ADKISON v. JONES
ORDER denying 21 amended 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 10/10/2019. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 3:18-cv-1176-J-39MCR
OF CORRECTIONS, et al.,
Petitioner, who is represented by counsel, challenges his
state court (Duval County) conviction through an Amended Petition
for Writ of Habeas Corpus (Petition) (Doc. 21) pursuant to 28
U.S.C. ' 2254.
He filed an Amended Memorandum of Law in Support
of Petition Filed Under 28 U.S.C. § 2254 (Memorandum) (Doc. 22) as
He is serving three consecutive life sentences for three
counts of sexual battery.
Petition at 1.
Respondents filed a
Response to Petition for Writ of Habeas Corpus (Response) (Doc.
The Court hereinafter refers to the Exhibits to the Appendix
(Doc. 23) 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
Respondents' Response to Mr. Adkison’s Petition for Writ of Habeas
Corpus (Doc. 24).
The Petition is timely filed.
See Response at
The pertinent facts are fully developed in this record or the
record otherwise precludes habeas relief; therefore, the Court is
able to "adequately assess [Petitioner's] claim[s] without further
factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th
Cir. 2003), cert. denied, 541 U.S. 1034 (2004).
As the record
refutes the asserted factual allegations or otherwise precludes
habeas relief, the Court finds Petitioner is not entitled to an
Schriro v. Landrigan, 550 U.S. 465, 474
Petitioner has not met his burden of demonstrating a need
for an evidentiary hearing.
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).
CLAIMS OF PETITION
Petitioner raises four grounds in the Petition:
Petitioner’s constitutional rights were violated when the state
will be referenced.
trial court denied the Petitioner’s motion to suppress; (2) the
Petitioner’s constitutional rights were violated when the trial
court premised the Petitioner’s sentence on his tardy remorse; (3)
the Petitioner’s constitutional right to effective counsel was
violated when counsel failed to call a witness that would have
violated when counsel misadvised the Petitioner about testifying
during his [first] sentencing hearing.
These claims are exhausted.
Petition at 4, 6-7, 9.
Response at 13.
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."
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
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)."
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
Harrington v. Richter, 562 U.S. 86, 102 (2011).
decision, habeas relief must be denied.
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
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."
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
conspicuous misapplication of Supreme Court precedent."
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
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).
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."
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.
such, state-court judgments will not easily be set aside once the
intentionally difficult to meet.
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
court's decision conflicts" with Supreme Court precedent.
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).
INEFFECTIVE ASSISTANCE OF COUNSEL
To prevail on his Sixth Amendment claims, 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
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.
Nance, 922 F.3d
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
Nance, 922 F.3d at 1303.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In the first ground of the Petition, Petitioner claims his
constitutional rights were violated when the state trial court
denied Petitioner’s motion to suppress.
Petition at 4.
contends officers coerced him during custodial interrogation, and
his inculpatory statement that he showed a knife to one victim and
admitted having sex with the women was the result of coercion
despite his request for an attorney early in the interrogation.
Basically, Petitioner argues his statements should have been
suppressed because they were involuntary and in violation of his
rights under Miranda2 to terminate questioning.
The record demonstrates, prior to trial, Petitioner moved to
suppress his statements.
Ex. 3 at 65-71.
The trial court on
August 10, 2011, conducted a hearing on the motion.
Petitioner and two officers testified.
Ex. 6 at 564The trial court
considered their testimony as well as the DVD recording of the
interview and the two rights forms.
denied the motion to suppress.
Ex. 4 at 314.
Id. at 314-17.
interrogation were not illegally obtained.
The court found
Ex. 4 at 315-16.
The court found Petitioner
Miranda v. Arizona, 384 U.S. 436 (1966).
Id. at 315.
citation to the relevant Supreme Court case law,
invoked his right to counsel.
Id. at 316.
The court found the
officers respected this invocation, as evidenced by their efforts
to gather their belongings and the statement of Detective Devevo
that they would be outside.
The court found the detectives
conducted no further questioning of Petitioner, nor did they make
any statements that they should have known were reasonably likely
to elicit an incriminating response from Petitioner.
Contrary to Petitioner’s contentions, the court also found
that after Petitioner invoked his right to counsel, Petitioner
reinitiated the dialogue with the detectives.
asked a question of the detectives.
Detective Devevo told
Petitioner they were done as Petitioner had invoked his right to
Detective Devevo asked Petitioner if he desired to
detective he understood his rights and wanted to waive his rights.
