DeSautel v. Secretary, Department of Corrections et al
Filing
21
OPINION AND ORDER. DeSautel's petition for writ of habeas corpus 1 is DENIED. The Clerk is instructed to enter judgment against DeSautel and close this case. It is further ORDERED that DeSautel is not entitled to a certificate of appealability and he is not entitled to appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 9/29/2015. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JASON RYAN DESAUTEL,
Petitioner,
v.
Case No. 8:12-cv-1014-T-36TGW
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
_______________________________/
ORDER
Petitioner Jason Ryan DeSautel, an inmate in the Florida Department of Corrections
proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt.
1). He challenges his conviction entered in 2004 by the Circuit Court for the Twelfth
Judicial Circuit, Manatee County, Florida. Respondent filed a response (Dkt. 9), and
DeSautel filed a reply (Dkt. 16). Upon review, the petition must be denied.
PROCEDURAL HISTORY
A jury convicted DeSautel of robbery with a firearm, finding that he carried a firearm
during the course of the crime. (Ex. 2.) He received a sentence of forty years in prison,
with a ten-year minimum mandatory term for carrying a firearm. (Ex. 2.) The state
appellate court per curiam affirmed DeSautel’s judgment and sentence. (Ex. 6.) DeSautel
filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850,
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followed by an amended motion. (Exs. 8, 9.) The state court summarily denied DeSautel’s
postconviction claims, and the state appellate court per curiam affirmed the denial. (Exs.
10, 13.) While his postconviction motion was pending, DeSautel filed a petition for writ of
habeas corpus alleging ineffective assistance of appellate counsel. (Ex. 15.) The state
appellate court denied the petition without comment. (Ex. 16.) Respondent does not
contest the timeliness of DeSautel’s federal habeas petition.
FACTS1
At approximately 6:30 to 6:45 a.m. on May 15, 2003, Roy and Marjorie Vanderklok
were in their driveway, loading their car for a trip and talking to a neighbor. Roy Vanderklok
saw a white Dodge Neon with a blue pinstripe slowly drive past. Two black men were in
the front of the car and one white man was in the back. The car traveled out of sight but
returned about three minutes later and stopped. The white man in the back seat exited the
vehicle from the rear driver’s side door, holding a gun in his hand. He approached Roy
Vanderklok, pointed the gun at him, and demanded his wallet. The man took a day planner
from Roy Vanderklok’s shirt pocket and got back into the car. The car drove away.
Roy Vanderklok called 911 and provided the car’s license plate number, along with
a description of the car and its occupants. Deputy Brett Getman observed a vehicle
matching the description at approximately 7:00 a.m. After officers chased the car for about
ten minutes, it crashed. A white male jumped out of the back seat. Deputy Angelo
Buxeda, who had joined the vehicle chase, followed the man and caught him. Buxeda kept
the man in his sight from the time the man exited the crashed car until the time he was
1
This summary is derived from the briefs on appeal and the evidence adduced at trial.
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apprehended. The man identified himself as Jason DeSautel when Buxeda took him back
to the scene of the crash. Deputy Dennis Sanders, Jr., who responded to the crash, looked
into the car and saw a revolver on the floorboard of the front passenger’s side. Sanders
took the gun out of the car and removed five live rounds and a spent shell.
At approximately 7:45 to 8:00 a.m., Roy Vanderklok was taken to the scene of the
crash. Vanderklok recognized the car and identified DeSautel as the man who robbed him
at gunpoint. Vanderklok had no doubt with regard to his identification. He also identified
one of the other suspects as the driver of the car.
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). Habeas relief can only be granted if a petitioner is in custody
“in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Section 2254(d), which sets forth 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.
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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”
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. 685, 694 (2002). “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, 562 U.S. 86, 103 (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 [the federal court is] 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, 529
U.S. at 412.
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The purpose of federal review is not to re-try the 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.” Cone, 535 U.S. at 693. In other words, “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, 559 U.S. 766, 779
(2010). See also Cullen v. Pinholster, _U.S._, 131 S. Ct. 1388, 1398 (2011) (“This is a
‘difficult to meet,’ . . . and ‘highly deferential standard 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
the denial of DeSautel’s postconviction motion. The state appellate court also denied
DeSautel’s state habeas petition without comment. These decisions 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, 562 U.S. at 99 (“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 statelaw procedural principles to the contrary.”).
Review of the state court decision is limited to the record that was before the state
court. Pinholster, 131 S. Ct. at 1398. DeSautel bears the burden of overcoming by clear
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and convincing evidence a state court factual determination. “[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.” 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).
EXHAUSTION OF STATE REMEDIES; PROCEDURAL DEFAULT
Before a district court can grant habeas relief to a state prisoner under § 2254, the
petitioner must exhaust all state court remedies that are available for challenging his
conviction, either on direct appeal or in a state postconviction motion. See § 2254(b)(1)(A);
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state
courts an opportunity to act on his claims before he presents those claims to a federal court
in a habeas petition.”). See also Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir.
2003) (“A state prisoner seeking federal habeas relief cannot raise a federal constitutional
claim in federal court unless he first properly raised the issue in the state courts.”) (citations
omitted). A state prisoner “‘must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate
review process,’ including review by the state’s court of last resort, even if review in that
court is discretionary.” Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) (quoting
O’Sullivan, 526 U.S. at 845).
To exhaust a claim, a petitioner must make the state court aware of both the legal
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and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.
1998) (“Exhaustion of state remedies requires that the state prisoner ‘fairly presen[t] federal
claims to the state courts in order to give the State the opportunity to pass on and correct
alleged violations of its prisoners’ federal rights.’”) (quoting Duncan v. Henry, 513 U.S. 364,
365 (1995)). A federal habeas petitioner “shall not be deemed to have exhausted the
remedies available in the courts of the State . . . if he has the right under the law of the
State to raise, by any available procedure, the question presented.” Pruitt, 348 F.3d at
1358. The prohibition against raising an unexhausted claim in federal court extends to both
the broad legal theory of relief and the specific factual contention that supports relief.
Kelley v. Sec’y, Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).
The requirement of exhausting state remedies as a prerequisite to federal review is
satisfied if the petitioner “fairly presents” his claim in each appropriate state court and alerts
that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404
U.S. 270, 275-76 (1971) (federal courts “have required a state prisoner to present the state
courts with the same claim he urges upon the federal courts.”). Therefore, to exhaust a
claim, a petitioner must “do more than scatter some makeshift needles in the haystack of
the state court record.” McNair v. Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005).
The doctrine of procedural default provides that “[i]f the petitioner has failed to
exhaust state remedies that are no longer available, that failure is a procedural default
which will bar federal habeas relief, unless either the cause and prejudice or the
fundamental miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d
1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner “must
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demonstrate that some objective factor external to the defense impeded the effort to raise
the claim properly in state court.” Wright v. Hopper, 169 F. 3d 695, 703 (11th Cir. 1999).
See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must
demonstrate not only that the errors at his trial created the possibility of prejudice but that
they worked to his actual and substantial disadvantage and infected the entire trial with
error of constitutional dimensions. United States v. Frady, 456 U.S. 152 (1982). The
petitioner must show at least a reasonable probability of a different outcome. Henderson,
353 F.3d at 892; Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).
Alternatively, a petitioner may obtain federal habeas review of a procedurally
defaulted claim if review is necessary to correct a fundamental miscarriage of justice.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96.
A
fundamental miscarriage of justice occurs in an extraordinary case where a constitutional
violation has probably resulted in the conviction of someone who is actually innocent.
Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892. This exception
requires a petitioner’s “actual” innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th
Cir. 2001). To meet this standard, a petitioner must show a reasonable likelihood of
acquittal absent the constitutional error. Schlup, 513 U.S. at 327.
