Thomas v. Secretary, Florida Department of Corrections et al
Filing
18
ORDER denying 1 Petition and dismissing case with prejudice, with instructions to the Clerk. Signed by Judge Marcia Morales Howard on 10/14/2020. (ACT)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CURTIS L. THOMAS,
Petitioner,
v.
Case No. 3:17-cv-1255-J-34MCR
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner Curtis Thomas, an inmate of the Florida penal system, initiated this
action on November 6, 2017,1 by filing a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254 (Petition; Doc. 1). In the Petition, Thomas challenges a 2009 state court
(Duval County, Florida) judgment of conviction for the sale or delivery of cocaine. Thomas
raises two grounds for relief. See Petition at 4-12.2 Respondents have submitted an
answer in opposition to the Petition. See Answer in Response to Order to Show Cause
(Response; Doc. 15) with exhibits (Resp. Ex.). Thomas filed a brief in reply. See Reply
Brief to Respondents’ Answer Brief Dated December 17th, 2018 is Timely Filed with this
Court (Reply; Doc. 16). This case is ripe for review.
1
See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).
For purposes of reference, the Court will cite the page number assigned by the
Court’s electronic docketing system.
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II. Relevant Procedural History
On July 27, 2007, the State of Florida charged Thomas by way of Information with
the sale or delivery of cocaine (count one) and resisting an officer without violence to his
or her person (count two). Resp. Ex. A at 9. Following a trial, a jury found Thomas guilty
as charged as to count one. Id. at 143. On December 10, 2009, the circuit court
adjudicated Thomas to be a habitual felony offender and sentenced him to a term of
incarceration of thirty years in prison. Id. at 172-77. The State nolle prossed count two.
Resp. Ex. B at 222.
Thomas appealed his conviction and sentence to Florida’s First District Court of
Appeal. Resp. Ex. A at 183. In his initial brief, Thomas, with the assistance of counsel,
argued that: (1) the evidence was legally insufficient to overcome Thomas’ reasonable
hypothesis of innocence; and (2) the circuit court erred in denying Thomas’ request to
instruct the jury on possession of cocaine. Resp. Ex. F. The State filed an answer brief.
Resp. Ex. G. On May 26, 2011, the First DCA affirmed per curiam the conviction and
sentence and issued the Mandate on June 13, 2011. Resp. Ex. H.
On January 10, 2012, Thomas filed a pro se motion for postconviction relief
pursuant to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 Motion). Resp. Ex. I at
1-24. In the Rule 3.850 Motion, Thomas alleged his counsel was deficient for failing to:
(1) request a subjective entrapment instruction; (2) object to improper closing arguments;
(3) adequately argue a motion for judgment of acquittal; and (4) object to improper closing
arguments. Id. On April 19, 2016, the circuit court denied relief on the motion. Id. at 25465. On June 6, 2017, the First DCA affirmed per curiam the circuit court’s denial of the
Rule 3.850 Motion and on July 6, 2017, issued the Mandate. Resp. Ex. L.
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III. One-Year Limitations Period
The Petition was timely filed within the one-year limitations period. See 28 U.S.C.
§ 2244(d).
IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner to establish the
need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d
1057, 1060 (11th Cir. 2011). “In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an applicant to prove
the petition’s factual allegations, which, if true, would entitle the applicant to federal
habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t
of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017).
“It follows that if the record refutes the applicant’s factual allegations or otherwise
precludes habeas relief, a district court is not required to hold an evidentiary hearing.”
Schriro, 550 U.S. at 474. The pertinent facts of this case are fully developed in the record
before the Court. Because the Court can “adequately assess [Thomas’s] claim[s] without
further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an
evidentiary hearing will not be conducted.
V. Governing Legal Principles
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a
state prisoner’s federal petition for habeas corpus. See Ledford v. Warden, Ga.
Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137
S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure that federal habeas relief
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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) (quotation marks omitted)). As such, federal habeas review of final state court
decisions is “‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting Hill v. Humphrey,
662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).
The first task of the federal habeas court is to identify the last state court decision,
if any, that adjudicated the claim 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 a written 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 United States
Supreme Court has instructed:
[T]he federal court should “look through” the unexplained
decision to the last related state-court decision that does
provide a relevant rationale. It should then presume that the
unexplained decision adopted the same reasoning.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be rebutted by
showing that the higher state court’s adjudication most likely relied on different grounds
than the lower state court’s reasoned decision, such as persuasive alternative grounds
that were briefed or argued to the higher court or obvious in the record it reviewed. Id. at
1192, 1196.