At this point, the detective went over a second rights form
with Petitioner, and Petitioner waived his right to counsel and
proceeded to talk to the detectives.
Id. at 316-17.
the trial court held, “that, after reinitiating conversation with
the detectives, the Defendant knowingly and intelligently waived
his earlier request for counsel.”
Id. at 317.
On direct appeal, Petitioner raised the following issue:
interrogation video into evidence over objection that his rewaiver of Miranda rights was coerced and not voluntary.”
He asserted the trial court erred in denying the motion
Id. at 23.
With respect to the findings of the
trial court, Petitioner argued the trial court erred in determining
Petitioner’s re-waiver of his Miranda rights was a product of his
Petitioner urges this Court to conclude that the second waiver was
a product of police coercion, involuntary, and certainly subject
Id. at 27.
Petitioner relies on several factors,
including his limited opportunity to sleep or eat, the physical
duration and nature of questioning, the officers’ implication of
promises, and suggestive questioning.
Id. at 30-40.
The First District Court of Appeal (1st DCA) affirmed the
The mandate issued March 20, 2014.
In his Memorandum, Petitioner urges this Court to find the
Florida courts unreasonably applied the governing principles set
forth in Edwards and its progeny, or alternatively, the courts
unreasonably declined to extend the holding of Edwards to the facts
of Petitioner’s case.
Memorandum at 17.
In brief, Petitioner
admits that the trial court appropriately identified the governing
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legal principle set forth in Edwards, but Petitioner asserts the
Memorandum at 21.
In support, Petitioner
states that there was no break between the request for counsel and
further interrogation which resulted in Petitioner re-waiving his
He argues there was no valid re-initiation of the
conversation by Petitioner because the detectives never left the
Id. at 30.
Apparently, Petitioner is claiming there was an unreasonable
determination of the facts, and the state courts’ failure to
suppress evidence of the confession was based upon unreasonably
applied governing principles set forth in Edwards.
of the record, the factual findings of the state court were not
unreasonable determinations of the facts based on the evidence
presented at the suppression hearing.
presumed to be correct.3
Indeed, these findings are
28 U.S.C. 2254(e)(1).
not met his burden of overcoming this presumption of correctness
by clear and convincing evidence.
The factual findings regarding the non-coercive nature of the
interrogation are entitled to a presumption of correctness. See
Harris v. Dugger, 874 F.2d 756, 762 (11th Cir.) (recognizing that
subsidiary factual questions, including whether intimidation
tactics were employed by the police, are entitled to a presumption
of correctness), cert. denied, 493 U.S. 1011 (1989).
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Furthermore, the state courts’ legal determination was not
contrary to established Supreme Court law, nor did it involve an
unreasonable application of clearly established Federal law.
Edwards, 451 U.S. at 484-85 (“[A]n accused . . . having expressed
his desire to deal with the police only though counsel, is not
subject to further interrogation by the authorities . . . unless
the accused himself initiates further communication, exchanges, or
conversations with the police.”).
See Land v. Allen, 573 F.3d
1211, 1217 (11th Cir. 2009) (per curiam) (citing Lam v. Kelchner,
304 F.3d 256, 264 (3d Cir. 2002)) (recognizing, under the AEDPA
voluntariness was contrary to or an unreasonable application of
Supreme Court precedent), cert. denied, 559 U.S. 1072 (2010).
This case is distinguishable from United States v. Lafond,
No. 1:13-cr-92-01-WSD-LTW, 2013 WL 6269448, at *8 (N.D. Ga. Dec.
He invoked his right to counsel.
The detectives told
Petitioner they were leaving because he had invoked his rights and
they would be outside.
Petitioner reinitiated contact with the
detectives by asking questions.
The detectives, quite wary, told
Petitioner they could not converse with Petitioner unless he
decided to waive his right to counsel, but reminded him it was his
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Petitioner indicated he desired to waive his right to
counsel, and once again, the detectives properly gave Petitioner
his Miranda warnings.
voluntarily elected to waive his rights and voluntarily confessed.4
The detectives scrupulously honored Petitioner’s right to cut off
Lafond, 2013 WL 629448, at *8.
posed to Petitioner once he invoked.
No questions were
Id. at *11.
initiated further conversation and his statement was obtained in
accordance with the Constitution as the officers properly gave
Petitioner Miranda warnings for a second time.
