Dries v. State of Florida et al
Filing
17
ORDER denying 1 --petition for writ of habeas corpus by Thomas J. Dries; directing the Clerk to ENTER JUDGMENT against Dries and CLOSE the case. Signed by Judge Steven D. Merryday on 8/5/2011. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
THOMAS J. DRIES,
Petitioner,
v.
Case No. 8:08-cv-1286-T-23TGW
SECRETARY, Department of Corrections,
Respondent.
/
ORDER
Dries petitions under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1) and
challenges his conviction for "D.U.I.-Manslaughter," for which conviction Dries serves ten
years. Numerous exhibits ("Respondent’s Exhibit __") support the response. (Doc. 9)
The respondent admits the petition's timeliness. (Response at 14 Doc. 9) The petition
lacks merit.
FACTS1
Shortly before midnight on May 3, 2000, Dries turned his vehicle from a side-road
onto a main road in Lakeland, Florida, and was immediately involved in a "head-on"
collision with a vehicle driven by Joseph Long, who died as a result of the accident.
Dries had a blood-alcohol level of .234, nearly three times greater than the legal limit of
.08. Dries was charged with "D.U.I.-Manslaughter." Two years after the accident Dries
1
This summary of the facts derives from the prosecutor's information (Respondent's Exhibit 9 at
35) and the transcript of the change of plea hearing. (Respondent's Exhibit 9 at 109-110)
pleaded nolo contendere without a plea agreement and was sentenced to ten years
imprisonment and five years probation.
STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs
this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998),
cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential
standard for federal court review of a state court adjudication, states 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 with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted
this deferential standard:
In sum, § 2254(d)(1) places a new constraint on the power of a federal
habeas court to grant a state prisoner's application for a writ of habeas
corpus with respect to claims adjudicated on the merits in state court. Under
§ 2254(d)(1), the writ may issue only if one of the following two conditions is
satisfied--the state-court adjudication resulted in a decision that (1) "was
contrary to . . . clearly established Federal Law, as determined by the
Supreme Court of the United States," or (2) "involved an unreasonable
application of . . . clearly established Federal law, as determined by the
Supreme Court of the United States." Under the "contrary to" clause, a
federal habeas court may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a question of law or if
the state court decides a case differently than this Court has on a set of
materially indistinguishable facts. Under the "unreasonable application"
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clause, a federal habeas court may grant the writ if the state court identifies
the correct governing legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the prisoner's case.
"The focus . . . is on whether the state court's application of clearly established
federal law is objectively unreasonable, . . . an unreasonable application is different from
an incorrect one." Bell v. Cone, 535 U.S. at 694. "As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that the state court's ruling on
the claim being presented in federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement." Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 786-87
(2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective
reasonableness, not the correctness per se, of the state court decision that we are to
decide."). 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. at 412.
The purpose of federal review is not to re-try the state case. "The [AEDPA]
modified a federal habeas court's role in reviewing state prisoner applications in order to
prevent federal habeas 'retrials' and to ensure that state-court convictions are given
effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002).
Federal courts must afford due deference to a state court's decision. "AEDPA prevents
defendants—and federal courts—from using federal habeas corpus review as a vehicle
to second-guess the reasonable decisions of state courts." Renico v. Lett, ____ U.S.
____, 130 S. Ct. 1855, 1866 (2010). See also Cullen v. Pinholster, ___ U.S. ___, 131
S. Ct. 1388, 1398 (2011) ("This is a 'difficult to meet,' . . . and 'highly deferential standard
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for evaluating state-court rulings, which demands that state-court decisions be given the
benefit of the doubt' . . . .") (citations omitted).
In a per curiam decision without a written opinion the state appellate court
affirmed Dries's conviction and sentence on direct appeal. (Respondent's Exhibit 7)
Similarly, in another per curiam decision without a written opinion the state appellate
court affirmed the denial of Dries's subsequent Rule 3.850 motion to vacate.
(Respondent's Exhibit 12) The state appellate court's per curiam affirmances warrant
deference under Section 2254(d)(1) because "the summary nature of a state court's
decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245,
1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub
nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 131 S. Ct. at 784-85
("When a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim on the merits
in the absence of any indication or state-law procedural principles to the contrary.").
Review of the state court decision is limited to the record that was before the state
court.
We now hold that review under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the merits. Section
2254(d)(1) refers, in the past tense, to a state-court adjudication that
"resulted in" a decision that was contrary to, or "involved" an unreasonable
application of, established law. This backward-looking language requires
an examination of the state-court decision at the time it was made. It
follows that the record under review is limited to the record in existence at
that same time, i.e., the record before the state court.