If the claim was “adjudicated on the merits” in state court, § 2254(d) bars relitigation
of the claim unless the state court’s decision (1) “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) “was based on an unreasonable
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determination of the facts in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited
scope of federal review pursuant to § 2254 as follows:
First, § 2254(d)(1) provides for federal review for claims of
state courts’ erroneous legal conclusions. As explained by the
Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct.
1495, 146 L.Ed.2d 389 (2000), § 2254(d)(1) consists of two
distinct clauses: a “contrary to” clause and an “unreasonable
application” clause. The “contrary to” clause allows for relief
only “if the state court arrives at a conclusion opposite 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.” Id. at
413, 120 S. Ct. at 1523 (plurality opinion). The “unreasonable
application” clause allows for relief only “if the state court
identifies the correct governing legal principle from [the
Supreme] Court's decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id.
Second, § 2254(d)(2) provides for federal review for claims of
state courts’ erroneous factual determinations. Section
2254(d)(2) allows federal courts to grant relief only if the state
court’s denial of the petitioner’s claim “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)(2). The Supreme Court has not yet defined §
2254(d)(2)’s “precise relationship” to § 2254(e)(1), which
imposes a burden on the petitioner to rebut the state court’s
factual findings “by clear and convincing evidence.” See Burt
v. Titlow, 571 U.S. ---, ---, 134 S. Ct. 10, 15, 187 L.Ed.2d 348
(2013); accord Brumfield v. Cain, 576 U.S. ---, ---, 135 S. Ct.
2269, 2282, 192 L.Ed.2d 356 (2015). Whatever that “precise
relationship” may be, “‘a state-court factual determination is
not unreasonable merely because the federal habeas court
would have reached a different conclusion in the first
instance.’”[3] Titlow, 571 U.S. at ---, 134 S. Ct. at 15 (quoting
3
The Eleventh Circuit has described the interaction between § 2254(d)(2) and §
2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3 (11th
Cir. 2016), cert. denied, 137 S. Ct. 1103 (2017).
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Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849, 175
L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert. denied, 137 S. Ct. 2298
(2017). Also, deferential review under § 2254(d) generally is limited to the record that was
before the state court that adjudicated the claim on the merits. See Cullen v. Pinholster,
563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an examination
of the state-court decision at the time it was made”).
Thus, “AEDPA erects a formidable barrier to federal habeas relief for prisoners
whose claims have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16
(2013). “Federal courts may grant habeas relief only when a state court blundered in a
manner so ‘well understood and comprehended in existing law’ and ‘was so lacking in
justification’ that ‘there is no possibility fairminded jurists could disagree.’” Tharpe, 834
F.3d at 1338 (quoting Richter, 562 U.S. at 102-03). This standard is “meant to be” a
“difficult” one to meet. Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s
claims were adjudicated on the merits in the state courts, they must be evaluated under
28 U.S.C. § 2254(d).
B. Ineffective Assistance of Trial Counsel
“The Sixth Amendment guarantees criminal defendants the effective assistance of
counsel. That right is denied when a defense attorney’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 deficient performance, a person challenging a
conviction must show that “counsel’s representation fell below
an objective standard of reasonableness.” [Strickland,] 466
U.S. at 688, 104 S. Ct. 2052. A court considering a claim of
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ineffective assistance must apply a “strong presumption” that
counsel’s representation was within the “wide range” of
reasonable professional assistance. Id., at 689, 104 S. Ct.
2052. The challenger’s burden is to show “that counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id., at 687, 104 S. Ct. 2052.
With respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id., at 694, 104 S. Ct.
2052. It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id., at
693, 104 S. Ct. 2052. Counsel’s errors must be “so serious as
to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id., at 687, 104 S. Ct. 2052.
Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of any ironclad rule requiring a court to tackle one prong of the Strickland test before the other.”
Ward, 592 F.3d at 1163. Since both prongs of the two-part Strickland test must be
satisfied to show a Sixth Amendment violation, “a court need not address the performance
prong if the petitioner cannot meet the prejudice prong, and vice-versa.” 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.” Strickland, 466 U.S. at
697.
