Collins v. Secretary, Department of Corrections et al
Filing
23
OPINION AND ORDER. 1. Collins' petition for writ of habeas corpus 1 is DENIED. The Clerk is directed to enter judgment against Collins and to close this case. 2. Collins 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 3/27/2017. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JERMAINE COLLINS,
Petitioner,
v.
Case No. 8:13-cv-3031-T-36TBM
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
_____________________________/
ORDER
Petitioner Jermaine Collins, a Florida prisoner proceeding pro se, filed a petition for
writ of habeas corpus under 28 U.S.C. § 2254. (Dkt. 1.) He challenges a judgment entered
by the Circuit Court for the Sixth Judicial Circuit, in and for Pinellas County, Florida, in
2007. Respondent agrees that the petition is timely filed. (Dkts. 10, 11.) Collins filed a
reply. (Dkt. 22.) Upon review, the petition must be denied.
PROCEDURAL HISTORY
A jury convicted Collins of one count of attempted robbery with a firearm. (Dkt. 16,
Ex. 1A, p. 46.) The trial court imposed a sentence of thirty years in prison as a habitual
felony offender. (Dkt. 16, Ex. 1C, p. 229.) The state appellate court per curiam affirmed
Collins’ conviction and sentence. (Dkt. 16, Ex. 2, Opinion.) Collins filed a motion for
postconviction relief under Florida Rule of Criminal Procedure 3.850, which the state court
summarily denied. (Dkt. 16, Exs. 3A, 3C.) The state appellate court per curiam affirmed
the order of denial. Collins v. State, 124 So.3d 923 (Fla. 2d DCA 2013) (table).
Page 1 of 45
FACTS1
On the afternoon of September 21, 2006, Cassandra Frank was driving in St.
Petersburg, Florida, to meet a friend. Frank stopped at the Shady Side Market to get drinks
for her two young children, who were in the car with her. Inside the store, a man in a
distinctive striped shirt jokingly attempted to take her items at the counter but placed them
back in front of her. After Frank left the store, it took several minutes to secure her children
in their car seats. When she got into the driver’s seat, a man she did not know jumped in
the passenger’s seat and asked her for a ride. She turned down his request. The man
from the store, now with the striped shirt wrapped around his head, appeared at the
passenger’s side window with a silver firearm and demanded money from Frank and the
other man. Frank threw the only cash she had, a $5 bill, toward the passenger’s window;
it landed in the man’s lap.
Frank accelerated, and the car’s movement pushed the gunman away. The other
man, still inside the car, moved his leg over Frank’s legs and attempted to reach the brake
pedal. He managed to pull the keys from the ignition. As he exited the car, he wiped down
the vehicle with the inside of his shirt. After he ran away, Frank retrieved the keys and
drove to her friend’s location.
During the subsequent investigation, police developed Jermaine Collins and Willie
Moise as suspects. When Detective Allyn Stone showed Frank photo packs containing
their photographs, Frank immediately identified Collins as the gunman and Moise as the
man who entered her car.
1
This factual summary is derived from the trial transcript and the briefs filed on direct appeal.
Page 2 of 45
On October 9, 2006, police came into contact with Collins and Moise near the Shady
Side Market. Officer Webb took Collins into custody. Officer Kurt Bradshaw observed
Moise flee after taking a silver revolver from a vehicle. Following a pursuit, Moise was
taken into custody. Frank testified that she could not distinguish the revolver recovered
from Moise’s possession from the one used in the attempted robbery. In particular, she
recognized an engraving on the revolver’s barrel.
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:
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
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
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§ 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
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
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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, 563 U.S. 170, 181 (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).
The state appellate court affirmed the denial of Collins’ postconviction motion in a
per curiam decision without a written opinion. This decision warrants deference under
Section 2254(d)(1) because “the summary nature of a state court’s decision does not
lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh’g
and reh’g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom. Wright v. Crosby,
538 U.S. 906 (2003). See also Richter, 562 U.S. at 99 (“When a federal claim has been
presented to a state court and the state court has denied relief, it may be presumed that
the state court adjudicated the claim on the merits in the absence of any indication or statelaw procedural principles to the contrary.”).
Review of the state court decision is limited to the record that was before the state
court. Pinholster, 563 U.S. at 181-82. Collins 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
burden of rebutting the presumption of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not
to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.
2001).
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INEFFECTIVE ASSISTANCE OF COUNSEL
Claims of ineffective assistance are analyzed under the test set forth in Strickland
v. Washington, 466 U.S. 668 (1984). A petitioner must show both deficient performance
by counsel and resulting prejudice. Demonstrating deficient performance “requires showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. at 687. Deficient performance is
established if, “in light of all the circumstances, the identified acts or omissions [of counsel]
were outside the wide range of professionally competent assistance.” Id. 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.
Collins 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. 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
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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).
Sustaining a claim of ineffective assistance of counsel on federal habeas review is
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, 563 U.S. at 202 (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. Strickland, 466 U.S. at 697 (“[T]here is no reason for
a court deciding an ineffective assistance claim . . . to address both components of the
inquiry if the defendant makes an insufficient showing on one.”)
DISCUSSION
Ground One
Collins claims that the state trial court lacked subject matter jurisdiction over his
case, resulting in violations of his rights to due process and equal protection. He claims
that the court had no jurisdiction because the charging document was invalid. Specifically,
he asserts that the charging document was not supported by sworn testimony of a “material
witness.”
To raise a cognizable federal habeas claim alleging a defective state court charging
document, the document must be so defective that it deprives the court of jurisdiction. See
DeBenedictis v. Wainwright, 674 F.2d 841, 842 (11th Cir. 1982) (“The sufficiency of a state
indictment or information is not properly the subject of federal habeas corpus relief unless
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the indictment or information is so deficient that the convicting court is deprived of
jurisdiction.”).
Collins has not made this showing. Florida law provides that state circuit courts
have jurisdiction over felony cases. § 26.012(2)(d), Fla. Stat. Additionally, the amended
information filed in Collins’ case set forth the elements of attempted robbery with a firearm
as provided in Florida law. (Dkt. 1A, pp. 26-27.) See § 812.13, Fla. Stat. (defining robbery
and addressing use of firearm or other deadly weapon). The amended information also
contains the required oath of the Assistant State Attorney stating his “good faith in
instituting this prosecution” and certifying that “he has received testimony under oath from
the material witness or witnesses for the offense.” (Id.) See Fla. R. Crim. P. 3.140(g)
(setting forth requirements of the oath). Collins has not established that the testimony
presented to the prosecutor was insufficient to lawfully support the charging document.
Therefore, he does not show any defect in the charging document that deprived the state
court of jurisdiction so as to raise a cognizable claim. Ground One warrants no relief.
Ground Two
Collins asserts that trial counsel was ineffective for failing to investigate and call two
witnesses. Specifically, Collins asserts that counsel should have called “Mike,” the owner
of the Shady Side Market, and Mohamed Youssouf,2 the cashier, “to prove that [Collins]
never entered the store on this particular day.” (Dkt. 1, p. 25.)
Collins claimed in his postconviction motion that Mike would have testified that he
told Detective Stone he did not see Collins in the store that afternoon, that an incident at
2
This individual’s name is spelled several ways in the record. It is spelled “Mohamed Youssouf” in
the affidavit contained in the record.
Page 8 of 45
the counter that day did not involve Collins, and that he gave Stone the surveillance video.
Collins presents what he asserts is a March 11, 2012 affidavit signed by Youssouf. The
affidavit provides that Youssouf told Detective Stone he did not see Collins in the store on
the afternoon of the crime, and that an incident at the counter between a black male and
a Hispanic woman did not involve Collins. (Dkt. 1, p. 46.) Youssouf’s affidavit states that
he “would have testified [Collins] was not the black male involved in the incident of
September 21, 2006.” (Dkt. 1, pp. 46-47.)
The state court rejected Collins’ claim with respect to both prospective witnesses:
The Defendant alleges that counsel was ineffective for failing to call
two witnesses to testify on his behalf at trial: “Mike,” the owner of the Shady
Side Market, outside of which the attempted robbery took place, and his
employee, Mohammad Yussif. The Defendant contends that calling these
witnesses would have supported a misidentification defense. . . .
In the instant case, the victim, Cassandra Frank, was robbed at
gunpoint outside the Shady Side Market after making a purchase in the store.
Ms. Frank was in her vehicle preparing to leave the parking lot of the store
when two men, one unarmed and undisguised man and one disguised and
armed man, attempted to rob her. The victim identified the Defendant as the
armed man who had disguised his face with a shirt. Since the Defendant’s
face was partially disguised, this identification was partly based on an
incident that took place inside the store prior to the attempted robbery.
Specifically, the victim testified that as she was making her purchase inside
the store, the Defendant jokingly tried to take away her items before returning
them. She claims that the shirt that partially obscured the robber’s face was
the same shirt that she saw the Defendant wearing moments before inside
the store.
Defendant contends that both witnesses would have testified that they
were familiar with the Defendant and did not see the Defendant in the store
that day. As asserted by the State, this does not prove that the Defendant
was not in the store that day. Since the witnesses make no claim that they
saw every person who entered the store that day, it is a reasonable
inference, given the victim’s testimony that she saw Defendant in the store
that the Defendant was in the store, but that the witnesses failed to observe
him. Given that this testimony would not exculpate the Defendant, and the
fact that the victim was able to quickly identify both the Defendant and his
codefendant, as well as the gun used by the Defendant, which was
recovered from his codefendant, the Defendant cannot show prejudice from
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the omission of this testimony.
In addition, even taking the Defendant’s allegations as it concerns the
store surveillance cameras as true, there is no reasonable probability that the
outcome would have been different. Defendant states that the Shady Side
Market had an interior surveillance camera and that the video recording of
the day of the crime was given to Detective Stone. First, the Defendant does
not allege what exculpatory evidence the video would have shown, if any.
