Hughlon v. State of Florida et al
Filing
43
ORDER denying 42 Motion to Compel, denying 1 Petition and dismissing action with prejudice, with instructions to the Clerk. Signed by Judge Marcia Morales Howard on 9/22/2021. (ACT)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
BERNARD HUGHLON,
Petitioner,
v.
Case No. 3:18-cv-619-MMH-JBT
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner Bernard Hughlon,1 an inmate of the Florida penal system,
initiated this action on May 4, 2018,2 by filing a Petition for Writ of Habeas
Corpus Under 28 U.S.C. § 2254 (Petition; Doc. 1). In the Petition, Hughlon
challenges a state court (Duval County) conviction for escape. Hughlon raises
The record reflects that Hughlon has several aliases, including Bernard
Richardson.
2 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).
1
six grounds for relief. See Petition at 5-17.3 Respondents initially moved to
dismiss the Petition as untimely. See Doc. 13. The Court denied the motion to
dismiss and directed Respondents to file a response to the merits. See Doc. 30.
Thereafter, Respondents filed a response in opposition to the Petition. See
Response to Petition for Writ of Habeas Corpus (Response; Doc. 31).4 Hughlon
filed a reply. See Reply to State Response and is in Good Faith also in
Compliance with 2254 (Reply; Doc. 41). Also, before the Court is Hughlon’s
Motion to Compel (Doc. 42). The Petition and Motion to Compel are ripe for
review.
II. Relevant Procedural History
On May 18, 2009, the State of Florida (State) charged Hughlon by way
of amended information with two counts of sexual battery (counts one and
four), three counts of lewd or lascivious molestation (counts two, three, and
five), lewd or lascivious exhibition (count six), child abuse (count seven), and
escape (count eight). Resp. Ex. 3 at 36-37, 49-50. On September 21, 2010,
Hughlon proceeded to trial on count eight only and a jury found him guilty of
escape. Resp. Ex. 4 at 26. On December 3, 2010, the circuit court adjudicated
For purposes of reference, the Court will cite the page number assigned
by the Court’s electronic docketing system.
4 Respondents represent that they are relying on the exhibits attached
to their motion to dismiss, which the Court will cite in this Order as “Resp.
Ex.”
3
2
Hughlon as a habitual felony offender (HFO) and sentenced him as to count
eight to a term of incarceration of thirty years in prison. Id. at 92-95.
Hughlon appealed his conviction and sentence as to count eight. Id. at
100. In his initial brief, Hughlon argued that the trial court: (1) refused to
conduct a timely Nelson5 hearing; (2) refused to instruct the jury on a lesser
included offense; and (3) held Hughlon in contempt without following the
proper procedure. Resp. Ex. 14. The State filed an answer brief. Resp. Ex. 15.
On June 26, 2012, Florida’s First District Court of Appeal (First DCA) affirmed
the conviction and sentence without a written opinion, Resp. Ex. 16, and issued
the mandate on July 12, 2012, Resp. Ex. 17.
Hughlon filed a pro se motion to correct an illegal sentence pursuant
to Florida Rule of Criminal Procedure 3.800(a) (3.800(a) Motion). Resp. Ex. 20
at 1-7. In the Rule 3.800(a) Motion, Hughlon argued his sentence exceeded the
statutory maximum, the trial court erred in setting aside his binding plea
agreement, and the trial court erroneously adjudicated him as an HFO. Id. The
postconviction court denied relief, id. at 9-15, and the First DCA affirmed,
Resp. Ex. 23.
Hughlon next collaterally attacked his conviction and sentence via a
motion for postconviction relief pursuant to Florida Rule of Criminal Procedure
5
Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).
3
3.850 (Rule 3.850 Motion), in which he raised thirty grounds for relief. Resp.
Ex. 32 at 1-27. Following an order striking several grounds with leave to
amend, Hughlon filed a supplement to his motion. Id. at 33-43. The
postconviction court denied relief, id. at 58-87, and the First DCA affirmed the
denial of relief, Resp. Ex. 37.
