Conaway v. Secretary, Department of Corrections et al

Filing 21

OPINION AND ORDER. Conaway's petition for writ of habeas corpus 1 is DENIED. The Clerk is directed to enter judgment against Conaway and to close this case. It is further ORDERED that Conaway 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 3/20/2017. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RONALD L. CONAWAY,
Petitioner,
v.

Case No. 8:13-cv-3260-T-36JSS

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
______________________________/
ORDER
Petitioner Ronald L. Conaway, a state of Florida prisoner proceeding pro se, filed
a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1). He challenges his
convictions entered by the Circuit Court for the Tenth Judicial Circuit, Polk County, Florida,
in 2007. Respondent filed a response (Dkt. 11), which raises no challenge to the petition’s
timeliness. Conaway filed a reply (Dkt. 15). Upon review, the petition must be denied.
PROCEDURAL HISTORY
A jury convicted Conaway of robbery with a firearm, false imprisonment with a
firearm, and three counts of aggravated assault with a firearm. (Dkt. 12, Ex. 3, Verdict
Form.) He was sentenced to life imprisonment for robbery with a firearm, fifteen years in
prison for false imprisonment with a firearm, and five years in prison for each count of
aggravated assault with a firearm. (Dkt. 12, Ex. 3, Judgment and Sentence.) The state
appellate court per curiam affirmed his convictions and sentences. (Dkt. 12, Ex. 7.)
Conaway filed a motion for postconviction relief under Florida Rule of Criminal

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Procedure 3.850. (Dkt. 12, Ex. 9.) The court summarily denied some claims and granted
an evidentiary hearing on one claim. (Dkt. 12, Exs. 10, 13.) Following the evidentiary
hearing, the state court entered a final order denying Conaway’s postconviction motion.
(Dkt. 12, Ex. 14.) The state appellate court per curiam affirmed the order of denial. (Dkt.
12, Ex. 21.)
FACTS1
Ulysses “Jim” Valladares worked as the manager at the apartment complex where
he lived. He handled evictions and collected rent. On the evening of November 6, 2006,
he was sitting on the porch outside his apartment with his friend Darrell Marvicsin when
Conaway joined them. Valladares’ daughters Sara and Seleste planned to arrive to
celebrate his birthday that night.
After his daughters arrived with their children and Valladares said goodbye to
Marvicsin and Conaway, Conaway pulled out a gun and said no one was leaving.
Conaway made statements indicating he was upset about his job and the eviction of his
friend from the apartment complex. He also made comments about getting even and “pay
back.” He waved the gun around and pointed it at the others. Sara, Seleste, and their
children got into a car. Still holding the gun, Conaway stood near the car. He eventually
agreed to let them leave but told them that if they called police, he would shoot Valladares,
Marvicsin, and any police officer that arrived. Sara and Seleste left with their children.
At some point, Conaway fired two shots from the gun. Apparently responding to a
police call from an unknown person reporting the gunshots, Sergeant Christopher Gilbert

1

This factual summary is derived from the trial transcript and Conaway’s appellate brief.

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arrived at the apartment. Worried about Conaway’s earlier statement that he would shoot
any officers who arrived, Valladares denied hearing any gunshots. Gilbert left the scene.
When Sara and Seleste returned to check on Valladares, Conaway again pointed
the gun at them, and kicked Seleste’s car. The two women left. According to Valladares,
Conaway went inside Valladares’ apartment with Valladares and Marvicsin. Conaway said
he needed money and, because Conaway was armed, Valladares provided him with $41
from his wallet. Conaway also took a bag containing about $800 in rent money Valladares
had collected. Valladares described his belief that he could not leave the apartment and
that he was held there against his will because Conaway was armed. Conaway remained
in the apartment for hours, leaving at some point the next morning. When Conaway opened
the door to the apartment, Valladares pushed him out and locked the door behind him.
Marvicsin later left the apartment.
Upon his arrest, Conaway told Detective Kenneth Powers that “Darrell” brought the
gun to Valladares’ apartment and that Valladares discharged the gun. Conaway stated that
he held the gun but denied discharging it or threatening anyone with it. At trial, Conaway
called Dr. Henry Dee. Dr. Dee testified to his conclusion that Conaway was insane at the
time of the offenses.
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
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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
§ 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
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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
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 Conaway’s convictions and sentences and the
denial of his postconviction motion in per curiam decisions without written opinions. These
decisions warrant deference under Section 2254(d)(1) because “the summary nature of a
state court’s decision does not lessen the deference that it is due.” Wright v. Moore, 278
F.3d 1245, 1254 (11th Cir.), reh’g and reh’g en banc denied, 278 F.3d 1245 (2002), cert.
denied sub nom. Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at 99
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(“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 state-law procedural principles to the contrary.”).
Review of the state court decision is limited to the record that was before the state
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. Conaway 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).
EXHAUSTION OF STATE COURT REMEDIES; PROCEDURAL DEFAULT
Before a district court can grant habeas relief to a state prisoner under § 2254, the
petitioner must exhaust all state court remedies that are available for challenging his
conviction, either on direct appeal or in a state postconviction motion.

