Cookinson v. Secretary, Department of Corrections et al
Filing
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OPINION AND ORDER denying petition for writ of habeas corpus; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the Clerk to ENTER JUDGMENT for the respondent, to TERMINATE any pending motion, and to CLOSE the case. Signed by Judge Steven D. Merryday on 9/30/2013. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WILLIE JAMES COOKINSON,
Petitioner,
v.
CASE NO: 8:10-cv-1751-T-23MAP
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS,
Respondent.
/
ORDER
THIS CAUSE comes before the Court on a pro se petition for writ of habeas
corpus and supporting memorandum of law filed, pursuant to 28 U.S.C. § 2254, by
Petitioner Willie James Cookinson (“Petitioner”), a Florida prisoner (Dkts. 1 & 2),
the response by the Secretary, Florida Department of Corrections (Dkt. 7), which is
accompanied by the appendix record of the state court proceedings (Dkt. 10), and a
reply to the response filed by Petitioner (Dkt. 12).
PROCEDURAL HISTORY1
Petitioner, a Florida prisoner, challenges a judgment of conviction rendered in
the Sixth Judicial Circuit Court in Pinellas County, Florida, on January 24, 2006.
(Dkts. 1 & 2) He was convicted after a jury trial of Trafficking in Hydrocodone, in
1
Petitioner concurs with this statement of his procedural history. (See Dkt. 12, p. 2)
violation of section 893.155, Florida Statutes, and sentenced to 25 years in prison.
(Ex. 28, R69, 72 and 74)2
Petitioner’s appellate counsel filed a brief on direct appeal of the judgment of
conviction in the Second District Court of Appeal, raising two issues:
I: The trial court erred in overruling the defense challenge to
the State peremptory strike of an African-American juror as
race-based, rendering the jury, other than an unused alternate,
non-African-American, where the state’s offered race-neutral
reason is unsupported by the record and the decision below thus
clearly erroneous; and
II: The trial court erred in granting the state motion in limine
prohibiting any defense evidence or argument as to the
percentage of Hydrocodone contained in each pill.
(Ex. 1) The State filed an answer brief (Ex. 2) and appellate counsel filed a reply
brief. (Ex. 3) On August 31, 2007, the Second District Court of Appeal filed a per
curiam opinion affirming Petitioner’s judgment of conviction and sentence. (Ex. 4)
The mandate issued on September 21, 2007. (Ex. 5)
On February 29, 2008, Petitioner filed a motion for post-conviction relief,
pursuant to Rule 3.850, Florida Rules of Criminal Procedure, raising thirteen
grounds for relief. (Ex. 6) The trial court entered an order summarily denying the
motion in part, with record attachments, and ordered the State to show cause on
grounds two and three. (Ex. 7) The State filed a response and Petitioner filed a
reply. (Exs. 8 and 9) The trial court entered a written order denying relief on
September 2, 2008 (Ex. 10)
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The exhibits cited throughout this Order can be found in the appendix record of
Petitioner’s state court proceedings at docket entry 10.
2
Petitioner filed a motion for rehearing on September 16, 2008, which the court
denied on October 13, 2008. (Exs. 11 and 12) He timely appealed the adverse ruling
to the Second District Court of Appeal and filed a brief asserting the following four
issues:
I. The trial court erred in summarily denying claim of
ineffective assistance of counsel for failure to file a motion of
disclosure;
II. The trial court erred in summarily denying claims of
ineffective assistance of counsel for failure to preserve issue for
appellate review;
III. The trial court erred in summarily denying claim of
ineffective assistance of counsel for failure to explain
defendant’s right to testify; and
IV. The trial court erred in summarily denying ineffective
assistance of counsel claim for failure to impeach witness
identification testimony.
(Ex. 13) The State did not file an answer brief and the appellate court per curiam
affirmed the trial court order on January 15, 2010. (Ex. 14) The mandate issued on
February 10, 2010. (Ex. 15)
On January 8, 2009, Petitioner filed a second motion for post-conviction relief,
under Rule 3.850, Florida Rules of Criminal Procedure. (Ex. 16) The trial court
entered an order dismissing the motion as successive on February 11, 2009. (Ex. 17)
Petitioner timely appealed to the Second District Court of Appeal and the court
entered its per curiam affirmance on January 15, 2010. (Ex. 18) The mandate issued
on February 10, 2010. (Ex. 19)
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On January 15, 2007, Petitioner filed a motion to correct an illegal sentence,
under Rule 3.800, Florida Rules of Criminal Procedure, and alleged that his sentence
is illegal because Vicodin is a Schedule III drug rather than a Schedule II drug.
