include any federal
constitutional infirmity. Such claims that do not present a constitutional
challenge to the validity of Petitioner’s judgment and sentence are not
cognizable on federal habeas review. See Spradley v. Dugger, 825 F.2d 1566,
1568 (11th Cir. 1987) (argument that the state court failed to attach relevant
portions of the record to refute Rule 3.850 motion does not undermine validity
of the petitioner’s conviction, and thus, does not state a basis for habeas relief);
see also Rolack v. Jones, No. 15-CV-22270-WILLLIAMS, 2016 WL 10707030, at
*27 (S.D. Fla. Nov. 2, 2016) (holding the petitioner’ claim that state
postconviction court failed to allow him leave to amend his Rule 3.850 motion
not cognizable on § 2254 habeas review). As such, Ground Four is due to be
denied.
Accordingly, it is
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED and this case is DISMISSED
WITH PREJUDICE.
2.
The Clerk of Court shall enter judgment accordingly, terminate
any pending motions, and close this case.
3.
If Petitioner appeals this Order, the Court denies a certificate of
appealability. Because the Court has determined that a certificate of
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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.5
DONE AND ORDERED at Jacksonville, Florida, this 7th day of
December, 2020.
Jax-7
C:
Richard Leroy Hayes, #J23838
Holly Noel Simcox, Esq.
The Court should issue a certificate of appealability only if the 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)). Here, after consideration of the record as a whole,
the Court will deny a certificate of appealability.
5
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