28 U.S.C.

§ 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner
must give the state courts an opportunity to act on his claims before he presents those
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claims to a federal court in a habeas petition.”). See also Henderson v. Campbell, 353 F.3d
880, 891 (11th Cir. 2003) (“A state prisoner seeking federal habeas relief cannot raise a
federal constitutional claim in federal court unless he first properly raised the issue in the
state courts.”) (citations omitted). A state prisoner “‘must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the
State’s established appellate review process,’ including review by the state’s court of last
resort, even if review in that court is discretionary.” Pruitt v. Jones, 348 F.3d 1355, 1358-59
(11th Cir. 2003) (quoting O’Sullivan, 526 U.S. at 845).
To exhaust a claim, a petitioner must make the state court aware of both the legal
and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.
1998) (“Exhaustion of state remedies requires that the state prisoner ‘fairly presen[t] federal
claims to the state courts in order to give the State the opportunity to pass on and correct
alleged violations of its prisoners’ federal rights.’”) (quoting Duncan v. Henry, 513 U.S. 364,
365 (1995)). A federal habeas petitioner “shall not be deemed to have exhausted the
remedies available in the courts of the State . . . if he has the right under the law of the
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).
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The doctrine of procedural default provides that “[i]f the petitioner has failed to
exhaust state remedies that are no longer available, that failure is a procedural default
which will bar federal habeas relief, unless either the cause and prejudice or the
fundamental miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d
1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner “must
demonstrate that some objective factor external to the defense impeded the effort to raise
the claim properly in state court.” Wright v. Hopper, 169 F. 3d 695, 703 (11th Cir. 1999).
See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must
demonstrate not only that the errors at his trial created the possibility of prejudice but that
they worked to his actual and substantial disadvantage and infected the entire trial with
error of constitutional dimensions. United States v. Frady, 456 U.S. 152, 170 (1982). The
petitioner must show at least a reasonable probability of a different outcome. Henderson,
353 F.3d at 892; Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).
Alternatively, a petitioner may obtain federal habeas review of a procedurally
defaulted claim if review is necessary to correct a fundamental miscarriage of justice.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96.

A

fundamental miscarriage of justice occurs in an extraordinary case where a constitutional
violation has probably resulted in the conviction of someone who is actually innocent.
Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892. This exception
requires a petitioner’s “actual” innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th
Cir. 2001). To meet this standard, a petitioner must show a reasonable likelihood of
acquittal absent the constitutional error. Schlup, 513 U.S. at 327.
INEFFECTIVE ASSISTANCE OF COUNSEL
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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).

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.
Conaway 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

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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
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.”);

