Walker v. Secretary, Department of Corrections, et al
Filing
51
OPINION AND ORDER. Walker's petition for writ of habeas corpus 1 is DENIED. The Clerk is directed to enter judgment against Walker and to close this case. It is further ORDERED that Walker is not entitled to a certificate of appealability and is not entitled to appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 2/7/2017. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ROMERIO LA’TEE WALKER,
Petitioner,
v.
Case No. 8:13-cv-3034-T-36JSS
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
/
ORDER
Petitioner Romerio La’Tee Walker, proceeding pro se, filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254. (Dkt. 1.) He also filed a memorandum of law with
an appendix. (Dkts. 3, 4.) Walker challenges convictions entered by the Circuit Court for
the Tenth Judicial Circuit, in and for Polk County, Florida. Respondent filed a response
(Dkt. 27), in which it concedes the petition’s timeliness. Petitioner filed a reply with an
appendix. (Dkts. 31, 32.) Upon review, the petition must be denied.
PROCEDURAL HISTORY
Walker was charged with possession of cocaine with intent to sell (count one) and
possession of drug paraphernalia (count two). (Dkt. 29, Ex. 1.) In August 2008, he entered
a plea of no contest in exchange for a sentence of eight years in prison on count one, to
be suspended on the condition that he complete ten years of probation. (Dkt. 29, Ex. 4.)
He was sentenced to time served on count two. (Dkt. 29, Ex. 83, Vol. VII, p. 1183.) Walker
voluntarily dismissed his direct appeal. (Dkt. 29, Ex. 18.) Walker’s probation officer filed
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several affidavits alleging violations of probation. (Dkt. 29, Exs. 5, 7, 9, 10, 17.) At a June
2010 hearing, upon finding that Walker violated his probation, the court revoked probation
and sentenced Walker to serve the eight year term that was previously suspended. (Dkt.
29, Ex. 31.) Walker appealed, but voluntarily dismissed his appeal. (Dkt. 29, Ex. 37.)
Walker filed numerous postconviction motions challenging his convictions and
sentences. His pleadings included several motions for postconviction relief under Florida
Rule of Criminal Procedure 3.850 and a motion to correct illegal sentence under Florida
Rule of Criminal Procedure 3.800(a). (Dkt. 29, Exs. 43, 54, 69.) The state court summarily
denied these motions. (Dkt. 29, Exs. 56, 67, 70, 72.) In a consolidated appeal, the state
appellate court per curiam affirmed the orders of denial. (Dkt. 29, Ex. 88.)1
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 claim1
Federal district courts review habeas petitions filed by a person “in custody pursuant to the judgment
of a State court.” 28 U.S.C. § 2254(a). Although Walker has been released from prison, the “in custody”
requirement is satisfied because he was incarcerated in the Department of Corrections when he filed his
habeas petition. The Supreme Court has “interpreted the statutory language as requiring that the habeas
petitioner be ‘in custody’ under the conviction or sentence under attack at the time his petition is filed.” Maleng
v. Cook, 490 U.S. 488, 490-91 (1989) (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)).
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(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
§ 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
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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
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 Walker’s 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
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court:
We now hold that review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the merits. Section
2254(d)(1) refers, in the past tense, to a state-court adjudication that
“resulted in” a decision that was contrary to, or “involved” an unreasonable
application of, established law. This backward-looking language requires an
examination of the state-court decision at the time it was made. It follows
that the record under review is limited to the record in existence at that same
time, i.e., the record before the state court.
Pinholster, 563 U.S. at 181-82. Walker 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.),
cert. denied, 534 U.S. 1046 (2001).
INEFFECTIVE ASSISTANCE OF COUNSEL
Claims of ineffective assistance of counsel are analyzed under the test set forth in
Strickland v. Washington, 466 U.S. 668 (1984):
The law regarding ineffective assistance of counsel claims is well settled and
well documented. In Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), the Supreme Court set forth a two-part test for
analyzing ineffective assistance of counsel claims. According to Strickland,
first, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
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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.”
Strickland, 466 U.S. 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.
Walker 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. When the case involves a plea, the prejudice
inquiry focuses on whether counsel’s deficient performance “affected the outcome of the
plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant
must show that there is a reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,
59 (1985).
A petitioner cannot meet his burden merely by showing that counsel’s choices were
unsuccessful:
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The test has nothing to do with what the best lawyers would have done. Nor
is the test even what most good lawyers would have done. We ask only
whether some reasonable lawyer at the trial could have acted, in the
circumstances, as defense counsel acted at trial . . . . We are not interested
in grading lawyers’ performances; we are interested in whether the
adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers, in
every case, could have done something more or something different. So, omissions are
inevitable . . . . [T]he issue is not what is possible or ‘what is prudent or appropriate, but only
what is constitutionally compelled.’”) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794
(1987)).
Sustaining a claim of ineffective assistance of counsel on federal habeas review is
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. 466 U.S. at 697
(“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address
both components of the inquiry if the defendant makes an insufficient showing on one.”);
Sims, 155 F.3d at 1305 (“When applying Strickland, we are free to dispose of
ineffectiveness claims on either of its two grounds.”).
DISCUSSION
Ground Four
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Walker was represented by a succession of three attorneys, and he filed pre-plea
motions to dismiss two of them. (Dkt. 29, Ex. 84, Vol. VI, pp. 1020-24, 1057-63; Vol. VII,
pp. 1165-73.) Walker’s last motion concerned Assistant Public Defender Geoffrey Foster,
the attorney who represented him at the change of plea hearing.2 In Ground Four, Walker
asserts that “a defendant’s choice to plea[d] cannot be induced by fear of a[n] unfair trial
with inadequate counsel.” (Dkt. 1, p. 10.) He claims that he “allowed [him]self to be
sentenced under [the] plea” agreement rather than to proceed to trial with an attorney
whom the court would not dismiss. (Id.) Walker’s allegation is interpreted as presenting
a challenge to the voluntariness of his plea.
Walker states that he raised this argument as claim 20 of his third amended
postconviction motion. There, he alleged that he was forced to enter a plea due to judicial
bias.3 The state court denied this claim:
In claim 20, Defendant writes that his judgment and sentence were the
result of judicial bias. Defendant claims that because the trial court refused
to dismiss counsel and hold a rehearing on a Motion to Suppress, Defendant
was led to believe that he would receive thirty years in prison if he went to
trial and was convicted. Defendant claims that he should have been allowed
to raise the issue of false testimony that had occurred at the Motion to
Suppress. Failure to allow the rehearing resulted in Defendant’s conviction.
The record indicates that the Defendant decided to enter a plea rather than
proceed to trial. That was a choice Defendant made. Defendant’s fear that
he would receive a thirty year sentence from the Court if he went to trial and
2
Walker requested, while Foster represented him, that the Office of the Public Defender be
discharged.
3
Walker addressed the court’s pre-plea rulings in his case and argued:
Knowing of the court’s biased decisions throughout the history of the case, defendant had no
choice but to believe that the court contrived against him and wouldn’t hesitate to sentence
him to 30-years with the habitual offender, if he’s convicted based, not on him being guilty,
but because of biased ruling of the court and ineffective assistance of counsel.
(Dkt. 29, Ex. 69, p. 1367.)
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lost was justified as he was charged with a second degree felony and faced
a Habitual Felony Offender designation. Also, whether or not to grant a
rehearing was within the discretion of the Court and failing to hold that
hearing, or to dismiss counsel, does not demonstrate judicial bias. Claim 20
is DENIED.
(Doc. 29, Ex. 70, p. 1411) (court’s record citations omitted).
Walker has failed to demonstrate that his plea was involuntarily entered because the
court denied his motion to dismiss Foster, thereby requiring him to proceed with counsel
he did not want. The standard for determining the validity of a guilty plea is “whether the
plea represents a voluntary and intelligent choice among the alternative courses of action
open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970).4 “A reviewing
federal court may set aside a state court guilty plea only for failure to satisfy due process:
‘If a defendant understands the charges against him, understands the consequences of a
guilty plea, and voluntarily chooses to plead guilty, without being coerced to do so, the
guilty plea . . . will be upheld on federal review.’” Stano v. Dugger, 921 F.2d 1125, 1141
(11th Cir. 1991) (quoting Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir. 1980)).
Although a defendant’s statements during a plea colloquy are not insurmountable,
“the representations of the defendant, his lawyer, and the prosecutor at [a plea hearing],
as well as any findings made by the judge accepting the plea, constitute a formidable
barrier in any subsequent collateral proceedings. Solemn declarations in open court carry
a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). “[W]hen
4
Walker’s no contest plea is subject to the same analysis as a guilty plea. Wallace v. Turner, 695
F.2d 545, 548 (11th Cir. 1983) (“The fundamental constitutional consideration when a petitioner challenges
his plea is whether it was voluntary. The rule is the same for pleas of guilty or nolo contendere.”). See also
Florida v. Royer, 460 U.S. 491, 495 n.5 (1983) (stating that “[u]nder Florida law, a plea of nolo contendere is
equivalent to a plea of guilty.”).
