Russell v. Secretary, Department of Corrections et al
ORDER denying 1 petition for writ of habeas corpus, 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 6/3/2021. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
LARRY H. RUSSELL,
Case No. 3:19-cv-198-BJD-JBT
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Petitioner Larry H. Russell filed a Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody (Petition) (Doc. 1)
challenging his state court (Duval County) conviction for tampering with a
witness, grand theft auto, driving while license suspended, possession of
cocaine; possession of paraphernalia, and resisting an officer without violence.
Petition at 2. Respondents filed an Answer to Petition for Writ of Habeas
Corpus (Response) (Doc. 11). Petitioner filed a notice stating he intends on
relying on the allegations and claims stated in the Petition (Doc. 16). See
Order (Doc. 8).
Three grounds are raised in the Petition: (1) ineffective assistance of
appellate counsel for failure to raise a claim that the use of a general verdict
form did not ensure a unanimous verdict on the tampering with a witness
count; (2) ineffective assistance of trial counsel for failure to object to the trial
court’s use of the general verdict form that did not ensure a unanimous verdict
on the count of tampering with a witness; and (3) ineffective assistance of trial
counsel for failure to file a motion to suppress a letter illegally intercepted by
jail officials as evidence of the tampering charge in count 1 and prejudicing the
defense as to counts 2, 3, 5, 6, and 7 regarding consciousness of guilt. 1
Petition at 4, 7, 8. Respondents calculate the Petition is timely. Response at
“In a habeas corpus proceeding, the burden is on the petitioner to
establish the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of
Corr., 834 F.3d 1299, 1318 (11th Cir. 2016) (citations omitted), cert. denied,
137 S. Ct. 2245 (2017). To be entitled to an evidentiary hearing, a petitioner
Respondents filed an Appendix (Doc. 11). The page numbers referenced are the Bates
stamp numbers at the bottom of each page of the exhibit. Otherwise, the page number on
the document will be referenced. The Court will hereinafter refer to the Exhibits contained
in the Appendix as “Ex.” For the Petition and Response, the Court references the page
numbers assigned by the electronic filing system.
must allege “facts that, if true, would entitle him to relief.” Martin v. United
States, 949 F.3d 662, 670 (11th Cir.) (quoting Aron v. United States, 291 F.3d
708, 715 (11th Cir. 2002)) (citation omitted), cert. denied, 141 S. Ct. 357 (2020).
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); Dickson v. Wainwright, 683 F.2d 348, 351
(11th Cir. 1982) (same).
If the allegations are contradicted by the record, patently frivolous, or
based upon unsupported generalizations, the court is not required to conduct
an evidentiary hearing.
Martin, 949 F.3d at 670 (quotation and citation
omitted). Here, the pertinent facts are fully developed in this record or the
record otherwise precludes habeas relief;
therefore, this Court can
development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert.
denied, 541 U.S. 1034 (2004). Upon review, Petitioner has not met his burden
as the record refutes the asserted factual allegations or otherwise precludes
2 Petitioner was represented by counsel in the state-court post-conviction proceeding, and
the state court conducted an evidentiary hearing.
Therefore, the Court finds Petitioner is not entitled to an
evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
The Eleventh Circuit recently opined that federal courts are authorized
to grant habeas relief to a state prisoner “only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United
States.” Lee v. GDCP Warden, 987 F.3d 1007, 1017 (11th Cir. 2021) (quoting
28 U.S.C. § 2254).
Further, under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), there is a very deferential framework, limiting
the power of federal courts to grant relief if a state court denied a claim on its
merits. Sealey v. Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1354 (11th
Cir. 2020) (citation omitted) (acknowledging the deferential framework of
AEDPA for evaluating issues previously decided in state court), cert. denied,
2021 WL 1240954 (U.S. Apr. 5, 2021); Shoop v. Hill, 139 S. Ct. 504, 506 (2019)
(per curiam) (recognizing AEDPA imposes “important limitations on the power
of federal courts to overturn the judgments of state courts in criminal cases").