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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 One
Conaway argues that the trial court erred in denying his motion for a continuance
during trial to locate Marvicsin for the purpose of calling him as a witness. He claims that
the court violated his Fourteenth Amendment due process right to present a complete
defense and his Sixth Amendment right to present witnesses. Conaway asserts that
Marvicsin’s testimony would have resulted in acquittals on the robbery and false
imprisonment charges.
The State charged Conaway with aggravated assault of Marvicsin (count two) and
false imprisonment of Marvicsin (count six). (Dkt. 12, Ex. 1.) During the State’s case, after
calling two witnesses, the prosecutor announced that the State would not call Marvicsin:
[COUNSEL]: You are not calling Mr. Marvicsin?
[STATE]: No, he is one that I’m not going to call to testify. Last I heard is Mr.
Marvicsin was in North Dakota tending to an ill child. And he is not going to
testify.
[COUNSEL]: Judge, that is going to cause problems for the Defense. If I
would have known that I would have called Mr. Marvicsin as a witness
because his testimony contradicts a lot of what - THE COURT: Is he under subpoena?
[COUNSEL]: - - what Mr. Valladares is going to testify to.
THE COURT: Is he under subpoena?
[COUNSEL]: I did not place him under subpoena because he is actually a
listed victim to two of the charges. I would just naturally assume the State
would call the victim to two charges.
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[STATE]: I have tried, Judge, but he is in North Dakota and we have lost
contact with him. So, um, I contemplated trying to prove assault through
other witnesses but based upon what’s happening so far this morning, I was
going to announce a nole pross process as to the Marvicsin counts.
...
[COUNSEL]: Just for the record I want it noted I think Mr. Marvicsin’s
departure from the trial is going to prejudice Mr. Conaway in that, if I had
known the State would not be calling him I would have tried to track him
down myself to get him in here because in deposition his story contradicts
Mr. Valladares’ as to what happened in that apartment after those girls left.
(Dkt. 12, Ex. 24, Vol. II, pp. 193-94.)
The prosecutor further explained that the State supplemented discovery with
Marvicsin’s last known address in Ohio, but that “we lost track of him in Ohio, and learned
he is in North Dakota.” (Id., p. 195.) At the conclusion of the State’s case, the prosecutor
announced a nolle prosequi of counts two and six. (Dkt. 12, Ex. 24, Vol. III, p. 281.) After
the trial court denied counsel’s request to enter into evidence Marvicsin’s deposition,
counsel moved for a continuance to locate Marvicsin:
[COUNSEL]: [ ] As I stated yesterday we did not know until yesterday that Mr.
Marvicsin who was actually listed as one of the victims to two of the Counts
was not going to be called by the State Attorney’s Office, therefore - - and we
knew he was out of State. We did not make any arrangements to have him
brought down because we assumed the State was doing that. So, at this
point in time the Defense would move for a continuance of the trial in order
to find Mr. Marvicsin and bring him in so that we could have him testify as a
witness for our case, um, in regards to the State of Florida versus Mr.
Conaway, especially since your Honor denied our Motion to allow the
deposition to be read in.
(Id., pp. 319-20.) The court denied this request. (Id., p. 321.) Conaway argues that
prejudice “is evident by” the jury’s question during deliberations asking whether there was
any written or recorded statement of Marvicsin regarding the alleged robbery. (Dkt. 1, pp.

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6-7.)2
Conaway has not exhausted a federal claim. He raised no argument alleging a
federal constitutional violation when he presented this ground of trial court error on appeal.
(Dkt. 12, Ex. 5.) A petitioner can exhaust a federal claim by, “for example, including . . . the
federal source of law on which he relies or a case deciding such a claim on federal
grounds, or by simply labeling the claim [as a federal one].” Preston v. Sec’y, Fla. Dep’t
of Corr., 785 F.3d 449, 457 (11th Cir. 2015) (quotation marks and citation omitted). The
petitioner must make clear he is raising a federal claim in state court; merely “scatter[ing]
some makeshift needles in the haystack of the state court record” is insufficient to exhaust
a federal claim. McNair v. Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005).
Conaway cited Ostolaza v. State, 943 So.2d 1001 (Fla. 2d DCA 2006) as the sole
case in his appellate brief. Although the appellant in Ostolaza raised a Sixth Amendment
claim in the state trial court, the appellate court’s decision was not based on federal
grounds. The single reference to a Sixth Amendment claim in Ostolaza was insufficient to
raise a federal argument in Conaway’s appeal. State procedural rules do not provide for
successive direct appeals.

See Fla. R. App. P. 9.140.

Consequently, Conaway’s

unexhausted federal claim is procedurally defaulted. See Smith, 256 F.3d at 1138. He
does not establish the exceptions of either the cause and prejudice or fundamental
miscarriage of justice to overcome the default.
Notwithstanding the default, Conaway does not show entitlement to relief. The Sixth
Amendment right to compulsory process to obtain witnesses is “well established” and

2
The court informed the jury that they heard all the evidence that was to be presented. (Dkt. 12, Ex.
24, Vol. IV, p. 486.)