III. One-Year Limitations Period
This action was timely filed within the one-year limitations period. See
Doc. 30.
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
4
assess [Hughlon’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 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
5
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 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
6
“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.’”[6] Titlow, 571 U.S. at
---, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S.
290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).
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).
6
7
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
8
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 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 iron-clad 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,
9
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
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
10
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
Hughlon argues that his counsel was ineffective for failing to object and
move to strike an unnamed juror. Petition at 5-6. According to Hughlon, the
juror saw Hughlon in his prison garb with shackles while Hughlon was being
transported to the courtroom. Id. Hughlon avers that this tainted the juror and
potentially the other jurors. Id. Additionally, Hughlon asserts that he saw the
same juror have a discussion with the prosecutor assigned to his case during
which he observed “positive body language/laughter.” Id. at 5. Although
Hughlon admits he does not know the content of the conversation, he contends
that the conversation shows that “the jury members bonded with, and favored
the State Attorney.” Id. at 6.
Hughlon raised a similar claim in state court as ground two of his Rule
3.850 Motion. Resp. Ex. 32 at 6-7. In denying relief on this claim, the
postconviction court explained:
At the post-trial hearing held October 6, 2010,
Defendant told the trial court why he wanted to file a
pro se arrest of judgment: “The reason why I filed that
motion right there was because, when I was being
escorted by the officers to here, to get ready for trial,
11
the juror was sitting out there in the hallway . . . And
I don’t feel like that was a fair trial.” He claimed that
he had related this allegation to his attorney. The
Court questioned defense counsel as follows:
THE COURT: Now, . . . did [Defendant]
say anything to you about seeing someone
talking to one of the jurors . . . ?
[DEFENSE COUNSEL]: He said that one
of the jurors saw him, when he was being
escorted . . . in his handcuffs. I didn’t see
how that would prejudice the jury. I’ve had
trial with handcuffs and shackles, and
they have been found not guilty. So, I don’t
see anything prejudicial about that.
The Court found that counsel was not ineffective
in failing to seek a remedy due to a juror allegedly
seeing Defendant in restraints.
The above exchange shows that the Court has
already addressed the claim in Ground Two during the
October 6, 2010 hearing and found it to be without
merit. Defendant raised this issue on direct appeal,
and the First District implicitly found it to be without
merit. Issues that could have been, should have been,
or were raised on direct appeal may not be raised in a
motion for postconviction relief. Zeigler v. State, 452
So. 2d 537 (Fla. 1984). Proceedings under Rule 3.850
are not to be used a second appeal. Medina v. State,
573 So. 2d 293 (Fla. 1990). The Court therefore finds
that the claim in Ground Two is procedurally barred.
Id. at 62-63 (record citations omitted). Without writing a written opinion, the
First DCA affirmed the denial of relief. Resp. Ex. 37.
12
To the extent that the First DCA decided the claim on the merits,7 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, Hughlon is not entitled to relief
on the basis of this claim.
Given the facts of this case, there is no reasonable probability a single
juror’s brief viewing of Hughlon handcuffed outside of the courtroom or the
prosecutor’s alleged conversation with a juror changed the outcome of the trial.
The record reflects that the State presented two witnesses, Detectives Futch
and Henson. Futch testified that he arrested Hughlon on unrelated charges
and was walking him from the police station to the jail to be processed. Resp.
Ex. 6 at 29-39. Inside the sally port of the jail, Futch was filling out paperwork
when, out of the corner of his eye, he observed Hughlon run out of the sally
port in the direction of the employee parking lot. Id. at 38-40. Futch yelled out
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.
