ADKISON v. JONES

Filing 25

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
JACKSONVILLE DIVISION
TERRY ADKISON,
Petitioner,
vs.

Case No. 3:18-cv-1176-J-39MCR

SECRETARY, DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
I.

INTRODUCTION

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
well.

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.
23).

1

Petitioner,

through

counsel,

filed

a

Reply

to

the

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
1

Respondents' Response to Mr. Adkison’s Petition for Writ of Habeas
Corpus (Doc. 24).

The Petition is timely filed.

See Response at

13.
II.

EVIDENTIARY HEARING

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
evidentiary hearing.
(2007).

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).
III.

CLAIMS OF PETITION

Petitioner raises four grounds in the Petition:

(1) the

Petitioner’s constitutional rights were violated when the state

will be referenced.
2

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
supported

the

Petitioner’s

Petitioner’s

theory

constitutional

right

of
to

innocence;
effective

and

(4)

the

counsel

was

violated when counsel misadvised the Petitioner about testifying
during his [first] sentencing hearing.
These claims are exhausted.
IV.

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."

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).
3

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
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
4

deference

is

due

"absent

a

conspicuous misapplication of Supreme Court precedent."

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

determinations of law and fact.

findings

fact,

not

mixed

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
5

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.

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.
Petitioner
counsel.

INEFFECTIVE ASSISTANCE OF COUNSEL
raises

claims

of

ineffective

assistance

of

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).

6

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

decisions.

a

most

deferential

Richter, 562 U.S. at 105.

review

of

counsel's

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.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.

Ground One

In the first ground of the Petition, Petitioner claims his
constitutional rights were violated when the state trial court

7

denied Petitioner’s motion to suppress.

Petition at 4.

He

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.
Id.

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.
652.

Petitioner and two officers testified.

Id.

Ex. 6 at 564The trial court

considered their testimony as well as the DVD recording of the
interview and the two rights forms.
Providing

a

detailed,

written

denied the motion to suppress.
the

statements

elicited

Ex. 4 at 314.
decision,

Id. at 314-17.

from

Petitioner

interrogation were not illegally obtained.

the

trial

The court found

during

the

451

U.S.

pertinent findings.

2

477

(1981),

the

Ex. 4 at 315-16.

trial

court

With

Edwards v.

made

several

The court found Petitioner

Miranda v. Arizona, 384 U.S. 436 (1966).
8

police

Id. at 315.

citation to the relevant Supreme Court case law,
Arizona,

court

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.

Id.

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.

Id.

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.

Id.

Id.

Petitioner

Detective Devevo told

Petitioner they were done as Petitioner had invoked his right to
counsel.
waive

the

Id.

Detective Devevo asked Petitioner if he desired to

right

he

had

invoked,

and

Petitioner

assured

the

detective he understood his rights and wanted to waive his rights.
Id.

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.

Ultimately,

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:
"[w]hether

the

trial

court

erred
9

in

admitting

Appellant’s

interrogation video into evidence over objection that his rewaiver of Miranda rights was coerced and not voluntary.”
at ii.

Ex. 13

He asserted the trial court erred in denying the motion

to suppress.

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
voluntary

re-initiation

of

his

interrogation.

Id.

at

26.

Petitioner urges this Court to conclude that the second waiver was
a product of police coercion, involuntary, and certainly subject
to suppression.

Id. at 27.

Petitioner relies on several factors,

including his limited opportunity to sleep or eat, the physical
setting

of

the

interrogation,

his

emotional

condition,

the

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
convictions.

Ex. 16.

The mandate issued March 20, 2014.

Ex.

17.
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
- 10 -

legal principle set forth in Edwards, but Petitioner asserts the
court

unreasonably

Petitioner’s case.

applied

the

decision

Memorandum at 21.

to

the

facts

of

In support, Petitioner

states that there was no break between the request for counsel and
further interrogation which resulted in Petitioner re-waiving his
rights.

Id.

He argues there was no valid re-initiation of the

conversation by Petitioner because the detectives never left the
room.

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.

Upon review

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).

Petitioner has

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).
3

- 11 -

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.

See

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
habeas

standard,

determine

whether

the
the

federal
state

district
court’s

court
legal

is

required

to

determination

of

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.
4,

2013).

warnings.

Here,

Petitioner

was

properly

He invoked his right to counsel.

given

his

Miranda

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
- 12 -

decision.