Thus, to the extent Fifth and Fourteenth Amendment claims
were raised and addressed, 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
In order to determine whether a confession was voluntarily given,
there must be “an examination of the totality of the
circumstances[.]” United States v. Lall, 607 F.3d 1277, 1285 (11th
Cir. 2010) (citing Arizona v. Fulminante, 499 U.S. 279, 287
(1991)). After waiving, Petitioner made a limited confession to
some of the acts.
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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.
constitutional rights were violated when the trial court premised
the Petitioner’s sentence on his tardy remorse.
Petition at 6.
Petitioner urges this Court to find the “[s]tate judge violated
due process by premising life sentences in part on Petitioner’s
failure to timely admit remorse.”
Although Petitioner does
not specifically identify the constitutional rights at issue in
the body of the Petition, the Fifth Amendment provides: “[n]o
person . . . shall be compelled in any criminal case to be a
witness against himself[.]” U.S. Const. amend. V.
proceeding is part of “any criminal case.”
States, 526 U.S. 314, 327 (1999).
Mitchell v. United
As such, “[t]he due process
clause of the Fifth Amendment prohibits a court from punishing a
defendant for exercising a constitutional right, such as the right
to remain silent.” Green v. State, 84 So. 3d 1169, 1171 (Fla. 3rd
On appeal after re-sentencing, Petitioner raised one issue:
“[t]he trial court erred in sentencing Mr. Adkison, based in part,
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Petitioner claimed the trial court’s improper consideration of
impermissible factors to support the severity of the sentence
constituted a violation of Petitioner’s due process rights.
The 1st DCA affirmed per curiam.
A brief procedural history will be provided to provide context
for this claim.
At his original sentencing, Petitioner did not
admit guilt or express remorse.
Instead, he said:
The man you heard about in this courtroom
is not me – was not me. Prior to the day I
got arrested, prior to being in this facility,
was not me.
I am not saying I am an innocent man.
I’m not saying I am a guilty man. But I wasn’t
living the right life. I was running around
with prostitutes, and I know I was. More than
one, More than two. I wouldn’t even start to
Ex. 6 at 717.
The trial court, in pronouncing sentence, opined:
But one thing that really concerns me, and it
was confirmed today by the defendant’s
statement, unfortunately, with respect to the
current case, Mr. Adkison denies culpability
and shows no remorse.
Mr. Adkison did not mention the victims
at all today. He did not mention that he was
sorry, that he regretted his actions. I think
he still maintains his innocence and that
concerns me greatly.
Id. at 742.
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The 1st DCA affirmed the convictions but vacated the sentences
and remanded for resentencing because the trial court’s oral
pronouncement conditioned the sentence, in part, on Petitioner’s
lack of remorse and claim of innocence, in violation of his due
At re-sentencing on August 8, 2014,
Petitioner admitted his guilt.
Ex. 19 at 46.
When asked when he
decided to admit guilt and express remorse at re-sentencing,
Petitioner said “a month ago.”
he told his mother first.
Id. at 48.
He said the admission was for his
In closing argument, his counsel said Petitioner
crossed the barrier to admit his crimes, seek help, and express
Id. at 64.
Counsel argued it was genuine remorse
and asked the court to accept it as genuine remorse.
Id. at 69-
The state asked the court to sentence Petitioner to three
consecutive life sentences, and the defense asked for a downward
Id. at 61, 64-65.
Petitioner’s acknowledgment and acceptance of responsibility and
Id. at 73.
However, the court also considered “the timing
of the acknowledgment[,]” finding “the mitigating affect of your
timing of such and the posture of these proceedings today in light
of that acknowledgment.”
Id. at 73-74.
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In this regard, the court
pondered the implication of Petitioner’s admissions made long
after Dr. Neidigh rendered his opinion, see id. at 64, an opinion
upon which Petitioner was relying to seek a departure sentence,
that concluded Petitioner was a prime candidate for counseling and
any risk of recidivism was low.
Id. at 64, 76.
The record shows
Dr. Neidigh had referenced the presence of sexually related anger
and hostility that could be addressed with counseling, but also
stated there would be a low risk of recidivism based on an
acknowledgment of guilt.
Id. at 76.
See Ex. 6 at 709-747.
court said it was “left to ponder the impact on the doctor’s
conclusions from [Petitioner’s] confession.”
Ex. 19 at 76.
court concluded neither doctors nor courts are vested with crystal
balls to determine whether an individual will commit an offense in
So we start with the scope of your crimes
being profound, and you have no prior
commensurate with violence of this sort and in
this manner, and that has been well argued by
your lawyer. The reality of it is, there’s
not defendant – there’s not one victim on one
date, there is not two victims on two
different dates, there are three victims from
three different dates for which you were
convicted. . . .