Indeed, relief is limited to occasions where the state court’s decision:
“was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United
States,” or “was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.” A state
court’s decision is “contrary to” clearly established
federal law if the state court either reaches a
conclusion opposite to the Supreme Court of the
United States on a question of law or reaches a
different outcome than the Supreme Court in a case
with “materially indistinguishable facts.” Williams
v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 146
L.Ed.2d 389 (2000).
“Under the ‘unreasonable
application’ clause, a federal habeas court may grant
the writ if the state court identifies the correct
governing legal principle” from Supreme Court
precedents “but unreasonably applies that principle to
the facts of the prisoner’s case.” Id. at 413, 120 S. Ct.
Lee, 987 F.3d at 1017-18.
This high hurdle is not easily surmounted; if the state court applied
clearly established federal law to reasonably determined facts when
determining a claim on its merits, “a federal habeas court may not disturb the
state court’s decision unless its error lies ‘beyond any possibility for fairminded
Shinn v. Kayer, 141 S. Ct. 517, 520 (2020) (per curiam)
(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). Also, 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). “The state court’s
factual determinations are presumed correct, absent clear and convincing
evidence to the contrary.”
Sealey, 954 F.3d at 1354 (quoting 28 U.S.C. §
This presumption of correctness, however, applies only to
findings of fact, not mixed determinations of law and fact. Brannan v. GDCP
Warden, 541 F. App'x 901, 903-904 (11th Cir. 2013) (per curiam) (recognizing
the distinction between a pure question of fact from a mixed question of law
and fact), cert. denied, 573 U.S. 906 (2014). Furthermore, the second prong of
§ 2254(d), requires this Court to “accord the state trial court [determination of
the facts] substantial deference.” Dallas v. Warden, 964 F.3d 1285, 1302 (11th
Cir. 2020) (quoting Brumfield v. Cain, 576 U.S. 305, 314 (2015)), petition for
cert. filed, (U.S. Feb. 27, 2021) (No. 20-7589). As such, a federal district court
may not supersede a state court’s determination simply because reasonable
minds may disagree about the finding. Id. (quotation and citation omitted).
Finally, where there has been one reasoned state court judgment
rejecting a federal claim followed by an 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).
INEFFECTIVE ASSISTANCE OF COUNSEL
Claims of ineffective assistance of counsel are “governed by the familiar twopart Strickland[v. Washington, 466 U.S. 668 (1984)] standard.” Knight v. Fla. Dep’t
of Corr., 958 F.3d 1035, 1038 (11th Cir. 2020), cert. denied, 2021 WL 1240957 (U.S.
Apr. 5, 2021). To prevail on a claim of ineffective assistance of counsel, a petitioner
must successfully show his counsel “made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” as
well as show “the deficient performance prejudiced the defendant, depriving him of a
‘fair trial, a trial whose result is reliable.’” Raheem v. GDCP Warden, 995 F.3d 895,
908 (11th Cir. 2021) (quoting Strickland, 466 U.S. at 687). As both components
under Strickland must be met, failure to meet either prong is fatal to the claim.
Raheem, 995 F.3d at 908 (citation omitted).
Notably, a claim of ineffective assistance of appellate counsel is governed by
this same standard Strickland standard. Tuomi v. Sec’y, Fla. Dep’t of Corr., 980
F.3d 787, 795 (11th Cir. 2020) (citing Philmore v. McNeil, 575 F.3d 1251, 1264
(11th Cir. 2009)), cert. denied, 2021 WL 1074184 (U.S. Mar. 22, 2021). As in a
claim of ineffective assistance of trial counsel, failure to establish either prong of the
Strickland standard is fatal to a claim of ineffective assistance of appellate counsel.
