Flowers v. Secretary, Department of Corrections et al
Filing
22
ORDER denying the Petition 1 and dismissing case with prejudice; directions to the Clerk. Signed by Judge Thomas P. Barber on 9/13/2021. (JND)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
DEMETRIUS FLOWERS,
Petitioner,
v.
Case No: 5:18-cv-315-TPB-PRL
SECRETARY, DEPARTMENT OF
CORRECTIONS and FLORIDA
ATTORNEY GENERAL,
Respondents.
___________________________________/
ORDER DENYING THE PETITION AND
DISMISSING CASE WITH PREJUDICE
I.
Status
Petitioner, Demetrius Flowers, an inmate of the Florida penal system,
initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (Doc. 1). Respondents filed a Response
(Doc. 13).1 The Court provided Petitioner with an opportunity to reply (Doc. 17), but
he did not do so. This case is ripe for review.
II.
Procedural History
A jury found Petitioner guilty of principal to robbery with a firearm (count
four) and principal to kidnapping (count five) (Resp. Ex. D). The trial court
sentenced Petitioner to concurrent forty-year terms of incarceration as to each count
followed by a twenty-year term of probation (Resp. Ex. I). Petitioner, with help from
1
Attached to the Response are several exhibits. The Court cites the exhibits as “Resp. Ex.”
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appellate counsel, sought a direct appeal (Resp. Ex. K), in which he argued four
claims of trial court error. The Fifth District Court of Appeal per curiam affirmed
Petitioner’s judgment and convictions without a written opinion (Resp. Ex. N).
Petitioner then filed with the trial court a pro se Florida Rule of Criminal
Procedure 3.850 motion for postconviction relief (Resp. Ex. Y), raising four claims
for relief. The trial court summarily denied the Rule 3.850 motion (Resp. Ex. BB).
Petitioner appealed and the Fifth DCA per curiam affirmed the summary denial
without a written opinion (Resp. Ex. FF). Petitioner later filed the Petition (Doc. 1)
raising eight grounds for relief.
III.
Governing Legal Principles
A. Standard of Review 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). “‘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, 562 U.S. 86, 100
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(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” and
“presume that the unexplained decision adopted the same reasoning.” 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 statecourt 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 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
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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
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 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.”).
A state prisoner’s failure to properly exhaust available state remedies leads
to 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
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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 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,[2] 111 S. Ct. 2546;
Sykes,[3] 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, 131
S. Ct. 1120, 1127-1128, (2011); Beard v. Kindler, 130 S. Ct.
612, 617-618 (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, 111
S. Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be excused
under certain circumstances. Even though 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).
C. Ineffective Assistance of 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.”
2
Coleman v. Thompson, 501 U.S. 722 (1991).
3
Wainwright v. Sykes, 433 U.S. 72 (1977).
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Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (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.
Further, “[t]he 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 of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013); Rutherford v.
Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).
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IV.
Analysis
A. Ground One
Petitioner argues that the trial court erred in instructing the jury that it
could find Petitioner guilty of robbery while carrying a firearm if it found that
Petitioner’s co-defendant and accomplice merely possessed a firearm during the
robbery, and that Petitioner was a principal to that crime (Doc. 1 at 4). According to
Petitioner, the principal theory was not charged in the information (id.), and this
erroneous instruction violated his rights under the Sixth and Fourteenth
Amendments of the United States Constitution (id. at 4). Petitioner raised a similar
claim on direct appeal (Resp. Ex. K). The state filed an answer brief addressing the
claim on the merits (Resp. Ex. L at 7-10), and the Fifth DCA per curiam affirmed
Petitioner’s judgment and conviction without a written opinion (Resp. Ex. N).
Respondents contend that Petitioner failed to fairly present the federal
nature of this claim in state court, and thus it is unexhausted and procedurally
barred (Resp. at 13). This Court agrees. When briefing this issue on direct appeal,
Petitioner did not state or suggest that it was a federal claim about due process or
any other federal constitutional guarantee (Resp. Ex. K at 14-15). Instead,
Petitioner argued, in terms of state law only, that the trial court’s instruction on the
principal theory was analogous to the instruction the Second District Court of
Appeal found erroneous in Deleon v. State, 66 So. 3d 391 (Fla. 2d DCA 2011) (id. at
14). According to Petitioner, the subject “instruction allowed the jury to convict
[Petitioner] as [a] principal to one crime if it found his accomplice guilty of another,
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uncharged act” (id. at 15 (citing Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013);
Phillips v. State, 100 So. 3d 249 (Fla. 4th DCA 2012); Sabree v. State, 978 So. 2d 840
(Fla. 4th DCA 2008)). Petitioner failed to articulate and fairly present a federal
constitutional claim in state court. Thus, Ground One is unexhausted and
procedurally defaulted, and Petitioner has failed to show cause for or prejudice from
this procedural bar. He has also failed to show a fundamental miscarriage of justice.
