Richardson v. Secretary, Department of Corrections et al
Filing
27
ORDER denying 1 petition, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 10/11/2019. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RANEY RICHARDSON,
Petitioner,
vs.
Case No. 3:18-cv-79-J-25PDB
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
I.
Petitioner,
INTRODUCTION
Raney Richardson, challenges his state court
(Duval County) conviction for felony murder and attempted armed
robbery through a Petition for Writ of Habeas Corpus (Petition)
(Doc. 1) pursuant to 28 U.S.C. ' 2254.
Respondents filed an Answer
to Petition for Writ of Habeas Corpus (Response) (Doc. 13). 1
Petitioner’s Reply to Respondents' Answer to Petition for Writ of
Habeas Corpus (Doc. 26) followed.
The Petition is timely filed.
See Response at 15.
The Court hereinafter refers to the Exhibits to Answer to
Petition for Writ of Habeas Corpus (Doc. 13) 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 document will be referenced.
1
II.
Petitioner
has
EVIDENTIARY HEARING
the
evidentiary hearing.
burden
to
establish
a
need
for
an
See Chavez v. Sec'y, Fla. Dep't of Corr.,
647 F.3d 1057, 1060 (11th Cir. 2011) (opining a petitioner bears
the burden of establishing the need for an evidentiary hearing
with more than speculative and inconcrete claims of need), cert.
denied, 565 U.S. 1120 (2012).
In this case, the pertinent facts
are
record
fully
precludes
developed
habeas
in
this
relief;
therefore,
or
the
the
record
Court
otherwise
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).
Petitioner has not met
his burden as the record refutes the asserted factual allegations
or otherwise precludes habeas relief.
Thus, the Court finds
Petitioner is not entitled to an evidentiary hearing.
Schriro v.
Landrigan, 550 U.S. 465, 474 (2007).
III.
CLAIMS OF PETITION
The Petition presents two grounds for habeas relief:
(1) the
ineffective assistance of appellate counsel for failure to raise
a claim on direct appeal that the trial court abused its discretion
by failing to permit completion of Petitioner’s psychological
evaluation
and
conduct
a
competency
hearing,
and
(2)
the
ineffective assistance of trial counsel for failure to object to
2
the jury verdict finding Petitioner guilty of first-degree murder
and
attempted
armed
Petition at 6-7.
robbery
as
charged
in
These claims are exhausted.
the
indictment.
Response at 25-26,
40-41.
IV.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (AEDPA)
governs a state prisoner's federal petition for habeas corpus.
See 28 U.S.C. ' 2254.
This statute "imposes important limitations
on the power of federal courts to overturn the judgments of state
courts in criminal cases."
(2019) (per curiam).
Shoop v. Hill, 139 S. Ct. 504, 506
The AEDPA statute:
"respects the authority
and ability of state courts and their dedication to the protection
of constitutional rights."
Id.
Therefore, "[u]nder AEDPA, error
is not enough; even clear error is not enough."
Meders v. Warden,
Ga. Diagnostic Prison, 911 F.3d 1335, 1349 (11th Cir. 2019) (citing
Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (per curiam)),
petition for cert. filed, (U.S. Aug. 2, 2019) (No. 19-5438).
Applying the statute as amended by AEDPA, federal courts may
not grant habeas relief unless one of the claims: "(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 determination
of the facts in light of the evidence presented in the State court
3
proceeding.' 28 U.S.C. ' 2254(d)."
Nance v. Warden, Ga. Diagnostic
Prison, 922 F.3d 1298, 1300-1301 (11th Cir. 2019).
Thus, in order to obtain habeas relief, the state court
decision
must
precedent.
some
unquestionably
conflict
with
Supreme
Court
Harrington v. Richter, 562 U.S. 86, 102 (2011).
fair-minded
jurists
could
agree
decision, habeas relief must be denied.
with
the
lower
If
court's
Meders, 911 F.3d at 1351.
As noted in Richter, unless the petitioner shows the state court's
ruling was so lacking in justification that there was error well
understood and comprehended in existing law beyond any possibility
for fair-minded disagreement, there is no entitlement to habeas
relief.
Burt v. Titlow, 571 U.S. 12, 19-20 (2013).
