Clark v. Secretary, Florida Department of Corrections et al
Filing
15
ORDER denying the Petition 1 and dismissing case with prejudice; directions to the Clerk. Signed by Senior Judge Timothy J. Corrigan on 1/29/2025. (JND)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TRACI LYNNE CLARK,
Petitioner,
v.
Case No. 3:21-cv-1063-TJC-SJH
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I.
Status
Petitioner Traci Lynne Clark, an inmate of the Florida penal system,
initiated this action by filing a pro se Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254. See Doc. 1. Petitioner challenges a state court
(Putnam County, Florida) judgment of conviction for driving under the
influence (DUI) manslaughter. She is serving a 124.95-month term of
incarceration, with a four-year minimum mandatory term, to be followed by a
four-year term of probation. Respondents filed a Response. See Doc. 10 (Resp.).1
The Court provided Petitioner with an opportunity to reply (Docs. 9, 12), but
1 Attached to the Response are various exhibits. The Court refers to the exhibits
as “Resp. Ex.”
she did not do so. This case is ripe for review.2
II.
Governing Legal Principles
A. Standard Under AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner’s federal habeas corpus petition. See Ledford v.
Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure
that federal habeas relief functions as a guard against extreme malfunctions in
the state criminal justice systems, and not as a means of error correction.’” Id.
(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the petitioner’s claims on the merits. See
Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The
state court need not issue an opinion explaining its rationale for the state court’s
decision to qualify as an adjudication on the merits. See Harrington v. Richter,
2 “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) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060
(11th Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court
must consider whether such a hearing could enable an applicant to prove the petition’s
factual allegations, which, if true, would entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the
record refutes the applicant’s factual allegations or otherwise precludes habeas relief,
a district court is not required to hold an evidentiary hearing.” Id. The Court finds that
“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275
(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.
2
562 U.S. 86, 100 (2011). When the state court’s adjudication on the merits is
unaccompanied by an explanation,
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. But the State may rebut the
presumption by showing that the unexplained
affirmance relied or most likely did rely on different
grounds than the lower state court’s decision, such as
alternative grounds for affirmance that were briefed or
argued to the state supreme court or obvious in the
record it reviewed.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
When a state court has adjudicated a petitioner’s claims on the merits, a
federal court cannot grant habeas relief unless the state court’s adjudication of
the claim 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,” 28 U.S.C. § 2254(d)(1),
(2). A state court’s factual findings are “presumed to be correct” unless rebutted
“by clear and convincing evidence.” Id. § 2254(e)(1).
AEDPA “imposes a highly deferential standard for
evaluating state court rulings” and “demands that
state-court decisions be given the benefit of the doubt.”
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal
quotation marks omitted). “A state court’s
determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could
3
disagree on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101
(2011) (internal quotation marks omitted). “It bears
repeating that even a strong case for relief does not
mean the state court’s contrary conclusion was
unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,
538 U.S. 63, 75 (2003)). The Supreme Court has
repeatedly instructed lower federal courts that an
unreasonable application of law requires more than
mere error or even clear error. See, e.g., Mitchell v.
Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at
75 (“The gloss of clear error fails to give proper
deference to state courts by conflating error (even clear
error) with unreasonableness.”); Williams v. Taylor,
529 U.S. 362, 410 (2000) (“[A]n unreasonable
application of federal law is different from an incorrect
application of federal law.”).
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal
citations modified).
B. Exhaustion and Procedural Default
There are prerequisites to federal habeas review. Before bringing a § 2254
habeas action in federal court, a petitioner must exhaust all state court
remedies that are available for challenging his state conviction. See 28 U.S.C.
§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]”
every issue raised in his federal petition to the state’s highest court, either on
direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351
(1989) (emphasis omitted). Thus, to properly exhaust a claim, “state prisoners
must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate
4
review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope
v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the
state collateral review process as well as the direct appeal process.”).
In addressing exhaustion, the United States Supreme Court explained:
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28
U.S.C. § 2254(b)(1), thereby giving the State the
“‘opportunity to pass upon and correct’ alleged
violations of its prisoners’ federal rights.’” Duncan v.
Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d
865 (1995) (per curiam) (quoting Picard v. Connor, 404
U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To
provide the State with the necessary “opportunity,” the
prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme
court with powers of discretionary review), thereby
alerting that court to the federal nature of the claim.
Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan
v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144
L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner’s failure to properly exhaust available state remedies
results in a procedural default which raises a potential bar to federal habeas
review. The United States Supreme Court has explained the doctrine of
procedural default as follows:
Federal habeas courts reviewing the constitutionality
of a state prisoner’s conviction and sentence are guided
by rules designed to ensure that state-court judgments
are accorded the finality and respect necessary to
preserve the integrity of legal proceedings within our
system of federalism. These rules include the doctrine
5
of procedural default, under which a federal court will
not review the merits of claims, including
constitutional claims, that a state court declined to
hear because the prisoner failed to abide by a state
procedural rule. See, e.g., Coleman,[3] supra, at 747–
748, 111 S. Ct. 2546; Sykes,[4] supra, at 84–85, 97 S. Ct.
