Mazzola v. Secretary, Department of Corrections et al
Filing
28
OPINION AND ORDER. 1. The Amended Petition for Writ of Habeas Corpus 10 is DENIED. 2. The Clerk of the Court shall enter judgment accordingly and close this case. 3. A certificate of appealability is DENIED in this case. And because Petitioner is not entitled to a certificate of appealability, he is not entitled to proceed on appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 9/30/2015. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SAMUEL MAZZOLA,
Petitioner,
-vs-
Case No. 8:12-CV-1328-T-36JSS
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
__________________________/
ORDER
Petitioner initiated this action by filing a petition for habeas corpus relief pursuant to 28
U.S.C. Section 2254 (Doc. No. 1). Upon consideration of the petition, the Court ordered
Respondent to show cause why the relief sought in the petition should not be granted (Doc. No. 7).
Petitioner subsequently filed an amended petition (Doc. No. 10) and a memorandum of law in
support of the amended petition (Doc. No. 11). Thereafter, Respondent filed a response to the
amended petition (Doc. No. 17). Petitioner filed a reply to the response (Doc. No. 23) and a
supplement to the reply (Doc. No. 24).
Petitioner alleges fifteen claims for relief in the amended petition:
1.
Petitioner’s constitutional rights were violated when the trial court denied
Petitioner’s motion for mistrial on the ground that the prosecutor commented that
Petitioner failed to call a witness;
2.
Petitioner’s sentence as a prison releasee reoffender is unconstitutional because it
violates Petitioner’s right to a trial by jury;
3.
Petitioner’s sentence violates Petitioner’s constitutional rights because it exceeds the
statutory maximum;
4.
Petitioner’s sentence violates Petitioner’s constitutional rights because it fails to
provide a numerical term of years, as required by Florida statute;
5-14. Trial counsel was ineffective:
a. in allowing Petitioner to appear at trial in his prison uniform;
b. in failing to conduct a proper investigation that would have revealed a basis to
suppress State witness Rahsheita Stephens’ identification of Petitioner during trial;
c. in failing to file a motion in limine to exclude Stephens’ identification testimony;
d. in failing to object when the State used a mug-shot of Petitioner to refresh
Stephens’ recollection when she was unable to identify Petitioner during trial;
e. in failing to 1) effectively cross-examine Stephens regarding her identification of
Petitioner, and 2) have Petitioner display the tattoos to the jury;
f. in failing to call Officers Staples, Tully, and Haley to present testimony that would
have impeached Stephens’ identification testimony;
g. in failing to call Officer Coeyman to present testimony that witnesses Stephens
and Porter told him, while at the emergency room looking at Petitioner, that
Petitioner did not appear to be the driver of the vehicle that struck and killed the
victim;
h. in failing to consult with and hire an expert in the field of psychology to testify
that Stephens’ identification testimony was unreliable;
i. in failing to investigate the hiring of an expert to testify that Petitioner gave a false
confession, and by eliciting damaging testimony from Detective Gibson that in his
experience, “no one has admitted to a crime like this that wasn’t involved in it, or
didn’t do it”;
j. in failing to object to prosecutorial misconduct during closing arguments; and
15.
Appellate counsel was ineffective in failing to challenge, on direct appeal, the trial
court’s jury instruction on manslaughter by act.
2
I. PROCEDURAL HISTORY
The State charged Petitioner by Information with one count of first-degree murder (Ex. 1).1
A jury found Petitioner guilty of the lesser included offense of second-degree murder (Ex. 3).
Petitioner was sentenced as a prison-releasee reoffender to life imprisonment (Ex. 4). Petitioner
filed a direct appeal with the Florida Second District Court of Appeal, which affirmed per curiam
without a written opinion (Ex. 6).
Petitioner next filed a Motion to Correct Illegal Sentence pursuant to Florida Rules of
Criminal Procedure, Rule 3.800(a) (Ex. 7). The state post-conviction court denied the motion (Ex.
8), and the appellate court affirmed without a written opinion (Ex. 9).
Petitioner next filed a Petition Alleging Ineffective Assistance of Appellate Counsel in the
Second District Court of Appeal (Ex. 11), which was denied without written explanation (Ex. 12).
Petitioner then filed a motion for post-conviction relief pursuant to Florida Rules of Criminal
Procedure, Rule 3.850 alleging ten claims of ineffective assistance of trial counsel (Ex. 13). The
state post-conviction court issued an order summarily denying three claims, and directing the State
to respond to the remaining seven claims (Ex. 14). Following the State’s response (Ex. 15), the state
post-conviction court denied the remaining seven claims (Ex. 16). Petitioner appealed the denial
of his Rule 3.850 motion, and the state appellate court affirmed the denial per curiam without a
written opinion (Ex. 17).
II. GOVERNING LEGAL PRINCIPLES
Because Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C.
1
References to the record will be made by citing to the particular volume and page of the Respondent’s
appendix. For example, “Ex. 1 at p. 1” refers to page one of the volume labeled Exhibit 1.
3
§ 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th
Cir. 2003). The AEDPA “establishes a more deferential standard of review of state habeas
judgments,” Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), in order to “prevent federal
habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible
under law.” Bell v. Cone, 535 U.S. 685, 693 (2002); see also Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (recognizing that the federal habeas court’s evaluation of state-court rulings is highly
deferential and that state-court decisions must be given the benefit of the doubt).
A. Standard of Review Under the AEDPA
Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim adjudicated
on the merits in state court unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The phrase “clearly established Federal law,” encompasses only the holdings
of the United States Supreme Court “as of the time of the relevant state-court decision.” Williams
v. Taylor, 529 U.S. 362, 412 (2000).
“[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the
‘contrary to’ and ‘unreasonable application’ clauses articulate independent considerations a federal
court must consider.” Maharaj v. Secretary for Dep’t. of Corr., 432 F.3d 1292, 1308 (11th Cir.
2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in
Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
4
Under the “contrary to” clause, a federal court may grant the writ if the state court
arrives at a conclusion opposite to that reached by [the United States Supreme Court]
on a question of law or if the state court decides a case differently than [the United
States Supreme 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 [the United States
Supreme Court’s] decisions but unreasonably applies that principle to the facts of the
prisoner’s case.
If the federal court concludes that the state court applied federal law incorrectly, habeas relief is
appropriate only if that application was “objectively unreasonable.” Id.
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state
court’s decision “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” A determination of a factual issue made by a state court,
however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28
U.S.C. § 2254(e)(1).
B. Standard for Ineffective Assistance of Counsel
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984),
established a two-part test for determining whether a convicted person is entitled to relief on the
ground that his counsel rendered ineffective assistance: (1) whether counsel’s performance was
deficient and “fell below an objective standard of reasonableness”; and (2) whether the deficient
performance prejudiced the defense.2 Id. at 687-88. A court must adhere to a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. at
689-90. “Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of
2
In Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), the United States Supreme Court clarified that the prejudice
prong of the test does not focus solely on mere outcome determination; rather, to establish prejudice, a criminal defendant
must show that counsel’s deficient representation rendered the result of the trial fundamentally unfair or unreliable.
5
counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of
counsel:
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. Courts also should at the start presume effectiveness and should always avoid
second guessing with the benefit of hindsight. Strickland encourages reviewing
courts to allow lawyers broad discretion to represent their clients by pursuing their
own strategy. We are not interested in grading lawyers’ performances; we are
interested in whether the adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules
and presumptions, “the cases in which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between.” Rogers v. Zant, 13 F.3d 384, 386 (11th
Cir. 1994).
Finally, “[c]laims of ineffective assistance of appellate counsel are governed by the same
standards applied to trial counsel under Strickland.” Philmore v. McNeil, 575 F.3d 1251, 1264 (11th
Cir. 2009) (per curiam) (citing Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991)). Appellate
counsel’s performance is prejudicial if “the neglected claim would have a reasonable probability of
success on appeal[.]” Heath, 941 F.2d at 1132.
III. ANALYSIS
Ground One
Petitioner claims that the state trial court deprived him of a fair trial and due process when
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it denied his motion for a mistrial based on an improper prosecutorial comment on Petitioner’s
failure to call a witness. This claim involves the following exchange between the prosecutor and
Petitioner during cross-examination after Petitioner had testified (on direct examination) that he lied
to police during the recorded interview because he thought he was protecting his son, who he
thought may have been in the car that killed the victim (see Ex. 2 at p. 247):
PROSECUTOR: Where is your son?
PETITIONER: I’m not sure. I really don’t know. I know he’s fled Florida.
PROSECUTOR: Is he in jail, in prison in Ohio?
PETITIONER: I have no clue. I haven’t been in contact with him since then.
PROSECUTOR: You could have brought him down here to testify for you.
PETITIONER: Pardon me.
PROSECUTOR: You could have brough [sic] him down here to be here today.
(Ex. 2 at p. 248).
Trial counsel objected and moved for a mistrial on the ground that the prosecutor’s
question/comment that Petitioner could have brought his son to testify improperly shifted the burden
of proof to the defense (Ex. 2 at p. 249). The trial court sustained the objection, denied the motion
for a mistrial, and gave the following curative instruction:
Ladies and gentlemen, you are instructed to disregard the last question asked
by the assistant state attorney. The question was improper. In every criminal case it
is the state’s burden to proof [sic] their case beyond a reasonable doubt and to
overcome the defendant’s presumption of innocence.
