Pinkney v. Secretary, Department of Corrections et al

Filing 12

MEMORANDUM AND OPINION denying Petition; a Certificate of Appealability will not issue; the Clerk is directed to enter judgment accordingly, terminate any pending deadlines and close the file. Signed by Judge Paul A. Magnuson on 4/11/2017. (JEB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
Harmon Pinkney, III,

Case No. 5:14-cv-607-OC17-PRL
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
On February 3, 2009, a jury in Marion County, Florida, convicted Petitioner
Harmon Pinkney, III, of four counts of strong-arm robbery and one count of attempted
strong-arm robbery.

According to the trial testimony, in December 2007, Pinkney

entered the Central Florida State Bank in Ocala, Florida, put a pillowcase on the counter
at a teller station and demanded money. (App’x Ex. B (Trial Tr.) at 145 (Docket No. 7-6
at 66) 1.) He also demanded that four bank employees give him their purses and cell

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The Court will endeavor to cite to the electronically filed appendix (Docket No. 7) by
attachment number and page of the Court’s electronic docket. The State did not file the
appendix by exhibit, but rather broke the docket attachments at random locations, so that
a given exhibit might begin in the middle of an attachment and span one, two, or more
attachments. To characterize this practice as unhelpful to the Court’s review of the
record is a gross understatement.

phones. (Id. at 146; 162 (Docket No. 7-6 at 67, 83).) The trial court sentenced Pinkney
to a total of 20 years’ imprisonment and five years of probation. (Id. Ex. A at 146-55
(Docket No. 7-5 at 3-12).)
Pinkney appealed his conviction, contending that double jeopardy barred his
convictions for taking property from a person and from that person’s employer in a
continuous act. (Id. Ex. E at 1-15 (Docket No. 7-8 at 92 to 7-9 at 14).) The Florida Fifth
District Court of Appeal affirmed without opinion. Pinkney v. State, 41 So. 3d 914
(table) (Fla. Dist. Ct. App. 2010). Pinkney filed a habeas petition in the appeals court,
contending that his appellate counsel was ineffective for failing to challenge the
admission of video surveillance evidence and failing to challenge the sufficiency of the
evidence regarding the force, assault, or fear element of a charge of strong-arm robbery.
(App’x Ex. F at 1-7 (Docket No. 7-9 at 31-37).) The court denied that petition on the
merits without comment. (Id. at 57 (Docket No. 7-9 at 87).)
Pinkney then filed for postconviction relief pursuant to Florida Rule of Criminal
Procedure 3.850. (App’x Ex. G (Docket No. 7-9 at 92).) Pinkney’s 3.850 motion raised
twelve claims of ineffective assistance of trial counsel, nearly all of which are repeated in
the instant Petition. The trial court held an evidentiary hearing on Pinkney’s claims, at
which Pinkney’s trial counsel testified. (App’x Ex. G at 130-233 (Docket No. 7-11 at 35
to 7-12 at 59).) In a thorough and lengthy order, the trial court ultimately denied all of
Pinkney’s claims as without merit. (Id. at 258-325 (Docket No. 7-12 at 84 to 7-13 at
20).) The Fifth District Court of Appeal affirmed that denial per curiam. Pinkney v.
State, 138 So. 3d 468 (table) (Fla. Dist. Ct. App. 2014).
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Pinkney filed the instant Petition in November 2014. He raises ten grounds for
relief, all based on the alleged ineffective assistance of his trial counsel.
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
(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.

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AEDPA requires both that a habeas petition be timely filed and that the petitioner
have exhausted his remedies with respect to the relief he seeks. The State agrees that this
Petition is timely. It argues, however, that Pinkney has failed to exhaust his remedies
with respect to ground 2, which contends that his counsel was ineffective for failing to
object to the prosecutor’s closing argument, and ground 9, which asserts that counsel was
ineffective for failing to object to the prosecutor’s impeachment and rehabilitation of a
witness. According to the State, because the trial court denied these grounds (raised in
the trial court as grounds 3 and 10) and Pinkney did not appeal the denial, he has failed to
exhaust his remedies and these claims should be dismissed on that basis. 2
But as the State recognizes, the United States Supreme Court recently explained
that a habeas petitioner may establish cause for the procedural default of an ineffectiveassistance claim when the petitioner acted pro se during the initial collateral proceeding
at which that claim was presented. Martinez v. Ryan, 566 U.S. 1, 13-14 (2012). Pinkney
did not have the benefit of counsel during his state postconviction proceedings, and thus
likely can establish cause under Martinez. And given that Pinkney’s claims are without
any substantive merit, the Court will address the claims rather than dismissing them for
failure to exhaust.
A.

