Dimanche, Jr. v. Secretary, Department of Corrections et al

Filing 29

OPINION AND ORDER. The Petition for Writ of Habeas Corpus filed by Moliere Dimanche, Jr. 1 is DENIED, and this case is DISMISSED WITH PREJUDICE. The Clerk is directed to enter judgment accordingly. Petitioner is DENIED a Certificate of Appealability. The Clerk is directed to CLOSE this case. Signed by Judge Charlene Edwards Honeywell on 6/5/2013. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MOLIERE DIMANCHE, JR.,
Petitioner,
v.

CASE NO. 6:11-cv-944-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 for the United States
District Courts (Doc. No. 14). Petitioner filed a reply to the response (Doc. No. 16), a
memorandum in support of the reply (Doc. No. 18), and an amended reply (Doc. No. 20).
Petitioner alleges four claims for relief in his habeas petition: (1) he was denied his
right to due process when his speedy trial rights were violated; (2) the trial court lacked
geographical jurisdiction to try him; (3) he was improperly convicted of a crime for which
he was not charged; and (4) his Fourth and Fifth Amendment rights were violated when
the police did not read him his Miranda rights before seizing his identification card and

obtaining a statement from him.1 For the following reasons, the Court finds that Petitioner
is not entitled to relief on his claims.
I.

Procedural History
Petitioner was charged with second degree grand theft of property worth $20,000

or more and burglary of a structure. Petitioner was convicted of the lesser included offense
of third degree grand theft and was acquitted of the burglary charge. The trial court
sentenced Petitioner to a five-year term of incarceration. Petitioner appealed, and appellate
counsel filed an Anders2 brief and moved to withdraw from the case. Petitioner filed a pro
se initial brief. The Fifth District Court of Appeal affirmed per curiam.
Petitioner then filed a petition for belated appeal seeking to appeal the trial court's
ruling on his notice of expiration of speedy trial. The appellate court denied the petition.
Petitioner subsequently filed a motion for post-conviction relief pursuant to Rule 3.850 of
the Florida Rules of Criminal Procedure. Petitioner later filed an amendment to the
motion. The trial court summarily denied the motion. The Fifth District Court of Appeal
affirmed per curiam. The instant federal petition for writ of habeas corpus follows.
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

1

Petitioner also raises each ground as an ineffective assistance of counsel claim.

2

Anders v. California, 386 U.S. 738 (1967).
2

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). See Brown v. Patton, 544 U.S. 133, 141 (2005); Price v. Vincent, 538 U.S.
634, 638-39 (2003). A state court’s summary rejection of a claim, even without explanation,
qualifies as an adjudication on the merits which warrants deference. Ferguson v. Calliper,
527 F.3d 1144, 1146 (11th Cir. 2008).
“Clearly established federal law” consists of the governing legal principles, rather
than the dicta, set forth in the decisions of the United States Supreme Court at the time the
state court issues its decision. Carey v. Musladin, 549 U.S. 70, 74 (2006)(citing Williams v.
Taylor, 529 U.S. 362, 412 (2000)). “[T]o be ‘contrary to’ clearly established federal law, the
state court must either (1) apply a rule that contradicts the governing law set forth by
Supreme Court case law, or (2) reach a different result from the Supreme Court when faced
with materially indistinguishable facts.” Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010)
(internal quotations and citation omitted); Mitchell v. Esparza, 540 U.S. 12, 16 (2003). A state
court decision involves an “unreasonable application” of the Supreme Court’s precedents
if the state court correctly identifies the governing legal principle but applies it to the facts
of the petitioner’s case in an objectively unreasonable manner, Brown, 544 U.S. at 134;
Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000); or, “if the state court either
3

unreasonably extends a legal principle from [Supreme Court] precedent to a new context
where it should not apply or unreasonably refuses to extend that principle to a new context
where it should apply.” Bottoson, 234 F.3d at 531 (quoting Williams, 529 U.S. at 406). The
“unreasonable application” inquiry “requires the state court decision to be more than
incorrect or erroneous”; it must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S.
63, 75-77 (2003) (citation omitted); Mitchell, 540 U.S. at 17-18; Ward, 592 F.3d at 1155.
B.