7
13
to the other officers in the sally port to stop Hughlon, and Detective Henson
and Futch gave chase. Id. at 40-41, 53-57. After a chase over a 100-yard span,
Henson deployed his taser and apprehended Hughlon, who was then taken
back into custody without further issue. Id. at 40-41, 57-61. In light of the
unrebutted testimony, identity was not an issue at trial. As such, the State
presented substantial evidence of Hughlon’s guilty. Accordingly, Hughlon has
failed to demonstrate prejudice. See Clark v. Comm’r, Alabama Dep’t of Corr.,
988 F.3d 1326, 1333 (11th Cir. 2021) (holding that where strong evidence of
guilt was present, petitioner could not demonstrate prejudice of two jurors
observing him in shackles during trial); see also Barber v. Dunn, No. 5:16-CV00473-RDP, 2019 WL 1098486, at *53 (N.D. Ala. Mar. 8, 2019) (holding a
juror’s brief exposure to a shackled defendant outside of the courtroom did not
establish a violation under the Fifth or Fourteenth Amendment). Hughlon is
not entitled to relief on the claim in Ground One.
B. Grounds Two and Three
As Ground Two, Hughlon contends that the trial court erred “by illegally
voiding a legal and binding contract/Defendant’s eighteen (18) month plea
agreement[.]” Petition at 7. Hughlon maintains that he entered into a
negotiated plea agreement that the trial court accepted that disposed of his
escape charge along with the remaining counts. Id. at 7-9. However, he asserts
that he was recalled into court shortly after entering the negotiated plea,
14
where a different defense attorney and prosecutor were present. Id. At this
hearing, the prosecutor presented a fifteen-year plea deal for the escape
charge, which Hughlon refused to sign because he believed he had already
entered into a binding plea agreement. Id. As a result of Hughlon’s decision to
decline the fifteen-year plea, he proceeded to trial, was found guilty, and
received a thirty-year sentence as an HFO. Id. Hughlon maintains the thirtyyear sentence was unlawful and constituted double jeopardy. Id. In Ground
Three, Hughlon argues his counsel was ineffective for failing to object to the
trial court’s failure to uphold the alleged original plea agreement and argue
that the sentence imposed amounted to a double jeopardy violation. Id. at 1011.
Hughlon raised similar claims in his Rule 3.850 Motion. Resp. Ex. 32 at
7-9. Regarding Hughlon’s double jeopardy claim, the postconviction court
wrote the following:
The Court has carefully reviewed the record in this
case and has determined that there was only one
pretrial hearing in August of 2008, which was held on
August 7. The transcript of that hearing shows that
the only mention of a plea offer that occurred during
the hearing was a comment made by defense counsel
at the beginning of the hearing: “Judge, [Defendant]
tendered a defense offer to the State, which was
rejected today.” The Court has also reviewed all of the
transcripts of the other pretrial hearings that are part
of the record in this case and has found no indication
that any plea agreement was ever reached, or even
seriously discussed. Because the record refutes the
15
factual allegations contained in Ground Four of
Defendant’s motion, the Court finds he is not entitled
to relief.
Id. at 64 (record citations omitted). As to Hughlon’s ineffective assistance of
counsel claim, the postconviction court ruled:
As explained in Ground Four supra, the transcript of
the August 7, 2008 pretrial hearing shows that the
only mention of a plea offer that occurred during the
hearing was a comment made by defense counsel at
the beginning of the hearing: “Judge, [Defendant]
tendered a defense offer to the State, which was
rejected today.” Because the record refutes the factual
allegations contained in Ground Six of Defendant’s
motion that a plea agreement had been reached, the
Court finds that defense counsel was not ineffective in
failing to make any objection related thereto.
Id. at 65 (record citations omitted). The First DCA affirmed the denial of relief
without issuing a written opinion. Resp. Ex. 37.
To the extent that the First DCA decided the claims on the merits, the
Court will address the claims 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 these claims 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, Hughlon is not entitled to relief
on the basis of these claims.