DISCUSSION
Ground One
DeSautel asserts that the state trial court erred in making two evidentiary rulings,
resulting in a violation of his federal due process rights.
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DeSautel presented a
misidentification defense, alleging that Michael Snodgrass, the owner of the car involved
in this incident, committed the robbery. DeSautel argues that the trial court erred when it
excluded evidence that Snodgrass failed to appear for a deposition, which he believes
showed that Snodgrass tried to avoid prosecution. DeSautel further asserts that the trial
court erred by allowing the State to introduce a gun that could not be connected to him.
DeSautel raised these claims of trial court error on direct appeal. (Ex. 4.) However,
he did not raise the constitutional dimension of the claims to the state appellate court. (Id.)
“If state courts are to be given the opportunity to correct alleged violations of prisoners’
federal rights, they must surely be alerted to the fact that the prisoners are asserting claims
under the United States Constitution.” Zeigler v. Crosby, 345 F.3d 1300, 1307 (11th Cir.
2003) (quoting Duncan v. Henry, 513 U.S. 364 (1995)). “[T]o exhaust state remedies,
petitioners must . . . articulate the constitutional theory serving as the basis for relief.” Id.
(quoting Henry v. Dep’t of Corr., 197 F.3d 1361, 1366 (11th Cir. 1999)).
By failing to raise a federal constitutional question in his state court pleading,
DeSautel did not exhaust the claims presented in his federal habeas petition. See Duncan,
513 U.S. at 365-66; Picard, 404 U.S. at 275-76; McNair, 416 F.3d at 1303. DeSautel
cannot return to state court to file an untimely, successive direct appeal. See Fla. R. App.
P. 9.140. Consequently, these claims are procedurally defaulted. See Smith v. Jones, 256
F.3d at 1138. DeSautel neither argues nor demonstrates that the cause and prejudice or
fundamental miscarriage of justice exception applies to overcome the default. Id.
Within Ground One, DeSautel also claims that the per curiam affirmance issued by
the state district court of appeal was not an adjudication on the merits of his claims and
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deprived him of his right to be heard by the Florida Supreme Court, thereby violating his
federal rights to due process and equal protection. To the extent DeSautel intends to raise
an independent claim for relief, it must fail. Preliminarily, this is not a valid ground for relief
because it challenges state procedure rather than the validity of DeSautel’s conviction. It
is not within the purview of a federal habeas court to determine whether the state courts
followed proper state procedure unless any error amounts to a federal constitutional
violation. See Dorsey v. Chapman, 262 F.3d 1181, 1190 n.11 (11th Cir. 2001); McCullough
v. Singletary, 967 F.2d 530, 535-36 (11th Cir. 1992).
DeSautel does not establish that the district court of appeal failed to hear the merits
of his claims. See, e.g., Crittenden v. State, 67 So.3d 1184, 1185 n.1 (Fla. 5th DCA 2011)
(“We reiterate that a per curiam affirmance without opinion is not an indication that the case
was not considered on the merits. Each and every appeal receives the same degree of
attention.”). Nor does he show that he had a right to be heard by the Florida Supreme
Court, which has explained that it is without authority to hear an appeal of a per curiam
affirmance because of the limitations on its jurisdiction set forth in Article V, section 3(b),
of the Florida Constitution. See Wells v. State, 132 So.3d 1110, 1112-13 (Fla. 2014). See
also Fla. R. App. P. 9.030(a)(2). Accordingly, “a district court [of appeal’s] decision
rendered without opinion or citation constitutes a decision from the highest state court
empowered to hear the cause.” Wells, 132 So.3d at 1112 (quoting Fla. Star v. B.J.F., 530
So.2d 286, 288 n.3 (Fla. 1998)).
DeSautel asserts that he would have been able to invoke the Florida Supreme
Court’s discretionary jurisdiction had the district court of appeal entered a written opinion.
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However, he does not show that the district court of appeal was obligated to enter a written
opinion. Even assuming the district court of appeal had done so, it is not apparent that the
opinion would have provided a basis to invoke the Florida Supreme Court’s discretionary
jurisdiction, or that that Court would have exercised its discretionary jurisdiction and
reviewed his case. DeSautel does not establish a constitutional violation, and this claim
cannot provide federal habeas relief. Accordingly, DeSautel is not entitled to relief on
Ground One.
Ground Two
DeSautel alleges ineffective assistance of trial counsel in Ground Two. He raises
nine sub-claims.
Standard For Claims Of Ineffective Assistance Of Counsel
Ineffective assistance of counsel is 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)). Claims of ineffective
assistance of counsel are analyzed under the test set forth in Strickland v. Washington, 466
U.S. 668 (1984):
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.
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Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998). In order to show deficient
performance, a petitioner must demonstrate that “in light of all the circumstances, the
identified acts or omissions [of counsel] were outside the wide range of professionally
competent assistance.” Strickland, 466 U.S. at 690. However, “counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Id. Additionally, “a court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on
the facts of the particular case, viewed as of the time of counsel’s conduct.” Id.
DeSautel must demonstrate that counsel’s alleged errors 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.” Id. at 691-92. To show prejudice, a petitioner 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.” Id. at 694.
Counsel’s 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.” Id. at 690-91. A petitioner
cannot meet his burden merely by showing that counsel’s choices were 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 interested
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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)).
Sustaining a claim of ineffective assistance of counsel on federal habeas review 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, 562 U.S.
at 105 (citations omitted). See also Pinholster, 131 S. Ct. at 1410 (a petitioner must
overcome the “‘doubly deferential’ standard of Strickland and AEDPA.”).
If a claim of ineffective assistance of counsel can be resolved through one of the
Strickland test’s two prongs, the other prong need not be considered. 466 U.S. at 697
(“[T]here 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.”).
Sub-claim One
DeSautel argues that counsel was ineffective for not moving to suppress Roy
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Vanderklok’s out-of-court identification.2 DeSautel claims that the suggestive circumstances
of the show up led Vanderklok to misidentify him. DeSautel additionally claims that
counsel’s ineffective assistance deprived him of his right to due process and prevented an
adversarial testing of the State’s case. DeSautel raised this claim in his postconviction
motion, which the state court summarily denied:
In order to prevail on this claim, the Defendant must allege facts sufficient to
show that his counsel had a valid basis for filing a motion to suppress and
that there is a reasonable probability the motion would have been granted.
Without expressly ruling on the former, the Court finds that the Defendant’s
claims under this ground fail to meet the latter requirement.
This case involved a “show-up” identification, which “occurs when the
police take a witness shortly after the commission of an observed crime to
where they are detaining a suspect, thereby giving the witness an opportunity
to identify the suspect as the perpetrator of the crime.” Although “show-up
identifications “always carry some degree of suggestiveness because the
witness is presented with only one suspect for identification,” such an
identification “is not invalid if it does not give rise to a substantial likelihood
of irreparable misidentification given the totality of the circumstances.” The
Second District Court of Appeal has summarized the test and factors a court
should consider when determining whether an out-of-court identification
should be suppressed:
“The determination of whether to exclude an out-of-court
identification is determined by a two-pronged test: (1) whether
the police used an unnecessarily suggestive procedure and
(2), if so, considering all the circumstances, whether the
suggestive procedure gave rise to a substantial likelihood of
irreparable misidentification. The factors to be considered in
evaluating the likelihood of misidentification include (1) the
opportunity of the witness to view the criminal at the time of the
crime, (2) the witness’s degree of attention, (3) the accuracy of
the witness’s prior description of the criminal, (4) the level of
certainty demonstrated by the witness at the confrontation, and
(5) the length of time between the crime and the confrontation.”
In the instant action, the victim, Mr. Roy Vanderklok, was within arm’s
2
Roy Vanderklok, Detective Thomas Petty, and Officer William Linkenhoker testified with regard to
Vanderklok’s out-of-court identification at the show up. (Ex. 17, pp. 105-107, 196-97, 209-210.)