Standard for Ineffective Assistance of Counsel

Ineffective assistance of counsel claims are reviewed under the standards
established by 28 U.S.C. § 2254(d). Newland v. Hall, 527 F.3d 1162, 1183 (11th Cir. 2008).
Post-AEDPA, the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), remains
applicable to the claims of ineffective assistance of counsel raised in this case. Newland, 527
F.3d at 1184. In Strickland, the Supreme Court 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.3 Strickland, 466 U.S. at 687-88; see also Bobby Van Hook, 130 S. Ct.
13, 16 (2009). A habeas court's review of a claim under the Strickland standard is "doubly
deferential." Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (April 4, 2011) (quoting Knowles v.

3

In Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), the United States Supreme Court
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.
4

Mirzayanze, 129 S. Ct. 1411, 1420 (2009)(citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)).
States may “impose whatever specific rules . . . to ensure that criminal defendants
are well represented,” but “the Federal Constitution imposes one general requirement: that
counsel make objectively reasonable choices.” Bobby Van Hook, 130 S. Ct. at 17 (internal
quotations and citations omitted). It is petitioner who bears the heavy burden to “prove,
by a preponderance of the evidence, that counsel’s performance was unreasonable.” Jones
v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court must “judge the reasonableness
of counsel’s conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct,” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690),
applying a “highly deferential” level of judicial scrutiny. Id. A court must adhere to a
strong presumption that “counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. An attorney is not ineffective for
failing to raise or preserve a meritless issue. Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir.);
United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (“a lawyer’s failure to preserve
a meritless issue plainly cannot prejudice a client”). “To state the obvious: the trial lawyers,
in every case, could have done something more or something different. So, omissions are
inevitable. But, the issue is not what is possible or ‘what is prudent or appropriate, but
only what is constitutionally compelled.’” Chandler v. United States, 218 F.3d 1305, 1313
(11th Cir. 2000) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).

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III.

Analysis
A.

Claim One

Petitioner claims the trial court violated his speedy trial rights (Doc. No. 1 at 5).
Further, Petitioner contends that trial counsel was ineffective for failing to correct this
violation. Id. Petitioner states that he filed a demand for speedy trial on February 25, 2008,
and was due to be tried by April 14, 2008. Id. Petitioner argues that he was not tried
during this time period, and had counsel filed a notice of expiration of speedy trial time,
he would have been discharged from the crimes. Id.
Respondents argue that Petitioner’s trial court error claim does not raise a federal
claim and thus does not state a basis for habeas corpus relief. A state's interpretation of its
own laws or rules provides no basis for federal habeas corpus relief, since no question of
a constitutional nature is involved. McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir.
1992); see also Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) (holding that “[i]t is a
fundamental principle that state courts are the final arbiters of state law, federal habeas
courts should not second-guess them”). Federal courts “must defer to a state court's
interpretation of its own rules of evidence and procedure.” Machin v. Wainwright, 758 F.2d
1431, 1433 (11th Cir. 1985) (citing Spencer v. Texas, 385 U.S. 648 (1967)).
The Court agrees that the issue of whether the trial court violated Florida’s speedy
trial rules, found in Florida Rule of Criminal Procedure 3.191, is an issue of state law. A
“‘violation by state officials of a state's speedy trial law, taken alone, does not present a
federal claim reviewable. . . [in a ] habeas petition.’” Franklin v. Florida, No. 8:08-cv-1347-T6

