Bessette v. Secretary, Department of Corrections et al
Filing
29
OPINION AND ORDER. Bessette's petition for writ of habeas corpus 1 is DENIED. The Clerk is instructed to enter judgment against Bessette and close this case. It is further ORDERED that Bessette 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
ALLIE CHARLES BESSETTE,
Petitioner,
v.
Case No. 8:12-cv-1707-T-36MAP
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
______________________________/
ORDER
Petitioner Allie Charles Bessette, an inmate in the Florida Department of Corrections
proceeding pro se, initiated this action by filing a petition for writ of habeas corpus under
28 U.S.C. § 2254 (Dkt. 1). He challenges his convictions entered in the Thirteenth Judicial
Circuit, Hillsborough County, Florida, in 2006. Respondent filed a response (Dkt. 16), and
Bessette filed a reply (Dkt. 25). Bessette also filed a supplement to his reply (Dkt. 26) and
a notice of supplemental authority (Dkt. 28). Upon review, the petition must be denied.
Procedural History
Bessette was charged with eight counts; a co-defendant, Joe Johnson, was also
charged on counts one through five. Bessette proceeded to a jury trial. Counts seven and
eight involved one incident, while counts one through six involved a second incident that
occurred a short time later. On count seven, Bessette was convicted of attempted armed
burglary of a dwelling and sentenced to thirty years in prison. (Dkt. 20, Ex. 1, Vol. I, p. 170;
Vol. II, pp. 235-36.) He was convicted of aggravated assault on count eight and received
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a sentence of fifteen years in prison. (Dkt. 20, Ex. 1, Vol. I, p. 170; Vol. II, pp. 238-39.) On
count one, Bessette was convicted of aggravated assault and sentenced to fifteen years
in prison. (Dkt. 20, Ex. 1, Vol. I, p. 168; Vol. II, pp. 221-22.) On count two, he was
convicted of home invasion robbery with a firearm and sentenced to life in prison. (Dkt. 20,
Ex. 1, Vol. I, p. 168; Vol. II, pp. 224-25.) On count three, Bessette was convicted of assault
on a law enforcement officer, for which he received a sentence of 364 days. (Dkt. 20, Ex.
1, Vol. I, p. 169; Vol. II, p. 227.) With regard to counts four and five, Bessette was
convicted of false imprisonment and sentenced to five years in prison. (Dkt. 20, Ex. 1, Vol.
I, p. 169; Vol. II, p. 229.) On count six, he was convicted of aggravated battery and
sentenced to forty years in prison. (Dkt. 20, Ex. 1, Vol. I, p. 170; Vol. II, p.232-33.) Bessette
was sentenced as a violent career criminal on counts one, two, six, seven, and eight.
The state appellate court affirmed Bessette’s convictions and sentences with a
written opinion. Bessette v. State, 975 So.2d 478 (Fla. 2d DCA 2007). (Dkt. 19, Ex. 4.)
His motion for rehearing and rehearing en banc was denied. (Dkt. 19, Exs. 5, 6.) Bessette
filed a state habeas petition, asserting ineffective assistance of appellate counsel. (Dkt. 19,
Ex. 8.) The state appellate court denied the petition without comment. (Dkt. 19, Ex. 9.)
Bessette filed a motion for postconviction relief under Florida Rule of Criminal Procedure
3.850. (Dkt. 20, Ex. 14, Vol. I, pp. 21-98.) The state postconviction court entered an order
denying or reserving ruling on several claims and directing the State to respond to the
remaining claims. (Dkt. 20, Ex. 14, Vol. II, pp. 110-269.) After the State responded, the
postconviction court entered a second order denying or reserving ruling on a number of
claims and granting an evidentiary hearing on the remaining claims. (Dkt. 20, Ex. 14, Vol.
IV, pp. 407-607.) Following the evidentiary hearing, the state court entered an order
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rejecting Bessette’s remaining claims. (Dkt. 20, Ex. 14, Vol. VIII, pp. 1288-1402.) The state
appellate court per curiam affirmed the postconviction court’s orders. (Dkt. 19, Ex. 18.)
Bessette’s motion for rehearing was denied, and his motion for rehearing en banc was
stricken. (Dkt. 19, Exs. 19-21.) Respondent does not contest the timeliness of Bessette’s
federal habeas petition.
Factual Background1
This case involved two incidents that took place in the early hours of October 22,
2003. The first incident, which led to counts seven and eight, occurred on Saffold Road in
Wimauma, Florida. Rita Sanchez testified that she heard footsteps outside of her trailer.
When she looked out the window, she saw two men coming towards the door. Sanchez
yelled to her son, Jessie Garza, to wake up. Sanchez stated that she went onto the porch
and saw a man whose face was covered pointing a gun at her. Garza grabbed her and
brought her back inside. As the men tried to force the door open, Garza held the door
closed from inside. Sanchez testified that, during the incident, she heard one of the men
say “James” or “Johnson.” Garza also testified that he heard someone say “Johnson.”
Sanchez tried to call 911 but the phone was dead. Garza testified that he believed
he heard someone leaving through the back gate. Sanchez and Garza waited for about
five minutes and then went to a neighbor’s house to call 911. Sanchez’s call was received
at approximately 12:40 a.m.2 A K-9 unit responded following Sanchez’s 911 call, and the
dog tracked to a wallet located at the intersection of Saffold Road and River Estates Drive.
1
This factual summary is derived from the briefs filed on direct appeal and the evidence presented
at trial.
2
Testimony was presented that another call regarding a suspicious vehicle at the Saffold Road
location had been received about twenty minutes earlier.
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The wallet contained Bessette’s driver’s license and credit card.
The second incident, which led to counts one through six, occurred on Balm
Riverview Road in Tampa, Florida. Juan Padilla, Maria Martinez, and Padilla’s daughter
Miriam Sierra were asleep in their trailer. Padilla woke up when he heard noise. He
testified that he saw a small truck parked outside and heard banging on the front door.
Padilla looked outside and saw a person saying “DEA” and directing him to open the door.
Padilla told Martinez to call 911. Padilla testified that he heard a noise from the rear door,
and two men carrying guns came inside. Padilla further testified that their faces were
covered. One of the men directed Martinez, who had called 911, to hang up the phone.