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reach of the perpetrator when the perpetrator, with gun in hand, removed
Vanerklok’s day planner (apparently mistaking it for a wallet) from
Vanderklok’s front shirt pocket. Although this crime occurred between
approximately 6:30 and 6:45 in the morning on May 15, 2003, Vanderklok
testified at trial that it was “fully light” and there was no need for the
illumination of street lights or car headlights. Thus, Vanderklok had ample
opportunity to closely observe the perpetrator and was even able to
accurately note the tag number of the get-away vehicle, which was
successfully used in a BOLO released shortly after the incident. Moreover,
Vanderklok was direct and certain in his identification, which was made within
an hour of the crime, of the Defendant as the perpetrator.
Under such circumstances, where Vanderklok had the opportunity to
view the perpetrator closely and his identification of the Defendant was made
shortly after the crime, without hesitation, the Court finds that the show-up
identification of Defendant as the perpetrator did not give rise to a substantial
likelihood of irreparable misidentification. It follows that even if Defendant’s
trial counsel had moved to suppress Vanderklok’s identification of the
Defendant, such a motion would likely have been denied. Having failed to
establish prejudice, the Defendant’s claims under Ground I will be denied.
(Ex. 10, pp. 4-6) (court’s footnotes omitted).
The record supports the state court’s conclusion. “It is the likelihood of
misidentification which violates a defendant’s right to due process.” Neil v. Biggers, 409
U.S. 188, 198 (1972). “Determining whether an identification is so unreliable as to violate
due process requires [a court] to answer two questions: (1) whether the original
identification procedure was unduly suggestive; and if so, (2) whether the procedure, given
the totality of the circumstances, created a substantial risk of misidentification at trial.”
Marsden v. Moore, 847 F.2d 1536, 1545 (11th Cir.1988). The critical inquiry concerns the
reliability of the identification, even if the procedure was suggestive. See Biggers, 409 U.S.
at 199; Manson v. Brathwaite, 432 U.S. 98, 114 (1977). “[T]he factors to be considered in
evaluating the likelihood of misidentification include the opportunity of the witness to view
the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the
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witness’ prior description of the criminal, the level of certainty demonstrated by the witness
at the confrontation, and the length of time between the crime and the confrontation.”
Biggers, 409 U.S. at 199-200.
The state court applied these factors in evaluating DeSautel’s claim. Here, even if
the out-of-court identification procedure could be construed as unduly suggestive,
Vanderklok’s identification of DeSautel did not create a substantial likelihood of
misidentification. The record in this case, as thoroughly described in the postconviction
court’s order, supports the finding that a motion to suppress Vanderklok’s out-of-court
identification probably would have failed given the reliability of the identification. DeSautel
does not show a due process violation, and the state court’s conclusion that DeSautel did
not establish prejudice under Strickland is supported. DeSautel does not show that the
postconviction court unreasonably applied Strickland or unreasonably determined the facts
in rejecting his claim. Ground Two, Sub-claim One warrants no relief.3
Sub-claim Four
DeSautel argues that counsel was ineffective for failing to object when the court
indicated it would allow jurors to ask questions of the witnesses. DeSautel asserts that this
practice is “inherently prejudicial.” (Dkt. 1, p. 25.) In his reply, DeSautel further asserts
that this practice enables jurors to form opinions about the case prior to deliberations, and
relieves the State of its burden of proof because facts could be drawn from the jury’s
3
To the extent DeSautel argues that counsel’s conduct deprived him of “adversarial testing” of the
State’s case, he is not entitled to relief. He does not explain his argument. The defense cross-examined Roy
Vanderklok about his observations of the robber as well as his out-of-court identification. (Ex. 17, pp. 113-20.)
Counsel also cross-examined Petty and Likenhoker about the circumstances of the identification. (Id., pp.
198-200, 212-14.) DeSautel does not show prejudice as a result of counsel’s performance.
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questions, rather than the State’s questions. He raised this claim in his postconviction
motion, which the state court denied:
The Defendant has not made a cognizable claim for ineffective
assistance of counsel under this ground. First, the Defendant has failed to
allege any specific questions asked by the jury and how such questions
prejudiced him. It is well settled that a defendant bears the burden of
establishing a prima facie case based upon a legally valid claim, and mere
conclusory allegations are insufficient to meet this burden. This Court finds
that the Defendant’s conclusory allegation–that his counsel should have
objected to the jury asking questions, in general, of witnesses–fails to meet
his burden for this ground.
Second, the Defendant’s claim is cut short by the fact that the Florida
Supreme Court and district courts have already approved jury questioning of
witnesses in criminal cases, so long as the judge controls the procedure. In
the present case, the trial judge controlled the procedure by setting forth the
following standard for the jury to submit questions:
I also permit jurors to ask questions after the witnesses have
completed their testimony. Now, the procedure for that is as follows.
After the lawyers have asked all their questions, if you have a
question of the witness you will write it down on a piece of paper. The
bailiff will hand the paper to me. I will look to see if the question is a
legally permissible question to ask. If it is, I’ll call the lawyers to the
Bench, review the question with them to see if they have any input.
Then I’ll ask the witness the question.
The Court further clarified these instructions:
The types of questions that are permissible are questions that
are seeking additional factual information. Let’s say somebody
doesn’t tell you a distance or they don’t tell you a time, or they don’t
tell you a color. Anything of a factual nature that you want to have
presented to you that might have been overlooked, we’ll try to get an
answer. Obviously, I can’t answer the question such as, well, Witness
A said this and Witness B said that, how am I supposed to know
which one’s telling the truth? That’s what your job is.
Lastly, this Court is also unconvinced by the Defendant’s claim that
allowing the jurors to ask such questions somehow equates to the jurors
forming a “prior tentative opinion.” Indeed, the trial judge repeatedly advised
the jury not to discuss the case or deliberate before the appropriate time. For
example, the trial judge explained,
Page 17 of 39
After all the witnesses have testified, the lawyers will make their
closing arguments. I’ll then instruct you on the law, and then the Jury
will retire to deliberate.
You should not form any definite or fixed opinion on the merits
of the case until you’ve heard all the evidence, the argument of the
lawyers, and the instructions on the law from me. And until that time,
you shall not discuss the case among yourselves.
Thus, although the jurors were advised that they could submit their
own individual questions, they were also strongly advised not to discuss the
case amongst themselves until the appropriate time and not to form any fixed
opinions until the conclusion of the trial. Other than the Defendant’s
conclusory allegation, there is no evidence in the record that the jury did not
heed these instructions.
In light of the foregoing, the Defendant has failed to establish that he
was prejudiced by the jurors being permitted to ask questions. This Court
further finds the Defendant’s counsel could not be ineffective for failing to
raise a pointless objection to the authorized practice of allowing jurors to ask
questions under a controlled procedure. Therefore, the Defendant’s post
conviction motion is also denied as to this ground.
(Ex. 10, pp. 13-14) (court’s footnotes omitted)
As the postconviction court indicated, Florida law allows jurors to pose questions to
witnesses:
In Ferrara v. State, 101 So.2d 797 (Fla. 1958), we stated that on appropriate
occasions a juror, as a trier of fact, “might be completely justified in
propounding a question,” and that a procedure that allows jurors to ask
questions during trial “should be . . . controlled by the discretion of the trial
judge.” Id. at 801. Relying on Ferrara and other precedent, this Court has
rejected a claim that the trial court violated the defendant’s right to an
impartial jury by allowing jurors to submit questions to witnesses during trial.
See Watson v. State, 651 So.2d 1159, 1163 (Fla. 1994). Under the
procedure approved in Watson, the jury members would write down their
question and give it to the trial judge, who would then consult with the State
and the defense to determine whether the questions was proper. See id. at
1163 n. 6. If it was determined that the question was proper, the trial judge
would present the question to the witness for an answer. See id. We
observed that the practice of questioning by jurors “has been condoned as
permissible trial procedure.” Id. at 1163.