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a defendant makes statements under oath at a plea colloquy, he bears a heavy burden to
show his statements were false.” United States v. Rogers, 848 F.2d 166, 168 (11th Cir.
1988).
Walker’s plea colloquy provides:
THE COURT: Okay. Mr. Walker, I need you to raise your right hand, sir. Do
you swear or affirm to tell the truth, the whole truth and nothing but the truth?
THE DEFENDANT: Yes, Sir.
THE COURT: You need to answer out loud.
THE DEFENDANT: Yes, Sir.
THE COURT: And you are Romerio Walker?
THE DEFENDANT: Yes, Sir.
THE COURT: You can put your hand down. Mr. Walker, we are in case
number CF05-9702 - - you are charged by the State with possession of
cocaine with intent to sell, which is punishable by up to 15 years in state
prison and possession of drug paraphernalia punishable by up to a year in
the county jail.
The plea agreement indicates that you are entering a plea of no
contest to those charges anticipating that I am going to sentence you to 8
years in Florida State Prison suspended upon your successful completion of
10 years of probation which will include some drug conditions.
The effect of this would be if you were to uh - - violate terms of your
probation and a judge were to find that you had violated, willfully, materially,
substantially - - those are the key - - willfully, materially, substantially violated
terms of your probation - - you could be at that point be sentenced for the 8
years that I am suspending at this point. Is that your understanding?
THE DEFENDANT: Yes, Sir.
THE COURT: Has anybody made any other promises?
THE DEFENDANT: No, Sir.
THE COURT: Has anybody threatened, coerced or forced you to do this?
THE DEFENDANT: No, Sir. I have been told I would still have my right to
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appeal.
MR. FOSTER: Right. And Judge, we are - THE COURT: Yes, you are going to retain - MR. FOSTER: - - we are entering pleas of no contest for the record
specifically reserving the right to appeal the previous denials of his motions
to suppress and the renewed motion to suppress - - there have been I
believe rulings in this matter, both [b]y Judge Alcott and by Judge Selph
previously.
THE COURT: Correct. You are reserving those rights to appeal and that is
what your understanding is, correct?
THE DEFENDANT: Yes. The issues - THE COURT: Has anybody made any other promises?
THE DEFENDANT: No, Sir.
THE COURT: Anybody threatened, coerced or forced you to do this?
THE DEFENDANT: No, Sir.
THE COURT: Are you currently under the influence of any drug, alcohol, or
medication - - anything affecting your ability to understand me?
THE DEFENDANT: No, Sir.
THE COURT: Now, how old are you?
THE DEFENDANT: Thirty-eight.
THE COURT: Thirty-eight. And how far did you go in school?
THE DEFENDANT: I have a GED and a couple of years of community
college as a paralegal.
THE COURT: I figured that. You have been represented by an attorney - several attorneys - - and I know that you have had some problems here and
there - - but, at this point are you satisfied with the counsel that you have
received and the work that has been done?
THE DEFENDANT: At this point, I am satisfied with the outcome of the case.
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Yes, Sir.
THE COURT: Okay. Do you understand that by entering a plea at this point - you are giving up your right to have a trial in front of a jury? It would be up
to the state to bring in witnesses and prove what they have alleged against
you beyond and to the exclusion of all reasonable doubt.
During the course of a trial, you have the right to be represented by a
lawyer - - to have your lawyer cross examine - - that means to question any
of the witnesses called in by the State and also subpoena and compel
witnesses to come in for you. If you choose not to testify, a jury would be told
that is your right, they can not use that against you.
On the other hand, if you choose to testify - - then the jury would be
instructed to weigh and consider your testimony like they would anybody
else’s. Do you understand that those are the rights of a trial that you are
giving up?
THE DEFENDANT: Yes, Sir.
THE COURT: You are also giving up - - no, you are retaining your right to
appeal on these earlier issues and you - - if you can not afford an attorney,
I would be appointing an attorney to represent you for that.
But, do you understand that if you were to violate the terms of your
probation - - you could go to state prison. And if you were to go to state
prison, before being released from any state prison facility, that they would
investigate your background to determine if you have any sexually motivated
crimes in your past.
If they were to locate a sexually motivated crime, they would further
evaluate you under what is called the Jimmy Ryce Act to determine whether
or not you should be determined a sexually violent predator. Do you
understand that those are the various rights that you are giving up at this
point and the sanction that could be imposed?
THE DEFENDANT: Yes, Sir.
THE COURT: Okay. And uh - - is anybody aware of any DNA that could
exonerate?
MR. FOSTER: No, Sir.
[PROSECUTOR]: No, Your Honor.
THE COURT: And is there a factual basis to support the allegations?
MR. FOSTER: Yes, Sir. And I would stipulate to a factual basis. I believe
that there is substantial record support in the various transcripts that are in
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the court file - THE COURT: Okay.
MR. FOSTER: - - Judge, additionally, with regards to the reservation of
appeal - - I believe that the State is stipulating that there is issues that would
be dispositive of the case, if they were decided favorably to Mr. Walker.
THE COURT: If the evidence was actually suppressed, that would be
dispositive?
[PROSECUTOR]: Correct.
THE COURT: Okay. Mr. Walker, I find - - is there any legal reason we can
not proceed to the disposition?
MR. FOSTER: No, Sir.
THE COURT: And do you have a score sheet?
[PROSECUTOR]: I do, Your Honor, I’m sorry.
THE COURT: Mr. Walker, I find that you understand and that you know what
you are doing, that you are freely, knowingly and voluntarily entering the
plea. There is a factual basis to support it.
I am accepting this plea and finding you guilty and adjudicating you
guilty of possession of cocaine with intent to sell and possession of drug
paraphernalia. The drug paraphernalia I am sentencing you to time served.
On the possession of cocaine with intent to sell, I am sentencing you to a
term of incarceration of 8 years in Florida State Prison suspended upon the
successful completion of 10 years of probation.
Conditions of probation, you are not to possess any illegal drug,
consume any illegal drug or associate or be[ ] around people that have drugs
on them. So, you need to be careful of you are hanging with or who gets in
your car or whose car you get in. You are going to need to submit to and pay
for random drug screens such as urinalysis.
You need to submit to and pay for an evaluation to determine if you
have any treatable problem with illegal drugs and if you have such a problem,
submit to, pay for and successfully complete any drug rehab program that
may be recommended.
I am imposing court costs in the amount of $498.00, an indigence
application fee of $40.00; $150.00 for court appointed attorney’s fee; $50.00
of which you have a right to have a further hearing on. Are you willing to
accept that amount?
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THE DEFENDANT: Yes, Sir.
THE COURT: And there is $143.00 investigative costs to Polk County
Sheriff’s Office which apparently you are agreeing to, correct?
THE DEFENDANT: Yes, Sir.
THE COURT: Those various amounts will all need to be paid within uh - - the
first 5 years of the 10 years that you are on probation.
THE DEFENDANT: Yes, Sir.
THE COURT: You are going to be subject to warrantless search. That
means law enforcement can come up and search you, your car, your house
at any time to make sure that there is nothing illegal around you and that you
are in compliance with the terms of your probation.
You do have 30 days in which to appeal this judgment and sentence.
If you can not afford an attorney, I would appoint one for you. Do you wish
to have an attorney appointed? Yes, Ma’am?
[PROSECUTOR]: The only other issue - - it is drug offender probation?
THE COURT: It is. So that is no alcohol also?
[PROSECUTOR]: Uh - - more importantly - THE COURT: The curfew.
[PROSECUTOR]: The curfew.
THE COURT: Okay. Well, there is no - [PROSECUTOR]: And I believe there is no alcohol on drug offender
probation.
THE COURT: There is no alcohol in drug offender probation.
[PROSECUTOR]: I think so. But - THE COURT: Oh, I know it is.
[PROSECUTOR]: Okay, yes. I did check and it is drug offender probation.
THE COURT: It is drug offender probation?
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[PROSECUTOR]: Uh-huh.
THE COURT: You know that would prohibit you from having no alcohol also?
THE DEFENDANT: Yes.
THE COURT: And that is acceptable?
THE DEFENDANT: (Indiscern).
THE COURT: So you are not to possess any alcohol, consume any alcohol
or go to any establishments where alcohol is their primary source of
business. In other words, don’t go to any bars.
THE DEFENDANT: Yes, Sir.
THE COURT: And you will be subject to a curfew which will be from 10:00
am to - - I’m sorry from 10:00 pm to 6:00 am unless otherwise changed your
[sic] probation officer. That is something that you can negotiate with your
probation officer.
MR. FOSTER: Judge, he is the sole and primary caregiver for four minor
children and I - - I presume that that curfew would be subject to the
necessities that might arise - THE COURT: Yeah.