Ineffective Assistance of Counsel
Pinkney can succeed on his claims that his counsel was ineffective only if he can

show that the trial court’s or appellate court’s determination of the facts surrounding his
2

The State also argues that Pinkney failed to exhaust his claim of cumulative error
(ground 12 in the trial court, ground 10 in the instant Petition) because he only presented
a cursory argument to the appellate court regarding this claim.
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claims was unreasonable. 28 U.S.C. § 2254(d). Thus, he must establish both that his trial
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. 8:07-cv-2287, 2009 WL 1514269, at *2 (M.D. Fla. May 29,
2009) (citing Strickland v. Washington, 466 U.S. 668, 701 (1984)).

Pinkney 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, Pinkney “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). But “[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
sound trial strategy’ will generally not prove counsel ineffective. Damron, 2009 WL
1514269, at *2 (quoting Strickland, 466 U.S. at 689). As noted, Pinkney challenges his
trial counsel’s assistance on ten separate grounds.
1.

Speedy Trial

Pinkney first contends that his trial counsel was ineffective for failing to file a
notice of expiration of speedy trial in a timely manner. The trial court considered this
claim and denied it, finding that Pinkney was mistaken about the date of his arrest and
therefore the date by which the State was required to try him. (App’x G at 259-61
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(Docket No. 7-12 at 85 to 7-13 at 1-2).) The trial court determined that Pinkney was
brought to trial within the time period Florida law provides.
Pinkney has no new evidence or any legal argument as to why the trial court’s
determination of this issue was unreasonable. And, indeed, the record is clear that
Pinkney was not arrested on the bank-robbery charges in March 2008, but rather was
arrested on other charges from Orange County in March 2008. Pinkney was arrested on
the instant charges in August 2008, and as the trial court determined, his counsel filed a
notice of expiration of speedy trial as soon as the statutory period elapsed. Moreover,
Pinkney was brought to trial within four days of that notice, well within the State’s 15day window to do so. Pinkney’s claim on this issue is without merit.
2.

Prosecutorial Misconduct

Pinkney next argues that his counsel was ineffective for failing to object to the
prosecutor’s closing argument, which Pinkney characterizes as “inflammatory and
prejudicial.” (Pet. (Docket No. 1) at 7.) According to Pinkney, the prosecutor expressed
his personal opinions regarding Pinkney’s guilt, and his trial counsel did not object to
these statements. The trial court determined, after a review of the record, that the
prosecutor’s closing argument was not improper. (App’x Ex. G at 262 (Docket No. 7-13
at 3) (citing Trial Tr. at 301-13, 321-29).) Pinkney does not argue that the trial court’s
determination was unreasonable in light of either the facts or the law, but merely
reiterates his opinion that the closing argument was improper.
But again, this Court’s role is not to independently determine whether
prosecutorial misconduct occurred and whether that alleged misconduct prejudiced
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Pinkney’s constitutional rights. Rather, this Court examines only whether the trial court’s
determination of this issue was unreasonable either factually or legally. There is no
indication that the trial court misapplied any relevant law, and the court’s factual findings
are likewise reasonable in light of the record. Pinkney’s claim fails.
3.

Exclusion of Evidence

Pinkney maintains that his counsel was ineffective for failing to file a motion to
exclude evidence that Pinkney visited other banks in the area before he robbed the
Central Florida State Bank. But as the trial court noted, Pinkney’s counsel did challenge
the admission of this evidence at a hearing on the State’s notice that it would use the
evidence. (Id. at 265 (Docket No. 7-13 at 6).) The court overruled Pinkney’s counsel’s
objections to the testimony and any further motion regarding the issue would have been
futile. The trial court’s determination of this claim was reasonable and habeas relief is
not available on this basis.
4.

Hearsay Testimony

Pinkney contends that his trial counsel was ineffective for failing to raise a hearsay
objection to the testimony of Cynthia Smith, a witness for the State. Ms. Smith stated
during her testimony that she was told that Pinkney robbed a bank. Pinkney’s lawyer did
not object to this statement as hearsay.
As the trial court noted, a lawyer’s sound trial strategy is not grounds for an
ineffective-assistance claim. (Id. at 266 (Docket No. 7-13 at 7) (citing Strickland, 466
U.S. at 689).) During the evidentiary hearing on Pinkney’s state postconviction motion,
his lawyer explained that he decided not to object to this stray statement because doing so
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might draw the jury’s attention to the statement, something the lawyer did not want to do.
(Id. (citing Hr’g Tr. at 53-54).) The trial court’s determination that counsel’s failure to
object constituted sound trial strategy is not unreasonable, and this claim is without merit.
5.

Testimony from Lead Detective

Pinkney asserts that his counsel was ineffective because he did not object when
the lead detective in the case testified regarding the probable cause affidavit and the
issuance of a warrant for Pinkney’s arrest.