16
Under § 2254(e)(1), a state court’s factual determination is presumed
correct unless a petitioner provides clear and convincing evidence rebutting
the factual determination. Nothing in the record provided to the Court
supports Hughlon’s assertion that he resolved his escape charge via a
negotiated guilty plea. Hughlon filed with this Court a motion for clarification
requesting the Court to direct Respondents to produce a transcript from a pretrial proceeding held on August 7, 2008, during which he claims to have
entered into the plea deal in question. Doc. 16. In response, Respondents
represented that they could not find any record of an eighteen-month plea deal
or transcripts that reflect the entry of such. Doc. 19. Being as there was no
documents with which to supplement the record, on April 16, 2019, the Court
denied Hughlon’s motion, but afforded Hughlon additional time to procure and
produce these records on his own. Doc. 21. On August 13, 2021, Hughlon
provided supplemental records, which included: (1) a letter Hughlon wrote to
the court reporter requesting copies of the transcripts; (2) a response from the
court reporter indicating that those records were no longer kept because the
proceeding was over ten years old; (3) two docket printouts with reference to a
“disposition” on August 7, 2008; and (4) an unsigned and unverified “affidavit”
that Hughlon purports to be from his brother, who was in the courtroom on
August 7, 2008, and allegedly corroborates Hughlon’s version of events. Doc.
34.
17
The first docket sheet that Hughlon provides, Doc. 34 at 3, does not
include the case number or any other identifying information that would
connect that docket to Hughlon’s escape charge, Duval County Case Number
2008-CF-6058. Without more, the Court cannot determine the relevancy of this
record. Moreover, although the document states “DISPOSITION” on August 7,
2008, every date after it reflects pretrial activity, which shows the case was not
disposed of that day.
The second docket sheet, which does include reference to the correct
criminal case number, reflects the following entry on July 24, 2008:
“DISPOSITION 08/07/2008 09:00 - 3 330 E BAY ST (CIRCUIT).”8 Id. at 4.
However, the docket entries on August 7, 2008, do not reflect any notation
regarding a disposition and only reference the date of the next pretrial
conference. Id. Notably, Hughlon had another criminal case, Duval County
Case Number 2008-CF-1671,9 in which a proceeding was held on August 7,
2008, at 9:57 a.m. During that proceeding, defense counsel represented that
the prosecution had rejected a defense offer and the prosecutor stated that they
wanted to try Hughlon’s escape charge prior to going to trial on the charges in
Respondents also provided this same printout of the docket in their
exhibits. Resp. Ex. 3 at 8.
9 The State charged Hughlon with one count of failure to comply with
sexual offender requirements. Resp. Ex. 44 at 8.
8
18
Case Number 2008-CF-1671. Doc. 32 at 292-93. Again, this evidence shows
there was no resolution of the escape charge at that time.
As to the “affidavit,” this unsigned and unnotarized document is
insufficient and not credible. Hughlon has not provided clear and convincing
evidence that the postconviction court’s factual determination that he did not
enter a plea pursuant to an eighteen-month plea agreement is incorrect.
Therefore, the Court presumes the postconviction court’s factual determination
that Hughlon did not plead guilty is correct. As Hughlon did not enter a
negotiated guilty plea, his sentence does not violate Double Jeopardy.
Likewise, counsel cannot be ineffective for failing to raise a meritless
challenge. 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.”). Relief on the claims in Grounds Two and
Three are due to be denied.
C. Ground Four
Next, Hughlon asserts that the trial court erred when it failed to give a
jury instruction on the lesser-included offense of resisting arrest without
violence. Petition at 12-13. According to Hughlon, his counsel requested this
instruction, but the trial court denied the request. Id. Hughlon maintains that
19
the evidence supported the reading of this instruction and, therefore, he was
entitled to have it read to the jury. Id.
During the charge conference, defense counsel requested a jury
instruction for resisting arrest without violence. Resp. Ex. 6 at 74-79. The trial
court denied the request, explaining:
Okay. In this case I don’t find that the elements of the
resisting are set out in the charging document. So, I
don’t believe it would be appropriate to instruct them,
or give them resisting without violence as a lesser
included offense. So, I’m going to deny that request.
Id. at 78-79. Hughlon raised the trial court’s failure to give this instruction on
direct appeal. Resp. Ex. 14. The First DCA affirmed the conviction and
sentence. Resp. Ex. 16.
