Ellis v. Secretary, Department of Corrections et al

Filing 15

ORDER: The Petition for Writ of Habeas Corpus 1 is DENIED. The Clerk is directed to enter judgment in favor of Respondents and against the Petitioner, terminate any pending motions, and close this file. Because Petitioner is not entitled to a COA, he is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr on 6/22/2011. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JOSEPH ALFRED ELLIS
Petitioner,
v.

CASE NO: 8:10-CV-1765-T-30AEP

SECRETARY, DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.
________________________________/

ORDER
Petitioner, an inmate in the Florida penal system proceeding pro se, brings this
petition (Dkt. #1) for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed on August 9,
2009. The Court has considered the petition, the Respondents' response (Dkt. #9) filed on
November 30, 2010, and the Petitioner's reply (Dkt. #13) filed on January 3, 2011. Upon
review, the Court determines that the petition must be denied because the claims of
ineffective assistance of counsel are without merit.
BACKGROUND
Petitioner, Joseph Alfred Ellis (“Ellis”) was tried by a jury, found guilty of aggravated
stalking, and sentenced to five years in prison. Ellis then filed a direct appeal, raising the
issue that the trial court erred in denying defense counsel’s request for a continuance before
the jury had been sworn. The appellate court affirmed Ellis’s judgment and sentence in a per
curiam unwritten opinion. Ellis v. State, 5 So.3d 677 (Fla. 2d DCA 2009).

Ellis then filed a pro se motion for postconviction relief pursuant to Rule 3.850 of the
Florida Rules of Criminal Procedure. Ellis brought five allegations of ineffective assistance
of counsel, claiming trial counsel was ineffective for failing to: (1) call Deputy Dan Cash as
a witness at trial; (2) preserve the Motion for Continuance for appellate review; (3) prepare
the Defendant to testify; (4) make a plea offer to the State during trial; and (5) object to the
Court imposing the maximum sentence. The postconviction court denied all claims. Ellis
filed a motion for rehearing, and the postconviction court denied that as well.
Ellis appealed the rulings, and in his brief, complained that the postconviction court
erred in summarily denying his claim without an evidentiary hearing or attaching portions
of the record. The Second District Court of Appeal of Florida affirmed the lower court’s
denial of the motion for postconviction relief on a silent per curiam opinion. Ellis v. State,
41 So.3d 222 (Fla. 2d DCA 2010).
On August 4, 2010, Ellis submitted the § 2254 petition to prison officials, asserting
one ground for relief with five allegations of ineffective assistance of trial counsel.
Standard of Review
Ellis alleges a denial of his constitutional Sixth Amendment right to counsel. The
standard to determine whether the right to effective assistance of counsel has been violated
is “whether counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.” Strickland v.
Washington, 466 U.S. 668, 686 (1984). Counsel is presumed competent to assist a
defendant; the burden is on the petitioner to demonstrate the denial of the effective assistance
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of counsel. United States v. Cronic, 466 U.S. 648, 658 (1984). To vacate the conviction, the
petitioner must show “by a preponderance of competent evidence,” Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000), that (1) counsel’s performance fell below an
objective standard of reasonable professional assistance and (2) defendant was prejudiced
by the deficient performance. Strickland, 466 U.S. at 687, 694.
To satisfy the prejudice prong under Strickland, the accused must establish that there
is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “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 in one.” Id. at 697.
Ground One (a):

Trial counsel was ineffective in failing to investigate and call
Deputy Dan Cash who would substantially impeach the victim’s
testimony in his case at bar.