In undertaking its review, this Court is not obliged "to
flyspeck the state court order or grade it."
1349.
Meders, 911 F.3d at
Indeed, specificity and thoroughness of the state court
decision is not required; even if the state court fails to provide
rationale
or
reasoning,
AEDPA
deference
is
due
"absent
conspicuous misapplication of Supreme Court precedent."
a
Id. at
1350 (citation and quotation marks omitted).
Of importance, a state court's finding of fact, whether a
state trial court or appellate court, is entitled to a presumption
of correctness under 28 U.S.C. ' 2254(e)(1).
But, this presumption
of
of
correctness
applies
only
to
4
findings
fact,
not
mixed
determinations of law and fact.
Brannan v. GDCP Warden, 541 F.
App'x 901, 903-904 (11th Cir. 2013) (per curiam) (recognizing the
distinction between a pure question of fact from a mixed question
of law and fact), cert. denied, 573 U.S. 906 (2014).
Where
rejecting
there
a
has
federal
been
claim
one
reasoned
followed
by
state
an
court
judgment
unexplained
order
upholding that judgement, federal habeas courts employ a "look
through" presumption: "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."
Wilson v.
Sellers, 138 S. Ct. 1188, 1192 (2018) (Wilson).
Once a claim is adjudicated in state court and a prisoner
seeks relief in the federal court system, AEDPA's formidable
barrier to habeas relief comes into play, and it is very difficult
for a petitioner to prevail under this stringent standard.
As
such, state-court judgments will not easily be set aside once the
Court
employs
this
highly
deferential
intentionally difficult to meet.
standard
that
is
See Richter, 562 U.S. at 102.
Although AEDPA does not impose a complete bar to issuing a writ,
it severely limits those occasions to those "where there is no
possibility
fairminded
jurists
could
disagree
that
the
court's decision conflicts" with Supreme Court precedent.
5
state
Id.
In
sum, application of the standard set forth in 28 U.S.C. ' 2254(d)
ensures that habeas corpus is a guard against extreme malfunctions
in the state criminal justice systems, and not a mechanism for
ordinary error correction.
Richter, 562 U.S. at 102-103 (citation
and quotation marks omitted).
V.
INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner raises a claim of ineffective assistance of trial
counsel.
To prevail on his Sixth Amendment claim, Petitioner must
satisfy the two-pronged test set forth in Strickland v. Washington,
466 U.S. 668, 688 (1984), requiring that he show both deficient
performance (counsel's representation fell below an objective
standard of reasonableness) and prejudice (there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different).
See Brewster
v. Hetzel, 913 F.3d 1042, 1051-52 (11th Cir. 2019) (reviewing court
may begin with either component).
In order to obtain habeas relief, a counsel's errors must be
so great that they adversely affect the defense.
In order to
satisfy this prejudice prong, the reasonable probability of a
different result must be "a probability sufficient to undermine
confidence in the outcome."
Strickland, 466 U.S. at 694.
The standard created by Strickland is a highly deferential
standard,
requiring
a
most
deferential
6
review
of
counsel's
decisions.
Richter, 562 U.S. at 105.
Not only is there the
"Strickland mandated one layer of deference to the decisions of
trial counsel[,]" there is the added layer of deference required
by AEDPA: the one to a state court's decision.
at 1303.
Nance, 922 F.3d
Thus,
Given the double deference due, it is a "rare
case in which an ineffective assistance of
counsel claim that was denied on the merits in
state court is found to merit relief in a
federal habeas proceeding." Johnson v. Sec'y,
DOC, 643 F.3d 907, 911 (11th Cir. 2011). And,
for the reasons we have already discussed, it
is rarer still for merit to be found in a claim
that challenges a strategic decision of
counsel.
Nance, 922 F.3d at 1303.
VI.
The
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
two-part
Strickland
standard
is
also
applicable
to
Petitioner’s claim of ineffective assistance of appellate counsel.
Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016).
The
Eleventh Circuit describes Strickland's governance of this type of
claim:
To prevail on a claim of ineffective
assistance of appellate counsel, a habeas
petitioner must establish that his counsel's
performance was deficient and that the
deficient performance prejudiced his defense.
See Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674
(1984); Brooks v. Comm'r, Ala. Dep't of Corr.,
719 F.3d 1292, 1300 (11th Cir. 2013) ("Claims
of ineffective assistance of appellate counsel
are governed by the same standards applied to
7
trial counsel under Strickland.") (quotation
marks
omitted).
Under
the
deficient
performance prong, the petitioner "must show
that counsel's representation fell below an
objective
standard
of
reasonableness."
Strickland, 466 U.S. at 688, 104 S. Ct. at
2064.
Rambaran v. Sec'y, Dep't of Corr., 821 F.3d 1325, 1331 (11th Cir.
2016), cert. denied, 137 S. Ct. 505 (2016).
As with a claim of ineffective assistance of trial counsel,
the combination of Strickland and ' 2254(d) requires a doubly
deferential review of a state court decision.
U.S. at 105.
See Richter, 562
When considering deficient performance by appellate
counsel,
a court must presume counsel's performance was
"within
the
wide
range
of
reasonable
professional assistance." Id.[2] at 689, 104
S. Ct. 2052. Appellate counsel has no duty to
raise every non-frivolous issue and may
reasonably
weed
out
weaker
(albeit
meritorious) arguments.
See Philmore v.
McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009).
"Generally, only when ignored issues are
clearly stronger than those presented, will
the presumption of effective assistance of
counsel be overcome." Smith v. Robbins, 528
U.S. 259, 288, 120 S. Ct. 746, 145 L.Ed.2d 756
(2000) (quoting Gray v. Greer, 800 F.2d 644,
646 (7th Cir. 1986)); see also Burger v. Kemp,
483 U.S. 776, 784, 107 S. Ct. 3114, 97 L.Ed.2d
638 (1987) (finding no ineffective assistance
of counsel when the failure to raise a
particular issue had "a sound strategic
basis").
2
Strickland, 466 U.S. at 689.
8
Overstreet, 811 F.3d at 1287; see also Owen v. Sec'y, Dep't of
Corr., 568 F.3d 894, 915 (11th Cir. 2009) (footnote omitted) (since
the underlying claims lack merit, "any deficiencies of counsel in
failing to raise or adequately pursue [meritless issues on appeal]
cannot
constitute
ineffective
assistance
of
counsel"),
cert.
denied, 558 U.S. 1151 (2010).
To satisfy the prejudice prong, a petitioner must show "but
for the deficient performance, the outcome of the appeal would
have been different."
Black v. United States, 373 F.3d 1140, 1142
(11th Cir. 2004) (citations omitted), cert. denied, 543 U.S. 1080
(2005); see Philmore v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir.
2009) (per curiam) ("In order to establish prejudice, we must first
review the merits of the omitted claim. Counsel's performance will
be deemed prejudicial if we find that 'the neglected claim would
have a reasonable probability of success on appeal.'") (citations
omitted), cert. denied, 559 U.S. 1010 (2005).
VII.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
In
his
first
ground,
Ground One
Petitioner
raises
the
claim
of
ineffective assistance of appellate counsel for failure to raise
a claim on direct appeal that the trial court abused its discretion
by failing to permit completion of Petitioner’s psychological
evaluation and conduct a competency hearing.
9
Petition at 6.
Petitioner exhausted this claim by raising the issue in a petition
for writ of habeas corpus filed in the First District Court of
Appeal (1st DCA).
merits.
Ex. N.
Ex. M.
The 1st DCA denied the petition on its
It also denied rehearing.
Ex. O.
The record demonstrates the following.
raised
one
considered
ground
on
direct
defendant’s
appeal:
statements
to
the
police
Appellate counsel
court
erroneously
when
considering
whether a corpus delicti had been established (Florida law does
not allow admission of a confession to prove the corpus delicti).
Ex. I at i.
aware
that
As to the competency issue, appellate counsel was
“there
was
some
investigation
of
[Petitioner’s]
competency to stand trial after the first indictment, resulting in
the conclusion that you were competent to proceed.”
Ex. M, Exhibit
A, April 9, 2010 Letter of Public Defender (Appellate Counsel) to
Petitioner.