Second, the indoor surveillance camera would not have captured the
attempted robbery that occurred outside of the store. Second, [sic] even if
the surveillance tape was delivered to Officer Stone, which Detective Stone
testified was not the case, this conflicting testimony about the existence of a
surveillance tape would not have changed the outcome. As stated above,
the victim was able to quickly identify both the Defendant and his
codefendant. Further, the victim was able to identify the gun used by the
Defendant, which was recovered from his codefendant.
(Dkt. 16, Ex. 3C, pp. 311-12) (court’s record citations omitted).
The state court further found:
The Defendant alleges that counsel was ineffective for failing to call
Mr. Mohammad Youssouf. The Defendant asserts that Mr. Youssouf was
available to testify and counsel was aware of this fact. The Defendant’s
assertions regarding the substance of Mr. Youssouf’s testimony, however,
are contradictory and call into question their reliability. In his motion for
postconviction relief, filed on February 22, 2010, the Defendant stated that
Mr. Youssouf would have testified that he had not “observed any kind of
incident between a black male and a Hispanic female at the checkout counter
on the afternoon of September 21, 2006.” In fact, Defendant alleges that this
statement by Mr. Youssouf appears in the police report of Officer Stone, the
investigating officer. In its February 29, 2012 response, the State asserted
that the Defendant was not prejudiced by this omission as Mr. Youssouf’s
testimony did not contradict the victim’s testimony. In his reply to the State’s
response, the Defendant attached the newly drafted affidavit of Mr. Youssouf.
In the affidavit, Mr. Youssouf states that he observed “an incident at the
checkout counter, between a black male and a Hispanic woman on the
afternoon of September 21, 2006,” and that the Defendant was not involved
in that incident. This is in direct contradiction to the Defendant’s sworn
motion, which indicted that Mr. Youssouf would testify that he did not observe
any such encounter. Given the timing of the affidavit, its recent creation, and
the fact that it directly conflicts with the Defendant’s prior sworn statements
regarding Mr. Youssouf, and apparently, Mr. Youssouf’s statements to the
police, the Court finds the affidavit unreliable. Robinson v. State, 736 So.2d
93 (Fla. 4th DCA 1999) (discussing that an evidentiary hearing need not be
held if the affidavit supporting the defendant’s claim is inherently unreliable.)
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Further, even assuming, arguendo, that the affidavit is reliable, the
omission of Mr. Youssouf’s testimony did not prejudice the Defendant. First,
the affidavit does not set forth what Mr. Youssouf observed on the day of the
robbery. Rather, the affidavit concerns what Mr. Youssouf told Officer Stone
several days after the robbery. Thus, the affidavit is insufficient. Second, as
the State points out, Mr. Youssouf’s proposed testimony still does not
contradict the victim’s version of events. Mr. Youssouf does not state that he
observed everyone who entered the store that day, nor does he state that the
interaction between the Hispanic female and the black male at the checkout
counter involved the victim or was the only such interaction that day. Thus,
this testimony does not exculpate the Defendant. This is particularly true
given the fact that Mr. Youssouf’s testimony would have been impeached by
his own prior inconsistent statements to Officer Stone that he did not witness
an interaction between a black man and a Hispanic female on the date of the
robbery. In addition to destroying the credibility of Mr. Youssouf, this
impeachment evidence would have harmed the credibility of the defense. As
a result, such testimony would not have resulted in a different outcome.
(Id., pp. 427-28.)
Collins has not demonstrated ineffective assistance of counsel. “Which witnesses,
if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that
[a reviewing court] will seldom, if ever, second guess.” Waters v. Thomas, 46 F.3d 1506,
1512 (11th Cir. 1995). Collins does not show that counsel performed deficiently in failing
to call Mike or Youssouf. Collins offers no evidence to support his contention that Mike
would have testified 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); 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
Page 11 of 45
(11th Cir.1985)).
Additionally, the anticipated testimonies of Mike and Youssouf may show that they
simply did not observe Collins inside the store, not that Collins was not in fact there. As the
state court’s order indicates, Collins alleged in his postconviction motion that Youssouf told
Stone he did not see an altercation at the counter. This is inconsistent with the statement
in his affidavit that he saw an altercation but it did not involve Collins. Assuming the prior
inconsistent statement was made as described in Collins’ postconviction motion, the State
could have impeached Youssouf’s credibility.3
Furthermore, Collins does not show prejudice as a result of counsel’s omission.
Even if Mike and Youssouf testified as Collins suggests, Collins does not demonstrate a
reasonable probability that the outcome of trial would have changed. Frank was certain in
her identification of Collins. She testified that she quickly identified his photo in the photo
pack Stone showed her. (Dkt. 16, Ex. 1B, pp. 125-26.) Frank testified that the shirt over
Collins’ face did not prevent her from recognizing him as the same person who was in the
store, and that she had no doubt Collins attempted to rob her. (Id., pp. 127-29.) Detective
Stone also testified that Frank immediately identified a photo of Collins in a photo pack, and
that she stated the unique shirt wrapped around his face during the crime was the same
one he was wearing earlier in the store. (Id., pp. 149-50.) Frank also readily identified
Moise as the other person involved. (Id., pp. 125, 149.) Finally, co-defendant Moise was
later found in possession of a firearm indistinguishable from the one Frank observed during
3
The police reports do not specifically corroborate this statement. Stone’s report does not mention
any statements from store employees. (Dkt. 16, Ex. 3A, pp. 72-76.) Officer Trevor Gardner’s report states
that when Officer Sexton responded to the store, he could not locate any witnesses or suspects, and was told
that the store had no exterior surveillance video. (Id., p. 68.)
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the attempted robbery.
Collins has not shown that the state court’s order was contrary to or an
unreasonable application of clearly established federal law or was based on an
unreasonable determination of the facts. He is not entitled to relief on Ground Two.
Grounds Three (A) and (D)
In Grounds Three(A) and Three(D), Collins alleges that trial counsel was ineffective
for failing to object to improper prosecutorial comment during opening and closing
statements.
“An opening statement gives counsel the opportunity to state what evidence will be
presented in order to make it easier for the jurors to understand what is to follow, and is not
an occasion for argument.” United States v. Lizon-Barias, 252 Fed. App’x 976, 978 (11th
Cir. 2007). “Opening remarks are not evidence, and the purpose of opening argument is
to outline what an attorney expects to be established by the evidence.” Occhicone v. State,
570 So.2d 902, 904 (Fla. 1990). “[T]he ‘sole purpose of closing argument is to assist the
jury in analyzing, evaluating and applying the evidence.’” United States v. Pearson, 746
F.2d 787, 796 (11th Cir. 1984) (quoting United States v. Dorr, 636 F.2d 117, 120 (5th Cir.
1981)). While he may not go beyond the evidence presented to the jury, the prosecutor is
not limited to a bare recitation of the facts. The prosecutor may comment on the evidence
and express the conclusions he contends the jury should draw from the evidence. United
States v. Johns, 734 F.2d 657, 663 (11th Cir. 1984). In Florida, “[w]hile wide latitude is
permitted in closing argument, see Breedlove v. State, 413 So.2d 1, 8 (Fla. 1982), this
latitude does not extend to permit improper argument.” Gore v. State, 719 So.2d 1197,
2000 (Fla. 1998).
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An allegedly improper remark must be considered in the context of the proceeding
as a whole, and relief is only available if an improper remark prejudiced the defendant’s
substantial rights. See United States v. Beasley, 72 F.3d 1518, 1525 (11th Cir. 1996)
(“Prosecutorial misconduct is a basis for reversal only if, in the context of the entire trial and
in light of any curative instruction, the misconduct may have prejudiced the substantial
rights of the accused.”). See also United States v. Young, 470 U.S. 1, 11 (1985) (“[A]
criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments
standing alone, for the statements or conduct must be viewed in context; only by so doing
can it be determined whether the prosecutor’s conduct affected the fairness of the trial.”).4
A.
Failure To Object During Opening Statement
Collins asserts that the prosecutor “stated that the investigation . . . ended when the
Petitioner was arrested four blocks from the scene of the attempted robbery,” making it
seem like he “was there at the scene” of the crime “and that the victim was right in her
identification of him.” (Dkt. 1, pp. 25-26.)
During his opening statement, the prosecutor said:
[O]n September 26 [sic] of last year on 15th Avenue South in St. Petersburg
in late afternoon Jermaine Collins . . . appeared at the window of an
automobile driven by a woman by the name of Cassandra Frank and
occupied by her two young children and put a gun in her face demanding her
purse, wallet, and your whatever.
(Dkt. 16, Ex. 1B, p. 93.) The prosecutor went on to describe what he expected the
evidence to show about the crime and investigation. (Id., pp. 93-98.) He then stated, “The
investigation concludes when October 9th about 4 blocks away . . . investigating officers
4
Prior to both opening statements and closing arguments, the court instructed the jury that what the
attorneys said was not evidence. (Dkt. 16, Ex. 1B, pp. 92, 165.)
Page 14 of 45
from the St. Petersburg Police Department come into contact both with Mr. Collins and with
Mr. Moise.” (Id., p. 98.) The prosecutor then noted that Collins lived less than a block from
the Shady Side Market. (Id., p. 99.)
The state court rejected Collins’ claim of ineffective assistance for failing to object:
The Defendant alleges that counsel was ineffective for failing to object
and move for a mistrial when the prosecutor made improper statements to
the jury during his opening statement. Specifically, the Defendant claims that
the prosecutor stated that the investigation in the above-styled case ended
when the Defendant was arrested four blocks from the scene of the
attempted robbery. He contends that this statement was improper because
he was arrested in the above-styled case while in custody on other charges
and not four blocks from the scene of the attempted robbery. The Defendant
alleges that the prosecutor’s statements were prejudicial and misleading
because they made it appear as though the Defendant was arrested for the
attempted armed robbery four blocks away from where the crime occurred,
when in fact, the arrest referred to by the Prosecutor was on unrelated
charges.