A state court’s adjudication of an ineffectiveness claim is accorded great
deference.
“[T]he standard for judging counsel’s representation is a most
deferential one.” Richter, - U.S. at -, 131 S. Ct. at 788. But
“[e]stablishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d) are both highly
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deferential, and when the two apply in tandem, review is
doubly so.” Id. (citations and quotation marks omitted). “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, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (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, - U.S. at -, 131 S. Ct. at
788.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v. Mirzayance,
556 U.S. 111, 123 (2009). In other words, “[i]n addition to the deference to counsel’s
performance mandated by Strickland, the AEDPA adds another layer of deference--this
one to a state court’s decision--when we are considering whether to grant federal habeas
relief from a state court’s decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.
2004). As such, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010).
VI. Findings of Fact and Conclusions of Law
A. Ground One
In Ground One, Thomas alleges that his trial counsel was ineffective because she
failed to request a subjective entrapment jury instruction and failed to call a witness,
Crystal Woodard, to substantiate a subjective entrapment defense. Petition at 4-9.
Thomas maintains that there was sufficient evidence at trial to warrant the reading of the
subjective entrapment instruction. Id. at 5-7. According to Thomas, the evidence
demonstrated that Ms. Woodard, a confidential informant, “begged” Thomas to sell her
cocaine, which Thomas argues established the inducement element of subjective
entrapment. Id. at 8. Additionally, Thomas contends that had counsel called Ms. Woodard
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as a witness, she would have testified that police forced her to dial Thomas’ number and
beg him to bring her cocaine or else the police would take her to jail on unrelated criminal
charges. Id.
Thomas raised a substantially similar claim in his Rule 3.850 Motion. Resp. Ex. at
I at 3-10. In denying this claim, the circuit court explained, in pertinent part:
Counsel testified at the evidentiary hearing that her
defense strategy was to admit to, and request a jury
instruction on, possession of cocaine to ensure Defendant
would not be convicted of the more severe charged offense of
Sale or Delivery of Cocaine. After the trial court declined the
request for the possession instruction, noting possession was
not a lesser included offense of the charged crime, counsel
continued to trial, seeking to convince the jury the State could
not prove the offense of Sale or Delivery of Cocaine beyond a
reasonable doubt.
Counsel testified she made this decision after
researching potential defenses, including an entrapment
defense, and determining that an entrapment defense was not
the best option to pursue for Defendant. Counsel stated she
did not request an instruction on entrapment, because that
was not the defense they decided to pursue at trial.
Importantly, counsel demonstrated she was aware of
the elements of an entrapment defense and explained in
detail why she chose not to pursue an entrapment defense.
Counsel explained that, as to showing a government agent
induced Defendant, she did not believe they had a strong case
to show inducement based solely on Defendant’s testimony
that the confidential informant called him, asking him [to] bring
drugs. First, counsel noted the officers testified they did not
hear what the confidential informant said to Defendant on the
telephone before he arrived. More importantly, however,
counsel stated Defendant’s version of inducement was not
supported by the recording of Defendant’s interaction with the
officers once he arrived. Additionally, counsel testified that,
even if the jury believed Defendant’s testimony, she believed
the confidential informant’s simple request for drugs was not
a strong argument for inducement.
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Counsel further testified her larger reservations
regarding the entrapment defense stemmed from the State’s
ability to show a predisposition of Defendant to sell drugs.
Counsel recalled Defendant had a previous sale conviction,
which the State would have been able to introduce to show
his predisposition. Counsel further testified that during the
recording of the instant offense, Defendant additionally
offered to get more drugs for the officers, which counsel was
concerned would make it more difficult for the jury to believe
he did not have a predisposition. Lastly, counsel testified she
discussed her concerns with Defendant and that he agreed
with her defense strategy.
Therefore, this Court finds that counsel researched
possible defenses and made a reasonable strategic choice to
forego the entrapment defense and pursue another defense.
See Occhichone, [sic] 768 So. 2d at 1048.[4] This Court further
finds her decision not to request an instruction on entrapment
reasonable as that was not the defense she and Defendant
had agreed on pursuing at trial and, thus, her actions did not
“negate the only defense put forth by trial counsel.” See
Mathis, 973 So. 2d at 1157.[5] Defendant is, therefore, not
entitled to relief.
