Brockbank v. Secretary, Department of Corrections et al
Filing
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OPINION AND ORDER. The Petition for Writ of Habeas Corpus 1 filed by Donald Brockbank is DENIED, and this case is DISMISSED WITH PREJUDICE. Petitioner is DENIED a Certificate of Appealability. The Clerk is directed to enter judgment accordingly and CLOSE this case. Signed by Judge Charlene Edwards Honeywell on 9/17/2012. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DONALD C. BROCKBANK,
Petitioner,
v.
Case No. 6:10-cv-813-Orl-36DAB
SECRETARY, DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.
______________________________________
ORDER
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. section
2254 (Doc. No. 1). Upon consideration of the petition, the Court ordered Respondents to
show cause why the relief sought in the petition should not be granted. Thereafter,
Respondents filed a response to the petition for writ of habeas corpus in compliance with
this Court’s instructions and with the Rules Governing Section 2254 Cases in the United States
District Courts (Doc. No. 10). Petitioner was provided an opportunity to file a reply to the
response but did not do so.
Petitioner alleges five claims for relief in his habeas petition: trial counsel rendered
ineffective assistance by failing (1) to pursue his second motion to suppress evidence, (2) to
challenge the sufficiency of the charging information on the basis that it was not supported
by sworn statements from material witnesses, (3) to move to sever counts one and two, (4)
to challenge the introduction of evidence, and (5) to call Scott Beam and William Aponte as
witnesses. For the following reasons, the petition is denied.
I.
Procedural History
Petitioner was charged by amended information with trafficking ten kilograms or
more of gamma-butyrolactone (“GBL”) and conspiracy to commit trafficking of ten
kilograms or more of gamma-hydroxybutyric (“GHB”). A jury trial was conducted, and
Petitioner was found guilty as charged. The trial court sentenced Petitioner to consecutive
fifteen-year terms of imprisonment for counts one and two. Petitioner appealed, and the
Fifth District Court of Appeal of Florida affirmed per curiam.
Petitioner filed a state petition for writ of habeas corpus. The Fifth District Court of
Appeal of Florida summarily denied the petition.
Petitioner also filed a motion for post-conviction relief pursuant to Florida Rule of
Criminal Procedure 3.850, which raised thirteen claims. The state court summarily denied
eleven of the claims and conducted an evidentiary hearing on two of the claims, whether
counsel rendered ineffective assistance by failing to pursue the second motion to suppress
and by failing to call Scott Beam and William Aponte as witnesses. After the hearing, the
trial court denied the remaining claims. Petitioner appealed, and the Fifth District Court
of Appeal of Florida affirmed per curiam.
Petitioner filed a motion to correct an illegal sentence pursuant to Rule 3.800(a) of the
Florida Rules of Criminal Procedure. The state court denied the motion. Petitioner
appealed, and the Fifth District Court of Appeal of Florida affirmed per curiam.
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II.
Legal Standards
A.
Standard of Review Under the Antiterrorism Effective Death Penalty Act
(“AEDPA”)
Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a
claim adjudicated on the merits in state court 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). The phrase “clearly established Federal law,” encompasses only the
holdings of the United States Supreme Court “as of the time of the relevant state-court
decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
“[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions;
the ‘contrary to’ and ‘unreasonable application’ clauses articulate independent
considerations a federal court must consider.” Maharaj v. Sec’y for Dep’t. of Corr., 432 F.3d
1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh
Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
Under the “contrary to” clause, a federal court may grant the writ if the state
court arrives at a conclusion opposite to that reached by [the United States
Supreme Court] on a question of law or if the state court decides a case
differently than [the United States Supreme Court] has on a set of materially
indistinguishable facts. Under the ‘unreasonable application’ clause, a federal
habeas court may grant the writ if the state court identifies the correct
governing legal principle from [the United States Supreme Court’s] decisions
but unreasonably applies that principle to the facts of the prisoner's case.