After Sierra came out of her room, one man held Sierra and Martinez at gunpoint while the
other man attacked Padilla, hitting him in the head. Padilla testified his assailant took
$1,200 from his pocket.
Deputy Charlotte Raschke and other officers arrived in response to Martinez’s 911
call. Rashcke testified that when she entered the trailer, she saw Johnson standing over
Martinez and Sierra with his gun pointed down at them. After Johnson followed Raschke’s
instruction to drop the gun, Raschke saw another gun and turned to find Bessette
crouching down, pointing a gun at her. When Bessette did not comply with Raschke’s
instruction to drop the gun, Raschke testified, she fired her weapon. Bessette ran out of
the trailer. Raschke, a K-9 unit officer, tracked Bessette with her dog and found him hiding
in a swampy area behind the trailer. Along the track, she and other officers noticed cash
on the ground. They recovered $1,200.
Bessette’s recorded post-arrest statement to police was played at trial. Bessette
also testified that he went to the Saffold Road property at approximately 10:30 to 11:00
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p.m. to try to buy drugs. Bessette stated that he was with Joe Johnson, but that he parked
his truck down the street and Johnson stayed in the truck. Bessette testified that after he
knocked on the trailer door, he heard voices inside the trailer but no one opened the door.
Bessette testified that they left and drove to an acquaintance’s residence before proceeding
to the Balm Riverview Road property. There, he parked his truck in front of the trailer.
Bessette testified that he intended to buy drugs and had about $1,500. He stated that after
a woman allowed Bessette and Johnson inside the trailer, they began to argue with Padilla
about money. He stated that Padilla produced a firearm, and that they fought over it until
a short time before law enforcement’s arrival.
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.
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this
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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.
The purpose of federal review is not to re-try the case. “The [AEDPA] modified a
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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 rejection of Bessette’s postconviction motion. The state appellate court also denied
Bessette’s state habeas petition without comment. These decisions warrant deference
under § 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. Bessette bears the burden of overcoming by clear
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
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burden of rebutting the presumption of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1).
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.
28 U.S.C.
§ 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
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
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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). 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 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, 170 (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.
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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.
Discussion
Grounds One And Two: Trial Court Error
In Ground One, Bessette argues that the state trial court erred in denying his motion
to sever the Balm Riverview Road charges from the Saffold Road charges. In Ground Two,
he asserts that the state trial court erred in limiting his cross-examination of a State
witness. He contends that these errors violated his rights to due process and a fair trial.
These claims, as presented in his federal habeas petition, are vague and do not state
federal constitutional violations. Even liberally construing Bessette’s pro se reply, which
clarifies these grounds, as raising federal due process arguments and as referring to State
witnesses Juan Padilla and Maria Martinez, any federal claims cannot provide relief
because they are unexhausted.
Bessette raised his allegations of trial court error on direct appeal. However, he did
not present them as involving a federal issue. Instead, Bessette’s arguments were based
on state law. (Dkt. 19, Ex. 2.) By failing to raise a federal constitutional question in his
state court pleading, Bessette did not exhaust the claims. See Duncan, 513 U.S. at 36566; Picard, 404 U.S. at 275-76.
Bessette’s assertion in his reply that he effectively presented the state court with the
substance of a federal due process claim is unconvincing and unsupported by the record.
A petitioner must make clear to the state court that he is raising a federal constitutional
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claim. “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, 513 U.S. 364).
necessary to support a federal claim is insufficient.
Simply asserting the facts
“[T]o exhaust state remedies,
petitioners must do more than present ‘the state courts only with the facts necessary to
state a claim for relief’ and must additionally 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)). “It is not enough that all the facts necessary to support the federal claim were
before the state courts, or that a somewhat similar state-law claim was made.” Id. (quoting
Anderson v. Harless, 459 U.S. 4 (1982)). The Eleventh Circuit Court of Appeals has
addressed the analysis of whether a petitioner presented his argument in a manner
sufficient to alert the state court to a federal claim:
[T]he Supreme Court recently wrote that a petitioner wishing to raise a
federal issue in state court can do so “by citing in conjunction with the claim
the federal source of law on which he relies or a case deciding such a claim
on federal grounds, or by simply labeling the claim ‘federal.’” Baldwin v.
Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004). If
read in a vacuum, this dicta might be thought to create a low floor indeed for
petitioners seeking to establish exhaustion. However, we agree with the
district court that this language must be “applied with common sense and in
light of the purpose underlying the exhaustion requirement [:] ‘to afford the
state courts a meaningful opportunity to consider allegations of legal error
without interference from the federal judiciary.’” McNair, 315 F.Supp.2d at
1184 (quoting Vasquez v. Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 620, 88
L.Ed.2d 598 (1986)). This is consistent with settled law established by the
Supreme Court. See Picard, 404 U.S. at 275, 92 S.Ct. at 512 (“We
emphasize that the federal claim must be fairly presented to the state
courts.”). We therefore hold that “‘[t]he exhaustion doctrine requires a
habeas applicant to do more than scatter some makeshift needles in the
haystack of the state court record.’” Kelley, 377 F.3d at 1345 (quoting
Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988)).
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McNair v. Campbell, 416 F.3d 1291, 1302-03 (11th Cir. 2005).
As Bessette did not raise the federal nature of his claims on direct appeal, he failed
to exhaust any federal due process claims now presented.3 State procedural rules do not
provide for a second direct appeal. See Fla. R. App. P. 9.140. Accordingly, these claims
are procedurally defaulted. See Smith, 256 F.3d at 1138. Bessette does not allege or
demonstrate that either exception applies to overcome the default. See id. He is not
entitled to relief on Ground One or Ground Two.
Grounds Three, Four, Five, and Six: Ineffective Assistance of Counsel
Standard For Claims Of Ineffective Assistance Of Counsel
Grounds Three through Six allege ineffective assistance of counsel, a difficult claim
to sustain. “[T]he cases in which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d
1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.
3
Bessette asserts in his reply that he alerted the state court to the federal nature of the claim raised
in Ground Two by citing Tomengo v. State, 864 So.2d 525 (Fla. 5th DCA 2004), which cites federal law, in his
initial brief on direct appeal. Even assuming this citation was sufficient to assert a federal due process claim
with regard to this argument, Bessette does not establish entitlement to relief. Bessette wanted to crossexamine Padilla and Martinez about the source of the $1,200 to support his theory that no robbery occurred
because the money belonged to Bessette. Padilla, who testified that the money was taken from him, stated
on cross-examination that he obtained the money by working and selling a car. (Dkt. 20, Ex. 1, Vol. IV, pp.