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applies to state proceedings. Dickerson v. Alabama, 667 F.2d 1364, 1369 (11th Cir. 1982).
As further explained in Washington v. Texas, 388 U.S. 14, 19 (1967):
The right to offer the testimony of witnesses, and to compel their attendance,
if necessary, is in plain terms the right to present a defense, the right to
present the defendant’s version of the facts as well as the prosecution’s to
the jury so it may decide where the truth lies. Just as an accused has the
right to confront the prosecution’s witnesses for the purpose of challenging
their testimony, he has the right to present his own witnesses to establish a
defense. This right is a fundamental element of due process of law.
A court’s denial of a continuance to obtain a witness may violate a defendant’s right to
compulsory process if a “reasonable continuance” has been sought “for the purpose of
obtaining defense witnesses where it has been shown that the desired testimony would be
relevant and material to the defense.” Dickerson, 667 F.2d at 1370. In determining
whether a denial of continuance violates the right to compulsory process, courts consider
several factors:
(T)he diligence of the defense in interviewing witnesses and procuring their
presence, the probability of procuring their testimony within a reasonable
time, the specificity with which the defense is able to describe their expected
knowledge or testimony, the degree to which such testimony is expected to
be favorable to the accused, and the unique or cumulative nature of the
testimony.
Id. (quoting Hicks v. Wainwright, 633 F.2d 1146, 1149 (5th Cir. 1981)). “When a denial of
a continuance forms a basis of a petition for a writ of habeas corpus, not only must there
have been an abuse of discretion but it must have been so arbitrary and fundamentally
unfair that it violates constitutional principles of due process.” Hicks, 633 F.2d at 1148.
The record reflects that counsel took Marvicsin’s deposition but did not subpoena
him for trial. There is no indication that Marvicsin’s testimony could be procured within a
reasonable time. The State “lost track” of Marvicsin in Ohio and he was believed to be in
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North Dakota.

However, the record does not reflect that anyone knew his exact

whereabouts in North Dakota or his contact information. Additionally, while counsel told
the court that Marvicsin’s deposition testimony contradicted Valladares’ version of events,
she did not specify how it did so or how it would be favorable to Conaway. Therefore,
Conaway has not shown that the trial court’s rejection of his motion for continuance was
an abuse of discretion so arbitrary and fundamentally unfair that it violated due process.
He does not establish that the trial court’s denial of his motion for continuance violated his
constitutional rights to compulsory process and to present a defense. Ground One
warrants no relief.
Ground Two
Conaway argues that counsel was ineffective for failing to move to perpetuate
Marvicsin’s deposition testimony under Florida Rule of Criminal Procedure 3.190(j). In
support, he asserts that Marvicsin was a 70-year old man in poor health and “[t]he chances
were that he may not live to see trial.” (Dkt. 1, p. 7.) He asserts that counsel should have
taken this action when alerted to Marvicsin’s new address in Ohio. Conaway argues that
there is a reasonable probability that “Marvicsin’s depo testimony perpetuated at trial would
have changed the outcome of the robbery and false imprisonment convictions to not guilty.”
(Id.)
Conaway raised this argument in claim 1 of his postconviction motion, in which he
also alleged that counsel was ineffective for not calling Marvicsin to testify at trial. The
state court summarily denied his claim:
[A]s to claim 1, the State argues the Defendant has failed to meet the
requirements for such a claim as outlined in Nelson v. State, 875 So.2d 579
(Fla. 2004); namely that Darrell Marvicsin was available for trial and,
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therefore, the Defendant is unable “to establish deficient performance or
prejudice from counsel’s failure to call” him. . . . The Court agrees.
Accordingly, claim 1 is DENIED.
(Dkt. 12, Ex. 13, p. 209.)
Rule 3.190(j), Fla. R. Crim. P. (2007) states that either party may seek an order to
perpetuate testimony upon affidavit that a prospective witness resides beyond the territorial
jurisdiction of the court or may be unable to attend or be prevented from attending a trial
or hearing; that the witness’s testimony is material; and that it is necessary to take the
deposition to prevent a failure of justice.
The court and parties discussed introducing Marvicsin’s deposition. The court did
not allow this, however, because the deposition was not taken pursuant to Rule 3.190:
The [Florida] Supreme Court in Rodriguez[3] has spoken on the use of
depositions and specifically differentiated the use of a deposition in a civil
proceeding from a criminal proceeding. And has specifically stated that it
was their intent that the rule 3.190 J was enacted to assure that both parties
have an opportunity and motive to fully develop deposition testimony before
it can be used as substantive evidence in a criminal case. Therefore since
the earlier deposition was not taken pursuant to Florida Rule of Criminal
Procedure 3.190 J to perpetuate testimony, that in accordance with the ruling
in Rodriguez, the deposition is inadmissible.
(Dkt. 12, Ex. 24, Vol. III, pp. 295-96.)
Conaway does not show that counsel was ineffective for failing to move to
perpetuate Marvicsin’s testimony. Counsel’s performance must be viewed at the time of
the alleged error or omission. “A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