2497. A state court’s invocation of a procedural rule to
deny a prisoner’s claims precludes federal review of the
claims if, among other requisites, the state procedural
rule is a nonfederal ground adequate to support the
judgment and the rule is firmly established and
consistently followed. See, e.g., Walker v. Martin, 562
U.S. --, --, 131 S. Ct. 1120, 1127–1128, 179 L.Ed.2d 62
(2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct. 612,
617–618, 175 L.Ed.2d 417 (2009). The doctrine barring
procedurally defaulted claims from being heard is not
without exceptions. A prisoner may obtain federal
review of a defaulted claim by showing cause for the
default and prejudice from a violation of federal law.
See Coleman, 501 U.S., at 750, 111 S. Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be
excused under certain circumstances. Notwithstanding that a claim has been
procedurally defaulted, a federal court may still consider the claim if a state
habeas petitioner can show either (1) cause for and actual prejudice from the
default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d
1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause and
prejudice,
the procedural default “must result from some objective
factor external to the defense that prevented [him] from
3 Coleman v. Thompson, 501 U.S. 722 (1991).
4 Wainwright v. Sykes, 433 U.S. 72 (1977).
6
raising the claim and which cannot be fairly
attributable to his own conduct.” McCoy v. Newsome,
953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Carrier,
477 U.S. at 488, 106 S. Ct. 2639).[5] Under the prejudice
prong, [a petitioner] must show that “the errors at trial
actually and substantially disadvantaged his defense
so that he was denied fundamental fairness.” Id. at
1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In the absence of a showing of cause and prejudice, a petitioner may
receive consideration on the merits of a procedurally defaulted claim if the
petitioner can establish that a fundamental miscarriage of justice, the
continued incarceration of one who is actually innocent, otherwise would result.
The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive
consideration on the merits of his procedurally
defaulted claim. “[I]n an extraordinary case, where a
constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal
habeas court may grant the writ even in the absence of
a showing of cause for the procedural default.” Carrier,
477 U.S. at 496, 106 S. Ct. at 2649. “This exception is
exceedingly narrow in scope,” however, and requires
proof of actual innocence, not just legal innocence.
Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.
2001).
Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it
is more likely than not that no reasonable juror would have convicted him’ of
5 Murray v. Carrier, 477 U.S. 478 (1986).
7
the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.
2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be
credible,’ a claim of actual innocence must be based on reliable evidence not
presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting
Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,
allegations of actual innocence are ultimately summarily rejected. Schlup, 513
U.S. at 324.
C. Ineffective Assistance of Trial Counsel
“The Sixth Amendment guarantees criminal defendants effective
assistance of counsel. That right is denied when a defense counsel’s
performance falls below an objective standard of reasonableness and thereby
prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)
(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.
Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a
person must show that: (1) counsel’s performance was outside the wide range of
reasonable, professional assistance; and (2) counsel’s deficient performance
prejudiced the challenger in that there is a reasonable probability that the
outcome of the proceeding would have been different absent counsel’s deficient
performance. Strickland, 466 U.S. at 687.
Notably, there is no “iron-clad rule requiring a court to tackle one prong
of the Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th
8
Cir. 2010). Since both prongs of the two-part Strickland test must be satisfied
to show a Sixth Amendment violation, “a court need not address the
performance prong if the petitioner cannot meet the prejudice prong, and viceversa.” Id. (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As
stated in Strickland: “If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.” 466 U.S. at 697.
“The question is not whether a federal court believes the state court’s
determination under the Strickland standard was incorrect but whether that
determination was unreasonable - a substantially higher threshold.” Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If there is
“any reasonable argument that counsel satisfied Strickland’s deferential
standard,” then a federal court may not disturb a state-court decision denying
the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting Strickland’s high
bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
“Reviewing courts apply a ‘strong presumption’ that counsel’s representation
was ‘within the wide range of reasonable professional assistance.’” Daniel v.
Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting
Strickland, 466 U.S. at 689). “When this presumption is combined with §
2254(d), the result is double deference to the state court ruling on counsel’s
performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y, Dep’t
9
of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,
concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).
III.
Factual and Procedural Background
On June 7, 2016, the state charged Petitioner with DUI manslaughter
(count one); DUI with damage to property (count 2); and DUI with a blood
alcohol level of .08 or higher (count three). Resp. Ex. A. State officials also issued
Petitioner a citation for driving on an expired driver’s license, which was
consolidated with her felony criminal case as count four. Resp. Exs. B, C. On
April 21, 2017, Petitioner entered a negotiated plea of nolo contendere to count
one in exchange for a four-year term of incarceration (a downward departure
from Petitioner’s scoresheet guidelines) followed by an eleven-year term of drug
offender probation. Resp. Ex. E. Under the plea agreement, the state agreed to
nolle prosequi counts two and three, with Petitioner’s sentence for count four to
be addressed at sentencing. Id.; Resp. Ex. F. During Petitioner’s scheduled
sentencing hearing on June 12, 2017, Petitioner “expressed dissatisfaction”
(Resp. Ex. BB at 3) and presented an ore tenus motion to withdraw her plea
(Resp. Ex. G).6 The trial court granted her request, allowed Petitioner to
withdraw her previously entered plea, and set the case for a pretrial status
6 Respondents do not provide a copy of the June 12, 2017, hearing transcript;
however, in its response to Petitioner’s state postconviction motion, the state
explained Petitioner “expressed dissatisfaction” during that hearing. See Resp. Ex. BB
at 3.