Petitioner indicated he desired to waive his right to

counsel, and once again, the detectives properly gave Petitioner
his Miranda warnings.
Based

on

the

totality

of

the

circumstances,

Petitioner

voluntarily elected to waive his rights and voluntarily confessed.4
The detectives scrupulously honored Petitioner’s right to cut off
questioning.

Lafond, 2013 WL 629448, at *8.

posed to Petitioner once he invoked.

No questions were

Id. at *11.

Petitioner

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.
4

- 13 -

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

his

second

ground

Ground Two

for

relief,

Petitioner

claims

his

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.”

Id.

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).

A sentencing

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
DCA 2012).
On appeal after re-sentencing, Petitioner raised one issue:
“[t]he trial court erred in sentencing Mr. Adkison, based in part,
on

an

unlawful

sentencing

characteristic.”
- 14 -

Ex.

20

at

i.

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.
at 7.

The 1st DCA affirmed per curiam.

Id.

Ex. 23.

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
count.
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.

- 15 -

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
process rights.

Ex. 16.

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.
salvation.

Id.

Id. at 48.

Id.

Petitioner testified

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
his remorse.

Id. at 64.

Counsel argued it was genuine remorse

and asked the court to accept it as genuine remorse.
70.

Id. at 69-

The state asked the court to sentence Petitioner to three

consecutive life sentences, and the defense asked for a downward
departure.
During

Id. at 61, 64-65.
the

re-sentencing,

the

court

said

it

considered

Petitioner’s acknowledgment and acceptance of responsibility and
guilt.

Id. at 73.

However, the court also considered “the timing

of the acknowledgment[,]” finding “the mitigating affect of your
acceptance

of

responsibility

is

severely

limited

because

the

timing of such and the posture of these proceedings today in light
of that acknowledgment.”

Id. at 73-74.
- 16 -

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
evaluation

that

was

done

acknowledgment of guilt.

two

Id. at 76.

years

before

Petitioner’s

See Ex. 6 at 709-747.

The

court said it was “left to ponder the impact on the doctor’s
conclusions from [Petitioner’s] confession.”

Ex. 19 at 76.

The

court concluded neither doctors nor courts are vested with crystal
balls to determine whether an individual will commit an offense in
the future.
The

Id.

court

provided

an

explanation

for

its

sentencing

decision:
So we start with the scope of your crimes
being profound, and you have no prior
significant
felony
history,
nothing
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. . . .
- 17 -

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
sentencing decision.
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.
The

court

declined

to

depart

downward,

recognizing

the

“inherent dignity due every single human being[,]” and rejecting
any contention that the sentences should be lessened because the
victims

were

prostitutes.

Id.

at

78.

Noting

Petitioner’s

convictions for three crimes of armed sexual battery against three
victims,

the

court

sentenced

Petitioner

- 18 -

to

consecutive

life

sentences.5

Id. at 79-80.

The 1st DCA affirmed.

mandate issued April 23, 2015.

Ex. 23.

The

Ex. 24.

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
2009)).

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).

Of course,

“[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.
5

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.
6

- 19 -

(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

unconstitutional.
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
doubt profound.”

Id.

Although the court took into consideration

Petitioner’s statement of remorse, the court declined to pronounce
- 20 -

a departure sentence, a matter well within its discretion.

Id.

at 76.
In

sum,

although

the

court

considered

the

request

for

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
sexual battery.

“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.
See

Griffin,

establish

the

2016

WL

5146611,

sentencing

court

at

*12

(finding

violated

the

a

failure

Fifth

to

Amendment

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
- 21 -

this claim is not contrary to or an unreasonable application of
Supreme Court law or based on an unreasonable determination of the
facts.

The Court concludes AEDPA deference is due and Petitioner

is not entitled to federal habeas relief.
C.
In

ground

three,

Ground Three

Petitioner

claims

trial

counsel

was

constitutionally ineffective for failure to call a witness that
would

have

supported

Petition at 7.

the

Petitioner’s

theory

of

innocence.

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.

Id.

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.
Kettler

could

have

Memorandum at 43.
corroborated

his

He asserts that Ms.

testimony

that

it

was

Petitioner’s habit to place his pocketknife in the center console
of the vehicle, in plain view.

Id. at 45.

Thus, Petitioner

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.
following.

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
- 22 -

Maynard.

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.

Defense

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.