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, Hughlon is not entitled to relief
on the basis of this claim.
20
“[I]n non-capital cases . . . the ‘Due Process Clause does not require a
state court to instruct the jury on lesser included offenses.’” Harris v. Crosby,
151 F. App’x 736, 737 (11th Cir. 2005) (citing Perry v. Smith, 810 F.2d 1078,
1080 (11th Cir. 1987)). Accordingly, Hughlon is not entitled to federal habeas
relief on his claim that the trial court erred in failing to give a jury instruction
on resisting arrest without violence. See id. Moreover, under Florida law,
resisting an officer without violence is not a necessarily lesser included offense
of escape. See Applewhite v. State, 874 So. 2d 1276, 1278-79 (Fla. 5th DCA
2004). As such, to read an instruction on resisting an officer without violence,
the information must allege all the statutory elements of the lesser offense and
the evidence at trial must support a guilty verdict on the lesser offense. Id. at
1279. Here, as in Applewhite, the charging document did not allege every
element of resisting an officer without violence. Resp. Ex. 3 at 26. Accordingly,
the trial court did not err in refusing to read the instruction. Based on the
above analysis, the claim for relief in Ground Four is due to be denied.
D. Ground Five
Hughlon maintains that his trial counsel was deficient for failing to
object to improper comments during the State’s closing arguments. Petition at
14-15. According to Hughlon, on three occasions the prosecutor made
comments that the evidence did not support. Id. First, he contends that the
prosecutor accused defense counsel of arguing that there was no evidence to
21
support the case against Hughlon. Id. at 14. Second, the prosecutor incorrectly
“stated that the sally port area of the jailhouse was secured which conflicted
with Detective Futch’s testimony stating that the bay doors were opened all
the way.” Id. Third, the prosecutor stated there were no surveillance cameras,
despite testimony from law enforcement that security cameras were present at
the sally port and in the jailhouse. Id. Hughlon maintains these comments
misled the jury. Id.
In state court, Hughlon raised this claim as grounds fifteen, twenty, and
twenty-two of his Rule 3.850 Motion Resp. Ex. 32 at 15-16, 18-20. The
postconviction court denied relief, writing:
Detective Futch testified that during his deposition in
this case, he learned that there were cameras in the
sally port area. Detective Henson also testified that
there were cameras in the sally port area.
The prosecutor made the following statement
during his closing argument:
Defense counsel mentioned that you have
some video. Detective Futch testified that
he didn’t know that there was a video
inside the pretrial detention facility. But
most of this defendant’s action took place
outside. He ran outside. So, there would
have been no video in the area to collect
what he was doing outside.
....
The Court finds that the prosecutor’s comments
in closing accurately reflected the testimony presented
22
at trial, and therefore there was no good faith basis
upon which defense counsel could have objected.
Therefore, even if counsel had objected to the
prosecutor’s closing argument, the objection would
have been overruled. Defense counsel cannot be
deemed ineffective for failing to make an objection that
has no merit. See Card v. Dugger, 911 F.2d 1494, 1520
(11th Cir. 1990). As such, the Court finds that
Defendant is unable to meet either the deficient
performance or the prejudice prong of the Strickland
test, [sic] and this claim is without merit.
Id. at 71 (record citations omitted).
Defense counsel made the following comments during
her closing argument:
[DEFENSE COUNSEL]:
[T]here’s no
evidence presented to you, other than
Detective Futch and Detective Henson,
that says our client left the sally port that
day, went four lengths of this courtroom,
and fell down in some bushes.
***
[DEFENSE COUNSEL]: [T]here are no
bushes there. So, what bushes did he fall
into. If they took it so seriously, somebody
who escaped, they could have photograph
[sic] of these bushes, but today they are
not here. The reason why, [Defendant]
never fell into any bushes, because he
never escaped.
***
[DEFENSE COUNSEL]: Another thing
we can talk about is the lack of evidence.