In any event, assuming the federal nature of this claim was exhausted, it is
still without merit. “Unlike state appellate courts, federal courts on habeas review
are constrained to determine only whether the challenged instruction, viewed in the
context of both the entire charge and the trial record, ‘so infected the entire trial
that the resulting conviction violate[d] due process.’” Jamerson v. Sec’y for Dep’t of
Corr., 410 F.3d 682, 688 (11th Cir. 2005). “If there is no basis in the record for the
instruction given, such error may raise a ‘substantial and ineradicable doubt as to
whether the jury was properly guided in its deliberations,’ and reversal may be
required.” Pesaplastic, C.A. v. Cincinnati Milacron Co., 750 F.2d 1516, 1525 (11th
Cir. 1985) (quoting McElroy v. Firestone Tire & Rubber Co., 894 F.2d 1504, 1509
(11th Cir. 1990)).
Under the principal theory, a defendant is treated as if he committed the acts
done by the other person. See Fla. Std. Jury Instr. 3.5(a). “[P]osession of a firearm
by a codefendant is sufficient to convict a defendant of armed robbery, pursuant to
the principal theory.” Freeny v. State, 621 So. 2d 505, 506 (Fla. 5th DCA 1993).
Here, Petitioner and co-defendant Charles Bess were charged in the same
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Information (Resp. Ex. A). Count one of the Information alleged that Bess “actually
carried and possessed a ‘firearm’” while committing the robbery (id. at 5). Before
trial, Bess pled guilty to count one. Count four of the Information charged Petitioner
with principal to robbery with a firearm, alleging that Petitioner carried a firearm,
which was “in the possession of Charles Bess” (id. at 6). The trial court instructed
the jury that if it found that Petitioner carried a firearm while committing the
robbery, it should find him guilty of robbery with a firearm (Resp. Ex. C at 480).
Alternatively, the trial court instructed that if the jury found that the firearm was
in codefendant Bess’ possession and Petitioner acted as a principal to the
commission of the robbery, the jury should find Petitioner guilty of robbery with a
firearm (id. at 480-81). The trial court did not instruct the jury on an uncharged
crime.
Further, the state presented sufficient evidence to support a guilty verdict for
the armed robbery charge. The victim testified that he knew Petitioner and Bess
who were initially at the victim’s home to play video games (Resp. Ex. C at 135-37).
Bess hit the victim with a firearm and Petitioner then hit the victim with a hard,
metal object, which the victim believed was the same firearm (id. at 137). Petitioner
covered the victim with a blanket and ordered him to go into the bedroom. Bess
then tied up the victim, and Bess and Petitioner stole the victim’s personal
belongings (id. at 142-45). Petitioner’s fingerprints were later found on the victim’s
recovered television set. Ground One is denied.
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B. Ground Two
Petitioner appears to argue that the trial court erred in denying Petitioner’s
motion for judgment of acquittal as to the kidnapping charge because the evidence
failed to satisfy the first prong of the test in Faison v. State, 426 So. 2d 963 (Fla.
1983) (Doc. 1 at 8). Petitioner contends that “the victim’s hands were left unbound,
he could and soon did remove the fetters from his ankles after the crime ended”; and
thus the evidence showed that “the movement and the confinement which occurred
during the robbery was slight, inconsequential, and incidental to the crime” (id. at
7-8). According to Petitioner, this error violated his rights under Sixth and
Fourteenth Amendments (id.).
Petitioner raised a similar claim on direct appeal (Resp. Ex. K at 16-18). The
state addressed the claim on the merits (Resp. Ex. L at 10-13), and the Fifth DCA
per curiam affirmed Petitioner’s judgment and convictions without a written
opinion (Resp. Ex. N). Respondents again argue, and this Court agrees, that
because Petitioner did not present the federal nature of this claim to the state
appellate court, it is unexhausted and procedurally barred (id.). Petitioner has
failed to show cause for or prejudice from this procedural bar. He has also failed to
show a fundamental miscarriage of justice.
In any event, assuming the federal nature of this claim was exhausted, it is
without merit. 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
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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. To prove kidnapping, the state had to establish that Petitioner
“forcibly, secretly, or by threat” confined, abducted, or imprisoned the victim against
his will “and without lawful authority, with intent to . . . commit or facilitate the
commission of any felony.” § 787.01(1)(a), Fla. Stat. “[T]o be kidnapping, the
resulting movement or confinement: (a) must not be slight, inconsequential and
merely incidental to the other crime.” Faison, 426 So. 2d at 965; see also Berry v.