Again, it is the State’s burden to prove the crime was committed that the
Defendant is charged with, and the Defendant is the person who committed the
crime. The Defendant is not required to present evidence or prove anything. You are
specifically instructed to keep that foremost in your mind as we go forward.
7
(Ex. 2 at pp. 249-51).
In state court, Petitioner raised this claim on direct appeal (Ex. 5). The appellate court
summarily affirmed without explanation (Ex. 6).3
A prosecutor “must refrain from making burden-shifting arguments which suggest that the
defendant has an obligation to produce any evidence or to prove innocence.” United States v. Simon,
964 F.2d 1082, 1086 (11th Cir. 1992). However, a burden-shifting comment warrants reversal only
where the argument “permeates the entire atmosphere of the trial[.]” Id. at 1086 (internal quotation
marks omitted). Moreover, the prejudice from a burden-shifting comment “can be cured by a court’s
instruction regarding the burden of proof.” Id. at 1087 (citations omitted). “[A] prejudicial remark
may be rendered harmless by curative instructions to the jury.” Id. (citation and internal quotation
marks omitted).
In Petitioner’s case, the prosecutor’s question/comment that Petitioner could have brought
his son to testify was likely improper.4 Indeed, the trial court sustained defense counsel’s objection
to the question/comment and immediately gave a curative instruction to the jury (Ex. 2 at p. 250-51).
Additionally, the trial court subsequently instructed the jury that the State had the burden of proving
the crime beyond a reasonable doubt, and that Petitioner was not required to present evidence or
prove anything (Ex. 2 at p. 391). “[A] jury is presumed to follow jury instructions.” Adams v.
3
Even though the Second District Court of Appeal’s decision is not explained in a written opinion, the decision
is entitled to deference under the AEDPA because it does not rest on a procedural ground and therefore is an adjudication
on the merits. See Wright v. Secretary for Dept. of Corrections, 278 F.3d 1245, 1255-56 (11th Cir. 2002) (“In § 2254(d)
Congress meant to, and did, mandate deference to state court adjudications on the merits of federal constitutional issues,
and a decision that does not rest on procedural grounds alone is an adjudication on the merits regardless of the form in
which it is expressed.”); Bishop v. Warden, GDCP, 726 F.3d 1243, 1255 (11th Cir. 2013) (“It is by now abundantly clear
that AEDPA deference applies to summary dispositions of a state court, because Ԥ 2254(d) does not require a state court
to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.’”) (quoting Harrington v.
Richter, 562 U.S. 86, 99 (2011)).
4
As stated above, the state trial court instructed the jury that “the question was improper.”
8
Wainwright, 709 F.2d 1443, 1447 (11th Cir.1983), cert. denied, 464 U.S. 1063 (1984).
There is no indication that the jury did not follow the trial court’s instruction to disregard the
prosecutor’s burden-shifting question, and instructions that Petitioner was not required to present
evidence or prove anything. Additionally, the prosecutor’s question/comment was isolated and did
not permeate the atmosphere of the trial.
Therefore, the prosecutor’s burden-shifting
question/comment did not so infect the trial with unfairness as to make Petitioner’s conviction a
denial of due process. See Darden v. Wainwright, 477 U.S. 168, 181 (1986) (on habeas corpus
review, “[t]he relevant question is whether the prosecutors’ comments ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’”) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)).
Accordingly, Petitioner has failed to demonstrate that the state appellate court’s rejection of
this claim was contrary to or an unreasonable application of controlling Supreme Court law or was
based on an unreasonable determination of the facts. Therefore, Petitioner is not entitled to relief
on Ground One.
Ground Two
Petitioner contends that his sentence under the Prison Release Reoffender Act (PRRA) is
unconstitutional because the trial court, rather than the jury, made the factual determinations as to
whether Petitioner qualified under the statute.5 In support of his contention, Petitioner argues that
5
The PRRA provides:
1. “Prison releasee reoffender” means any defendant who commits, or attempts to commit:
a. Treason;
b. Murder;
c. Manslaughter;
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d. Sexual battery;
e. Carjacking;
f. Home-invasion robbery;
g. Robbery;
h. Arson;
i. Kidnapping;
j. Aggravated assault with a deadly weapon;
k. Aggravated battery;
l. Aggravated stalking;
m. Aircraft piracy;
n. Unlawful throwing, placing, or discharging of a destructive device or bomb;
o. Any felony that involves the use or threat of physical force or violence against an
individual;
p. Armed burglary;
q. Burglary of a dwelling or burglary of an occupied structure; or
r. Any felony violation of s. 790.07, s. 800.04, s. 827.03, s. 827.071, or s. 847.0135(5);
within 3 years after being released from a state correctional facility operated by the Department of
Corrections or a private vendor or within 3 years after being released from a correctional institution
of another state, the District of Columbia, the United States, any possession or territory of the United
States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is
punishable by more than 1 year in this state.
2. “Prison releasee reoffender” also means any defendant who commits or attempts to commit any offense
listed in sub-subparagraphs (a)1.a.-r. while the defendant was serving a prison sentence or on escape status from
a state correctional facility operated by the Department of Corrections or a private vendor or while the
defendant was on escape status from a correctional institution of another state, the District of Columbia, the
United States, any possession or territory of the United States, or any foreign jurisdiction, following
incarceration for an offense for which the sentence is punishable by more than 1 year in this state.
3. If the state attorney determines that a defendant is a prison releasee reoffender as defined in
subparagraph 1., the state attorney may seek to have the court sentence the defendant as a prison releasee
reoffender. Upon proof from the state attorney that establishes by a preponderance of the evidence that a
defendant is a prison releasee reoffender as defined in this section, such defendant is not eligible for sentencing
under the sentencing guidelines and must be sentenced as follows:
a. For a felony punishable by life, by a term of imprisonment for life;
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the PRRA is unconstitutional because it violates his right to trial by jury, and cites to Apprendi v.
New Jersey, 530 U.S. 466 (2000), which held 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.” Id., 530 U.S. at 490.
Petitioner’s Apprendi claim is without merit as he fails to demonstrate that his sentence
exceeded the statutory maximum. Petitioner was convicted of second-degree murder, a first-degree
felony. Section 782.04(2), Florida Statutes. The statutory maximum penalty for that offense is life
imprisonment. Sections 782.04(2); 775.082(3)(d), Florida Statutes. Therefore, Petitioner’s sentence
to life imprisonment does not exceed the prescribed statutory maximum.
Moreover, the state trial court’s imposition of a life sentence under the PRRA did not violate
Apprendi and Petitioner’s right to trial by jury because the fact that Petitioner committed the offense
of second-degree murder within three years after being released from the Department of Corrections
“is analogous to the fact of a prior conviction because it demonstrates Petitioner’s recidivism.” Ross
v. McNeil, 2010 U.S. Dist. LEXIS 53139, at *128 (N.D. Fla. Apr. 14, 2010) (unpublished). See also
Stabile v. State, 790 So. 2d 1235, 1238 (Fla. 5th DCA 2001) (“Apprendi is inapplicable to the Prison
Releasee Reoffender Act, because the Act merely limits the court’s discretion in sentencing. It does
not increase the penalty beyond the statutory maximum.”); Gurley v. State, 906 So. 2d 1264, 1265
(Fla. 4th DCA 2005) (“For the purpose of applying Apprendi and Blakely [v. Washington, 542 U.S.
b. For a felony of the first degree, by a term of imprisonment of 30 years;
c. For a felony of the second degree, by a term of imprisonment of 15 years; and
d. For a felony of the third degree, by a term of imprisonment of 5 years.
Fla. Stat., § 775.082(9)(a). Petitioner appears to contend that his sentence under the PRRA is unconstitutional because
the court, rather than the jury, determined that the murder for which he was convicted was committed within 3 years after
being released from the Department of Corrections (Dkt. 11 at p. 2).
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296 (2004)], the date of a defendant’s release from prison under the prison releasee reoffender
statute is analogous to the fact of a prior conviction under the habitual felony offender statute.”).
The state courts’ denial of this claim was not contrary to clearly established federal law, did
not involve an unreasonable application of clearly established federal law, and was not based on an
unreasonable determination of the facts.6 Accordingly, Ground Two does not warrant federal habeas
relief.
Ground Three
Petitioner contends that his sentence to life imprisonment is unconstitutional because it
exceeds the statutory maximum for the offense of conviction. As noted above, in Florida the
statutory maximum penalty for second-degree murder is life imprisonment. Sections 782.04(2);
775.082(3)(d), Florida Statutes; Yasin v. State, 896 So. 2d 875, 876 (Fla. 5th DCA 2005) (“The
statutory maximum sentence for second degree murder is life. . . .”). Therefore, Petitioner’s
sentence does not exceed the statutory maximum.
Moreover, in denying this claim, the state post-conviction court determined that Petitioner’s
sentence was “not illegal” under Florida law because “[a] life sentence is expressly permitted for
second degree murder.” (Ex. 8 at p. 2). The state court’s determination with regard to the
interpretation of a state sentencing statute is an issue of state law that is not subject to federal habeas
review. See Curry v. Culliver, 141 F. App’x 832, 834 (11th Cir. 2005) (claims regarding the
interpretation of a state’s sentencing statute are purely questions of state law) (citing Carrizales v.
Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983)). See also Callahan v. Campbell, 427 F.3d 897,
932 (11th Cir. 2005) (holding that “[i]t is a fundamental principle that state courts are the final
6
In state court, Petitioner raised this claim in Ground One of his Rule 3.800(a) motion (Ex. 7). The state postconviction court denied the claim (Ex. 8), and the state appellate court affirmed (Ex. 9).
12
arbiters of state law, and federal habeas courts should not second-guess them on such matters.”)
(citation and internal quotation marks omitted).
The state courts’ denial of this claim was not contrary to clearly established federal law, and
was not based on an unreasonable determination of the facts. Accordingly, Ground Three does not
warrant federal habeas relief.
Ground Four
Petitioner asserts that his sentence to “life” imprisonment violates his federal constitutional
rights because state law requires his sentence to be set for a term of years. Despite Petitioner’s
assertion that his life sentence violates his federal constitutional rights, his claim is a state law issue
challenging the application of Florida’s sentencing laws. The claim, therefore, is not cognizable on
federal habeas review. See Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1989) (“[F]ederal
courts cannot review a state’s alleged failure to adhere to its own sentencing procedures.”).
Additionally, even if the claim was cognizable on federal habeas review, the state courts
determined that a sentence to life in prison is not “an illegal indefinite sentence.” (Ex. 11 at p. 2).
“[I]t is not the province of a federal habeas court to reexamine state-court determinations on
state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67 (1991).
Petitioner has failed to demonstrate that his sentence to “life” imprisonment rather than a
term of years violates clearly established federal law. He therefore has failed to show that the state
courts’ denial of this claim was contrary to clearly established federal law. Accordingly, Ground
Four does not warrant federal habeas relief.
Ground Five
Petitioner complains that trial counsel was ineffective in forcing Petitioner to wear his prison
13
uniform during trial. Petitioner contends that he told counsel that he did not want to wear the prison
uniform during trial, and that Petitioner’s sister brought clothes to the jail for Petitioner to wear at
trial. Petitioner asserts that because he wore the prison uniform during trial, the jury did not believe
he was a credible witness.
In state court, Petitioner raised this claim in Ground One of his Rule 3.850 motion (Ex. 13
at pp. 3-5). In denying the claim, the state post-conviction court stated:
The Defendant alleges that his counsel was ineffective for failing to object
to the Defendant having to wear his jail uniform at trial. The Defendant asserts that
he informed his counsel that he did not want to wear the jail uniform, but on the day
of trial he was told that he did not have permission to change his clothes. He asserts
that his counsel should have objected to the Defendant not being able to wear his
own clothes for trial. The Defendant maintains that he was prejudiced because the
jury was able to identify him as a prisoner and the State was able to argue that the
Defendant had been in jail for over two years.
In its response, the State asserts that during the motion to suppress hearing
the day before trial, defense counsel stated that he and the Defendant were
contemplating remaining in the jail clothes. See Exhibit B: Suppression Hearing
Transcript, pg. 68-70. Eventually, defense counsel stated that he wanted the
Defendant to remain in the clothes he was wearing. Therefore, it was clearly a
strategic decision of counsel to wear jail clothes as it would garner sympathy with
the jury because of the Defendant’s medical condition. The State further argues that
the Defendant could have voiced his disagreement with defense counsel’s decision
before trial and he failed to do so. See Exhibit B: pgs. 72-74. This Court finds the
State’s arguments persuasive. During the motion to suppress hearing, defense
counsel asked for the Defendant to be dressed as he was, in his jail clothes, because
he did not want the Defendant to be uncomfortable trying to cover up an injury.
Therefore, defense counsel was not ineffective and the Defendant cannot show how
he was prejudiced. Consequently, this claim is denied.
(Ex. 16 at record pp. 244-45).
Here, the state post-conviction court found that counsel made a strategic decision to have
Petitioner wear his jail clothes during trial because 1) it could elicit jury sympathy due to
14
Petitioner’s medical condition,7 and 2) he did not want Petitioner to be uncomfortable during the trial
by attempting to cover-up his injury. The state court’s factual determination that defense counsel
made a strategic decision to have Petitioner wear his jail clothes was not unreasonable. See
Fotopoulos v. Sec’y, Dep’t of Corr., 516 F.3d 1229, 1233 (11th Cir. 2008) (noting that the federal
court gives a presumption of correctness to the state court’s factual determination regarding whether
counsel’s actions were the product of a strategic decision), cert. denied, 129 S. Ct. 217 (2008).
During the hearing on Petitioner’s motion to suppress, the prosecutor expressed his concern
that Petitioner wearing a brace and sitting in a wheelchair would elicit sympathy from the jury, and
asked the court to direct the Petitioner to “cover up the brace with his jacket or something.” (Ex.
16 - “Exhibit B” at transcript p. 68). In response, defense counsel objected, arguing that he and
Petitioner “were debating whether we even should try to get clothes and just leave him in the [jail
clothes]” and that he “didn’t want to do anything that would make [Petitioner] more uncomfortable.
. . .” (Id. at transcript pp. 68-69). After the judge stated that he was not going to require Petitioner
to cover the brace, he asked defense counsel whether he intended to have Petitioner “dressed out”
for the trial (Id. at transcript p. 69). Defense counsel answered “No, Judge” and “I would like him
to be [dressed] the way he is now.” (Id.). Counsel then clarified that he did not want Petitioner
dressed in an orange jail uniform that had “‘jail’ splattered over it,” but wanted Petitioner wearing
the blue jail uniform he was wearing at the time of the hearing on the motion to suppress (Id. at
transcript pp. 69-70). And when the bailiff confirmed that “what [Petitioner’s] wearing now would
be “what he’ll wear tomorrow [at trial,]” defense counsel stated “[t]hat answered my question.” (Id.
7
Defense counsel argued, during Petitioner’s second motion for mistrial, that the jail clothes “could. . .be
interpreted as a hospital gown as opposed to a prison gown” because the clothes were “dark blue” and did not have
“‘County Jail’ written on it.” (Ex. 2 at p. 254).
15
at transcript p. 70). Defense counsel’s statements regarding Petitioner wearing his jail clothes during
trial support the state post-conviction court’s finding that defense counsel made a strategic decision
to have Petitioner wear his jail clothes during trial.
Having determined that the state post-conviction court’s factual determination was
reasonable, this Court next must determine whether counsel’s strategic determination was
reasonable. See Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000) (Strickland test requires habeas
court to determine whether counsel’s strategic decision was “reasonable”). “In order to show that
an attorney’s strategic choice was unreasonable, a petitioner must establish that no competent
counsel would have made such a choice.” Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir.
1998) (citations and internal quotation marks omitted). Thus, “strategic choices [by counsel] are
virtually unchallengeable.” Id.
Petitioner has failed to show that trial counsel’s decision to allow Petitioner to wear his jail
clothes during trial was a course no competent counsel would have taken under the circumstances.
It is apparent from the record that counsel had contemplated, and discussed with Petitioner, the issue
of whether Petitioner should wear his jail uniform or civilian clothes, and thereafter made a strategic
decision to have Petitioner wear his jail uniform in hopes of eliciting sympathy from the jury and
to make Petitioner more comfortable during trial. This Court cannot say that defense counsel’s
tactical decision to allow Petitioner to wear jail clothes during trial was unreasonable trial strategy.
See, e.g., Estelle v. Williams, 425 U.S. 501, 508 (1976) (“[I]t is not an uncommon defense tactic to
produce the defendant in jail clothes in the hope of eliciting sympathy from the jury.”) (citations
omitted).
Petitioner has failed to show that the state courts’ denial of this claim was contrary to
16
Strickland or based on an unreasonable determination of the facts. Accordingly, Ground Five does
not warrant federal habeas relief.8
Ground Six
During trial, State witness Rahsheita Stephens identified Petitioner as the man she saw
driving the car that struck and killed the victim (Ex. 2 at p. 44). She testified, however, that after
the incident she was taken to the hospital where Petitioner was transported, and she could not
identify Petitioner at that time because “[t]here were just so many people around him. . . .” (Ex. 2
at p. 45). Petitioner claims that the day after Stephens was unable to identify Petitioner at the
hospital, Detective Gibson asked Stephens to identify Petitioner from a single photograph of
Petitioner. Petitioner contends that trial counsel was ineffective in failing to investigate and
discover that Stephens’ in-court identification of Petitioner was the result of this unduly suggestive
pre-trial identification procedure. Petitioner further contends that counsel would have discovered
the suggestive identification procedure had counsel asked Stephens, during her pre-trial deposition,
whether she had been asked to identify Petitioner at any other time other than at the hospital.
Petitioner argues that “[s]uch questioning is basis [sic] and elementary line of inquiry which would
have been pursued by any reasonable attorney.” (Dkt. 10 at p. 15). Petitioner further argues that had
counsel discovered the unduly suggestive identification procedure, Stephens’ in-court identification
8
The Court notes that Petitioner does not allege a substantive claim that he was denied a fair trial because he
was compelled to appear at trial in his jail clothes. Nor did Petitioner present the claim in state court. However, even
if Petitioner had made the claim, it would fail on the merits. “[T]he state cannot, consistent with the Fourteenth
Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes.” Boswell v.