Pinholster, 131 S. Ct. at 1398. Dries bears the burden of overcoming a state court
factual determination by clear and convincing evidence. "[A] determination of a factual
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issue made by a State court shall be presumed to be correct. The applicant shall have
the burden of rebutting the presumption of correctness by clear and convincing
evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding
of fact but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831,
836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state court's rejection of Dries's
post-conviction claims warrants deference in this case. (Order Denying Motion for
Post-Conviction Relief, Respondent's Exhibit 9 at 139-44 and 301-03)
Dries asserts ten grounds for relief. The respondent recognizes that three of the
grounds are entitled to a review on the merits but contends that seven of the grounds are
barred from review on the merits because Dries failed to properly present each ground to
the state court.2 The respondent's procedural argument is correct.
EXHAUSTION AND PROCEDURAL DEFAULT
A petitioner must present each claim to a state court before raising the claim in
federal court. "[E]xhaustion of state remedies requires that petitioners '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), quoting Picard v. Connor, 404 U.S. 270, 275 (1971). Accord Rose v.
Lundy, 455 U.S. 509, 518-19 (1982) ("A rigorously enforced total exhaustion rule will
encourage state prisoners to seek full relief first from the state courts, thus giving those
2
The exhaustion doctrine precludes review of an unexhausted claim unless the respondent
specifically waives the procedural default. "[B]ecause the State did not expressly waive McNair's
procedural default in this case, we hold that § 2254(b)(3)['s proscription that the state must expressly
waive the exhaustion requirement] applies and that McNair is procedurally barred from raising his
extraneous evidence claim." McNair v. Campbell, 416 F.3d 1291,1305 (11th Cir. 2005), cert. denied, 547
U.S. 1073 (2006).
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courts the first opportunity to review all claims of constitutional error."), and Upshaw v.
Singletary, 70 F.3d 576, 578 (11th Cir. 1995) ("[T]he applicant must have fairly apprised
the highest court of his state with the appropriate jurisdiction of the federal rights which
allegedly were violated.").
Dries presented his claims of ineffective assistance of counsel in his state Rule
3.850 motion for post-conviction relief. The circuit court summarily rejected seven of the
claims and granted an evidentiary hearing on the remaining three claims. On the appeal
from the denial of post-conviction relief, Dries asserted only the three claims that were
the subject of the evidentiary hearing. (Respondent's Exhibit 10) Because Dries
received an evidentiary hearing and he failed to include all of his claims in his appellate
brief (Respondent’s Exhibit 10), Dries failed to "fairly present" the seven claims to the
state courts.
Duest also seeks to raise eleven other claims by simply referring to
arguments presented in his motion for post-conviction relief. The purpose
of an appellate brief is to present arguments in support of the points on
appeal. Merely making reference to arguments below without further
elucidation does not suffice to preserve issues, and these claims are
deemed to have been waived.
Duest v. Dugger, 555 So.2d 849, 851-52 (Fla. 1990). See also Cortes v. Gladish, 216
Fed. App'x 897, 899-900 (11th Cir. 2007) ("[H]ad Cortes received an evidentiary hearing,
his failure to address issues in his appellate brief would constitute a waiver."). As a
consequence, grounds II, III, IV, V, VII, VIII, and IX are unexhausted.
The failure to properly exhaust each available state court remedy causes a
procedural default of the unexhausted claim. O'Sullivan v. Boerckel, 526 U.S. 838, 847
(1999) ("Boerckel's failure to present three of his federal habeas claims to the Illinois
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Supreme Court in a timely fashion has resulted in a procedural default of those claims.");
Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) ("[W]hen it is obvious that the
unexhausted claims would be procedurally barred in state court due to a state-law
procedural default, we can forego the needless 'judicial ping-pong' and just treat those
claims now barred by state law as no basis for federal habeas relief."); Kennedy v.
Herring, 54 F.3d 678, 684 (1995) ("If a claim was never presented to the state courts, the
federal court considering the petition may determine whether the petitioner has defaulted
under state procedural rules."), appeal after remand, Kennedy v. Hopper, 156 F.3d 1143
(11th Cir.), cert. denied sub nom Kennedy v. Haley, 526 U.S. 1075 (1999).