The State contends and this Court agrees that the Defendant’s claim
is clearly refuted by the record. During his opening statement, the prosecutor
clearly states that the attempted robbery took place on September 21, 2006,
and that the Defendant was arrested on October 9, 2006. Therefore, the jury
was not misled into believing that the Defendant was arrested immediately
after the crime took place.
Further, the prosecutor’s statements regarding the Defendant being
arrested four blocks away from the scene of the attempted robbery are not
prejudicial. The record indicates that the jury was made aware of the fact
that the Defendant lived next door to the location where the attempted
robbery took place. Thus, the fact that the Defendant was arrested four
blocks from the scene is harmless.
Lastly, the record clearly shows that at no point during his opening
statement did the prosecutor state or even imply why the Defendant was
arrested on October 9, 2006. As the State correctly asserts, it would have
been improper for the prosecutor to discuss the unrelated charges for which
the Defendant was arrested on October 9, 2006. Therefore, this Court does
not find any portion of the prosecutor’s statements to be prejudicial, nor does
it find that counsel’s failure to object rendered his assistance ineffective. The
Defendant should note that counsel had no grounds upon which to base an
objection to the prosecutor’s statements, and therefore, cannot be held
ineffective for failing to do so. Schoenwetter v. State, 46 So.3d 535, 546
(Fla. 2010). In light of the foregoing, this claim is denied.
Page 15 of 45
(Dkt. 16, Ex. 3C, pp. 312-13) (court’s record citations omitted).
It is clear that the prosecutor provided a chronological history of the offense,
investigation, and subsequent arrest of Collins near the same physical location as the
offense. Collins does not demonstrate that the prosecutor’s statements inaccurately
implied that he was arrested at the time of the attempted robbery or suggested that Frank’s
identification was therefore correct. Accordingly, he does not show that counsel was
ineffective for failing to object or move for a mistrial. Collins does not establish that the
state court unreasonably applied Strickland or unreasonably determined the facts in
rejecting this claim. Ground Three(A) warrants no relief.
D.
Failure To Object During Closing Argument
In asserting that trial counsel was ineffective for failing to object to the State’s
improper closing argument, Collins argues that the prosecutor improperly 1) bolstered
Bradshaw’s testimony; 2) referred to Collins’ arrest on unrelated charges; 3) referred to
hearsay testimony from Bradshaw and Stone; and 4) elicited sympathy for the victim.
The state court rejected Collins’ claim:
The Defendant alleges that counsel was ineffective for failing to object
to the State’s improper closing arguments. Specifically, the Defendant
alleges the following: 1) that the State made comments implying a
professional knowledge that improperly bolstered the testimony of Officer
Bradshaw; 2) that the State referred to the Defendant’s arrest on unrelated
charges and implied the Defendant’s guilt by stating that Mr. Moise had fled
from the scene with the revolver; 3) that the State referred to hearsay
testimony from Officer Bradshaw and Detective Stone; and 4) that the State’s
comments were improper because they were “made for the sole purpose of
soliciting sympathy for the victim,” thereby “improperly influencing the jury’s
verdict.” The Defendant further alleges that had counsel objected to these
comments, the objections would have been sustained, and counsel could
have made a motion for mistrial, which would have been granted by the
Court.
The State contends and this Court agrees that the Defendant’s
Page 16 of 45
allegations have no merit. Closing argument is an opportunity for attorneys
to comment on evidence and testimony, and to “explicate those inferences
which may be reasonably drawn from the evidence.” See Merck v. State,
975 So.2d 1054, 1061 (Fla. 2007); see also Bertolotti v. State, 476 So.2d
130, 134 (Fla. 1985). Both parties are afforded wide latitude “so that they
may ‘advance all legitimate arguments and draw logical inferences from the
evidence.’” See Rivera v. State, 840 So.2d 284, 286 (Fla. 5th DCA 2003)
(quoting McArthur v. State, 801 So. 2d 1[0]37, 1040 (Fla. 5th DCA 2001)).
When evaluating a prosecutor’s comments during closing argument, the
remarks “should be reviewed within the context of the closing argument as
a whole and considered cumulatively within the context of the entire record.”
Id. at 287. A comment may be viewed as inappropriate while standing alone
however, “when considered within the context of the entire closing argument
and the record, it may be a fair comment.” Id.
As previously stated, this Court does not find the testimonies of Officer
Bradshaw and Detective Stone to constitute hearsay, and therefore, the
State did not improperly bolster the credibility of the witnesses, nor did it refer
to hearsay testimony during closing argument. Rather, the State’s comments
were based on the evidence presented at trial, and therefore, even when
considered cumulatively, counsel’s failure to object to the State’s remarks
would not have changed the outcome of the trial. See State v. Bouchard,
922 So.2d 424 (Fla. 2d DCA 2006); see also Gonzalez v. State, 990 So.2d
1017, 1028-29 (Fla. 2008) (Where comments originating from facts and
inferences presented at trial were deemed proper for closing argument).
Counsel cannot be deemed ineffective for failing to make a meritless
objection. See Schoenwetter, 46 So.3d at 546. As such, this claim is
denied.
(Dkt. 16, Ex. 3C, pp. 319-20.)
1.
Bolstering Testimony Of A State Witness
A prosecutor may not bolster testimony of a state witness:
Ordinarily, it is improper for a prosecutor to bolster a witness’s testimony by
vouching for that witness’s credibility. United States v. Hands, 184 F.3d 1322,
1334 (11th Cir.1999). Bolstering occurs when “ ‘the jury could reasonably
believe that the prosecutor was indicating a personal belief in the witness’
credibility.’ ” United States v. Knowles, 66 F.3d 1146, 1161 (11th Cir.1995)
(quoting United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983)). A
prosecutor’s comments can fail this test in two ways: (1) by placing the
prestige of the government behind the witness, or (2) by indicating that
information not before the jury supports the witness’s credibility. Id. The rule
against bolstering does not, however, prevent the prosecutor from
commenting on a witness’s credibility, which can be central to the
Page 17 of 45
government’s case. United States v. Hernandez, 921 F.2d 1569, 1573 (11th
Cir.1991).
United States v. Bernal-Benitez, 594 F.3d 1303, 1313–14 (11th Cir. 2010).
In his postconviction motion, Collins alleged that the prosecutor bolstered Officer
Bradshaw’s testimony when he said, “All those cops were out on the street that day. They
came into contact with Mr. Collins. Yeah. That is the evidence, the sworn, truthful
testimony in this case.” (Dkt. 16, Ex. 1B, pp. 168-69.) The prosecutor did not invoke the
prestige of the government with respect to Bradshaw’s testimony or suggest that
information unknown to the jury supported his credibility. Accordingly, Collins does not
establish counsel had a basis to raise a bolstering objection.
2. Reference To Arrest On Unrelated Charges
Collins also asserts that the prosecutor improperly addressed his arrest on unrelated
charges5 in making the above statement. He states that the prosecutor again addressed
his other charges and improperly implied his guilt by discussing Moise’s flight from police
on October 9 while in possession of the revolver. The prosecutor stated:
And what you heard more specifically was the fellow who’s also been
charged in this case but isn’t on trial today, Mr. Moise, goes to a car. I think
the officer said it was a Por[s]che and pulls a firearm, flees, gets basically run
down by several officers, and surrenders the firearm, the firearm that Ms.
Frank indicates is indistinguishable from the firearm she saw pointed at her
approximately 18 days earlier.
(Id., p. 169.)
The prosecutor discussed Frank’s immediate identification of both suspects, whom
she had never met before the offense. He continued:
5
It appears Collins was charged in connection with events that occurred on October 9, 2006.
Page 18 of 45
What is the likelihood other than accuracy and truthfulness that Ms. Frank
would just by chance, just by chance hit it right cold on a guess? But you
know what? If you want to think it through and give it a tough probability
analysis, what is it taking everything I have said to you so far and combined
with the fact that later on - - who is it that two - - who are the two fellows the
cops find together? Mr. Collins and Mr. Moise.
So what’s just the chance that not knowing either one, she says, I recognize
the first one? I recognize the second one and then 18 days later these two
fellows are together with a firearm that she identifies as being
indistinguishable from the one that Mr. Collins had?. . .
I submit [to] you light[]ning would have to strike a bunch of times, a bunch of
times.
(Id., pp. 170-71.)
Taken in context, the prosecutor’s comments demonstrate that he argued the
circumstances of Frank’s identifications of Moise and Collins showed her identifications to
be credible. Collins does not show that the prosecutor improperly implied Collins’ guilt as
a result of his association with Moise. Additionally, contrary to Collins’ argument, the
prosecutor did not mention that Collins was arrested on unrelated charges.
3. Referring To Hearsay
Collins asserts that the prosecutor referred to hearsay when he stated:
[A]s you heard through Officer Bradshaw there were four empty shell casings
taken out of the gun upon its seizure, two live bullets, and a blank used for
test purposes by the St. Petersburg Police Department. And there is, in fact,
admitted into this case the testimony Officer Stone that it was, in fact, test
fired and test fired as operable.
(Id., p. 174.)
Collins does not establish that the testimony was hearsay. The record supports the
conclusion that Bradshaw had personal knowledge from which to identify the firearm and
testify as to the casings and bullet that were removed from the firearm at the scene after
Page 19 of 45
Moise was apprehended with it. (Dkt. 16, Ex. 1B, pp. 132-40.) Additionally, Stone testified
to the police department’s policy to test fire every firearm recovered, and to include the test
fired cartridge in the packaging with the firearm. (Id., pp. 152-53.) While he conceded on
cross-examination that he was not present when the revolver recovered from Moise was
test fired, he said he knew the revolver was test fired because it was packaged with such
a cartridge. (Id.)
4. Eliciting Sympathy For The Victim
Finally, Collins asserts that the State intended to elicit sympathy for Frank. It is
“well-established that a prosecutor may not appeal to a jury’s passion or prejudice.” United
States v. Wainwright, 437 Fed. App’x 837, 848 (11th Cir. 2011) (citing United States v.