Alabama, 537 F.2d 100, 102 (5th Cir. 1976). Nevertheless, “a defendant cannot obtain release where he has not objected
[to wearing jail clothes] at the time of trial.” Wright v. Texas, 533 F.2d 185, 188 (5th Cir. 1976). It is apparent from the
record that Petitioner knew he was not required to wear his jail clothes during trial, yet at no point did Petitioner make
known to the trial court that he objected to his appearance in jail clothes. Therefore, Petitioner has not demonstrated that
he was forced to wear his jail clothes during trial. See Estelle, 425 U.S. at 512 n.9 (“[Defendant’s] silence [on the issue
of wearing jail clothes during trial] precludes any suggestion of compulsion.”).
17
of Petitioner would have been excluded, and the jury would have found him not guilty.
In state court, Petitioner raised this claim in Ground Two of his Rule 3.850 motion (Ex. 13
at pp. 5-6). In denying the claim, the state post-conviction court stated:
The Defendant alleges that his counsel was ineffective for failing to
investigate his case because he would have discovered a basis to move to suppress
identification by witness Rahsheita Stephens. The Defendant alleges that at trial Ms.
Stephens was the only witness who identified him as the person who drove into the
victim. He asserts that after a failed attempt to identify the Defendant at the hospital,
Ms. Stephens was shown a photograph of the Defendant by Detective Gibson in a
suggestive identification procedure. However, the Defendant asserts that during
depositions Ms. Stephens stated that she was not able to identify the driver of the car.
The Defendant maintains that his counsel should have questioned the change in
testimony and that Ms. Stephens’ testimony should have been suppressed.
In its response, the State asserts that the Defendant’s claim must be denied
because he has not shown that defense counsel was ineffective. The State argues that
the Defendant has not shown how he was aware that Ms. Stephens was shown this
photo or that counsel knew of this photo. Counsel cannot be ineffective for failing
to raise a claim that he knew nothing about. See Young v. State, 789 So. 2d 1 160, 1
162 (Fla. 5th DCA 2001). The State argues that during depositions Ms. Stephens’
statement that she was unable to identify the driver of the vehicle referred to her
ability at the time of the depositions. During trial, defense counsel impeached Ms.
Stephens with her deposition testimony which was proper. See Exhibit C: Trial
Transcripts, pgs. 47-49, 354-364. This Court finds the State’s arguments persuasive
as defense counsel impeached the testimony of Ms. Stephens with her inconsistent
statements at trial. Therefore, defense counsel was not ineffective and this claim
is denied.
(Ex. 16 at record pp. 245-46).
The state post-conviction court’s determination that Petitioner failed to demonstrate deficient
performance was not objectively unreasonable, and was not based on an unreasonable determination
of the facts. Petitioner offered no evidence in support of his allegation that Detective Gibson
showed Stephens a photograph of Petitioner. Moreover, even if Detective Gibson had shown
Stephens the photograph, Petitioner did not allege, let alone demonstrate, that counsel knew that
Detective Gibson had done so. And Petitioner’s contention that counsel would have discovered that
18
Detective Gibson had shown Stephens the photograph had counsel asked Stephens (during her
deposition) whether she had been asked to identify Petitioner at any time other than at the hospital
is purely speculative. Petitioner has not provided any testimony or an affidavit from Stephens
indicating how Stephens would have answered the question.
Counsel therefore cannot be
constitutionally ineffective for failing to pursue an issue he knew nothing about. See United States
v. Fields, 565 F.3d 290, 295 (5th Cir. 2009) (“Clairvoyance is not a required attribute of effective
representation.”).
Moreover, even assuming as true that Detective Gibson showed Stephens a photograph of
Petitioner, and assuming counsel was deficient in failing to discover this, Petitioner’s claim fails on
the prejudice prong of Strickland. Even if Stephens’ identification testimony had been excluded as
a result of a successful motion to suppress by defense counsel, Petitioner cannot show a reasonable
probability that suppression of Stephens’ identification of Petitioner would have changed the
outcome of the trial. This is so because defense counsel impeached Stephens at trial with her prior
deposition testimony that she could not identify the driver of the vehicle (see Ex. 2 at p. 49), and
because the recorded statement Petitioner gave to police, in which he admitted he was the driver and
gave very specific details of the incident, was sufficient evidence that Petitioner was the driver.
Therefore, Petitioner has failed to demonstrate that the state courts’ denial of this claim was
contrary to Strickland or based on an unreasonable determination of the facts. Accordingly, Ground
Six does not warrant federal habeas relief.
Ground Seven
Petitioner contends that trial counsel was ineffective in failing to file a motion in limine to
exclude Stephens’ testimony concerning her identification of Petitioner as the assailant. Petitioner
19
argues that counsel should have filed the motion in limine and argued that Stephens was not
“qualified” to give identification testimony because prior to trial, Stephens was unable to identify
Petitioner as the assailant.
In state court, Petitioner raised this claim as Ground Three of his Rule 3.850 motion (Ex. 13
at pp. 7-9). In denying the claim, the state post-conviction court stated:
The Defendant alleges that his counsel was ineffective for failing to file a
motion in limine to exclude the testimony of Ms. Stephens. The Defendant maintains
that prior to trial Ms. Stephens could not identify the Defendant and only gave
general descriptions. The Defendant asserts that his counsel knew before trial that
Ms. Stephens could not identify the Defendant and counsel should have moved to
have her excluded from testifying at trial. He asserts that if his counsel had raised
this issue in a motion it would have been excluded and the State would not have been
able to prove its case and he would have been found not guilty.
In its response, the State argues that the Defendant’s reliance on Swafford v.
State, 533 So. 2d 270 (Fla. 1988) and Purvear v. State, 810 So. 2d 901 (Fla. 2002),
are misplaced as they both consider a hearsay exception concerning an out of court
identification. The State asserts that the proper remedy for defense counsel was to
impeach the inconsistent statements of Ms. Stephens and not to file a motion in
limine as the Defendant suggests. The State asserts that there was no legal basis upon
which defense counsel could have based an objection or motion to exclude the
identification testimony simply because it was inconsistent. This Court finds the
State’s arguments persuasive. During trial, defense counsel impeached the witness
with her deposition testimony where she stated that she did not see the suspect. See
Exhibit C: Trial Transcripts, pgs. 47-49. Therefore, defense counsel did impeach the
witness and was not ineffective. Consequently, this claim is denied.
(Ex. 16 at record p. 246).
Petitioner has failed to demonstrate either deficient performance or prejudice because he has
failed to show that a motion in limine would have been granted, and Stephens’ identification
testimony would have been excluded, had counsel filed the motion. The state post-conviction court
determined that there was no legal basis to exclude Stephens’ identification testimony. Therefore,
the state post-conviction court has answered the question of what would have happened had defense
20
counsel filed a motion in limine requesting the trial court exclude Stephens’ identification testimony
- - the motion would have been denied. See e.g., Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir.
2005) (Alabama Court of Criminal Appeals had already answered the question of what would have
happened had counsel objected to the introduction of petitioner’s statements based on state
decisions; the objection would have been overruled; therefore, counsel was not ineffective for failing
to make that objection).
Petitioner has not established that the state court’s denial of this claim is contrary to, or an
unreasonable application of, Strickland. Accordingly, Ground Seven does not warrant federal
habeas relief.
Ground Eight
Petitioner contends that trial counsel was ineffective in failing to object when the State,
during its examination of Stephens, showed Stephens a mug shot of Petitioner to refresh Stephens’
recollection after she was unable to identify Petitioner at trial. Petitioner further contends that
counsel was ineffective in failing to object to Stephens’ in-court identification of Petitioner because
it was made only after she was shown the photograph. Petitioner argues that had counsel objected,
the jury would have found the State was unable to prove Petitioner was the driver of the car that
killed the victim.
In state court, Petitioner raised this claim as Ground Four of his Rule 3.850 motion (Ex. 13
at pp. 9-12). In denying the claim, the state post-conviction court stated:
The Defendant alleges that his counsel was ineffective for failing to object
to the State using a mug shot of the Defendant to show to Ms. Stephens. The
Defendant alleges that Ms. Stephens stated in depositions that she did not see the
Defendant at the scene of the crime. He alleges that Ms. Stephens was shown a
single photograph of the Defendant to refresh her memory and then she was able to
identify the Defendant at trial. The Defendant maintains that his counsel should have
21
objected to the State’s use of a mug shot to bolster Ms. Stephens testimony at trial.
The Defendant maintains that if his counsel had objected the jury would have found
that the State was unable to prove identity.
In its response, the State asserts that Ms. Stephens was able to identify the
Defendant prior to being shown the photograph. See Exhibit C: Trial Transcripts,
pgs. 44-45, 58-59. Therefore, the photo was not necessary to refresh Ms. Stephens’
recollection and she was only shown the photo to explain why she could not identify
the Defendant at the hospital.
This Court finds the State’s arguments persuasive. Ms. Stephens identified
the Defendant before she was shown the photograph and therefore, defense counsel
had no reason to object. Consequently, defense counsel was not ineffective and this
claim is denied.
(Ex. 16 at record pp. 246-47).