Id. at 258-59 (record citations omitted). The First DCA affirmed the denial of relief on this
claim. Resp. Ex. L.
To the extent that the First DCA decided the claim on the merits,6 the Court will
address the claim in accordance with the deferential standard for federal court review of
state court adjudications. After a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of this claim was not contrary to clearly
established federal law, did not involve an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of the facts in light of
4
Occhicone v. State, 768 So. 2d 1037 (Fla. 2000).
Mathis v. State, 973 So. 2d 1153 (Fla. 1st DCA 2006).
6 Throughout this order, in looking through the appellate court’s per curiam
affirmance to the circuit court’s “relevant rationale,” the Court presumes that the appellate
court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.
5
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the evidence presented in the state court proceedings. Thus, Thomas is not entitled to
relief on the basis of this claim.
Nevertheless, even if the state appellate court’s adjudication of this claim is not
entitled to deference, the claim is without merit. The Court notes that “[t]he Supreme Court
has mandated a highly deferential review of counsel's conduct, especially where strategy
is involved,” and “[i]ntensive scrutiny and second guessing of attorney performance are
not permitted.” Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) (citing
Strickland, 466 U.S. at 689-90)). Indeed, “[i]n assessing an attorney’s performance under
Strickland, ‘strategic choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable.’” Knight v. Fla. Dep’t of Corr., 936 F.3d
1322, 1340 (11th Cir. 2019) (quoting Strickland, 466 U.S. at 690). The Eleventh Circuit
has explained that:
Inquiries into strategic or tactical decisions challenged as
ineffective assistance of counsel involve both a factual and a
legal component. The question of whether an attorney's
actions were actually the product of a tactical or strategic
decision is an issue of fact, and a state court's decision
concerning that issue is presumptively correct. By contrast,
the question of whether the strategic or tactical decision is
reasonable enough to fall within the wide range of
professional competence is an issue of law not one of fact, so
we decide it de novo.
Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir. 1998). The circuit court
determined that counsel’s actions were the product of a strategic decision. Resp. Ex. I at
258-59. Thomas has not provided clear and convincing evidence to overcome the state
court’s factual finding on this matter; therefore, the Court presumes for purposes of review
that counsel’s actions were strategic. See id.; 28 U.S.C. § 2254(e)(1).
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Upon review of the record, the Court concludes that counsel’s strategic decision
was reasonable. In Florida, law enforcement commit entrapment:
if, for the purpose of obtaining evidence of the commission of
a crime, he or she induces or encourages and, as a direct
result, causes another person to engage in conduct
constituting such crime by employing methods of persuasion
or inducement which create a substantial risk that such crime
will be committed by a person other than one who is ready to
commit it.
§ 777.201(1), Fla. Stat. Florida recognizes two theories of entrapment, one being
“‘objective entrapment,’ which concerns law enforcement conduct amounting to a denial
of due process,” and the other being “‘subjective entrapment,’ which focuses on whether
the defendant was predisposed to commit the crime.” Jones v. State, 114 So. 3d 1123,
1126 (Fla. 1st DCA 2013). Subjective entrapment is established through a three-part test:
1) “whether an agent of the government induced the accused
to commit the offense charged[;]” 2) if so, “whether the
accused was predisposed to commit the offense charged[;]”
and 3) “whether the entrapment evaluation should be
submitted to a jury.”
State v. Laing, 182 So. 3d 812, 818-19 (Fla. 4th DCA 2016) (quoting Munoz v. State, 629
So. 2d 90, 99-100 (Fla. 1993)). A defendant must establish the first prong by a
preponderance of the evidence, and a court should address the remaining prongs only
after a defendant has established the first prong. Id. at 819. A defendant does not
establish inducement by demonstrating law enforcement merely solicited or created
opportunities to commit crimes. Senger v. State, 200 So. 3d 137, 144 (Fla. 5th DCA 2016)
(quoting Marreel v. State, 841 So. 2d 600, 603 (Fla. 4th DCA 2003)). Instead,
“[i]nducement is defined as including ‘persuasion, fraudulent representations, threats,
coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or
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friendship.’” Rivera v. State, 180 So. 3d 1195, 1197 (Fla. 2d DCA 2015) (quoting State v.