141, 162.) The court did not permit further questioning of Padilla or Martinez concerning the source of the
money, finding it to be an irrelevant collateral matter. (Id., pp. 162-63, 209-13.)
A violation of a defendant’s right to impeach an adverse witness is stated “by showing that [the
defendant] was prohibited from engaging in otherwise appropriate cross-examination designed to show a
prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which
jurors . . . could appropriately draw inferences relating to the reliability of the witness.’” Olden v. Kentucky, 488
U.S. 227, 231 (1988) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)). Bessette does not
establish how further questions about the source of the money would have impacted the credibility of Padilla
and Martinez, or that he was entitled to engage in further cross-examination of either witness regarding an
irrelevant collateral issue. Thus, Bessette does not establish that the state appellate court’s decision was
contrary to or an unreasonable application of controlling Supreme Court precedent, or based on an
unreasonable determination of the facts.
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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.
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.
Bessette must demonstrate that counsel’s alleged error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Id. at 691-92. To show prejudice, a petitioner must demonstrate “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.
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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
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
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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.”).
Ground Four
Bessette asserts that counsel was ineffective for not calling potential witnesses
Martha McGuire and Jeff Marriott, and for not introducing physical evidence about which
he believes Marriott would have testified. The state court granted an evidentiary hearing
on this claim.4 Bessette drove a truck on the night of the offenses. At the evidentiary
hearing, Bessette testified that McGuire was a neighbor of the Saffold Road victims who
would have testified that she saw a car at this location. (Dkt. 20, Ex. 14, Vol. XIII, pp. 228082.) He also testified that McGuire would have stated she saw individuals smaller than
Bessette walking near her home at the time of the incident. (Id., p. 2283.) Bessette
testified that counsel agreed McGuire would be a valuable defense witness. (Id., p. 2330.)
Counsel testified at the evidentiary hearing that he deposed McGuire, but that her
testimony was “filled with” hearsay, that she was confused about the events, and that
calling her would cause him to lose any credibility he had established with the jury. (Id., p.
2340.) Counsel also stated that McGuire could have been impeached with her report to
law enforcement, in which she reported seeing a truck. (Id.) The state court denied
Bessette’s claim:
After reviewing the allegations, the testimony, evidence, and arguments
presented at the February 22, 2011, evidentiary hearing, the court file, and
4
Bessette’s independent, substantive claims that counsel was ineffective for not calling McGuire and
Marriott and not introducing evidence are considered here. To the extent that Bessette’s allegations
concerning McGuire and Marriott are also raised in support of his distinct claim that counsel should have
withdrawn due to illness, they are considered in Ground Five, infra.
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the record, the Court finds [counsel’s] testimony to be more credible than that
of Defendant. Therefore, the Court finds [counsel] made a reasonable
strategic decision not to call Ms. McGuire to testify at trial. As such, no
relief is warranted upon this portion of claim four.
(Dkt. 20, Ex. 14, Vol. VIII, p. 1302) (emphasis in original)
The record supports the state court’s finding that Bessette failed to establish
ineffective assistance of counsel. Counsel described numerous reasons why he believed
McGuire would not be a desirable witness. The state court’s finding that counsel’s
testimony was credible is presumed correct. Baldwin v. Johnson, 152 F.3d 1304, 1316
(11th Cir. 1998) (“We must accept the state court’s credibility determination and thus credit
[the attorney’s] testimony over [the petitioner’s].”), cert. denied, 526 U.S. 1047 (1999);
Devier v. Zant, 3 F.3d 1445, 1456 (11th Cir. 1993) (“Findings by the state court concerning
historical facts and assessments of witness credibility are . . . entitled to the same
presumption accorded findings of fact under 28 U.S.C. § 2254(d).”), cert. denied, 513 U.S.
1161 (1995).
Further, “[w]hich witnesses, if any, to call, and when to call them, is the epitome of
a strategic decision, and it is one [a reviewing court] will seldom, if ever, second guess.”
Waters v. Thomas, 46 F.3d at 1512. Counsel is presumed to have made all decisions in
the reasonable performance of counsel’s duties. Strickland, 466 U.S. at 690. Moreover,
Bessette failed to call McGuire at the evidentiary hearing or present evidence establishing
the trial testimony she would have given.5 See United States v. Ashimi, 932 F.2d 643, 650
5
Bessette appears to argue that postconviction counsel was ineffective for not calling McGuire and
Marriott at the evidentiary hearing. In support, he relies on Martinez v. Ryan, _ U.S. _, 132 S.Ct. 1309 (2012).
Martinez is inapplicable. Martinez holds that the procedural default of a claim of ineffective assistance of trial
counsel can be overcome by establishing that postconviction counsel was ineffective for failing to raise the
claim in collateral proceedings. 132 S.Ct. at 1320. No procedurally defaulted claim of ineffective assistance
of trial counsel is at issue here. Further, Martinez does not establish a freestanding claim of ineffective
Page 16 of 35
(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, Bessette’s 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). Bessette does not show that the state court unreasonably applied
Strickland or unreasonably determined the facts in denying this portion of his claim.
Bessette also contends that Jeff Marriott could have testified favorably for the
defense regarding the screen door on Padilla’s trailer. At trial, Padilla testified that the
perpetrators “forced [the door], they opened it with a pair of pliers.” (Dkt. 20, Ex. 1, Vol. IV,
p. 132.) He testified that the screen on the door had been torn but was previously intact.
(Id., pp. 153-54.) Padilla also reviewed a photograph of a pair of pliers, and stated they
were used to open the door but were not previously in his residence. (Id., pp. 155-56.)
Detective Frank Losat testified that the trailer’s rear door did not appear to have a “forced
entry,” but that the screen appeared to have been cut. (Dkt. 20, Ex. 1, Vol. VI, pp. 357-58.)
Apparently in support of the defense that Bessette was invited inside, counsel
assistance of postconviction counsel. See Lambrix v. Sec’y, Fla. Dept. of Corr., 756 F.3d 1246, 1262-63 (11th
Cir. 2014). Accordingly, to the extent Bessette attempts to make such a claim, he is not entitled to relief.