10
conference. Id.
On August 23, 2017, the state filed an Amended Information charging
Petitioner with DUI manslaughter (count one); DUI with damage to property
(count two); and DUI with a blood alcohol level of .15 or higher (count three).
Resp. Ex. H. The state ultimately nolle prossed counts two and three and
Petitioner proceeded to trial on count one. Resp. Ex. I at 5. The evidence
presented at trial is summarized in Petitioner’s initial brief filed on direct
appeal:
[Petitioner] was driving her boyfriend’s vehicle
when it went into the river. [Petitioner] was able to
escape the vehicle before it became submerged but
[Petitioner]’s boyfriend, Bryan Achison, was unable to
get out and died on the scene. Predrag Bulic, chief
medical examiner, performed an autopsy on Bryan
Achison and determined the cause of death to be
drowning.
Robert Baldwin lived nearby Browns Landing, a
boat dock in Palatka. Around 3:15 a.m. on October 4,
2015, Mr. Baldwin was awoken by [Petitioner]
pounding on the front door. Mr. Baldwin drove
[Petitioner] back to the boat dock and called 911 to
report the accident.
Justin Bedenbaugh, trooper with the Florida
Highway Patrol, arrived at the scene of the accident
around 3:30 a.m. and noticed that [Petitioner] had
bloodshot, watery eyes, slurred speech, mood swings,
and a strong odor of alcohol emitting from her. Mr.
Bedenbaugh testified that [Petitioner] consented to a
blood draw at the scene of the accident. Mr.
Bedenbaugh observed beer cans and a bottle of Fireball
whiskey in the rear of the vehicle when it was pulled
11
out of the river. Richard Newbern, emergency medical
technician, performed the blood draw of [Petitioner] at
the scene of the accident.
Kenson Jean, crime lab analyst, tested the blood
drawn from [Petitioner] and discovered the blood
alcohol concentration was 0.282 plus or minus 0.021
and 0.281 plus or minus 0.021 grams per 100
milliliters. Mr. Jean testified that the blood was
collected at 4:22 a.m.
Amy Caramagna, bartender, testified that
[Petitioner] and Mr. Achison came into the 3D Saloon
on October 3, 2015 around 7:30 p.m. Ms. Caramagna
also testified that [Petitioner] called her in the morning
to discuss tailgating and stated she had already drank
a bloody mary. Ms. Caramagna observed [Petitioner]
and Mr. Achison consume a couple of pitchers of beer
and two shots of Fireball whiskey. At one point in the
night, Ms. Caramagna witnessed Mr. Achison
stumbling around outside so she provided him some
water and started periodically checking on him but did
not see when [Petitioner] and Mr. Achison left the
establishment.
Desiree Dupont testified that [Petitioner] and
Mr. Achison came into Dean’s Still around 1:45 a.m.
and tried to order two shots of Fireball and a beer. Ms.
Dupont served [Petitioner] one Budlight beer. After
[Petitioner] drank several sips of it, Ms. Dupont
removed the bottle from the bar and poured out the
remaining liquid because [Petitioner] displayed
behavior that caused Ms. Dupont to become
uncomfortable serving her. Ms. Dupont testified that
[Petitioner] and Mr. Achison left Dean’s Still before
2:00 a.m.
Sergeant Lance Foureau testified that there
w[ere] no signs of braking near the crash site and the
vehicle was in fourth gear when it was pulled from the
river. Mr. Foureau arrived on the scene around 5:35
12
a.m. and testified that [Petitioner] was displaying signs
of impairment such as bloodshot, watery eyes, slurred
speech, and mood swings. Mr. Foureau conducted an
interview of [Petitioner] and the State published it to
the jury. During the interview, [Petitioner] stated that
she had four drinks all day.
The State rested. Defense moved for a judgment
of acquittal arguing the State failed to establish a
prima facie case because there was no evidence of
[Petitioner]’s impairment levels at the time the
accident actually occurred. The State argued that
based upon the evidence introduced, the jury can infer
that [Petitioner] did not go from the legal limit or no
alcohol in her system to three times the legal limit in a
matter of two hours. The court denied [Petitioner]’s
motion for judgment of acquittal.
Resp. Ex. T (record citations omitted). Petitioner did not call any trial witnesses
and following the charge conference, the defense rested. Resp. Ex. I at 265. The
jury then found Petitioner guilty of DUI manslaughter. Resp. Ex. J.
At sentencing, the state asked the trial court to adhere to Petitioner’s
scoresheet guidelines and sentence her to a 124.95-month term of incarceration.
Resp. Ex. L at 28. Defense counsel requested the imposition of a downward
departure sentence between four and five years incarceration, arguing that the
crime was committed in an unsophisticated manner, it was an isolated incident,
[Petitioner] had expressed remorse for her acts, and Mr. Achison was a willing
participant. Id. at 35-37. The trial court rejected trial counsel’s request and
sentenced Petitioner to a 124.95-month term of imprisonment to be followed by
a four-year term of drug offender probation. Id. at 38-39.