Even if the federal court concludes that the state court applied federal law incorrectly,
habeas relief is appropriate only if that application was “objectively unreasonable.” Id.
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Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the
state court’s decision “was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” A determination of a factual issue
made by a state court, however, shall be presumed correct, and the habeas petitioner shall
have the burden of rebutting the presumption of correctness by clear and convincing
evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).
B.
Standard for Ineffective Assistance of Counsel
The Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668
(1984), established a two-part test for determining whether a convicted person is entitled
to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel’s
performance was deficient and “fell below an objective standard of reasonableness”; and
(2) whether the deficient performance prejudiced the defense.1 Id. at 687-88. A court must
adhere to a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id. at 689-90. “Thus, a court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690; Gates v.
Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective
assistance of counsel:
1
In Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), the Supreme Court of the United
States clarified that the prejudice prong of the test does not focus solely on mere outcome
determination; rather, to establish prejudice, a criminal defendant must show that counsel’s
deficient representation rendered the result of the trial fundamentally unfair or unreliable.
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has nothing to do with what the best lawyers would have done. Nor is the
test even what most good lawyers would have done. We ask only whether
some reasonable lawyer at the trial could have acted, in the circumstances, as
defense counsel acted at trial. Courts also should at the start presume
effectiveness and should always avoid second guessing with the benefit of
hindsight. Strickland encourages reviewing courts to allow lawyers broad
discretion to represent their clients by pursuing their own strategy. We are
not interested in grading lawyers’ performances; we are interested in whether
the adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those
rules and presumptions, “the cases in which habeas petitioners can properly prevail on the
ground of ineffective assistance of counsel are few and far between.” Rogers v. Zant, 13 F.3d
384, 386 (11th Cir. 1994).
III.
Analysis
A.
Claims One, Four, and Five
In claim one, Petitioner asserts that trial counsel rendered ineffective assistance by
failing to pursue and obtain a ruling on his second motion to suppress evidence discovered
in a storage facility. (Doc. No. 1 at 14.) In claim four, Petitioner maintains that counsel
rendered ineffective assistance by failing to challenge the admission of GBL into evidence.
Id. at 19. In claim five, Petitioner alleges that counsel rendered ineffective assistance by
failing to call Scott Beam (“Beam”)2 and William Aponte (“Aponte”)3 as witnesses.
2
Beam was the confidential source relied upon by Jeff Harmon (“Harmon”), the law
enforcement agent who requested the search warrant for the storage facility where the GBL
and other items were stored, in seeking the search warrant. Harmon attested that Beam
stated that he saw twelve gallon jugs of liquid which Petitioner said were GHB in the
storage facility. According to Petitioner, however, Beam subsequently stated in his
deposition that he did not see any GBL at the storage facility. (Doc. No. 1 at 19.)
3
Aponte is an inmate who attested that Andies Laroux, Petitioner’s co-defendant,
told him that he intended to provide false testimony to obtain a reduction of his sentence.
5
Respondents assert that these claims are procedurally barred from review by this Court as
they were not exhausted in the state court.
One procedural requirement set forth in the AEDPA precludes federal courts, absent
exceptional circumstances, from granting habeas relief unless the petitioner has exhausted
all means of available relief under state law. 28 U.S.C. § 2254(b); O’Sullivan v. Boerckel, 526
U.S. 838, 842-43 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971). Specifically, the AEDPA
provides, in pertinent part:
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 unless it
appears that–
(A)
the applicant has exhausted the remedies available in the courts
of the State; or
(B)
(i)
there is an absence of available State corrective process;
or
(ii)
circumstances exist that render such process ineffective
to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1).
Thus, a federal court must dismiss those claims or portions of claims that have been
denied on adequate and independent procedural grounds under state law. Coleman v.