Page 18 of 39
Morris v. State, 931 So.2d 821, 828-29 (Fla. 2006). Procedures similar to those discussed
in Morris appear to have been utilized in DeSautel’s case. The jury had questions for only
one witness, Marjorie Vanderklok, who testified with regard to her observations of the
robbery. The record reflects that the judge instructed the juror or jurors to write the
questions down, and discussed the questions with counsel. (Ex. 17, pp. 127-28.) The
court then presented the jury’s questions to Marjorie Vanderklok:
THE COURT:
Ms. VanderKlok, I have a question for you.
Were you able to tell how many people were in the car?
THE WITNESS:
No, not really. When I saw the white man get back into
the back seat, I saw that there was a black man in the
driver’s seat. He had the window down, and he had
beads like in his hair.
THE COURT:
Did you see anyone else in the rear seat other than the
man who had gotten out earlier and then returned to
that spot?
THE WITNESS:
No, I did not, Your Honor.
THE COURT:
All right. Thank you.
(Ex. 17, p. 128.)4 DeSautel does not demonstrate that counsel was ineffective for not
objecting to this procedure. Counsel had no basis to object to the court’s decision allowing
jurors to ask questions of the witnesses because Florida law permits this. Counsel cannot
be deemed ineffective for failing to raise meritless arguments. See Brownlee v. Haley, 306
F.3d 1043, 1066 (11th Cir. 2002); Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001).
There is no indication from the record that the trial court did not follow applicable
procedures. Additionally, the questions presented to Marjorie Vanderklok involved her
4
The victim’s name appears in the state court record as both Vanderklok and VanderKlok.
Page 19 of 39
personal observations of the events.
Further, as the state court noted, DeSautel did not demonstrate that any of the jurors
formed a fixed opinion before deliberations. Similarly, while the prosecution bears the
burden of proving the elements of the offense, DeSautel does not establish that the jurors’
questions served to shift the burden of proof from the State, despite his claim that Marjorie
Vanderklok’s answers supported the State’s case. DeSautel fails to demonstrate that
counsel was ineffective for not objecting to the court’s procedures or its decision in
permitting jury questions, or how he was prejudiced by counsel’s performance.
Accordingly, he does not establish that the state court’s decision was an unreasonable
application of Strickland, or based upon an unreasonable determination of the facts.
DeSautel is not entitled to relief on Ground Two, Sub-claim Four.
Sub-Claim Two
DeSautel called co-defendant Robert Griffin at trial. Griffin testified that he was in
the car with DeSautel, Snodgrass, and Carlton Presha, and that Snodgrass got out of the
car carrying a gun and approached the victim while DeSautel ducked down in the back
seat. (Ex. 17, pp.235-37, 240.) Griffin also testified that DeSautel had nothing to do with
the armed robbery, and that he never saw DeSautel with a firearm. (Id., pp. 237-38.)
Following Griffin’s testimony, the State re-called one of its witnesses, Detective
Thomas Petty, in rebuttal. Petty testified about a statement Griffin made to him, in which
Griffin implicated DeSautel as the robber but made no mention of Snodgrass’s presence.
(Id., pp. 262-64.) Petty further testified that he interviewed Snodgrass but that Snodgrass
was not charged in connection with this offense. (Id., p. 263.)
Page 20 of 39
DeSautel alleges that counsel was ineffective for failing to advise him of Griffin’s
statement to Petty. DeSautel claims that counsel should have known the State would use
this information to discredit Griffin if Griffin testified favorably for the defense. DeSautel
claims that counsel’s deficiencies prevented him from making an informed and intelligent
decision whether to call Griffin, and led him to decide not to testify in his own defense.
DeSautel raised these allegations in his postconviction motion. The state court
found that DeSautel could not show prejudice on his claim that counsel was ineffective
regarding whether to call Griffin to testify, which he raised as Ground II:
For the following reasons, the Court finds that the Defendant has failed to
establish the necessary prejudice in order to merit relief under this ground.
First, by the Defendant’s own admission, he “repeatedly informed counsel”
that Griffin was willing to testify for the Defendant. Thus, it appears that
defense counsel called Griffin to testify at the Defendant’s own insistence.
....
Notably, Deputy Angelo Buxedo testified at trial that he observed the
Defendant exit the get-away car after it crashed into another vehicle and
immediately gave chase when the Defendant proceeded to run from the
scene, eventually apprehending the Defendant without ever losing sight of
him. In addition to suggesting a consciousness of guilt, this testimony
prevented any defense argument that the Defendant was not, at the very
least, present in the car that was the subject of the BOLO issued pursuant to
Vanderklok’s report of the robbery. Unable to deny his involvement, the
Defendant’s only remaining defense was likely the one presented (i.e., that
one of the other occupants of the get-away vehicle was the actual gunwielding robber). As the State points out, there were two ways to support this
theory, but neither option was ideal. While Griffin’s testimony was
impeached with his prior statements to police, the Defendant’s testimony
would have also been impeachable with his prior three felony convictions and
one crime of dishonesty, and would have subjected the Defendant to the
inherent dangers of cross-examination by the State.
Even assuming without deciding that defense counsel’s decision to
call Griffin to testify was deficient, in light of the evidence against the
Defendant, the Court’s confidence in the outcome of the trial has not been
undermined by the Defendant’s allegations in this ground. As noted in
Ground I supra, Vanderklok, who positively and without hesitation identified
the Defendant as the individual who robbed him at gun-point, was also able
Page 21 of 39
to accurately record the make, model, color, and license tag number of the
get-away car. In large part due to the information provided by Vanderklok,
the Defendant was apprehended by Deputy Buxedo, who never lost sight of
him as he exited the get-away car and ran from police, demonstrating his
consciousness of guilt. Based on this evidence, even if defense counsel had
never called Griffin to testify, the Court is convinced that the outcome of the
trial would have been the same. Thus, the Defendant has failed to establish
prejudice and this claim will be denied.
(Ex. 10, pp. 7-8) (court’s footnotes omitted)5
The state court’s determination is entitled to deference, and the record supports the
finding that DeSautel failed to demonstrate prejudice in light of the evidence of his guilt.
The state court also denied DeSautel’s claim that counsel was ineffective for interfering with
his right to testify when counsel did not inform DeSautel of Griffin’s inconsistent prior
statement, which he raised as Ground III of his postconviction motion:
Alleging similar claims as those raised in Ground II above, the Defendant
maintains that “but for counsel’s failure he would have testified that Michael
Snodgrass committed the robbery while the Defendant remained hidden in
the rear floorboard of the car.”
In denying this claim, the Court adopts and incorporates herein all
findings and reasoning set forth in Ground II supra. The Court also finds that
the Defendant’s claim that he would have testified in his own defense if he
had known that Griffin’s testimony would be impeached is conclusively
refuted by the record. As the State points out in its Response,
At the end of the entire case, including closing arguments, the
Court did a lengthy colloquy inquiring of the Defendant as to
whether he is satisfied with his decision to not testify, and
informing him that he still has the right to testify . . . .[T]he
Defendant assured the Court that he did not want to testify,
that he discussed this decision fully with counsel going over the
advantages and disadvantages of testifying, that no one
pressured him, and that there is no other evidence he wished
to present. The colloquy ended with Defendant stating that he
thinks his attorney did a “wonderful job” and that he is “entirely”
satisfied with the work he has done on his behalf.
5
The deputy’s last name appears in the state court record as both Buxeda and Buxedo.
Page 22 of 39
Thus, even after Griffin’s testimony was impeached, the Defendant declined
to testify on his own behalf. This claim is, therefore, denied.