Ellis has not met his burden of establishing that counsel was constitutionally
ineffective for failing to call Deputy Dan Cash as a witness at trial. Ellis asserts that trial
counsel should have made further attempts to find Deputy Cash and failed to inform the court
that to deny the request for a continuance would unduly prejudice the defense.
Ellis’ counsel subpoenaed Deputy Cash for trial. Upon learning Cash would be
unavailable for trial, the record shows that trial counsel did move for a continuance, arguing
that Cash was the main witness for the defense. Trial counsel also not only told the court that
she sent a subpoena to secure Deputy Cash’s presence, but she even proffered to the court
what Deputy Cash’s testimony would have been had he been present. Trial counsel
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explained that Deputy Cash had relevant information and knowledge of experiences between
March 7 and March 20 that possibly could exculpate Ellis. After hearing this argument, the
court still denied the motion.
In denying the motion for postconviction relief, the postconviction court reasoned that
“as the defense had already been granted multiple continuances, it is unlikely that the Court
would have been granted another.” Additionally, trial counsel filed a Motion for JOA or
JNOV, or New Trial, and Memorandum of Law and Argument in Support of Motion on
December 17, 2007, arguing that her defense was prejudiced by the court denying her Motion
for Continuance. This motion was also denied.
In sum, Ellis’ counsel did everything a reasonable attorney could do to secure the
testimony of Deputy Cash for trial. Thus, trial counsel’s performance was not deficient
because counsel did not make “errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
Ellis also asserts several grounds of fraud. First, Ellis claims that trial counsel lied
about actually serving Deputy Cash with a subpoena. However, in his Reply, Ellis admits
that a bar complaint response revealed the fact that trial counsel found the proof of service
of Deputy Cash’s subpoena the day after trial. Ellis also claims that trial counsel committed
fraud by not informing him or the court, until after the trial, that counsel became aware of the
proof of service. Since counsel did not find the proof of service of the subpoena until after
trial, and the court was unlikely to grant a continuance regardless of the fact, counsel’s
actions did not change the outcome of the proceedings. Ellis is unable to show that counsel’s
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actions constituted any type of fraud. This claim is without merit, and empty assertions are
inadequate to support an ineffective assistance of counsel claim. See David v. U.S., 134 F.3d
470, 478 (1st Cir. 1998).
Ground One (b):

Counsel’s failure to base her Motion for Continuance upon the
McKay court requirements, thereby, preserving the issue for
appellate review, was per se ineffective assistance of trial counsel.

Ellis is factually wrong. This issue was preserved for appeal. Trial counsel did move
for a continuance and argued to the court why Cash’s testimony was important for the
defense. Thus, trial counsel preserved the issue for appellate review by making this
argument. Therefore, trial counsel’s performance was not deficient because Ellis cannot
establish that counsel’s “performance fell below an objective standard of reasonableness .
. . under prevailing professional norms.” Strickland, 466 U.S. at 688.
Ellis also contends that trial counsel should have argued the requirements espoused
in McKay v. State, 504 So.2d 1280, 1282 (Fla. 1st DCA 1986). McKay lists seven factors
to consider when determining whether the denial of a motion for continuance was error due
to lack of adequate time to prepare a defense. McKay, 504 So.2d at 1282. But since trial
counsel merely needed a continuance to secure a witness and not additional time to prepare
the case for trial, McKay does not apply and this claim is without merit.
In his Reply, Ellis also appears to claim that trial counsel prejudiced the outcome of
his proceedings by requesting the court not to include the proof of service of the subpoena
of Deputy Cash in the record on appeal. The attached portion of the record in Ellis’ Reply
does not support this statement. Regardless of whether this statement is accurate, Ellis still
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fails to demonstrate how that was deficient performance of counsel. Thus, his claim does not
meet the burden under Strickland and is without merit.
Ground One (c):

Counsel’s failure to properly prepare defendant to testify in his
own behalf was deficient performance.

Ellis has failed to establish that counsel was constitutionally ineffective for failing to
prepare him to testify on his behalf at trial. Ellis claims that trial counsel should have known
what the State’s questions would be and should have deposed the State’s witnesses out of the
presence of the prosecutor. Ellis states that he thought Deputy Cash was going to testify and
that his trial counsel would provide him a copy of the depositions on the day of trial. Ellis
also claimed that Deputy Cash should have testified in his place because Deputy Cash was
more “artful with words” and that he would be able to better address the jury.
Ellis has failed to demonstrate how he was specifically prejudiced by any of the
claims above. It would have been impossible for trial counsel to know all of the State’s
questions.