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On direct appeal, Petitioner, with the benefit of counsel, filed an initial
brief under Anders v. California, 386 U.S. 738 (1967), representing that no good
faith argument of reversible error could be made. Resp. Ex. M. The Fifth
District Court of Appeal then entered an order directing Petitioner’s appellate
counsel to file with the trial court a motion to correct sentencing error under
Florida Rule of Criminal Procedure 3.800(b)(2) and advising the parties that
the action was no longer proceeding as an Anders appeal. Resp. Ex. O.
Petitioner then filed with the trial court a Rule 3.800(b)(2) motion arguing
Petitioner did not qualify for drug offender probation and requesting that the
probationary portion of her sentence be converted to standard probation. Resp.
Ex. P. The trial court held a hearing on the Rule 3.800(b)(2) motion, during
which it granted Petitioner’s request and converted her term of drug offender
probation into regular probation. Resp. Ex. Q. Petitioner, through appellate
counsel, again filed an initial brief under Anders. Resp. Ex. T. The state
declined to file an answer to the Anders brief. Resp. Ex. U. The Fifth DCA then
entered a written order affirming Petitioner’s judgment and conviction but
remanding for correction of a scrivener’s error on Petitioner’s written amended
order of probation. Resp. Ex. V.
IV.
The Petition
A. Ground One
Petitioner asserts that the trial court erred in denying her motion for
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judgment of acquittal, violating her due process rights. Doc. 1 at 5-6. According
to Petitioner, the state failed to present evidence that she was impaired at the
time of the accident because officers tested her blood-alcohol level hours after
the accident. Id. at 6.
At the close of the state’s case, trial counsel moved for a judgment of
acquittal, arguing as follows:
We would just simply argue that the State has
not established a prima facie case before the jury at this
time because essentially all the evidence that they have
shown is the blood alcohol levels. That would be after a
certain amount of time that has passed, not at the time
of the accident. I believe there was an indication that
the accident and the blood alcohol level draw had been
done at a certain amount of time apart, so, therefore,
it’s not a reflection of what it was at the accident. So,
therefore, not a reflection of what the impairment
levels may have been at the time the accident actually
occurred.
The same goes for any type of impairment issues
or observations by the witnesses as to being thick
tongued, smelling of alcohol, all those things. Those are
all, again, not at the time of the accident and not close
enough in time to the accident to establish a prima facie
case. And, therefore, a reasonable juror would not have
the ability to make that decision on that information.
Resp. Ex. I at 238-39. The state responded:
There’s three elements for DUI manslaughter.
One, Traci Lynn Clark drove or was in actual physical
control of the vehicle. By her own admissions
repeatedly between 911 and Trooper Foureau you hear
that she was the driver.
15
Two, while driving or in actual physical control of
[the] vehicle Traci Lynn Clark either -- and it comes
down to the blood alcohol level. Your Honor, there’s
testimony that she is three and a half times the legal
limit.
I understand defense’s argument that it is not -there is a time gap, but that gap is -- that gap is possibly
two hours when you follow all the times of when they
left the -- when they left 3D Saloon -- I’m sorry. When
they left Dean’s Still. When the 911 call comes in, as
well as when Ms. Clark says the accident happens.
Your Honor, at the very least right now in the
case -- in the light most favorable to the State the jury
can infer that she did not get -- she did not go from a
legal limit or no alcohol to three times the legal limit in
a matter of two hours.
Lastly, Your Honor, that, as a result of operating
the vehicle, Traci Lynn Clark caused or contributed to
the -- the cause of death of Bryan Achison. You’ve heard
from the medical examiner that he drowned. You heard
from the recorded statement. You heard from 911 -- the
911 call, as well as Mr. Baldwin that Traci Clark was
the driver who drove that vehicle into the water.
Obviously, had she not driven into the water Mr.
Achison cannot drown.
As far as for judgment of acquittal, Your Honor,
we ask that you deny the motion as the State has put
on at least a prima facie case which is the standard at
this point in the hearing -- in the trial.
Resp. Ex. I at 240-41. The trial court then denied Petitioner’s motion (id. at
241), and afterwards denied Petitioner’s renewed motion once the defense
rested its case (id. at 265).
Later, in the Anders brief filed on direct appeal, appellate counsel, on
16
behalf of Petitioner, presented one potential issue for review – whether the trial
court erred in denying Petitioner’s motion for judgment of acquittal. Resp. Ex.
T. The Fifth DCA found the claim lacked merit and affirmed Petitioner’s
judgment and conviction. Resp. Ex. V; see Jenkins v. Bullard, 210 F. App’x 895,
898 (11th Cir. 2006) (holding that state appellate court’s affirmance of
petitioner’s judgment and sentence reflects that it reviewed issues flagged in
Anders brief and found them meritless).7
Here, Respondents contend that when raising this issue on direct appeal,
Petitioner failed to fairly present the federal nature of this claim to the state
court, and thus it is unexhausted and procedurally defaulted. Doc. 10 at 13.
They also assert the claim is otherwise without merit. See id. at 18-23.
First, the Court agrees that Petitioner did not present the federal nature
of this claim to the state appellate court. In her initial brief filed on direct
appeal, Petitioner did not state or suggest that she was raising a federal due
process claim, nor did she rely on any other federal constitutional guarantee.