In applying the two-pronged standard established in Strickland, the Court is
mindful that appellate counsel may weed out weaker, although meritorious
arguments, as there is no duty under the Sixth Amendment to raise every nonfrivolous issue.
Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016).
Regarding the prejudice prong, “[a]ppellate] [c]ounsel’s performance will be deemed
prejudicial if we find that the neglected claim would have a reasonable probability of
success on appeal.” Tuomi, 980 F.3d at 795 (quoting Philmore, 575 F.3d at 1265)
(internal quotation omitted).
Finally, the Eleventh Circuit warns:
because “[t]he standards created by Strickland and §
2254(d) are both ‘highly deferential,’ . . . when the two
apply in tandem, review is ‘doubly’ so. Harrington [v.
Richter, 562 U.S. 86, 105 (2011)] (internal citations
and quotation omitted). Thus, under § 2254(d), “the
question is not whether counsel’s actions were
reasonable. The question is whether there is any
Strickland’s deferential standard.” Id.
Tuomi, 980 F.3d at 795.
Ground One: ineffective assistance of appellate counsel for failure to
raise a claim that the use of a general verdict form did not ensure a
unanimous verdict on the tampering with a witness count.
Concerning the question of exhaustion, Petitioner exhausted his state
court remedies by raising this ground in a state petition for writ of habeas
corpus. Ex. P. The state responded. Ex. R. The First District Court of
Appeal (1st DCA) denied the petition. Ex. S.
The record shows the following. Petitioner was originally charged by
information. Ex. A at 13-14. In an Amended Information, dated July 19,
2012, Petitioner was charged with tampering with a witness, victim, or
informant in the first count of the Amended Information. Id. at 36-37. It
LARRY H. RUSSELL on July 20, 2011, in the
County of Duval and the State of Florida, did
knowingly offer pecuniary benefit or gain to someone,
with the intent to cause or induce to withhold
testimony from an official investigation or an official
proceeding and/or testify untruthfully in an official
investigation or an official proceeding, contrary to the
provisions of Sections 914.22(1)(f) and 914.22(2)(b),
Id. at 36 (emphasis added).
At the inception of the trial, the following discussion took place outside
the presence of the jury. The prosecutor, Mr. Bradley Bodiford, explained to
In the proposed jury instructions[,] it asks for
the defendant’s name. Due to the procedure of this
trial, the State is asserting that there are three
witnesses that the defendant altered or tampered
One being Chickbabe, the intended receiver of
the letter. The second one being Justin Wilson, the
new witness I refer to. The third one being Lamar
As opposed to amending the information and
charging three separate counts, the State is just
asking the jury instructions be modified to someone
as opposed to a specific name. I don’t believe Ms.
Hickson has an objection.
Ex. B at 10 (emphasis added). Ms. Mary Hickson, defense counsel, announced
she had no objection. Id. The state reiterated it would be using the word
“someone” and the court stated that would be fine. Id. Mr. Bodiford pointed
out this discussion goes to count one, and the court responded it had the
amended information. Id. at 11. Mr. Bodiford then stated he was going to
make an oral amendment to the current information, announcing a “DN4” as
to count four, and modifying the dates for count one, the tampering count, to
“July 22, 2011, through December 31, 2012.”3 Id. at 12. Ms. Hickson then
confirmed this change did not alter Petitioner’s plea of not guilty. Id.
At the charge conference, there was no objection to count one, tampering
with the witness.
Id. at 373.
In addition, there was no objection to the
verdict form as to count one, tampering with a witness. Id. at 386. The court
asked Petitioner if he was satisfied with the instructions and the charge
conference and Petitioner responded affirmatively.
Id. at 388.
asked Petitioner if he accepted the instructions, except for the lesser included
instruction that the court denied, and Petitioner responded yes.
Petitioner stated he had no additional questions and was satisfied. Id.