On direct appeal, the 1st DCA per curiam affirmed.
Ex. L.
The record shows Petitioner pursued similar claims concerning
his competency in his Second Amended Motion for Postconviction
Relief (Rule 3.850 motion).
in-depth
summary
of
the
Ex. Y.
The trial court provided an
proceedings
regarding
Petitioner’s
suggestion of mental incompetence repeated here to provide context
for Petitioner’s current ground for federal habeas relief:
10
The record reflects that Defendant was
evaluated on six separate occasions for mental
capacity.
On January 6, 2009, Assistant
Public Defender Joseph Debelder filed a
Suggestion of Mental Incompetence to Proceed,
which was supported by a December 31, 2008
mental evaluation by Dr. Ernest C. Miller.
(Ex. F.) According to the mental evaluation,
Dr. Miller took into consideration Defense
counsel’s cover letter, the Arrest and Booking
Report,
and
corresponding
supplements.
Ultimately, Dr. Miller recommended that the
court deem Defendant incompetent to proceed.
The State successfully moved the trial
court to order a second evaluation by a
different doctor. On February 25, 2009, the
State filed a mental evaluation by its expert,
Dr. William R. Meadows.
(Ex. G.)
Dr.
Meadow’s evaluation was more thorough than
that of Dr. Miller. Dr. Meadows reviewed the
clinical interview with Defendant, the Arrest
and Supplemental police reports, Dr. Miller’s
December 31, 2008 evaluation, the daily log of
Defendant’s
behavior
at
the
detention
facility, including recordings of telephone
conversations Defendant had before and after
Dr. Miller’s evaluation. Dr. Meadows’ report
points out that Dr. Miller did not review any
recordings of Defendant’s telephone calls at
the detention facility or any other collateral
information. He also notes that, despite Dr.
Miller’s recommendation of incompetence, Dr.
Miller could not rule out Malingering. (Ex.
G at 3.)
Dr. Miller’s report shows that
Defendant met the criteria for Malingering and
that there is no significant evidence to
support a diagnosis of mental illness or
mental deficit; as a result, Dr. Meadows
recommended that Defendant be considered
competent. (Ex. G at 7.) As Defendant states
in his Motion, Defendant’s new counsel,
Assistant Public Defender Greg Messore,
withdrew the Suggestion of Mental Incompetence
on April 16, 2009. (Def’s Mot. at 26.)
11
On September 14, 2009, counsel filed a
second Suggestion of Mental Incompetence to
Proceed, supported by a second evaluation from
Dr. Miller, which took place on September 11,
2009.
(Exs. H; I, respectively.)
Dr.
Miller’s second evaluation states, inter alia,
that Defendant’s behavior changed when he
interacted with mental health personnel versus
correctional officers or law enforcement and
that
“a
manipulative
component
was
identifiable.” (Ex. I at 2-3.) Dr. Miller
then recommended the Defendant be considered
incompetent “to be on the safe side [and]
mainly [… out] of an abundance of caution.”
(Ex. I at 3).
Also on September 14, 2009, the State
filed the September 11, 2009 results of a
second mental evaluation by Dr. Meadows. (Ex.
J.)
In this evaluation, Dr. Meadows states
that Defendant was dramatic and appeared
disingenuous and motivated to fake illness.
(Ex. J at 4).
Dr. Meadows notes that
Defendant met the criteria for Malingering and
that all the collateral sources of information
support the conclusion that Defendant was
faking mental illness to avoid prosecution and
that he should be considered competent to
proceed. (Ex. J at 7.)
On September 17, 2009, the State filed a
third round of reports from Dr. Miller and Dr.
Meadows.
(Exs. K; L, respectively.)
Dr.
Miller’s third report states that he reviewed
Defendant’s old chart, his two previous
interviews, the Arrest and Booking Report, the
two previous psychiatric examinations by Dr.
Meadows, telephone recordings of Defendant at
the detention center, and the results of the
M-Fast test.
(Ex. K at 1.)
Dr. Miller
reported that the information he reviewed
contained clear and compelling indications of
a “strong persistent manipulative/malingering
component present in Defendant’s purpose […
12
to] delay or avoid trial.” (Ex. K at 5.) Dr.