(Ex. 10, pp. 8-9) (court’s footnotes omitted)
The record supports the state court’s denial of this claim. After Petty was re-called,
the trial court asked DeSautel whether he was going to testify. The court told DeSautel
that, although the testimony had been completed, the jury could still be brought back to
hear DeSautel testify if he chose to do so. (Ex. 17, p. 317.) DeSautel stated that he made
the decision not to testify upon consulting with counsel. (Id., pp. 317-18.) DeSautel further
indicated that his choice was made freely and voluntarily, and that he was satisfied with
counsel’s performance. (Id., p. 318.)
DeSautel fails to meet his burden under Strickland and therefore does not establish
that the state court unreasonably applied Strickland or unreasonably determined the facts
in rejecting his claims. Ground Two, Sub-claim Two warrants no relief.6
Sub-claim Seven
When Detective Petty was re-called by the State, he testified that Snodgrass stated
that he loaned his vehicle to DeSautel the night before the robbery. DeSautel argues that
counsel was ineffective for failing to object to this testimony, which directly implicated him,
6
In his reply, DeSautel further argues that, after Petty testified regarding Griffin’s statement, counsel
should have asked the court for a limiting instruction informing the jury that this testimony was not substantive
evidence. Petitioners are generally prohibited from bringing new claims in a reply. See Rule 2(c), Rules
Governing Section 2254 Cases (“The petition must: (1) specify all the grounds for relief available to the
petitioner . . . .”); Fed. R. Civ. P. 15(a) (a party is permitted to amend a pleading once “as a matter of course”
at any time before a responsive pleading is served or, otherwise, only by leave of court or by written consent
of the adverse party). See also Pruitt v. United States, 274 F.3d 1315, 1318-19 (11th Cir. 2001); Davenport
v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000). Even assuming this claim was properly raised in
DeSautel’s federal habeas proceeding, it would not entitle him to relief. When DeSautel raised this claim in
his postconviction motion, the state court denied it, finding that DeSautel could not show prejudice in light of
the overwhelming evidence of guilt. (Ex. 10, p. 18.) DeSautel does not establish that the state court
unreasonably applied Strickland or unreasonably determined the facts in rejecting his claim.
Page 23 of 39
as hearsay. The state court denied this claim when DeSautel brought it in his
postconviction motion:
This claim also fails to meet the Strickland prejudice requirement. As the
State suggests in its Response, the Defendant did not, likely could not, deny
being in Snodgrass’s vehicle (i.e., the get-away car) at the time of the
offense. Despite his “mistaken identity” theory of defense, the Defendant (1)
was positively identified by Vanderklok as the individual who robbed him at
gun-point and (2) was apprehended by Deputy Buxedo, who never lost sight
of the Defendant as he exited the get-away car and ran from police,
demonstrating his consciousness of guilt. In addition to this evidence, neither
Mr. or Mrs. Vanderklok, nor any of the law enforcement officers that
subsequently pursued the get-away car ever noticed another white male in
the vehicle. In light of the above-listed evidence implicating the Defendant
as the perpetrator, the Court finds that even if defense counsel was deficient
in failing to object to Officer Petty’s testimony concerning Snodgrass’s
hearsay statement, the Defendant was not prejudiced by the introduction of
such hearsay. This claim is denied.
(Ex. 10, pp. 17-18) (court’s footnote omitted)
The record supports this determination. Even assuming that counsel should have
objected to this statement, as the state court described, the record contains other evidence
of DeSautel’s guilt. The record reflects other evidence linking DeSautel to the car, and a
lack of evidence indicating the presence of another white male in the car. The state court’s
finding that DeSautel failed to meet Strickland’s prejudice prong is supported.7
As
DeSautel does not show that the postconviction court’s decision was an unreasonable
7
To the extent DeSautel intends to present an independent, substantive claim that the admission of
Snodgrass’s statement through Petty’s testimony violated his right to confrontation pursuant to Crawford v.
Washington, 541 U.S. 36 (2004), he cannot obtain relief. Notwithstanding the prohibition on raising new
claims in a reply, this claim is unexhausted because DeSautel did not raise it on direct appeal. (Ex. 4.) In
Florida, claims of trial court error are properly raised on direct appeal. See Bruno v. State, 807 So.2d 55, 63
(Fla. 2001). This claim is also procedurally defaulted because DeSautel cannot return to state court to file a
second, untimely direct appeal. See Fla. R. App. P. 9.140. He does not demonstrate that either exception
applies to overcome the default. See Smith v. Jones, 256 F.3d at 1138. To the extent this argument is offered
in support of DeSautel’s ineffective assistance claim, it does not entitle him to relief because he fails to show
prejudice under Strickland.
Page 24 of 39
application of Strickland or based on an unreasonable determination of the facts, Ground
Two, Sub-claim Seven affords no relief.
Sub-claim Five
DeSautel claims that Deputy Sanders’ testimony indicating that the car used in the
robbery was stolen was improper because it implied that DeSautel committed the
uncharged collateral crime of stealing the car. He asserts that counsel was ineffective for
failing to object to this evidence and move for a mistrial. DeSautel presented this argument
in his postconviction motion, which the state court denied:
The Defendant’s claims under this ground are conclusively refuted by the
record.
As the State points out in its Response, the Defendant
mischaracterizes the content of Deputy Sanders’ testimony. Although
Deputy Sanders testified that he was initially under the impression that the
get-away vehicle may have “possibly” been stolen, on cross-examination
defense counsel elicited his acknowledgment that “there’s no evidence that
this was a stolen vehicle.” Because defense counsel was easily able to
clarify this point, the Court finds that the Defendant was not prejudiced by his
counsel’s failure to also object to and further highlight Deputy Sanders’ initial
impression that the get-away vehicle was possibly stolen. Absent a showing
of prejudice, this claim is also denied.
(Ex. 10, p. 15) (court’s footnotes omitted)
The record supports the state court’s finding. Sanders testified that, preliminarily,
he believed the car was stolen or possibly stolen. (Ex. 17, p. 168.) Counsel addressed this
point on cross-examination, and Sanders confirmed there was no evidence to indicate that
the car was in fact stolen. (Id., pp. 176-77.) Therefore, counsel’s cross-examination
clarified the car’s status. The record supports the postconviction court’s finding that
DeSautel failed to show prejudice. DeSautel does not demonstrate that the state court’s
finding was an unreasonable application of Strickland or was based on an unreasonable
Page 25 of 39
determination of the facts. He is not entitled to relief on Ground Two, Sub-claim Five.
Sub-claim Six
The jury found that DeSautel carried a firearm. (Ex. 2.) DeSautel asserts that the
jury instructions were improper because they did not specify that this finding must be made
beyond a reasonable doubt. DeSautel claims that counsel was ineffective for failing to
object to the instructions. In support of his ineffective assistance claim, DeSautel alleges
in his reply, as he did in his postconviction motion, that the jury’s finding was insufficient
because, under Apprendi v. New Jersey, 530 U.S. 466 (2000), any fact that increases the
penalty for a crime beyond the statutory maximum must be found by a jury beyond a
reasonable doubt.8 The state court denied this claim when DeSautel raised it in his
postconviction motion:
As the Second DCA has previously summarized:
In Apprendi, the Court held that the Sixth Amendment right to trial by
jury requires the application of the rule that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.”
....
The Defendant’s present claim is less in line with the facts in Apprendi and
more strikingly similar to claims raised in both Ruger v. State and State v.
Jacobs, wherein the Fourth District Court of Appeal found such claims to be
meritless. Unlike Apprendi, where the sentencing enhancement was based
on a judge’s finding by a preponderance of the evidence standard, in the
instant case, the jury made a factual finding that the Defendant carried a
firearm during the commission of the robbery. As did the Fourth DCA in
Ruger and Jacobs, this Court rejects the Defendant’s contention that the
8
With regard to the firearm, the jury was instructed that, “The punishment provided by law for the
crime of robbery is greater if, in the course of committing the robbery, the Defendant carried some kind of
weapon . . . . If you find that the Defendant carried a firearm in the course of committing the robbery, you
should find him guilty of robbery with a firearm.” (Ex. 17, p. 308.) The definition of firearm was also provided.