The court instructed the jury, in pertinent part:
3 The Amended Information (“Amended Instanter”) filed February 11, 2013, reflects the
changes made ore tenus. Ex. A at 81-82.
As to Count one, in order to prove the crime of
tampering with a witness, the State must prove the
following elements or element beyond a reasonable
One, Larry H. Russell did knowingly offer
pecuniary benefit or gain to someone. Two, Larry H.
Russell did so with the intent to cause or induce
someone to testify untruthfully in an official
investigation or an official proceeding.
An official investigation is defined as any
investigation instituted by a law enforcement agency
or prosecuting officer of the State or a political
subdivision of the State.
An official proceeding is defined as a proceed
[sic] before a Judge, Court or grand jury.
Id. at 450-51.
The verdict form for count one reads: “We, the jury, find the Defendant
guilty of Tampering with a Witness, Victim, or Informant, as charged in the
Ex. A at 136.
In the alternative, the jury could find the
defendant not guilty. Id.
Petitioner asserts the trial court committed fundamental error when it
allowed the jury to deliberate on three separate instances of tampering with a
witness as Petitioner was only charged with one count of tampering, and the
lumping of the three instances into one count compromised the jury’s ability to
render a unanimous verdict in its use of a general verdict form. Petition at 5.
Petitioner contends there is a reasonable probability that the result of the
appeal would have been different if appellate counsel had raised this claim on
direct appeal. Id.
In count one, the state charged one count of tampering and identified the
witness as “someone,” but the prosecutor, at trial, presented evidence
concerning three individuals:
witnesses Searcy, Wilson, and Chickbabe.
Response at 23. As far as demonstrating ineffective assistance of appellate
counsel, Petitioner has failed in his attempt to meet the two-pronged standard
of Strickland. To begin with, as noted by Respondents, the parties agreed at
the outset of the trial that the information would allege Petitioner tampered
with “someone” as opposed to charging three instances of tampering with three
The trial court accepted the agreement.
Both the jury
instructions and the verdict form were drafted and complied with the
agreement of the parties. Defense counsel did not challenge the information,
the amended information, the jury instruction, or the verdict form.4
4 Tellingly, at the evidentiary hearing on October 24, 2017, defense counsel testified she
agreed to the course of action of using “someone” because she believed it benefitted her client.
Ex. J at 13. She explained that if the state charged three separate counts of witness
tampering, Petitioner would be facing what could be three consecutive sentences, which could
lead to a sentence of approximately ninety years in prison as an habitual felony offender. Id.
at 14-15, 19. With just the one count naming “someone,” Petitioner faced much less prison
time (“he was only looking at 15 years or 30 years”). Id. at 19. Defense counsel testified
this strategy was discussed with Petitioner, and he agreed with the strategy. Id. at 16. The
court found her testimony “more credible than that of Defendant.” Ex. I at 229. Ultimately,
the court found the decision to make the agreement to use “someone” reasonable, “considering
Under these circumstances. appellate counsel was not ineffective for
failure to raise the issue on appeal. Without objection, the issue had not been
preserved. Moreover, defense counsel affirmatively waived the issue before
the trial court. She properly assessed the situation and realized it was in her
client’s best interest to accept the state’s proposal of using “someone” rather
than having the state charge three separate offenses, placing Petitioner in the
precarious position of facing two additional charges of tampering, with the
evidence stacked against him and the likelihood of subjecting him to very
harsh, consecutive sentences as an habitual felony offender, ultimately
exposing Petitioner to more convictions and significantly more time for his
overall sentence. Ex. A at 19, Notice of Intent to Classify Defendant as an
Habitual Felony Offender.
The Court finds the state court’s determination is consistent with federal
precedent. As such, the state court’s decision is entitled to AEDPA deference.
The state court’s ruling is based on a reasonable determination of the facts and
a reasonable application of the law. In short, the state court’s adjudication of
the claim of ineffective assistance of appellate counsel is not contrary to or an
unreasonable application of Strickland and its progeny or based on an
it reduced the number of possible convictions and corresponding sentences” Petitioner could
unreasonable determination of the facts. Therefore, the state court’s decision
is entitled to deference and ground one is due to be denied.