Miller’s third evaluation recommended that
Defendant be considered competent. (Ex. K at
5.)
Dr. Meadows’ third report highlighted that
new telephone calls, recorded since his
September
11,
2009
evaluation,
further
supported
the
fact
that
Defendant
was
malingering in an attempt to circumvent
prosecution.
(Ex. L at 1-2).
Dr. Meadow’s
evaluation recommended that Defendant be
considered competent to proceed. (Ex. L at 12).
On September 17, 2009, the trial court
held a hearing with the Assistant State
Attorney,
Defense counsel, and Defendant
present. During this hearing, Defense counsel
withdrew the Suggestion of Mental Incompetent
to Proceed, stating it could no longer be
pursued in good faith. (Ex. M at 15.) With
both doctors in agreement that Defendant was
competent to proceed, counsel also had no goodfaith basis to file a motion to suppress.
Counsel also stated that he had discussed this
issue with Defendant.
(Ex. M at 18-19.)
Without a good-faith basis on which to proceed,
counsel
could
not
have
argued
mental
incompetence. Counsel’s performance cannot be
deemed deficient for failure to raise a
nonmeritorious issue.
See Lugo v. State, 2
So.3d 1, 21 (Fla. 2008); see also Parker v.
State, 611 So. 2d 1224 (Fla. 1992).
Ex. Y at 128-30.
The key to understanding Petitioner’s claim is that he relies
on two written orders signed by the trial court on September 18,
2009, appointing Dr. Miller and Dr. Meadows to conduct competency
evaluations.
Ex.
A
at
160-63.
13
Upon
review,
the
oral
pronouncement
of
these
September 14, 2009. 3
written
orders
occurred
Ex. C at 385-86.
on
Monday,
On that same date,
Petitioner’s counsel, Mr. Messore, filed a Suggestion of Mental
Incompetence to Proceed.
Ex. A at 140-42.
On September 17, 2009,
the state announced additional examinations had taken place, with
Dr. Miller seeing Petitioner on Monday, September 14, 2009, and
Dr. Meadows seeing Petitioner on Wednesday, September 16, 2009.
Ex. C at 389.
See Ex. A at 153-57 (Dr. Miller’s September 14,
2009 letter of evaluation pursuant to court’s September 14, 2009
order); id. at 158-59 (Dr. Meadows’ September 16, 2009 evaluation).
Based on these evaluations (both finding competency to proceed),
on September 17, 2009, Mr. Messore withdrew the suggestion of
incompetency he had filed on Monday, September 14, 2009, stating
he no longer had a good faith basis to pursue that claim.
Ex. C
at 389.
The
record
psychological
shows
the
evaluations,
court
as
permitted
ordered.
Petitioner competent to proceed.
completion
Both
doctors
of
the
found
Although Petitioner may be
dissatisfied with this result, he was not deprived of due process
3 There is no explanation in the record for the delay in dating
and filing the written orders of appointment.
It is clear,
however, that the oral pronouncement of the orders occurred on
September 14, 2009, and both doctors complied and submitted
reports.
14
of law under the Fourteenth Amendment.
Furthermore, Petitioner’s
appellate counsel was not deficient for failing to raise a nonmeritorious claim.
To the extent Petitioner asserts that his appellate counsel
was ineffective for failure to raise a claim that the trial court
abused its discretion for failure to conduct a competency hearing,
this claim too has no merit.
in
his
Rule
3.850
motion,
Petitioner raised a similar claim
asserting
his
trial
counsel
was
ineffective for failure to pursue the claim of incompetence, and
that because Petitioner had been declared incompetent, he was
entitled to a competency hearing before the trial court could
declare him competent.
The
trial
court,
in
denying
the
claim
of
ineffective
assistance of trial counsel held:
Contrary
to
Defendant’s
claims,
Defendant was never declared incompetent to
proceed.
As noted in this Court’s analysis
of ground one, counsel filed the first
Suggestion of Mental Incompetence to proceed
on January 6, 2009, and Doctors Miller and
Meadows initially disagreed as to whether the
trial court should deem Defendant competent to
proceed. (Exs. F; G.) As Defendant states
in his Motion, counsel withdrew the first
Suggestion of Mental Incompetence on April 16,
2009. (Def’s Mot. at 26.) On September 14,
2009,
defense
counsel
filed
a
second
Suggestion of Mental Incompetence to Proceed,
which led to second and third rounds of
evaluations.