30TGW, 2009 WL 2386108, at * 5 (M.D. Fla. July 31, 2009) (quoting Poe v. Caspari, 39 F.3d 204
(8th Cir. 1994)). Petitioner’s trial court error claim raises an issue of state law and therefore
is not subject to federal habeas review.
To the extent that Petitioner argues an exhausted claim that the trial court violated
his Sixth Amendment rights, the claim does implicate federal constitutional law and is
subject to federal review because a criminal defendant has a Sixth Amendment right to a
speedy trial. Barker v. Wingo, 407 U.S. 514, 515 (1972). The Court will therefore address the
merits of Petitioner’s trial court error claim along with his ineffective assistance of counsel
claim below.
To determine whether a defendant has been denied his right to a speedy trial, a
court must weigh four factors: (1) the length of the delay, (2) the reason for the delay, (3)
whether the defendant timely asserted his speedy trial right, and (4) any prejudice resulting
from the delay. Barker, 407 U.S. at 530-33. An unreasonable delay can produce several
harms, including oppressive pretrial incarceration and the possibility of impairing a
defense by dimming memories and loss of evidence. Id. at 533. Prejudice need not be
actual, and instead can be presumed depending on the length of and reasons for the delay.
Doggett v. United States, 505 U.S. 647, 654 (1992). “Delays exceeding one year are generally
found to be ‘presumptively prejudicial.’” United States v. Ingram, 446 F.3d 1332, 1336 (11th
Cir. 2006) (citing Doggett, 505 U.S. at 651-52).
Petitioner was charged on January 25, 2008 (App. A at 3). Petitioner filed a timely
demand for speedy trial on February 25, 2008. Id. at 17. The trial court held a calendar
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called on February 29, 2008, and set the case for trial on March 31, 2008. Id. at 18. Petitioner
was tried on April 15, 2008. Petitioner was tried 50 days after he invoked his right to
speedy trial, and 81 days after the information was filed. The delay in holding Petitioner’s
trial resulted because Petitioner failed to appear for trial on March 31, 2008, and again on
April 9, 2008 (App. S). Petitioner has not refuted this contention. Thus, although Petitioner
timely asserted his right to speedy trial, the Court concludes that the delay in holding
Petitioner’s trial was not excessive and a portion of the delay was attributable to Petitioner.
Further, Petitioner has not demonstrated any actual prejudice resulting from the delay. See
Jackson v. Benton, 315 F. App’x 788, 792 (11th Cir. 2009) (citing United States v. Davenport, 935
F.2d 1223, 1239 (11th Cir. 1991)).
Petitioner has not demonstrated that his Sixth Amendment rights were violated, and
defense counsel’s actions did not amount to deficient performance or result in prejudice.4
4

The Court also notes that the trial court did not violate the Florida rules regarding
speedy trial. Rule 3.191(b) states that within five days from the filing of a demand for
speedy trial, a trial court shall hold a calendar call and set the case for trial. Fla. R. Crim.
P. 3.191(b)(1). As noted above, Petitioner filed his speedy trial demand on February 25,
2008, and the trial court held a calendar call on February 29, 2008. Id. at 18. Pursuant to
Rule 3.191(b)(2), the trial court had 45 days, or until April 14, 2008, to try Petitioner. The
trial commenced one day later, on April 15, 2008. Petitioner was tried on the 50th day
pursuant to Rule 3.191(b)(4) (stating that if the defendant has not been brought to trial
within 50 days of the filing of the demand, the defendant shall have the right to the
appropriate remedy set forth in subdivision (p)).
Even assuming that Petitioner’s trial occurred outside the 50-day window, the trial
court would not have discharged him from the crimes because the failure to hold the trial
within the 50 days was attributable to Petitioner. See Fla. R. Crim. P. 3.191(p).
Additionally, pursuant to Rule 3.1919(p) the trial court had an additional 15 days to try
Petitioner before it discharged him from the crimes. Petitioner was tried within this 15-day
recapture period and thus was not entitled to a discharge in this case. See Whitehall v. State,
8

The state court’s determination of this claim was neither contrary to, nor an unreasonable
application of, federal law. Accordingly, this claim is denied.
B.