Page 17 of 35
intended to show that the screen could not have been cut with this tool. During trial,
counsel indicated he wanted to introduce a piece of screen he obtained, stating that it was
similar to the one that was cut. (Id., pp. 446-47.) Counsel said that, additionally, he was
“looking for the wire cutters also that he had to show that it would not cut those things.”
(Id., p. 447.) The court found that the piece of screen had no relevance, noting that the
State had not admitted wire cutters and “[n]obody knows if it was used.” (Id., p. 448.)
Therefore, the court refused to permit introduction of the screen obtained by counsel.
Bessette testified at the evidentiary hearing that he was familiar with Padilla’s trailer
and knew the hole in the screen already existed. (Dkt. 20, Ex. 14, Vol. XIII, p. 2284-85.)
He believed Marriott, an investigator hired by counsel, would have testified that the pliers
were incapable of cutting the metal on the screen. (Id., p. 2285.) Counsel testified at the
evidentiary hearing that he directed Marriott to buy a similar piece of screen with the idea
of demonstrating that the “wire snips” could not cut the screen. (Id., p. 2341.)6 Counsel
testified to his recollection that there was no trial testimony indicating the screen was
actually cut with the instrument, and to the trial court’s ruling that the screen was irrelevant.
(Id.) The state postconviction court reviewed the evidentiary hearing testimony and rejected
Bessette’s claim of ineffective assistance:
After reviewing the allegations, the testimony, evidence, and
arguments presented at the February 22, 2011, evidentiary hearing, the court
file, and the record, the Court finds Defendant failed to provide this Court with
any admissible evidence to support his claim that Jeff Marriott would have
testified that the screen was similar to the screen on his door and that they
forced the rear door open with a pair of pliers. Therefore, the Court finds
Defendant failed to demonstrate prejudice. As such, no relief is warranted
6
Testimony and discussion in the state court record refer to “pliers,” “ wire cutters,” and “wire snips.”
These terms appear to refer to the same instrument alleged to have been used to cut the screen door.
Page 18 of 35
upon this portion of claim four.
(Dkt. 20, Ex. 14, Vol. VIII, p. 1306) (emphasis in original)
Given the trial court’s refusal to allow introduction of the screen, Bessette does not
show he was prejudiced when counsel did not seek to introduce the screen or call Marriott
to testify about it. Further, Bessette does not present any evidence of the testimony
Marriott would have provided. See Ashimi, 932 F.2d at 650. His speculative assertion
cannot sustain his ineffective assistance claim. See Johnson, 256 F.3d at 1187; Tejada,
941 F.2d at 1559. Bessette fails to show that the state court unreasonably applied
Strickland or unreasonably determined the facts in rejecting this aspect of his claim.
Ground Four warrants no relief.
Ground Five
Counsel experienced health issues at the time of Bessette’s trial. As counsel
acknowledged at the evidentiary hearing, he had medical treatment scheduled on
Mondays, Wednesdays, and Fridays. Counsel also had surgery before and after trial.
While counsel testified at the evidentiary hearing that he did not recall whether he had
surgery scheduled on Friday during the week of trial, it appears from the record that he did
have surgery scheduled that day.
Bessette argues that counsel was ineffective for failing to withdraw from
representation due to his medical concerns. He makes it clear that “the issue is trial
counsel’s failure to withdraw from the case where his illness rendered him unable to
represent Petitioner competently.” (Dkt. 26, p. 7.) In support, Bessette asserts that
portions of the record reflect counsel’s problems with his hearing and eyesight and that
counsel’s decision not to call McGuire and Marriott was made partly because his
Page 19 of 35
opportunity to do so would have been on Wednesday afternoon, when he had to depart for
his scheduled medical appointment.
In his postconviction motion, Bessette alleged the same claim that counsel was
ineffective for not withdrawing due to illness and presented supporting factual allegations.
The state court granted an evidentiary hearing on his overall claim that counsel was
ineffective for failing to withdraw. Bessette testified at the evidentiary hearing to his
understanding of counsel’s health history and his scheduled medical appointments. He
testified to his belief that counsel did not call McGuire and Marriott because doing so would
have required counsel to miss his scheduled appointment on Wednesday. (Dkt. 20, Ex.
14, Vol. XIII, pp. 2288-89.) However, Bessette conceded that he did not voice his concerns
about counsel’s health to the trial court. (Id., p. 2327-29.)
At the evidentiary hearing, counsel acknowledged his health issues, and stated that
he had previously moved for a continuance of trial when he believed his health required it.
(Id., pp. 2335-36.) But counsel testified that he believed he could provide competent
representation at the time of trial. (Id., p. 2336.) He testified that if he experienced any sort
of health issue during the trial, he would have brought it to the court’s attention. (Id., p.
2337.) The postconviction court concluded:
After reviewing the allegations, the testimony, evidence, and arguments
presented at the February 22, 2011, evidentiary hearing, the court file, and
the record, the Court finds [counsel’s] testimony to be more credible than that
of Defendant. Therefore, the Court finds despite [counsel’s] medical issues,
[counsel] provided competent representation of Defendant during the trial.
Consequently, the Court finds Defendant cannot demonstrate that [counsel]
acted deficiently in failing to withdraw from the case as Defendant was not
prejudiced by [counsel’s] illnesses. As such, no relief is warranted upon
this portion of claim six.
Page 20 of 35
(Dkt. 20, Ex. 14, Vol. VIII, p. 1321) (court’s record citation omitted) (emphasis in original)
Bessette does not demonstrate that this decision was an unreasonable application
of Strickland or was based on an unreasonable determination of the facts. The state
court’s credibility determination must be given deference. See Baldwin v. Johnson, 152
F.3d at 1316; Devier v. Zant, 3 F.3d at 1456. Additionally, Bessette provides no evidence
that counsel did not call McGuire and Marriott because of his medical appointment. And
given the state court’s findings regarding counsel’s decisions not to call McGuire and
Marriott addressed in Ground Four, supra, Bessette fails to show that the circumstances
surrounding counsel’s decision not to call these potential witnesses indicate that counsel
should have withdrawn.