During the September 17, 2009
hearing, the third round of evaluations was
15
filed, and each doctor recommended Defendant
was competent to proceed. (Exs. K; L; M at
15-16.)
Defense counsel then withdrew the
September 14, 2009 Suggestion of Incompetence,
stating that he could no longer pursue the
motion in good faith. (Ex. M at 15.) Thus,
the trial court never declared Defendant
incompetent to [proceed], so he was not
entitled to a competency hearing.
Ex. Y at 136-37.
To prevail on a claim of ineffective assistance of appellate
counsel, the burden is heavy.
A petitioner must:
first show that his counsel was objectively
unreasonable, see Strickland, 466 U.S., at
687B691, 104 S. Ct. 2052, in failing to find
arguable issues to appealCthat is, that
counsel unreasonably failed to discover
nonfrivolous issues and to file a merits brief
raising them. If [a petitioner] succeeds in
such a showing, he then has the burden of
demonstrating prejudice. That is, he must show
a reasonable probability that, but for his
counsel's unreasonable failure to file a
merits brief, he would have prevailed on his
appeal. See id., at 694, 104 S. Ct. 2052
(defendant must show "a reasonable probability
that, but for counsel's unprofessional errors,
the result of the proceeding would have been
different").
Smith v. Robbins, 528 U.S. 259, 285B86 (2000).
Here,
Petitioner
has
not
satisfied
the
Strickland
requirements with respect to this claim of ineffective assistance
of appellate counsel.
Indeed, "there is no constitutional duty
to raise every nonfrivolous issue."
F.Supp.2d
1233,
1261
(M.D.
Fla.
16
Grossman v. Crosby, 359
2005)
(citation
omitted).
Petitioner has not shown that the 1st DCA decided this claim in a
manner contrary to Strickland, or that the 1st DCA's application
of Strickland was objectively unreasonable.
With respect to the
underlying claim that the trial court abused its discretion by
failing
to
permit
completion
of
Petitioner’s
psychological
evaluation and conduct a competency hearing, appellate counsel
could have reasonably decided to winnow out weaker and seemingly
non-meritorious arguments.
Upon the filing of Petitioner's state petition for writ of
habeas corpus, Ex. M, the 1st DCA reviewed Petitioner's arguments
concerning
the
claim
Petitioner
argued
his
appellate
counsel
should have raised on direct appeal, and the 1st DCA denied this
claim,
finding
it
to
be
without
merit,
thus
making
its
determination that no appellate relief would have been forthcoming
on this particular ground.
Ex. N.
Thus, Petitioner has failed
to show a reasonable probability the outcome of the direct appeal
would
have
been
different
had
appellate
counsel
argued
as
Petitioner's suggests appellate counsel should have on direct
appeal.
The appellate court’s denial of relief on the ineffective
assistance of appellate counsel claim was neither contrary to, nor
an unreasonable application of Strickland.
Therefore, Petitioner
is not entitled to habeas relief on ground one.
17
The adjudication of the state appellate court resulted in a
decision
that
involved
a
reasonable
application
of
clearly
established federal law, as determined by the United States Supreme
Court.
Therefore, Petitioner is not entitled to relief on this
ground because the 1st DCA's decision was not contrary to clearly
established
federal
law,
did
not
involve
an
unreasonable
application of clearly established federal law, and was not based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings.
Ground one is
due to be denied.
B.
In
ground
two,
Ground Two
Petitioner
claims
trial
counsel
was
constitutionally ineffective for failure to object to the jury
verdict
finding
Petitioner
guilty
of
first-degree
murder
attempted armed robbery as charged in the indictment.
at 7.
and
Petition
Although not a model of clarity, this claim is more clearly
delineated in the supporting facts, in which Petitioner contends
the indictment was defective because of the use of the phrase “or
another” in the second count, the attempted robbery count.
The
record
demonstrates
the
following.
Id.