The state post-conviction court’s determination that Petitioner failed to demonstrate deficient
performance was not objectively unreasonable, and was not based on an unreasonable determination
of the facts. The record supports the state court’s factual finding that Stephens identified Petitioner
during trial before she was shown Petitioner’s photograph (Ex. 2 at pp. 44, 58). Therefore, because
Stephens identified Petitioner before she was shown the photograph, counsel was not deficient in
failing to object to Stephens’ identification of Petitioner on the ground that the identification was
made only after Stephens was shown Petitioner’s photograph. Moreover, counsel was not deficient
in failing to object to the State showing Petitioner’s photograph to Stephens on the ground that it
was improper to do so to refresh Stephens’ recollection that Petitioner was the driver. The
photograph was not used to refresh Stephens’ recollection as to what the driver looked like. Rather,
Stephens was shown the photograph during re-direct in an apparent attempt to rehabilitate her after
defense counsel impeached her with her deposition testimony (Ex. 2 at pp. 58). Accordingly,
Ground Eight does not warrant federal habeas relief.
Ground Nine
22
Petitioner contends that counsel was ineffective in failing to 1) effectively cross-examine
Stephens regarding her identification of Petitioner, and 2) have Petitioner display the tattoos on his
arms, shoulders, and back to the jury. Petitioner argues that because Stephens testified 1) at trial that
the driver of the vehicle was not wearing a shirt, and 2) during her deposition that the driver “did
not have any ‘particularly identifying features like tattoos,’” counsel should have asked Stephens,
during cross-examination at trial, whether she saw any tattoos on the driver, then had Petitioner
display his tattoos to the jury.
In state court, Petitioner raised this claim as Ground Five of his Rule 3.850 motion (Ex. 13
at pp. 13-14). In denying the claim, the state post-conviction court stated:
The Defendant alleges that his counsel was ineffective for failing to
effectively cross-examine Ms. Stephens about her identification of the Defendant.
The Defendant asserts that he has numerous tattoos on his body and that during her
depositions Ms. Stephens stated that the driver did not have identifying features, like
tattoos, on his body. The Defendant maintains that his counsel should have
questioned Ms. Stephens at trial about her prior statement that the Defendant did not
have tattoos. He also asserts that he should have been asked to display his tattoos for
the jury. The Defendant maintains that if his attorney had not been ineffective it is
reasonable that the outcome of his trial would have been different.
However, the Defendant’s allegations lack merit. Defense counsel questioned
the Defendant regarding the amount and location of the tattoos on his body. See
Exhibit B: Trial Transcript, pgs. 246-247. The Defendant has not provided any
testimony that the jury did not believe his testimony that he had visible tattoos.
Moreover, defense counsel did ask witness, Ms. Porter, if she noticed tattoos on the
Defendant’s body to which she replied no. See Exhibit B: Trial Transcript, pgs. 70.
Therefore, it was established to the jury that the Defendant had tattoos that the
eyewitnesses did not notice. Consequently, defense counsel is not ineffective for
failing to continue to question the witnesses or for failing to have the Defendant
display the tattoos for the jury. Therefore, this claim is denied.
(Ex. 14 at p. 3).
The state post-conviction court’s determination that Petitioner failed to demonstrate deficient
performance was not objectively unreasonable, and was not based on an unreasonable determination
23
of the facts. Initially, Petitioner has not established how Stephens would have testified had she been
asked at trial whether she saw tattoos on the driver. Although Petitioner contends that during
Stephens’ pre-trial deposition she testified that the driver did not have any “particular identifying
feature’s [sic] like tattoos” (Dkt. 1 at p. 21), Petitioner has failed to provide this Court with
Stephens’ deposition testimony. Therefore, Petitioner has failed to present any evidence to support
his contention that Stephens would have testified at trial as he theorizes. See United States v.
Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“[E]vidence about the testimony of a putative witness
must generally be presented in the form of actual testimony by the witness or on affidavit. A
defendant cannot simply state that the testimony would have been favorable; self-serving speculation
will not sustain an ineffective assistance claim.”) (footnotes omitted). Consequently, his claim is
too speculative to warrant relief. See Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001)
(“Johnson offers only speculation that the missing witnesses would have been helpful. This kind of
speculation is ‘insufficient to carry the burden of a habeas corpus petitioner.’”) (quoting Aldrich v.
Wainwright, 777 F.2d 630, 636 (11th Cir.1985)). See also Tejada v. Dugger, 941 F.2d 1551, 1559
(11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot support an ineffective
assistance of counsel claim).
Moreover, even if Stephens had testified at trial that she did not see any tattoos on the driver,
and even if Petitioner had removed his shirt to reveal the tattoos on his shoulders and back to the
jury, Petitioner has failed to show a reasonable probability of a different outcome at trial, let alone
that the Florida courts’ denial of this claim was unreasonable. During cross-examination of Ms.
Porter at trial, defense counsel asked Ms. Porter whether the driver of the car that killed the victim
was wearing a shirt as he was running away (Ex. 2 at p. 71). Ms. Porter answered “No, he did not
24
have a shirt on.” (Id.). Defense counsel also asked Ms. Porter if she saw “any tattoos on the
driver?” (Id. at p. 70). Ms. Porter answered “No.” (Id.). During direct examination, Petitioner
testified that on the date of the incident he had several tattoos on his arms, shoulders, and back (Id.
at 246-47). Additionally, it is apparent from the trial transcript that the tattoos on Petitioner’s arms
were, at least partially, visible to the jury (Id. at p. 246). During his closing statement, defense
counsel argued that Petitioner could not have been the driver because Petitioner had numerous
tattoos on his back and on both arms and shoulders, yet Ms. Porter testified 1) that she saw the
driver of the car that struck the victim, 2) that the driver was not wearing a shirt, and 3) that she did
not see any tattoos on the driver (Id. at pp. 367-68). The jury was therefore aware that Petitioner had
multiple tattoos on his arms, shoulders, and back, that the eyewitnesses testified that the driver of
the car was not wearing a shirt,9 and that Ms. Porter testified that she did not see any tattoos on the
driver. Therefore, Petitioner removing his shirt to reveal the tattoos on his back and shoulders, and
Stephens’ testimony that she did not see tattoos on the driver, merely would have been cumulative
of evidence already presented at trial. “[A] petitioner cannot satisfy the prejudice prong of the
Strickland test with evidence that is merely cumulative of evidence already presented at trial.” Rose
v. McNeil, 634 F.3d 1224, 1243 (11th Cir. 2011). Accordingly, Ground Nine does not warrant
federal habeas relief.
Ground Ten
Petitioner contends that trial counsel was ineffective in failing to call Officers Staples, Tully,
and Haley to testify at trial. Petitioner asserts that Officer Staples would have testified 1) that when
she arrived at the location where Petitioner was found shot, Petitioner was wearing “blue jean
9
Stephens testified, in pertinent part, that “I know exactly what [the driver] had on, which is the same thing the
guy had on at the hospital, which is white jeans and no T-shirt.” (Ex. 2 at p. 49).
25
shorts,” and “had on a dark blue T-shirt with a pocket,” and 2) she saw paramedics take off
Petitioner’s shorts and shirt. Petitioner avers that Officer Tully would have testified that after
Petitioner was transported to the hospital, she “observed a dark colored shirt laying in the same area
where the Petitioner was found.” And Petitioner asserts that Officer Haley would have testified that
Petitioner “was wearing a blue shirt.” Petitioner argues that the officers’ testimony would have cast
doubt on Stephens’ identification of Petitioner as the driver of the vehicle that struck the victim
because Stephens testified that the driver was not wearing a shirt.
In state court, Petitioner raised this claim as Ground Six of his Rule 3.850 motion (Ex. 13
at pp. 15-16). In denying the claim, the state post-conviction court stated:
The Defendant alleges that his counsel was ineffective for failing to present
available witnesses at trial. The Defendant alleges that his counsel should have called
Officers Janie Staples, Thomas Tully, and James Haley who were available to testify
at trial. The Defendant asserts that these officers would have testified that the
Defendant was wearing a blue shirt, which was taken off when the paramedics
arrived. The Defendant maintains that the testimony of these three witnesses would
have impeached the testimony of Ms. Stephens that the Defendant was not wearing
a shirt when she observed him at the time of the offense. The Defendant alleges that
the impeachment of Ms. Stephens would have bolstered the credibility of his
testimony.
In its response, the State asserts that defense counsel made a strategic
decision not to call any witnesses at trial because he wanted to go first and last in
closing arguments. See Exhibit C: Trial Transcripts, pgs. 362-363. The State asserts
that by presenting the testimony of these nominal witnesses, counsel would have
given up the benefit of closing arguments. The State also maintains that the
Defendant was caught five blocks from the scene of the accident and it is possible
that he obtained a shirt while running. This Court finds that the Defendant's claim
lacks merit. The Defendant has not shown how impeaching Ms. Stephens on whether
or not the Defendant was wearing a shirt would have changed the outcome of the
trial and is merely speculating that it would have changed the jury verdict. See Bass
v. State, 932 So. 2d 1 170, 1 172 (Fla. 2d DCA 2006). Therefore, this claim is
denied.
(Ex. 16 at record p. 247). The state post-conviction court’s denial of this claim was not objectively
26
unreasonable, and was not based on an unreasonable determination of the facts. Initially, Petitioner
has not established how the officers would have testified at trial with regard to this issue. Although
Petitioner contends that the officers would have testified that Petitioner was wearing a blue shirt
when they saw him, Petitioner has failed to provide this Court with any testimony or affidavit from
the officers in support of his contention. Therefore, Petitioner has failed to present any evidence to
support his contention that the officers would have testified as he theorizes. See Ashimi, 932 F.2d
at 650. Consequently, his claim is too speculative to warrant relief. See Johnson v. Alabama, 256
F.3d at 1187.