As the threshold standard of Strickland has not been met, Petitioner has
failed to demonstrate that his state court proceeding was fundamentally unfair
and his appellate counsel ineffective. See Petition at 4-5. Thus, he has failed
to demonstrate Sixth or Fourteenth Amendment violations. Ground one is
Ground Two: ineffective assistance of trial counsel for failure to
object to the trial court’s use of the general verdict form that did not
ensure a unanimous verdict on the count of tampering with a witness.
In this ground, Petitioner contends, “[t]he trial court compromised the
jury’s ability to render a unanimous verdict by using a general verdict form[.]”
Petition at 7.
Petitioner asserts that the three separate instances of
tampering should have been charged separately and the verdict form should
have required the jury to determine each incident of tampering.
Petitioner submits that his counsel’s performance was deficient for failure to
object to the use of the general verdict form and for failure to request a special
verdict form ensuring a unanimous verdict.
He argues his counsel’s
performance was deficient in not objecting and, “Petitioner’s right to a fair trial
a unanimous verdict and effective assistance of counsel were violated.” Id.
Petitioner raised this claim in ground one of his Rule 3.850 motion. Ex.
I at 3, 16, 144-45, 160.
After appointing counsel and conducting an
evidentiary hearing, the trial court denied the post-conviction motion relying
on the Strickland two-pronged standard. Ex. J; Ex. I at 227-30. The 1st DCA
affirmed per curiam. Ex. N. The mandate issued February 25, 2019. Ex.
O. As the state court properly applied the two-pronged Strickland standard
of review, Petitioner cannot satisfy the “contrary to” test of 28 U.S.C. §
2254(d)(1) as the state court rejected Petitioner’s claim based on Strickland.
The record demonstrates, at the time of Petitioner’s trial, Ms. Hickson
had been with the Office of the Public Defender for approximately thirteen
years. Ex. J at 11. At the time of trial, she was an experienced criminal
defense attorney who handled felony cases, except for homicides. Id. at 12.
“When courts are examining the performance of an experienced trial counsel,
the presumption that [her] conduct was reasonable is even stronger.”
Hardwick v. Benton, 318 F. App’x 844, 846 n.2 (11th Cir. 2009) (per curiam)
(quoting Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir. 2000)).
There is a strong presumption that an experienced trial counsel’s performance
is not ineffective, and here, the trial court found Petitioner failed to overcome
the presumption of effective performance accorded to his counsel.
The trial court found Petitioner’s conduct reasonable under the
circumstances presented. Ex. I at 229. Indeed, counsel’s performance was
well within the broad range of reasonable assistance under prevailing
professional norms. Strickland. Also, the court found counsel’s testimony to
be more credible than that of Petitioner. Ex. I at 229. This Court has “no
license to redetermine credibility of witnesses whose demeanor has been
observed by the state trial court, but not by them.” Consalvo v. Sec’y for Dep’t
of Corr., 664 F.3d 842, 845 (11th Cir. 2011) (per curiam) (internal quotation
marks omitted) (quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)), cert.
denied, 568 U.S. 849 (2012).
Since the trial court observed Ms. Hickson’s
testimony and found it more credible, this Court declines to make any
redetermination, as it must.