Petitioner
was
originally charged by information with attempted armed robbery by
attempting to take money or other property, the property of Michael
Jones, from the person or custody of Michael Jones.
18
Ex. A at 5.
In a superceding indictment, Petitioner was charged with attempted
armed robbery by attempting to take money or other property, the
property of Michael Jones or another, from the person or custody
of Michael Jones or another.
Petitioner
asserts
Id. at 40 (emphasis added).
his
counsel’s
performance
was
constitutionally deficient for failure to object to the verdict of
guilty as charged in the indictment because it was unclear whether
the jury found Petitioner guilty of the crime against Michael Jones
or some other person.
Petitioner
claimed
Petition at 8-9.
his
trial
In his Rule 3.850 motion,
counsel
rendered
ineffective
assistance for failing to object to his conviction on the ground
the state failed to prove count two beyond a reasonable doubt as
the indictment contains the phrase “or another,” confusing the
jury as to the identity of the victim.
Ex. Y at 42-43.
In its order, the trial court set forth the two-pronged
Strickland standard before addressing the grounds for relief.
at 127.
In its review, the court mistakenly reviewed the original
indictment, Ex. A at 14, not the superceding indictment.
40.
Id.
Id. at
Thus, it concluded that the indictment did not contain the
phrase “of [sic] another,” and found counsel’s performance could
not be deemed deficient.
Ex. Y at 142.
Petitioner appealed the denial of his Rule 3.850 motion,
bringing to the 1st DCA’s attention the trial court’s mistake in
19
reliance upon the original indictment and providing the appellate
court with a copy of the superceding indictment.
at Appendix A, Exhibit A.
Ex. BB at 6; id.
The 1st DCA per curiam affirmed denial
of post-conviction relief without explanation.
Ex. DD.
If the last state court to decide a federal claim provides an
explanation for its merits-based decision in a reasoned opinion,
the district court simply reviews the specific reasons given by
the
state
reasonable.
court
and
defers
to
those
reasons,
if
they
are
But, if no explanation is provided, for example, the
opinion simply states affirmed or denied, the district court should
"look through" the unexplained decision to the last related statecourt decision that provides relevant rationale.
The district
court presumes the unexplained decision adopted the same reasoning
as the lower court, however, this presumption is not irrebutable,
as strong evidence may refute it.
See Kernan v. Hinojosa, 136 S.
Ct. 1603, 1606 (2016) (per curiam).
In an effort to rebut the
presumption, the state may attempt to show the higher state court
relied or most likely relied on different grounds than the lower
state court, "such as alternative grounds for affirmance that were
briefed or argued to the state supreme court or obvious in the
record it reviewed."
There
is
no
Wilson, 138 S. Ct. at 1192.
question
the
1st
DCA
had
the
superceding
indictment before it as it was provided to the appellate court by
20
Petitioner.
Ex. BB, Appendix A, Exhibit A.
Respondents assert
the “look through” presumption is rebutted because the unexplained
affirmance most likely relied on different grounds obvious in the
record the 1st DCA reviewed.4
Response at 43.
Tellingly, the
record demonstrates Petitioner confessed to the police that he
went to the apartment planning to rob the people in it, including
Michael Jones.
See Ex. Y at 102-107, 197-98; Ex. Z at 212, 329,
331-32, 337-39, 346-48, 374-80; Ex. AA at 411-16, 420-35.
The Court is convinced that fair-minded jurists could agree
with the appellate court's decision.
Richter, 562 U.S. at 102
(“[AEDPA] preserves authority to issue the writ in cases where there
is no possibility fairminded jurists could disagree that the state
court's decision conflicts with this Court's precedents.”).
As
the state appellate court reasonably determined the facts and
reasonably applied federal law to those facts in rejecting the
claim of ineffective assistance of counsel, Petitioner is not
entitled to habeas relief.
The appellate court’s decision was not
so lacking in justification that there was an error well understood
and comprehended in law beyond any possibility for fairminded
disagreement.
Alternative grounds for affirmance were not briefed by the state
as it filed a Notice That State Will Not File Answer Brief Pursuant
to Florida Rule of Appellate Procedure 9.141(b). Ex. CC.