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So while you lack a prior history, these
crimes are severe, and it seems to the Court
this, the question that is placed squarely
before the Court, artfully stated by lawyers
who are representing various interests is
this, should your sentence be lessened because
the victims of your crimes were prostitutes.
That’s the – that seems to the Court, if I
were to peel the onion back a layer at a time
to get to what is truly the core of the matter,
which this Court has taken great time to
review in great detail in this case, that
seems to be the heart, the core of the
And so the question is should your
sentence be lessened because your victims were
actively engaged in prostitution, willing
participants in multiple sexual acts with
multiple sexual partners for profit, and as
crass as that sounds, this Court’s answer to
that question, should your sentence be
lessened because they’re prostitutes, is
squarely no, it should not[.]
Id. at 76-78.
“inherent dignity due every single human being[,]” and rejecting
any contention that the sentences should be lessened because the
convictions for three crimes of armed sexual battery against three
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Id. at 79-80.
The 1st DCA affirmed.
mandate issued April 23, 2015.
This Court must consider whether the re-sentencing court’s
remarks at sentencing “were so erroneous as to be equivalent to a
denial of due process.”
See Griffin v. Sec’y, Dep’t of Corr., No.
8:13-cv-2025-T-36TBM, 2016 WL 5146611, at *11 (M.D. Fla. Sept. 21,
2016) (quoting Hannum v. State, 13 So. 3d 132, 135 (Fla. 2d DCA
In undertaking its review, the Court recognizes: “the
Constitution forbids the exaction of a penalty for a defendant’s
unsuccessful choice to stand trial.”
Smith v. Wainwright, 664
F.2d 1194, 1196 (11th Cir. 1981) (citation omitted).
“[a]n accused cannot be punished by a more severe sentence because
he unsuccessfully exercised his constitutional right to stand
trial rather than plead guilty.”
Baker v. United States, 412 F.2d
1069, 1073 (5th Cir. 1969)6 (citing Thomas v. United States, 368
F.2d 941 (5th Cir. 1966); United States v. Martell, 335 F.2d 764
Clearly the court was not persuaded this was isolated behavior.
The court expressed its profound dismay that Petitioner had raped
three different women at knifepoint on three different occasions
and rejected the defense’s core contention that the sentence should
be lessened because the victims were prostitutes.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc), the Eleventh Circuit adopted as binding precedent
all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
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(4th Cir. 1964); United States v. Wiley, 278 F.2d 500 (7th Cir.
1960)), cert. denied, 396 U.S. 1018 (1970).
That would be patently
Here, the court did not punish Petitioner for exercising his
right to stand trial rather than plead guilty.
United States v.
Jackson, 390 U.S. 570, 581 (1968) (questioning any provision that
discourages the assertion of the Fifth Amendment right not to plead
guilty and any provision which deters the exercise of the Sixth
Amendment right to a jury trial).
Indeed, the court expressly
took into consideration Petitioner’s expression of remorse and his
admission of guilt.
At re-sentencing, the court said it considered Petitioner’s
acknowledgment and acceptance of responsibility and guilt, but
also found the mitigating effect of Petitioner’s pronouncement
diminished by its timing and circumstance, noting the doctor’s
opinion was rendered long prior to Petitioner’s admission of guilt
and expression of remorse.
In addition, the court explained that
the conduct for which Petitioner was convicted and to which he had
confessed “is profound in its scope and heinous in its nature.”
Ex. 19 at 75.
The court described the raping of a human being
while armed with a knife in a threatening manner is “beyond all
Although the court took into consideration
Petitioner’s statement of remorse, the court declined to pronounce
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a departure sentence, a matter well within its discretion.
mitigation based on remorse and admission of guilt, the court
declined to impose a departure sentence, and as the state had
requested, sentenced Petitioner to life, a legal sentence for armed
“Although remorse and an admission of guilt may
be grounds for mitigation of sentence, the opposite is not true.
Reliance on these impermissible factors violates the defendant's
due process rights.”
Brown v. State, 27 So. 3d 181, 183 (Fla. 2nd
DCA 2010) (emphasis added) (quoting Ritter v. State, 885 So.2d
413, 414 (Fla. 1st DCA 2004)).
There is no indication in the record that the court harbored
any belief of lack of remorse which affected the sentence imposed.
privilege against self-incrimination by impermissibly considering
a lack of remorse in imposing its sentence).