Henderson, 955 So. 2d 1193, 1195 (Fla. 4th DCA 2007)).
The record reflects that two undercover officers, Detective Janes and Officer
McCoy, set up a buy-bust operation in a motel room along with two confidential
informants, Ms. Woodard and her husband, James Woodard. Resp. Ex. C at 31-32, 6263. According to the undercover officers, Ms. Woodard would call known dealers and ask
them to deliver drugs to the motel where they were located. Id. at 32, 47, 66. Both officers
testified that Ms. Woodard went into the bathroom to make the call to Thomas and they
were unable to hear the conversation. Id. at 48, 67. Several minutes after the call, Thomas
was in their motel room. Id. at 33, 63. After a brief exchange with Ms. Woodard, Thomas
began a conversation with the officers, which the officers recorded with surveillance
cameras. Id. at 33-34, 49. Thomas asked the officers what they needed, and they
responded that they wanted a “yard,” slang for a $100 worth of crack cocaine. Id. at 3334, 38, 63. Thomas replied that he had that amount on him and had another “yard”
available for purchase. Id. at 33-34, 38-39, 63. Thomas placed one “yard” of crack cocaine
on the entertainment center in the motel room and Officer McCoy handed Thomas $200
in marked bills, which Thomas took. Id. at 34, 63. Thereafter, the officers gave the
takedown signal and arrested Thomas as he was walking back to his vehicle. Id. at 3435, 64-65. Upon Thomas’ arrest, officers located the $200 in marked bills on Thomas’
person but did not find any additional drugs. Id. at 51, 55-56, 64-65, 68.
Thomas testified at trial that Ms. Woodard called him and told him to meet her at
the motel room and bring some drugs so they could get high and have sex. Id. at 88.
When he arrived at the motel room, Ms. Woodard answered the door and then McCoy
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started talking with him. Id. at 89. According to Thomas, McCoy asked him if he had drugs,
to which Thomas replied in the affirmative. Id. at 89-90. Thomas then placed some crack
cocaine on the entertainment center and McCoy handed him money, which Thomas
accepted. Id. at 89-90, 98-99. Thomas maintained that he had no intent to sell drugs that
day and did not tell McCoy he would sell him drugs, only that he could get McCoy drugs.
Id. at 90. When McCoy handed Thomas the money, Thomas testified that it surprised him
and he felt something was not right, so Thomas decided to leave. Id. at 90. Notably,
Thomas stated that he did not have any additional crack cocaine but took the extra $100
because he was planning to steal it. Id. at 94.
Based on this record, Thomas could not have established inducement. The record
does not support Thomas’ assertion that Ms. Woodard’s alleged representation that she
wanted to get high and have sex with Thomas induced him to sell drugs to the officers,
and Thomas has provided no evidence to substantiate this claim. According to Thomas,
the video recording of the buy-bust, of which he does not have a copy, would exonerate
him because it would include recordings of Ms. Woodard and the officers discussing
framing Thomas. Petition at 7-8. However, the record reflects that the officers did not hear
Ms. Woodard’s telephone conversation, Resp. Ex. C at 48, 67, and had they heard
anything inappropriate they would have immediately stopped the operation, id. at 69, 73.
Moreover, counsel testified at the evidentiary hearing on the Rule 3.850 Motion that there
was no recording of Ms. Woodard’s phone call to Thomas. Resp. Ex. I at 55. Thomas has
not presented evidence to rebut this record evidence. Therefore, his claim that the video
recording would exonerate him is entirely speculative, particularly in light of the fact that
Thomas alleges he has never seen the videos. Likewise, his claim that Ms. Woodard
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would have testified in the manner Thomas alleges in the Petition is speculative and the
record does not support it. Indeed, the video recording of the buy bust contradicts
Thomas’ version of events because it shows him specifically asking the undercover
officers what they want and then supplying the officers with the requested amount and
informing them he could get more. Nothing in the transcript of the recording played at trial
suggests that the presence of the two men surprised Thomas or that Thomas was angry
with Ms. Woodard for misleading him. Vague, conclusory, speculative, or unsupported
claims cannot support an ineffective assistance of counsel claim. Tejada v. Dugger, 941
F.2d 1551, 1559 (11th Cir. 1991). Accordingly, Thomas’ unsupported, conclusory, and
speculative assertion concerning Ms. Woodard’s statement to him is insufficient to
warrant federal habeas relief.