4
21
To the extent a de novo must be undertaken, this Court finds
the trial court record is replete with references to Petitioner
planning
to
apartment.
rob
Michael
Jones
and
the
other
people
in
the
To lay the groundwork, the state, in its opening
statement said Petitioner told the police his plan was “to rob
them.”
Ex. D at 18, 24, 25.
Kala Coston testified, when she saw
a man in a mask, she thought there was going to be a robbery and
she feared for her life.
Id. at 92.
Detective Victor Barker
testified Petitioner said he was at the top of the stairs because
he was going to rob Kala and the people in the apartment.
Ex. E
at 225.
The jury heard the DVD of Petitioner’s confession.
at 235.
Petitioner said Kala told him to come in and rob everybody
in the apartment.
Id. at 261-62.
to rip Michael Jones off.
Id.
Petitioner added he was going
Id. at 270, 277.
In closing, the state
reiterated that Petitioner’s plan was to rob everyone in the
apartment.
Id. at 353, 378.
Of note, the record also shows the trial court, in addressing
a corpus delicti issue, reasoned:
The crime in question here that was
attempting to be committed as charged by the
State was the armed robbery. And the victim
in this case had money, there were persons who
knew
he
had
a
large
sum
of
money,
approximately – I haven’t heard exactly the
amount yet, but $2500 to $3000.
There was
discussion with more than one person on the –
in the room where the witness who walked out
22
the door with him was on the phone, Kay or
Kala.
She was on the phone.
There were
people in the room who heard some discussion
about a drug deal, people on the other end of
the phone who heard some discussion about the
drug deal.
So clearly there was money or
other property available to be taken from the
victim, in this case money. There was clearly
evidence presented, corroborating evidence of
the defendant’s statement of force, violence,
assault or putting in fear during the course
of the taking, although clearly they never got
to the taking itself.
The putting in fear language in the
instruction so that the victim does not resist
requires that the victim be in fear of death
or great bodily harm, someone crouched with a
gun, covered completely in black except for
the eye holes, would and did, in fact, put the
other person, Kala, in fear, both of them
[Kala and Michael Jones] ran back into the
apartment.
The property, money, is of some
value, whatever that value was, $2500 to
$3000, and obviously an attempt to take that
kind of money would be an attempt with the
intent to deprive a person of that money if
they were seeking to rob him or to appropriate
that money to someone other than the owner of
the money.
Ex. D at 200; Ex. E at 205-206 (emphasis added).
Later in the trial, defense counsel said he had reviewed the
jury instructions and they were fine.
Ex. E at 383.
The trial
court charged the jury with attempted robbery as set forth in the
superceding indictment.
Id. at 391-95.
Neither the state nor the
defense made exceptions or objections to the jury instructions.
Ex. F at 417.
The jury returned a verdict of guilty as charged
23
in
the
superceding
indictment.
The
testimony
and
evidence
adequately support the verdict.
Notably, “[t]he crime of attempted robbery requires only the
formation of an intent to take money or property of another and an
overt act capable of accomplishing the goal.”
Green v. State, 655
So. 2d 208, 209 (Fla. 3d Dist. App. 1995) (per curiam) (citing §
812.13, Fla. Stat. (1993); § 777.04, Fla. Stat. (1993); Mercer v.
State, 347 So.2d 733 (Fla. 4th DCA 1977)).
with
competent,
verdict.
substantial
evidence
The record is replete
supporting
the
jury’s
Petitioner has neither shown deficient performance nor
prejudice
under
the
Strickland
standard
of
review.
Thus,
Petitioner is not entitled to habeas relief on ground two of the
Petition.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.
The Petition for Writ of Habeas Corpus (Doc. 1) is
DENIED.
2.
This action is DISMISSED WITH PREJUDICE.
3.
The Clerk shall enter judgment accordingly and close
this case.
4.
If Petitioner appeals the denial of his Petition for
Writ of Habeas Corpus (Doc. 1), the Court denies a certificate of
24
appealability.
5
Because
this
Court
has
determined
that
a
certificate of 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.
DONE AND ORDERED at Jacksonville, Florida, this 11th day of
October, 2019.
sa 10/7
c:
Raney Richardson
Counsel of Record
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.
5
25
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