Chapman v. Secretary, Department of Corrections et al

Filing 14

ORDER denying 1 Petition for writ of habeas corpus and dismissing case. Petitioner is neither entitled to a COA nor to proceed on appeal IFP. Signed by Judge James D. Whittemore on 4/30/2012. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

CHARLES ROBERT CHAPMAN,
Petitioner,
vs.

Case No. 5:09-cv-539-0c-27TBS

SECRETARY, DOC, et al.,
Respondents.
ORDER

The Petition for Writ of Habeas Corpus
challenges

a

2006

state

court

(Marion

(Doc. #1)

County)

(Petition)

conviction

for

possession of a firearm by a convicted felon and possession of drug
paraphernalia.

Respondents filed a Response to Petition (Doc. #7)1

on February 15, 2010,
2010. 2

and an Appendix (Doc.

#9)

Petitioner elected not to file a reply.

Response to Show Cause Order (Doc. #13)

i

on February 22,
See Petitioner1s

Order (Doc. #6).

Eight

grounds for habeas relief are raised, and the Court is mindful of

1 Respondents calculate the Petition is timely, Response at 79, and the Court accepts this calculation.
Respondents concede
that the claims have been exhausted in the state court system,
Response at 7, and, upon review, none of Petitioner1s claims are
procedurally defaulted.
2 The Court hereinafter refers to the Exhibits as IIEx. II
Where
provided, the page numbers referenced in this opinion are the Bates
stamp numbers at the bottom of each page of the Appendix.
Otherwise, the page number on the particular document will be
referenced.

its responsibility to address each ground,

Clisby v. Jones,

960

F.2d 925, 936 (11th Cir. 1992); however, no evidentiary proceedings
are required in this Court.3
STANDARD OF REVIEW

The Court will analyze Petitioner's claims under 28 U.S.C. §
2254 (d),

as

amended

Penalty Act

(AEDPA).

by

the

Antiterrorism

"By its terms

relitigation of any claim

770,

784

(2011).

Effective

[28 U.S.C.]

Death

2254(d)

§

'adjudicated on the merits'

court, subj ect only to th [re] e exceptions."
131 S. Ct.

and

bars

in state

Harrington v. Richter,

The exceptions are:

(1)

the state

court's decision was contrary to clearly established federal law;
or (2) there was an unreasonable application of clearly established
federal

law;

or

(3)

the decision was based on an unreasonable

determination of the facts.

rd. at 785.

There is a presumption of correctness of state courts' factual
findings unless rebutted with clear and convincing evidence.
u.S.C.

§

2254 (e) (1) .

This presumption applies

to

determinations of both trial and appellate courts.

the

28

factual

See Bui v.

Haley, 321 F.3d 1304, 1312 (11th Cir. 2003).

3 An evidentiary hearing was conducted in the state court on
Petitioner's Motion for Post Conviction Relief, and Petitioner was
appointed counsel to represent him on the post conviction motion.
Ex. H at 214-19, 231-339.
- 2 -

INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner claims he received the ineffective assistance of
counsel in violation of the Sixth Amendment to the United States
Constitution.

In order to prevail on this Sixth Amendment claim,

he must satisfy the two-pronged test set forth in Strickland v.
Washington,
deficient

466 U.S.

668,

performance

688

(1984), requiring that he show both

(counsel's

representation

objective standard of reasonableness)
reasonable

probability

that,

but

for

fell

and prejudice
counsel's

below

an

(there is a

unprofessional

errors, the result of the proceeding would have been different).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Ground One

The
Sixth and

first

ground of the

Petition

Fourteenth Amendments

of

is:

"Petitioner's

Constitution were

Fifth,

violated.

Trial court erred in denying Appellant's claim where counsel was
ineffecti ve when he failed to understand the

facts

regard to adequate investigation,

[sic],

preperation

evidence at the pre-trial motion to suppress."

and laws

in

and use of

Petition at 5.

In

this ground, Petitioner raises a Sixth Amendment claim asserting he
received ineffective assistance of trial counsel for

failure to

investigate and call defense witnesses for the motion to suppress.

4

4 Although
the claim is couched in terms of the Fifth and
Fourteenth Amendments, upon review, Petitioner actually raises a
Sixth Amendment claim of ineffective assistance of trial counsel in
the body of his Petition. Therefore, ground one will be addressed
as a Sixth Amendment claim.
Any claim under the Fifth and

- 3 -

Upon

review

transpired.

of

the

record,

prior

trial,

the

following

A Motion to Suppress Evidence All Physical Evidence

[sic] was filed on October 12, 2006.
was conducted on October 19, 2006.
Suppress.

to

Ex. A at 138-40.

A hearing

Ex. A, Transcript of Motion to

Petitioner was represented by counsel.

Id.

The state

called Detective Raymond Dwyer,

and the defense called William

Ballard,

an employee of Mark's

Pawn Shop,

offense.

Id.

The court heard argument.

Id.

the

location of the

Thereafter, an Order

Denying Defendant's Motion to Suppress All Physical Evidence was
filed on October 24, 2006.

Ex. A at 143-46.

explicit, written findings of fact.5
On direct appeal,

The trial court made

Id.

Petitioner raised a claim that the trial

court erred in denying the motion to suppress because the officer
did not have a reasonable suspicion of criminal activity sufficient
to warrant an investigatory stop.

Ex. C at i.