A federal court may review a procedurally defaulted claim only upon a showing of
either (1) "cause for the default and prejudice attributable thereto" or (2) "that failure to
consider [the defaulted] claim will result in a fundamental miscarriage of justice." Harris
v. Reed, 489 U.S. 255, 262 (1989). To demonstrate "cause" for his procedural default,
Dries must justify his failure to comply with Florida's procedural rules. In general, "the
existence of cause for a procedural default must ordinarily turn on whether the prisoner
can show that some objective factor external to the defense impeded . . . efforts to
comply with the state procedural rules." Murray v. Carrier, 477 U.S. 478, 488 (1986).
See Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995). Even if he shows cause
for his procedural default, Dries must show prejudice arising from the alleged
constitutional error. A petitioner must show that he suffered actual prejudice, "not merely
that the errors of the trial created a possibility of prejudice, but that they worked to his
actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis original).
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Accord Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991). In essence, to show actual
prejudice, Dries must demonstrate that the alleged errors so infected the proceeding that
his conviction violates due process. Dries fails to meet this burden.
As an alternative to showing "cause and prejudice," Dries must show that
dismissal of his procedurally defaulted grounds will result in a "fundamental miscarriage
of justice," an especial difficulty because Dries must demonstrate "actual innocence" of
the crime of conviction. See Smith v. Murray, 477 U.S. 527, 537 (1986) (citing Murray v.
Carrier, 477 U.S. at 496). See also Engle v. Isacc, 456 U.S. 107, 134-35 (1982), and
Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)3 (denying certificate of probable cause)
(holding that a petitioner must show "as a factual matter that he did not commit the crime
of conviction."). Additionally, to meet the "fundamental miscarriage of justice" exception,
Dries must show constitutional error coupled with "new reliable evidence – whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence – that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995).
Dries shows neither "cause and prejudice" nor "a fundamental miscarriage of
justice." Consequently, a merits review of grounds II, III, IV, V, VII, VIII, and IX is
barred. Only grounds I, VI, and X are properly exhausted and entitled to a merits
review. Ground I asserts a claim of trial court error and grounds VI and X allege that
trial counsel provided ineffective assistance.
3
Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued before
October 1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en
banc).
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TRIAL COURT ERROR
Ground I
Dries alleges that the trial court erred in accepting his guilty plea, which Dries
contends was involuntarily entered because he was impaired by both medications and
several mental conditions. The following exchange occurred during the plea colloquy
(Respondent's Exhibit 9 at 106-07):
The Court: Alright. And are you presently, Mr. Dries, under the influence
of any drugs or alcohol or any types of medication which would prevent you
from understanding what we are doing here this morning?
The Defendant: I take medication, but I don't believe it impedes my ability
to retain and accept knowledge and decipher it for myself.
The Court: Alright. Is there anything about these proceedings that you do
not understand or have any questions about?
The Defendant: Not really.
In his motion for post-conviction relief, Dries alleged that, when he pleaded, he
"was taking several medications and the Defendant is of the belief that had he not been
on the medications he would not of [sic] entered a plea of nolo-contendere."
(Respondent's Exhibit 9 at 71) To the contrary, Dries testified at the evidentiary hearing
that he was not taking his medications when he changed his plea (Respondent's Exhibit
9 at 249):
Q: Around the time of the entry of the plea, were you taking all of your
medications as prescribed at the times prescribed?
A: No, I was — I was not taking them hardly at all then.
Q: What was the effect of that?
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A: It just made me feel that I was being — my environment had control of
me is the way I felt. I felt like that I had no control of my life. And that what
anybody said I had to do, is the way I felt about it at that time. I didn't feel
like I had any control, I was completely out of control.
Based on his testimony at the evidentiary hearing, Dries complains that his plea was
involuntary because he had not taken his medications.
In resolving this conflict whether Dries was or was not taking his medications, the
post-conviction judge ruled that Dries failed to show that his plea was not "freely,
knowingly, or voluntarily made" (Respondent's Exhibit 9 at 301-02) (citations to record
omitted):
Claim One alleges the Court erred in finding the Defendant's plea to be
voluntary, as the Defendant was not on his prescribed medications at the
time the plea was made. Specifically, the Defendant alleges that the lack
of this medication made him unable to understand the consequences of the
plea. However, the plea transcript, when considered as a whole, does not
support a finding that the plea was not knowingly, voluntarily, and freely
made. The trial judge asked the Defendant if he was mentally impaired by
the medication, and the Defendant indicated he takes medication, but it
does not impede his ability to "accept knowledge and decipher it." His
defense counsel, Mr. Mars, had conversations with him on the day of the
plea and detected no indication of incoherency. Further, the trial judge also
inquired whether anyone had coerced or threatened the Defendant into
entering a plea of Nolo Contendere and the Defendant answered, "they
have not." The evidence presented at the hearing does not support a
finding that the Defendant's plea was not freely, knowingly, or voluntarily
made.