MR. FOSTER: - - within that - - those relationships.
THE COURT: What you need to do is sit down and if there is going to be
something that is different than the 10:00 pm to the 6:00 am - - talk to your
probation officer ahead of time. I mean - - just say look, I’ve got this coming
up that we are going to be out past this or whatever. Just so your probation
officer is aware of it beforehand. Because, the probation officer, their
obligation is to enforce the order.
So, what they are trying to do - - they are not trying to bust you - - they
are trying to enforce the order imposed. And if - - if you are going to be out,
you need to let them know beforehand as to why and discus[s] that with
them.
MR. FOSTER: And I presume Judge and the reason that I brought it up is
because uh - - a kid’s temperature might spike at 2:00 in the morning and it
might be necessary to - THE COURT: And if that is the case and when you go to the hospital, just get
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a - - it’s a matter that you can’t be violated unless you willfully, materially and
substantially do something that you shouldn’t be doing.
And if you are out at midnight on something of your own, that would
be a violation. But, if it is dealing with the kids and you show the probation
officer - - he’s not going to write you up.
THE DEFENDANT: No, Sir.
THE COURT: Okay. You do have 30 days in which to appeal this judgment
and sentence. If you can not afford an attorney, I will appoint one. If you
would like to be considered for appointment of a public defender at this
point?
THE DEFENDANT: Yes, Sir.
THE COURT: As you - - have your financial situations been changed at all
since earlier appointing the public defender?
THE DEFENDANT: No, Sir.
THE COURT: And I will find that you qualify for the services of the public
defender and appoint the public defender’s office to represent you.
MR. FOSTER: Yes, Sir.
THE COURT: Okay. Thank you all.
MR. FOSTER: Thank you.
(Dkt. 29, Ex. 83, Vol. VII, pp. 1177-88.)
The record reflects that Walker understood the charges against him and possible
penalties he faced, as well as the agreed-upon sentence to be imposed and the terms and
conditions of probation. He also understood the rights that he waived by entering his plea.
Walker told the court that he was not forced, coerced, or threatened into entering the plea.
He did not raise any complaints about counsel or protest that the court’s rulings regarding
counsel’s performance left him no choice but to plead.
To the extent his decision to plead might have involved a fear of receiving a greater
Page 16 of 44
sentence upon conviction at trial, Walker fails to show that this consideration rendered his
plea involuntary. See, e.g., Brady v. United States, 397 U.S. 742, 751 (1970) (“We decline
to hold . . . that a guilty plea is compelled and invalid under the Fifth Amendment whenever
motivated by the defendant’s desire to accept the certainty or probability of a lesser penalty
rather than face a wider range of possibilities extending from acquittal to conviction and a
higher penalty authorized by law for the crime charged.”).
Walker has not demonstrated that his plea was involuntary on the basis alleged. He
does not show that the state court’s rejection of his claim was contrary to or an
unreasonable application of clearly established federal law, or was based on an
unreasonable determination of the facts. Consequently, Walker is not entitled to relief on
Ground Four.
Ground Two
The claims in Ground Two stem from Walker’s allegation that Foster had a conflict
of interest that prevented him from advising Walker about the State’s plea offers. In
support, Walker describes three plea offers he claims the State presented. The first offer
was to reduce the charge of possession of cocaine with intent to sell to simple possession,
in exchange for a sentence of five years in prison and a waiver of all appellate rights and
all claims of ineffective assistance of counsel. (Dkt. 3, p. 11.) Walker alleges that the State
next offered him a five year sentence for simple possession and, under the terms of the
agreement, he “would retain his right to a direct appeal but would still be required to waive
claims of ineffective assistance of counsel.” (Id.) The third offer, Walker states, was for an
eight-year suspended sentence and would provide that Walker “would still be allowed to
appeal the orders denying his motions to dismiss the public defender.” (Id.) Walker
Page 17 of 44
asserts that Foster relayed the offers but said that he could not advise Walker whether to
accept them because conditions about claims involving the performances of Foster and
Candy Murphy, another assistant public defender who previously represented Walker in
the case, created a conflict of interest.
Walker seems to refer interchangeably to claims challenging the court’s denial of his
motions to dismiss counsel and claims asserting ineffective assistance of trial counsel. It
appears that Walker intends to refer to appellate claims alleging trial court error for denying
his motions to dismiss counsel, which motions were based on Walker’s allegations that
counsel was not providing effective assistance. The Court reaches this conclusion due to
Walker’s discussion about the claims he wanted to raise on direct appeal5 and his
statements that he did not know he was barred from bringing claims challenging the denial
of his motions to dismiss counsel until his appeal was pending.6 Walker argues that Foster
rendered ineffective assistance for failing to inform the court of the conflict and failing to
move to withdraw so that conflict-free counsel could be appointed, thereby denying him
counsel as guaranteed by the Sixth Amendment. He also claims that his plea was
involuntary due to counsel’s alleged inability to advise him.
In ground eleven of his second amended postconviction motion, Walker alleged that
Foster was ineffective for failing to withdraw in light of the alleged conflict. The state court
5
Claims of trial court error are cognizable on direct appeal, but claims of ineffective assistance of trial
counsel typically must be brought in a postconviction motion. See Bruno v. State, 807 So.2d 55, 63 (Fla.
2001) (“A claim of trial court error generally can be raised on direct appeal but not in a rule 3.850 motion, and
a claim of ineffectiveness generally can be raised in a rule 3.850 motion but not on direct appeal.”) (footnotes
omitted).
6
See Fla. R. App. P. 9.140(b)(2)(A) (setting forth the limited issues that may be raised on direct
appeal when a defendant enters a plea).
Page 18 of 44
denied Walker’s claim:
In claim 11, the Defendant asserts that trial counsel, Geoffrey Foster, was
ineffective in failing to certify a conflict of interest and withdraw as counsel as
he was aware that the plea offer of August 8, 2008 created a conflict of
interest. In his claim, the Defendant states that trial counsel relayed a plea
offer to him of 5 years prison, but that the Defendant would have to waive
any right to file ineffective assistance of counsel claims. He asserts that trial
counsel informed him that he could not offer advice as to whether the
Defendant should accept the offer as any ineffective assistance claims might
involve his office. In claim 12 of his Motion, the Defendant states that: “Mr.
Foster was aware that Defendant fully intended to argue ineffective
assistance of counsel during his direct appeal, and, that for that reason
Defendant had declined the State’s offers that required Defendant to waive
those claims.” Ultimately the Defendant entered a negotiated plea involving
8 years prison suspended upon completion of 10 years probation while
preserving his right to appeal the denial of his motions to suppress and his
right to file ineffective assistance of counsel claims.
The Defendant does not claim that trial counsel failed to convey a plea
offer. He does not claim any misadvice on the part of counsel. The
Defendant only claims that trial counsel should have withdrawn from the case
after conveying the plea offer to the Defendant. While the Defendant states
that trial counsel indicated he could not advise the Defendant on what to do
about the offer, the Defendant states that he “fully intended to argue
ineffective assistance of counsel during his direct appeal, and, for that reason
. . . declined the State’s offers that required Defendant to waive those
claims.” For the sake of argument, even assuming some ineffectiveness on
the part of counsel, the Court finds that the Defendant was not prejudiced by
trial counsel’s failure to withdraw. It is clear the Defendant did not intend to
accept any offer that included a waiver of his right to file ineffective
assistance of counsel claims. Ultimately the Defendant agreed to a sentence
with a suspended prison sentence while retaining his right to file ineffective
assistance of counsel claims. For the above reasons, claim 11 is DENIED.
(Dkt. 29, Ex. 67, pp. 1393-94.) The court also rejected claim 23 of Walker’s third amended
postconviction motion:
In claim 23, Defendant argues that his plea was involuntary as he was not
given the benefit of advice from conflict free counsel. Defendant claims that
Geoffrey Foster never told the Court that there was conflict of interest.
Defendant fails to state that he would not have entered a plea had he sought
advice or how he was prejudiced. Further, Defendant had the opportunity to
mention the conflict to the Court and did not even after the Court mentioned
the prior discord. Nor did he ever request to speak with another attorney.
Page 19 of 44
Defendant’s main concern was that he be able to file a direct appeal on the
denial of his pretrial motions. Based on the above, claim 23 is DENIED.
(Dkt. 29, Ex. 70, p. 1411) (court’s record citation omitted).
To establish that counsel was ineffective in connection with a conflict of interest, a
defendant must demonstrate that there was an actual conflict of interest, and that the
conflict adversely affected his lawyer’s performance. Lightbourne v. Dugger, 829 F.2d
1012, 1023 (11th Cir. 1987). See also United States v. Rodriguez, 982 F.2d 474, 477 (11th
Cir. 1993) (“A criminal defendant’s right to effective assistance of counsel is violated where
the defendant’s attorney has an actual conflict of interest that affects the defendant
adversely.”) (citing Cuyler v. Sullivan, 446 U.S. 335 (1980) and United States v. Petz, 764
F.2d 1390, 1392 (11th Cir. 1985)).