(Ex. 20) The trial court entered an order dismissing the motion on February 14,
2008. (Ex. 21) Petitioner appealed to the Second District Court of Appeal and the
court per curiam affirmed the trial court order on August 20, 2008. (Ex. 22) The
mandate issued on September 8, 2008. (Ex. 23) No appellate briefs were filed in that
case. (Ex. 24)
Petitioner filed a petition for the writ of habeas corpus in the Second District
Court of Appeal on June 2, 2008, alleging that appellate counsel failed to raise an
issue of an incorrect verdict form. (Ex. 25) The appellate court construed the claim
as alleging ineffective assistance of appellate counsel and denied relief on June 10,
2008. (Ex. 26) No appeal was pursued. (Ex. 27)
PETITIONER’S FEDERAL HABEAS CLAIMS
Petitioner timely submitted the instant § 2254 petition to prison officials for
mailing on August 3, 2010. He raises the following two claims for relief:
I. Petitioner was deprived of his Sixth Amendment right to
effective assistance of counsel during trial because his attorney
failed to properly preserve his Batson3 challenge. The state
attorney failed to state a reason supported by the record to strike
a prospective black juror from the panel and defense counsel’s
omission prevented the issue from being reviewed by the
appellate court;
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Batson v. Kentucky, 476 U.S. 79 (1986).
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II. Petitioner was deprived of his Sixth Amendment right to
effective assistance of counsel during trial because his attorney
failed to properly advise him about testifying in his own
defense. He claims that had counsel advised him that he could
testify and only be asked generally about the number of his
prior convictions, rather than the nature of the prior offenses, he
would have definitely testified in his own defense.
Respondent correctly argues that both claims lack merit.
THE AEDPA STANDARD OF REVIEW
The instant federal petition is governed by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) effective April 24,1996. See Lindh v. Murphy, 521
U.S. 320, 336 (1997). Section 104 of the AEDPA amended 28 U.S.C. § 2254 by
adding the following provision:
(d) 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.
Section 2254, as amended by the AEDPA, establishes a highly deferential standard
for reviewing state court judgments. Parker v. Secretary, Dep’t of Corr., 331 F.3d 764
(11th Cir. 2003) (citing Robinson v. Moore, 300 F.3d 1320, 1342 (11th Cir. 2002)).
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Section 104 applies to his petition because Petitioner filed his petition for writ of
habeas corpus after the enactment of the AEDPA.
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 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. Cullen v. Pinholster, 131 S.Ct. 1388, 13981401 (2011). In addition, section 2254(e)(1) “provides for a highly deferential
standard of review for factual determinations made by a state court.” Robinson, 300
F.3d at 1342. The federal court will presume the correctness of state court findings of
fact, unless the petitioner is able to rebut that presumption by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1). When measured against the AEDPA standard,
it is clear that the instant petition is due to be denied.
STANDARD OF REVIEW FOR
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
A petitioner claiming ineffective assistance of counsel must meet the two-part
standard for counsel’s performance established by Strickland v. Washington, 466 U.S.
668 (1984). To establish a prima facie claim of ineffective assistance of counsel, the
petitioner must show that counsel’s performance was deficient and that the deficient
performance prejudiced the defense. Id. at 687. Deficient performance is performance
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which is objectively unreasonable under prevailing professional norms. Id. at 688.
Sound tactical decisions within a range of reasonable professional competence are not
vulnerable to collateral attack. See, e.g., Weber v. Israel, 730 F.2d 499, 508 (7th Cir.)
(finding that choosing a defense is a matter of trial strategy), cert. denied, 469 U.S. 850
(1984); United States v. Guerra, 628 F.2d 410, 413 (5th Cir. 1980), cert. denied, 450 U.S.
934 (1981). Prejudice results when there is “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. The 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)). Petitioner’s claims fail under the Strickland standard.