Ms. Hickson’s performance did not so undermine the proper functioning
of the adversarial process that Petitioner was deprived of a fair trial. 5 This
Court has opined:
5 The Fourteenth Amendment provides any state shall not deprive any person of life, liberty,
or property, without due process of law. U.S. Const. amend. 14. To the extent a Fourteenth
Amendment claim was raised and addressed, the adjudication of the state 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 Fourteenth Amendment claim because the state court’s decision was not
contrary to clearly established federal law, did not involve an unreasonable application of
clearly established federal law, and was not based on an unreasonable determination of the
facts based on the evidence presented in the state court proceedings. Therefore, AEDPA
deference is due, or alternatively, Petitioner is not entitled to federal habeas relief on a claim
“To state the obvious: the trial lawyers, in every case,
could have done something more or something
different. So, omissions are inevitable. But, the issue
is not what is possible or ‘what is prudent or
appropriate, but only what is constitutionally
compelled.’” Chandler v. United States, 218 F.3d
1305, 1313 (11th Cir.2000) (quoting Burger v. Kemp,
483 U.S. 776, 794, 107 S. Ct. 3114, 97 L.Ed.2d 638
In finding prejudice, the court must
determine that the result of the proceedings would
have been different considering “the totality of the
evidence before the judge or jury.” Berghuis v.
Thompkins, ––– U.S. ––––, 130 S. Ct. 2250, 2265, 176
L.Ed.2d 1098 (2010) (quoting Strickland, 466 U.S. at
Kuhns v. Sec’y Dep’t of Corr., No. 2:08-cv-163-FtM-29SPC, 2011 WL 1085013,
at *6 (M.D. Fla. Mar. 21, 2011) (not reported in F.Supp.2d).
Here, the trial court found Petitioner failed to satisfy the prejudice prong
as well: “it is clear from the testimony from each of the . . . witnesses that
there was overwhelming evidence Defendant offered money in exchange for
favorable testimony, vitiating any concern that a verdict of guilty could not
have been obtained without the assistance of the alleged error.” Ex. I at 230.
Therefore, as the threshold standard of Strickland has not been met, Petitioner
has failed to demonstrate that his trial was fundamentally unfair and his
Thus, Petitioner has failed to demonstrate either a
Sixth or Fourteenth Amendment violation.
raised pursuant to the Fourteenth Amendment.
In denying post-conviction relief, the trial court properly applied the twopronged Strickland standard of review.
Petitioner cannot satisfy the
“contrary to” test of 28 U.S.C. § 2254(d)(1) as the state court rejected this claim
based on Strickland.
Further, Petitioner has not shown the state court
unreasonably applied Strickland or unreasonably determined the facts.
Indeed, upon review, the state court was objectively reasonable in its
Strickland inquiry. Furthermore, the 1st DCA affirmed the decision of the
Upon due consideration, the Court finds the state court’s determination
is consistent with federal precedent.
Petitioner failed to satisfy either the
performance or prejudice prongs.
The 1st DCA’s decision, although
unexplained, is entitled to AEDPA deference.
Applying the look through
presumption described in Wilson, the state court’s ruling is based on a
reasonable determination of the facts and a reasonable application of the law.
In brief, the state court’s adjudication of the claim is not contrary to or an
unreasonable application of Strickland and its progeny or based on an
unreasonable determination of the facts. Therefore, ground two is due to be
Ground Three: ineffective assistance of trial counsel for failure to
file a motion to suppress a letter illegally intercepted by jail officials
as evidence of the tampering charge in count 1 and prejudicing the
defense as to counts 2, 3, 5, 6, and 7 regarding consciousness of guilt.
Petitioner raised this claim in ground four of his Rule 3.850 motion.
Ex. I at 7-8, 20-21, 150-51, 165-66. The trial court summarily denied this
ground, relying on the Strickland two-pronged standard. Ex. I at 227-28, 23334. The 1st DCA affirmed per curiam. Ex. N. As the state court properly
applied the two-pronged Strickland standard of review, Petitioner cannot
satisfy the “contrary to” test of 28 U.S.C. § 2254(d)(1) as the state court rejected
Petitioner’s claim based on Strickland.