Rodriguez, 765 F.2d 1546, 1559-60 (11th Cir. 1985)). See also Bertolotti v. State, 476
So.2d 130, 134 (Fla. 1985) (a prosecutor may not “inflame the minds and passions of the
jurors so that their verdict reflects an emotional response to the crime or the defendant
rather than the logical analysis of the evidence in light of the applicable law.”).
The prosecutor stated:
It was a difficult and traumatic time for Ms. Frank. I submit to you that you
had a chance to watch her testify here today. And I submit to you that if you
watched closely, you watched her fight back emotion and to remain under
control. Did you see her reaction when I put the firearm in front of her? Did
you hear her say, I don’t want to touch it when I asked her to look at it?
I submit to you the State has proved beyond a reasonable doubt she was put
in fear, a fear that extends from September 21st of last year to this day in
2007 in this courtroom before you as jurors in this case. That’s the fear. And
although indelicate, although indelicate perhaps and I apologize on behalf of
the State, yes, she urinated in her clothing.
(Dkt. 16, Ex. 1B, p. 175.)
Robbery is defined as:
Page 20 of 45
[T]he taking of money or other property which may be the subject of larceny
from the person or custody of another, with intent to either permanently or
temporarily deprive the person or the owner of the money or other property,
when in the course of the taking there is the use of force, violence, assault,
or putting in fear.
§ 812.13(1), Fla. Stat. (emphasis added)
To prove attempted robbery, therefore, the State had to show that Collins “[did] any
act toward the commission of [robbery], but fail[ed] in the perpetration or [was] intercepted
or prevented in the execution thereof.” § 777.04(1), Fla. Stat. Collins does not show that,
in light of the State’s burden to prove attempted robbery, counsel had reason to object to
the prosecutor’s comments as improperly garnering sympathy for her.6
Collins has not demonstrated that counsel had reason to object to the closing
argument on any of the bases alleged. Therefore, he fails to show ineffective assistance.
See Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (“Counsel was not ineffective
for failing to raise these issues because they clearly lack merit.”). Nor does Collins
demonstrate a reasonable probability the outcome of trial would have been different had
counsel objected. Collins does not show that the state court’s decision was contrary to or
an unreasonable application of clearly established federal law, or was based on an
unreasonable determination of the facts. He is not entitled to relief on Ground Three(D).
Ground Three(B)
Collins contends that trial counsel was ineffective for failing to object when the State
elicited false testimony from Bradshaw. The state court rejected this argument:
The Defendant alleges that counsel was ineffective for failing to object
6
In addition, the jury was instructed not to decide the case “for or against anyone because you feel
sorry for anyone or are angry at anyone.” (Dkt. 16, Ex. 1B, p.186.)
Page 21 of 45
and move for mistrial when the prosecutor elicited false testimony from
Officer Bradshaw. The Defendant alleges that Officer Bradshaw’s testimony
at trial regarding the October 9, 2006 arrest was substantially different from
his police report of the arrest made on October 9, 2006. The Defendant
further claims that counsel had possession of all the police reports, knew that
the testimony was false, failed to object to the testimony, and failed to
adequately cross-examine Officer Bradshaw. The Defendant contends that
had counsel objected to Officer Bradshaw’s testimony or effectively crossexamined him, then the outcome of the trial would have been different.
The State contends and this Court agrees that the record refutes the
Defendant’s claim. Officer Bradshaw’s police report is not materially
inconsistent with his testimony at trial. Whatever inconsistencies may be
found between Officer Bradshaw’s police report and his testimony at trial are
inconsequential. To begin with, the Defendant’s allegation that Officer
Bradshaw’s police report of the October 9, 2006 arrest did not mention
seeing Mr. Moise, Defendant’s codefendant, actually take the gun from the
car is wholly irrelevant. Office[r] Bradshaw’s police report clearly indicates
that Mr. Moise fled from the police officers whilst carrying a “silver colored
revolver.” The fact that the police report is silent as to how Mr. Moise came
to carry the gun does not change the fact that he was in possession of the
gun whilst fleeing on foot. Additionally, the Defendant’s contention that this
portion of Officer Bradshaw’s testimony implies by default that the Defendant
is also dangerous and guilty is purely speculative, and therefore, insufficient
to substantiate that counsel’s failure to object to this testimony rendered his
assistance ineffective. See Griffin v. State, 866 So.2d 1, 9 (Fla. 2003); State
v. Young, 932 So.2d 1278, 1282-83 (Fla. 2d DCA 2006) (holding that the
burden of establishing a prima facie case based upon a legally valid claim
“cannot be overcome by mere speculation”). Again, the Defendant should
note that counsel cannot be deemed ineffective for failing to make a meritless
objection. See Schoenwetter, 46 So.3d at 546.
Secondly, the fact that Officer Bradshaw’s police report is silent as to
seeing the Defendant being taken into custody does not mean that he did not
see the Defendant in custody when he arrived at the scene. As Officer
Bradshaw testified at trial and as the record corroborates, it was Officer
Webb who took the Defendant into custody. The record also clearly indicates
that the Defendant was in custody prior to Mr. Moise fleeing on foot from the
police officers with a firearm in hand. Additionally, the fact that Officer
Bradshaw may have testified about an irrelevant detail in a way that was
different from his initial police report does not mean that he falsely testified
as to what he saw. Rather, as the State correctly points out, it simply means
that he remembered an already insignificant detail slightly differently a year
later. See Ferrell v. State, 29 So.3d 959, 978 (Fla. 2010).
Thus, this Court does not find that the prosecutor elicited false
testimony from Officer Bradshaw, and as such, counsel had no basis upon
which to object to Officer Bradshaw’s testimony. The Defendant should also
Page 22 of 45
note that when alleging a claim that counsel was ineffective for failing to file
a motion for mistrial, the Defendant must show that the motion had merit. Id.
In this instance, the Defendant has neither shown that counsel’s actions were
prejudicial, nor that such a motion would have been successful. As such,
counsel’s actions cannot be deemed ineffective and for the reasons stated,
this claim is also denied.
(Dkt. 16, Ex. 3C, pp. 313-15) (court’s record citations omitted).
Bradshaw testified at trial that when he arrived at the scene on October 9, 2006, he
observed Officer Webb take Collins into custody. (Dkt. 16, Ex. 1B, p. 135.) His police
report, however, makes no mention of Collins’ custody and appears only to address Moise.
(Dkt. 16, Ex. 3A, pp. 79-80.) Bradshaw also testified at trial that when he arrived, he
observed Moise remove a silver firearm, which Bradshaw believed to be a revolver, from
a car. (Dkt. 16, Ex. 1B, p. 136.) Bradshaw testified that Moise fled on foot and that
Bradshaw kicked the gun away when Moise was apprehended.
(Id., pp. 136-37.)
Bradshaw’s police report states, “I arrived on the scene and saw Ofc. PAULINA involved
in a foot chase with one of the subjects described.” (Dkt. 16, Ex. 3A, p. 79.) It does not
describe Moise retrieving the firearm or Bradshaw kicking it away. (Id., pp. 79-80.)
There is support for the state court’s conclusion that the report’s omission of details
about which Bradshaw testified at trial did not show Bradshaw’s testimony to be false.
Although he provided more information at trial, Bradshaw’s statements were not
inconsistent.7 Moreover, as the state court noted, Bradshaw consistently said that he
observed Moise running from the scene and that Moise had a silver revolver. (Dkt. 16, Ex.
1B, pp. 136-37; Ex. 3A, p. 79.) Collins fails to show that counsel performed deficiently in
7
In support of his claim, Collins pointed out in his postconviction motion that Paulina’s report states
that after Moise was taken into custody, Paulina “tossed the gun to the south.” (Dkt. 16, Ex. 3A, p. 86.) This
information does not demonstrate that Bradshaw’s testimony that he kicked the gun away was false. Collins
does not establish that only one of these officers touched the gun after police apprehended Moise.
Page 23 of 45
failing to object to false testimony or in failing to cross-examine Bradshaw about his police
report. Nor does he demonstrate resulting prejudice. Accordingly, Collins has not shown
that the state court unreasonably applied Strickland or unreasonably determined the facts
in denying this claim. Collins is not entitled to relief on Ground Three(B).
Ground Three(C)
Collins claims that trial counsel was ineffective for failing to object to irrelevant and
inadmissible testimony of Bradshaw and Stone.8 The state court rejected this claim:
Ground Three C: Failure to Object to Irrelevant and Inadmissible
Testimony
The Defendant alleges that counsel was ineffective for failing to object
to the prosecutor eliciting “irrelevant, inadmissible testimony” from Officer
Bradshaw and Officer Stone.
Officer Bradshaw
With respect to Officer Bradshaw’s testimony, the Defendant alleges
that counsel should have objected on at least seven different occasions.
First, the Defendant claims that Officer Bradshaw had no direct involvement
in the Defendant’s arrest for the attempted robbery and therefore, his
testimony is irrelevant to the Defendant’s guilt or innocence. This claim is
refuted by the record. The record clearly indicates that Officer Bradshaw was
one of the officers responding to the scene of arrest on the unrelated charges
on October 9, 2006. As mentioned above, the record also indicates that
Officer Bradshaw observed the Defendant in custody. The record further
indicates that Officer Bradshaw observed Mr. Moise fleeing from the police
officers armed with a revolver, which was later identified by the victim as the
same revolver used in the attempted robbery. Therefore, the Defendant is
incorrect in his assertion that Officer Bradshaw’s testimony is irrelevant.
Furthermore, as noted above, counsel cannot be deemed ineffective for
failing to make a meritless objection. See Schoenwetter, 46 So. 3d at 546.
Second, the Defendant alleges that Officer Bradshaw’s testimony
regarding his familiarity with the Defendant prior to the arrest made on
October 9, 2006, is irrelevant and prejudicial. The State contends and this
Court agrees that this argument lacks merit. Officer Bradshaw testified that
he was familiar with the Defendant because the Defendant had worked for
Tri J Wrecker, a towing company that provides services to the St. Petersburg
8
Collins’ claim is liberally interpreted as raising the allegations that he brought in Claim Three C of
his postconviction motion.