Moreover, even if the officers would have testified that when they saw Petitioner he was
wearing a blue shirt, Petitioner has failed to show a reasonable probability of a different outcome
at trial, let alone that the Florida courts’ denial of this claim was unreasonable. As the state postconviction court stated, Petitioner “was caught five blocks from the scene of the accident and it is
possible that he obtained a shirt while running.” Therefore, even if Petitioner was found wearing
a shirt after he had been shot, that does not establish that Petitioner was not the individual Stephens
saw driving the vehicle and fleeing on foot from the scene of the crime.
Furthermore, the state post-conviction court found that defense counsel made a strategic
decision not to call witnesses other than Petitioner in order to retain first and last closing argument.10
This factual determination that counsel made a strategic decision not to call other witnesses was not
unreasonable in light of the record (Ex. 2 at pp. 362-63). And this Court cannot conclude that
counsel’s decision not to call witnesses other than Petitioner to retain first and last closing argument
10
At the time of Petitioner’s trial, Fla. R. Crim. P. 3.250 (2005) provided, in pertinent part, that “a defendant
offering no testimony in his or her own behalf, except the defendant’s own, shall be entitled to the concluding argument
before the jury.”
27
fell outside the range of strategic decisions that counsel could have reasonably made. Stoddard v.
Sec'y, Dep't of Corr., 600 Fed. Appx. 696, 707 (11th Cir. 2015) (unpublished) (“Because the
question of ‘whether an attorney’s decision is ‘strategic’ or ‘tactical’ is a question of fact,’ we first
review whether the state court’s factual determinations were reasonable and then proceed to the legal
question of the reasonableness of counsel’s strategic decision.”) (quoting Debruce v. Comm’r, Ala.
Dep’t of Corr., 758 F.3d 1263, 1273 (11th Cir. 2014)). This is especially true where defense counsel
used Stephens and Porter’s testimony that the driver was not wearing a shirt and did not have tattoos
to his advantage by arguing to the jury that Petitioner could not have been the driver because he had
numerous tattoos all over his arms, shoulders, and back. This argument likely would have been
weakened, if not rendered useless, had defense counsel called the officers to testify that they later
found Petitioner five blocks away, shot and wearing a shirt.
The state courts’ denial of this claim was neither contrary to nor an unreasonable application
of Strickland, and was not based on an unreasonable determination of the facts. Accordingly,
Ground Ten does not warrant federal habeas relief.
Ground Eleven
Petitioner contends that trial counsel was ineffective in failing to call Officer Charles R.
Coeyman to testify at trial. Petitioner asserts that Officer Coeyman would have testified that while
he, Stephens, and Porter were at the hospital where Petitioner was taken, Stephens and Porter saw
Petitioner and told Officer Coeyman that “they did not believe [Petitioner] has [sic] the driver,
because the diver [sic] was a younger person without facial hair.” (Dkt. 10 at p. 26). Petitioner
argues that had counsel called Officer Coeyman to testify, Officer Coeyman’s testimony would have
cast doubt on Stephens’ identification of Petitioner as the driver.
28
In state court, Petitioner raised this claim as Grounds Seven of his Rule 3.850 motion (Ex.
13 at pp. 16-18). In denying the claim, the state post-conviction court stated:
The Defendant alleges that his counsel was ineffective for failing to present
Officer Charles Coeyman as a witness at trial. The Defendant alleges that his counsel
should have called Officer Coeyman as a witness at trial because the officer would
have testified that when Ms. Stephens was questioned she could not identify the
Defendant. However, the Defendant's allegations lack merit. Defense counsel
impeached Ms. Stephens with the statements she made to Officer Coeyman as well
as with her inconsistent statements made during depositions. See Exhibit B: Trial
Transcripts, pgs. 48-49. Therefore, the Defendant cannot show that the information
that was told to Officer Coeyman was not bought into trial and he was not prejudiced
by not having the officer testify. Consequently, this claim is denied.
(Ex. 14 at p. 4).
The state court’s determination that Petitioner was not prejudiced by counsel failing to call
Officer Coeyman to testify was not an unreasonable one. Initially, Petitioner has not established
how Officer Coeyman would have testified had he been called to testify at trial. Although Petitioner
contends that Officer Coeyman would have testified that Stephens and Porter told him at the hospital
that Petitioner did not appear to be the driver, Petitioner has failed to provide this Court with any
testimony or affidavit from Officer Coeyman. Therefore, Petitioner has failed to present any
evidence to support his contention that the officers would have testified as he theorizes. See Ashimi,
932 F.2d at 650. Consequently, his claim is too speculative to warrant relief. See Johnson v.
Alabama, 256 F.3d at 1187.
Moreover, even if Officer Coeyman would have testified that Stephens and Porter told him
that Petitioner did not appear to be the same man who was driving the vehicle, Petitioner has failed
to show a reasonable probability of a different outcome at trial, let alone that the Florida courts’
denial of this claim was unreasonable. As the state post-conviction court stated, during trial
“[d]efense counsel impeached Ms. Stephens with the statements she made to Officer Coeyman as
29
well as with her inconsistent statements made during depositions.” (Ex. 14 at p. 4). This factual
finding is supported by the record (Ex. 2 at transcript pp. 47-50). Officer Coeyman’s testimony
therefore merely would have been cumulative to the substantial impeachment of Stephens that
already had taken place. Additionally, by presenting Coeyman’s testimony counsel would have lost
the right to both the first and last closing arguments. Finally, the jury heard a recorded statement
Petitioner gave to police during which Petitioner 1) admitted he was the driver of the vehicle that
struck and killed the victim, and 2) gave a very detailed account of the incident, including a) how
the incident occurred near a field, b) how the car was “swaying” from side to side as it approached
the victim, who likewise was moving from side to side, c) how the car crashed into and was stuck
in a fence, d) how the victim was under the car, and 5) how the drugs were in a Ziplock bag (Id. at
transcript pp. 122-32), that was consistent with both the eyewitnesses’ description of the events and
the physical evidence from the scene of the incident. Although Petitioner testified at trial that he
fabricated the story to protect his son, the jury was free to disregard his testimony as not credible.
See United States v. Marley, 2015 U.S. App. LEXIS 9557, at *3 (11th Cir. June 9, 2015) (“A jury
is free to choose among reasonable constructions of the evidence.”); United States v. Parrado, 911
F.2d 1567, 1571 (11th Cir. 1990) (“credibility determinations are the exclusive province of the
jury”).
The state courts’ denial of this claim was neither contrary to nor an unreasonable application
of Strickland, and was not based on an unreasonable determination of the facts. Accordingly,
Ground Eleven does not warrant federal habeas relief.
Grounds Twelve and Thirteen
Petitioner contends that trial counsel was ineffective in failing to call an expert witness to
30
testify 1) that Stephens’ identification testimony was unreliable (Ground Twelve), and 2) that
Petitioner gave a false confession (Ground Thirteen). Initially, Petitioner does not state who would
have testified as an expert, and does not provide any evidence of what testimony an expert would
have offered. He has failed to present any actual testimony or affidavits in support of his claims.
Therefore, because Petitioner has not presented any actual testimony or affidavit from an expert
witness, this Court has no basis for determining 1) whether an expert would have testified that
Stephens’ identification testimony was unreliable, and Petitioner made a false confession, and 2)
whether the expert testimony would have changed the outcome of Petitioner’s trial. Petitioner’s
self-serving speculation regarding what an expert witness may have testified to at trial will not
sustain a claim of ineffective assistance of counsel. See Ashimi, 932 F.2d at 650.
Moreover, the state post-conviction court’s denial of these claims was not objectively
unreasonable, and was not based on an unreasonable determination of the facts. In state court,
Petitioner raised these claims as Grounds Seven11 and Eight of his Rule 3.850 motion (Ex. 13 at pp.
18-25). In denying these claims, the state post-conviction court stated:
The Defendant alleges that his counsel was ineffective for failing to hire an
expert to testify regarding the factors that would affect the reliability of eyewitness
identification. The Defendant asserts that if his counsel had gotten an expert witness
to testify it would have enhanced the jury’s knowledge and assisted them in making
a correct decision. The Defendant asserts that an expert would have explained to the
jury why he gave a false confession to the police to protect his son. He asserts that
if the jury had received this information there would have been a not guilty verdict.
In its response, the State asserts that the Defendant’s claim is not sufficient.
11
In his Rule 3.850 motion, Petitioner’s claim that counsel was ineffective in failing to call Officer Coeyman
to testify, and claim that counsel was ineffective in failing to retain an expert to testify that Stephens’ identification
testimony was unreliable, were both identified as “Ground Seven” (Ex. 13 at pp. 16, 18). Petitioner’s claim that counsel
failed to retain an expert to testify regarding the reliability of the identification testimony should have been identified
as “Ground Eight” of the Rule 3.850 motion, and Petitioner’s claim that counsel failed to retain an expert to testify that
Petitioner made a false confession should have been identified as “Ground Nine.”