The Fifth District

Fourteenth Amendments is unsupported and is due to be denied.
5 In its Order Denying Defendant's Motion for Reconsideration
of Order Denying Defendant's Motion to Suppress All Physical
Evidence, the trial court corrected the findings of fact contained
in the Court's original Order Denying Defendant's Motion to
Suppress All Physical Evidence, deleting a portion of the first
paragraph of the findings which stated as follows: "that the man
seemed jittery, that the man had approached the locked door of the
closed pawn shop and tried to get in, and the situation had made
the caller nervous. The man had returned to his vehicle which was
described as a Red Ford Explorer." Ex. A at 201.
Even with this
correction, the court found it did not alter the court's analysis
or lead to a different conclusion or outcome concerning the motion
to suppress.
Id.
With that, the motion for reconsideration was
denied.
Id.
-

4 -

Court of Appeal affirmed, per curiam, on August 21, 2007, Ex.
and the mandate issued on September 7, 2007.

F,

Ex. G.

In its Final Order Denying Motion for Postconviction Relief,
the trial court denied Petitioner's claim of ineffective assistance
of

trial

counsel,

finding

it

refuted

by

the

record

because

Officer's Thompson's probable cause affidavit was consistent with
his trial testimony, with the trial testimony of Detective Dwyer,
and with the suppression hearing testimony of Detective Dwyer.
The

factual

record.

findings

of

the

trial

court

are

6

supported by the

Petitioner has not overcome the presumption of correctness

by clear and convincing evidence.
The trial court also found the decision of whether or not to
call a witness a tactical one, which should not be second-guessed
by

the

trial

court.

Indeed,

wi thin

the

Strickland

analysis,

defense counsel is shielded from this type of review, particularly,
after counsel has made a thorough investigation of the law and
facts, which is exactly what counsel did in this case.
As noted by the trial court, defense counsel, Jerry Burford,
attested that he did not call Officer Thompson at the suppression
hearing because he considered his testimony cumulative.

Counsel

explained that the defense theory for suppression was based upon
the case of Popple v. State, 626 So.2d 185 (Fla. 1993), and not a

6
The trial court applied the standard for reviewing an
ineffective assistance of counsel claim, as set forth in Strickland
v. Washington, 466 U.S. 668 (1984).
Ex. H at 355-57.

- 5 -

shotgun approach to seeking suppression.

He also testified that

this approach was discussed with the defendant and the defendant
agreed to this strategy.
Officer

Thompson

information,
al tered

the

in

may
his

outcome

Finally, Mr. Burford said that, although
have

been

professional
of

the

able

to

provide

judgment,

proceeding.

it

additional

would

Instead,

not

Mr.

have

Burford

focused his argument on the lack of a legal basis for the officers
to confront Petitioner, relying on the Popple case.
not

rebutted the trial

court's

factual

findings

Petitioner has
with clear and

convincing evidence.
The court credited Mr. Burford's testimony,

recognizing that

he had been a long-standing member of the Florida Bar, with almost
nine years of criminal defense experience,

and the remainder in

criminal prosecution, with a wealth of experience in prosecuting
and defending motions to suppress.
prong

of

recognizes
competence.

the

Strickland

that
The

there

is

In evaluating the performance

ineffectiveness
a

presumption

strong
that

reasonable is even stronger when,

inquiry,

presumption
counsel's

Court

favor

performance

as in this case,

experienced criminal defense attorney.7

in

the

of
was

counsel is an

The inquiry is "whether,

7 "When courts are examining the performance of an experienced
trial counsel, the presumption that his conduct was reasonable is
even stronger."
Chandler v. United States, 218 F.3d 1305, 1316
(11th Cir. 2000) (en banc), cert. denied, 531 U.S. 1204 (2001); see
Williams v. Head, 185 F.3d 1223, 1229 (11th Cir. 1999) (noting that
"[iJt matters to our analysis" whether the attorney is an
experienced criminal defense attorney), cert. denied, 530 U.S. 1246
(2000).
Mr. Burford had been a member of the Florida Bar since
- 6 -

in light of all the circumstances, the identified acts or omissions
were

outside

the

wide

range

Strickland,

assistance."

of

u.s.

466

discounted by pegging adequacy to
and

time'

by

counsel's judgments.

giving

professionally

a

at

690.

competent

"[H]indsight

is

'counsel's perspective at the

'heavy

measure

of

deference

to

Rompilla v. Beard, 545 u.s. 374, 381 (2005)

,II

(citations omitted).
The

trial

court

concluded

that

defense

counsel

was

not

ineffective for making the tactical decision to not call Officer
Thompson.

Not only did the court find counsel's performance within

the range of reasonably competent counsel,

the court also found

Petitioner failed to show prejudice because the court found the
outcome of the suppression hearing would not have been affected by
additional testimony.
In
hearing,

reviewing

the

testimony

elicited

at

the

suppression

it is evident that defense counsel presented sufficient

facts supportive of the allegations in the motion to suppress by
cross examining Detective Dwyer and by calling William Ballard.
Counsel also made strong arguments for suppression based on Popple.
Even

assuming

deficient

performance,

Petitioner

has

not

shown

prejudice, as the trial court was convinced that the outcome of the
hearing

would

have

remained

the

same

even

with

additional

1977.
Thus, at the time of the pretrial suppression hearing on
October 19, 2006, Mr. Burford had been practicing criminal law for
approximately 29 years.
- 7 -

testimony.

Thus,

Petitioner

has

not

shown

that

a

reasonable

probability exists that the outcome of the proceeding would have
been

different

if

his

lawyer

had

given

the

assistance

Peti tioner has alleged should have been provided.

that

Accordingly,

Petitioner's ineffectiveness claim is without merit since he has
neither shown deficient performance nor resulting prejudice.
Peti tioner is not entitled to relief on ground one of the
Petition, the claim of ineffective assistance of trial counsel for
failure to investigate and call available defense witnesses for a
pre-trial motion to suppress.

Deference,

given to the state court's decision.
Fifth District Court of Appeal,
court affirmed on August 4,
August 26,
claim

is

2009.
not

Ex. L.

contrary

H at 394,

Ex. K.

or

an

and the appellate

The mandate issued on

The state courts'
to

should be

Petitioner appealed to the

Ex.