State, 668 So. 2d 967, 969 (Fla. 1996) (“We construe this prong to mean that there
can be no kidnapping where the only confinement involved is the sort that, though
not necessary to the underlying felony, is likely to naturally accompany it.”).
At trial, the victim testified that Bess hit him with a firearm and Petitioner
then instructed the victim to crawl into the other room before putting a blanket over
the victim’s head. Petitioner then instructed Bess to tie up the victim, so Bess
bound the victim’s feet with electrical tape. After Petitioner and Bess left, the victim
waited several minutes, then hopped to a nearby window to confirm if the
assailants were gone. Once confirmed, the victim untied his feet and ran to a
neighbor’s home. This evidence established that the victim was confined by force,
threat, and against his will. The confinement made it easier for Petitioner to
commit the robbery and the confinement did not end until the robbery was
complete. This evidence supports a finding of guilt. Ground Two is denied.
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C. Ground Three
Petitioner contends that his Sixth and Fourteenth Amendment rights were
violated when the trial court instructed the jury that it could find Petitioner guilty
of robbery with a firearm if it found that Bess possessed a firearm, even if Petitioner
lacked knowledge of or intent that Bess possess a firearm (Doc. 1 at 10-12).
According to Petitioner, this instruction disregarded the plain language of sections
777.011 and 812.13(2)(A), Florida Statutes, and was used in contravention of
Florida Rule of Criminal Procedure 3.985 (id.). Petitioner also asserts that “this
error foreclosed any opportunity for the jury to find [Petitioner] guilty of simple
robbery even where he lacked the requisite intent to be a principal to the carrying of
a firearm” (id.).
Petitioner raised this claim on direct appeal (Resp. Ex. K at 19-23). The state
filed an answer brief (Resp. Ex. L at 13-17), arguing it was not required to prove
under Florida law that Petitioner knew that Bess carried a firearm and that the
trial court’s instructions were proper. The Fifth DCA affirmed Petitioner’s judgment
and convictions without a written opinion (Resp. Ex. N).
Respondents contend that this claim is not cognizable on federal habeas review
because it is an issue of state law (Resp. at 21). First, if Petitioner urges that the state
court erred under Florida law when it instructed on the standard and special
instructions for robbery with a firearm under the principal theory, this assertion is
not cognizable on federal habeas review. The Eleventh Circuit has explained:
Federal habeas relief is unavailable “for errors of state
law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting
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Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). A jury
instruction that “was allegedly incorrect under state law is
not a basis for habeas relief,” id. at 71-72, because federal
habeas review “is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United
States.” Id. at 68. Unlike state appellate courts, federal
courts on habeas review are constrained to determine only
whether the challenged instruction, viewed in the context
of both the entire charge and the trial record, “‘so infected
the entire trial that the resulting conviction violate[d] due
process.’” Id. at 72 (quoting Cupp v. Naughten, 414 U.S.
141, 147 (1973)).
Jamerson,410 F.3d at 688 (quoting Estelle, 502 U.S. at 72). The Court notes that in
his initial brief on direct appeal, Petitioner urged the state appellate court to extend
the reasoning in Rosemond v. United States, 134 S. Ct. 1240 (2014), to his case
(Resp. Ex. K at 22). However, Rosemond is distinguishable from Petitioner’s state
case, and merely citing a federal case does not take this claim outside the state law
issue on which it rests.
In Rosemond, the Supreme Court “consider[ed] what the Government must
show when it accuses a defendant of aiding or abetting” a violation of 18 U.S.C. §
924(c), which “prohibits ‘us[ing] or carr[ying]’ a firearm ‘during and in relation to
any crime of violence or drug trafficking crime.’” Rosemond, 134 S. Ct. at 1243
(quoting 18 U.S.C. § 924(c)). The Court held that the jury instruction on aiding and
abetting that the district court gave was inadequate “because it did not explain that
[the defendant] needed advance knowledge of a firearm’s presence” to be found
guilty and therefore made it possible that the jury had convicted without the
defendant having the requisite advance knowledge. Id. at 1251-52. However, the
Supreme Court’s ruling in Rosemond on the adequacy of a § 924(c) jury instruction
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is inapplicable to petitioner’s state conviction for principal to a robbery with a
firearm. Notably, as the state explained in its answer brief on direct appeal,
“‘nothing in Rosemond suggests that it’s holding rests on any constitutional
requirement or has any application to state criminal laws on accomplice liability.’”