The reasonableness of the above ruling is supported by the testimony Dr. Henry Dee,
the psychologist who evaluated Dries after the plea and testified at both the sentencing
and the post-conviction evidentiary hearings. Dr. Dee testified that Dries was "unusually
complaint" in "religiously" taking his medications. (Respondent's Exhibit 9 at 218-20)
Dries's trial counsel testified that, although Dries had "mental difficulties," on the day of
the change of plea Dries was sad and remorseful but never appeared confused, "tongue- 10 -
tied," or unable to understand the court proceedings. (Respondent's Exhibit 9 at 167,
197, and 201) Because the state court's ruling is not an unreasonable determination of
the facts, Dries fails to meet his burden of proof.
INEFFECTIVE ASSISTANCE OF COUNSEL
Dries claims ineffective assistance of counsel, a difficult claim to sustain. "[T]he
cases in which habeas petitioners can properly prevail on the ground of ineffective
assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511
(11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)).
Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of
counsel claim:
The law regarding ineffective assistance of counsel claims is well settled
and well documented. In Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Supreme Court set forth a
two-part test for analyzing ineffective assistance of counsel claims.
According to Strickland, first, the defendant must show that counsel's
performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the "counsel"
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687, 104 S. Ct. 2052.
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
Strickland requires proof of both deficient performance and consequent prejudice.
Strickland, 466 U.S. at 697 ("There is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry if the defendant makes
an insufficient showing on one."); Sims, 155 F.3d at 1305 ("When applying Strickland, we
are free to dispose of ineffectiveness claims on either of its two grounds."). "[C]ounsel is
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strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at
690. "[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." 466 U.S. at 690. Strickland requires that "in light of all the
circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance." 466 U.S. at 690.
Dries must demonstrate that counsel's error prejudiced the defense because "[a]n
error by counsel, even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment." 466 U.S.
at 691-92. To meet this burden, Dries must show "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome." 466 U.S. at 694.
Strickland cautions that "strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on investigation."
466 U.S. at 690-91. Dries cannot meet his burden merely by showing that the avenue
chosen by counsel proved unsuccessful.
The test 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 . . . . We are not
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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). Accord Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in
every case, could have done something more or something different. So, omissions are
inevitable . . . . [T]he issue is not what is possible or 'what is prudent or appropriate, but
only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S.
776, 794 (1987)). See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (counsel has no
duty to raise a frivolous claim).
Dries must prove that the state court's decision was "(1) . . . contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States or (2) . . . 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). In determining "reasonableness," a federal petition
for the writ of habeas corpus authorizes an independent assessment of "whether the
state habeas court was objectively reasonable in its Strickland inquiry" but not an
independent assessment of whether counsel's actions were reasonable. Putnam v.
Head, 268 F.3d 1223, 1244 n.17 (11th Cir. 2001), cert. denied, 537 U.S. 870 (2002).
Sustaining a claim of ineffective assistance of counsel is very difficult because "[t]he
standards created by Strickland and § 2254(d) are both 'highly deferential,' and when the
two apply in tandem, review is 'doubly' so." Richter, 131 S. Ct. at 788. See also
Pinholster, 131 S. Ct. at 1410 (A petitioner must overcome this "'doubly deferential'
standard of Strickland and the AEDPA."), and Johnson v. Sec'y, Dep't of Corr., ___ F.3d
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___, No. 09-15344 (June 14, 2011) ("Double deference is doubly difficult for a petitioner
to overcome, and it will be a rare case in which an ineffective assistance of counsel claim
that was denied on the merits in state court is found to merit relief in a federal habeas
proceeding.").
The state court correctly recognized that Strickland governs each claim of
ineffective assistance of counsel. (Respondent's Exhibit 9 at 302) Consequently, Dries
cannot meet the "contrary to" test in Section 2254(d)(1). Dries instead must show that
the state court unreasonably applied Strickland or unreasonably determined the facts.
Because of the presumption of correctness and the highly deferential standard of review,
the analysis of each claim begins with the state court's analysis.
