Johnson v. Secretary, Department of Corrections et al
Filing
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MEMORANDUM AND OPINION denying the Petition; Certificate of Appealability will not issue; The Clerk is directed to enter judgment accordingly, terminate all pending deadlines as moot and close the file. Signed by Judge Paul A. Magnuson on 4/10/2017. (JEB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
Phillip K. Johnson Jr.,
Case No. 5:14-cv-191-OC-27PRL
Petitioner,
v.
MEMORANDUM AND ORDER
Secretary, Department of
Corrections, and Florida
Attorney General,
Respondents.
This matter is before the Court on a Petition for a Writ of Habeas Corpus under 28
U.S.C. § 2254. For the following reasons, the Petition is denied.
BACKGROUND
In April 2009, a jury convicted Petitioner Phillip K. Johnson, Jr. of attempted
robbery with a firearm. The trial court sentenced Johnson to 30 years in prison.
Johnson subsequently filed a motion to correct illegal sentence under Florida Rule
of Criminal Procedure 3.800. The postconviction court denied the motion and Johnson
appealed that decision.
The appellate court reversed and ordered that Johnson be
resentenced to fifteen years’ imprisonment with a mandatory minimum of ten years after
the government conceded that there had been a sentencing error. Johnson v. State, 44 So.
3d 209 (table) (Fla. Dist. Ct. App. 2010).
In August 2011, Johnson filed for postconviction relief under Florida Rule of
Criminal Procedure 3.850, this time claiming ineffective assistance of counsel. The
postconviction court held an evidentiary hearing on some of Johnson’s claims, and
eventually denied relief on all grounds. The appellate court affirmed. Johnson v. State,
130 So. 3d 233 (table) (Fla. Dist. Ct. App. 2013).
In March 2014, Johnson timely filed the instant Petition. Johnson claims that he
received ineffective assistance of counsel because his trial counsel (1) made an
inadequate motion for judgment of acquittal, (2) failed to object to the filing of an
amended information, (3) failed to object or move to suppress hearsay identification
testimony, (4) failed to object to suggestive police identification procedures, and (5)
failed to request a jury instruction on abandonment. (Pet.’s Supp. Mem. (Docket No. 2)
at 4-20.)
DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2241 et seq., a federal court’s “review is greatly circumscribed and is highly
deferential to the state courts.” Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002).
Indeed, AEDPA “modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.
685, 693 (2002) (citation omitted). 28 U.S.C. § 2254, which applies to persons in
custody pursuant to a state-court judgment, provides:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
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(2) resulted in a decision that 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). Further, § 2254 states that “a determination of a factual issue made
by a State court shall be presumed to be correct.” Id. § 2254(e)(1). The burden is on the
petitioner to “rebut[] the presumption of correctness by clear and convincing evidence.”
Id.
A.
Ineffective Assistance of Counsel
Johnson can succeed on his ineffective-assistance-of-counsel claims only if he can
show that the trial court’s or appellate court’s determination of the facts surrounding his
claims was unreasonable. 28 U.S.C. § 2254(d). Thus, he must establish both that his
counsel was ineffective and that it was unreasonable for the court reviewing his claims to
conclude otherwise.
“Ineffective assistance of counsel can be grounds for challenging a conviction if
counsel’s performance was so egregious that it rendered the trial fundamentally unfair.”
Damron v. Florida, No. 8:07cv2287, 2009 WL 1514269, at *2 (M.D. Fla. May 29, 2009)
(citing Strickland v. Washington, 466 U.S. 668, 701 (1984)). Johnson must demonstrate
“that his counsel’s performance was objectively unreasonable by professional standards
and that he was prejudiced as a result of the poor performance.” Id. (citing Strickland,
466 U.S. at 687-88). To show prejudice, Johnson “must establish a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Woodford v. Visciotti, 537 U.S. 19, 22 (2002) (quotations
omitted). Moreover, “[t]here is a strong presumption that an attorney’s conduct fell
within the ‘wide range of professional norms,’ and anything that ‘might be considered
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sound trial strategy’ will generally not prove counsel ineffective.” Damron, 2009 WL
1514269, at *2 (quoting Strickland, 466 U.S. at 689).
1.
Motion for Judgment of Acquittal
Johnson first argues that his counsel was ineffective for failing to adequately argue
and renew a motion for judgment of acquittal. Johnson contends that the State failed to
provide sufficient evidence that he attempted to rob—rather than merely extort—the
victim, and that his trial counsel’s failure to raise this argument was constitutionally
inadequate. (Pet.’s Supp. Mem. at 5-6.) A judgment of acquittal should only be granted
where the evidence is insufficient to warrant a conviction. McBride v. State, 7 So. 3d
1146, 1148 (Fla. 2d DCA 2009). During Johnson’s trial, the victim identified Johnson in
open court and testified that Johnson pulled a gun out of his pocket, pointed it towards
the victim’s head, and demanded money. (App’x (Docket No. 12) at 520. 1) He further
testified that Johnson later approached him and offered him money to not testify in court.