Thompson, 501 U.S. 722, 750 (1991). In addition, a federal habeas court is precluded from
considering claims that are not exhausted but would clearly be barred if returned to state
court. Id. at 735 n.1 (stating that if the petitioner failed to exhaust state remedies and the
court to which the petitioner would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally barred, there is a
procedural default for federal habeas purposes regardless of the decision of the last state
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court to which the petitioner actually presented his claims).
In order to satisfy the exhaustion requirement, a state petitioner must “fairly
presen[t] federal claims to the state courts in order to give the State the opportunity to pass
upon and correct alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513
U.S. 364, 365 (1995) (citing Picard, 404 U.S. at 275-76) (internal quotation marks omitted).
The Supreme Court of the United States has observed that “Congress surely meant that
exhaustion be serious and meaningful.” Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992).
Furthermore, the Court explained:
[c]omity concerns dictate that the requirement of exhaustion is not satisfied
by the mere statement of a federal claim in state court. Just as the State must
afford the petitioner a full and fair hearing on his federal claim, so must the
petitioner afford the State a full and fair opportunity to address and resolve
the claims on the merits.
Id.; see also Henderson v. Campbell, 353 F.3d 880, 898 n.25 (11th Cir. 2003) (“Both the legal
theory and the facts on which the federal claim rests must be substantially the same for it
to be the substantial equivalent of the properly exhausted claim.”).
Procedural default will be excused only in two narrow circumstances. First, a
petitioner may obtain federal review of a procedurally defaulted claim if he can show both
“cause” for the default and actual “prejudice” resulting from the default. “To establish
‘cause’ for procedural default, a petitioner must demonstrate that some objective factor
external to the defense impeded the effort to raise the claim properly in the state court.”
Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To establish “prejudice,” a petitioner
must show that there is at least a reasonable probability that the result of the proceeding
would have been different. Henderson, 353 F.3d at 892 (citations omitted).
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The second exception, known as the “fundamental miscarriage of justice,” only
occurs in an extraordinary case, in which a “constitutional violation has probably resulted
in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496
(1986). Actual innocence means factual innocence, not legal insufficiency. Bousley v. United
States, 523 U.S. 614, 623 (1998). To meet this standard, a petitioner must “show that it is
more likely than not that no reasonable juror would have convicted him” of the underlying
offense. Schlup v. Delo, 513 U.S. 298, 327 (1995). In addition, “‘[t]o be credible,’ a claim of
actual innocence must be based on [new] reliable evidence not presented at trial.” Calderon
v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324).
In the instant case, review of the record establishes that Petitioner raised claims one
and five in his Rule 3.850 motion. The trial court conducted an evidentiary hearing on the
claims and denied them.4 Petitioner, however, did not appeal the denial of these claims to
the Fifth District Court of Appeal of Florida. See App. I at 6-31.
The failure to appeal the denial of post-conviction relief results in a procedural
default. See Leonard v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979) (exhaustion requires not
4
In denying claim one, the trial court concluded that Petitioner “failed to present any
evidence at the hearing to establish that the search warrant affidavit was based upon false
information or was made with reckless disregard for the truth, therefore he has failed to
demonstrate that a hearing on the motion would have resulted in suppression of the
evidence.” (App. E at 224.) In relation to another claim, the trial court further determined
that Petitioner did not have standing to object to the search of the storage facility because
his name was not on the lease nor was his name included as a person who would be
accessing the unit. Id. at 166. Similarly, with respect to claim five, the trial court denied
relief because Petitioner failed to present evidence from Beam or Aponte at the hearing
demonstrating what testimony they would have given if called as witnesses at trial. Id.