Moreover, trial counsel could not have deposed the State’s witnesses

independently because the State has a right to be present when the depositions are conducted.
Ferrigno v. Yoder, 495 So.2d 886, 888 (Fla. 2d DCA 1986). According to the record, Ellis
was able to capably answer all of the state’s questions. As for the copy of the depositions,
what other witnesses said should not have influenced Ellis’ own testimony. Ellis was under
oath and other testimonies should not have changed his testimony. Thus, Ellis failed to show
that, but for the alleged deficiency, the result of the proceeding would have been different.
Strickland, 466 U.S. at 687.

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In his Reply, Ellis also contends that trial counsel failed to inform him of the strengths
and weaknesses of the State’s case and how Deputy Cash’s testimony would change the
outcome of the proceedings. Ellis also asserts that trial counsel knew that Deputy Cash
would be unavailable to testify and did not relay that information to him until the trial had
commenced. Ellis is factually incorrect. The Motion for Continuance was made at the
beginning of the trial. Moreover, trial counsel did proffer to the court what Deputy Cash’s
testimony would have been. Since Ellis fails to show how the outcome of the proceedings
would have been different, his claim fails.
Ground One (d):

Counsel failed to follow Ellis’s request to make a plea offer to the
State during trial.

Even if trial counsel was deficient for failing to make a plea offer to the prosecutor,
Ellis has not demonstrated how he was prejudiced and therefore does not meet the prejudice
prong of Strickland. Ellis requested, in the middle of trial prior to his case being presented,
that trial counsel approach the State and offer a plea bargain of one year in jail to avoid
prison. At this point, the State had already presented its case and was aware that Ellis’ main
witness, Deputy Cash, was not available to testify. Thus, the State was already in a very
strong position and Ellis has not shown that the State would have accepted the offer.
Moreover, not only did the victim request that Ellis be sentenced to prison, the State
mentioned that they were also seeking an extensive prison sentence.
Ellis again claims that trial counsel did not adequately prepare him to testify at trial
and did not provide a copy of the State’s discovery. But Ellis is unable to show that, “by a

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preponderance of competent evidence” he was prejudiced by this alleged deficient
performance of trial counsel. Chandler, 218 F.3d at 1313.
Ground One (e):

Counsel failed to object to the Court’s imposition of the maximum
sentence for a third degree felony, when her client had no prior
felony convictions in his criminal history, and probation would be
an appropriate sentence in this case.

Ellis has failed to show that counsel was ineffective for failing to object to the Court’s
imposition of the maximum sentence. Ellis believed that he should have received one year
in county jail followed by probation since he did not have a prior felony record. The record
indicates that trial counsel made this argument to the Court and the Court rejected the
argument. At this point, an actual objection would not have made a difference. Thus, trial
counsel’s performance cannot be deemed deficient.
CONCLUSION
Ellis has not met his burden under Strickland to show that his trial counsel was
constitutionally ineffective.
It is therefore ORDERED AND ADJUDGED that:
1.

The Petition for Writ of Habeas Corpus (Dkt. #1) is DENIED.

2.

The Clerk is directed to enter judgment in favor of Respondents and against
the Petitioner, terminate any pending motions, and close this file.

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to
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appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court
must first issue a certificate of appealability (COA). Id. "A [COA] may issue...only if the
applicant has made a substantial showing of the denial of a constitutional right." Id. at §
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) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve encouragement to proceed
further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463
U.S. 880, 893 n. 4 (1983)). Petitioner has not made the requisite showing in these
circumstances.
Finally, because Petitioner is not entitled to a COA, he is not entitled to appeal in
forma pauperis.
DONE and ORDERED in Tampa, Florida on June 22, 2011.

Copies Furnished To:
Counsel/Parties of Record
F:\Docs\2010\10-cv-1765.deny 2254.wpd

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