Page 24 of 45
Police Department. Officer Bradshaw then testified that he came into contact
with the Defendant on the date of his and Mr. Moise’s arrest. This Court
finds that the testimony serves to substantiate to the jury how Officer
Bradshaw was able to identify the Defendant when he observed him in
custody on October 9, 2006, and is therefore, relevant to the above-styled
case. As such, counsel’s failure to object cannot be deemed ineffective. Id.
The Defendant also alleges that Officer Bradshaw’s testimony that he
observed the Defendant being taken into custody by Officer Webb is
irrelevant and prejudicial. Specifically, the Defendant claims that the charges
which led to his arrest are not related to the offense for which he was on trial,
and the testimony was merely a fabrication on the part of Officer Bradshaw.
As reasoned above in Claim Two, this Court does not find this testimony to
be a fabrication as the record corroborates Officer Bradshaw’s testimony that
it was Officer Webb who took the Defendant into custody. The Defendant
has again, failed to show how such testimony is prejudicial and as the record
refutes the claim that this testimony is a fabrication, counsel cannot be
deemed ineffective for failing to make a meritless objection. Id. Furthermore,
the Defendant’s allegation is speculative and therefore, insufficient to
substantiate that counsel’s alleged deficiency was prejudicial; and such
claims cannot be the basis for postconviction relief. See Spencer v. State,
842 So.2d 52 (Fla. 2003); Strickland, 466 [U.S.] at 687.
The Defendant further alleges that Officer Bradshaw’s testimony that
he observed Mr. Moise taking the gun out of the car was fabricated and
prejudicial. For the reasons stated above with respect to Claim Two, this
Court does not find this testimony to be a fabrication. Rather, the record
clearly indicates that Officer Bradshaw was present at the scene when Mr.
Moise fled from police officers armed with a revolver. Additionally, this Court
fails to see how such testimony is prejudicial, when both the Defendant and
Mr. Moise were taken into custody at the same place and at the same time.
Again, counsel cannot be deemed ineffective for failing to make a meritless
objection. See Schoenwetter, 46 So. 3d at 546.
The Defendant alleges that Officer Bradshaw’s testimony that he
kicked away the gun and helped in the chase and apprehension of Mr. Moise
is irrelevant and prejudicial because it did not relate to the offense for which
the Defendant was on trial. The Defendant’s argument has no merit.
Evidence is relevant if it has a logical tendency to prove or disprove a fact
which is of consequence to the outcome of an action. See Gibbs v. State,
406 So. 2d 1113 (Fla. 1981). In this instance, the firearm in possession of
Mr. Moise at the time of arrest was subsequently identified by the victim as
the one used in the attempted robbery in this case. In addition, the victim
identified both the Defendant and Mr. Moise as the men who attempted to
rob her. Thus, counsel had no basis upon which to object and therefore,
cannot be deemed ineffective. See Schoenwetter, 46 So. 3d at 546.
Additionally, in claim 3A, the Defendant alleged that counsel provided
ineffective assistance by failing to object when the prosecutor failed to
Page 25 of 45
explain that the arrest was based on unrelated charges. It appears that the
Defendant’s claim here contradicts his previous allegation. See Davis v.
State, 938 So.2d 555, 558 (Fla. 1st DCA 2006) (affirming denial of motion in
part because the defendant’s allegations contradict each other). Once again,
the Defendant should take note if such an objection had been made by
counsel, it would have been meritless. See Schoenwetter, 46 So. 3d at 546.
The Defendant claims that counsel should have objected to Officer
Bradshaw’s testimony identifying the revolver that was entered into evidence.
Specifically, the Defendant claims that Officer Bradshaw “did not personally
take the revolver into evidence, remove the rounds from the cylinder of the
revolver, and bad and tag those items.” Therefore, the Defendant contends,
Officer Bradshaw was not qualified to identify the revolver. The Defendant’s
argument has no merit. A witness must have personal knowledge of the
matters about which he or she testified. The testimony must be based on
matters perceived by the senses of the witnesses. Fla. Stat. § 90.604
(2012). A witness who has observed or actually perceived an act is the most
reliable source of information. See State v. Eubanks, 609 So. 2d 107 (Fla.
4th DCA 1992). As previously mentioned, Officer Bradshaw was present
when Mr. Moise fled from police officers with the revolver in question, and
therefore, had personal knowledge of the revolver. Additionally, Officer
Bradshaw testified that he observed an officer at the scene remove the shell
casings and live rounds from the bullet [sic]. Lastly, it appears as though the
Defendant is trying to insinuate an issue relating to the chain of custody of
the revolver, however, there is nothing in the record to support this argument.
Once again, counsel would have had no basis upon which to object and
therefore, cannot be deemed ineffective. See Schoenwetter, 46 So. 3d at
546.
Lastly, the Defendant alleges that counsel should have objected to
Officer Bradshaw’s testimony regarding the use of the Defendant’s booking
photograph as a basis for identification. Specifically, the Defendant appears
to allege that the booking photograph from the date of the arrest on unrelated
charges was prejudicial and unnecessary because the Defendant was sitting
before Officer Bradshaw in the courtroom, and therefore, the photograph had
no probative value in the above-styled case. The Defendant contends that
had counsel made an objection, there is a reasonable probability that the
Court would have issued a curative instruction to the jury.
The State contends and this Court agrees that the Defendant’s
argument is without merit. The Defendant has not adequately shown how
counsel’s actions were prejudicial, or how a curative jury instruction would
have resulted in a different outcome. Even if counsel had objected to Officer
Bradshaw’s testimony as it relates to the booking photograph, it would not
have changed the fact that Officer Bradshaw was already familiar with the
Defendant based on his work for the towing company. As such, the Court
does not find the use of the booking photograph to be prejudicial, and
therefore, an objection by counsel would have been meritless. See
Page 26 of 45
Schoenwetter, 46 So. 3d at 546. As such, this portion of the Defendant’s
claim is denied.
Detective Stone
The Defendant alleges that counsel provided ineffective assistance by
failing to object to Detective Stone’s testimony that the revolver recovered
from Mr. Moise at the scene of the arrest was found to be fully functional.
Specifically, the Defendant contends that Detective Stone’s testimony was
hearsay because it was in fact Officer Paulina who fired the gun to test its
functionality, and such testimony was irrelevant because the State was not
required to prove that the revolver was operational. Therefore, the
Defendant contends, counsel’s failure to object to such irrelevant hearsay
testimony resulted in the introduction of inadmissible evidence. The
Defendant further alleges that Detective Stone’s testimony that he observed
the Defendant in custody when he arrived at the scene of the arrest was
prejudicial and irrelevant because the arrest was made on unrelated charges.
The Defendant alleges that had counsel made these objections, the Court
would have sustained them and issued a curative instruction to the jury.
The State contends and this Court agrees that the Defendant’s
arguments have no merit. First, as stated above, testimonial evidence
regarding the recovery of the revolver is relevant. Second, a number of
Defendant’s assertions are refuted by the record. The record clearly reflects
that Detective Stone never testified that the Defendant was arrested on
unrelated charges. Additionally, the record shows that Detective Stone
testified on direct examination and on cross-examination that he had not
personally test fired the revolver. Moreover, Detective Stone explained that
it was standard protocol to “test fire every firearm that appears to be safe to
test fire.” Lastly, the Defendant has failed to show prejudice. Defendant’s
claim that the Court would have sustained counsel[’]s objection and issued
a curative instruction, is conclusory and speculative, and cannot be the basis
for postconviction relief. See Griffin v. State, 866 So. 2d 1. In light of the
foregoing, this claim is also denied.
(Dkt. 16, Ex. 3C, pp. 315-19) (court’s record citations omitted).
The record supports the state court’s conclusion that Collins failed to establish that
the identified portions of Bradshaw’s testimony were irrelevant, prejudicial, or fabricated.
Additionally, Bradshaw testified to his personal knowledge of the firearm and the casings
and bullet removed from it. (Dkt. 16, Ex. 1B, pp. 135-40.) Finally, even assuming that
counsel performed deficiently in not objecting to the introduction of Collins’ booking
photograph, Collins has not shown resulting prejudice. He fails to establish a reasonable
Page 27 of 45
probability of a different outcome absent the photograph in light of the totality of the State’s
evidence, as well as the jury’s knowledge that he had been taken into custody.
The record also supports the conclusion that counsel was not ineffective for failing
to object to Stone’s testimony. As addressed, he stated that a cartridge packaged with the
revolver led him to conclude that it was test fired. Additionally, the record supports the
conclusion that the circumstances under which Collins was taken into custody were
relevant to the charge against him.
He was apprehended near the location of the
attempted robbery with another suspect in that crime, who had a firearm indistinguishable
from the one Franks observed during the offense. Collins does not show that the state
court unreasonably applied Strickland or unreasonably determined the facts when it
rejected his claim. He is not entitled to relief on Ground Three(C).
Ground Four (A)
Collins alleges that trial counsel was ineffective for failing to cross-examine Frank
and impeach her testimony. He asserts that counsel should have raised differences
between Frank’s trial testimony, her statement to Detective Stone, and her statement to
Officer Trevor Gardner, who responded after the offense. In rejecting his claim, the state
court listed the alleged inconsistencies and found:
The Defendant . . . alleges that a cross-examination of Ms. Franks would
have undermined her credibility to the jury, such that the jury would have
returned a verdict of not guilty.
The State contends and this Court agrees that the Defendant’s
allegations have no merit. To begin with, the inconsistencies pointed out by
the Defendant are either nonexistent or inconsequential and any crossexamination on the part of counsel would not have yielded a different
outcome. For instance, the Defendant has failed to show that Ms. Frank’s
testimony regarding whether the robbery took place before or after she went
into the store is inconsistent with the police report, for the police report makes
no mention of when the attempted robbery took place; it simply states that
Page 28 of 45
she stopped at the store to buy a drink for her children.