The state court also rejected Bessette’s supporting arguments that counsel’s alleged
inability to adequately hear or see demonstrated that he should have withdrawn. In support
of his assertion regarding counsel’s hearing, Bessette states that the following occurred
simply because counsel could not hear what was being said. First, Bessette claims that
counsel did not object to Raschke’s testimony that at Balm Riverview Road, she noticed
a gold pickup truck outside of Padilla’s trailer and knew of an alert indicating that such a
vehicle was possibly involved in another home invasion. Bessette states that this testimony
was improper because he was not charged with another home invasion and no evidence
was presented of the police alert.7
Second, Bessette claims that counsel failed to object to the State’s introduction of
evidence, including a screwdriver recovered near the Balm Riverview Road property that
7
Bessette’s truck was described as tan or brown.
Page 21 of 35
was irrelevant and prejudicial. Third, he asserts that counsel did not object when the
prosecutor stated in closing arguments that the whole night was about robberies, and that
the jury could consider the Balm Riverview Road events to determine Bessette’s intentions
at Saffold Road. Fourth, he asserts that counsel incorrectly stated in closing arguments
that Miriam Sierra did not recall much. Bessette claims her testimony about the location
of Padilla and Martinez within the trailer during the incident contradicted their testimony.
Finally, Bessette claims that counsel frequently asked speakers to repeat themselves.
Bessette testified to these matters at the evidentiary hearing. (Dkt. 20, Ex. 14, Vol.
XIII, pp. 2302, 2313-2322.)8 He further testified that counsel did not hear Sierra’s testimony
that the gun was chrome in color and suggested that this conflicted with other trial
testimony about the color of the gun. (Id., p. 2315.) Counsel testified that he probably had
difficulty hearing women’s voices that were low, but that if he did not hear someone, he
would ask the person to speak up. (Id., p. 2347.) He stated he had no other hearing failure
that prevented him from being able to listen to witnesses. (Id., p. 2351.) He testified that
he would have informed the court if he could not hear. (Id., pp. 2351-52.) With regard to
the State’s introduction of physical evidence, counsel testified that Bessette frequently
distracted him during trial by trying to talk to him, but that he and co-counsel did approach
the bench to object. (Id., pp. 2350-51.)
Co-counsel also testified that counsel could hear. (Id., p. 2367.) Co-counsel
testified that, although he informed the court at the bench that counsel did not hear the
8
The evidentiary hearing testimony refers to a bench conference where counsel and co-counsel
objected after the State introduced numerous pieces of physical evidence, including the screwdriver, and
indicated they did not hear some of the evidence being introduced. As a result of their objections, the trial
court required the State to withdraw the screwdriver from evidence. (Dkt. 20, Ex. 1, Vol. VI, pp. 321-35.)
Page 22 of 35
introduction of some evidence, it would have been more accurate to say that counsel could
hear but was distracted by Bessette. (Id., p. 2369.)
The state court found that counsel was capable of hearing during trial:
After reviewing the allegations, the testimony, evidence, and arguments
presented at the February 22, 2011, evidentiary hearing, the court file, and
the record, the Court finds [counsel’s] and [co-counsel’s] testimony to be
more credible than that of Defendant. Therefore, the Court finds based on
[counsel’s] and [co-counsel’s] testimony, [counsel] could hear, but at times,
was unable to hear because Defendant was distracting him by talking to him.
The Court finds Defendant failed to demonstrate that [counsel] failed to
object to the alleged evidence because he did not hear Deputy Raschke’s
testimony. As such, no relief is warranted upon this portion of claim six.
(Dkt. 20, Ex. 14, Vol. VIII, p. 1326) (emphasis in original)
Bessette does not establish that counsel experienced such difficulty hearing that he
was ineffective for not withdrawing.9 The court’s factual finding that counsel could hear is
afforded deference, and Bessette does not overcome the presumption of correctness
attached to this finding. 28 U.S.C. § 2254(e)(1). The court’s credibility determination also
must be afforded deference. See Baldwin v. Johnson, 152 F.3d at 1316; Devier v. Zant,
3 F.3d at 1456. Even if the specific instances of counsel’s conduct raised in support of
Bessette’s overall claim could be taken as separate claims of ineffective assistance of
counsel, Bessette fails to establish prejudice.10 Thus, Bessette does not show that the
9
In his Notice of Supplemental Authority (Dkt. 28), Bessette cites United States v. Roy, 761 F.3d 1285
(11th Cir. 2014), which held that Roy was deprived of his Sixth Amendment right to counsel when counsel was
physically absent from a critical stage of Roy’s trial. Bessette claims that although his counsel “was physically
present, his inability to hear rendered him unable to lodge objection’s [sic] during critical stages of trial.” (Dkt.
28, p. 1.) Roy affords no relief. Not only is it distinguishable from Bessette’s case, but the Eleventh Circuit
granted rehearing en banc and vacated this opinion in United States v. Roy, 580 Fed. App’x 715 (11th Cir.
2014).
10
First, with regard to Raschke’s testimony, while Bessette correctly points out that counsel objected
when two other police witnesses began to comment on the police alert (Dkt. 20, Ex. 1, Vol. V, p. 275; Vol. VI,
p. 300), he fails to establish a reasonable probability that the outcome of trial would have been different had
counsel objected to Raschke’s isolated reference to the police alert given the evidence of his guilt presented
Page 23 of 35
state court’s denial of his claim was an unreasonable application of Strickland or was based
on an unreasonable determination of the facts.
Finally, in further support of his argument that counsel was ineffective for not
withdrawing, Bessette asserts that counsel had difficulties seeing during trial and was thus
unable to locate documentation with which to impeach State witnesses Juan Padilla and
Detective Maney Lowe. Bessette claims that counsel “failed to locate the photographs or
the portion of testimony in the deposition transcripts needed to impeach Mr. Padilla.” (Dkt.
26, p. 17.) He cites to pages of the trial transcript reflecting that Padilla testified his
assailant had a black gun. During cross-examination, counsel indicated that he believed
Padilla may have given a different answer during deposition but stated that he would find
it later. (Dkt. 20, Ex. 1, Vol. IV, pp. 170-71.) At the postconviction evidentiary hearing,
Bessette also explained that photographs would have contradicted Padilla’s testimony that
he bled on the floor after being attacked and that a porch light had been broken. (Dkt. 20,
Ex. 14, Vol. XIII, pp. 2303-07.)