Resp. Ex. T. Thus, this claim is unexhausted and procedurally defaulted, and
Petitioner has failed to show cause for or prejudice from this procedural bar.
The Court does not rely on unpublished opinions as binding precedent;
however, they may be cited in this Order when the Court finds them persuasive on a
particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022);
see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not
considered binding precedent, but they may be cited as persuasive authority.”).
7
17
Likewise, Petitioner has not demonstrated that failure to consider this claim on
the merits will result in a fundamental miscarriage of justice.
In any event, assuming Petitioner exhausted the federal nature of this
claim, and it is otherwise properly presented to the Court, Petitioner is still not
entitled to the relief she seeks because the Fifth DCA’s affirmance is entitled to
deference. When reviewing an insufficiency of the evidence claim in a habeas
petition, a federal court must determine “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). The court must assume that the
jury resolved any evidentiary conflicts in favor of the prosecution, and the court
must defer to that resolution. Id.
Here, the evidence presented at trial supported the trial court’s denial of
Petitioner’s motion for judgment of acquittal. As the state noted when
responding to Petitioner’s ore tenus motion for judgment of acquittal, while
officers did not test Petitioner’s blood-alcohol level immediately after the
accident, it is unlikely that Petitioner’s blood-alcohol level would have increased
to three times the legal limit during the two-hour timelapse between the
accident and her blood draw. Indeed, the jury found Petitioner guilty of DUI
manslaughter as charged in the Amended Information. Resp. Ex. J. In doing so,
the jury found that the state proved these three elements beyond a reasonable
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doubt:
One: [Petitioner] drove or was in actual physical control
of a vehicle. Two: While driving, or in actual control of
the vehicle, [Petitioner] either, A, was under the
influence of alcoholic beverages to the extent that her
normal faculties were impaired, or, B, had a blood
alcohol level of point 08 or more grams of alcohol per
100 milliliters of blood. And, three: As a result of
operating the vehicle [Petitioner] caused or contributed
to the cause of the death of Bryan Achison.
Resp. Ex. I at 292; see also § 316.193(3)c(3)a, Fla. Stat. Taken in the light most
favorable to the state, the Court finds there was sufficient evidence to permit a
rational trier of fact to find Petitioner guilty of this offense. As such, upon
review of the record, this Court concludes that the state court’s adjudication of
this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Ground One is denied.
B. Ground Two
Petitioner argues that her trial counsel was ineffective for advising her to
reject the state’s four-year plea offer and proceed to trial. Doc. 1 at 7. According
to Petitioner, trial counsel guaranteed her that if she went to trial, she would
receive a “more beneficial” sentence or outcome. Id. She contends trial counsel
failed to advise her that her DUI manslaughter charge carried a four-year
minimum mandatory sentence, the state’s plea offer was below her scoresheet
19
guidelines, and that the plea offer was less than any sentence she would receive
if she was found guilty at trial. Id. She also contends she was unaware that if
she was convicted at trial, the trial court would likely follow her scoresheet
guidelines when imposing her sentence unless it found a downward departure
was appropriate. Id. Petitioner asserts that if trial counsel properly informed
her of the consequences and benefits surrounding the offer, she would have
accepted. Id. at 9. And she argues that the postconviction court erred in failing
to hold an evidentiary hearing on this issue. Id.
Petitioner raised this claim in her Florida Rule of Criminal Procedure
3.850 motion. Resp. Ex. Z. The trial court summarily denied the claim as
follows:
As to Defendant’s claims that her attorneys
misled her because she was unaware of the minimum
possible sentence, the maximum possible sentence, and
the four-year minimum mandatory sentence, these
claims are refuted by the record. On April 21, 2017,
Defendant entered a plea in this case. The Plea
Agreement, which she initialed and signed, clearly
states under the “charges” section that the maximum
imprisonment for her charge was fifteen years and
there was a four-year minimum mandatory. The
handwritten negotiated agreement section on page one
states that the four year offer was a “min/man” and that
“This is a downward departure from the scoresheet.”
The Defendant’s initials, TC, appear at the end of the
handwritten section on page two of the Plea
Agreement. Furthermore, there is a hand written
section where it clearly states the scoresheet minimum
[was] 194.6 points or 124.95 months DOC,
approximately 10.5 years. Defendant initialed
20
throughout the Plea Agreement that she understood
the possible sentence, agreed upon the sentence, and
that she was satisfied with her Counsel. She signed at
the end of it. The plea was accepted by the Court and
set out for sentencing on June 12, 2017.
On June 12, 2017, Defendant came back to Court
for sentencing. At that time, she expressed
dissatisfaction and was ultimately allowed to withdraw
the plea. The case was set for docket call on August 21,
2017, and jury selection on August 28, 2017. On August
28, 2017, before jury selection commenced, there was a
conversation on the record about the plea negotiations
that occurred in this case. Assistant State Attorney
Janesk placed on the record the maximum penalty of
fifteen years, the four-year minimum mandatory, and
the fact that death points would bring her scoresheet
minimum to around ten and a half years. He also placed
on the record that Defendant did not want either of the
State’s offers and that she wanted a jury trial. Trial
Counsel Hubbard placed on the record that all of this
had been communicated to his client. The Trial Court
asked Defendant if she understood all of the above and
discussed it with her attorneys, and Defendant agreed.