Resp. Ex. L at 17 (quoting State v. Ward, No. WD 77681, 2015 WL 6918618, at *5
(Mo. Ct. App. Nov. 10, 2015)). See also Hicks v. State, 759 S.E. 2d 509, 514 n.3 (Ga.
2014), cert. denied, 135 S. Ct. 1436 (2015) (explaining that Rosemond “arose under
federal law and thus does not control here”). As such, this claim is not cognizable on
federal habeas review, and the Court must defer to the state court’s adjudication of
state law issues. Ground Three is denied.
D. Ground Four
Petitioner contends that the trial court violated his rights under the Sixth
and Fourteenth Amendments when it considered Petitioner’s lack of remorse in
sentencing him (Doc. 1 at 12-13). Petitioner raised this claim on direct appeal (Resp.
Ex. K at 24-25). The state filed an answer brief addressing the claim on the merits
and arguing that the trial court considered appropriate factors when imposing a
lawful sentence (Resp. Ex. L at 18-22) The Fifth DCA per curiam affirmed
Petitioner’s judgment and convictions without a written opinion (Resp. Ex. N).
Again, Petitioner does not allege a federal constitutional violation, and thus
this claim is not cognizable in a federal habeas proceeding. See Hart v. Sec’y, Dep’t
of Corr., 8:16-cv-770-T-36AAS, 2019 WL 367647, at *2 (M.D. Fla. Jan. 30, 2019)
(finding claim that trial court improperly considered the petitioner’s “lack of
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remorse” during state court sentencing not cognizable in § 2254 habeas proceeding).
Further, liberally construing this claim as one involving federal due process, it is
barred from the Court’s review because Petitioner failed to exhaust the federal
nature of the claim with the state appellate court. Instead, on direct appeal,
Petitioner argued in terms of state law only, that the trial court’s alleged
consideration of Petitioner’s lack of remorse was analogous to that found to be
erroneous in Dumas v. State, 134 So. 3d 1048 (Fla. 1st DCA 2013) (Resp. Ex. K at
24-25). Petitioner failed to articulate and fairly present a federal constitutional
claim in state court. Thus, Ground Four is unexhausted and procedurally defaulted,
and Petitioner has failed to show cause for or prejudice from this procedural bar. He
has also failed to show a fundamental miscarriage of justice. Ground Four is denied.
E. Ground Five
Petitioner asserts that his trial counsel was ineffective for failing to challenge
the lack of evidence showing that Petitioner or Bess used a firearm during the
commission of the offense (Doc. 1 at 15-16). According to Petitioner, if trial counsel
made such an argument, there is a reasonable probability that the state would have
“been compelled to either drop the charge or settle for a conviction for a lesser
included offense” (id. at 16).
Petitioner raised this claim in his Rule 3.850 motion (Resp. Ex. Y at 2-4). The
trial court summarily denied the claim:
In the Defendant’s first ground, he alleges his trial counsel
was ineffective for failing to argue that a firearm was never
used by the co-defendant in this case. Specifically, the
Defendant alleges the victim testified at trial he was
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uncertain what the co-defendant hit him with, so his trial
counsel should have argued that no proof existed that a
firearm was used. The Defendant also alleges the codefendant testified that he did not have a firearm and was
not guilty, but entered a plea to robbery with a firearm to
avoid a life sentence. The Defendant further alleges that
had trial counsel argued no proof existed of the use of a
firearm, the result of the trial would have been different.
At trial, the victim testified as follows:
Q Now, I want to now move ahead to the night
of the beating and robbery.
What was going on shortly before that?
A It was just normally how it would usually
be. Demetrius came over, and we started just
playing 2K like we had talked about earlier.
We had talked about what teams we were
going to play that day, me and him, you know,
beat.
So I was ready for him to come over. And he
came over probably 8:50, just right at the end
of the TV show I was watching. So he came
over. We played for about – started up the
game, about 15 minutes into it, that’s when
Mr. Bess came over. He knocked on the door.
Q Did you open the door?
A Yeah. I looked in the – you know, I always
keep my door locked. But I looked in the
peephole, and it was Bess; and I was, you
know, expecting him to come over. He had
been over every other time. So I opened up the
– you know, I unlocked the door; opened it up.
And when he walked in, I, you know,
proceeded to close the door and, you know,
lock the door just like usual.
Q Did something happen at that moment?
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A Yeah. Right whenever I turned around,
Bess was coming at me with just something,
you know, real quick, you know; his fist was
holding something, coming at me. And I’m
about eight inches taller than him. So I was
up well above him. And I saw something
coming at my face. So I just, you know, ducked
in my head just to take the blow to the top of
my head because I didn’t want to get hit in the
face. And he hit me with something really
hard, and it hurt. So I, you know, ducked. And
I kind of, you know, it didn’t knock me down
me down initially.