“An ‘actual conflict’ of interest occurs when a lawyer has ‘inconsistent interests.’”
Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999) (citing Smith v. White, 815 F.2d
1401, 1405 (11th Cir. 1987). A possible or speculative conflict is insufficient. See Cuyler,
446 U.S. at 350. “To prove adverse effect, a defendant needs to demonstrate: (a) that the
defense attorney could have pursued a plausible alternative strategy, (b) that this
alternative strategy was reasonable, and (c) that the alternative strategy was not followed
because it conflicted with the attorney’s external loyalties.” Reynolds v. Chapman, 253
F.3d 1337, 1343 (11th Cir. 2001). “If there is a guilty plea involved, [a] Court looks at
whether the attorney’s actual conflict adversely affected the defendant’s decision to plead
guilty.” Pegg v. United States, 253 F.3d 1274, 1278 (11th Cir. 2001). Once a defendant
establishes both an actual conflict and an adverse effect from the conflict, prejudice is
presumed and the defendant is entitled to relief. Lightbourne, 829 F.2d at 1023.
Page 20 of 44
Walker points to no record evidence to support his claim. He does not establish that
the State made multiple plea offers, what the terms of any such plea offers were, or that
Foster refused to advise him because he believed he had a conflict due to conditions about
appellate claims challenging counsel’s performance.7
Even assuming Walker established that Foster had an actual conflict, he has not
demonstrated any reasonable alternative action that Foster failed to pursue due to the
conflict. Advice contrary to counsel’s interests would have been to reject the plea offer or
offers described by Walker and proceed to trial, thereby preserving the ability to raise
claims on appeal challenging the trial court’s denial of Walker’s motions to dismiss counsel
due to counsel’s alleged deficiencies.8 But, as addressed at the change of plea hearing,
if Walker proceeded to trial on count one as charged, he faced a possible term of fifteen
years9 in prison. The State had substantial evidence of Walker’s guilt, and Walker does not
establish any defense or specific tactic that counsel could have utilized at trial. Walker fails
to show that advice to go to trial and risk a fifteen-year sentence on the hope that he might
obtain future appellate relief, as opposed to accepting a significantly lesser sentence
7
The Court takes note that at the change of plea hearing, Walker did not mention counsel’s alleged
inability to advise him when the court asked whether he was satisfied with counsel’s representation. (Dkt. 29,
Ex. 83, Vol. VII, p. 1180.)
8
Although Walker says the terms of the third plea offer would allow him to appeal the denial of the
court’s orders denying his motions to dismiss counsel, he concedes in his petition that such a claim is not
cognizable on direct appeal following the entry of a plea. See Fla. R. App. P. 9.140(b)(2)(A). Therefore,
Walker only could have preserved the ability to raise such a claim of trial court error on direct appeal had he
proceeded to trial.
9
It appears that Walker actually may have faced a thirty-year sentence had he been convicted at trial
because the State at least considered seeking habitual sentencing at some point. As addressed in Ground
Four, supra, the state court noted that Walker’s “fear that he would receive a thirty year sentence from the
Court if he went to trial and lost was justified as he was charged with a second degree felony and faced a
Habitual Felony Offender designation.” (Dkt. 29, Ex. 70, p. 1411.)
Page 21 of 44
through a plea agreement, was reasonable. As Walker has not demonstrated an actual
conflict that adversely affected counsel’s performance, he fails to meet his burden to show
ineffective assistance of counsel and fails to show that he was denied counsel in violation
of the Sixth Amendment. Similarly, he does not show that his plea was involuntary
because of this alleged ineffective assistance.
Walker has not demonstrated that the state court’s denial of his claims was contrary
to or an unreasonable application of clearly established federal law, or was based on an
unreasonable determination of the facts. Consequently, Ground Two warrants no relief.
Ground Three
Walker argues that he never formally entered a plea and that, instead, counsel
entered the plea on his behalf. He appears to raise two claims of error in connection with
this assertion. First, Walker contends that the state court had no authority to impose
sentence because he had not entered a plea. (Dkt. 3, p. 29.) Walker’s argument is
liberally interpreted as presenting a federal due process claim.
Before a district court can grant habeas relief to a state prisoner under § 2254, the
petitioner must exhaust all state court remedies that are available for challenging his
conviction, either on direct appeal or in a state postconviction motion.
28 U.S.C.
§ 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner
must give the state courts an opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition.”). See also Henderson v. Campbell, 353 F.3d
880, 891 (11th Cir. 2003) (“A state prisoner seeking federal habeas relief cannot raise a
federal constitutional claim in federal court unless he first properly raised the issue in the
state courts.”) (citations omitted). A state prisoner “‘must give the state courts one full
Page 22 of 44
opportunity to resolve any constitutional issues by invoking one complete round of the
State’s established appellate review process,’ including review by the state’s court of last
resort, even if review in that court is discretionary.” Pruitt v. Jones, 348 F.3d 1355, 1358-59
(11th Cir. 2003) (quoting O’Sullivan, 526 U.S. at 845).
To exhaust a claim, a petitioner must make the state court aware of both the legal
and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.
1998) (“Exhaustion of state remedies requires that the state prisoner ‘fairly presen[t] federal
claims to the state courts in order to give the State the opportunity to pass on and correct
alleged violations of its prisoners’ federal rights.’”) (quoting Duncan v. Henry, 513 U.S. 364,
365 (1995)). A federal habeas petitioner “shall not be deemed to have exhausted the
remedies available in the courts of the State . . . if he has the right under the law of the
State to raise, by any available procedure, the question presented.” Pruitt, 348 F.3d at
1358. The prohibition against raising an unexhausted claim in federal court extends to both
the broad legal theory of relief and the specific factual contention that supports relief.
Kelley v. Sec’y, Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).
The requirement of exhausting state remedies as a prerequisite to federal review is
satisfied if the petitioner “fairly presents” his claim in each appropriate state court and alerts
that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404
U.S. 270, 275-76 (1971). A petitioner may raise a federal claim in state court “by citing in
conjunction with the claim the federal source of law on which he relies or a case deciding
such a claim on federal grounds, or simply by labeling the claim ‘federal.’” Baldwin v.
Reese, 541 U.S. 27, 32 (2004).
The doctrine of procedural default provides that “[i]f the petitioner has failed to
Page 23 of 44
exhaust state remedies that are no longer available, that failure is a procedural default
which will bar federal habeas relief, unless either the cause and prejudice or the
fundamental miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d
1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner “must
demonstrate that some objective factor external to the defense impeded the effort to raise
the claim properly in state court.” Wright v. Hopper, 169 F. 3d 695, 703 (11th Cir. 1999).
See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must
demonstrate not only that the errors at his trial created the possibility of prejudice but that
they worked to his actual and substantial disadvantage and infected the entire trial with
error of constitutional dimensions. United States v. Frady, 456 U.S. 152, 167-70 (1982).
The petitioner must show at least a reasonable probability of a different outcome.
Henderson, 353 F.3d at 892; Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).
A fundamental miscarriage of justice occurs in an extraordinary case where a
constitutional violation has probably resulted in the conviction of someone who is actually
innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892. This
exception requires a petitioner’s “actual” innocence. Johnson v. Alabama, 256 F.3d 1156,
1171 (11th Cir. 2001). To meet this standard, a petitioner must show a reasonable
likelihood of acquittal absent the constitutional error. Schlup, 513 U.S. at 327.
Walker did not exhaust his federal claim because he did not raise the federal
dimension of the argument in state court. (Dkt. 29, Ex. 54, pp. 846-52.) Walker cannot
return to state court to present the ground in a successive Rule 3.800(a) motion. See Fla.
R. Crim. P. 3.800(a)(2). Therefore, the claim is procedurally defaulted. Walker does not
argue or establish that either exception applies to overcome the default. Notwithstanding
Page 24 of 44
the default, however, Walker is not entitled to relief. In his Rule 3.800(a) motion to correct
illegal sentence, Walker argued that the court lacked authority to sentence him because
he never entered a plea. (Dkt. 29, Ex. 54, p. 849.) The state court denied relief by
adopting the State’s response to this allegation, which provides:
The Defendant’s claim is refuted by the record and should be denied.
The record shows the Court, after first placing the defendant under
oath, informed him of the charges against him as well as the maximum
penalties. The Court then advised the defendant that the plea agreement
indicated the defendant was entering a plea of no contest to the charges in
anticipation the court was going to sentence him to 8 years in Florida State
Prison suspended upon his successful completion of 10 years of probation
which would include some drug conditions. The Court then asked the
defendant if that was his understanding and he answered “Yes, Sir.”
The record reflects Geoff Foster, Esquire, appeared for the defense.