Moreover, even assuming Ms. Woodard told Thomas to come over so they could
get high and have sex, by the time Thomas arrived at the motel room, he would or should
have realized that he was not going to get high or have sex with Ms. Woodard and that
she was not the intended recipient of the crack cocaine. Yet despite this realization,
Thomas still decided to sell the drugs to the officers. Accordingly, Thomas cannot
demonstrate Ms. Woodard actually induced him to sell drugs to the undercover officers.
See Cantrell v. State, 132 So. 3d 931, 932 (Fla. 1st DCA 2014), overruled on other
grounds by Cantrell v. State, No. SC14-656, 2016 WL 1662960 (Fla. April 27, 2016) (“A
mere invitation under false pretenses is not synonymous with inducement.”).
Lastly, the Court notes that on the day of trial while the parties were handling
matters before the jury entered, counsel represented that they intended to admit Thomas
possessed cocaine but did not sell it. Resp. Ex. C at 8. The circuit court had a colloquy
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with Thomas concerning this concession and Thomas agreed with counsel’s decision to
tell the jury Thomas possessed the cocaine. Id. at 9-10. Similarly, at the evidentiary
hearing on the Rule 3.850 Motion, counsel testified that she had discussed the possibility
of an entrapment defense and, after counsel reviewed the risks with Thomas, he told
counsel he agreed with her decision not pursue it as a defense. Resp. Ex. I at 29-30.
Among the risks counsel communicated to Thomas was that if they were able to prove
inducement, that would open the door for the State to introduce Thomas’ prior juvenile
conviction for the sale of cocaine. Id. at 26-27. Additionally, counsel felt Thomas’
conversations and interactions with the undercover officers that was recorded and played
for the jury contradicted Thomas’ version of events. Id. at 65-68. Based on these risks
and weaknesses, counsel did not want to pursue a subjective entrapment defense. Id. at
28-29. The Court finds that counsel’s decision not to pursue this defense was reasonable.
Accordingly, in light of the foregoing, Thomas has failed to demonstrate deficient
performance or prejudice; therefore, relief on his claim in Ground One is due to be denied.
B. Ground Two
Thomas contends that his trial counsel was deficient for failing to adequately argue
a motion for judgment of acquittal. Petition at 10-12. According to Thomas, the evidence
at trial established that law enforcement officers subjectively entrapped him and that he
had no predisposition to commit the crime charged. Id. at 11. Additionally, Thomas avers
that counsel should have argued that the State failed to present evidence of an actual
transaction. Id. Thomas maintains that had counsel argued these points as part of her
motion for judgment of acquittal the circuit court would have granted the motion. Id. at 12.
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In Thomas’ Rule 3.850 Motion, he raised a similar claim. Resp. Ex. I at 16-21. The
circuit court denied relief on this claim, explaining, in part:
This Court acknowledges that while counsel moved for
a judgment of acquittal after the State rested its case, she did
not do so after the defense rested. To find Defendant guilty of
the instant offense, the State had to prove that Defendant sold
or delivered cocaine. To sell is defined as “to transfer or
deliver something to another person in exchange for money
or something of value or a promise of money or something of
value.” Delivery is “the actual, constructive, or attempted
transfer from one person to another of a controlled substance,
whether or not there is an agency relationship.”
Accepting all facts presented by the State as true, the
trial court would have had sufficient evidence to determine
that the jury could find Defendant committed the instant
offense, and thus, deny a motion for judgment of acquittal.
Two employees of the Jacksonville Sheriff’s Office (“JSO”),
Detective Williams Janes (“Detective Janes”) and Officer
McCoy, testified that they were present during the
commission of the alleged offense. Both law enforcement
officers testified that their confidential informant called
Defendant to order drugs, and that Defendant showed up in
response and provided them with cocaine in exchange for 200
dollars of JSO funds. A third JSO employee, Sergeant
Jennifer Short, identified Defendant as the individual she
arrested after the drug deal was completed. Moreover, at trial,
the State presented the controlled substance collected on the
day of Defendant’s arrest and presented a crime laboratory
analyst who testified that the substance was cocaine. The
State further presented a videotaped recording of the
commission of the offense, in which Defendant can be seen
providing cocaine and receiving money. This Court, therefore,
finds there was sufficient evidence to convict Defendant of
Sale or Delivery of Cocaine, and that any motion for judgment
of acquittal would have been denied.