So I looked back up, and I was like he hit me
with something; and I saw he had a gun in his
hand. It wasn’t pointing it at me, he was just
holding it – after he hit me, he was holding it
to the side, telling me to get on the ground. So
I saw he had a gun in his hand holding it, you
know, like he, you know, was ready to shoot
me.
So then I immediately fell to the ground and
just put my hands over my face just to not get
hit in the face.
Q And go ahead and describe to the jury the
gun that you saw in Mr. Bess’ hand.
A It – let me see. It looked like just a regular
pistol, just a black pistol, barrel, I mean,
probably like five or six inches. And then at
the end there was a like a – what I thought
was a silencer because it was even longer than
just a regular pistol you would see, it was kind
of – like actually three inches on top of the
gun. So I, you know, was really worried
because it had a silencer on the gun; and I had
never seen that, you know, never seen a gun
let alone a silencer.
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So I, you know, immediately just covered my
face. And that’s all I did see of the gun. But he
was holding – it like he was – you know, would
shoot me. So I just covered my face because I
– I didn’t want to get beat more, so I was going
to cover my face.
The victim specifically clarified on cross-examination that
he saw the gun for a few seconds, and that what he saw
was definitely a gun.
In addition, the Defendant’s trial counsel argued during his
closing argument that (1) the victim’s testimony that he
saw a gun did not comport with the other evidence
presented at trial, specifically the testimony of the codefendant, (2) the victim’s testimony is not enough proof
that a gun was actually used, and (3) the victim was
actually struck with a cell phone rather than a gun. The
record is thus clear that the Defendant’s trial counsel did,
in fact, argue that a gun was never used by the codefendant in the instant case. The Defendant’s claim is
therefore refuted by the record. Moreover, the victim’s
testimony at trial was direct evidence that a gun was used
during the commission of the crimes. Trial counsel
therefore was not ineffective for failing to prevail in the
argument alleged by the Defendant. See Teffeteller v.
Dugger, 734 So. 2d 1009, 1020 (Fla. 1999). The Defendant’s
first ground is without merit.
Resp. Ex. BB at 2-4 (record citations omitted). Petitioner appealed, and the Fifth
DCA per curiam affirmed the trial court’s denial without a written opinion (Resp.
Ex. FF).
The Court addresses the claim in accordance with the deferential standard
for federal court review of state court adjudications. In doing so, the Court notes
that the trial court adequately summarized the evidence adduced at trial and trial
counsel’s attempts to discredit the victim’s testimony. Upon thorough review of the
record and the applicable law, the Court finds that the state court’s decision to deny
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Petitioner’s claim is neither contrary to nor an unreasonable application of
Strickland, and it is not based on an unreasonable determination of the facts given
the evidence presented to the state court. Ground Five is denied.
F. Ground Six
Petitioner contends that his trial counsel was ineffective for failing to “object
to the lack of evidence” (Doc. 1 at 16-17). According to Petitioner, the evidence could
not support his conviction for kidnapping (id. at 17). Instead, he asserts that the
evidence presented only supported the lesser included offense of false imprisonment
and thus counsel should have challenged Petitioner’s kidnapping conviction.
Petitioner raised this claim in his Rule 3.850 motion (Resp. Ex. Y at 4-6). The
trial court denied the claim, finding the following:
The Defendant alleges the evidence presented at
trial did not support a guilty verdict for kidnapping,
specifically because “(l) victim was only moved from the
front door to the couch where Flowers (defendant) was
located; the movement of the victim remained slight; (2)
was inconsequential and inherent in the nature of robbery;
and, (3) victim was able to report the crime to law
enforcement as soon as the crime ended.” Thus, the
Defendant alleges but for trial counsel’s failure to object to
the lack of evidence, the Defendant would not have been
found guilty of kidnapping.
The record shows that at the conclusion of the
State’s case-in-chief, the Defendant’s trial counsel made a
motion for judgment of acquittal on the following grounds:
MR. BISHOP: Judge, at this time the Defense
would make a motion for a judgment of
acquittal. And I’ll start with – well, let me just
say the Defense is alleging the State has
failed to make a prima facie case as to – and
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that’s looking at the, evidence in a light most
favorable to the State.
As to the robbery, my argument is there’s –
the State has not presented competent
substantial evidence to support a conviction
for armed robbery with a firearm. The only
evidence of any firearm being used is the
testimony of Joshua Campbell.
THE COURT: Yeah, the victim.
MR. BISHOP: The victim. He said that he saw
a gun. But his testimony was, you know, he
saw this in a period of less than ten seconds.