2009.

under AEDPA,

adjudication of this

unreasonable

application

of

Strickland, or based on an unreasonable determination of the facts.
Ground Two

Ground
Amendments

two

of

the

Petition

is:

"Petitioner's

[sic]

of Constitution were violated

Amendments also)

The police did not have a

articuable

[ sic]

reasonable

suspicion

sufficient to warrant an investigatory stop
at 7.

of
&

(5th,
well

Fourth

6th

&

14th

founded and

criminal

detention."

activity
Petition

In this ground, Petitioner raises a Fourth Amendment claim,

asserting the police did not have reasonable suspicion to detain

-

8 -

him and

the motion to

suppress was

incorrectly denied.

Upon

8

review, Petitioner's Fourth Amendment claim is barred from review
under Stone v. Powell, 428 U.S. 465 (1976).
suppress

was

filed,

a

hearing was

A pre-trial motion to

conducted on

the motion

to

suppress, and the arresting officer and shop employee testified.
The trial
Dugger,

court made essential

911 F.2d 508,

513-14

findings

of fact,

see Tukes v.

(11th Cir. 1990), cert. denied,

502

U.S. 898 (1991), and the appellate court affirmed the decision.
Ground two of the Petition is not cognizable in a

federal

habeas corpus proceeding because Petitioner had a full and fair
opportunity to litigate the Fourth Amendment issue and took full
advantage of that opportunity.

Under the principles of Stone v.

Powell, federal habeas review of Petitioner's claim is precluded.
Mincey v.

Head,

206 F.3d 1106,

denied, 532 U.s. 926 (2001).
Amendment violation,

1125-26

(llth Cir.

2000),

cert.

Thus, ground two, asserting a Fourth

is barred and will not be addressed by this

Court. 9
8
Al though Petitioner references the Fifth, Sixth, and
Fourteenth Amendments in the heading of this claim, in the body of
the claim he presents supporting facts and allegations for a Fourth
Amendment claim; therefore, the Court will construe this to be a
Fourth Amendment claim.
Any claim under the Fifth, Sixth and
Fourteenth Amendments is unsupported and is due to be denied.

9
Assuming this Fourth Amendment claim is not barred,
Petitioner, nevertheless, is not entitled to relief on the basis of
this claim.
The decision of the Fifth District Court of Appeal
affirming the judgment and conviction is entitled to AEDPA
deference. The adjudication of the state appellate court resulted
in a decision that involved a reasonable application of clearly
established federal law, was not contrary to clearly established
federal law, and was not based on an unreasonable determination of
- 9 -

Ground Three
In the third ground of the Petition, Petitioner claims:

"The

trial court erred by allowing evidence of collateral crimes against
the Petitioner because it was not inextricably intertwined with the
charged

offense."

following.

Petition

at

8.

The

record

contains

the

The state filed a Notice of Intent to Offer Evidence of

Other Crimes,

Wrongs,

or Acts,

Ex.

A at 135-36,

armed burglary which took place on June 8, 2005.

referencing an

The defense filed

a motion in limine concerning the "alleged firearm" being stolen
from a dwelling by Petitioner and/or Jessica Ackerman.
These matters were heard on Octoper 31, 2006.
12.

Id. at 150.

Ex. B at 102-

The state argued the facts were inextricably intertwined.

at 105.

The defense argued information concerning the burglary

should be kept out, stressing that it was highly prejudicial.
at 108.
two

Id.

Id.

In supporting this argument, it was noted that there were

theories

by

which

the

state

was

seeking

to

introduce

the

evidence: (1) the Williams 10 Rule (similar fact evidence) or (2) the
evidence is factually intertwined and cannot be extricated (a rule
of evidence).

Id. at 105-11.

Considering the motion in limine,

the court found:
So as regard to that opinion testimony, again,
I just want to make it clear that the Motion

the facts in light of the evidence presented in the state court
See discussion under Ground One.
proceedings.
Williams v. State, 110 So.2d 654
847 (1959).
- 10 -

10

u.S.

(Fla.), cert. denied, 361

in Limine is granted on that point and without
objection. And it is the finding of the Court
that the facts concerning the burglary and how
the gun allegedly got into the Defendant's
hands are inextricably intertwined and so I'm
going to deny the Motion in Limine on the
other points and permit the State to go
forward with that portion of it's
[sic]
evidence.
Id. at 112.
In sum, the trial court found that the burglary and how the
gun

ended

up

in

Petitioner's

inextricably intertwined.
that

the

trial

hands

were

On direct appeal,

facts

that

were

Petitioner claimed

court erred by allowing evidence

of collateral

crimes, asserting the crimes were not inextricably intertwined with
the charged offense.

Ex.

C at i.

The Fifth District Court of

Appeal affirmed the decision of the trial court.
Federal

Ex. F.

courts possess only limited authority to

consider

state evidentiary rulings in a habeas corpus proceeding.

Relief

will be granted based on an evidentiary ruling only if the ruling
affects

the

Singletary,
cert.

fundamental

fairness

161 F.3d 1273,

denied,

528 U.S.

1082

1289

of

the

(11th Cir.

(2000).

trial.
1998)

Mills

v.

(per curiam),

"Because a federal habeas

corpus case is not a vehicle to correct evidentiary rulings,

we

'inquire only to determine whether the error was of such magnitude
as to deny fundamental fairness to the criminal trial.'
v. Zant, 22 F.3d 1541, 1555 (11th Cir.)
denied,

513 U.S.

1061,

115 S.Ct.

673,

Alderman

(quotation omitted), cert.
130 L.Ed.2d 606

(1994)."