And since we’re talking about this video,
there’s no video. There’s no video of
everything that took place that day in the
23
sally port area. . . . If somebody committed
an escape at the Jacksonville Sheriff’s,
right there in their facilities, they should
have the video. There’s nothing that shows
that our client ran, because he did not run.
***
[DEFENSE COUNSEL]: [T]hey know he
did not escape. And there’s been no
evidence that’s been presented to you
today, that even an EMT was called out,
nothing. Nothing that shows he was tased,
nobody testified that an EMT was called
out today, because [Defendant] did not
escape.
***
[DEFENSE COUNSEL]:
[I]t didn’t
happen. There’s nothing that they can
show you that says [Defendant] escaped,
other than what those two people said to
you today. . . . We don’t have a video . . .
In response, the prosecutor made the following
argument during his rebuttal closing:
[PROSECUTOR]: Let’s talk about what
the defense is arguing. First, [defense
counsel] stated there was no evidence.
Now, the Judge will explain to you, . . .
testimony is evidence. Testimony that
comes from the stand is evidence for you
to consider. And what did you hear. You
heard from Detective Henson and
Detective Futch about this defendant’s
actions. Their testimony is evidence, and
the Judge will tell you to consider it as
such.
***
24
[PROSECUTOR]: And the Judge will tell
you, the evidence that you can consider is
testimony from . . . the witness chair.
***
[PROSECUTOR]: Defense counsel kept
saying there was no evidence, no evidence,
no evidence. Testimony is evidence.
....
The Court finds that the prosecutor’s comments
were a fair rebuttal to defense counsel’s own closing
argument and were therefore proper. As such, any
objection to the prosecutor’s argument would have
been overruled. Because Defendant is unable to meet
either the deficient performance or the prejudice prong
of the Strickland test, he is not entitled to relief as to
Ground 20.
Id. at 73-74 (record citations omitted).
Detective Futch testified that after Defendant was
handcuffed, he was escorted to the pretrial detention
facility by himself and another detective. Once the lock
was activated at the door of the sally port, the other
detective left. Detective Futch testified that there were
two large aluminum rollup doors on either end of the
sally port to allow cars to drive through, and one of
them was open at the time. Defendant remained
handcuffed behind his back as he waited in line to be
processed into the jail.
During his initial closing the prosecutor stated,
“And you learned today that a sally port is a secure
area right before the individual are taken into the
pretrial detention facility.” “The defendant . . . was in
the sally port of this detention facility, clearly secure.
Secure by two metal doors on each side, that are raised
only when cars are going in or out of the facility.”
Defense counsel did not object to these statements.
25
....
The Court finds that the prosecutor’s statements
did not misstate the evidence and were fair comments
on the testimony presented at trial. As such, if counsel
had objected to the comments, the objection would
have been overruled. Because Defendant is unable to
meet either the deficient performance or the prejudice
prong of the Strickland test, the Court finds he is not
entitled to relief as to this claim.
Id. at 75-76 (record citations omitted). Without issuing a written opinion, the
First DCA affirmed the denial of relief. Resp. Ex. 37.
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, Hughlon is not entitled to relief
on the basis of this claim.
For purposes of federal habeas review, “a prosecutor's improper
comments will be held to violate the Constitution only if they ‘so infected the
trial with unfairness as to make the resulting conviction a denial of due
process.’” Parker v. Matthews, 567 U.S. 37, 45 (2012) (quoting Darden v.
26
Wainwright, 477 U.S. 168, 181 (1986)). “[O]pening statements and closing
arguments are not in themselves evidence, their purpose ‘is to assist the jury
in analyzing the evidence.’” Burchfield v. CSX Transp., Inc., 636 F.3d 1330,
1335 (11th Cir. 2011) (quoting United States v. Hasner, 340 F.3d 1261, 1275
(11th Cir. 2003)). Indeed, during closing arguments “a prosecutor may ‘assist
the jury in analyzing, evaluating, and applying the evidence’ and, therefore,
may ‘urge[ ] the jury to draw inferences and conclusions from the evidence
produced at trial.” United States v. Adams, 339 F. App’x 883, 886 (11th Cir.