31
The State argues that the Defendant fails to allege that there was any expert available
to offer the proposed testimony or that the expert testimony would have passed the
Frye test. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The State also
asserts that the Defendant has not shown that the testimony of the expert witness
would have come into trial. This Court finds the State’s argument persuasive. The
Defendant is merely speculating that an expert’s testimony would have changed the
jury’s reliability on the testimony of the eyewitness. See Bass v. State, 932 So. 2d
1 170, 1172 (Fla. 2d DCA 2006). Therefore, as the Defendant cannot show that the
outcome of the proceedings would have changed if counsel had hired an expert
witness, this claim is denied.
(Ex. 16 at record p. 248).
The state post-conviction court’s order rejected these claims on Strickland’s prejudice prong.
The state post-conviction court made a factual finding that Petitioner did not present any expert
testimony that would have been admissible at trial, and therefore Petitioner was merely speculating
that an expert’s testimony would have changed the outcome of the trial. The state post-conviction
court’s factual finding is presumed correct, see 28 U.S.C. § 2254(e), and is supported by the record.
Petitioner offered no evidence that an expert would have testified as he believed they would (see Ex.
13). Petitioner has not proved by clear and convincing evidence that the state post-conviction
court’s factual finding was incorrect. 28 U.S.C. § 2254(e)(1).
Based on the state post-conviction court’s findings, it was objectively reasonable for the
court to conclude that Petitioner failed to carry his burden of showing a reasonable probability that
an expert would have testified as Petitioner stated and that the outcome of the trial would have been
different. See Duran v. Walker, 223 F. App’x 865, 875 (11th Cir. 2007) (“Duran’s claim that an
expert witness would have prompted the jury to believe his testimony and disregard the statements
he made during the police interview is conclusory and speculative, and does not amount to a
showing of prejudice.”).
Finally, in Ground Thirteen, Petitioner contends that counsel was ineffective in eliciting
32
damaging testimony from Detective Gibson. On cross-examination, counsel asked Detective Gibson
“Sir, in your experience, either personally or in other investigations, have you experienced people
that make false confessions?” (Ex. 2 at p. 137). After the prosecutor’s objection to the question was
overruled, Detective Gibson answered “I can honestly say that no one has admitted to a crime like
this that wasn’t involved in it or didn’t do it.” (Id. at p. 138). Petitioner argues that Detective
Gibson’s answer “slamm[ed] the door shut on Petitioner’s defense,” namely, that Petitioner believed
that his son was the driver of the vehicle that killed the victim, and therefore gave a false confession
to protect his son.
In state court, Petitioner raised this claim in Ground Eight of his Rule 3.850 motion (Ex. 13
at pp. 22-25). In denying the claim, the state post-conviction court stated:
The Defendant alleges that his counsel was ineffective for eliciting damaging
testimony during the cross-examination of Detective Gibson. The Defendant asserts
that his counsel attempted to establish through cross-exam a defense of false
confession and thereby got damaging testimony. He maintains that no reasonable
attorney would ask whether people make false confessions to establish the validity
of a defense. The Defendant asserts that without the testimony of an expert and
counsel’s improper questioning the jury was led to improperly believe that false
confessions do not exist.
However, the Defendant’s understanding of the questioning of Detective
Gibson is misplaced. Defense counsel asked the Detective if in his experience he had
ever met someone who gave a false confession. Detective Gibson’s answer was
merely from his experience and the Defendant has applied it too broadly. See Trial
Transcript, pgs. 138-139. Furthermore, the Defendant cannot show that he was truly
prejudiced by defense counsel asking such a question. The Defendant is merely
speculating that this question turned the jury against him or prejudiced his case.
Therefore, this claim is denied.
(Ex. 14 at p. 4).
The state post-conviction court’s determination that Petitioner failed to demonstrate
prejudice was not objectively unreasonable, and was not based on an unreasonable determination
33
of the facts. Defense counsel did not ask Detective Gibson whether individuals sometimes make
false confessions. Rather, defense counsel asked Detective Gibson whether Detective Gibson
himself had seen someone make a false confession, to which Detective Gibson answered that he had
not. Therefore, Detective Gibson’s answer was limited to Detective Gibson’s own experience with
false confessions. Accordingly, the answer did not “slam[] the door shut on” Petitioner’s defense
that he made a false confession.
Additionally, in light of the totality of the evidence of Petitioner’s guilt,12 the state postconviction court’s conclusion that there was no reasonable probability that the outcome of
Petitioner’s trial would have been different had counsel not asked Detective Gibson whether he had
ever experienced a situation where someone gave a false confession is not unreasonable.
The state courts’ denial of these claims was neither contrary to nor an unreasonable
application of Strickland, and was not based on an unreasonable determination of the facts.
Accordingly, Grounds Twelve and Thirteen do not warrant federal habeas relief.
Ground Fourteen
Petitioner contends that trial counsel was ineffective in failing to object to prosecutorial
misconduct during closing argument. Specifically, Petitioner asserts that counsel should have
objected to the following statements made by the prosecutor on the ground that the statements either
improperly vouched for the credibility of Stephens and the police officers, or improperly shifted the
burden of proof to Petitioner:
12
That evidence included 1) Stephens and Porters’ eyewitness testimony, 2) Petitioner’s statement in which he
admitted that he was the driver of the vehicle that killed the victim, and gave small details regarding the incident that
were consistent with the eyewitness testimony and physical evidence, 3) the fact that Petitioner gave inconsistent
statements to the police regarding why he had been shot, 4) the fact that the vehicle that killed the victim belonged to
Petitioner’s son and girlfriend, 5) the fact that Petitioner admitted driving that vehicle on prior occasions, and 6) the fact
that Petitioner was found shot merely five blocks from where the victim was struck and killed.
34
And these officers. all three of them can’t be wrong. All three can’t be lying. They
took down notes saying that he said he was in the white car.
But she [Stephens] identified his booking photo when he got booked into the jail
shortly after all this happened. And she identified him in court. That’s the man.
That’s the man who did all of this and drove over him. . . .Now, why would Ms.
Stephens lie about this being the defendant? I understand Terry Baker [the victim]
is a friend of hers. He dated her aunt. But she doesn’t know the defendant, has never
seen him before. She wants to make sure the right person is convicted of the crime.
There is no reason to say its him if it is not.
Defendant never explains what he’s doing in an alley on September 4th near dusk
miles from his house. . . .He never explained it. He never told you what he was
doing there. Why? Because it’s not true.
Another problem. He never explains how he got there. . . .How did he get there
miles from his house in the middle of a neighborhood that he doesn’t live in?
He never explains why he got shot. I mean, if somebody else did this why shoot
him? He didn’t do it. He doesn’t explain that. Why? Because the story never
happened. He said his son ran up to him, they talked and his son ran off. Why did
he stay? He never explained that.
(Ex. 2 at pp. 327-28, 337-39).
In state court, Petitioner raised this claim in Ground Nine of his Rule 3.850 motion (Ex. 13
at pp. 26-28). In denying the claim, the state post-conviction court determined that the prosecutor’s
comments were not improper because they did not bolster the testimony of the witnesses and did not
shift the burden of proof to Petitioner. Specifically, the state post-conviction court stated:
The Defendant alleges that his counsel was ineffective for failing to object
to prosecutorial misconduct during closing arguments. The Defendant alleges that
the prosecutor improperly bolstered a State witness by vouching for the veracity of
the law enforcement testimony. He also alleges that the prosecutor improperly
shifted the burden of proof to the Defendant. The Defendant asserts that his due
process rights were violated.
In its response, the State asserts that defense counsel made general statements
attacking the credibility of witnesses and as such the prosecutor’s statements were
just in response. See Exhibit C: Trial Transcripts, pgs. 31 1-317. The trial court even
instructed the jury to consider the witnesses’ motivation to testify truthfully when
35
considering credibility. See Exhibit B: pgs. 392-393. The State asserts that in regards
to the police officers the prosecutor was merely pointing out the consistency of their
statements and counsel had no reason to object to these statements. See Johnson v.
State, 801 So. 2d 141, 142 (Fla. 4th DCA 2001). The State further asserts that the
arguments made by the prosecutor about Stephens and Porters [sic] lack of
motivation to lie were proper and allowed. See Johnson v. State, 858 So. 2d 1274,
1276 (Fla. 3d DCA 2003).
In regards to the burden of proof, the State asserts that the prosecutor asked
rhetorical questions which were intended to demonstrate inconsistencies and flaws
in the Defendant’s testimony. See Exhibit C: Trial Transcripts, pgs. 337-338. The
State argues that the Defendant has not demonstrated that there were any comments
by the prosecutor that impermissibly shifted the burden of proof. Further, the jury
was continually reminded that the State had the burden of proof by defense counsel,
by the prosecutor, and by the trial court. See Exhibit C: Trial Transcripts, pgs. 240,
314-318, 337-338, 375-376, 390-391 . This Court finds the States [sic] arguments
persuasive. The prosecutor did not bolster the testimony of various witnesses and
defense counsel had no reason to object about the burden of proof since it was not
shifted. Consequently, this claim is denied.
(Ex. 16 at record pp. 248-49).
“To warrant reversal of a verdict[,] prosecutorial misconduct must be so pronounced and
persistent that it permeates the entire atmosphere of the trial.” United States v. Thomas, 8 F.3d 1552,
1561 (11th Cir. 1993) (citing United States v. McLain, 823 F.2d 1457, 1462 (11th Cir. 1987)).