Claim Two

Petitioner claims that the trial court lacked geographical jurisdiction over his case
(Doc. No. 1 at 6). Petitioner contends that he used and sold stolen property in Tavares,
Florida, which is in Lake County, therefore a conviction in Orange County, Florida was
improper. Id. Petitioner also asserts that trial counsel was ineffective for failing to raise
this issue at trial. Id.
This claim was raised in Petitioner’s Rule 3.850 motion for post-conviction relief
(App. O). The trial court denied the claim, finding Petitioner was properly convicted
because the facts indicated that although Petitioner was found in Lake County with stolen
property in his possession, the crime was committed in Orange County. (App. S). The
Fifth District Court of Appeal affirmed per curiam (App. U).
In order to obtain a criminal conviction, the prosecuting authority must prove
venue. McClellion v. State, 858 So. 2d 379, 381 (Fla. 4th DCA 2003). “Venue is not an
element of the charged crime, however, and need not be proved beyond a reasonable
doubt. It is sufficient if the jury can reasonably infer from the evidence that the crime was
committed in the county in which the defendant was charged.” Id. (citations omitted).
Furthermore, “[v]enue is not a jurisdictional prerequisite and does not affect the power of
81 So. 3d 599 (Fla. 2d DCA 2012) (the appellant’s trial, which occurred 7 days after the filing
of a notice of expiration of speedy trial, complied with the requirements of Rule 3.191
because the trial occurred within the 15-day recapture period).
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a court to hear a case, but is a privilege which may be waived.” Id. (citation omitted).
In the instant case, Petitioner was charged with grand theft, and the information
alleged that the crime occurred in Orange County, Florida (App. A). The evidence at trial
demonstrated that the theft of copper wire occurred at a construction job site located in
Apopka, Orange County, Florida (App. B at 19-21, 34). Petitioner was caught after he sold
the stolen property in Lake County, Florida. Id. at 95, 100, 107-08. Thus, the jury could
reasonably infer that Petitioner committed the crime in Orange County. There is no
indication that the trial court lacked jurisdiction to try Petitioner’s case. Petitioner has not
established that trial counsel’s failure to object to the venue of this case amounted to
deficient performance or resulted in prejudice.
The state court’s denial of this claim was neither contrary to, nor an unreasonable
application of federal law. Claim two is therefore denied.
C.

Claim Three

Petitioner alleges that he was improperly convicted of an uncharged crime (Doc. No.
1 at 8). In support of this claim, Petitioner maintains that he was tried for second degree
grand theft but convicted of third degree grand theft. Id.5 Petitioner argues that the jury
was not instructed on any lesser included offenses, and therefore, he was improperly

5

Second degree grand theft is a second degree felony, whereas third degree grand
theft is a third degree felony. See 812.014(2)(b) & (c), Fla. Stat. (2007). The elements of each
crime are the same with the exception of the value of the stolen property. Id. To obtain a
conviction for second degree grand theft, the State must prove the value of the stolen
property was more than $20,000 but less than $100,000 and to prove third degree grand
theft, the value of the property must be more than $300 but less than $20,000. Id.
10

convicted of this offense. Id. Petitioner also asserts trial counsel was ineffective for failing
to raise this issue at trial. Id.
Petitioner raised the instant claim in his Rule 3.850 motion, and the trial court
summarily denied the claim, finding that while the trial court did not specifically instruct
the jury on the lesser included offenses of third degree grand theft and petit theft, the jury
was instructed regarding the value of the stolen property and was given the opportunity
to convict Petitioner of a lesser degree of theft (App. S). The Fifth District Court of Appeal
affirmed per curiam (App. U).
The trial court instructed the jury with respect to the charge of grand theft as
follows:
To prove the crime of theft, the state must prove the following two
elements beyond a reasonable doubt: first, Moliere Dimanche, Jr. knowingly
and unlawfully obtained or endeavored to obtain or endeavored to use the
wiring of ECI or Robert Kemp.
Second, he did so with intent to, either temporarily or permanently,
deprive ECI or Robert Kemp of his right to the property or any benefit from
it.
If you find the Defendant guilty of theft, you must determine by your
verdict whether the value of the property taken was $20,000 or more. The
value of the property taken was $300 or more but less than $20,000; the value
of the property taken was at least $100, but less than $300; the value of the
property taken was less than $100.
(App. B at 232-33). The verdict form for the grand theft charge allowed the jury to make
a special finding as to the value of the stolen property (App. A at 59). The jury made a
special finding that the property taken was valued at less than $20,000 but more than $300,