2008) (quoting United States v. Johns, 734 F.2d 657, 663 (11th Cir. 1984)).
Regarding the prosecutor’s comments asserting defense counsel argued
there was no evidence to support a conviction, in review of counsel’s closing
arguments the Court determines the prosecutor’s statements were a fair
rebuttal to defense counsel’s continued arguments regarding the lack of
evidence. Moreover, closing arguments are not evidence; therefore, even if a
mischaracterization
occurred,
Hughlon
cannot
demonstrate
prejudice
considering the overwhelming evidence of his guilt.
As to the security of the sally port, Detective Futch testified it was a large
garage, with aluminum rollup doors. Resp. Ex. 6 at 35-38. Inside the port there
were two lanes, additional parking, and a “control pod” where correctional
officers processed the new inmates who waited in a line near the control pod.
Id. Futch escorted Hughlon inside the sally port and Hughlon was waiting in
27
line to be processed. Id. at 38-39. According to Futch, one of the aluminum
doors was open. Id. at 39. Hughlon was able to get one hand free from his
handcuffs and ran out of the sally port through that open aluminum door. Id.
Detective Henson testified similarly, also noting that one of the aluminum
garage doors was open. Id. at 53-55. Based on this evidence, the Court finds
the prosecutor comments were not improper when she stated that Hughlon
was in the sally port “clearly secured . . . by two metal doors on each side, that
are raised only when cars are going in or out of the facility.” Id. When read in
context, the prosecutor merely detailed the setting of the escape, including the
secured features of the sally port. In other parts of the State’s closing
arguments, the prosecutor acknowledged that Hughlon ran through one of the
open doors. Id. at 83, 85. Therefore, the prosecutor did not misstate the
evidence and there would have been no basis on which to object. Moreover,
whether the door was open or closed was irrelevant considering the fact the
sally port was part of the jail, a place of confinement under Florida’s escape
law. See § 944.40, Fla. Stat.
Concerning the comments related to the security cameras, upon review,
Hughlon has mischaracterized the prosecutor’s comments. During her rebuttal
closing, the prosecutor made the following statements:
Let’s also talk about this video. Defense counsel
mentioned that you should have some video. Detective
Futch testified that he didn’t know that there was a
28
video inside the pretrial detention facility. But most of
this defendant’s actions took place outside. He ran
outside. So, there would have been no video in the area
to collect what he was doing outside.
Resp. Ex. 6 at 98. Detective Futch testified that although unknown to him at
the time, there were security cameras in the sally port. Id. at 48-49. Likewise,
Detective Henson testified to the existence of cameras in the sally port. Id. at
63-64. Nothing the prosecutor said deviated from this testimony. The
prosecutor acknowledged video cameras inside the sally port, but also noted
that Hughlon’s escape and subsequent apprehension occurred outside of the
sally port where there was no evidence security cameras existed. Thus, the
prosecutor correctly commented on the evidence presented. Defense counsel,
therefore, would not have had a basis on which to object. In light of the above
analysis, Hughlon has failed to demonstrate the prosecutor made objectionable
comments or that those comments prejudiced him. Accordingly, the claim for
relief in Ground Five is due to be denied.
E. Ground Six
Last, Hughlon argues that his trial counsel was ineffective for admitting
during closing argument that Hughlon was tased outside the jailhouse and
escorted back into the jailhouse. Petition at 16-17. According to Hughlon, these
comments contradicted his defense at trial that he was innocent. Id.
29
Hughlon raised this argument in his Rule 3.850 Motion. Resp. Ex. 32 at
12-13. In the postconviction court’s order denying relief, it wrote:
Detective Henson testified that Defendant was tased
near some bushes, where he was recaptured after he
fled the sally port. The detective also testified as
follows:
[PROSECUTOR]: How far would you say
the defendant ran?