(Id. at 523.) That evidence was sufficient to warrant a conviction. Therefore, even if
Johnson’s trial counsel had raised a more adequate motion, it would have been futile.
Failing to raise a futile motion does not constitute ineffective assistance of counsel.
2.
Failure to Challenge Amended Information
Johnson next argues that his trial counsel was ineffective because his attorney
failed to challenge the State’s amended information.
But the State may amend an
information any time before—and even during—trial unless there is a showing of
prejudice to the substantial rights of the defendant. State v. Clements, 903 So. 2d 919,
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The Court’s citations to Respondents’ Appendix are to the page numbers on the Court’s
electronic docket.
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921 (Fla. 2005) (quoting State v. Anderson, 537 So. 2d 1373, 1375 (Fla. 1989)). Here,
the State amended the information almost a month before trial and Johnson has failed to
show how the amendment prejudiced him. (App’x at 574-77.) Thus, his trial counsel’s
failure to object to the amended information does not constitute ineffective assistance of
counsel.
3.
Hearsay
Johnson also argues that his trial counsel was ineffective by failing to object to
certain hearsay testimony that identified him as the perpetrator. During the state court’s
postconviction hearing, Johnson’s trial counsel testified that he made the decision to not
object to the hearsay identification testimony because his trial strategy was
misidentification. Such strategic trial decisions do not constitute ineffective assistance of
counsel. See Souffrant v. State, 994 So. 2d 407, 411 (Fla. 3d DCA 2008).
4.
Identification Procedures
Johnson argues that his trial counsel was ineffective for failing to object to
identification evidence because the identification procedure was unduly suggestive.
Eyewitness identification “may constitute a due process violation if the
identification procedures were ‘unnecessarily suggestive and conducive to irreparable
mistaken identification.’” Rivera v. Sec’y, No. 2:13cv590, 2016 WL 3421631, at *1
(M.D. Fla. June 22, 2016) (citing Stovall v. Denno, 388 U.S. 293, 302 (1967)). The fact
that the identification procedure used was suggestive, alone, does not violate due process.
See Neil v. Biggers, 409 U.S. 188, 198-99 (1972). Rather, the “central question” is
“whether under the totality of the circumstances the identification was reliable even
though the confrontation procedure was suggestive.” Id. at 199 (quotations and citations
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omitted).
There are several factors to consider in evaluating “the likelihood of
misidentification,” including: (1) the opportunity of the witness to view the criminal at
the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the
witness’s prior description of the criminal, (4) the level of certainty demonstrated by the
witness at the confrontation, and (5) the length of time between the crime and the
confrontation. Id. at 199-200.
The victim here had an excellent opportunity to view Johnson at the time of the
crime because Johnson stood approximately a foot away from him while demanding
money. And Johnson presumably had the victim’s full attention because Johnson was
holding a gun to the victim’s head. The victim also testified that he knew Johnson’s
nickname and had contact with him both before and after the attempted robbery. Finally,
the victim identified Johnson shortly after the attempted robbery and was certain of that
identification. Under the totality of these circumstances, the identification was reliable
even assuming that the identification procedure may have been suggestive.
Trial
counsel’s failure to object to the identification evidence therefore does not constitute
ineffective assistance of counsel.
5.
Abandonment Instruction
Finally, Johnson argues that his trial counsel was ineffective for failing to request
an additional jury instruction on abandonment. But trial counsel strategically decided to
not request a jury instruction that was inconsistent with Johnson’s misidentification
theory. Such strategic trial decisions do not constitute ineffective assistance of counsel.
See Souffrant, 994 So. 2d at 411.
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B.
Certificate of Appealability
Johnson is required to secure a Certificate of Appealability before appealing the
dismissal of his habeas corpus action. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P.
22(b)(1). This Court cannot grant a Certificate of Appealability unless the prisoner “has
made a substantial showing of the denial of a constitutional right.”
28 U.S.C.
§ 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The prisoner must
establish that the resolution of his constitutional claims “was debatable among jurists of
reason.” Lott v. Att’y Gen., Fla., 594 F.3d 1296, 1301 (11th Cir. 2010).
Johnson has not demonstrated that his claims are debatable or that they “deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 327. The Court will therefore
not grant a Certificate of Appealability on any of Johnson’s claims.
CONCLUSION
Johnson is not entitled to federal habeas relief on his claims. Accordingly, IT IS
HEREBY ORDERED that:
1.
The Petition for a Writ of Habeas Corpus (Docket No. 1) is DENIED;
2.
A Certificate of Appealability will not issue; and
3.
The Clerk shall enter judgment accordingly, terminate all remaining
deadlines as moot, and close the file.
Dated: April 10, 2017
s/Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge
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