Mr. Foster stated “. . . we are entering pleas of no contest for the record
specifically reserving the right to appeal the previous denials of his motions
to suppress and the renewed motion to suppress. . .” The Defendant also
stated he had been told he would still have the right to appeal. The Court
asked the defendant if he was satisfied with the counsel he received and the
work that had been done and the defendant answered in the affirmative.
The record reflects the Court conducted an extensive plea colloquy to
make sure the defendant understood the nature of the charges, maximum
penalties, the terms of the plea agreement, all the rights he was giving up by
the entry of the plea, and that his plea was freely, understandingly, and
voluntarily being entered.
The Court made a finding that the defendant understood and knew
what he was doing and that the plea was freely, knowingly, and voluntarily
entered. The Court advised it was accepting the plea.
The defendant now is claiming he never entered a plea. However, no
defendant could reasonably claim he did not enter a plea given the above
record. He is mistaken that there are certain magic words that must be
spoken. To the contrary, the record shows the defendant understood he was
entering a plea of no contest, understood the terms of the plea, said nothing
when counsel appearing on his behalf stated he was entering a plea, and
said nothing when the Court repeatedly referred to his plea during the
colloquy.
The [State] would note that the illegality of a sentence motion pursuant
to Rule 3.800(a) is not subject to an evidentiary hearing. The validity of such
a motion must be apparent from the court’s file. To the contrary, in this case,
the record shows the defendant is not entitled to relief.
Page 25 of 44
(Dkt. 29, Ex. 55, pp. 1221-23) (State’s record citations omitted).
Although the court did not directly ask him if he in fact was entering a plea, Walker
cites no authority providing that a defendant must say any particular words to effectuate
entry of a plea. The court asked Walker whether it was his understanding that he was
entering a no contest plea, and Walker replied that it was. Furthermore, the change of plea
hearing transcript, read in its entirety, reflects that Walker understood he was entering a
plea and that he voluntarily made the choice to do so. He voiced no objections, hesitation,
or confusion about entering his plea. Nor did he protest when the court announced that it
accepted his plea as freely and voluntarily entered. In addition, Walker signed a plea form
providing that he entered a plea of no contest to the counts as charged, that he would
receive an agreed-upon sentence, and that he acknowledged the rights he waived. (Dkt.
29, Ex. 2.) Walker does not show entitlement to relief.10
Walker’s second argument within Ground Three is that his attorney lacked authority
to enter a no contest plea on his behalf. He states that “it appeared that [Walker] was
confused as to the issues [he] would be allowed to raise on direct appeal, so to keep [him]
from discovering the truth the Public Defender injected himself in the plea colloquy and
entered a no contest plea on [his] behalf.” (Dkt. 1, p. 8.) This argument is interpreted as
raising the same ineffective assistance of counsel claim that Walker presented in claim 15
of his second amended postconviction motion, to which Walker refers in his federal habeas
petition. In that claim, he argued that counsel was ineffective for failing to object to his
10
In his third amended postconviction motion, Walker similarly alleged that the state court was without
jurisdiction to impose sentence because he did not formally enter a plea. (Dkt. 29, Ex. 69, p. 1350.) The state
court rejected this claim for the same reasons set forth in its denial of Walker’s Rule 3.800(a) motion. (Dkt.
29, Ex. 70, p. 1410.) To the extent Walker challenges this ruling, he has not shown that relief is warranted.
Page 26 of 44
being sentenced despite not having entered a plea or having had a trial. The state court
rejected his argument:
Claim 15 in Defendant’s Second Amended Motion argued that trial
counsel, Geoffrey Foster, was ineffective in failing to object to Defendant
being sentenced without entering a plea or being allowed a trial. Defendant
raised the claim that a plea was never entered in his 3.800(a) Motion for
Postconviction Relief. That Motion was denied in an Order dated March 15,
2011. The Order concluded, based on the State’s response, that the
Defendant had in fact entered a plea and that he entered a plea in lieu of
proceeding to trial. Based on the above, claim 15 is DENIED.
(Dkt. 29, Ex. 70, p. 1409.)
The record supports the denial of this claim. As addressed, the record is clear that
Walker entered a no contest plea in exchange for an agreed-upon sentence. Thus, Walker
has not established a basis upon which counsel could have objected. Furthermore, there
is no indication from the record of the change of plea hearing that Walker was confused
about the issues that he reserved the right to raise on direct appeal. It was apparent that,
as part of the agreement, Walker reserved the right to challenge on appeal the dispositive
issue of the court’s denial of his motion to suppress. Walker fails to show that the state
court’s rejection of his claim was contrary to or an unreasonable application of clearly
established federal law, or was based upon an unreasonable determination of the facts.
Walker is not entitled to relief on Ground Three.
Ground One
In Ground One, Walker alleges ineffective assistance of counsel in connection with
his motions to suppress.
Page 27 of 44
I.
Walker’s Motion To Suppress
Through his attorney at the time, Ronald Toward, Walker filed a motion to suppress
physical evidence and admissions on July 14, 2006. The motion alleged that evidence was
obtained as a result of an illegal warrantless seizure and illegal investigatory detention in
violation of the Fourth and Fourteenth Amendments. (Dkt. 29, Ex. 83, Vol. VI, pp. 100105.) The court conducted an evidentiary hearing, at which Polk County Sheriff’s Deputy
Brad Gallagher testified about the events leading to Walker’s arrest.
Gallagher conducted a traffic stop at 2:52 a.m. on December 17, 2005, after he saw
Walker make a right turn at a red light without stopping. (Dkt. 29, Ex. 83, Vol. VII, pp. 119798.) Gallagher made contact with Walker and waited for him to get his information from the
locked glove box. (Id., pp. 1200-01.) That Walker seemed “very protective” of the glove
box raised Gallagher’s suspicions about its contents. (Id., p. 1201.) Walker re-locked the
glove box after retrieving the documents. (Id.) Gallagher, who performed traffic stops
“continuously all night long,” believed it “was very unusual for this to occur.” (Id.)
Walker gave Gallagher his registration and Florida identification card. (Id.) Walker
did not give Gallagher proof of insurance. (Id.) Walker stated that his driver’s license was
valid but that he did not have it with him. (Id.) Gallagher returned to his car and looked up
Walker’s information, verifying that Walker had a valid driver’s license. (Id., p. 1202.)11
Because of his suspicions about the potential contents of the glove box, Gallagher asked
Walker for permission to search the car. (Id., pp. 1202-03.) Walker did not consent to a
search of the car’s interior, but agreed that Gallagher could search the trunk and look
11
Gallagher stated that he “was able to run Mr. Walker through FCIC, through DLIRs and stuff.” (Dkt.
29, Ex. 83, Vol. VII, p. 1202.)
Page 28 of 44
through the car’s windows with a flashlight. (Id., p. 1203.) Walker refused Gallagher’s
request to open the glove box as part of the flashlight search. (Id., pp. 1203-04.)
Gallagher requested a canine unit over the radio. (Id., p. 1204.) Walker found his
proof of insurance. (Id.) Gallagher returned to his car to verify Walker’s insurance
information. (Id.) Gallagher was about to begin writing Walker a citation but realized he had
run out of citation forms. (Id., pp 1204-05.) “As soon as [Gallagher] noticed” this, the
canine unit with Deputy Leslie and another unit with Deputy Marvin arrived. (Id., p. 1205.)
Gallagher obtained a citation form from Marvin and started writing the citation. (Id., p.
1206.)
As Leslie conducted the dog sniff, Gallagher finished writing the citation. (Id., p.
1207.) After Leslie’s dog alerted to Walker’s vehicle, the deputies found $3,050 in cash in
the glove box, cocaine in the driver’s seat, and cocaine and paraphernalia on Walker’s
person. (Id., pp. 1207-08.) Thirteen minutes passed between the time Gallagher stopped
Walker and Leslie’s arrival with the dog. (Id., p. 1206.)
The state trial court denied Walker’s motion to suppress on September 20, 2006.
The order, signed by Judge Alcott, found “the warrantless search of the vehicle to be
reasonable as based on a valid traffic stop and the probable cause furnished by the canine
alert that occurred without unreasonable delay.” (Dkt. 29, Ex. 83, Vol. VI, pp. 1008-09.)
On October 20, 2006, Walker deposed Gallagher during the civil forfeiture case
involving his vehicle, in which Walker proceed pro se.12 Based in part on the testimony
12
Section 932.702(1), Fla. Stat., provides that it is unlawful to “transport, carry, or convey any
contraband article in, upon, or by means of any vessel, motor vehicle, or aircraft.” Florida law provides for the
seizure and forfeiture of motor vehicles used for this purpose. See § 932.703, Fla. Stat.