Baxter v. Thomas, 45 F.3d 1501, 1509 (11th Cir.), cert. denied, 516
- 11 -

U.S. 946 (1995)

Indeed, with respect to an erroneous evidentiary

ruling, relief should be granted by this Court only "if the state
trial error was material as regards a critical, highly significant
factor."

Id.

Upon review, the evidence of the burglary, which took place
the day before the offense at issue, was inextricably intertwined
with the possession of a firearm case.

The theory of the defense

was

of

that

vehicle.

Petitioner

had no

knowledge

the

gun being

By admitting evidence of the burglary,

in

the

there was some

explanation as to how Petitioner, Ms. Ackerman, or both came into
possession of the firearm.
The finding of the trial court that the facts concerning the
burglary and how the gun allegedly got into the Petitioner's hands
were

inextricably

intertwined

is

supported

by

the

record.

Petitioner and/or Ms. Ackerman obtained the gun from the burglary
which took place the day before the instant offense,

and the gun

was found in the car, next to the driver's seat where Petitioner
had been seated.

In the context of this trial, the ruling did not

affect the fundamental fairness of the proceeding.
attested that

she was

the

one

that

Ms. Ackerman

committed the burglary and

placed the firearm in the car; therefore,

the defense offered an

explanation as to how the firearm ended up in the vehicle, next to
Petitioner, without his knowledge.

The trial court's decision to

allow the evidence of the burglary was not contrary to clearly

- 12 -

established federal law, as it did not result in a fundamentally
Therefore, ground three does not warrant relief.

unfair trial.

Ground Four

The fourth ground of the Petition is:
and

14th

Amendments

of

u.s.

the

"( Peti tioner' s 5th, 6th

Constitution

were

violated)

Appellate counsel was ineffective for failing to properly raise
point[s] that included all the facts and laws governing the issue
concerning the state's failure to prove by substantive evidence the
corpus delicti of the crime."

Petition at 10.

Petitioner raises

a claim of ineffective assistance of appellate counsel for failure
to properly raise an issue concerning the state's failure to prove

corpus delicti

by substantive evidence the
establishing
counsel,

a

there

performance

was

claim
must
so

of
be

ineffective
a

showing

deficient

that

it

of the crime.

assistance
that
fell

11

In

of

appellate

appellate

counsel's

below

an

obj ecti ve

standard of reasonableness, but also, there must be a demonstration
"that but for the deficient performance, the outcome of the appeal
would have been different."
(11th Cir. 2011)

Ferrell v. Hall, 640 F.3d 1199, 1236

(quoting Black v. United States,

373 F.3d 1140,

1142 (11th Cir. 2004)).

11 Al though
Petitioner references the Fifth and Fourteenth
Amendments, upon review, Petitioner has raised a Sixth Amendment
claim of ineffective assistance of appellate counsel.
Petitioner
has failed to support a claim under either the Fifth or Fourteenth
Amendments, and as a result these claims are due to be denied.

- 13 -

This claim of ineffective assistance of appellate counsel was
raised in a Petition for Writ of Habeas Corpus filed with the Fifth
District Court of Appeal.

Ex. M.

Petitioner asserted the state

failed to prove a prima facie case of guilt before the introduction
of

Petitioner's

alleged

statement,

and

appellate

ineffective for failing to properly raise this point.
7,

2009,

curiam),

was

On October

the state appellate court denied the petition alleging

ineffective assistance of appellate counsel.
In

counsel

Burks

v.

State,

613

So.2d

441,

Ex. N.

443

(Fla.

1993)

(per

in discussing the concept of corpus delicti,12 the court

recognized that the state has the burden of proving by substantial
evidence that a crime was committed.
delicti was established.

proven

by

direct

or

In this case,

the corpus

All of the elements of the crime were

circumstantial

evidence,

independent

of

Petitioner's statements. 13
At
Ballard,

trial,
an

the

state

employee

of

presented
the

the

pawnshop,

testimony
who

of

attested

William
to

the

12 The corpus delicti of the crime is the body of the crime,
which includes the two elements of the act and the criminal agency
of the act.
Burks v. State, 613 So.2d at 443 n.2 (citing Black's
Law Dictionary) .

13 The crime of possession of a firearm by a convicted felon
has two elements: the defendant has been convicted of a felony, and
after that conviction,
he knowingly had a firearm in his
possession, care, custody, or control. Ex. B at 289-90. The crime
of possession of drug paraphernalia also has two elements: the
defendant used or had in possession with intent to use, drug
paraphernalia, and the defendant had knowledge of the presence of
the drug paraphernalia.
Id. at 291.
- 14 -

following.

On the morning of June 9, 2005, he was working at that

pawnshop.

Ex.

B at 126.

He explained the security concerns in

opening the shop, and that the employees follow certain procedures
in

entering

jewelry,

the

building,

emptying

business.

the

opening

garbage,

the

and

safes,

preparing

displaying
for

the

the

day's

He stated he parked in the back of the pawn shop

Id.

when Petitioner pulled up closer to the building, two parking spots
over.

Id. at 127.

Mr. Ballard identified Petitioner as the driver

Id.

of a red SUV.

at 126-27.

something" in the car.
the vehicle.

He saw Petitioner "messing with

Id. at 129.

There was a lady passenger in

Id. at 130.

Mr. Ballard proceeded to the front of the shop and entered.
Id. at 129.

The next time he noticed Petitioner, Mr. Ballard was

preparing to take the garbage out through the back door.
130.

Id. at

At the back door, there is a panoramic viewfinder, providing

a panoramic view of 180 degrees to the observer.

Id.

Mr. Ballard

heard footsteps, which was extremely unusual because the pawnshop
is made of solid concrete walls.

Id.

Mr. Ballard stopped at the

door and looked through the viewfinder.
standing in the sidewalk and turning.
looked to the back parking lot.
got what I need right here
with his hand."

Id.

Petitioner's pocket.

Id.

Id.

Mr.