The defense
After playing

Ex. 11 at 875.

In his Rule 3.850 motion, Petitioner claimed his trial counsel
rendered ineffective assistance by failing to investigate and call
Ms. Kettler.

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.

The

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.

Id.

The circuit

court noted the Petitioner responded no and advised the court there
was no additional evidence he wished to present to the jury.
Finding

Petitioner’s

own

testimony
- 23 -

refuted

his

allegation

Id.
of

defense counsel’s ineffectiveness, the Court held Petitioner was
not entitled to post-conviction relief.

Id.

Through counsel, Petitioner briefed this claim of ineffective
assistance of counsel on appeal of the denial of the Rule 3.850
motion.

Ex.

explanation.

41.
Ex. 43.

The

1st

DCA

affirmed

per

curiam

without

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.

Wilson.

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.

- 24 -

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
not

prejudice

the

performance.

In

decision

must

be

attorney

would

defense
order
so

have

to

nor

it

demonstrate

patently
chosen

did

constitute

ineffectiveness,

unreasonable

that

path.

deficient

that

no

the

competent

Moreover,

“[w]hich

witnesses, if any, to call . . . is the epitome of a strategic
decision, and it is one that [a court] will seldom, if ever, second
guess.”

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.

Indeed, he

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.
654.

Id. at

He repeatedly stated his knife remained in the center console

during sexual relations with prostitutes while they were inside
the vehicles.

Id. at 665, 686.

By calling Petitioner, defense counsel established strong
evidentiary effect through her questioning of Petitioner that he
- 25 -

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.
“failure

to

present

cumulative

assistance of counsel.”

evidence

is

not

Indeed,

ineffective

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.
U.S.

694.

Defense

counsel

presented

Strickland, 466

abundant

evidence

that

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
been presented.

Finally, Petitioner was not prejudiced by any

failure of counsel to investigate or call Ms. Kettle to elicit
further

testimony

that

Petitioner

habitually

placed

his

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
of review.
- 26 -

D.
In

his

fourth

constitutional

right

Ground Four

ground
to

for

relief,

effective

Petitioner

counsel

was

claims

violated

his
when

counsel misadvised Petitioner about testifying during his [first]
sentencing hearing.

Petition at 9.

In the supporting facts,

Petitioner asserts trial counsel misadvised him about whether he
should show remorse during the first sentencing proceeding.
This

claim

has

no

merit.

Regina

Wright

Petitioner at the first sentencing proceeding.
direct

appeal,

the

1st

DCA

vacated

the

represented

Ex. 6 at 710.

sentence.

Id.

Ex.

On
16.

Therefore, any question of counsel’s performance at the first
sentencing proceeding is moot.
represented Petitioner.
new sentence.

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
motion.

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.

Ex. 43.

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
- 27 -

been reversed on appeal and he received an entirely new sentencing
hearing with a different judge.

Ex. 40 at 22.

Additionally, the

court found the crime was not an isolated incident as Petitioner
was found guilty of multiple sexual batteries.

Id.

Finally, the

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.
Petitioner

Id.

The court referenced the record, which showed

testified

under

oath

at

the

second

sentencing

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.

Id.

Id.

The record shows the circuit court relied on the Strickland
two-pronged

standard

in

reviewing

ineffective assistance of counsel.

Petitioner's

Ex. 40.

claim

of

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
the

two-pronged

Strickland

test.

Of

note,

the

court

Petitioner did not demonstrate prejudice under Strickland.
40 at 22.

found
Ex.

The court further found the record refutes Petitioner’s

claim of deficient performance regarding the advice of counsel.
Id.

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.
819 (2017).

The 1st DCA affirmed the circuit court’s decision.

Ex. 43.
The Court will “look through” the 1st DCA’s unexplained
decision to the circuit court’s decision denying relief.

The

Court assumes the 1st DCA adopted the reasoning of the circuit
court.
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.

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.

Petitioner is not entitled to habeas

relief on ground four.
Accordingly, it is now
ORDERED AND ADJUDGED:

- 29 -

1.

The Amended Petition for Writ of Habeas Corpus (Doc. 21)

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 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
appeal

as

a

pauper

that

may

be

filed

in

this

case.

Such

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
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.
7

- 30 -

DONE AND ORDERED at Jacksonville, Florida, this 10th day of
October, 2019.

sa 10/2
c:
Terry Adkison
Counsel of Record

- 31 -