(Id., p. 309.)
Page 26 of 39
jury’s finding was not proved beyond a reasonable doubt. Indeed,
considering the initial general instructions provided–“It’s your solemn
responsibility to determine if the State has proved its accusations [impliedly
all of them] beyond a reasonable doubt.”– this Court highly doubts that the
failure to reiterate the “beyond a reasonable doubt” standard when giving
instructions about aggravating circumstances made any difference in this
case. Although the jury instructions required the jury merely to “find” that the
Defendant carried a firearm in order to find him guilty of the charged crime,
when considering the instructions as a whole, the jury was instructed to apply
the same burden of proof to all aspects of the case which the State was
required to prove. Thus, the Court’s confidence in the outcome of this case
is not undermined by the Defendant’s allegations in this ground, and it will be
denied.
(Ex. 10, pp. 15-17) (court’s footnotes omitted) (alteration in original)
The jury made a factual finding that DeSautel carried a firearm, and there is support
for the state court’s determination that he fails to show this finding was not made beyond
a reasonable doubt.
On federal habeas review, alleged error in jury instructions is reviewed for the denial
of fundamental fairness and due process. See Henderson v. Kibbe, 431 U.S. 145, 156–57
(1977). “[F]ederal courts on habeas review are constrained to determine only whether the
challenged instruction, viewed in the context of both the entire charge and the trial record,
‘so infected the entire trial that the resulting conviction violated due process.’” Jamerson
v. Sec’y for Dep’t of Corr., 410 F.3d 682, 688 (11th Cir. 2005) (quoting Estelle v. McGuire,
502 U.S. 62, 72 (1991)). The jury was instructed that the State must prove its case beyond
a reasonable doubt. (Ex. 17, pp. 81-82.) The jury was also told that if they had a
reasonable doubt after considering all the evidence, they should find DeSautel not guilty.
(Id., p. 311.)
DeSautel does not show that the instructions rendered his trial fundamentally unfair.
He does not establish that the jury did not apply the same burden of proof to all of their
Page 27 of 39
findings. The applicable Florida law recognized by the state court further supports the state
court’s decision.9 Accordingly, DeSautel fails to demonstrate that counsel had a basis to
object to the instruction or that he was prejudiced due to counsel’s conduct.
DeSautel has not, therefore, demonstrated that the state court’s decision was an
unreasonable application of Strickland or was based on an unreasonable determination of
the facts. Ground Two, Sub-claim Six warrants no relief.10
Sub-Claim Three
DeSautel argues that counsel was ineffective for not moving to have the jury panel
stricken following prejudicial comments by the court. He states that a jury for another case
was selected from a large panel of prospective jurors, and the jury for his case was then
chosen from the remaining prospective jurors. DeSautel alleges that the court made
improper comments to the entire panel about the recent high-profile Carlie Brucia murder
case.11 DeSautel raised this claim in his postconviction motion, to which he attached an
affidavit stating:
9
See Ruger v. State, 941 So.2d 1182, 1185 (Fla. 4th DCA 2006) (although the jury was only required
to “find” that the defendant used a weapon, the general reasonable doubt instruction directs the jury to apply
the same burden of proof to all aspects of the case); State v. Jacobs, 8 So.3d 448, 448-49 (Fla. 4th DCA
2009) (same).
10
DeSautel appears to raise an independent, substantive claim of trial court error with regard to the
jury instruction in his reply. He may not bring a new claim in his reply. Furthermore, this claim is unexhausted
because DeSautel did not raise it on direct appeal. (Ex. 4.) DeSautel cannot return to state court to file a
second, untimely appeal. See Fla. R. Crim. P. 9.140. This claim is procedurally defaulted, and DeSautel does
not argue or demonstrate that an exception applies to overcome the procedural default. See Smith v. Jones,
256 F.3d at 1138.
11
To the extent that DeSautel’s reply presents an independent substantive claim that the trial court
erred in making the comments DeSautel describes, this claim cannot provide relief. Notwithstanding the bar
on raising new claims in a reply, this claim is unexhausted. DeSautel did not bring this claim on direct appeal.
(Ex. 4) DeSautel cannot return to state court to file an untimely, successive appeal. See Fla. R. App. P.
9.140. The claim is thus procedurally defaulted, and DeSautel does not establish the applicability of either
exception to overcome his default. See Smith v. Jones, 256 F.3d at 1138.
Page 28 of 39
I witnessed comments made by [the court] to a jury panel that was being
instructed for the selection for two separate trials. The other trial in front of
my trial [sic], so their selection was before mine. The comments made were
not recorded in my voir dire, but were indeed made to the whole panel. The
comments and questions were in regards to a man arrested in Sarasota
County, that County being joined to Manatee, the County in which I was
accused. The man arrested in Sarasota was Joseph Smith, his arrest
occurred shortly before my trial began. He was accused of abducting and
murdering a young girl named Carlie Brucia. The judge asked the jury to
show their hands if they were aware of this incident and Joseph Smith being
arrested. All prospective jurors raised their hands. The judge then asked the
jury for one more show of hands, he asked if anyone “thought that Joseph
Smith was innocent.” Not one of the prospective jurors raised their hands.
The judge then made further statements to the jury panel in regards to media
coverage and newspaper articles about Joseph Smith being brought to trial
in the past for similar accusations, that he was found not guilty by a jury. The
judge made further comments about the media and the community blaming
the system for Carlie Brucia’s abduction and murder, that if he (Joseph
Smith) would have been convicted by a jury the first time he went to trial then
he would have been in prison, instead he was free to commit more crimes.
Again the judge commented that the media and the community point their
fingers at people like you (jury panel) and the court for this happening.
Society says that the system failed Carlie Brucia.
Had I known that my counsel could strike the panel, I would have asked him
to do so. Having the assistance and access to the law library and have
learned [sic] the Judge’s comments and questions were unfairly prejudicial.
(Ex. 8, Affidavit of Jason DeSautel.) DeSautel argues that while the court might have
merely attempted to address criticisms of the criminal justice system, the jury also could
have interpreted such comments to mean that if DeSautel was acquitted, he would commit
more crimes in the future. During jury selection for DeSautel’s trial, counsel addressed the
matter with the jury panel:
One of the concepts that the Judge was talking about, one of the things he
brought in early on is the obviously very tragic case in Sarasota, and is there
anybody because of that case and the publicity associated with it does not
want to sit on this type of case or sit on a criminal case at all, because they
don’t feel they can sit in moral judgment of another person? Okay.
One of the things, I don’t know if people, if you all have read, think
Page 29 of 39
about one of the criticisms that has been in the media has been criticism of
the jury process, and apparently there was a case where this gentleman was
actually acquitted by a jury, how could the jury be so stupid to acquit this guy
on a previous case. Is there anybody here that feels the same type of
pressure, that they don’t want to be on a jury that finds someone not guilty?
Does anybody have an opinion on that one way or another?
(Ex. 17, pp. 59-60.) The record reflects no response by any of the prospective jurors. (Id.)
DeSautel argues, however, that the prejudice from these comments was so great that
counsel could not rehabilitate the prospective jurors.
In his motion for postconviction relief, DeSautel raised the claim that counsel was
ineffective for not moving to strike the entire jury panel. The state court summarily denied
his argument:12
This claim is utterly without merit. First, the initial judicial comments,
apparently made before the entire jury venire during jury selection in a
preceding case, do not constitute impermissible comment, even as
summarized by the Defendant in his motion. Rather, as highlighted by
defense counsel’s subsequent questioning, such comments were designed
to inquire whether potential jurors might feel either less inclined to serve on
a jury in light of recent publicity, or pressured by media coverage of the court
system in general to rule a certain way. Moreover, there is no evidence of
any juror bias in this case.