Additionally, the State asserts that had counsel cross-examined Ms.
Frank about the purported inconsistencies, it would have been more
prejudicial to the Defendant because it would have allowed the victim to tell
the jury again, that she was so hysterical at the time that she was unable to
dial 911; or that she could not recall the exact details of the incident because
she was so scared that she urinated in her pants. With respect to the
Defendant’s allegations regarding Ms. Frank being influenced by Detective
Stone, Detective Mitchell or the State, such claims are speculative and
cannot be the basis for postconviction relief. See Spencer, 842 So.2d at 52.
(Dkt.16, Ex. 3C, pp. 320-21) (court’s record citations omitted).
The record supports the state court’s denial of Collins’ claim. Collins has identified
(1) statements that are not inconsistent; (2) statements that reveal only inconsequential
discrepancies; and (3) two instances in which he claims Frank’s testimony was encouraged
by others.9
1.
Collins raises statements by Frank that, contrary to his arguments, do not reveal any
inconsistencies. First, Frank testified at trial that Moise entered the car after she left the
store. (Dkt. 16, Ex. 1B, p. 110.) Gardner’s police report states that Frank “stopped at the
Shady Side Market to get her children a drink. At that time a subjected entered her
vehicle.” (Dkt. 16, Ex. 3A, p. 67.) As the state court found, the police report’s silence about
Frank’s entry into the store prior to the incident does not show that Frank made inconsistent
statements.
Second, Frank testified that Collins’ shirt was “tied around his head with like a little -enough room to see through it with one eye.” (Dkt. 16, Ex. 1B, p. 127.) She told Gardner
9
The Court takes note that, to the extent that Collins argues the police reports demonstrate prior
inconsistent statements by Frank, those reports contain summaries written by police officers. There is no
indication they included every statement Frank made to police or recited any of her statements verbatim.
Page 29 of 45
that Collins had shirt pulled over his head and told Stone that Collins had the shirt tied
around his face.
(Dkt. 16, Ex. 3A, pp. 67, 74.) These statements are not necessarily
inconsistent. They all convey that Collins’ shirt was placed around his head.
Third, Collins notes that Stone’s report says that Frank provided a description of
Collins’ clothing but alleges that Gardner’s report states she could not describe the clothing.
Gardner’s report, however, does not state that Frank was not able to remember; it simply
does not mention any description of clothing. (Id., pp. 66-68.) Collins has not shown any
prior inconsistent statements by Frank.
Fourth, Frank testified that Collins was standing “on the corner of the counter” when
she paid for her sodas at the checkout counter. (Dkt. 16, Ex. 1B, p. 108.) Stone’s report
states Collins was in the store “behind her.” (Dkt. 16, Ex. 3A, p. 74.) These statements are
not necessarily inconsistent.
Fifth, Frank testified at trial that the revolver was silver and that, while she “didn’t
really see” the handle, she thought it was black or dark in color. (Dkt. 16, Ex. 1B, p. 118.)
She testified that she did not “really look” at anything but the barrel. (Id.) Specifically, she
noted the firearm introduced into evidence at trial looked the same as the one used in the
offense because of the “engraving symbol” on the barrel. (Id., pp. 119-20.) In discussing
Frank’s descriptions of the firearm, Gardner’s and Stone’s reports contain no mention of
an engraving on the gun. (Dkt. 16, Ex. 3A, pp. 67, 75.) However, that Frank provided more
detail at trial does not mean that her previous statements were inconsistent.
Sixth, at trial, Frank did not describe Collins as wearing a top other than the striped
shirt. (Dkt. 16, Ex. 1B, pp. 100-29.) Stone’s report indicates that Frank saw Collins
wearing a white tank top. (Dkt. 16, Ex. 3A, pp. 74, 75.) Collins has not demonstrated any
Page 30 of 45
inconsistency in Frank’s statements. Even if this omission from Frank’s testimony was
viewed as an inconsistency, it is insignificant. Collins points to no evidence that the tank
top was important to Frank’s identification of him as the gunman.
2.
Collins also points to statements by Frank that contain minor inconsistencies. First,
Frank testified at trial that when Collins demanded money, Moise pulled wadded up bills
from his pocket and threw them in his lap. (Dkt. 16, Ex. 1B, p. 113.) Gardner’s report
states that Frank said Moise was “tossing [money] at the subject standing outside” the car.
(Dkt. 16, Ex. 3A, p. 67.) However, whether Moise threw the money in his own lap or “at”
Collins is a minor discrepancy, and both descriptions show that Moise threw money in
response to Collins’ demand.
Second, Frank testified that Moise was standing outside the door of Shady Side
Market, leaning against a pole, when she entered the store. (Dkt. 16, Ex. 1B, p. 110.)
Stone’s report provides that Frank stated “both . . . subjects were already in the store when
she entered.” (Dkt. 16, Ex. 3A, p. 74.) However, Collins does not explain the importance
of this discrepancy.
3.
Finally, Collins asserted that counsel should have asked Frank whether portions of
her testimony were prompted by others. First, he claims that the prosecutor may have
shown her the firearm prior to trial to prod her into remembering the engraving. Collins
offers no support for his argument. The record therefore supports the state court’s
conclusion that this claim is too speculative to warrant relief. See Tejada v. Dugger, 941
F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot
support an ineffective assistance of counsel claim).
Page 31 of 45
Second, Collins asserts that Stone prodded Frank into remembering the incident
inside the store and Collins’ unique shirt. Stone’s report provides that Frank discussed the
incident and Collins’ clothing, and states:
Initially Mrs. FRANK indicated that she did not think anything of this until she
was asked by myself and Detective MITCHELL if she had any conversations
with anyone inside of the store prior to the robbery and then this is when she
remembered the subject wearing the unique polo shirt and then remembered
that the suspect that was armed with the silver revolver had the same style
and design shirt tied around his face and was now wearing a white tank top
with the same colored and style charcoal shorts.
(Dkt. 16, Ex. 3A, p. 74.)
Even if counsel questioned Frank about why she did not raise this information until
the officers asked her specific questions, Collins has not shown that her trial testimony was
false or that this portion of her statement to police was improperly elicited.
Collins has not demonstrated that counsel performed deficiently in failing to crossexamine Frank about any of the matters raised in Ground Four A. Nor does Collins
establish a reasonable probability that the outcome of the proceeding would have been
different if counsel cross-examined Frank on any or all of these statements in light of the
State’s evidence of guilt. He does not demonstrate that the state court’s ruling was
contrary to or an unreasonable application of clearly established federal law, or was based
on an unreasonable determination of the facts. Ground Four(A) warrants no relief.
Ground Four(B)
Collins claims that trial counsel was ineffective for failing to cross-examine
Bradshaw. He states that counsel could have impeached Bradshaw with his “numerous
inconsistent statements regarding his arrival at the scene of the crime and what he claim
[sic] he had observed.” (Dkt. 1, p. 13.)
Page 32 of 45
The state court rejected Collins’ claim:
The Defendant alleges that counsel was ineffective for failing to crossexamine Officer Bradshaw. Specifically, the Defendant contends that
counsel could have impeached Officer Bradshaw because he made
inconsistent statements regarding when he arrived on the scene of the arrest
and what he observed. The Defendant contends that had counsel
impeached Officer Bradshaw, the jury would have questioned his credibility
and there is a reasonable probability that the outcome of the trial would have
been different.
This is the third time the Defendant has raised this same claim in the
instant motion. Once again, as stated in this Court’s denial of Claims Three
B and Three C, this Court does not find any inconsistencies of consequence
in Officer Bradshaw’s testimony. Moreover, given the evidence and
testimony offered against the Defendant, it is unlikely that attempting to
impeach Officer Bradshaw’s credibility during cross-examination would have
resulted in a different outcome at trial. See Strickland, 466 [U.S.] at 687;
Bucherie, 468 So. 2d at 231. Accordingly, this claim is also denied.
(Dkt. 16, Ex. 3C, p. 321) (court’s record citations omitted).
As addressed, Collins has not shown that Officer Bradshaw’s testimony was false
or was inconsistent with his police report. Accordingly, the record supports the state court’s
conclusion that counsel was not ineffective for failing to cross-examine Bradshaw about his
police report. Collins does not show that the state court unreasonably applied Strickland
or unreasonably determined the facts in rejecting his claim. Collins is not entitled to relief
on Ground Four(B).
Ground Five
Collins argues that trial counsel was ineffective for failing to object to four biased
jurors. Collins notes that two jurors had been crime victims, one was a private investigator,
and one said she would consider law enforcement officers to be credible. The state court
rejected Collins’ ineffective assistance claim:
The Defendant alleges that Juror[ ] McKinley, Juror Hudson, Juror
Newman, and Juror Miller were biased and that counsel was ineffective for
Page 33 of 45
failing to object. The Defendant contends that because Juror McKinley, the
foreperson, was a private investigator, he would have placed more faith in
the testimonies of law enforcement, and other jurors would have followed suit
because of his training. The Defendant alleges that during voir dire Juror
Hudson stated that she would place more trust in law enforcement testimony.
The Defendant then states that Juror Newman and Juror Miller were both the
victims of crimes and therefore counsel should have objected to their
inclusion in the jury. The Defendant further alleges that the Court prevented
him from making his objections to these jurors during the voir dire process.
The Defendant maintains that effective counsel would have objected to these
particular jurors based on their underlying prejudices, and had counsel made
such objections, the outcome of the proceedings would have been different.