[DET. HENSON]: Probably, maybe 100
yards.
[PROSECUTOR]: And Detective, if you
could estimate how long do you think the
length of this courtroom is?
[DET. HENSON]: About 25 yards.
[PROSECUTOR]:
Twenty-five yards.
Would you say that he ran about four
lengths of this courtroom, away from the
sally port?
[DET. HENSON]: Yes, ma’am.
Defense counsel made the following comments during
her closing argument:
[DEFENSE COUNSEL]:
[T]here’s no
evidence presented to you, other than
Detective Futch and Detective Henson,
that says our client left the sally port that
day, went four lengths of this courtroom,
and fell down in some bushes.
***
30
[DEFENSE COUNSEL]: Another thing is
that they didn’t call an evidence
technician out, or the EMT out to where
he was tased. Here’s a man who was tased,
and tasers can be dangerous, tasers can
lead to death, tasers can cause harm . . .
But what do they do, they walk our client
four lengths of this courtroom, all the way
back to the sally port area, after he was
tased, and then they call the EMT.
....
Defendant is taking defense counsel’s comments
out of context, and he asks this Court to consider them
in isolation, which this Court declines to do. The Court
finds that counsel in no way conceded Defendant’s
guilt. Indeed, as more fully discussed in the analysis
of Ground 20 infra, the entire theory of defense, which
wound like a thread through defense counsel’s entire
closing argument, was that the escape never happened
at all. The Court further finds that counsel’s argument
was an accurate reflection of testimony presented at
trial and therefore was proper. Because Defendant is
unable to meet either the prejudice or the deficient
performance prong of the Strickland test, he is not
entitled to relief as to Ground 11.
Id. at 67-69 (record citations omitted). The First DCA affirmed the denial of
relief. Resp. Ex. 37.
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
31
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, Hughlon is not entitled to relief
on the basis of this claim.
Throughout the defense’s closing arguments, counsel argued that the
State failed to prove it was Hughlon who tried to escape. Resp. Ex. 6 at 88-94.
The comments the postconviction court referenced in its order are not
concessions of guilt but a hypothetical counsel proposed to the jury attempting
to highlight the lack of evidence to support the detective’s testimony. Counsel
attempted to contrast the prosecutor’s contentions regarding the seriousness
of an escape charge with the detective’s lack of response at the scene. As such,
there would have been no grounds on which to object and counsel is, therefore,
not deficient. Moreover, based on the unrebutted testimony of both detectives,
there is no reasonable probability the outcome of the trial would have been
different had defense counsel not made these comments. Hughlon cannot
demonstrate prejudice. For these reasons, Hughlon is not entitled to relief on
the claim in Ground Six.
VII. Motion to Compel
Hughlon requests the Court to order the state clerk of court to provide a
transcript or minutes of proceedings held on August 7, 2008, from 10:00 a.m.
to 10:30 a.m. Doc. 42 at 1. He contends that this transcript would prove he
32
entered into an eighteen-month plea agreement. Id. This is Hughlon’s third
request for the same. The Court afforded Hughlon over two years to obtain this
documentation on his own. Hughlon has not provided any additional argument
or evidence for the Court to reconsider its previous ruling on the matter.
Therefore, the Motion to Compel is due to be denied.
VIII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Hughlon 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 constitutional right.” 28 U.S.C. §
2253(c)(2). To make this substantial showing, Hughlon “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.
33
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 Motion to Compel (Doc. 42) is DENIED.
2.
The Petition (Doc. 1) is DENIED, and this action is DISMISSED
WITH PREJUDICE.
3.
The Clerk of the Court shall enter judgment denying the Petition
and dismissing this case with prejudice.
4.
If Hughlon appeals the denial of the Petition, the Court denies a
certificate of appealability. Because the 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.
34
5.
The Clerk of the Court is directed to close this case and terminate
any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 22nd day of
September, 2021.
Jax-8
C:
Bernard Hughlon #J09810
Counsel of record
35
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