Id. at 131.

- 15 -

He saw Petitioner

Petitioner turned and

At that point, he said "I've

(demonstrating)

at 130.

Id.

and patted his pocket

Ballard observed a bulge in

Mr.

Ballard turned around,

dropped the garbage,

and walked

back into the showroom floor and told his co-worker, Marvin, there
was a guy outside acting very suspiciously.
told Mr. Ballard to call the police.
as

to

whether

the

police

should

be

rd.

rd. at 131.

Marvin

There was a discussion

called.

rd.

Meanwhile,

Petitioner reapproached the front door and tried to open it.

rd.

at 132.

Mr.

Petitioner asked what time the shop opened.

Ballard responded 9:00. 14

rd.

rd.

Mr. Ballard watched from the back

door to see if Petitioner returned to the back of the building.
rd.

Mr.

Ballard concluded that Petitioner had to be standing at

the corner of the building because he was not visible from the
front door either.

rd.

Ultimately, the employees of the pawnshop

concluded that they should call the police.

rd. at 131.

Detective Raymond Dwyer attested that he and Officer Thompson
were on the way to work when they heard a call on the radio to go
to Mark's

Pawn.

business,

the

rd.

at

location

141.

of

the

He pulled into the
suspicious

description that was given on the radio.

vehicle

rear of the
matching

rd. at 142.

Dwyer parked his vehicle behind the red vehicle.

rd.

the

Detective
He was not

in uniform, so he placed a badge on a chain around his neck.

rd.

As he approached the vehicle, he saw Petitioner, who appeared to be
very

agitated,

nervous

and

wired.

rd.

at

143.

He

also

saw

Petitioner "placing an item underneath his leg between the seat and

14 Petitioner approached the front door two more times after
this conversation.
Ex. B at 134.
- 16 -

console of the truck."
Petitioner,
vehicle.

the

at 144.

Detective Dwyer recognized

called Petitioner by name,

rd.

something."
of

rd.

and told him to exit the

Petitioner "continued to fidget and mess around with
rd.

car.

Detective Dwyer instructed Petitioner to get out

rd.

As

Petitioner

started exiting the

vehicle,

Detective Dwyer saw a gun, and Dwyer pulled Petitioner out of the
car.

rd. at 144-45.

Detective Dwyer patted Petitioner down, and

then passed him along to Officer Thompson.
Dwyer secured the gun.

rd.

rd. at 145.

Detective

The firearm was located between the

driver's seat and the driver's side of the console.

rd. at 145-46.

Police officer Larry Thompson testified at trial.

He attested

that he searched Petitioner and found a crack pipe in the right,
front pocket of Petitioner's pants.

rd. at 173.

Officer Thompson

explained that after being placed in a police vehicle, Petitioner
made a statement.

rd. at 175.

Petitioner said it was a good thing

that Officer Thompson and Detective Dwyer "got to the pawnshop when
we did, something big was going to happen."

rd.

After arriving at

the jail, Petitioner was given his Miranda rights,

and he made a

statement claiming he stole the gun from a residence, he did have
the firearm between his pants (in his stomach area and waistband) ,
and he had a crack problem and needed help for his addiction.
at

175-76.

officers.

He

also

said he did not

wish to

hurt

rd.

any of

the

rd.

Based on the evidence that was presented at trial, the facts
were

sufficient

to

remove

any

suggestion

- 17 -

of

Petitioner

being

convicted based on a false confession,

"derangement,

official fabrication."

613 So.2d at 443

State

v.

Allen,

335

Burks v. State,
So.2d

823,

825

(Fla.

1976)).

mistake or

The

(citing
state

sufficiently proved the corpus delicti prior to the admission of
statements.

Petitioner's

Therefore,

appellate

counsel's

performance was not deficient for failing to raise a claim that the
state failed to prove by substantive evidence the corpus delicti of
the

crime.

Furthermore,
outcome

of

Such

a

claim

would

have

been

unsuccessful.

Petitioner has not met his burden to show that the
the

appeal

would

have

been

different

if

appellate

counsel had raised this claim on direct appeal.
The state court's adjudication of this claim was not contrary
to or an unreasonable application of clearly established federal
law,

and was not an unreasonable determination of the facts

light of the evidence.

in

Accordingly, Petitioner is not entitled to

relief on the basis of ground four of the Petition.
Ground Five

The

fifth

ground of

the

"Appellate Counsel

Petition is:

rendered deficient representation violating Petitioner's right to
effective assistance of counsel as guaranteed by the 5th, 6th, and
14th,

Amendments

to

the

u. S.

Constitution."

Peti tion

at

22.

Petitioner claims his appellate counsel was ineffective for failure
to

properly

raise

the

claim

concerning

- 18 -

the

illegal

police

investigatory stop and detention.

15

This claim was raised in a

Petition for Writ of Habeas Corpus filed with the Fifth District

Ex. M.

Court of Appeal.
court

denied

the

appellate counsel.

On October 7, 2009, the state appellate

petition

alleging

ineffective

assistance

of

Ex. N.

Appellate counsel's performance was not outside the range of
professionally competent assistance.

Upon review of the record,

appellate counsel raised the claim that the trial court erred in
denying the motion to suppress because the officer did not have a
reasonable suspicion of criminal activity sufficient to warrant an
investigatory stop.

Ex. C.

Rather than arguing the placement of

the police officer's vehicle blocking Petitioner's car amounted to
a seizure, appellate counsel asserted that Petitioner should never
have been approached and directed to exit from his vehicle, arguing
there

was

no

reasonable

investigatory stop.

suspicion

necessary

to

commence

an

This decision did not amount to deficient

performance of appellate counsel.

An explanation follows.

Appellate counsel made the same argument that was preserved by
defense counsel in the pretrial motion to suppress and at trial,
relying on Popple v. State, 626 So.2d 185 (Fla. 1993).