Upon review of the
record, the court did not rely on impermissible factors when
sentencing Petitioner and Petitioner is not entitled to habeas
relief on this ground.
Ground two is due to be denied.
The 1st DCA’s decision, Ex. 23, is not inconsistent with
Supreme Court precedent, and the state court’s adjudication of
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this claim is not contrary to or an unreasonable application of
Supreme Court law or based on an unreasonable determination of the
The Court concludes AEDPA deference is due and Petitioner
is not entitled to federal habeas relief.
constitutionally ineffective for failure to call a witness that
Petition at 7.
In the supporting facts, Petitioner claims counsel
was aware of a witness that would have supported the theory of
innocence but failed to call her at trial.
In the Memorandum,
Petitioner explains that this claim is based on counsel’s failure
to investigate and call Laura Kettler to testify on behalf of
Petitioner at trial.
Memorandum at 43.
He asserts that Ms.
Petitioner’s habit to place his pocketknife in the center console
of the vehicle, in plain view.
Id. at 45.
surmises that this testimony would have provided an explanation
for why the victims were aware of the knife.
This ground is due to be denied.
Id. at 46.
The record demonstrates the
After the state rested, upon inquiry as to whether
anyone would be called by the defense other than the defendant,
defense counsel told the court that she would recall Detective
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Ex. 10 at 638.
The court asked Petitioner if there was
any additional evidence he wished to present to the jury, and he
responded in the negative.
Id. at 639.
Detective Maynard and Petitioner.
The defense called
Id. at 641-740.
counsel announced there were no additional witnesses, but counsel
asked to publish the video to the jury.
put on the DVD of the entire interview.
the video, the defense rested.
Id. at 740.
Id. at 753.
Ex. 11 at 875.
In his Rule 3.850 motion, Petitioner claimed his trial counsel
rendered ineffective assistance by failing to investigate and call
Ex. 40 at 10-11.
In its order, the circuit court
set forth the two-pronged Strickland standard before addressing
the grounds for relief.
Id. at 18-20.
After the circuit court's
introduction to the claim and its rendition of the relevant law,
the court took the trial record under consideration.
It found the
record demonstrated trial counsel told the court that one detective
and the defendant would be called as witnesses.
Id. at 21.
record also showed the court inquired of Petitioner about his
decision to testify and specifically asked him if there were any
other witnesses he wished to call to testify.
court noted the Petitioner responded no and advised the court there
was no additional evidence he wished to present to the jury.
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defense counsel’s ineffectiveness, the Court held Petitioner was
not entitled to post-conviction relief.
Through counsel, Petitioner briefed this claim of ineffective
assistance of counsel on appeal of the denial of the Rule 3.850
This affirmance is an adjudication on the
merits entitled to AEDPA deference.
This Court will employ the
"look through" presumption; the Court will "look through" the
unexplained decision to the last related state court decision that
provides relevant rationale (the circuit court's decision denying
post-conviction relief) and will presume the unexplained 1st DCA
decision adopted the same reasoning as the circuit court.
The Court is convinced that fair-minded jurists could agree
with the circuit court's decision.
As the state 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.
ruling is entitled to AEDPA deference.
The state court's
The 1st DCA affirmed the
trial court's decision and its decision is not inconsistent with
Supreme Court precedent, and the state court's adjudication of
this claim is not contrary to or an unreasonable application of
Strickland or based on an unreasonable determination of the facts.
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Thus, AEDPA deference is due, and Petitioner is not entitled to
relief on ground three.
Of note, the proposed testimony of Ms. Kettle is cumulative
testimony and the failure of counsel to present such testimony did
witnesses, if any, to call . . . is the epitome of a strategic
decision, and it is one that [a court] will seldom, if ever, second
Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995),
cert. denied, 516 U.S. 856 (1995).
The record shows Petitioner took the stand and described his
habit of taking his pocketknife out of his pocket and placing it
in the console of his vehicle.
Ex. 10 at 653-54.
provided an in-depth explanation for his placement of the knife in
the center console due to the seatbelt assembly and the discomfort
of keeping the pocketknife in his pocket while driving.
He repeatedly stated his knife remained in the center console
during sexual relations with prostitutes while they were inside
Id. at 665, 686.
By calling Petitioner, defense counsel established strong
evidentiary effect through her questioning of Petitioner that he
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routinely carried a pocketknife and would place it in the console
of a vehicle where it was in plain sight for the prostitutes to
see during sexual encounters.
Defense counsel did not need to
call Ms. Kettle to get this point across to the jury.
assistance of counsel.”