11

which in effect was a conviction for third degree grand theft. Id.; see also § 812.014(2)(c), Fla.
Stat. (2007).
The jury instructions given in this case are identical to Florida’s standard jury
instructions. See Fla. Std. Jury (Crim) Instr. 14.1. In Florida, “‘[t]he standard jury
instructions are presumed correct. . . .’” Brown v. State, 11 So. 3d 428, 432 (Fla. 2d DCA 2009)
(quoting Stephens v. State, 787 So. 2d 747, 755 (Fla. 2001)). However, “the use of the
standard jury instructions does not relieve the trial court of its obligation to determine
whether the standard instructions accurately and adequately state the law.” Id. Although
the trial court did not specifically use the term “lesser included offense,” the trial court did
instruct the jury on the lesser included offenses of second degree grand theft, namely, third
degree grand theft and petit theft, by stating that the jury had to determine the value of the
property. Petitioner’s conviction for third degree grand theft is not improper, and trial
counsel did not act deficiently by failing to raise this issue at the conclusion of the trial.
Because Petitioner has not shown that the state court’s denial of this claim was an
objectively unreasonable application of clearly established federal law, the Court concludes
that Petitioner is not entitled to relief. Claim three is denied.
D.

Claim Four

Petitioner claims his Fourth and Fifth Amendment rights were violated when the
police did not read him his Miranda rights before seizing his identification card and
obtaining his statement (Doc. No. 1 at 15). Petitioner contends that Detective Cromwell
committed perjury when he testified that he requested Petitioner to produce identification
12

when in the police report he stated that he commanded Petitioner to do so. Id. Petitioner
also states that trial counsel was ineffective for failing to move to suppress the evidence
seized and his statement to Detective Cromwell. Id.
At trial the following testimony was introduced. John Insco (“Insco”) and Steven
Eastman (“Eastman”) worked for E & I Metal in 2007 (App. B at 93-94, 107). They testified
that on November 1, 2007, Petitioner arrived at their business driving a U-Haul truck and
was looking to sell copper wire. Id. at 84, 95, 107-08. After completing a transaction for the
sale of the copper wire, Detective Cromwell arrived. Id. at 109. Detective Cromwell saw
Petitioner sitting in the driver’s seat of the U-Haul truck. Id. at 149-50. Detective Cromwell
asked Petitioner for identification. Id. at 150. Detective Cromwell also asked Petitioner
about his involvement with the U-Haul truck, and Petitioner stated that he had no
knowledge of the truck and did not know to whom it belonged. Id. at 151.
Petitioner raised his claim of trial court error on direct appeal (App. F). The Fifth
District Court of Appeal affirmed per curiam (App. G).

Petitioner also alleged his

ineffective assistance of counsel claim in a Rule 3.850 motion, and the trial court summarily
denied the claim pursuant to Strickland (App. S). The trial court concluded that Detective
Cromwell's request for identification was not a seizure and therefore did not violate the
Fourth Amendment. Id. The appellate court affirmed per curiam (App. U).
The record demonstrates that defense counsel did move to suppress Petitioner’s
statement to police and testimony regarding Detective Cromwell’s seizure of Petitioner
during trial (App. B at 130-34). Therefore, Petitioner’s ineffective assistance of counsel
13

claim is refuted by the record.
To the extent that claim four challenges Detective Cromwell’s “seizure” of
Petitioner’s identification pursuant to the Fourth Amendment, the claim is not subject to
review. See Stone v. Powell, 428 U.S. 465 (1976). Where a state has provided a defendant
with a full and fair opportunity to litigate a Fourth Amendment claim, “a state prisoner
may not be granted federal habeas corpus relief on the ground that evidence obtained in
an unconstitutional search or seizure was introduced at his trial.” Id. at 495; see also
Kuhlmann v. Wilson, 477 U.S. 436, 446-47 (1986). The Supreme Court has determined that
excluding Fourth Amendment claims from habeas corpus review created no danger that
the courts would deny a safeguard against compelling an innocent man to suffer an
unconstitutional loss of liberty because a convicted defendant seeking review of a Fourth
Amendment claim on collateral review is “usually asking society to redetermine an issue
that has no bearing on the basic justice of his incarceration.” Kuhlmann, 477 U.S. at 447.
It is clear from the record that petitioner was given a full and fair opportunity to
litigate his Fourth Amendment claim before the state courts. The Eleventh Circuit has
interpreted a “full and fair consideration” to require “consideration by the fact-finding
court, and at least the availability of meaningful appellate review by a higher state court”
when the facts are in dispute. Mincey v. Head, 206 F.3d 1106, 1126 (11th Cir. 2000). Defense
counsel raised this issue during trial (App. B at 13-34). The state court heard testimony as
well as argument on the issue before denying the motion. Id. Furthermore, Petitioner
raised this claim on direct appeal, and the state appellate court per curiam affirmed (App.
14