The Trial Court ultimately sent Defendant into the jury
deliberation room to speak to her attorneys for a period
of time to discuss their options. After those discussions,
Defendant stated her decision to go to trial.
In order to prevail on her claim and establish
prejudice, Defendant must allege and show a
reasonable probability sufficient to undermine
confidence in the outcome that 1) she would have
accepted the offer had Counsel advised her correctly, 2)
the Prosecutor would not have withdrawn the offer, 3)
the Court would have accepted the offer, and 4) the
conviction and/or sentence under the offer’s terms
would have been less severe than under the judgment
and sentence that was imposed. Alcorn v. State, 121 So.
3d 419, 430 (Fla. 2013).
21
A review of the record shows that Defendant
agreed that she had spoken to Trial Counsel before
August 28, 2017, and she was given an opportunity to
speak again to her Counsel that day. After those
opportunities, she did not accept the State’s offer. The
record indicates that Hubbard had reached back out to
the Assistant State Attorney to re-secure the
opportunity for a pre-trial plea offer after it had been
withdrawn by the State. Defendant was given an
opportunity multiple times prior to jury selection to
accept offers that would have constituted downward
departures. Defendant entered a written plea
agreement but decided to withdraw her plea and go to
trial. Defendant has not met her burden on the first
prong of Alcorn.
Nor can she meet her burden on the second prong
of Alcorn, that the Prosecutor would not have
withdrawn the offer. It was clear that after Defendant
rejected the offer and decided to proceed to trial, the
offer was withdrawn. At no time during the proceedings
on August 28, 2017 did the Prosecutor place the offer
back on the table.
The Court finds that the first two prongs of
Alcorn have not been met. Ground One is denied.
Resp. Ex. CC at 3-5 (record citations omitted). Petitioner appealed, and the
Fifth DCA per curiam affirmed the trial court’s denial without a written
opinion. Resp. Ex. GG. The Court addresses this claim in accordance with the
deferential standard for federal court review of state court adjudications.
In doing so, the Court defers to the state court’s conclusion that Petitioner
has failed to satisfy the purviews of Strickland. In the context of a rejected plea
offer, the prejudice prong requires the movant to show “a reasonable probability
22
that but for counsel’s ineffectiveness: (1) ‘the plea offer would have been
presented to the court (i.e., that the defendant would have accepted the plea
and the prosecution would not have withdrawn it in light of intervening
circumstances)’; (2) ‘the court would have accepted its terms’; and (3) ‘the
conviction or sentence, or both, under the offer’s terms would have been less
severe than under the judgment and sentence that in fact were imposed.’” Osley
v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014) (quoting Lafler v. Cooper,
566 U.S. 156, 164 (2012)). But “after the fact testimony concerning [the
movant’s] desire to plead, without more, is insufficient to establish that but for
counsel’s alleged advice or inaction, [s]he would have accepted the plea offer.”
Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991).
Here, unlike typical claims challenging a trial counsel’s alleged misadvise
regarding a plea offer, the record shows Petitioner at first accepted the state’s
four-year plea offer, but later withdrew that acceptance and advised the trial
court she wished to proceed to trial. That said, even under these circumstances,
Petitioner has not shown a reasonable probability that absent counsel’s alleged
misconduct, Petitioner would have not withdrawn her plea or that the state,
following Petitioner’s withdrawal, would have renewed that offer given
intervening circumstances. Indeed, Petitioner seemingly alleges that she would
not have withdrawn her acceptance if trial counsel advised her (1) the charge
in count one carried a four-year minimum mandatory sentence, (2) the state’s
23
plea offer was below her scoresheet guidelines, and (3) the plea offer was below
any sentence she would receive if she was found guilty at trial unless the trial
court found a downward departure sentence was appropriate. But, as the trial
court explained, the April 21, 2017, written negotiated plea form clearly stated
that the maximum sentence for count one – DUI manslaughter – was fifteen
years with a four-year minimum mandatory. Resp. Ex. E. It also noted that
Petitioner’s scoresheet guidelines for count one totaled 124.95 months (about
10.5 years) and that, under the plea agreement, the state would concede to the
imposition of a downward departure sentence of four years for count one and
nolle pros the charges in counts two and three. Id. at 1-2. Petitioner signed the
written agreement and certified her understanding of the consequences and
benefits of its terms by initialing each provision within the document. Id.
On June 12, 2017, during what would have been Petitioner’s sentencing
hearing, Petitioner verbally moved to withdraw her plea and the trial court
granted her request.8 Resp. Ex. G. On August 28, 2017, before jury selection,
the trial court, the state attorney (Mr. Janesk), defense counsel (Mr. Hubbard),
and Petitioner had the following discussion about prior plea negotiations:
MR. JANESK: Your Honor, originally the offer was 4
followed by 11 years of probation. Special condition
drug offender probation, with the condition of paying
the restitution for the funeral expenses. That offer at
8 As noted, the record does not contain a copy of the June 12, 2017, transcript.
24
one point was accepted. And then at sentencing the
defendant requested to withdraw her plea.