There’s no other evidence. As a matter of fact,
the co-defendant, Mr. Bess testified there was
no gun. In fact he hit – hit –
THE COURT: I concur about it, I think it’s a
jury question.
MR. BISHOP: – the victim on the head.
THE COURT: He said there was. The other
said there wasn’t. It’s up to the jury to
determine whether or not there was.
MR. BISHOP: Well, I understand it’s a
question of fact.
THE COURT: And he did –
MR. BISHOP: I’m just arguing –
THE COURT: – he –
MR. BISHOP: – I’m just arguing that –
THE COURT: – yeah, he was – Bess pled
guilty to a charge involving a firearm.
MR. BISHOP: Right. Not withstanding [sic]
the fact that he claims there was no firearm.
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THE COURT: I understand. I understand.
Best interest plea.
MR. BISHOP: So I would ask you to knock the
armed robbery with a firearm down to a
robbery.
THE COURT: Your motion is noted and
denied.
MR. BISHOP: Okay. As to the kidnapping
count, Mr. McCourt has provided some case
law. I don’t know – did you give it to the
Judge?
MR. MCCOURT: No, sir.
MR. BISHOP: He gave me the case of
Germaine Berry vs. State. I just wanted to
make reference to that because it has the
standard from the – from the Supreme Court
of Florida in 1996. This deals with the
standard for kidnapping. And basically in the
top, in the headnote, the Supreme Court,
Justice Grimes held that one, confinement of
the victim was not slight and inconsequential
and merely incidental in the case they were
deciding.
THB COURT: Yeah.
MR. BISHOP: My argument would be in this
case the evidence that Mr. Campbell’s feet
were alleged to have been tied up with
electrical tape after, you know – and I
understand that the State will probably argue
the robbery was still ongoing at the time but
they had already hid –
THE COURT: That’s true but they did cover
him up with a blanket.
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MR. BISHOP: Well, they put it up – the
allegation is a blanket was put over his head.
THE COURT: Right. And they moved him
into a room.
MR. BISHOP: Well, I think the victim
testified he crawled –
THE COURT: Right.
MR. BISHOP: – into the room.
THE COURT: But they were – I think it was
at their, you know, orders.
MR. BISHOP: So I’m focusing on the
confinement of his feet being tied together
and not his hands. Obviously he got out of the
tape very –
THE COURT: Yeah. I understand. And I
think it’s sufficient at this time to, you know,
proceed.
MR. BISHOP: There were a couple of other
elements in the case that – if you’re
interested? But that’s my argument –
THE COURT: Okay.
MR. BISHOP: – for the kidnapping. I don’t
think the State has made a prima facie case –
THE COURT: Well –
MR. BISHOP: – with competent substantial
evidence to support a kidnapping charge. So I
would ask Your Honor to –
THE COURT: I understand, I, you know, I’m
not the trier of fact but I’m going to deny the
motion.
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Trial counsel also renewed his motion for judgment of
acquittal and filed a timely motion for new trial. Both
motions pertained to the argument that the evidence
produced at trial supporting charged kidnapping was
insufficient. It is unclear what more the Defendant’s trial
counsel could have done to present the argument the
Defendant now alleges he failed to raise.
Furthermore, the Defendant’s argument that the evidence
presented at trial did not support a guilty verdict for
kidnapping is itself without merit. The Florida Supreme
Court in Faison v. State adopted the following test for
kidnapping under Fla. Stat. 787.0l(l)(a)(2):
[I]f a taking or confinement is alleged to have
been done to facilitate the commission of
another crime, to be kidnapping the resulting
movement or confinement:
(a) Must not be slight, inconsequential and
merely incidental to the other crime;
(b) Must not be of the kind inherent in the
nature of the other crime; and
(c) Must have some significance independent
of the other crime in that it makes the other
crime substantially easier of commission or
substantially lessens the risk of detection.
Faison v. Slate, 426 So. 2d 963, 965 (Fla. 1983) (quoting
State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976)). At
trial, the victim provided a detailed account of [the] day of
the robbery and kidnapping. In particular, the victim
testified as follows:
. . . So Flowers is standing up, he’s saying to
Bess, just go ahead and tie him up. And he
tells me then to put my hands behind my
back. So I put my hands behind my back. And
that’s when Bess starts tying up my feet. And
they didn’t tie my hands for some reason, they
might have been in a rush; but Bess tied up
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my feet, you know, pretty tight; it was, you
know, hurt my ankles.
Q What did he tie them up with?
A It was I guess electrical tape. I didn’t have
any in my house, but it must have been
something that they brought, but it was
electrical tape. When I took it off, that’s what
it seemed like it was, electrical tape. And they
had tied it on pretty tight, so my ankles were
hurting. They didn’t tie up my hands, they
told me just keep my hands behind my back.