In general, “[t]he test for determining juror competency is whether the
juror can lay aside any bias or prejudice and render his verdict solely upon
the evidence presented and the instructions on the law given to him by the
court.” “It is sufficient if a juror can lay aside his opinion or impression and
render a verdict based on the evidence presented in court.” The Fourth
12
In his reply, DeSautel further asserts that counsel should have conducted individual voir dire of the
prospective jurors following the court’s comments. Again, he cannot raise a new claim in his reply. Moreover,
DeSautel did not raise this specific claim of ineffective assistance of counsel in his postconviction motion. (Ex.
8, pp. 13, 16-18.) A petitioner may not present a particular factual instance of ineffective assistance of counsel
in his federal habeas petition that he did not present to the state court. McNair v. Campbell, 416 F.3d at 1302;
Johnston v. Singletary, 162 F.3d 630, 634-35 (11th Cir. 1998). Because this claim was not fairly presented
to the state court, it is unexhausted. DeSautel cannot return to state court to file an untimely, successive
postconviction motion. See Fla. R. Crim. P. 3.850(b), (h). Thus, the claim is procedurally defaulted. DeSautel
does not establish the applicability of an exception to overcome this default. See Smith v. Jones, 256 F.3d
at 1138.
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District Court of Appeal has appreciably explained the requirements of a
biased juror claim:
Because a defendant must demonstrate prejudice in a 3.850
proceeding, post-conviction relief based on a lawyer’s
incompetence with regard to the composition of the jury is
reserved for a narrow class of cases where prejudice is
apparent from the record, where a biased juror actually served
on the jury . . . . The nature of the juror’s bias should be patent
from the face of the record. Only where a juror’s bias is so
clear can a defendant show the necessary prejudice under
Strickland.
As does the Fourth District Court of Appeal, this Court has “great confidence
in the tendency of jurors to do the right thing after hearing the evidence in a
case and being instructed on the law from the judge.” In the instant action,
the prejudice necessary for a valid ineffective assistance of counsel claim is
not apparent from the record. Instead, to support this claim, the Defendant
misconstrues judicial comments and defense counsel voir dire questions and
assumes the panel’s lack of response equates to a tainted jury. Despite the
Defendant’s allegations, this Court’s exhaustive review of the entire transcript
failed to turn up any evidence of juror bias. In failing to demonstrate any
actual juror bias, the Defendant has failed to meet the prejudice prong of the
Strickland test. Therefore, the Court will deny his motion as to this ground.
(Ex. 10, pp. 9-11) (court’s footnotes omitted)
The state court’s decision is entitled to deference. The state court found that any
comments by the court, as summarized by DeSautel, were not improper because they were
intended to determine if any prospective jurors would not want to sit on a jury or would feel
obligated to vote to convict based upon public criticism of the courts.
Even taking as true DeSautel’s characterization of the comments as improper and
assuming that counsel should have moved to strike the entire jury panel, DeSautel fails to
show prejudice.13 Under the Sixth Amendment, a criminal defendant is entitled to a fair trial
13
Neither DeSautel nor Respondent provides the statements made by the trial court. Attachments
to DeSautel’s reply indicate that he attempted to obtain transcripts from the state court that he believes exist
and would support his claim, but the state court denied his requests. (Dkt. 16-2, pp. 2-10.) The state court’s
orders do not acknowledge whether such documents or transcripts exist. (Ex. 10.) Even if DeSautel provided
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by a panel of impartial jurors. See Parker v. Gladden, 385 U.S. 363, 364 (1966). However,
as the state court found, DeSautel does not demonstrate that any juror in his case was
actually biased. In order to challenge a juror for cause, a party “must demonstrate that the
juror in question exhibited actual bias by showing either an express admission of bias or
facts demonstrating such a close connection to the present case that bias must be
presumed.” United States v. Chandler, 996 F.2d 1073, 1102 (11th Cir. 1993). The party
challenging the juror has the burden of demonstrating actual bias. Irvin v. Dowd, 366 U.S.
717, 723 (1961). Similarly, to be entitled to postconviction relief in state court when
claiming that a juror was biased, the party must prove that a juror was actually biased.
“[W]here a postconviction motion alleges that trial counsel was ineffective for failing to raise
or preserve a cause challenge, the defendant must demonstrate that a juror was actually
biased.” Carratelli v. State, 961 So.2d 312, 324 (Fla. 2007). This requires a showing that
the juror was not impartial. Id.
DeSautel offers no evidence that any juror who heard his case was biased.
Additionally, his assertions about the jurors’ possible interpretations of any comments made
by the court are unsubstantiated. Conclusory and speculative assertions cannot support
a claim of ineffective assistance of counsel. See Tejada v. Dugger, 941 F.2d 1551, 1559
(11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot support an
ineffective assistance of counsel claim). In sum, even assuming counsel performed
deficiently, DeSautel cannot obtain relief because he fails to demonstrate any resulting
further documentation of the court’s remarks, such documentation would not substantiate his allegation of
ineffective assistance of counsel because he cannot establish prejudice.
Page 32 of 39
prejudice. Accordingly, DeSautel does not demonstrate that the state court unreasonably
applied Strickland or unreasonably determined the facts in denying his claim. Therefore,
Ground Two, Sub-claim Three warrants no relief.
Sub-claim Eight
DeSautel was sentenced immediately after the jury convicted him. He contends that
counsel was ineffective for not moving for a continuance or making a “formal objection” so
that he could present mitigating evidence for sentencing purposes. He further asserts that
counsel’s failure meant that this issue was not preserved for appellate review. DeSautel
brought this allegation in his postconviction motion. The state court denied it, finding that
DeSautel could not establish prejudice:
Notably, the trial judge indicated prior to sentencing the Defendant that he
was “not entitled to a sentencing hearing or to a PSI based on his prior
history.” Thus, even if defense counsel had objected to proceeding with
sentencing at that time, such objection most likely would have been
overruled. At the risk of redundancy, counsel cannot be ineffective for failing
to raise a meritless objection.
Moreover, while acknowledging that he did not “take any joy in
sending people to prison,” the sentencing judge noted that the Defendant has
been convicted of “a very severe crime,” and proceeded to impose a harsher
sentence than the prosecutor asked for. In light of these circumstances and
considering the nature of the crime, which involved robbing an elderly
gentleman at gunpoint and subsequently fleeing in a high-speed chase that
resulted in a car crash, the Court is not convinced that anything the
Defendant’s mother might have said would have inspired the judge to impose
a shorter sentence in this case. Based on the foregoing, this claim is denied.
(Ex. 10, p. 20) (court’s footnotes omitted)
The record supports the denial of this argument. Counsel informed the court that
DeSautel wanted his mother to be present for sentencing, although counsel was not sure
what she would say. (Ex. 17, p. 322-23.) Finding that DeSautel was not entitled to a
sentencing hearing or a presentence investigation due to his criminal record, the court
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proceeded with sentencing. (Id., p. 323.)14 Counsel argued that DeSautel should receive
a sentence lower than that sought by the State, and DeSautel addressed the court prior to
the imposition of sentence. (Id., pp. 325-26.)
DeSautel does not establish that any other mitigating evidence or argument he could
have presented at a subsequent hearing would have resulted in a different outcome. His
suggestion that the court may have imposed a lesser sentence had counsel objected or
moved for a continuance to present mitigating evidence is speculative and unsubstantiated.
This unsupported assertion cannot sustain an ineffective assistance claim on federal
habeas review. See Tejada, 941 F.2d at 1559.