Haag v. Sec’y, Dep’t of Corr., No. 8:14-
CV-1794-T-35AEP, 2017 WL 6550884, at *16 (M.D. Fla. Sept. 25, 2017)
(citing Maharaj v. State, 778 So. 2d 944, 957 (Fla. 2000)).
Under these circumstances, there is not a probability of a
different result sufficient to undermine confidence in the outcome
of the trial if counsel had called Ms. Kettle.
Petitioner would routinely place his knife in the center console
of a vehicle, and counsel’s performance was not ineffective for
failure to call Ms. Kettle because similar evidence had already
Finally, Petitioner was not prejudiced by any
failure of counsel to investigate or call Ms. Kettle to elicit
pocketknife in plain view in the center console of a vehicle.
Based on the record, Petitioner is not entitled to habeas
relief on ground three of the Petition.
He has neither shown
deficient performance nor prejudice under the Strickland standard
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counsel misadvised Petitioner about testifying during his [first]
Petition at 9.
In the supporting facts,
Petitioner asserts trial counsel misadvised him about whether he
should show remorse during the first sentencing proceeding.
Petitioner at the first sentencing proceeding.
Ex. 6 at 710.
Therefore, any question of counsel’s performance at the first
sentencing proceeding is moot.
At resentencing, Terry P. Roberts
Ex. 19 at 34.
Id. at 79-80.
Petitioner is serving a
As such, Petitioner is not entitled
to habeas relief on this claim of ineffective assistance of counsel
at the first sentencing proceeding.
Petitioner exhausted this ground by raising it in a Rule 3.850
Ex. 40 at 12-15.
Id. at 21-22.
The circuit court denied the claim.
Petitioner appealed the denial of this claim, and
the 1st DCA affirmed.
In denying this claim, the court assumed arguendo counsel’s
performance was deficient in the first sentencing proceeding, but
found Petitioner failed to show prejudice because the sentence had
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been reversed on appeal and he received an entirely new sentencing
hearing with a different judge.
Ex. 40 at 22.
court found the crime was not an isolated incident as Petitioner
was found guilty of multiple sexual batteries.
court found Petitioner’s assertion that he decided not to admit
his wrong doings and express remorse at the first sentencing
hearing because of the advice of trial counsel was clearly refuted
by the record.
The court referenced the record, which showed
proceeding that he did not decide to admit guilt and express
remorse until a month prior to the second sentencing hearing.
Based on the above, the court denied relief.
The record shows the circuit court relied on the Strickland
ineffective assistance of counsel.
In order to obtain
relief under a Sixth Amendment claim of ineffective assistance of
counsel, a defendant must not only establish deficient performance
by counsel, but the defendant must also demonstrate prejudice under
Petitioner did not demonstrate prejudice under Strickland.
40 at 22.
The court further found the record refutes Petitioner’s
claim of deficient performance regarding the advice of counsel.
As such, Petitioner could not prevail on his claim of
- 28 -
ineffective assistance of counsel.
See Bester v. Warden, 836 F.3d
1331, 1337 (11th Cir. 2016) (finding a petitioner must satisfy
both prongs of the Strickland test in order to prevail on his claim
of ineffective assistance of counsel), cert. denied, 137 S. Ct.
The 1st DCA affirmed the circuit court’s decision.
The Court will “look through” the 1st DCA’s unexplained
decision to the circuit court’s decision denying relief.
Court assumes the 1st DCA adopted the reasoning of the circuit
Fair minded jurists could agree with the state court's ruling
in rejecting this claim of ineffective assistance of trial counsel.
With respect to this claim of ineffective assistance of counsel,
AEDPA deference should be given to the state court's decision.
The state court's ruling is well-supported by the record and by
controlling case law, Strickland and its progeny.
court's adjudication of this claim is not contrary to or an
unreasonable application of Strickland or based on an unreasonable
determination of the facts.
Petitioner is not entitled to habeas
relief on ground four.
Accordingly, it is now
ORDERED AND ADJUDGED:
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The Amended Petition for Writ of Habeas Corpus (Doc. 21)
This action is DISMISSED WITH PREJUDICE.
The Clerk shall enter judgment accordingly and close
If Petitioner appeals the denial of his Amended Petition
for Writ of Habeas Corpus (Doc. 21), the Court denies a certificate
of appealability. 7
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
termination shall serve as a denial of the motion.
This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
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.
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DONE AND ORDERED at Jacksonville, Florida, this 10th day of
Counsel of Record
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