Page 29 of 44
adduced during that deposition, on December 12, 2006, Toward filed a “Renewed and
Supplemental Motion to Suppress Evidence and Admissions,” in which he moved the court
to reconsider its denial of the motion to suppress. (Id., pp. 1012-19.) He argued that
Gallagher’s October 2006 testimony showed that Gallagher abandoned the traffic
investigation and engaged in a detention of Walker calculated to result in a search. (Id.,
pp. 1017-18.) Toward withdrew from the case at some point after filing the motion for
rehearing. Candy Murphy, who was then appointed to represent Walker, filed another
motion to suppress on April 30, 2007, and adopted Toward’s December 2006 renewed
motion to suppress. (Dkt. 4, Ex. 5.)
In addressing the outstanding suppression issues at an August 24, 2007 hearing,
a successor judge, Judge Selph, took the matter concerning Gallagher’s testimony under
advisement. (Dkt. 29, Ex. 83, Vol. VI, pp. 1047-49.) At a September 12, 2007 hearing,
Judge Selph stated that he had read the transcript from the civil forfeiture case and listened
to the recording of the original motion to suppress hearing. (Id., pp. 1066-67.) He rejected
Walker’s request to reconsider the denial on the basis of Gallagher’s civil forfeiture
testimony. (Id., pp. 1068-70; Vol. VII, pp. 1071-75.) Suppression issues were again
addressed at hearings on January 4, 2008, and March 25, 2008, before a second
successor judge, Judge Jacobsen.
At both hearings, Judge Jacobsen declined to
reconsider the previous suppression rulings. (Dkt. 29, Ex. 83, Vol. VII, pp. 1104, 1129-31,
1159-60.)
II.
Walker’s Habeas Argument
In his federal habeas petition, Walker alleges that counsel “failed to investigate,
develop, and bring impeachment evidence before the Court during hearings on the motion
Page 30 of 44
to suppress.” (Dkt. 1, p. 5.) Walker claims that he uncovered this “impeachment evidence”
during his own investigation in the civil forfeiture case.
Walker’s voluntary plea waives any claims of constitutional violations prior to the
plea. See Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“[A] guilty plea represents a
break in the chain of events which has preceded it in the criminal process. When a criminal
defendant has solemnly admitted in open court that he is in fact guilty of the offense with
which he is charged, he may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”).
However, Walker may present a claim of ineffective assistance of trial counsel if
such a claim challenges the voluntariness of the plea itself. See Wilson v. United States,
962 F.2d 996, 997 (11th Cir. 1992) (“A defendant who enters a plea of guilty waives all
nonjurisdictional challenges to the constitutionality of the conviction, and only an attack on
the voluntary and knowing nature of the plea can be sustained.”). Stano v. Dugger, 921
F.2d 1125, 1150-51 (11th Cir. 1991) (“The Court allows only challenges to the voluntary
and intelligent entry of the plea if a convicted defendant can prove ‘serious derelictions’ in
his counsel’s advice regarding the plea.”) (citation omitted).
Walker alleges in his
memorandum, similar to his argument in Ground Four, that he was forced into entering the
plea due to counsel’s performance. (Dkt. 3, p. 24.) Accordingly, this claim is interpreted
as invoking the voluntariness of his plea. Walker presents three specific matters that he
alleges counsel should have addressed during the motion to suppress hearing. Each
allegation is discussed below.
A.
Walker asserts that counsel was ineffective for failing to locate and present records
showing that Gallagher obtained Walker’s criminal history at some point after he initiated
Page 31 of 44
the stop. Walker contends that his criminal history, not Gallagher’s concerns about the
glove box, was the real reason Gallagher called for a canine unit.13 In support, Walker
states that a Florida Department of Law Enforcement Transaction Archive Report shows
that Gallagher requested and obtained Walker’s criminal records at 2:55 a.m. on December
17, 2005, three minutes after he initiated the stop. (Dkt. 3, p. 23.)
This allegation is construed as raising the same argument presented in claim 1 of
Walker’s postconviction motion, in which he asserted that Toward, who represented him
at the motion to suppress hearing, should have obtained and presented this information.
The state court rejected Walker’s argument:
In claim 1, the Defendant asserts that trial counsel, Ronald Toward[ ], was
ineffective in failing to investigate whether Deputy Brad Gallagher ran the
Defendant through the Crime Center Computer and raise the issue as part
of Defendant’s motion to suppress. In his Motion, the Defendant argues that
Deputy Gallagher ran a check of the Defendant’s prior criminal record when
he returned to his vehicle after stopping the Defendant for a traffic infraction
and requesting the Defendant’s driver’s license and registration. The
Defendant argues that discovery of the Defendant’s prior criminal history was
the reason Deputy Gallagher called for a K-9 and not the deputies suspicions
concerning the Defendant’s glove box.
...
The record reflects that [Toward] filed a motion to suppress the
13
Gallagher did not expressly state the reason that he called for a canine unit, but testified that he did
so after requesting to look at the glove box with his flashlight:
I went around to the passenger’s side of the vehicle and started shining my light through the
window still on the outside of the vehicle like he had said I could do. I got to the glovebox
which was my initial suspicion in the first place, and I asked him if he could just open up his
glovebox so I could shine my light in there. He said that - - Mr. Walker stopped and said - he said he would open anything that I ordered him to. That’s when I stopped him and told
him - - I said, “I’m not ordering you to do anything.” I said, “I’m asking you for consent to
search your vehicle.” At that point I started waiting for a “yes” or “no” answer from Mr.
Walker. Mr. Walker then said no, he didn’t want me to search his vehicle.
At that time I requested K-9 over the radio. I walked with Mr. Walker back to the driver’s side
of the vehicle . . .
(Dkt. 29, Ex. 83, Vol. VII, pp. 1203-04.)
Page 32 of 44
evidence seized as a result of the traffic stop. After a hearing on the motion
to suppress, the trial court issued its order denying the Defendant’s motion
to suppress. Deputy Gallagher’s testimony and the trial court’s findings
indicate that the K-9 unit arrived within a short time period of the initial stop
of the Defendant’s vehicle. During Deputy Gallagher’s contact with the
Defendant, he conducted a proper investigation into the validity of the
operator’s driver’s license status as well as a warrants check. Before Deputy
Gallagher could complete this investigation, and before he could issue any
citations, another officer arrived on the scene and conducted a sniff test of
the exterior of the car with her dog. Such a test, conducted during a traffic
stop, is completely lawful and does not even implicate the Fourth
Amendment. See United States v. Place, 462 U.S. 696, 103 S.Ct. 2637
(1983) (The use of a sniff dog constitutes neither a search nor a seizure.);
McNeil v. State, 656 So. 2d 1320 (Fla. 5th DCA 1995) (A driver who is
stopped for a citation can be subjected to a sniff-out dog so long as it’s done
within the time required to issue the citation); and State v. Williams, et. al.,
565 So.2d 714, 715 (Fla. 3d DCA 1990) (Three minutes between the initial
stop and the time a dog sniff was started was de minimus intrusion into the
defendant’s liberty interest. “Thus their Fourth Amendment rights were
certainly not infringed.”). [See also Sands v. State, 753 So. 2d 630 (Fla. 5th
DCA 2000)]
The subsequent alert by the dog to the presence of narcotics within
the vehicle constituted sufficient probable cause to search the vehicle without
a warrant. See Saturino-Boudet v. State, 682 So. 2d 188, 193 (Fla. 3d DCA
1996) (“A sniff dog’s ‘alert’ can constitute probable cause to conduct a
search.”) Once probable cause existed to search the vehicle, no warrant was
needed to authorize the search. Deputy Gallagher’s reasons for or
motivation in initiating a dog sniff of the vehicle are immaterial here. Even if
he had become aware of the Defendant’s prior history, the Fourth
Amendment is not implicated if the dog sniff is properly conducted within the
time period evidenced in this case and as found in the trial court’[s] denial of
the Defendant’s motion to suppress. Therefore, the Court finds that even if
it had been shown that Deputy Gallagher was aware of the Defendant’s prior
history the result would not have been different and the second prong of
Strickland v. Washington, 466 U.S. 668 (1984) has not been met.
Accordingly, claim 1 is DENIED.
(Dkt. 29, Ex. 67, pp. 1385-87) (court’s record citations omitted).14
To the extent Walker argues that information showing Gallagher obtained his
14
When Walker repeated this allegation in claim 16 of his third amended postconviction motion, the
state court denied it for the same reasons. (Dkt. 29, Ex. 70, p. 1410.) To the extent Walker challenges this
ruling, he has not met his burden under AEDPA and is not entitled to relief.
Page 33 of 44
criminal history reflects an inconsistency in Gallagher’s statements about why he called for
a canine unit, and thus would have shown him to be an untrustworthy witness, his claim is
entirely speculative. Walker has not demonstrated that such information would have
caused the court to discredit Gallagher’s testimony and grant the motion. Speculation
cannot sustain a claim of ineffective assistance of counsel. See Tejada v. Dugger, 941
F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot
support an ineffective assistance of counsel claim).