3

Rodriguez v. State, 609 So.2d 493 (Fla. 1993).

Page 16 of 28

perspective at the time.” Strickland, 466 U.S. at 689. Marvicsin was listed as the sole
victim in two of the counts. Although the State updated Marvicsin’s address to reflect his
Ohio residence, it was not until after the start of trial that the State informed the defense it
could not contact Marvicsin4 and thus did not intend to call him, and announced a nolle
prosequi of these counts. Counsel stated that she was unaware Marvicsin would not be
called to testify, and had presumed the State would call him.

Conaway does not

demonstrate that this was an unreasonable conclusion under the circumstances.
Additionally, his claim that counsel should have moved to perpetuate Marvicsin’s
testimony because he was in poor health and might not survive until trial is unsubstantiated
and conclusory. 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).5 Conaway has not established deficient performance by counsel.

4

During argument on whether to allow Marvicsin’s deposition into evidence, the State explained:

Judge, we have lost contact with him and the address we had, the 997 Ramsey Drive in
Mansfield, Ohio, an address we provided to the Defense awhile back when he first learned
that Mr. Marvicsin had left the area. I have the exact date, Judge. The second day of August
is when we learned he had moved to Ramsey, Ohio, the drive there. Our efforts to get ahold
of him in light of the fact that he is out of our jurisdiction, we sent him a certified letter and
have a certified receipt, it was certified but no return service on that letter and have not
received any phone calls from him.
(Dkt. 12, Ex. 24, Vol. III, pp. 294-95.)
5

The deposition transcript indicates that counsel did not have reason to believe that, as Conaway
claims, Marvicsin was in poor health:
Q. How old are you, Mr. Marvicsin?
A. I’ll be 70 next month.
Q. You look good for 70.
A. Thank you. I feel pretty good too.
(continued...)

Page 17 of 28

Nor does Conaway demonstrate prejudice as a result of counsel’s actions. He
argues that Marvicsin’s testimony would have changed the outcome of trial on the counts
of robbery and false imprisonment, for which Valladares was listed as the victim. However,
he has not shown a reasonable probability that Marvicsin’s perpetuated testimony would
have prevented his conviction on these counts. In his deposition, Marvicsin stated that he
did not see Conaway take money from Valladares. (Dkt. 12, Ex. 23, p. 203.) He also
testified that he was outside on the porch for a time while Valladares and Conaway were
inside the apartment. (Id., pp. 197, 203.) This indicates that Marvicsin had no personal
knowledge about the robbery of Valladares, but does not necessarily mean that Marvicsin
could testify the robbery did not occur. Additionally, no part of Marvicsin’s deposition
testimony shows that Conaway did not commit false imprisonment of Valladares. Marvicsin
testified that Conaway threatened Valladares with a gun and that he “took Jim inside with
that gun.” (Id., p. 197.)6
Accordingly, Conaway does not establish that counsel was ineffective for failing to
move to perpetuate Marvicsin’s testimony before trial or that he suffered any prejudice as
a result of counsel’s actions.7 He has not shown that the state court’s decision was

5

(...continued)
(Dkt. 12, Ex. 23, pp. 205-06.) Conaway points to no specific record information showing that counsel knew
or should have known that Marvicsin was not in good health.
6
“The term ‘false imprisonment’ means forcibly, by threat, or secretly confining, abducting,
imprisoning, or restraining another person without lawful authority and against her or his will.” § 787.02(1)(a),
Fla. Stat.
7

In its analysis of Conaway’s claim, the state court did not expressly discuss Conaway’s argument
that counsel was ineffective for failing to move to perpetuate Marvicsin’s testimony, as opposed to failing to
call him as a witness at trial. Nevertheless, this claim is presumed to be denied on the merits. See Richter,
562 U.S. at 99. De novo review is appropriate when a state court fails to address the merits of a claim
presented in a habeas petition because “the present controversy falls outside of § 2254(d)(1)’s requirement
(continued...)