To begin with, the State contends and this Court agrees that the
record refutes the Defendant’s contention that the Court prevented the
Defendant from objecting to the Court during jury selection. The record
reflects that the Defendant was attempting to complain about prospective
jurors seated in row two and the Court explained to the Defendant that the
discussion was currently limited to row one, and therefore, that the
Defendant’s objections were to prospective jurors not seated on the jury
panel. Moreover, the Defendant’s assertions regarding Jurors McKinley,
Hudson, Newman, and Miller are entirely speculative and cannot be the basis
for postconviction relief. See Nelson v. State, 73 So. 3d 77, 86 (Fla. 2011)
(“It is mere speculation that the use of peremptory challenges for those jurors
would have resulted in a different, defense-friendly outcome.”) (citing
Johnson v. State, 921 So. 2d 490, 503-04). This is particularly true here,
where the prospective jurors stated that they could follow Florida Law and
consider the case on its merits. As such, the Defendant has failed to show
that counsel’s actions were prejudicial, or that absent counsel’s ineffective
assistance, the outcome of the trial would have been different. Therefore,
this claim is also denied.
(Dkt. 16, Ex. 3C, p. 322.)
The record supports the denial of this claim.
A criminal defendant has a
constitutional right to trial by an impartial jury. See Irvin v. Dowd, 366 U.S. 717, 722 (1961)
(“In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel
of impartial, ‘indifferent’ jurors.”). “A party challenging a juror for cause must demonstrate
that the juror in question exhibited actual bias by showing either an express admission of
bias or facts demonstrating such a close connection to the present case that bias must be
Page 34 of 45
presumed.” United States v. Chandler, 996 F.2d 1073, 1102 (11th Cir. 1993). To be
entitled to postconviction relief in state court when claiming that a juror was not impartial,
the party must prove bias. “[W]here a postconviction motion alleges that trial counsel was
ineffective for failing to raise or preserve a cause challenge, the defendant must
demonstrate that a juror was actually biased.” Carratelli v. State, 961 So.2d 312, 324 (Fla.
2007).
During voir dire, Juror Newman stated that he had been assaulted at his home about
seven years prior, and Juror Miller stated she was “mugged and robbed” twelve to fifteen
years earlier. (Dkt. 16, Ex. 1B, p. 10.) Both jurors said they could set those incidents aside
and judge Collins’ case on its own merits. (Id., pp. 10-11.) Juror McKinley was a private
investigator for insurance companies. (Id., p. 28.) He stated that he had never worked in
law enforcement, and that he gathered and presented evidence for insurance companies.
(Id., pp. 46-48.)
It appears that Juror Hudson raised her hand when the court asked whether anyone
believed that a law enforcement witness “is automatically entitled to greater believability
when compared with a non law enforcement witness.” (Id., p. 22.) The court inquired:
THE COURT: All right. Here is the law of Florida. All witnesses are judged
by the same standards. No one gets any extra credibility based on their
occupation alone. Is there anyone on the panel that cannot follow Florida
law? I don’t see any hands. Ms. Hudson, can you abide by Florida law?
PROSPECTIVE JUROR HUDSON: Yes, sir.
(Id., p. 23.)
Hudson explained upon questioning by defense counsel:
[COUNSEL]: Now, Ms. Hudson.
Page 35 of 45
PROSPECTIVE JUROR HUDSON: Yes, sir.
[COUNSEL]: Would it be fair to say that you would put more stock or
believability in a uniformed police officer’s testimony than a normal civilian
witness?
PROSPECTIVE JUROR HUDSON: My earlier response was, I think, an
emotional based one. I think emotionally it would - - a uniformed officer
would carry more weight with me or a police officer would.
[COUNSEL]: That is true today?
PROSPECTIVE JUROR HUDSON: Well, before the judge said I had to think
of him equally.
[COUNSEL]: Okay. My question is are you willing to put that aside?
PROSPECTIVE JUROR HUDSON: Absolutely. I said that earlier.
[COUNSEL]: So you have no problem with it?
PROSPECTIVE JUROR HUDSON: Yeah.
(Id., pp. 74-75.)
Collins does not demonstrate that counsel had a basis to object. The jurors’
statements do not indicate that they would not be fair and impartial. Furthermore, as
Collins has not established actual bias on the part of these jurors, he does not show any
prejudice as a result of counsel’s performance. Accordingly, Collins fails to show that the
state court’s ruling was contrary to or an unreasonable application of clearly established
federal law, or was based on an unreasonable determination of the facts. He is not entitled
to relief on Ground Five.10
Ground Six
10
Collins does not argue in his federal habeas petition that the state trial court prevented him from
participating in jury selection, as he did in claim five of his postconviction motion. Even if he intended to raise
this portion of the claim, the record supports the state postconviction court’s finding that his argument is
without merit. (Dkt. 16, Ex. 1B, pp. 81-82.) This claim provides no relief.
Page 36 of 45
Collins contends that trial counsel was ineffective for failing to give an adequate
closing argument. He asserts that counsel conceded his guilt and merely “asked jurors to
find that there was no firearm used.” (Dkt. 1, p. 15.) Collins asserts that counsel should
have argued misidentification or “the inconsistency in statements made against him.” (Id.,
p. 30.)11 The state court denied Collins’ ineffective assistance claim:
The Defendant alleges that counsel was ineffective for making a futile
closing argument. The Defendant alleges that counsel conceded that the
Defendant committed the offense by only asking the jury to find that a firearm
was not used. The Defendant further contends that counsel’s strategy
throughout the trial was not to prove that the Defendant did not commit the
offense, but merely to show that a firearm was not used. The Defendant
contends that this strategy was reflected in counsel’s questioning of the
witnesses and but for counsel’s actions, the outcome of the trial would have
been different.
The State argues and this Court agrees that the Defendant’s claim has
no merit. The victim identified the Defendant as the man holding the gun
during the attempted robbery; the victim testified that she was able to identify
the Defendant in the photo pack within a matter of seconds; and Detective
Stone testified that the victim “immediately” identified the Defendant as the
perpetrator. Therefore, the Defendant misrepresents counsel’s statements
when he asserts that counsel conceded his identity and guilt during closing
argument. It is clear from the context of counsel’s statements that counsel
was pointing to a lack of evidence in the State’s case; specifically, the
evidence linking the Defendant to the gun involved in the offense.
Additionally, as correctly argued by the State, the Defendant fails to
demonstrate prejudice because he does not offer an alternative argument
that counsel could have pursued. See Henry v. State, 862 So. 2d 679, 683
(Fla. 2003); see also Everett v. State, 54 So. 3d 464, 479 (Fla. 2010) (The
defendant has failed to show Strickland prejudice because he does not
explain “what counsel could have argued in the final closing arguments that
would have swayed the jury.”). For the reasons stated, this claim is denied.
(Dkt. 16, Ex. 3C, p. 323) (court’s record citations omitted).
11
Collins did not state in his postconviction motion that counsel should have raised misidentification
or the allegedly inconsistent statements. A federal habeas petitioner cannot raise new facts not presented
to the state court in support of an ineffective assistance claim. See Anderson v. Harless, 459 U.S. 4, 6
(1982); Weeks v. Jones, 26 F.3d 1030, 1044-46 (11th Cir. 1994). Regardless, these allegations afford Collins
no relief.
Page 37 of 45
Stone testified to police department protocol that required the test firing of firearms
seized by the police department. (Dkt. 16, Ex. 1B, p. 153.) Stone testified that Officer
Paulina test fired the revolver recovered from Moise’s possession. (Id., p. 150.) Paulina
did not testify at trial. During his closing argument, defense counsel argued that the jury
should consider the omission of Paulina’s testimony and what he characterized as the
State’s lack of direct evidence about the firearm and the test firing:
[COUNSEL]: So I, therefore, ask you to consider the lack of evidence.
Officer Paulina was not here. Officer Paulina did not testify that the gun was
test fired. All that was testified about, that was the procedure that should or
should not have been followed. But there is no proof that if was. I, therefore,
ask you in considering your verdict to find that there was no firearm used
because no firearm was proven in this courtroom today.
(Id, p. 173.)
The record supports the state court’s decision. In light of the testimony that Franks
decisively identified Collins, he does not demonstrate that counsel was ineffective for failing
to present a misidentification defense.12 Nor does he show that counsel was ineffective for
failing to argue the “inconsistency in statements made against him.” Collins has not shown
any materially inconsistent statements by State witnesses and does not now demonstrate
a reasonable probability that arguing such statements would have changed the outcome
of trial by overcoming the State’s evidence of his identity. Finally, Collins fails to establish
that, under these circumstances, counsel was ineffective for focusing on a lack of evidence
about the firearm. Collins would have been subject to a lesser penalty had the jury found
12
Collins alleges that counsel could have “used the newly discovered testimony of Mr. Mohammad
to show that Petitioner wasn’t even [sic] the store.” (Dkt. 1, p. 30.) For the reasons addressed in Ground Two,
however, Collins does not show that counsel was ineffective for failing to call Youssouf.
Page 38 of 45
that he committed the attempted robbery without a firearm.13
Collins has not demonstrated that the state court unreasonably applied Strickland
or unreasonably determined the facts in rejecting his claim. He is not entitled to relief on
Ground Six.
Ground Seven
Collins alleges that trial counsel was ineffective for failing to advise him that he had
the right to wear civilian clothing at trial. Collins states that, as a result, the jury viewed him
wearing jail clothing. The state court rejected this claim of ineffective assistance:
The Defendant alleges that counsel was ineffective for failing to advise
the Defendant that he had a right to wear civilian clothing during trial. The
Defendant asserts that he was dressed in jail-issued blue shirt and pants that
had “MAX” printed on the back of the shirt and down the leg of the pants.
The Defendant also asserts that during trial, the co-defendant was brought
in also wearing jail-issued clothing, which was prejudicial to the Defendant.
The Defendant claims that he was ignorant of his right to wear civilian
clothes, and had counsel informed as much, he would not have worn jailissued clothing and the jury would not have been swayed into rendering a
verdict of guilty.
A defendant cannot be compelled to stand trial in identifiable prison
clothing because it impairs his presumption of innocence. See Pineda v.
State, 805 So.2d 116, 117 (Fla. 4th DCA 2002). However, the Defendant
does not assert that he was compelled to wear prison clothing, nor does he
allege that he requested from his counsel that he be allowed to wear civilian
clothing for trial. Therefore, the Defendant was not misadvised or compelled
to wear something that he did not want to wear.