The record demonstrates the court rejected Petitioner’s claim of
ineffective assistance of trial counsel for failure to file a motion to suppress the
jail letter. Ex. I at 233. In making this decision, the trial court relied on
counsel’s testimony from a Nelson6 hearing. The letter at issue is contained
in the record. Ex. A at 98-100 (redacted), 162-64 (unredacted). It is dated
April 22, 2012, addressed to Chickbabe, and signed, Rusty. Id.
At a pre-trial hearing on October 15, 2012, Petitioner sought the
appointment of new counsel. Id. at 181-82. Petitioner stated that one of the
6 Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
reasons he was seeking new counsel was he wanted his attorney to file a motion
to suppress the letter.
Id. at 182.
Ms. Hickson responded that when
Petitioner stated he did not believe the jail had permission to search his mail,
Ms. Hickson informed Petitioner that “if they [jail officials] believe that there
is a security issue or if they believe that he is committing a crime, they can go
through his mail.” Id. at 183. Ms. Hickson said Petitioner had been placed
on notice that the jail officials were checking on things because they were
informed that Petitioner was attempting to buy or tamper with witnesses.7 Id.
at 183-84. Also, Ms. Hickson told the court that the jail officials had received
information from an outside tip that Petitioner was trying to purchase
witnesses, resulting in the state attorney becoming involved.
Hickson said she explained to Petitioner, if the jail authorities believed
Petitioner was committing crimes, they could intercept his mail. Id. The
court denied the request for new counsel, noting that everything counsel had
told Petitioner about the mail was true. Id. at 184-85.
7 Tips came into First Coast Crime Stoppers in March of 2012 concerning Petitioner
attempting to buy or tamper with witnesses and suggesting a need to sensor Petitioner’s
mail. Ex. I at 160. At trial, Daisy Peoples, a Jacksonville Sheriff’s Office (JSO) employee,
testified she was alerted to Petitioner’s mail due to “a return letter.” Ex. B at 315. Ms.
Peoples further attested she was alerted to the outgoing letter dated April 22, 2012. Id. at
316. Don Quinn, forensic document examiner, more commonly referred to as a handwriting
expert, testified at trial and provided his expert opinion that Petitioner wrote the letter. Id.
at 327, 336-37.
In denying post-conviction relief, the court found “counsel was not
ineffective for failing to file a meritless motion.” Ex. I at 233. Under the
circumstances presented, defense counsel would not have prevailed on a
motion to suppress as evinced by the ruling of the trial court in denying postconviction relief. A defense attorney need not make a meritless motion that
would not have obtained relief. Brewster v. Hetzel, 913 F.3d 1042, 1056 (11th
In failing to satisfy the performance prong of Strickland,
Petitioner cannot prevail on his claim of ineffective assistance of trial counsel.
Therefore, Petitioner is not entitled to habeas relief on ground three.
The 1st DCA affirmed the decision of the trial court applying the
Strickland standard of review and denying Petitioner’s claim of ineffective
assistance of counsel. Ex. N. The Court finds the state court’s determination
is consistent with federal precedent. Although unexplained, the 1st DCA’s
decision is entitled to AEDPA deference.
Applying the look-through
presumption set forth in Wilson, the state court’s ruling is based on a
reasonable determination of the facts and a reasonable application of the law.
Ground three is due to be denied as the state court’s adjudication of the claim
is not contrary to or an unreasonable application of Strickland and its progeny
or based on an unreasonable determination of the facts. As such, the Court
finds Petitioner is not entitled to habeas relief on ground three.
Accordingly, it is now
ORDERED AND ADJUDGED:
The Petition for Writ of Habeas Corpus (Doc. 1) is DENIED
This action is DISMISSED WITH PREJUDICE.
The Clerk shall enter judgment accordingly and close this case.
If Petitioner appeals the denial of his Petition for Writ of Habeas
Corpus (Doc. 1), the Court denies a certificate of appealability. 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. 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
DONE AND ORDERED at Jacksonville, Florida, this 3rd day of June,
Larry H. Russell
Counsel of Record
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