F & G).6
Petitioner’s Fifth Amendment challenge regarding his statement is not barred by
Stone. See Withrow v. Williams, 507 U.S. 680, 688-89 (1993); Jarrell v. Balkcom, 735 F.2d 1242,
1252 (11th Cir. 1984). In his statement, Petitioner denied knowing to whom the U-Haul
truck belonged. At trial, counsel argued that the statement should be suppressed because
the police failed to advise him of his Miranda rights (App. B at 133).
The trial court properly denied the motion because Petitioner failed to show that he
was “in custody” at the time Detective Cromwell asked him questions regarding the UHaul truck. Thompson v. Keohane, 516 U.S. 99, 101 (1995) (police are required to give a
suspect Miranda warnings only when that person is “in custody” - or “questioning [has
been] initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.”) (quotation omitted);
Meredith v. State, 964 So. 2d 247, 250 (Fla. 4th DCA 2007) (“Miranda warnings are required
only when an individual is undergoing custodial interrogation. . . . Determining whether
a person is in custody for Miranda purposes is based on how a reasonable person in the
suspect’s situation would perceive his or her circumstances.”).
When Detective Cromwell asked Petitioner these questions, Petitioner was not

6

Alternatively, Petitioner has failed to demonstrate that this claim is meritorious.
Florida courts have held that “[w]hen officers have no basis for suspecting a particular
individual, they may generally ask questions of that individual and ask to examine the
individual’s identification.” Holden v. State, 877 So. 2d 800, 802 (Fla. 5th DCA 2004) (citing
Florida v. Bostick, 501 U.S. 429 (1991)); Terry v. Ohio, 392 U.S. 1 (1968). Thus, Detective
Cromwell’s actions did not amount to an illegal seizure of Petitioner’s identification.
15

deprived of his freedom in any way. A reasonable person in the same position would not
have believed that his freedom was curtailed to a degree associated with an actual arrest.
See Meredith, 964 So. 2d at 250. In fact, Detective Cromwell testified that he spoke to several
individuals who were at E & I Metal and stated he did not arrest any person, including
Petitioner (App. B at 151-52). Because Petitioner was not “in custody,” Detective Cromwell
was not required to give Petitioner Miranda warnings. Therefore, the trial court did not err
in allowing the introduction of Petitioner’s statement at trial.
Petitioner has not demonstrated that the state court’s denial of this claim was
contrary to, or resulted in an unreasonable application of, clearly established federal law.
Accordingly, claim four is denied.
Any of Petitioner’s allegations not specifically addressed herein have been found to
be without merit.
IV.

Certificate of Appealability
A prisoner seeking to appeal a district court's final order denying his petition for

writ of habeas corpus has no absolute entitlement to appeal but must obtain a certificate
of appealability (“COA”). 28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180 (2009). “A
[COA] may issue . . . only if the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a 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) or,
that “the issues presented were adequate to deserve encouragement to proceed further.”
16

Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Petitioner has not made the requisite
showing in these circumstances. The Court will deny Petitioner a certificate of
appealability.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

The Petition for Writ of Habeas Corpus filed by Moliere Dimanche, Jr. (Doc.

No. 1) is DENIED, and this case is DISMISSED WITH PREJUDICE. The Clerk of the
Court shall enter judgment accordingly.
2.

Petitioner is DENIED a Certificate of Appealability.

3.

The Clerk of the Court is directed to close this case.

DONE AND ORDERED in Orlando, Florida, this 5th day of June, 2013.

Copies to:
OrlP-3 6/5
Counsel of Record
Moliere Dimanche, Jr.

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