And when they did that, you know, they were
about to leave –
...
Q So after you’re tied – they begin to leave
after you’re taped up?
A Yes. Bess and Flowers both begin to leave
once I’m tied up.
Q Now, let me ask you about – you said that
the tape was pretty tight on your legs.
A Uh-huh.
Q Was it such that you would be able to get
up and walk or step out of it?
A No. No way. It was actually like hurting my
ankles.
Q Well, did it restrict your movement at all?
A Yeah. Once they did leave and, you know,
they – Mr. Bess and Flowers were, you know
– I could hear the, you know, the car being
loaded and the car door being opened, the
front door being opened. So that’s when the
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stuff was being loaded, I mean, you know, into
my car.
And after about a minute of that, then I hear
them shut the door. And I don’t hear any more
noise. I hear the car door shut. And I’m just,
you know, waiting to kind of hear, you know,
what, you know, what’s happening and are
they leaving.
And I hear my car, they try to start my car;
and it has like a ten second key alarm in it
where if you don’t – you have to unlock the car
door. If you don’t start the car within ten
seconds, you’re going to get a loud siren noise
when you try to start the car.
So I heard the loud siren noise. And I was, you
know, pretty scared at that point because
they’re going to be pissed off, the loud siren
just went off. And they’re going to come back
in really mad at me. And they tried it again
like five seconds later, and it makes the noise
again.
So I’m, you know, just waiting for them to run
through the door and then I say there’s an
alarm on the car, you going to have to put it –
I’m just waiting for them to open the door so I
can yell it real quick.
And maybe about ten seconds later I hear
them – I hear beep, beep. So I’m like, you
know, thank God they figured out that needs
to be – there needs to be the, you know, put it
in the car alarm with a key.
So they do that. And then I hear the car start
up. I don’t hear it drive off. I just, you know,
they must have gone real slow. I thought
they’d be, you know, going real fast. I didn’t
hear it drive off.
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So I’m waiting just for a, you know, couple
minutes there. Once I haven’t heard anything
for a couple minutes, I kind of like hop over
like on my knees and, you know, hands over
to the window. And I see they’re gone. That’s
when I take the tape off and just, you know,
throw it down. And as I’m walking out, I can
see myself in the mirror, I stop real quick for
a minute, you know – not a minute, like a
couple seconds, just to look. Everything is – I
look okay, you know, covered in blood but I’m
going to survive.
The instant case is very similar in facts to that of Berry v.
State, 668 So. 2d 967 (Fla. 1996). In Berry, the Florida
Supreme Court held that the act of tying up a victim during
the course of a robbery and leaving the victim tied up after
the robbery was completed was not a slight,
inconsequential, or incidental confinement under Faison.
Id. at 969. The Court also held that tying up the victims in
Berry was not a necessary act to complete the robbery, and
the only logical reason for it was to aid in making a clean
getaway. Id. at 969-70. The Court concluded that the
confinement in Berry met the Faison test. Id. at 970.
In the instant case, it is clear the confinement of the victim
was not slight, inconsequential, or incidental to the
robbery, nor was the confinement necessary to complete
the robbery. As in Berry, the victim was left bound after the
Defendant and the co-defendant left the victim’s house, and
the robbery had been committed independent of the victim
being tied up. It is also clear that the purpose of tying up
the victim was to aid in the getaway. That the victim was
able to free himself relatively quickly does not diminish
this fact. See Ferguson v. State, 533 So. 2d 763, 764 (Fla.
1988) (“[T]he determination of whether the confinement
makes the other crime substantially easier of commission
or substantially lessens the risk of detection does not
depend upon the accomplishment of its purpose.”). Thus,
the argument as to the State’s alleged failure to meet
prongs of Faison was meritless. Trial counsel therefore was
not ineffective in this regard. See Teffeteller, 134 So. 2d at
1020. The Defendant’s second ground is without merit.
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Resp. Ex. BB at 4-8 (record citations omitted). Petitioner appealed, and the Fifth
DCA per curiam affirmed the trial court’s denial without a written opinion (Resp.
Ex. FF).
The Court addresses the claim in accordance with the deferential standard
for federal court review of state court adjudications. In doing so, the Court notes
that the trial court adequately summarized the evidence adduced at trial. The
Court also made a reasonable conclusion that any challenge to the kidnapping
charge under the Faison test would have been meritless. Upon thorough review of
the record and the applicable law, the Court finds that the state court’s decision to
deny Petitioner’s claim is neither contrary to nor an unreasonable application of
Strickland, and it is not based on an unreasonable determination of the facts given
the evidence presented to the state court. Ground Six is denied.