Further, Defendant has failed to show that had he been wearing
civilian clothing, the outcome would have been different. Defendant was
identified by the victim as the perpetrator. The gun brandished at the victim
was found in the possession of Defendant’s codefendant who was also
identified by the Victim. Thus, Defendant has failed to show a reasonable
probability that the outcome of his trial would have been different.
13
Attempted robbery with a firearm is a second degree felony. §§ 777.04(4)(c), 812.13(2)(a) Fla.
Stat. Thus, Collins was subject to, and received, a thirty-year sentence as a habitual felony offender.
§ 775.084(4)(a)2. Attempted robbery without a firearm is a third degree felony. §§ 777.04(4)(d), 812.13(2)(c),
Fla. Stat. Had he been convicted of this offense, Collins would have faced a ten-year sentence as a habitual
felony offender. § 775.084(4)(a)3., Fla. Stat.
Page 39 of 45
(Dkt. 16, Ex. 3C, pp. 323-24) (court’s record citations omitted).
Requiring a criminal defendant to appear at trial in jail clothing violates the
Fourteenth Amendment. See United States v. Johnson, 634 Fed. App’x 227, 229 (11th Cir.
2015) (“It is a Fourteenth Amendment violation to compel a criminal defendant to stand trial
before a jury in identifiable prison garb.”). While Collins does not allege he was forced to
wear jail clothes, “[t]he failure to make an objection to the court as to being tried in such
clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary
to establish a constitutional violation.” Estelle v. Williams, 425 U.S. 501, 512-13 (1976).
Even assuming that counsel was ineffective for failing to advise Collins of his
entitlement to wear civilian clothing, however, Collins fails to show prejudice. Given the
evidence against him, as described in the state court’s order, Collins has not shown a
reasonable probability that the outcome of the proceeding would have been different had
he worn civilian clothing. See, e.g., Johnson, 634 Fed. App’x at 229 (“[O]verwhelming
evidence of a defendant’s guilt renders the error occasioned by a defendant’s appearance
in prison clothes at trial harmless beyond a reasonable doubt.”).
Because Collins has not demonstrated that the state court’s decision was contrary
to or an unreasonable application of clearly established federal law or was based on an
unreasonable determination of the facts, he is not entitled to relief on Ground Seven.
Grounds Eight and Nine
In Ground Eight, Collins argues that trial counsel was ineffective for failing to object
when the State introduced a firearm into evidence without first laying a proper foundation.
The state court denied this allegation:
The Defendant alleges that counsel was ineffective for failing to object
Page 40 of 45
to the State’s introduction of the firearm into evidence when the proper
foundation was not laid. The Defendant allege that the victim’s identification
of the gun was not sufficient and was merely speculation based on an
engraving on the gun. The Defendant also alleges that Officer Bradshaw
was not qualified to identify the gun because he was not involved in the
investigation and he gave false testimony. The Defendant further contends
that but for counsel’s ineffective assistance, the Court would have granted a
mistrial based on these “exigent circumstances.”
The State argues, and this Court agrees, that counsel had no basis
upon which to object, and therefore, cannot be deemed ineffective for failing
to do so. See Schoenwetter, 46 So. 3d at 546. To begin with, the State
correctly asserts that the gun was not entered into evidence solely because
the victim identified it as the gun used in the attempted robbery. Rather, the
gun was also entered into evidence because Officer Bradshaw identified it
as the gun recovered during the arrest of Mr. Moise, the Defendant’s
accomplice in the charged offense. As previously addressed in the body of
this Order, the Defendant is incorrect in his contentions that Officer Bradshaw
had nothing to do with the investigation, was not qualified to identify the gun,
and gave false testimony at trial. Officer Bradshaw participated in the arrest
and therefore, was able to identify the gun as the weapon recovered from Mr.
Moise.
Furthermore, the victim identified Mr. Moise as the Defendant’s
accomplice during the attempted robbery. Additionally, any allegation that
the victim’s identification of the engraving on the gun is speculative and is
refuted by the record. The record clearly demonstrates that the victim
testified that she “did not really look at anything but the barrel of the gun,”
and the engraving of the gun in question was, in fact, on the barrel of the
gun. Though the victim could not remember the color of the handle of the
gun, her testimony established that there were no differences between the
gun presented in Court, and the gun used in the attempted robbery. As such,
the Defendant has failed to establish how he was prejudiced by counsel’s
failure to object, and as counsel cannot be deemed ineffective for failing to
make a meritless objection, this claim is accordingly denied.
(Dkt. 16, Ex. 3C, pp. 324-25) (court’s record citations omitted).
In Ground Nine, Collins asserts that trial counsel was ineffective for failing to object
to the State introducing collateral crimes evidence without providing the defense notice of
its intent to do so. The state court rejected this assertion when Collins raised it in his
postconviction motion:
The Defendant alleges that counsel was ineffective for failing to object
Page 41 of 45
to the State’s lack of notice of intent to introduce the gun as collateral crime
evidence. The Defendant alleges that the State presented counsel with
discovery but it did not contain any information about a seized firearm. The
Defendant further asserts that the State is required to present information of
Williams Rule evidence no later than 10 days before trial pursuant to Florida
Statute § 90.404(2)(b). The Defendant contends that there is a reasonable
probability that the jury would have returned a verdict of not guilty had the
collateral crime evidence not been admitted at trial.
The State contends and this Court agrees that the Defendant’s claim
has no merit. To begin with, as the State correctly points out, the Defendant
repeatedly refers to Florida Statute § 90.404(2)(a), which relates to evidence
presented in child molestation cases, and is therefore, inapplicable to the
instant case. Moreover, the record demonstrates that the gun was not
introduced as collateral evidence, but was introduced because it was
identified by the victim as the one used by the Defendant in the attempted
robbery. Therefore, the Defendant is incorrect in his assertion that the gun
was introduced in relation to other crimes not charged in the instant case.
Additionally, the State argues, and this Court agrees that the
Acknowledgment of Additional Tangible Evidence filed by the State on April
20, 2007, contained Officer Paulina’s report, which indicated that a revolver
was seized and taken into evidence. Therefore, the Defendant’s assertion
that there was no information concerning a seized firearm is also refuted by
the record. Counsel would have had no basis upon which to object, and as
previously stated, counsel cannot be deemed ineffective on these grounds.
The Defendant also alleges trial court error as it relates to the introduction of
the gun as collateral evidence. The Defendant should note that claims of trial
court error should have been brought on direct appeal and are therefore,
procedurally barred from being raised in a motion for postconviction relief.
See Sampson v. State, 845 So. 2d 271 (Fla. 2d DCA 2003). In light of the
evidence presented against him at trial, the Defendant has failed to establish
prejudice and has failed to demonstrate that the outcome of the proceedings
would have been different had counsel performed as he now suggests. For
the reasons stated, this claim is also denied.
(Dkt. 16, Ex. 3C, pp. 325-26) (court’s record citations omitted).
The introduction of evidence during a state court trial, and any objections that may
be lodged in response, are matters of state law. Accordingly, deference must be afforded
to the state court’s determination in both of Collins’ claims that counsel had no basis to
object when the State moved to introduce the firearm at trial. See, e.g., Herring v. Sec’y,
Dep’t of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) (“The Florida Supreme Court
Page 42 of 45
already has told us how the issues would have been resolved under Florida state law had
[petitioner’s counsel] done what [petitioner] argues he should have done. . . . It is a
‘fundamental principle that state courts are the final arbiters of state law, and federal
habeas courts should not second-guess them on such matters.’”) (quoting Agan v. Vaughn,
119 F.3d 1538, 1549 (11th Cir. 1997)); Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir.
2005) (“[T]he Alabama Court of Criminal Appeals has already answered the question of
what would have happened had [petitioner’s counsel] objected to the introduction of
[petitioner’s] statements based on [state law]–the objection would have been overruled. . . .
Therefore, [petitioner’s counsel] was not ineffective for failing to make that objection.”). See
also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state
court’s interpretation of state law . . . binds a federal court sitting in habeas corpus.”).
Collins does not show that the state court unreasonably applied Strickland or
unreasonably determined the facts in denying this claim. He is not entitled to relief on
Ground Eight or Ground Nine.
Ground Ten
Collins claims that trial counsel was ineffective for failing to object to the court’s
sentence as vindictive. Collins stated when he filed this federal habeas petition that he
challenged the conviction entered in state court case number CRC07-03321CFANO. (Dkt.
1, p. 1.) His first nine claims clearly involve this conviction. Collins states for the first time
in his reply that Ground Ten involves convictions entered in a different state court case.
Specifically, he refers to his sentence of 50 years in prison for drug-related convictions
entered in case number CRC06-22477CFANO. (Dkt. 22, pp. 19-23.)
Collins already filed a federal habeas petition in case number 8:12-cv-2292-TPage 43 of 45
30TBM challenging the convictions entered in state court case number CRC0622477CFANO. That habeas petition has been considered and denied. Collins may not
bring another challenge to the state court convictions entered in case number CRC0622477CFANO without first obtaining permission from the Eleventh Circuit Court of Appeals
to file a second or successive habeas petition. See 28 U.S.C. § 2244(b)(3)(A) (“Before a
second or successive application permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing the district
court to consider the application.”). Collins does not represent, nor is there any indication
from the record, that such permission has been granted. Accordingly, this Court is without
jurisdiction to consider the claim raised in Ground Ten.
Any claims not specifically addressed herein have been determined to be without
merit.
It is ORDERED that:
1. Collins’ petition for writ of habeas corpus (Dkt. 1) is DENIED. The Clerk is
directed to enter judgment against Collins and to close this case.
2. Collins is not entitled to a certificate of appealability (COA). 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 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, Collins “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.
Page 44 of 45
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)). Collins has not made this showing. Finally,
because Collins is not entitled to a COA, he is not entitled to appeal in forma pauperis.
ORDERED in Tampa, Florida, on March 27, 2017.
Copies to:
Jermaine Collins
Counsel of Record
Page 45 of 45
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