DeSautel does not show a reasonable probability that the court would have imposed
a lesser sentence had counsel sought a continuance to present mitigating evidence. As
he does not show prejudice, he also fails to establish entitlement to relief on his claim that
counsel failed to preserve the issue for appellate review. DeSautel does not demonstrate
that the postconviction court unreasonably applied Strickland or unreasonably determined
the facts when it denied this claim. Ground Two, Sub-claim Eight provides no relief.
Sub-claim Nine
DeSautel argues that the cumulative effect of counsel’s various alleged errors
warrants relief. He alleges violations of his rights under the Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendments. The state court rejected the claim of cumulative error presented
in DeSautel’s postconviction motion:
14
A presentence investigation and recommendation from the Department of Corrections is mandatory
before imposing a sentence other than probation “on any defendant found guilty of a first felony offense . . .
.” Fla. R. Crim. P. 3.710(a). At sentencing, the State noted DeSautel’s prior felony convictions. (Ex. 17, p.
322.) Accordingly, as DeSautel was not a first-time felony offender, a presentence investigation was not
mandatory.
Page 34 of 39
This ground is equally without merit because “a claim of cumulative error will
not be successful if a petitioner fails to prove any of the individual errors he
alleges.” Thus, having found no individual error in any of his other grounds,
this Court finds no merit in the Defendant’s claim of cumulative error.
(Ex. 10, p. 22) (court’s footnote omitted)
“The Supreme Court has not directly addressed the applicability of the cumulative
error doctrine in the context of an ineffective assistance of counsel claim.” Forrest v. Fla.
Dep’t of Corr., 342 Fed. App’x 560, 564 (11th Cir. 2009). The Supreme Court has held,
however, in relation to an ineffective assistance of counsel claim, that “there is generally
no basis for finding a Sixth Amendment violation unless the accused can show how specific
errors of counsel undermined the reliability of the finding of guilt.” Id. at 564-65 (quoting
United States v. Cronic, 466 U.S. 648, 659 n.26 (1984)). DeSautel has not established
entitlement to relief on any of his claims of ineffective assistance of trial counsel. Thus, he
fails to show that the state court’s rejection of his cumulative error claim was contrary to or
an unreasonable application of clearly established federal law. Ground Two, Sub-claim
Nine provides no relief.
Ground Three
DeSautel asserts that his appellate counsel was ineffective for not arguing that the
trial court erred in admitting photographic evidence of rounds removed from the gun Deputy
Sanders found in the car. In further support, DeSautel states in his reply that this
photograph was only used to show the severity of the offense and constituted improper
evidence of prior bad acts. DeSautel states that this argument was preserved for appellate
review because trial counsel objected to the admission of the photograph.
During Sanders’ testimony, the State sought to introduce a photograph that showed
Page 35 of 39
six rounds Sanders removed from the gun. (Ex. 17, pp. 172-73.) Defense counsel
objected:
[COUNSEL]:
Judge, that’s the only photograph that I have an
objection to. And the basis for the objection, Judge, is clearly
it shows a spent cartridge.
And without getting into too much detail, Judge, I
believe there was a collateral crime that’s alleged to have
been committed in another county where the same handgun
was used in Florida, and my objection to its introduction is that
it might somehow sway the jury as to a shot being fired at
some previous time because it clearly shows a spent casing.
And as far as the relevance towards this particular
case, I would argue it doesn’t have any relevance to the
extent Mr. VanderKlok has never been able to testify as to the
identification of this gun, as to whether it was loaded or
unloaded. And quite frankly, Judge, as to whether he’s
convicted or not, it doesn’t depend upon it being loaded or
unloaded. I would object to that photograph.
(Ex. 17, pp. 172-73.)
The trial court overruled counsel’s objection and allowed the introduction of the
photograph. (Ex. 17, p. 173.) Deputy Sanders testified that the photograph depicted “the
rounds that were found in the gun, that I unloaded out of the gun.” (Ex. 17, p. 175.) The
State did not address any collateral crime during Sanders’ testimony. (Ex. 17, pp. 167-76.)
DeSautel raised this claim of ineffective assistance of appellate counsel in his state
habeas petition. The state appellate court rejected Petitioner’s claim without comment. The
record supports a denial of this claim. Claims that appellate counsel was ineffective are
analyzed under the two-part test set forth in Strickland. Smith v. Robbins, 528 U.S. 259,
285 (2000); Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). To establish a claim,
DeSautel must show that appellate counsel’s performance was objectively unreasonable,
and that there is a reasonable probability that, but for counsel’s unreasonable performance,
Page 36 of 39
DeSautel would have prevailed on his appeal. Robbins, 528 U.S. at 285-86.
Because the implementation of state evidentiary rules is afforded wide latitude,
federal habeas relief is rarely appropriate for a claim of state court evidentiary error. See
Maness v. Wainwright, 512 F.2d 88, 92 (5th Cir. 1975); Boykins v. Wainwright, 737 F.2d
1539, 1543-44 (11th Cir. 1984). A determination of whether a proceeding has been
rendered fundamentally unfair “is to be made in light of the evidence as a whole.” Felker
v. Turpin, 83 F.3d 1303, 1312 (11th Cir. 1996). “[S]uch trial court errors are subject to the
harmless error analysis and will not be the basis of federal habeas relief unless the error
‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Sims v.
Singletary, 155 F.3d at 1312 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).
DeSautel does not establish that appellate counsel was ineffective for failing to raise
this issue, or that there is a reasonable probability he would have prevailed on appeal,
because he has not demonstrated that the proceeding was rendered fundamentally unfair.
He does not show that evidence of prior bad acts was actually introduced.15 Moreover, it
is entirely speculative to claim that the jury would have made any deductions or conclusions
that DeSautel was connected to another offense based on the image of a spent cartridge.
DeSautel establishes no evidence showing that the jury was improperly led to consider the
photo as evidence of another, uncharged crime. His speculation cannot support a claim
of ineffective assistance of counsel. See Tejada, 941 F.2d at 1559.
Appellate counsel is not ineffective for “failing to raise claims ‘reasonably considered
to be without merit.’” United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000)
15
Collateral crime evidence is inadmissible when it is relevant only to prove bad character or
propensity. See § 90.404(2)(a), Fla. Stat.
Page 37 of 39
(quoting Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)). Furthermore,
appellate counsel is not required to raise every non-frivolous issue on appeal. Heath, 941
F.2d at 1130-31. Rather, “effective advocates ‘winnow out’ weaker arguments” even when
such arguments may have merit. Id. at 1131. Appellate counsel may choose to focus on
the strongest claims while excluding claims that might have a lower chance of success or
detract from stronger arguments. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983).
DeSautel fails to establish that appellate counsel should have brought this claim, or
that he suffered prejudice as a result of appellate counsel’s failure to do so. Accordingly,
DeSautel does not demonstrate that the state appellate court’s decision was contrary to or
an unreasonable application of controlling Supreme Court precedent or based on a
unreasonable determination of the facts. Ground Three provides no relief.
Any of Petitioner’s claims not specifically addressed herein have been determined
to be without merit.
Accordingly, it is ORDERED AND ADJUDGED that DeSautel’s petition for writ of
habeas corpus (Dkt. 1) is DENIED. The Clerk is instructed to enter judgment against
DeSautel and close this case.
It is further ORDERED that DeSautel is not entitled to a certificate of appealability.
A petitioner does not have absolute entitlement to appeal a district court’s denial of his
habeas petition. 28 U.S.C. § 2253(c)(1). 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, DeSautel “must demonstrate that reasonable jurists would find the district court’s
Page 38 of 39
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)). DeSautel has not made this showing. Finally, because DeSautel is not entitled
to a certificate of appealability, he is not entitled to appeal in forma pauperis.
ORDERED in Tampa, Florida, on September 29, 2015.
Copy to:
Jason Ryan DeSautel
Counsel of Record
Page 39 of 39
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