Lowe testified at trial about Bessette’s post-arrest statement. Bessette cites to a
page of the trial transcript containing Lowe’s testimony that the beginning of Bessette’s
statement was not recorded but was repeated after recording began. Counsel did not
inquire further about this matter. (Dkt. 20, Ex. 1, Vol. VI, p. 380.) Bessette testified at the
at trial. Second, the State withdrew the screwdriver from evidence after counsel and co-counsel approached
the bench and objected. Third, the court instructed the jury that each crime and the evidence applicable to
it must be considered separately. (Dkt. 20, Ex. 1, Vol. VII, p. 605.) Fourth, Bessette does not show that any
discrepancies concerning the victims’ precise location within the trailer or the color of the assailant’s gun that
may have been discerned from Sierra’s testimony would have supported his defense, called into doubt the
credibility of Padilla and Martinez, or diminished the weight of the other evidence of his guilt such that there
is a reasonable probability the trial’s outcome would have been different. Fifth, Bessette’s vague claim that
counsel asked speakers to repeat themselves is insufficient to show prejudice.
Page 24 of 35
evidentiary hearing that Lowe provided contradictory testimony in his deposition and
indicated Lowe could have been impeached had counsel been able to see the deposition
transcript. (Dkt. 20, Ex. 14, Vol. XIII, pp. 2307-08.)
Bessette also testified to his understanding of counsel’s ability to see, and to his
belief that counsel had eye surgery shortly before trial. (Id., p. 2302.) Counsel testified that
he could not recall having any issues with his eyesight during trial, and that he was able to
see and read documents. (Id., p. 2352.) Co-counsel also testified that counsel was able
to read. (Id., p. 2368.) The state court rejected this aspect of Bessette’s claim:
After reviewing the allegations, the testimony, evidence, and
arguments presented at the February 22, 2011 evidentiary hearing, the court
file, and the record, the Court finds based on [counsel’s] and [co-counsel’s]
testimony, [counsel] could see. The Court further finds if [counsel] could not
find certain testimony contained within a deposition transcript, it was not
because he could not see. The Court further finds that although [counsel]
may have had problems finding the photographs while Mr. Padilla was on the
stand, the photographs were ultimately admitted into evidence.
Consequently, the Court finds Defendant cannot demonstrate deficient
conduct nor prejudice. As such, no relief is warranted upon this portion
of claim six.
(Dkt. 20, Ex. 14, Vol. VIII, pp. 1328-29) (emphasis in original)
The state court’s factual findings that counsel could see and that any failure to find
the relevant documentation was not due to problems with his eyesight warrant deference.
Bessette does not establish, by clear and convincing evidence, that these findings were
incorrect. 28 U.S.C. § 2254(e)(1). Even assuming that the instances cited as factual
support for Bessette’s claim could be construed as separate claims of ineffective
Page 25 of 35
assistance, he fails to show prejudice.11 Bessette does not show that the state court’s
rejection of his claim was an unreasonable application of Strickland or was based on an
unreasonable determination of the facts.
In sum, the state court denied Bessette’s claim that counsel was ineffective for not
withdrawing due to illness, and rejected his arguments that concerns about counsel’s
medical schedule, hearing, and eyesight supported his overall position that counsel should
have withdrawn. Bessette does not establish that the state court unreasonably applied
Strickland or unreasonably determined the facts in reaching this decision. Accordingly,
Ground Five provides no relief.
Ground Three
Bessette alleges that counsel was ineffective with regard to a jury deadlock. The
jury deliberated on February 23, 2006, which the record indicates was a Thursday. During
deliberations, the jury sent a note to the trial court that read, “At this time we have come to
a decision on counts one, seven, and eight. However, we cannot agree on count [sic] two
through five. What are our options?” (Dkt. 20, Ex. 1, Vol. VII, p. 624.) Without objection
from either party, the court provided the jury with the standard deadlock instruction, referred
11
Bessette acknowledged at the evidentiary hearing that the photographs at issue were later
introduced into evidence at trial. (Dkt. 20, Ex. 14, Vol. XIII, pp. 2304-05.) He further conceded that counsel
addressed the issue in his closing argument. (Id.) Bessette does not show prejudice as a result of counsel’s
failure to impeach Padilla with allegedly contradictory deposition testimony. Bessette simply does not show
that raising any inconsistency about the color of the gun would have undermined Padilla’s credibility or
outweighed the other evidence of Bessette’s guilt such that there would have been a reasonable probability
of a different result at trial.
Nor does Bessette show prejudice regarding counsel’s cross-examination of Lowe. Attached to
Bessette’s postconviction motion is what he asserts is one page of Lowe’s deposition transcript. It appears
to show that, when asked if he recalled any conversation during the non-taped portion of the interview
regarding an injury Bessette sustained, Lowe stated he did not remember. (Dkt. 20, Ex. 14, Vol. I, p. 98.)
Bessette does not establish that raising this matter would have affected Lowe’s credibility or diminished the
weight of the evidence of guilt so as to result in a reasonable probability that the outcome of trial would have
been different.
Page 26 of 35
to as an Allen instruction.12 The court stated:
I know that you have all worked hard to try to reach a verdict in this
case. It apparently has been impossible for you so far with regard to at least
those other counts, two through five. Sometimes an early vote before
discussion can make it hard to reach an agreement about the case later.
The vote, not the discussion, might make it hard to see all sides of the case.
We are all aware that it is legally permissible for a jury to disagree.
There are two things a jury can lawfully do - - agree on the verdict or
disagree on what the facts of the case may truly be.
There is nothing to disagree about on the law. The law is as I told
you. If you have disagreements about the law, I should clear them up for you
now. That should be my problem and not yours.
If you disagree over what you believe the evidence showed, then only
you can resolve that conflict if it is to be resolved.
I have only one request of you. By law I cannot demand this of you,
but I want you to go back into the jury room, taking turns tell each of the other
jurors about any weakness of your own position.
You should not interrupt each other or comment on each other’s views
until each of you has had a chance to talk.
After you have done that, if you simply cannot reach a verdict as to
those counts, that is counts two through five, then you should return to the
courtroom, and I will declare the case mistried as to those charges only and
I will accept your verdicts on the other counts.
You will then be discharged with my sincere appreciation for your
services.
I ask that you now retire to continue with your deliberations.
(Id., pp. 626-27.) See Fla. Std. Jury Inst. (Crim.) 4.1. The jury resumed deliberations and
returned their verdict later on Thursday, February 23.