Mr. Hubbard got on the case.[9] He resecured that
offer for a limited time. They -- that did not happen. The
last offer that kind of went back and forth was either
straight six -- two options, really: either a DOC range
of four to six years, with the restitution and the
probation on the back end; or just an agreed-upon six,
follow[ed] by the remainder of probation.
It’s my understanding that the defendant doesn’t
want that offer. I just want to get all that on record,
Your Honor.
Essentially what it would be is -- obviously, her
scoresheet -I’m sorry. Four to eight. I’m sorry. I misspoke,
Your Honor.
It was essentially -- with a scoresheet -- if the
defendant was found guilty, the scoresheet would be
about ten-and-a-half years minimum. So I just wanted
to get all that on the record.
And I understand that the defendant doesn’t
want it. She wants a jury trial.
THE COURT: And I understand the DUI manslaughter
is a second-degree felony, maximum is 15 years.
MR. JANESK: Maximum is 15 years, Your Honor.
There is a four-year minimum mandatory that comes
with it. However, once the -- if found guilty, once the
death points are factored in, the scoresheet minimum
really becomes ten and a half.
9 Assistant Public Defender Tyler Williams represented Petitioner throughout
her case and Assistant Public Defender James Hubbard later joined as William’s
cochair for Petitioner’s trial.
25
THE COURT: I see. Ms. Clark, do you understand all
that?
THE DEFENDANT: A little bit.
THE COURT: What part do you not understand?
...
THE DEFENDANT: I’m just not sure right now. I don’t
-- I don’t know what’s -- I mean, it was four to eight
earlier. Now it’s four to six.
MR. JANESK: And I misspoke. I meant four to eight.
I’m sorry. It was -- four to eight was the range, or a
straight six.
Basically, if -- if there wants to be some wiggle
room where Defense can argue for just the minimum
and I can argue for more, so be it. If they want to just
take a guaranteed six, that’s fine as well. But those are
the two -- I don’t mean to have a door one or two. But
that way the defendant can have a little bit of options.
THE COURT: Okay. So if I understand correctly, the
plea agreement is a downward departure from the
guidelines.
MR. JANESK: It would be, Your Honor.
THE COURT: Okay. And who’s going to be lead counsel
for the -MR. HUBBARD: I will be, Your Honor.
THE COURT: You’re Mr. Hubbard?
MR. HUBBARD: Yes, sir.
THE COURT: All right. And has -- has all that been
26
communicated to your client?
MR. HUBBARD: It has, Your Honor.
THE COURT: Okay.
And, Ms. Clark, do you understand that if you’re
convicted as charged, to some extent, the four-year
mandatory minimum would apply. And absent a good
legal reason which is outlined by statute for me to
depart, I would not have the ability to depart from what
appears to be ten-and-a-half years.
Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Have you discussed that with your
attorneys?
THE DEFENDANT: Yes, sir.
THE COURT: Now, I want you to understand, I don’t
know anything about you. I don’t -- I don’t know
anything about the facts of this case. I learn about what
the facts are the same time the jury does.
So if the route that you-all go, which I call it a
high/low, which is one of -- one of the options between Was it four and eight?
MR. JANESK: Four and eight, Your Honor. Yes.
THE COURT: Okay. I can tell you, I started as [an]
assistant public defender in 1980. And during the
course of my career I’ve had plea ranges where -- some
judges, they start at the top. And it’s my -- defense
lawyers’ obligation to talk them down. There are some
judges, they start at the bottom. And it’s up to the
prosecutor to work them up. Okay? I don’t take either
27
approach.
If it’s a range -- I have to rely on the attorneys to
bring evidence and testimony to try to get the
appropriate sentence for your case.
Now, like I said, I don’t know anything about you.
I don’t know if you have any prior record whatsoever.
You’d be entitled -- if you don’t, you’d have -- you’d be
entitled to a presentence investigation, which would
help some.
But once -- once the witnesses start testifying,
control of the case is out of everybody else’s hands, and
it’s up to a jury at that point. And then decisions are
made from then. Okay?
THE DEFENDANT: Yes, sir.
THE COURT: So if you would -Is she out on bond?
MR. HUBBARD: She is.
THE COURT: Okay. Before we bring the jury up, I’d
like for you and your attorneys to go into the jury room
one last time and -- while I’m taking the plea in this
other case -- and discuss realistically what the options
are.
And sometimes in life -- and I’ve been in Mr.
Hubbard and Mr. Williams’ position as assistant public
defender, and then later in private practice, where your
client has a choice between two distasteful options, and
one of which is the unknown future.
So it’s a distasteful known versus an unknown,
which can be catastrophic. Okay?
So why don’t y’all go into the jury room and talk
28
one last time, ma’am, while I take care of this other
case.
THE DEFENDANT: Yes sir.
....
THE COURT: Ms. Clark, have you had an opportunity
to discuss the plea negotiations one last time with your
attorneys?
THE DEFENDANT: Yes, sir.
THE COURT: And what has been your decision as to
whether to take the plea agreement or go to trial?
THE DEFENDANT: Trial.
THE COURT: Pardon?
THE DEFENDANT: Trial.
THE COURT: Go to trial. All right.
Resp. Ex. BB at 567-72.