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only the filing of a Rule 3.850 motion, but also an appeal of its denial); see also Farrell v. Lane,
939 F.2d 409, 410 (7th Cir. 1991); Smith v. Jones, 923 F.2d 588 (8th Cir. 1991) (claims presented
in post-conviction motion and not appealed were procedurally barred in subsequent habeas
proceedings). The Eleventh Circuit Court of Appeals has held that if the defendant in a
Florida post-conviction proceeding “received an evidentiary hearing, his failure to address
issues in his appellate brief would constitute a waiver.” See Cortes v. Gladish, 216 F. App’x
897, 899-900 (11th Cir. 2007)
As noted previously, an evidentiary hearing was conducted in the state court on
claims one and five. Thus, any claim not addressed in Petitioner’s Rule 3.850 appellate brief
was waived. Because claims one and five were not raised in Petitioner’s appellate brief,
they are procedurally barred from review by this Court absent the application of an
exception to the bar.
Likewise, review of the record demonstrates that Petitioner asserted in his Rule 3.850
motion that counsel was ineffective for failing to challenge the admission of GBL into
evidence as alleged in claim four of the instant petition. In support of the claim, Petitioner
argued that the jugs of GBL should not have been admitted because they were empty.
(App. E at 5-6.) In the instant habeas petition, however, in claim four Petitioner argues that
Harmon made false statements in the affidavit in support of the search warrant regarding
what Beam saw in the storage facility. (Doc. No. 1 at 19.) Petitioner asserts that counsel
should have objected to the admission of the GBL into evidence on this basis and further
argued that Harmon “planted the evidence” as demonstrated by his false statements in the
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affidavit. Id.
In Kelley v. Secretary for Department of Corrections, 377 F.3d 1317, 1344 (11th Cir. 2004),
the Eleventh Circuit held that to exhaust a claim in the state courts properly, a habeas
petitioner must present the state court with not only the theory of relief “but also . . . the
specific assertions of fact that might support relief.” Petitioner failed to argue in the state
court that counsel should have objected to the admission of the GBL because the affidavit
in support of the search warrant was false and the GBL was planted by Harmon. Thus,
claim four was not raised in the state court and is procedurally barred from review by this
Court absent the application of an exception to the bar.
Petitioner has failed to demonstrate either cause or prejudice to overcome the
procedural default. Furthermore, Petitioner has not demonstrated that he is actually
innocent. Accordingly, claims one, four , and five are procedurally barred from review by
this Court.5
B.
Claim Two
Petitioner contends that trial counsel rendered ineffective assistance by failing to
challenge the sufficiency of the charging information on the basis that it was not supported
by sworn statements from material witnesses. Petitioner raised this claim in his Rule 3.850
motion. The state court found the claim to be legally insufficient. (App. E at 165.) The state
5
To the extent claims one, four, or five were arguably exhausted, Petitioner has not
demonstrated that the state court’s denial of these claims was contrary to, or an
unreasonable application of, Strickland. As such, the claims would be denied on the merits
if the Court had not determined that they are procedurally barred.
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court reasoned that “[t]he State’s oath in the amended information is sufficient to support
the charge.” Id. (citing ex Parte Crews, 173 So. 275 (Fla. 1937)).
Pursuant to Section 923.03, Florida Statutes, “[a]n information shall be. . . signed by
the state attorney who shall also append thereto the oath of the state attorney. . . .” Fla. Stat.
§ 923.03(2). “In Florida, there is no requirement that sworn affidavits be attached to the
arrest report. Nor is there a requirement that sworn affidavits be attached to the
information.” Bromell v. McNeil, 2008 WL 4540054, *17 (S.D. Fla. 2008) (citing State v. Bacon,
385 So. 2d 1160, 1163 (Fla. 2nd DCA 1980)).
In the instant case, the amended information contained the required sworn oath of
the Assistant Statewide Prosecutor that “he has received testimony under oath from
material witnesses which, if true, would constitute the offenses herein charged , and that
the prosecution is instituted in good faith.” (App. A at 36.) The sworn oath of the
prosecutor that he received testimony under oath from material witnesses for the offenses
is sufficient pursuant to applicable Florida law. See Fla. R. Crim. P. 3.140(g). As such,
counsel was not deficient for failing to challenge the amended information on the basis that
it was not supported by sworn statements from material witnesses. Furthermore, Petitioner
has not demonstrated that he was prejudiced as a result of counsel’s failure to do so. Thus,
the state court’s denial of this claim is neither contrary to, nor an unreasonable application
of, Strickland, and claim two is denied.