DISCUSSION
Ground One
In this claim of ineffective assistance of counsel, Petitioner argues that the
prosecutor failed to state a reason supported by the record for striking a black juror
from the venire and that his defense counsel failed to object to the proffered reason,
thereby waving the Batson challenge for appellate review. He first raised the Batson
claim in his direct appeal, arguing the trial court erred in overruling his challenge to
the State’s peremptory strike of the black juror where the State’s reason for the backstrike was not supported in the record. (Ex. 1) The Second District Court of Appeal
entered a per curiam affirmance. Petitioner then raised the issue in his Rule 3.850
motion for post-conviction relief in the trial court, but couched it in terms of
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ineffective assistance of trial counsel. He argued, as he does now, that while defense
counsel objected to the prosecutor’s request to strike the black juror and asked for a
race-neutral reason for the strike, his counsel did not object to the prosecutor’s reason
for striking the juror and thereby waived the issue for appellate review. Petitioner
argued that he was “severely prejudiced” by his counsel’s failure to preserve the issue
for review. He did not argue, however, that appellate review would have resulted in
a reversal or the granting of a new trial.
The trial court considered the record and the applicable law and then ruled as
follows:
Under ground two, the Defendant alleges that his counsel failed
to preserve a Batson challenge for appellate review. The
Defendant contends that, in support of a peremptory challenge
to strike a juror, the State offered a basis that was inconsistent
with the record but counsel failed to bring the issue to the
court’s attention.
Trial counsel’s failure to preserve an issue for appellate review
can form a basis for a claim of ineffective assistance of counsel.
See Daniels v. State, 27 Fla. L. Weekly D177 (Fla. 4th DCA
Jan. 16, 2002). To preserve for appellate review a trial court’s
denial of an objection to a peremptory strike, counsel must
contest the factual basis offered by challenging its factual
existence within the record. See, e.g., State v. Fox, 587 So. 2d 464
(Fla. 1991).
The record reflects that during the jury selection conference, the
State utilized a peremptory challenge to strike juror Walter
Starling, an African American. See Exhibit B of previous order:
Excerpt of Jury Trial – Voir Dire at 72. Defense counsel
challenged the State’s striking of Mr. Starling from the venire,
and as a basis for its strike the State explained that it wished to
exclude Mr. Starling because he had stated that he had several
family members who had used crack cocaine. Defense counsel
did not challenge the State’s explanation.
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The transcript of the jury selection process does not reflect that
juror Walter Starling made any statements concerning family
members who used crack cocaine. However, in Carratelli v.
State, 961 So. 2d 312 (Fla. 2007), the supreme court held that
the defendant, alleging ineffective assistance of counsel for
failure to object/preserve claim of reversible error in jury
selection, was required to demonstrate prejudice at trial, rather
than on appeal (i.e., show, in that case, that the juror was
actually biased).
The factual basis offered by the State does not appear to be
consistent with the record. Nonetheless, the defendant fails to
identify anything within the record to show that the trial was
prejudiced as a result of the exclusion of Mr. Starling as a juror.
In this regard, the Defendant’s allegation fails to satisfy the
prejudice prong of a Strickland analysis. Ground Two of the
Defendant’s Motion for Post-conviction Relief will accordingly
be denied.
(Ex. 10, p. 2) Petitioner appealed the adverse ruling and the Second District Court of
Appeal per curiam affirmed without written decision. (Ex. 14)
Contrary to Petitioner’s assertions, his claim was adjudicated on the merits in
state court and, thus, he is not entitled to federal habeas relief unless the adjudication
of the claim 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. Petitioner fails to make such a showing.
In Carratelli v. Stepp, No. 09-13349, 2010 WL 2331421 (11th Cir. June 11,
2010), the petitioner claimed his counsel was ineffective because he raised an
objection to jury selection but then failed to properly preserve it for appeal. The
Eleventh Circuit held that there was no clearly established federal law by the
Supreme Court specifically addressing whether the federal court should examine the
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prejudice on appeal rather than at trial in a case like this one. Accordingly, the court
held that the district court correctly affirmed the state court decisions holding that the
relevant prejudice inquiry should focus on the trial, not on appeal. Id. at 3.