This was a

Petitioner references the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution; however, upon review,
he has presented a claim of ineffective assistance of appellate
counsel, a Sixth Amendment claim.
The Fifth and Fourteenth
Amendment claims are due to be denied as unsupported in this
ground.
Indeed, Petitioner has failed to meet his burden showing
a violation of constitutional dimension under the Fifth and
Fourteenth Amendments.
- 19 15

case that was considered by the defense to be directly on point,
and was also considered by defense counsel to be a theory strong
enough that it should stand on its own,
approach.

Additionally, no facts were presented at the suppression

hearing that
officer's

unfettered by a shotgun

Petitioner's vehicle was blocked in by the police

vehicle.

Ex.

A at

1-44.

The

whole

suppression hearing was based on the seizure as
ordered from the car, relying on Popple.

focus

of

the

Petitioner was

Appellate counsel based

the argument on what was raised and preserved by trial counsel.

A

solid foundation was laid for this argument through the motion to
suppress,
arguments.

the

Furthermore,

this position.
an

suppression hearing,

objective

and through

trial

counsel's

there was relevant case law supporting

Appellate counsel's performance did not fall below
standard

of

reasonableness

based

on

these

circumstances.
The state court's refusal to grant relief on the basis of
ineffective assistance of appellate counsel 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
evidence

presented

Petitioner has

in

the

state

court

facts

proceedings.

failed to demonstrate that,

deficient performance of appellate counsel,
appeal would have been different.

in light

but

of the
Finally,

for the alleged

the outcome of the

Therefore, ground five does not

warrant relief.
- 20 -

Ground Six

Ground six of the Petition is:

"Trial counsel was ineffective

rendering deficient representation when he failed to understand the
facts

and laws

in

regard to adequate

cross-examinations during

trial violating Petitioner[']s 5th, 6th, and 14th Amendments of the

u. S.

Constitution

representation."
asserts

his

which

guarantee

Peti tion

counsel was

at

23.

the
In

ineffective

for

Petitioner

this

ground,

failing

adequate cross examination of Detective Eric Dice.

16

to

effective
Petitioner
conduct

an

Specifically,

Petitioner claimed Detective Dice vouched for the credibility of
Ms.

Ackerman's

cross,

statement to him,

Dice admitted that Ms.

eviscerating the defense.

On

Ackerman said she had been taking

drugs, that he did not choose to ignore that fact, but he believed
she spoke the truth when she explained what had occurred.

Ex. B at

239.
In its Final Order Denying Motion for Postconviction Relief,
the trial court denied this ground.
entire context
counsel was

of

Dice's

testimony,

The trial court reviewed the
and concluded that defense

actually attempting to discredit

inquiring about Ms.

Detective

Dice by

Ackerman being under the influence of drugs

Petitioner raises a claim of ineffective assistance of
counsel under the Sixth Amendment.
Although he also couches this
claim in terms of the Fifth and Fourteenth Amendments, he has not
supported a
claim of constitutional violation under these
Amendments.
Therefore, any claims under the Fifth and Fourteenth
Amendments are due to be denied.
- 21 16

when her statement was made to him.

This conclusion is supported

by the record.
Defense counsel first inquired as to whether Detective Dice's
opinion was that Ms. Ackerman was not under the influence of drugs
when she gave her statement.

Ex. B at 238-39.

Dice responded that

he did not know her normal behavior, but Ms. Ackerman's responses
were consistent and she appeared to understand the questions.
at 239.
Id.

Id.

Defense counsel again asked if she said she was on drugs.

Dice responded in the positive.

Id.

When asked if he ignored

her statement that she had been doing drugs, Dice responded in the
negative.

He said he believed her.

Id.

Defense counsel

asked if Dice believed her even though she said she was on drugs
and he was

not

familiar

response, Dice said no.

with her normal mannerisms.

Id.

In

Id.

The trial court concluded that this whole line of questioning
was based on a strategy to discredit the testimony of Dice, not an
attempt to have Dice vouch for the credibility of Ms. Ackerman.
Mr. Burford attested to this strategy
The trial court held:
this

fashion

competent

is

"The decision to question Officer Dice in

clearly

performance

at the evidentiary hearing.

by

within

the

trial

boundaries

counsel.

of

reasonably

Maxwell,

Accordingly, this claim fails and is hereby DENIED."

supra.

Ex. H at 377.

This decision was affirmed by the state appellate court.

Ex. K.

The attempt by counsel to discredit the testimony of Detective
Dice did not constitute deficient performance by counsel.
- 22 -

Indeed,

this

was

Inst.,

sound trial

strategy.

629 F.3d 1228,

inquiry

of

1238

Harvey v.

(11th Cir.)

Strickland usually

boils

Warden,

Union Corr.

(noting the performance

down

to

whether

counsel's

actions were the result of deficient performance or sound trial
strategy), cert. denied, Harvey v. Reddish, 132 S.Ct. 577

(2011).

In light of all the circumstances, defense counsel's performance
was

not

outside

the

wide

range

of

professional

competence.

Furthermore, Petitioner has failed to satisfy the prejudice prong
of Strickland.

Upon review, there was no unreasonable application

of clearly established law in the state court's decision to reject
the

Strickland

ineffectiveness

claim.

The

decision

was

not

contrary to clearly established federal law and was not based on an
unreasonable determination of the facts.
Ground Seven

The seventh ground of the Petition is:

"Trial counsel was

ineffective rendering deficient representation when counsel failed
to understand the facts and laws in regard to adequate introduction
of contradictory evidence violating
14th,

Amendments

of

the

U. S.

Constitution which

Petitioner effective representation."
claims

his

counsel

was

Petitioner's

ineffective

5th,

6th,

and

guarantee

the

Petition at 25.
for

failure

to

Petitioner
effectively

impeach Detective Dwyer and for failure to adequately cross examine
Officer Thompson. 17

In denying this claim, the trial court found

17 Petitioner,
in addition to the Sixth Amendment, references
a violation of the Fifth and Fourteenth Amendments.
He complains
- 23 -

that defense counsel adequately investigated and prepared for the
pre-trial hearing on the motion to suppress and for the trial.