Bessette argues that the jury incorrectly believed they were required to reach a
verdict that day. He contends that the jury should have been sent home when they could
not reach a verdict on the remaining counts by Thursday evening. Bessette states that the
court informed the parties it would typically send the jury home, but was not going to do so
12
See Allen v. United States, 164 U.S. 492 (1896). An Allen charge “instructs a deadlocked jury to
undertake further efforts to reach a verdict.” United States v. Chigbo, 38 F.3d 543, 544 n.1 (11th Cir. 1994).
Page 27 of 35
in this case to accommodate counsel’s medical schedule.13
Bessette argues that counsel should have objected to the Allen instruction or asked
the court to adhere to its normal procedures. He contends that counsel did not do so
because he had a personal interest in the jury reaching a verdict on Thursday due to his
scheduled surgery the next day. Bessette contends that counsel’s conduct contributed to
the jury engaging in “marathon deliberation[s] under [the] misconception they must reach
a verdict that day.” (Dkt. 1, p. 10.) Bessette also points to a portion of counsel’s closing
argument in which he stated:
Remember, there is no tomorrow. What you do today is final. This is
a very serious, very solemn responsibility that you have. You control the
destiny of Mr. Bessette in your hands. Today it’s over with. You cannot
come back tomorrow and say, well, you know, maybe that’s what happened.
No. If you have a maybe that’s what happened, that’s reasonable doubt.
(Dkt. 20, Ex. 1, Vol. VII, p. 562.) Bessette raised these arguments in claim three of his
postconviction motion, on which the state court conducted an evidentiary hearing.
At the hearing, Bessette testified that the jury began to deliberate at approximately
10:15 a.m. (Dkt. 20, Ex. 14, Vol. XIII, p. 2269.) He recalled that the jury informed the court
13
After the testimony of Deputy Jennifer Marie Smith was read back in response to a question from
the jury, a recess was taken. The court then stated:
Okay. This is what I’m going to do. Usually, I would, frankly, send them home at this
point and bring them back tomorrow. I’m not going to do that. [Counsel] has surgery
scheduled tomorrow. I’m going to keep them.
If it becomes appropriate, I’m going to feed them dinner and let them keep
deliberating.
Unless they come out and say, we can’t do this, we are too tired, then we will have
to consider something else.
Beyond that, I’m going to let them keep going. Nobody’s indicated - - I mean, they
had lunch several hours ago, obviously.
(Dkt. 20, Ex. 1, Vol. VII, p. 623.) The trial transcript does not reflect the precise time the court made these
statements, although it was prior to the court providing the Allen instruction.
Page 28 of 35
that they could not reach a decision around 6:30 p.m. but ultimately reached a verdict at
10:17 p.m. (Id., p. 2269.) Bessette testified to his belief that counsel’s illness and
scheduled surgery prompted the reading of the Allen instruction and the jury’s “marathon”
deliberations on Thursday. (Id., p. 2269-75.)
Counsel testified that he did not believe he had a legal objection to raise to the Allen
charge. (Id., pp. 2337-38.) He also testified that he believed the jury had likely already
reached a not guilty verdict on counts seven and eight, concerning Saffold Road, because
Bessette was not identified by witnesses in connection with that incident. (Id., p. 2338.)
Therefore, counsel had no opposition to the jury continuing to deliberate because he
believed they might acquit Bessette on all counts. (Id., p. 2361.)
With regard to his schedule and medical needs, counsel testified that if the jury
returned Friday for further deliberations, he could have “made arrangements” or co-counsel
could have handled the proceedings. (Ex. 14, Vol. XIII, p. 2239.) Counsel stated that he
did not need the trial to conclude on Thursday. (Ex. 14, Vol. XIII, p. 2359-60.) Counsel
further testified that, during closing argument, he was only stating that the jury had one
opportunity to decide the case and they must be positive and unanimous in their verdict.
(Id., pp. 2353-54.) Counsel told the court his remark was not a reference to the time frame
of deliberations, and that he had made that statement to many juries. (Id., p. 2353.)
Following the evidentiary hearing, the postconviction court denied this claim. It
reviewed the evidentiary hearing testimony of Bessette and counsel and found as follows:
After reviewing the allegations, the testimony, evidence, and arguments
presented at the February 22, 2011, evidentiary hearing, the court file, and
the record, the Court finds [counsel’s] testimony to be more credible than that
of Defendant. Therefore, the Court finds [counsel] did not have any legal
basis to object to the deadlock instruction. The Court further finds [counsel’s]
Page 29 of 35
comments during closing arguments were referring to the finality of their
decision, not that they had to come to a decision that day. The Court also
finds [counsel] did not make said comments because the deliberations had
to be summed up that day due to his impending surgery. . . . Consequently,
the Court finds Defendant cannot demonstrate either deficient conduct or
prejudice. As such, no relief is warranted upon this portion of claim
three.
(Dkt. 20, Ex. 14, Vol. VIII, p. 1297) (court’s record citations omitted) (emphasis in original)
The record supports this finding.14 Bessette does not establish grounds for an
objection to the standard Allen instruction. Providing an Allen instruction may lead to
reversal if the charge is inherently coercive. United States v. Dickerson, 248 F.3d 1036,
1050 (11th Cir. 2001). The Allen instruction given to Bessette’s jury states that it is
permissible for the jury to disagree on the facts, and that if the jury could not reach a verdict
after further deliberations, they should inform the court of that status.
Furthermore, in light of counsel’s evidentiary hearing testimony, Bessette also fails
to show that counsel had a personal motive for failing to object to the instruction or that his
remark during closing arguments referred to the timing or duration of deliberations.
Counsel’s testimony reflects that he had no reason to try to halt deliberations because he
believed the jury might acquit Bessette of all counts. The state court’s determination that
counsel’s testimony was credible must be given deference. See Baldwin v. Johnson, 152
F.3d at 1316; Devier v. Zant, 3 F.3d at 1456. Bessette does not show that, under these
circumstances, counsel was ineffective for not objecting to the instruction or attempting to
conclude deliberations for the day.
14
Bessette asserts that the state court misconstrued his claim as one that counsel was ineffective
for failing to object to the substance of the Allen instruction, rather than the length of deliberations. The record
does not support this assertion. Additionally, the state court is presumed to rule on the merits of the claim
presented to it. See Richter, 562 U.S. at 99. Bessette does not demonstrate entitlement to relief on his claim
of ineffective assistance of counsel.