G. Ground Seven
Petitioner argues that the cumulative effect of trial counsel’s errors, as
alleged in “the foregoing claims of ineffective assistance of counsel,” deprived him of
his rights under the Fifth, Sixth and Fourteenth Amendments (Doc. 1 at 17-18).
Petitioner raised this claim in his Rule 3.850 motion (Resp. Ex. Y at 7-8). The trial
court summarily denied that claim, finding the following:
The Court finds that each of the Defendant’s claims is
insufficient or unsupported by the evidence and therefore
the Defendant has suffered no cumulative effect that
rendered his representation by trial counsel ineffective. See
Hurst v. State, l8 So. 3d 975, 1015 (Fla. 2009). The
Defendant’s third ground for relief is without merit.
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Resp. Ex. BB at 9-10. Petitioner appealed, and the Fifth DCA per curiam affirmed
the trial court’s denial without a written opinion (Resp. Ex. FF). The Fifth DCA’s
adjudication is entitled to deference.
“The cumulative error doctrine provides that an aggregation of non-reversible
errors (i.e., plain errors failing to necessitate reversal and harmless errors) can yield
a denial of the constitutional right to a fair trial, which calls for reversal.” United
States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (internal quotation marks
omitted). The Eleventh Circuit addresses “claims of cumulative error by first
considering the validity of each claim individually, and then examining any errors
that [it] find[s] in the aggregate and in light of the trial as a whole to determine
whether the appellant was afforded a fundamentally fair trial.” Morris v. Sec’y, Dep’t
of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). Because the Court has determined that
none of Petitioner’s individual claims of error or prejudice have merit, Petitioner’s
cumulative error claim cannot stand. See United States v. Taylor, 417 F.3d 1176, 1182
(11th Cir. 2005) (“[There being] no error in any of the district court’s rulings, the
argument that cumulative trial error requires that this Court reverse [the
defendant’s] convictions is without merit.”). The Court thus finds 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 given the evidence
presented in the state court proceedings. Ground Seven is denied.
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H. Ground Eight
Petitioner contends that the trial court lacked jurisdiction to adjudicate him
guilty and sentence him for the principal to kidnapping charge (Doc. 1 at 18).
Petitioner raised this claim in his Rule 3.850 motion (Resp. Ex. Y at 8-10). The trial
court summarily denied the claim, finding in pertinent part:
In the Defendant’s fourth ground, he alleges this Court
lacked jurisdiction to adjudicate and sentence the
Defendant for kidnapping. The Defendant alleges he was
“never formally arrested, booked, or arraigned on the
charge,” and thus this Court lacked jurisdiction as to that
charge. The Defendant also alleges he never waived
arraignment in the instant case.
The Defendant’s claim is refuted by the record. On August
26, 2014, the State filed an Information in the instant case,
charging the Defendant with principal to robbery with a
firearm (Count IV) and principal to kidnapping (Count V).
Because of the filing of this Information, pursuant to Art.
I, § 15(a) Fla. Const., this Court had jurisdiction. Cf. Sadler
v. State, 949 So. 2d 303, 305 (Fla. 5th DCA 2007) (“A court’s
jurisdiction to try an accused defendant is not invoked and
does not exist unless the State files an information or
indictment.[”]). Moreover, on September 4, 2014, the
Defendant’s trial counsel filed, inter alia, a waiver of
arraignment. The record thus clearly and wholly refutes
the Defendant’s fourth ground.
Resp. Ex. BB at 10 (record citations omitted). Petitioner appealed, and the Fifth
DCA per curiam affirmed the trial court’s denial without a written opinion (Resp.
Ex. FF).
Initially, “[a] state court’s jurisdiction to enter a judgment and sentence a
defendant is a matter of state law that is not cognizable on federal collateral
review.” Estrada v. Sec’y, Dep’t of Corr., No. 8:12-cv-758-T-30EAJ, 2012 WL
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1231990, at *1 (M.D. Fla. Apr. 12, 2012). Still, even if this claim were cognizable,
the Fifth DCA’s adjudication is entitled to deference. In applying such deference,
the Court finds 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 given the evidence presented in the state court
proceedings. Ground Eight is denied.
Accordingly, it is
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED and this case is DISMISSED with
prejudice.
2.
The Clerk of Court shall enter judgment accordingly, terminate any
pending motions, and close this case.
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3.
If Petitioner appeals this Order, the Court denies a certificate of
appealability. Because the 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.4
DONE AND ORDERED at Tampa, Florida, this 13th day of September,
2021.
Jax-7
C:
Demetrius Flowers, #U53741
Counsel of record
The Court should issue a certificate of appealability only if 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.
4
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