In

particular, the trial court found the record showed that defense
counsel took the deposition of Jessica Ackerman in preparation of
the hearing and in order to be fully informed concerning the facts
surrounding the arrest.
and

Petitioner

has

These findings are supported by the record

not

rebutted

these

findings

by

clear

and

convincing evidence.
Defense

counsel

filed

the

motion

to

William Ballard to testify at the hearing.

suppress

and

called

At the conclusion of

the hearing, defense counsel presented a zealous argument based on
the defense's theory for suppression.
motion

to

suppress,

but

defense

The trial court denied the

counsel

renewed the motion

suppress and urged the trial court to reconsider its ruling.

to
The

trial court affirmed its ruling after considering defense counsel's
argument.

In the motion for new trial,

counsel again urged the

court to find that it had erred in denying the motion to suppress.
A strong argument was made, but the motion was denied.
The trial court also found that defense counsel thoroughly
cross examined Detective Dwyer at trial.
conclusion.

Ex. B at 153-65.

The record supports this

Petitioner also claims his counsel

was ineffective for failing to effectively cross examine Officer

he did not receive effective representation of trial counsel, a
Sixth Amendment claim.
Any claim under the Fifth and Fourteenth
Amendments is wholly unsupported and is due to be denied.
- 24 -

Thompson in order to discredit Detective Dwyer's allegedly false
testimony.
cross

The record shows that Officer Thompson was effectively

examined.

Id.

at

179-9l.

With

respect

to

counsel's

performance with regard to challenging Officer Thompson, the trial
court said:
This claim is also clearly refuted by the
record.
The probable cause affidavit of
Officer Thompson is consistent with his trial
testimony, and with the trial testimony of
Detecti ve Dwyer, and with the testimony of
Detective Dwyer at the hearing on the Motion
to Suppress.
(See attached probable cause
affidavit
of
Officer
Thompson,
Trial
Transcript, pages 145, 155-163; 172, 181, and
Transcript of Hearing on Motion to Suppress,
pages 16-18).
Officer Larry Thompson did
testify at trial and he was thoroughly
challenged on cross examination by defense
counsel.
(Trial Transcript, pages 179-191).
Ex.

H at 379-80.

Defense counsel extensively challenged these

witnesses and was tenacious in arguing his theory supporting the
motion to suppress.
In sum, the trial court rejected Petitioner's claim that his
counsel

was

ineffective

for

failure

to

effectively

impeach

Detective Dwyer and for failure to thoroughly cross examine Officer
Thompson.
court's

Ex. H at 358-61, 377-80.
conclusion.

This

District Court of Appeal.
Not

only

was

decision

The record supports the trial
was

affirmed by

the

Fifth

Ex. K.

Petitioner

represented

by

experienced

and

effective defense counsel, his counsel made every effort to ensure
that both the trial and appellate courts were provided with the
- 25 -

opportunity to reconsider the merits of the motion to suppress.
Addi tionally,

defense

counsel

conducted

thorough

cross examination of the state's witnesses.

and

effective

The adjudication of

this claim of ineffective assistance of counsel 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

evidence presented in the state court proceedings.

light

of the

Petitioner has

not established the first prong of Strickland, that trial counsel's
performance was deficient.

Nor has he shown prejudice, as required

by the second prong of Strickland.

Therefore, ground seven does

not warrant relief.
Ground Eight

The eighth ground of the Petition states:

"Trial counsel was

ineffective rendering deficient representation when he failed to
understand

the

facts

and

laws

in

regard

to

adequate

redirect

examination of witness violating Petitioner[']s 5th, 6th, and 14th
Amendments

of

the

u.S.

Constitution

Petitioner effective representation."

which

gaurantees

Peti tion at 28.

[sic]
In this

ground, Petitioner claims his counsel was ineffective for failure
to rehabilitate defense trial witness Jessica Ackerman. 18

In its

18 Petitioner raises another claim of ineffective assistance
of trial counsel.
Although he mentions the Fifth, Sixth, and
Fourteenth Amendments, the claim he presents is a Sixth Amendment
claim of ineffectiveness of trial counsel.
His claim of Fifth
Amendment and Fourteen Amendment violations is unsupported and is
due to be denied.
- 26 -

Final Order Denying Motion for Post Conviction Relief,

the trial

court

claim and

provided

some

background

information

for

this

explained:
At trial, Jessica Ackerman was called to
testify by defense counsel.
Her testimony on
direct examination was that the defendant was
not aware that a firearm was in the vehicle
they were occupying. On cross examination Ms.
Ackerman testified that she lied to the police
when she told them the defendant was involved
in the taking of the firearm.
(Trial
Transcript, pages 222 and 226).
Ackerman's
trial testimony, and her deposition testimony,
was clearly contrary to what she told the
police on the day the defendant was arrested.
Ex. H at 359-60.
With respect to defense counsel's performance at trial,

the

trial court found that defense counsel called Ms. Ackerman at trial
to testify that she had lied to the police, attesting that, the day
before the instant offense, she burglarized the house and took the
firearm,

and Petitioner was unaware of the firearm.

Of course,

this testimony directly contradicted what she had previously told
the police

(that

Petitioner had the gun

officers approached the car,

in his pants when the

and he placed the gun next to the

center console before he got out of the vehicle) .
The trial court found it was a tactical decision to call Ms.
Ackerman,
hindsight.

and

rd.

the
at

decision
359-60.

should
Upon

not

be

review,

second-guessed
it

was

in

experienced

counsel that made the tactical decision to call Ms. Ackerman, and

- 27 -

also, in this instance, Petitioner was quite insistent that she be
called as a witness at trial.