Additionally, in Defendant’s Reply to the State’s
Response, Defendant repeatedly mentions counsel’s failure
to move for judgment of acquittal also failed [sic] to preserve
the issue for appeal. This Court notes that the “failure to
preserve issues for appeal does not show the necessary
prejudice under Strickland.” Strobridge v. State, 1 So. 3d
1240, 1242 (Fla. 4th DCA 2009). In Strobridge, the appellate
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court found “the only prejudice asserted was prejudice in the
[defense attorney’s] failure to preserve the issue for appeal
and not any prejudice occurring at the trial itself.” Id. at 1243;
[s]ee Carattelli v. State, 961 So. 2d 312, 323 (Fla. 2007)
(holding that a defendant must demonstrate prejudice at trial,
not on appeal.). The “ultimate focus of inquiry must be on the
fundamental fairness of the proceeding whose result is being
challenged.” Strickland, 466 U.S. at 670 (emphasis added).
Defendant’s argument does not challenge the result of his
conviction, but instead addresses the effect counsel’s
performance had on an appeal. Thus, Defendant does not
demonstrate prejudice at trial and fails to meet the second
prong of Strickland. Accordingly, counsel was not ineffective,
and Defendant is not entitled to relief on this ground.
Id. at 262-63 (record citations and footnote omitted). The First DCA affirmed the circuit
court’s denial of relief on this claim. Resp. Ex. L.
To the extent that the First DCA decided the claim on the merits, the Court will
address the claim in accordance with the deferential standard for federal court review of
state court adjudications. After a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of this claim was not contrary to clearly
established federal law, did not involve an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings. Thus, Thomas is not entitled to
relief on the basis of this claim.
Nevertheless, even if the First DCA’s adjudication of this claim is not entitled to
deference, the claim is meritless. In ruling on a motion for judgment of acquittal, trial courts
must determine “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
Gudinas v. State, 693 So. 2d 953, 962 (Fla. 1997) (quoting Taylor v. State, 583 So. 2d
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323, 328 (Fla. 1991) (holding a motion for judgment of acquittal should not be granted
unless “there is no view of the evidence which the jury might take favorable to the opposite
party that can be sustained under the law.”). At the close of the State’s case in chief, the
State had presented unrebutted evidence that Thomas delivered crack cocaine to
undercover officers and accepted payment for the same, all of which was videotaped.
The State did not introduce any evidence that would have demonstrated inducement.
Therefore, any motion for judgment of acquittal on the grounds of subjective entrapment
would have been meritless. Likewise, as explained in greater detail in the Court’s analysis
of Ground One above, even if counsel had moved for a judgment of acquittal at the close
of the defense’s case it would not have been successful because Thomas’ testimony did
not demonstrate inducement. As such, a motion for judgment of acquittal at the close of
the defense’s case would have also been without merit. Counsel cannot be deemed
deficient for failing to raise meritless arguments. 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.”). As such, the claim for relief in Ground Two is due to
be denied.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Thomas seeks issuance of a certificate of appealability, the undersigned opines
that a certificate of appealability is not warranted. The Court should issue a certificate of
appealability only if the petitioner makes “a substantial showing of the denial of a
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constitutional right.” 28 U.S.C. § 2253(c)(2). To make this substantial showing, Thomas
“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)).
Where a district court has rejected a petitioner’s constitutional claims on the merits,
the petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong. See Slack, 529 U.S. at 484.
However, when the district court has rejected a claim on procedural grounds, the
petitioner must show that “jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Id. Upon
consideration of the record as a whole, the Court will deny a certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED, and this action is DISMISSED WITH
PREJUDICE.
2.
The Clerk of the Court shall enter judgment denying the Petition and
dismissing this case with prejudice.
3.
If Thomas appeals the denial of the Petition, the Court denies a certificate
of appealability. Because the Court has determined that a certificate of appealability is
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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.
The Clerk of the Court is directed to close this case and terminate any
pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 14th day of October, 2020.
Jax-8
C:
Curtis L. Thomas #J22196
Jennifer J. Moore, Esq.
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