Ground VI
Dries alleges that trial counsel rendered ineffective assistance by erroneously
advising him that he had to prove his innocence. The post-conviction court conducted
an evidentiary hearing and denied this claim as follows (Respondent's Exhibit 9 at 302)
(citation to record omitted):
Claim Six alleges ineffective assistance of counsel because the Defendant
only entered a plea of "No Contest" after his attorney informed him that he
had the burden to prove his innocence; and to the extent that his plea is
based on incorrect legal advice, it is involuntary. . . .4 Defense Counsel
Mars testified that he did discuss with the Defendant the burden of proof
and the realities of a jury trial. He said that jurors do want to hear from the
defendant in cases of this nature and that it would be best for the
defendant to establish his innocence rather than rely upon the failure of the
State to prove his guilt. At the time of the plea he was informed that he did
not need to testify at the trial, and the jury would be instructed not to hold
that against him. Since there is no evidence presented at the hearing
showing Counsel did anything unreasonable, the evidence does not
4
The court's Strickland analysis is omitted.
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establish that Counsel was deficient. Thus, the evidence presented at the
hearing does not support a finding that Counsel was ineffective on this
issue.
Trial counsel testified that he advised Dries about both the burden of proof and
the presumption of innocence "the same way [he has] dealt with all of [his] other criminal
clients over the last 33 years of [his] extensive practice." (Respondent's Exhibit 9 at
204) At the evidentiary hearing Dries confirmed his allegation that his trial counsel told
him that he had the burden of proving his innocence. The state court's credibility
determination (that counsel’s testimony was credible over that of Dries) and the factual
determination (that counsel never advised Dries that he had to prove his innocence) bind
this court. Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998) ("We must accept
the state court's credibility determination and thus credit [counsel's] testimony over
[petitioner's]."), cert. denied, 526 U.S. 1047 (1999) and Devier v. Zant, 3 F.3d 1445, 1456
(11th Cir. 1993) ("Findings by the state court concerning historical facts and
assessments of witness credibility are, however, entitled to the same presumption
accorded findings of fact under 28 U.S.C. § 2254(d)."), cert. denied, 513 U.S. 1161
(1995). See also 28 U.S.C. § 2254(e)(1) ("[A] determination of a factual issue made by a
State court shall be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence."). Dries
provides no basis for this court to reject the state court's credibility determination. The
state court reasonably applied Strickland in determining that trial counsel's performance
was not deficient.
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Ground X
Dries alleges that trial counsel rendered ineffective assistance by failing to oppose
the prosecution's motion in limine to suppress evidence about the victim's blood-alcohol
level. The victim's blood-alcohol level was .12 compared to Dries's .234 blood-alcohol
level. The legal limit is .08. Trial counsel testified that he did not "think that there was
any dispute about the cause of the" accident. (Respondent's Exhibit 9 at 205) The
report of an expert in accident reconstruction was not exonerating evidence. Dries's was
indisputably remorseful and his principal concern was to avoid a trial for the sake of his
family and the victim's family. Before entering his guilty plea, Dries stated that he
understood that he would "give up the right to put on any defenses" and that he had
"been able to go over with [his] lawyer all available defenses . . . ." (Respondent's
Exhibit 9 at 104 and 106)
The post-conviction court conducted an evidentiary hearing and denied this claim
of ineffective assistance of counsel as follows (Respondent's Exhibit 9 at 302):
Claim Ten alleges the Defendant had ineffective counsel due to Counsel's
failure to effectively argue against a Motion in Limine . . . which sought to
prohibit the defense from offering evidence regarding the alcohol content in
the victim's blood. Trial counsel testified that he understood that to be a
correct statement of the existing law, and had no contrary legal authority.
As already mentioned, when reviewing Counsel's performance, great
deference is given to the attorney's challenged conduct. In addition, trial
counsel is not required to argue against controlling authority. See Pace v.
State, 854 So. 2d 167, 181 (Fla. 2003). Again, there is no evidence
presented at the hearing showing Counsel did anything unreasonable
regarding this issue. . . . The evidence presented at the hearing does not
support a finding that Counsel was ineffective on this issue.
Trial counsel determined that no basis existed for opposing the motion in limine.
See McGoey v. State, 736 So.2d 31, 35 (3d DCA 1999) ("The victim's impairment is
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irrelevant to the issue of McGoey's guilt or innocence on the crime as charged."). Dries
fails to show that trial counsel misunderstood the law. To the contrary, the
post-conviction court concurred with trial counsel's understanding of controlling state law.
The state court's determination that trial counsel's performance was not deficient was a
reasonable application of Strickland.
Accordingly, Dries's petition for the writ of habeas corpus (Doc. 1) is DENIED.
The clerk shall enter a judgment against Dries and close this case.
ORDERED in Tampa, Florida, on August 5, 2011.
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