Ex. H at 270-71, 317.

Beginning with the strong presumption that counsel's conduct
was

reasonable,

"and that presumption is even stronger when we

examine the performance of experienced counsel[,]" Walls v. Buss,
658 F.3d 1274, 1279 (11th Cir. 2011)

(per curiam)

(citing Chandler

v. United States, 218 F.3d 1305, 1316 (11th Cir. 2000)
petition for
Petitioner

cert.

has

filed,

not

(U.S.

shown

Dec.

ineffective

23,

2011)

(en banc)),

(No.

assistance

of

11-8965),
counsel.

Although Ms. Ackerman proved to be a less than stellar witness due
to her past drug use and poor memory,
scene

of

the

offense

who

could

she was the person at the

counter

the

police

officer's

testimony, although she proved to be inconsistent in her statements
and somewhat unreliable.

Ex. B at 211-26.

Ms. Ackerman admitted she was using drugs at the time of the
offense, and in particular using cocaine every day.
Counsel

inquired as

to whether Ms.

because she was on drugs,
and it's been a while.
little thing."

Id. at 215-16.

Ackerman had a

and she responded:

poor memory

n[i]t could be that

I just don't remember certain things, every

Id. at 221.

She did firmly state that Petitioner

was not aware of the firearm being in the vehicle.

Id. at 222.

In

fact, she said she took the firearms and put them in the vehicle,
without

Petitioner's

knowledge.

Id.

225.

This

certainly

supported Petitioner's defense that he was unaware of the firearm
that was found next to the driver's seat of the vehicle.
- 28 -

Peti tioner

also

contends

his

counsel

was

ineffective

for

failure to move to suppress the publication of a portion of Ms.
Ackerman's DVD statement offered as impeachment evidence and for
failure

to establish Ms.

Ackerman's demeanor when she gave her

statement to Detective Dice.
and

Ms.

Ackerman

both

The record shows that Detective Dice

testified

at

trial

circumstances of Ms. Ackerman's statement.

concerning

the

The jury was given the

opportunity to assess her credibility and the reliability of the
statement.
The trial court found that the portion of the statement used
for

impeachment

testimony and

purposes

Petitioner

was

the

failed

proper

to

subject

establish

of

that

a

rebuttal
motion

to

suppress would have had the slightest probability of success under
these circumstances.
examination
Thompson,

of

Ms.

Given that defense counsel conducted a direct
Ackerman,

cross

took pre-trial depositions

examined

Officers

Dice

of the witnesses,

and

and was

fully informed of the contents of the statements, the trial court
concluded

his

"direct

and

cross

examination

of

the

witnesses

regarding Ackerman's condition and her statements were well within
the realm of competency, and it was for the jury to assign whatever
weight they deemed appropriate."
Petitioner

has

failed

to

Ex. H at 382-83.
rebut

the

findings with clear and convincing evidence.
failed

to

demonstrate

state

court's

Additionally, he has

both deficient performance

under these circumstances.

factual

and prejudice

As noted by the trial court, counsel is
- 29 -

not

ineffective

suppress.

for

declining

Counsel's

assistance

of

to

actions

counsel.

raise

did

Indeed,

not

a

mer i tless

constitute

Petitioner's

motion

to

ineffective

counsel

was

well

prepared for trial, and his actions reflected that preparation.
The factual findings of the trial court are supported by the
record,

and

Petitioner

correctness

of

these

has

not

overcome
On August

findings.

the
4,

presumption
2009,

the

of

Fifth

District Court of Appeal per curiam affirmed the decision of the
Ex. K.

trial court.
state

court's

unreasonable

Petitioner has failed to demonstrate that the

denial

of

application

this
of

claim

was

Stickland,

contrary

or

or

an

based

was

to

on

an

unreasonable determination of the facts in light of the evidence
presented.

Therefore, Petitioner is not entitled to habeas relief

on ground eight of the Petition.
CERTIFICATE OF APPEALABILITY
If

Petitioner

appeals,

the

undersigned

certificate of appealability is not warranted.

opines

that

a

See Rule 11, Rules

Governing Section 2254 Cases in the United States District Courts.
This Court should issue a certificate of appealability only if the
Petitioner

makes

consti tutional

substantial

"a

right."

28

U.S.C.

showing

of

the

§2253(c)(2).

denial
To

make

of

a

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
- 30 -

(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)
n.4

(quoting Barefoot v. Estelle, 463 U.S. 880, 893

(1983)).
Where

district

a

court

claims

constitutional

on

the

has

rejected

merits,

the

a

petitioner's

petitioner

must

demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.
Slack,

529 U.S.

at

484.

However,

See

when the district court has

rejected a claim on procedural grounds, the petitioner must show
that

"jurists

of

reason

would

find

it

debatable

whether

the

petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling."

Id.

Upon consideration of the record as a whole, this Court will deny
a certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

The

Petition

for

Writ

of Habeas

Corpus

(Doc.

#1)

is

DENIED, and this action is DISMISSED WITH PREJUDICE.

2.

The Clerk of the Court shall enter judgment accordingly

and close this case.
3.

If Petitioner appeals the denial of his Petition,

Court denies a certificate of appealability.

- 31 -

the

Because this Court

has

determined

warranted,

the

that

a

certificate

shall

Clerk

of

terminate

appealability

from

the

is

not

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.
AND ORDERED at
I

7A-.e:pA

2012.

sa 4/25
c:

Charles Robert Chapman
Ass't A.G. (Compton)

- 32 -

'tl

, Florida, this

3 O~

day of