“Specifically, a prosecutor’s remark during closing argument must be both improper and prejudicial
to a substantial right of the defendant.” Id. (citing United States v. Bascaro, 742 F.2d 1335, 1353
(11th Cir. 1984)). “[A]n attorney is allowed to argue reasonable inferences from the evidence and
to argue credibility of witnesses or any other relevant issue so long as the argument is based on the
evidence.” Miller v. State, 926 So. 2d 1243, 1254-55 (Fla. 2006) (citing Craig v. State, 510 So. 2d
857, 865 (Fla. 1987)).
Review of the prosecutor’s statements support the state court’s denial of these claims.
Petitioner’s assertion that the prosecutor improperly vouched for the credibility of the witnesses’
36
testimony is based upon a misapprehension of that concept. Attempts to bolster a witness by
vouching for her credibility are improper “if the jury could reasonably believe that the prosecutor
indicated a personal belief in the witness’ credibility.” United States v. Eyster, 948 F.2d 1196, 1206
(11th Cir. 1991) (citing United States v. Sims, 719 F.2d 375, 377 (11th Cir. 1983)). However, “[t]he
prohibition against vouching does not forbid prosecutors from arguing credibility . . . it forbids
arguing credibility based on the reputation of the government office or on evidence not before the
jury.” United States v. Hernandez, 921 F.2d 1569, 1573 (11th Cir. 1991). When a prosecutor voices
a personal opinion but indicates that this belief is based on evidence in the record, the comment is
not improper. United States v. Granville, 716 F.2d 819, 822 (11th Cir. 1983) (finding no
prosecutorial misconduct where prosecutor, in an effort to support testimony of two Government
witnesses, only pointed to matters in evidence).
This Court finds no instances of improper bolstering in the prosecutor’s closing argument.
None of the comments identified by Petitioner were an explicit personal endorsement of a witness’
credibility, nor did any of the comments include a reference to evidence not before the jury.
Referring only to evidence presented at trial, the prosecutor argued that 1) Stephens’ identification
of Petitioner was credible because she had no reason to fabricate that Petitioner was the individual
she saw driving the vehicle that killed the victim (Ex. 2 at p. 328), and 2) Petitioner’s testimony that
he did not tell the officers on September 4, 2003, that he was driving a white Chevy Beretta (Ex. 2
at pp. 266-67) was not credible because Officers Haley, Skinner, and Kovacsev each testified that
Petitioner had told them on September 4, 2003, that he was driving a Chevy Beretta (Ex. 2 at pp.
336-38).
The prosecutor’s comments were not an explicit personal endorsement of the officers’ or
37
Stephens’ credibility and did not include references to evidence not before the jury. Accordingly,
Petitioner has failed to show that the prosecutor’s comments were improper bolstering of the
witnesses.
Petitioner likewise has failed to show that the prosecutor’s comments shifted the burden of
proof. The prosecutor’s statements regarding Petitioner’s failure to explain 1) why he was in the
alley where he was shot, 2) how he got to the alley, 3) why he was shot in the alley, and 4) why he
stayed in the alley after his son allegedly ran away from the alley, were not improper statements
because the prosecutor was making a fair comment on Petitioner’s failure to produce evidence that
would support his testimony and defense to the charges. United States v. Sosa, 208 F. App’x 752,
756-57 (11th Cir. 2006) (pointing out the defendant’s failure to produce evidence to corroborate his
story, without suggesting that he was required to do so, did not shift the burden of proof); Cook v.
Schriro, 538 F.3d 1000, 1020 (9th Cir. 2008) (“Prosecutors may comment on the failure of the
defense to produce evidence to support an affirmative defense so long as it does not directly
comment on the defendant’s failure to testify.”).
In this case the prosecutor did not state that Petitioner had the burden to prove his innocence.
In fact, the prosecutor told the jury that the State had the burden to prove Petitioner’s guilt (Ex. 2
at p. 318). Furthermore, the prosecutor only commented on the lack of evidence that corroborated
Petitioner’s story that he fabricated his statement to police to protect his son. See Sosa, 208 F. App’x
at 757 (noting the prosecutor’s comment on the lack of evidence to corroborate the defendant’s story
was not improper). Additionally, any potential prejudice was dismissed by the trial court’s clear
instructions to the jury regarding the criminal offense charged and the burden of proof. See United
States v. Simon, 964 F.2d 1082, 1087 (11th Cir. 1992) (a prejudicial remark can be rendered
38
harmless by curative instructions to the jury). The trial court instructed the jury that the State had
the burden of proof, and Petitioner was not required to present evidence or prove anything (Ex. 2
at p. 391). It is generally presumed that jurors follow their instructions. See Ruiz v. Sec’y, Dep’t of
Corr., 439 F. App’x 831, 834 (11th Cir. 2011); Puiatti v. McNeil, 626 F.3d 1283, 1314-15 (11th Cir.
2010). Thus, there is no indication that the prosecutor’s comments impermissibly shifted the burden
of proof to the defense.
In sum, the prosecutor’s comments in the instant case did not improperly bolster the
credibility of the witnesses, did not shift the burden of proof to the defense, and did not render the
trial fundamentally unfair. Therefore, Petitioner has failed to demonstrate that the state courts’
denial of this claim was contrary to, or involved an unreasonable application of, clearly established
federal law. Accordingly, Ground Fourteen does not warrant federal habeas relief.
Ground Fifteen
Petitioner contends that appellate counsel was ineffective in failing to assert on direct appeal
that the trial court erred by giving a fundamentally erroneous jury instruction on the lesser offense
of manslaughter by act. Petitioner asserts that the instruction erroneously included the element of
intent to kill.13
In state court, Petitioner asserted this claim in his petition for writ of habeas corpus asserting
ineffective assistance of appellate counsel (Ex. 11). The Florida Second District Court of Appeal
denied the petition without a written explanation (Ex. 12).
Petitioner has not shown that the Florida Second District Court of Appeal’s decision was
13
The instruction stated, in pertinent part, “[b]efore you can find the defendant guilty of manslaughter, the State
must prove the following two elements beyond a reasonable doubt. . .1. Terry James Baker is dead. . .2. [Petitioner]
intentionally caused the death of Terry James Baker or. . .the death of Terry James Baker was caused by the culpable
negligence of Samuel Anthony Mazzola.” (Ex. 2 at p. 385).
39
contrary to or an unreasonable application of Strickland, or based on an unreasonable determination
of the facts.14 The manslaughter by act jury instruction used at Petitioner’s 2006 trial tracked the
2006 version of the Florida standard jury instruction on manslaughter by act. See Fla. Std. Jury
Instr. (Crim.) 7.7 (2006). At the time Petitioner’s direct appeal concluded on August 8, 2007 (see
Ex. 6), no Florida appellate court had held that the manslaughter by act standard instruction was
erroneous. It was not until February 2009 that a Florida appellate court held that the use of the 2006
version of the standard manslaughter instruction constituted fundamental error because it imposed
an additional element of intent to kill. See Montgomery v. State, 70 So. 3d 603, 604 (Fla. 1st DCA
2009).
Eleventh Circuit precedent rejects the argument “that an attorney’s failure to anticipate a
change in the law constitutes ineffective assistance of counsel.” United States v. Ardley, 273 F.3d
991, 993 (11th Cir. 2001). Therefore, because prior to 2009 no Florida appellate court had held that
the use of the 2006 version of the standard jury instruction on manslaughter by act constituted
fundamental error, appellate counsel did not provide deficient performance by failing to raise the
manslaughter instruction claim during Petitioner’s direct appeal in 2007. See Ardley, 273 F. 3d. at
993 (noting that “we have a wall of binding precedent that shuts out any contention that an
attorney’s failure to anticipate a change in the law constitutes ineffective assistance of counsel,” and
that precedent applies even when the “issue was, in hindsight, a sure fire winner”); Pimental v.
Florida Dep’t of Corr., 560 F. App’x 942 (11th Cir. 2014) (unpublished) (concluding that appellate
counsel did not render ineffective assistance in failing to predict that use of 2008 Florida
manslaughter instruction was fundamental error). Accordingly, Ground Fifteen does not warrant
14
Although the decision is not explained in a written opinion, the decision is an adjudication on the merits and
therefore entitled to deference under the AEDPA. Wright, 278 F.3d at1255-56; Bishop, 726 F.3d at 1255.
40
federal habeas relief.
Any of Petitioner’s claims not specifically addressed herein have been found to be without
merit.
It is therefore ORDERED AND ADJUDGED as follows:
1. The Amended Petition for Writ of Habeas Corpus (Doc. No. 10) is DENIED.
2. The Clerk of the Court shall enter judgment accordingly and close this case.
3. 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.
This Court should grant a certificate of appealability only if the petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Petitioner has failed to
make a substantial showing of the denial of a constitutional right.15 Accordingly, a certificate of
appealability is DENIED in this case. And because Petitioner is not entitled to a certificate of
appealability, he is not entitled to proceed on appeal in forma pauperis.
DONE AND ORDERED in Tampa, Florida on September 30, 2015.
Copies furnished to:
All parties of record including unrepresented parties, if any
15
The district court must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant. See Rule 11 of the Rules Governing Section 2254 Cases In the United States District Courts.
41
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