Page 30 of 35
Additionally, Bessette’s argument that counsel’s conduct resulted in the jury
believing they were required to reach a verdict on Thursday cannot warrant federal habeas
relief because it is speculative. See Tejada, 941 F.2d at 1559. Bessette presents no
evidence that the jury thought they were required to reach a decision Thursday. Nor does
he establish that the jury reached their verdict for any reason other than their belief that the
State met its burden of proof with regard to the crimes of which Bessette was convicted.
Accordingly, Bessette does not show that the state court unreasonably applied Strickland
or unreasonably determined the facts in rejecting his claim. Ground Three warrants no
relief.
Ground Six
The charging document reflects that Bessette and co-defendant Joe Johnson were
both charged with counts one through five, but only Bessette was charged with counts six,
seven, and eight. (Ex. 1, Vol. I, pp. 120-24.) Count six alleged aggravated battery of Juan
Padilla during the Balm Riverview Road incident; count seven alleged attempted armed
burglary of a dwelling with regard to Rita Sanchez and/or Jessie Garza at the Saffold Road
incident; and count eight charged aggravated assault of Sanchez. (Id.) The trial court
provided Florida’s standard jury instruction on principals:
Principal is defined as follows: If the defendant helped another person
or persons commit a crime, the defendant is a principal and must be treated
as if he had done all the other things the other person or persons did if the
defendant had a conscious intent that the criminal act be done and the
defendant did some act or said some word which was intended to and which
did incite, cause, encourage, assist or advise the other person or persons to
actually commit the crime.
To be a principal, the defendant does not have to be present when the
crime is committed.
(Ex. 1, Vol. I, p. 150; Ex. 1, Vol. VII, p. 599.) See Fla. Std. Jury Inst. (Crim.) 3.5(a);
Page 31 of 35
§ 777.011, Fla. Stat. Bessette asserts that appellate counsel was ineffective for not
arguing that the principals instruction was improper with regard to counts six, seven, and
eight because Johnson was not charged with those counts.
Bessette raised this claim in his state habeas corpus petition alleging ineffective
assistance of appellate counsel. The state appellate court rejected this argument when it
denied Bessette’s petition without comment. Claims that appellate counsel provided
ineffective assistance 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, Bessette must show that appellate counsel’s performance was
objectively unreasonable, and that there is a reasonable probability that, but for this
performance, Bessette would have prevailed on his appeal. Robbins, 528 U.S. at 285-86.
As a preliminary matter, this claim of trial court error was not preserved for appellate
review because no contemporaneous objection was made. See Jackson v. State, 983
So.2d 562, 567-68 (Fla. 2008). Bessette appears to argue that the claim could have been
raised absent preservation, however, because it constituted fundamental error. See id.
at 568. A fundamental error is one “which goes to the foundation of the case or goes to the
merits of the cause of action.” Id. (quoting Hopkins v. State, 632 So.2d 1372, 1374 (Fla.
1994)). However, he does not show entitlement to relief.15
Under Florida law, “a person who is charged in an indictment or information with
15
Bessette also states that his motion for new trial, which the court orally denied, alleged error in
providing the principals instruction. (Dkt. 20, Ex. 1, Vol. II, pp. 210-11; Vol. III, p. 339.) Even assuming that
Bessette’s claim concerning the principals instruction therefore could have been raised on appeal by alleging
that the trial court erred in denying the motion for new trial, Bessette is not entitled to relief on his claim of
ineffective assistance of appellate counsel because he does not meet his burden under Strickland.
Page 32 of 35
commission of a crime may be convicted on proof that she aided or abetted in the
commission of such crime.” State v. Larzelere, 979 So.2d 195, 215 (Fla. 2008) (citing State
v. Roby, 246 So.2d 566, 571 (Fla. 1971)). Accordingly, “if an information charges a
defendant with a substantive crime, . . . and the proof establishes only that he was
feloniously present, aiding, and abetting in the commission of the crime, a verdict of guilty
as charged should be sustained.” Watkins v. State, 826 So.2d 471, 474 (Fla. 1st DCA
2002) (citing Roby, 246 So.2d at 571, and Jacobs v. State, 184 So.2d 711, 715 (Fla. 1st
DCA 1966)). The principals instruction may, therefore, be given if “the evidence at trial
supports such an instruction.” McGriff v. State, 12 So.3d 894, 895 (Fla. 1st DCA 2009)
(citations omitted).
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). The challenged instruction must not be viewed in isolation; the habeas court should
consider the context of the instructions as a whole as well as the entire trial record. Estelle
v. McGuire, 502 U.S. 62, 72 (1991).
Thus, “federal 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 violate[d] due process.’” Jamerson v. Sec’y for Dep’t of Corr., 410 F.3d 682, 688
(11th Cir. 2005) (quoting McGuire, 502 U.S. at 72.)
The evidence adduced at trial reflects that two suspects were working in concert with
regard to both the Saffold Road and Balm Riverview Road offenses. Evidence placed
Bessette at or near the scene of both offenses. Accordingly, Bessette does not establish
that the state trial court erred in giving the principals instruction, which was a correct
Page 33 of 35
statement of Florida law.
Appellate counsel cannot be deemed ineffective for failing to raise issues
“reasonably considered to be without merit.” United States v. Nyhuis, 211 F.3d 1340, 1344
(11th Cir. 2000) (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). Thus, Bessette does not show that appellate counsel was ineffective for not
bringing this claim.
Accordingly, Bessette does not show that the state appellate court’s rejection of his
ineffective assistance of appellate counsel claim was contrary to or an unreasonable
application of controlling Supreme Court precedent, or was based on an unreasonable
determination of the facts. Consequently, Ground Six warrants 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 Bessette’s petition for writ of
habeas corpus (Dkt. 1) is DENIED. The Clerk is instructed to enter judgment against
Bessette and close this case.
It is further ORDERED that Bessette is not entitled to a certificate of appealability.
A petitioner does not have absolute entitlement to appeal a district court’s denial of his
Page 34 of 35
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, Bessette “must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.
4 (1983)). Bessette has not made this showing. Finally, because Bessette 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:
Allie Charles Bessette
Counsel of Record
Page 35 of 35
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