Nor does Walker show that information about Gallagher’s motive in calling for a
canine unit would have provided a basis to challenge the validity of the search under the
Fourth Amendment, which protects against unreasonable searches and seizures. “When
police stop a motor vehicle, even for a brief period, a Fourth Amendment ‘seizure’ occurs.”
United States v. Whitlock, 493 Fed. App’x 27, 30 (11th Cir. 2012) (citing Whren v. United
States, 517 U.S. 806, 809-10 (1996)). Limits apply to an officer’s conduct during a traffic
stop:
Under Terry [v. Ohio], an officer’s actions during a traffic stop must be
“reasonably related in scope to the circumstances which justified the
interference in the first place.” 392 U.S. at 20, 88 S.Ct. 1868 (emphasis
added). Furthermore, the duration of the traffic stop must be limited to the
time necessary to effectuate the purpose of the stop. United States v. Pruitt,
174 F.3d 1215, 1219 (11th Cir. 1999). The traffic stop may not last “any
longer than necessary to process the traffic violation” unless there is
articulable suspicion of other illegal activity. United States v. Holloman, 113
F.3d 192, 196 (11th Cir. 1997).
United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001).
“Under the exclusionary rule, evidence obtained in an encounter that is in violation
of the Fourth Amendment, including the direct products of police misconduct and evidence
derived from the illegal conduct, or ‘fruit of the poisonous tree,’ cannot be used in a criminal
Page 34 of 44
trial against the victim of the illegal search and seizure.” United States v. Perkins, 348 F.3d
965, 969 (11th Cir. 2003) (citing United States v. Terzado-Madruga, 897 F.2d 1099, 1112
(11th Cir. 1990)).
Walker has not shown that Gallagher’s obtaining his criminal history during the
course of the traffic stop was improper. “So long as the computer check does not prolong
the traffic stop beyond a reasonable amount of time under the circumstances of the stop,
the inclusion of a request for criminal histories does not constitute a Fourth Amendment
violation.” Purcell, 236 F.3d at 1279. “It is well established that officers conducting a traffic
stop may ‘take such steps as [are] reasonably necessary to protect their personal safety.’”
Id. at 1277 (quoting United States v. Hensley, 469 U.S. 221, 235 (1985)). “Many courts
have recognized that knowledge of the criminal histories of a vehicle’s occupants will often
be relevant to that safety. . . . The request for criminal histories as part of a routine
computer check is justified for officer safety.” Id. at 1278. Walker does not show that
reviewing criminal history of vehicle occupants during a traffic stop was not routine for
Gallagher.
Furthermore, Walker does not establish that Gallagher’s reason for calling the
canine unit was relevant to the legality of the dog sniff and subsequent seizure of
contraband. A dog sniff is generally permissible during a traffic stop as long as it does not
unreasonably add to the duration of the stop. “[A] dog sniff that does not unreasonably
prolong the traffic stop is not a search subject to the Fourth Amendment, and based on this
principle, the Supreme Court has ‘rejected the notion that the shift in purpose from a lawful
traffic stop into a drug investigation was unlawful because it was not supported by any
reasonable suspicion.’” Whitlock, 493 Fed. App’x at 31 (quoting Muehler v. Mena, 544 U.S.
Page 35 of 44
93, 101 (2005)). See also Illinois v. Caballes, 543 U.S. 405, 409 (2005) (“[T]he use of a
well-trained narcotics-detection dog–one that does not expose noncontraband items that
otherwise would remain hidden from public view–during a lawful traffic stop, generally does
not implicate legitimate privacy interests.”) (internal quotation marks and citation omitted);
Rodriguez v. United States, __ U.S. __, 135 S.Ct. 1609, 1616 (2015) (“The critical question
. . . is not whether the dog sniff occurs before or after the officer issues a ticket . . . but
whether conducting the sniff prolongs–i.e., adds time to–the stop.”) (internal quotation
marks omitted).
Gallagher’s testimony shows that the drug dog arrived and performed a sniff during
the course of the traffic stop.
Gallagher was checking Walker’s insurance
information—which Walker did not initially provide–when the dog arrived, and the sniff
occurred as Gallagher wrote Walker’s traffic citation.15 Walker does not show that the
traffic stop was unreasonably extended due to the dog sniff, or that the reason for
requesting the dog sniff in these circumstances had any bearing on the legality of the
subsequent search and seizure. Walker has not shown that counsel was ineffective for
failing to uncover and present this information during the motion to suppress hearing. Nor
does he show a reasonable probability that the motion to suppress would have been
granted on this basis and that he therefore would have chosen to proceed to trial rather
15
Walker does not establish that Gallagher’s request for consent to search Walker’s car unreasonably
prolonged the traffic stop. See Purcell, 236 F.3d at 1281 (“An officer conducting a routine traffic stop may
request consent to search the vehicle.”) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973) and
United States v. Simmons, 172 F.3d 775, 778 (11th Cir. 1999)). Nor does he show that Gallagher’s check of
his registration, license, or insurance unreasonably prolonged the traffic stop. See Rodriguez, 135 S.Ct. at
1615 (“Beyond determining whether to issue a traffic ticket, an officer’s mission includes ordinary inquiries
incident to the traffic stop. Typically such inquiries involve checking the driver’s license, determining whether
there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of
insurance.”) (internal quotation marks, brackets, and citations omitted).
Page 36 of 44
than enter his plea. Walker 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.
B.
Walker argues that counsel was ineffective for failing to investigate what Gallagher
could see inside the glove box during the stop. Gallagher testified at the motion to
suppress hearing that Walker obtained some documentation from inside the locked glove
box, and he was suspicious of what was inside the glove box. Walker appears to argue
that, based on videos Walker later took to recreate Gallagher’s actions, Gallagher must
have been able to see everything inside the glove box. Walker theorizes that this shows
Gallagher could not have been uncertain about the glove box’s contents and his decision
to call the canine unit was based on Walker’s criminal history.
The state court rejected this claim when Walker raised it in his postconviction
motion:
In claim 2, the Defendant asserts that [Toward] was ineffective in
failing to investigate whether Deputy Brad Gallagher could see into the
Defendant’s glove box during a traffic stop of the Defendant and raise the
issue as part of Defendant’s motion to suppress. Again, in this claim the
Defendant remains focused on Deputy Gallagher’s reasons for initiating a
dog sniff of the Defendant’s vehicle. In this claim, the Defendant is focusing
on the extent to which Deputy Gallagher could actually observe the
Defendant’s glove box in order to show that the true reason for [the] dog sniff
was Deputy Gallagher’s knowledge of the Defendant’s prior record. For the
reasons as cited regarding claim 1, the Court finds claim 2 to be without
merit. Accordingly, claim 2 is DENIED.
(Dkt. 29, Ex. 67, p. 1387.)
Walker raised another claim concerning the glove box and video, which the state
court denied:
In claim 6, the Defendant asserts that trial counsel, Candy Murphy,
Page 37 of 44
was ineffective in failing to review a video related to a view of the Defendant’s
glove box and raise the issue as part of Defendant’s motion to suppress. In
this claim, the Defendant asserts that he had had a video produced that
indicates that Deputy Gallagher could have seen in the Defendant’s glove
box while standing outside the vehicle while observing the Defendant retrieve
his identification from the glove box. Apparently, the Defendant’s point is that
such video would refute Deputy Gallagher’s contention that he was
suspicious of what might be in the glove box. This apparently would support
the Defendant’s contention that Deputy Gallagher abandoned his traffic
investigation and detained the Defendant without probable cause to
investigate his suspicion that the Defendant had drugs in his vehicle based
on the Defendant’s past criminal history.
As with claims 1 and 2, above, the Court finds claim 6 to be without
merit. Accordingly, claim 6 is DENIED.
(Dkt. 29, Ex. 67, p. 1390.)
Again, any claim that information about Gallagher’s motivations would have caused
the court to find his testimony not credible and therefore grant the motion to suppress is too
speculative to support an ineffective assistance claim. See Tejada, 941 F.2d at 1559. And,
as discussed, Walker fails to show that Gallagher’s motive in requesting a canine unit
would have supported a Fourth Amendment claim. Walker has not carried his burden to
establish that counsel performed deficiently or that he suffered resulting prejudice. He
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.
C.
Walker contends that counsel was ineffective for failing to present evidence that
Gallagher abandoned the traffic stop before the police dog arrived, and therefore detained
Walker without probable cause. Walker maintains that he was able to develop this
information when, proceeding pro se in the civil forfeiture proceeding, he deposed
Gallagher. A portion of what appears to be Gallagher’s deposition transcript provides:
Page 38 of 44
Q.
So this happened after we walked around the vehicle with the
flashlight, I had gotten back in the vehicle?
A.
No. This was the whole entire incident. I started on your driver’s side
talking to you while you were inside your car. You got out of your vehicle,
opened up your trunk. We saw that there was nothing the trunk besides the
speaker system. We continued then to the passenger side of your vehicle,
where I asked you about the glove box, and that’s where the search with the
flashlight ended.