Petitioner fails to show that he was prejudiced in his trial due to counsel’s
failure to object to the prosecutor’s reason for back-striking juror Starling from the
venire. Had counsel objected to the stated reason on the basis that it was not
supported by the record, it is unknown whether the prosecutor would have then
stated a race-neutral reason supported by the record, much less whether the outcome
of the trial would have been different. It is Petitioner’s burden to show that the
outcome of the trial would have been different, and he fails to carry that burden. See
Acker v. Sec’y, Fla. Dep’t of Corr., No. 8:07-cv-263-T-30TBM, 2009 WL 1149438, at *611 (M.D. Fla. Apr. 28, 2009); Puryear v. Sec’y, Dep’t of Corr., No. 8:09-cv-2586-T30EAJ, 2010 WL 2991432, at *3-4 (M.D. Fla. July 27, 2010). Furthermore, the trial
court record reveals that Petitioner personally accepted the jury panel before it was
sworn when questioned by the judge. (See Ex. 28, pp. 250-53) It was reasonable to
assume from Petitioner’s action that he abandoned his earlier objection.
Ground Two
In his second claim of ineffective assistance of counsel, Petitioner argues that
the trial court advised him not to testify because the State would be able to question
him about the specific nature of his prior convictions and that defense counsel was
ineffective for failing to correct Petitioner’s subsequent misunderstanding of his right
to testify and the potential consequences of testifying. Petitioner raised the claim
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with the trial court in his Rule 3.850 motion for post-conviction relief and, after
careful consideration of the record of Petitioner’s state court proceedings and the
relevant law, the trial court found as follows:
Under ground three, the Defendant claims that his attorney
interfered with the Defendant’s right to testify by failing to
adequately explain such right. The Defendant submits that he
chose not to testify believing that the State would be permitted
to inquire into the nature of his prior offenses. The Defendant
suggests that his attorney should have corrected this
misunderstanding.
The colloquy conducted by the court shows that the court
inquired as to the Defendant’s understanding of his right to
testify. Specifically, during the colloquy, the court stated: And
should you choose to testify, the State would be allowed to
cross-examine you on any prior convictions for felonies or
crimes involving dishonesty or moral turpitude and how many
times you’ve been convicted on those crimes. Do you
understand that?” The Defendant responded, “Yes, sir.” See
State’s Exhibit 2 at 85.
In its colloquy, the court did not misadvise the Defendant that
the State would be permitted to inquire into the nature of his
prior offenses. The State’s ability to cross-examine a defendant
about prior offenses turns upon whether the defendant tells the
truth about the existence of his or her prior offenses. Had the
Defendant here denied his prior offenses, the State would have
been permitted to introduce certified records of the convictions.
Gavins v. State, 587 So. 2d 487 (Fla. 1st DCA 1991). The mere
fact that the Defendant believed that the State could
automatically inquire into the nature of prior offenses does not
satisfy the deficiency prong of Strickland. The Defendant’s claim
does not present any deficiency of counsel, but merely suggests
that counsel should have corrected the Defendant’s
misunderstanding following the court’s accurate colloquy. This
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is not a basis for post-conviction relief. Ground Three of the
Defendant’s Motion for Post-conviction Relief will accordingly
be denied.
(Ex. 10, p. 3)
Once again, the state court adjudication of the merits of the claim did not
result 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. The trial court properly found that Petitioner had not been misadvised about
testifying. The ability of the State to cross-examine a defendant about prior offenses
turns upon whether the defendant tells the truth about the existence of his prior
offenses and, therefore, had Petitioner denied his prior offenses, the State would have
been permitted to introduce certified records of the convictions. See Gavins v. State,
587 So. 2d 487, 489-90 (Fla. Dist. Ct. App. 1991); see also Ragoobar v. State, 893 So. 2d
647, 649 (Fla. Dist. Ct. App. 2005) (denying a defendant’s claim where “the record in
th[e] case showed that the court covered th[e] matter [at issue] and that the defendant
could not have reasonably relied on counsel’s advice to the contrary.”). Ground Two
of the petition fails to demonstrate deficient performance or prejudice under the
Strickland test for ineffective assistance of trial counsel .
Accordingly, he petition for writ of habeas corpus is DENIED. The clerk
must enter a judgment for the respondent, terminate any pending motion, and close
this case.
Additionally, the court declines to issue a certificate of appealability because
Petitioner has failed to make a substantial showing of the denial of a constitutional
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right as required by 28 U.S.C. § 2253(c)(2). Nor will the Court allow Petitioner to
proceed on appeal in forma pauperis because such an appeal would not be taken in
good faith. See 28 U.S.C. § 1915(a)(3). Instead, he will be required to pay the full
amount of the appellate filing fee pursuant to 28 U.S.C. §§ 1915(b)(1) and (2).
ORDERED in Tampa, Florida, on September 30, 2013.
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