C.
Claim Three
Petitioner asserts that trial counsel rendered ineffective assistance by failing to move
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to sever counts one and two. In support of this claim, Petitioner maintains that counts one
and two were unrelated offenses. (Doc. No. 1 at 17.)
Petitioner raised this claim in his Rule 3.850 motion. Applying Strickland, the state
court denied relief. (App. E at 165.) The state court noted that large quantities of GBL,
potassium hydroxide, and sodium hydroxide, which are used to make GHB, were found
in the storage unit, and Petitioner was charged with possession of GBL and conspiracy to
traffic in GHB. Id. The state court reasoned that “[t]he possession of these precursor
chemicals was integral to the conspiracy count, as the charge was that he combined the
chemicals to make GHB, which he then distributed.” Id. The state court concluded,
therefore, that the offenses were interrelated and counsel was not deficient for failing to file
a motion that had no legal basis. Id.
Pursuant to Florida law, two or more related offenses may be tried together “if they
are triable in the same court and are based on the same act or transaction or on 2 or more
connected acts or transactions.” Hutchinson v. State, 731 So. 2d 812, 815 (Fla. 5th DCA 1999)
(quoting Fla. R. Crim. P. 3.151(a)) (emphasis deleted). Offenses are connected acts or
transactions if “‘they occurred during a ‘spree’ interrupted by no significant period of
respite, . . . or . . . one crime is causally related to the other, even though there may have
been a significant lapse of time.’”
Id. (quoting Ellis v. State, 622 So. 2d 991 (Fla.
1993))(citations omitted).
The Court concludes that the state court’s determination is objectively reasonable.
Petitioner was charged with trafficking GBL based on the GBL confiscated from the storage
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facility, and evidence was presented to establish that the GBL belonged to Petitioner.
Witnesses testified that GBL is used to make GHB, that Petitioner made GHB, and that
Petitioner conspired with others to traffic GHB. Thus, the trafficking of GBL and the
conspiracy to traffic GHB are connected acts. As such, Petitioner has not shown that
counsel was deficient for failingto move to sever the counts or that a reasonable probability
exists that the outcome of his trial would have been different had counsel done so.
Accordingly, claim three is denied pursuant to Section 2254(d).
Any of Petitioner’s allegations not specifically addressed herein have been found to
be without merit.
IV.
Certificate of Appealability
This Court should grant an application for certificate of appealability only if the
Petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make such a showing “the petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca v. Sec’y Dep’t of Corr., 568
F.3d 929, 934 (11th Cir. 2009). When a district court dismisses a federal habeas petition on
procedural grounds without reaching the underlying constitutional claim, a certificate of
appealability should issue only when a petitioner shows “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.; Lamarca, 568 F.3d at 934. However, a prisoner need not show
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that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
Petitioner has not demonstrated that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. Moreover, Petitioner cannot
show that jurists of reason would find this Court's procedural rulings debatable. Petitioner
has failed to make a substantial showing of the denial of a constitutional right. Thus, the
Court will deny Petitioner a certificate of appealability.
For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1.
The Petition for Writ of Habeas Corpus (Doc. No. 1) filed by Donald
Brockbank is DENIED, and this case is DISMISSED WITH PREJUDICE.
2.
Petitioner is DENIED a Certificate of Appealability.
3.
The Clerk of the Court is directed to enter judgment accordingly and close this
case.
DONE AND ORDERED in Orlando, Florida, this 17th day of September, 2012.
Copies to:
OrlP-1 9/17
Counsel of Record
Donald Brockbank
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