This record evidence shows that when Petitioner withdrew her negotiated
plea to the state’s four-year offer, it was resurrected again but Petitioner did
not accept it. Then, the state declined trial counsel’s later attempt to revive the
terms of that offer and instead presented Petitioner with two other options.
Notably, the state explained that Petitioner could enter a plea in exchange for
either a sentence within a four-to-eight-year range, or a six-year term of
incarceration. Thus, Petitioner has failed to show that despite intervening
circumstances, the state was willing to revive its four-year offer.
29
The record also shows that Petitioner was unwilling to accept the state’s
four-year offer or any of the state’s other proposed plea terms. Indeed, Petitioner
maintained her refusal to plea despite being fully aware of the maximum
sentence she faced if she went to trial, including the four-year minimum
mandatory, and despite knowing that the proposed sentences under the offers
were downward departures from her sentencing guidelines. After Petitioner
advised the trial court, under oath, that she knew the benefits of these plea
offers, the trial court afforded her additional time to reconsider her rejection.
But notwithstanding that additional consideration, Petitioner upheld her
decision to proceed to trial. “Given [Petitioner’s] awareness of the plea offer[s],
[her] after the fact testimony concerning [her] desire to plead, without more, is
insufficient to establish that but for counsel’s alleged advice or inaction, [s]he
would have accepted the plea offer[s].” Diaz, 930 F.2d at 835. Petitioner was
steadfast in her decision to reject all plea offers. Thus, upon thorough review of
the record and the applicable law, the Court concludes that the state court’s
decision to deny Petitioner’s claim was neither contrary to nor an unreasonable
application of Strickland, and it is not based on an unreasonable determination
of the facts in light of the evidence presented to the state court.
Also, to the extent that Petitioner claims the postconviction court erred
in failing to hold an evidentiary hearing on this claim, that allegation is an issue
of state law and includes no federal constitutional infirmity. Such claims that
30
do not present a constitutional challenge to the validity of Petitioner’s judgment
and sentence are not cognizable on federal habeas review. See Anderson v. Sec’y
for Dep’t of Corr., 462 F.3d 1319, 1330 (11th Cir. 2006)) (“We have held the state
court’s failure to hold an evidentiary hearing on a petitioner’s 3.850 motion is
not a basis for federal habeas relief.”). As such, Ground Two is denied.
C. Ground Three
Petitioner argues that the trial court erred in granting the state’s motion
for destruction of evidence, violating her rights under the Fourth Amendment
and Due Process Clause. Doc. 1 at 10. According to Petitioner, when she filed
her Rule 3.850 motion with the state court on May 16, 2019, the clerk
reclassified her trial court case to “REOPEN status.” Id. As such, according to
Petitioner, the trial court’s December 11, 2019, order granting the state’s
motion for destruction of evidence was improper because “as long as the instant
case remained open, in any capacity,” the trial court is prohibited from
permitting the destruction of any evidence. Id.
Respondents argue that this claim is unexhausted and procedurally
defaulted. Resp. at 14-16. The Court agrees.
On December 11, 2019, about a year after the Fifth DCA affirmed
Petitioner’s judgment and conviction and while Petitioner’s Rule 3.850 motion
was pending, the state filed with the trial court an “In re” motion for destruction
of evidence under § 893.12, Florida Statutes, seeking an order to permit the
31
destruction of “certain controlled substances and confiscated property items.”
Resp. Ex. II. That same day, the trial court entered an “In re” order granting
the state’s request. Resp. Ex. JJ. Petitioner did not appeal the trial court’s order
or otherwise seek review of the trial court’s decision in state court even though
she had the ability to do so. Indeed, claims challenging the destruction of
evidence are cognizable under Rule 3.850. See McDonald v. State, 2 So. 3d 1018,
1019 (Fla. 3d DCA 2008) (noting that the appellant’s claim that the prosecution
destroyed evidence in bad faith is cognizable in a Rule 3.850 motion).
Here, Petitioner alleges she learned about the trial court’s order granting
the state’s motion for destruction of property seven months after the trial court
issued its order – on or around July 12, 2020. See Doc. 1 at 10. The trial court
did not issue its order denying Petitioner’s Rule 3.850 motion until December
8, 2020. Resp. Ex. CC. And thus, Petitioner had more than four months to
amend her pending Rule 3.850 motion to raise this claim and exhaust it for
purposes of federal habeas review. However, she did not do so. As a result, this
claim is unexhausted and procedurally defaulted, and Petitioner has failed to
show cause for or prejudice from this procedural bar. Likewise, Petitioner has
failed to demonstrate that failure to consider this claim on the merits will result
in a fundamental miscarriage of justice. Ground Three is denied.
32
Accordingly, it is
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED, and this case is DISMISSED
WITH PREJUDICE.
2.
The Clerk shall enter judgment dismissing this case with
prejudice, terminate any pending motions, and close the file.
3.
If Petitioner appeals this denial, the Court denies 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 motion.10
DONE AND ORDERED at Jacksonville, Florida, this 29th day of
January, 2025.
10 The Court should issue a certificate of appealability only if the Petitioner
makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this substantial showing, 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)).
Here, after consideration of the record as a whole, the Court will deny a certificate of
appealability.
33
Jax-7
C:
Traci Lynne Clark, V53270
Counsel of record
34
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