According to Pinkney, this testimony

amounted to the detective’s opinion that Pinkney was guilty.
But the detective did not express an opinion about Pinkney’s guilt or innocence.
Rather, he testified regarding the factual predicate for instituting the case against
Pinkney, something that is routine and does not violate a criminal defendant’s rights. The
trial court correctly determined that trial counsel’s performance was not deficient and that
Pinkney did not suffer any prejudice from the admission of this testimony. (Id. at 268-69
(Docket No. 7-13 at 8-9).) This claim fails.
6.

“In Fear”

Pinkney next contends that his counsel should have argued in his motion for
judgment of acquittal that the State did not proffer sufficient evidence on an essential
element of the charges as to two alleged victims, namely that Pinkney’s actions caused
these two victims to be in fear. But as the trial court noted, Pinkney’s counsel did argue
that the State had failed to establish the “fear” element of the crimes charged. (Id. at 26970 (Docket No. 7-13 at 10-11).) The record squarely refutes Pinkney’s claim on this
basis.
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7.

Double Jeopardy

Pinkney argues that his counsel was ineffective for failing to argue for dismissal of
the individual-victim counts (Counts 2 through 5) on double jeopardy grounds.
According to Pinkney, because the incident constituted one continuous crime, it violated
his double jeopardy rights to charge him with five separate crimes. The trial court
examined the relevant Supreme Court authority on double jeopardy, Blockburger v.
United States, 283 U.S. 299 (1932), and determined that the existence of five different
victims made each robbery a separate criminal offense under Florida’s codification of
Blockburger’s principles. (Id. at 270-71 (Docket No. 7-13 at 11-12).) Pinkney does not
argue that the trial court misapplied Blockburger or otherwise disregarded controlling law
for its determination of this issue. Absent such an error, Pinkney is not entitled to federal
habeas relief on this claim.
8.

Verdict Form

Pinkney asserts that his counsel was ineffective for failing to object to the verdict
forms because those forms did not ask the jury to determine the amount Pinkney stole
from the victims. Pinkney contends that this failure precluded the jury from finding him
guilty of the lesser included offense of theft.

Pinkney’s counsel explained that he

purposely did not ask for any interrogatories regarding lesser included offenses because
his strategy was that Pinkney was misidentified as the bank robber, not that he was only
guilty of theft rather than strong-arm robbery. (Id. at 272 (Docket No. 7-13 at 13)
(quoting Hr’g Tr. at 71-72).)

Pinkney’s counsel testified that because the defense

focused on identification, including a lesser-included-offense interrogatory on the verdict
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form would have confused the jurors and detracted from the defense. (Id.) The trial
court determined that counsel’s failure to object to the verdict forms was thus sound trial
strategy, and Pinkney has offered no argument that this determination was unreasonable.
This claim is without merit.
9.

Impeachment and Rehabilitation of Witness

Pinkney argues that the State improperly impeached and then rehabilitated witness
Cassie Wiese, one of the teller-victims in the case. According to Pinkney, the State’s
impeachment of Ms. Wiese deprived his counsel of the opportunity to impeach her. But
the impeachment of a party’s own witness is not improper under Florida law. Fla. Stat.
§ 90.608. Moreover, even if it was improper, the State did not impeach Ms. Wiese in any
way during her testimony.

Rather, Pinkney’s counsel impeached her during cross-

examination, noting that although she stated that she was 85% certain of her
identification of Pinkney, at the time of the photo lineup itself she stated that she could
not positively identify Pinkney. (App’x Ex. G at 275 (Docket No. 7-13 at 16) (citing
Trial Tr. at 148-49).) Thus, the record directly refutes Pinkney’s claim that his counsel
was prevented from impeaching Ms. Wiese, and this claim fails.
10.

Cumulative Effect

Finally, Pinkney argues that the cumulative effect of all of the alleged errors
constituted ineffective assistance that casts doubt on the verdict. But Pinkney has failed
to establish any error on the part of his counsel, and thus there are no errors to have a
cumulative effect. This ground is without merit.

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B.

Evidentiary Hearing
AEDPA provides that a habeas petitioner is entitled to a hearing only if he can

show that his claim “relies on a new rule of constitutional law . . . or a factual predicate
that could not have been previously discovered through the exercise of due diligence”
and that “the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder would have
found the [petitioner] guilty . . . .” Id. § 2254(e)(2).
Because the facts here are not such that a reasonable factfinder would not have
convicted Pinkney, an evidentiary hearing is not warranted.
C.

Certificate of Appealability
Pinkney 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).

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Pinkney 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 Pinkney’s claims.
CONCLUSION
Pinkney is not entitled to federal habeas relief on his claims. Accordingly, IT IS
HEREBY ORDERED that:
1.

The Petition for 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 11, 2017

s/Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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