Q.
And at this time, would you consider yourself - - what would you
consider yourself doing at this point?
A.
Looking in your vehicle with my flashlight, which is exactly what you
told me I could do.
Q.
Would you consider this part of the investigation of the traffic infraction
or a new investigation?
A.
It was investigation to the contents of the glove box, which was my
initial worry or suspicion about the vehicle itself because you were protective
of the contents.
Q.
So it would have been an investigation outside of the traffic violations?
A.
Outside of the - -
Q.
Running the red light?
A.
- - failure to stop, that’s correct. Could be open containers, could be
anything else in the vehicle that you could see from the outside of the
vehicle.
(Dkt. 29, Ex. 83, Vol. VI, pp. 1010-11.)
The state court denied Walker’s claim that counsel was ineffective for failing to
uncover and present such evidence:
In claim 3, the Defendant asserts that [Toward] was ineffective in failing to
investigate whether Deputy Brad Gallagher abandoned his traffic
investigation and raise the issue as part of Defendant’s motion to suppress.
In this claim, the Defendant points to a portion of a transcript of a hearing in
a civil case involving the forfeiture of property belonging to the Defendant.
In a pro se examination of Deputy Gallagher the Defendant questioned the
Page 39 of 44
deputy concerning his purpose in wanting to search the Defendant’s vehicle.
The Defendant’s argument appears to be that Deputy Gallagher abandoned
his traffic investigation and detained the Defendant without probable cause
to investigate his suspicion that the Defendant had drugs in his vehicle based
on the Defendant’s past criminal history.
The difficulty with the Defendant’s argument, as explained with regard
to claim 1, is that the traffic top did not appear to have been unreasonably
prolonged regardless of Deputy Gallagher’s reasons for employing a K-9.
Probable cause was not needed to employ the K-9. A relatively short period
of time expired while waiting for the K-9 and Deputy Gallagher was engaged
in attempting to write a traffic citation during the period he was waiting for the
K-9. The Defendant was ultimately given a citation for his traffic infraction.
The Court finds the Defendant’s claim is without merit. Accordingly, claim
3 is DENIED.
(Dkt. 29, Ex. 67, pp. 1387-88.)
The record supports the state court’s denial of this claim. Despite Gallagher’s later
description of two different matters with which he was concerned–the traffic infraction and
the contents of the glove box–the stop for the traffic citation was ongoing and had not been
unreasonably delayed when Gallagher conducted the trunk search and the flashlight
search. Furthermore, the record shows that Murphy presented Gallagher’s October 2006
testimony to the court during the consideration of Walker’s motions to rehear and
reconsider the court’s denial of the motion to suppress. Upon reviewing the record of the
motion to suppress hearing and the deposition, however, the court did not find any basis
to reconsider the motion to suppress. (Dkt. 29, Ex. 83, Vol. VI, pp. 1068-70; Vol. VII, pp.
1071-75.)
Walker has not shown that the state court’s rejection of his claim was contrary to or
an unreasonable application of clearly established federal law, or was based on an
Page 40 of 44
unreasonable determination of the facts. Walker is not entitled to relief on Ground One.16
Ground Five
Walker represented himself during violation of probation proceedings. He asserts
that, on June 21, 2010, at the evidentiary hearing on an allegation of violation and
subsequent sentencing, the court erred by allowing him to continue to proceed pro se
without offering him counsel. Walker’s claim is interpreted as raising the allegation
presented in claim 19 of his third amended postconviction motion. In that ground, he
argued that the trial court’s failure to renew the offer of counsel or conduct a Faretta17
hearing at the violation of probation hearing resulted in his pro se representation “without
a valid waiver of his Sixth Amendment right to counsel and deprived him of a fair
opportunity to be heard under the Fourteenth Amendment.” (Dkt. 29, Ex. 69, p. 1364.) The
state court rejected Walker’s claim:
In claim 19, Defendant alleged that he was denied assistance of counsel at
his evidentiary hearing held on June 21, 2010. Defendant claims that his
sentence for a violation of probation was imposed without assistance of
counsel or a valid waiver of counsel. The State responded that Defendant’s
claim should have been raised on direct appeal. The record indicates that
the Defendant filed a Notice of Appeal, but then moved to voluntarily dismiss
said appeal.
After review of the State’s argument, citations, and attachments to its
Response, adopted and incorporated herein, the Court agrees.
(Dkt. 29, Ex. 72) (court’s record citation omitted).
The State’s response, adopted by the postconviction court, provides:
The Defendant now claims that he was denied counsel at his hearing and
16
To the extent Walker’s claim involves the argument raised in ground six of his second amended
postconviction motion, in which he alleged that the video he made concerning Gallagher’s view into the glove
box would have shown Gallagher abandoned the traffic stop, Walker fails to show entitlement to relief.
17
Faretta v. California, 422 U.S. 806 (1975).
Page 41 of 44
subsequent sentencing. This claim should be summarily denied. See Bundy
v. State, 497 So.2d 1209 (Fla. 1986) “we find that appellant’s fourth claim
[denial of a proper Faretta hearing] could have been raised on direct appeal
and is therefore barred from consideration.” Id., at 1210. See also Kilpatrick
v. State, 658 So.2d 1158 (Fla. 2nd DCA 1995). The Defendant’s claim is not
properly addressed in a Rule 3.850 motion for postconviction relief as it could
have been raised on direct appeal. Issues that could have been litigated
through direct appeal are not cognizable through collateral attack. See Smith
v. State, 445 So. 2d 323, 325 (Fla. 1983).
(Doc. 29, Ex. 71, pp. 2-3.)
A federal habeas petitioner’s failure to present a claim in accordance with state
procedural rules generally precludes federal habeas review of the claim. Coleman v.
Thompson, 501 U.S. 722(1991); Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir.2001)
(“[C]laims that have been held to be procedurally defaulted under state law cannot be
addressed by federal courts.”).
“However, a state court's rejection of a federal
constitutional claim on procedural grounds will only preclude federal review if the state
procedural ruling rests upon [an] ‘independent and adequate’ state ground.” Judd v. Haley,
250 F.3d 1308, 1313 (11th Cir.2001). A state court’s procedural ruling constitutes an
independent and adequate state rule of decision if (1) the last state court rendering a
judgment in the case clearly and expressly states that it is relying upon a state procedural
rule to resolve the federal claim without reaching the merits of the claim, (2) the state
court’s decision rests solidly on state law grounds and is not intertwined with an
interpretation of federal law, and (3) the state procedural rule is not applied in an “arbitrary
or unprecedented fashion,” or in a “manifestly unfair manner.” Id. (citing Card v. Dugger,
911 F.2d 1494 (11th Cir.1990)).
Florida courts regularly follow the rule that claims of trial court error are properly
raised on direct appeal. See Bruno v. State, 807 So.2d 55, 63 (Fla. 2001) (“[T]he main
Page 42 of 44
question on direct appeal is whether the trial court erred. . . . A claim of trial court error
generally can be raised on direct appeal.”). Florida courts also routinely observe the rule
that issues appropriate for direct appeal are not cognizable in a postconviction motion. See
Perez v. State, 959 So.2d 408, 411 (Fla. 3d DCA 2007) (“Perez’s . . . claims are all claims
Perez could have raised on direct appeal and, therefore, [are] not cognizable under rule
3.850 . . . and are procedurally barred); Suto v. State, 422 So.2d 924, 924 (Fla. 2d DCA
1982) (“Issues which were or could have been raised on a direct appeal are not cognizable
grounds for relief under rule 3.850.”).
The state court resolved this ground by applying an independent and adequate state
procedural bar. Therefore, it is procedurally defaulted and may only be considered if
Walker establishes that either the cause and prejudice or fundamental miscarriage of
justice exception applies to overcome the default. See Harris v. Reed, 489 U.S. 255, 262
(1989) (“[A]n adequate and independent finding of procedural default will bar federal
habeas review of the federal claim, unless the habeas petitioner can show” one of these
exceptions). Walker does not demonstrate that either exception applies. Consequently,
Ground Five is barred from review and cannot provide relief.
It is therefore
ORDERED that Walker’s petition for writ of habeas corpus (Dkt. 1) is DENIED. The
Clerk is directed to enter judgment against Walker and to close this case.
It is further ORDERED that Walker is not entitled to a certificate of appealability. A
petitioner does not have absolute entitlement to appeal a district court’s denial of his
habeas petition. 28 U.S.C. § 2253(c)(1). A district court must first issue a certificate of
Page 43 of 44
appealability (COA). Id. “A [COA] may issue ... only if the applicant has made a substantial
showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make such a
showing, Walker “must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.
4 (1983)). Walker has not made this showing. Finally, because Walker is not entitled to
a COA, he is not entitled to appeal in forma pauperis.
ORDERED in Tampa, Florida, on February 7, 2017.
Copy to:
Romerio La’Tee Walker
Counsel of Record
Page 44 of 44
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