Page 18 of 28

contrary to or an unreasonable application of clearly established federal law, or was based
upon an unreasonable determination of the facts. Conaway is not entitled to relief on
Ground Two.
Ground Three
Conaway claims that counsel was ineffective for failing to impeach Valladares with
his prior inconsistent statements to law enforcement. He claims that “Valladares gave two
different versions of how many people were robbed, 3 different versions of how much
money was taken, and two different versions of who was present when the alleged robbery
took place.” (Dkt. 1, p. 10.) He asserts Valladares’ credibility would have been called into
question had counsel impeached Valladares with his inconsistent statements.
Conaway does not in his federal habeas petition identify specific instances in the
record where Valladares allegedly provided testimony inconsistent with his earlier
statements to law enforcement. Therefore, the Court interprets this claim as raising the
same allegation Conaway brought in claim 2 of his postconviction motion. In that claim,
Conaway first argued that counsel was ineffective for failing to impeach Valladares with his
prior inconsistent statement concerning how much money Conaway took and from whom
he took the money. Specifically, he asserted that Valladares told Detective Powers that
Conaway took a total of $75 directly from Valladares and Marvicsin, and that this sum
consisted of $40 taken from Valladares and $35 taken from Marvicsin. (Dkt. 12, Ex. 9, pp.

7

(...continued)
that [the federal court] defer to state court decisions that are not contrary to, or an unreasonable application
of, clearly established federal law.” Davis v. Sec’y, Dep’t of Corr., 341 F.3d 1310, 1313 (11th Cir. 2003). Even
assuming de novo review applies, however, Conaway is not entitled to relief. For the reasons addressed,
Conaway has not established either that counsel performed deficiently by not moving to perpetuate
Marvicsin’s testimony or that he suffered prejudice as a result of counsel’s conduct.

Page 19 of 28

32-34, 56.) Valladares testified at trial that Conaway took $41 from him. (Dkt. 12, Ex. 24,
Vol. II, p. 224.) He did not testify that money was taken from Marvicsin.
Second, Conaway argued that Valladares made inconsistent statements concerning
who was present during the robbery. Conaway points to a police incident report indicating
that Valladares told law enforcement the “theft occurred while Conaway was in the
apartment and no one else was close.” (Dkt. 12, Ex. 9, p. 121.) Conaway states this was
inconsistent with the following portions of Valladares’ trial testimony indicating Marvicsin
was present during the robbery:
Q. So [your daughters] leave a second time, do you and Darrell eventually
make your way with the Defendant into your apartment[?]
A. Oh, yes, we did.
Q. How does that happen, walk us through it?
A. Um, finally I just said come on, they’re gone. Let’s party. I wanted to get
him inside the apartment and try to take that firearm away from him because
he still had it on Darrell and I. He had his way with us the whole night.
(Dkt. 12, Ex. 24, Vol. II, p. 222.)
Q. Okay. Um, during the night from the moment you got into your apartment
until you push him in the back out and shut that door and get your gun, what
is Darrell doing there, during this time?
A. He was sitting there. He is an old man, 70 something, an old man, a
good man.
(Id., pp. 228-29.)
The state court summarily denied this claim:
As to claim 2, the State argues: “While it is unlikely that counsel could
be considered deficient [for the reasons alleged], even if the Court could
make that finding, defendant cannot show the likelihood of prejudice” to the
extent that, but for such error, “there is a reasonable probability that the
outcome [of the proceedings] would have been different.” Motion at 13, citing
Page 20 of 28

Ridenour v. State, 768 So. 2d 480, 481 (Fla. 2d DCA 2000). The Court
agrees. Accordingly, claim 2 is DENIED.
(Dkt. 12, Ex. 13, p. 209.)
Conaway does not show that he was prejudiced by counsel’s performance. The
inconsistency in whether $40 or $41 was taken from Valladares is minor. Moreover,
despite this minor discrepancy, the crux of Valladares’ testimony supporting the taking
element8 of the robbery charge–that Conaway took money from him and took the bag
containing rent money–was not inconsistent with his prior statements. Additionally, while
Valladares did not testify that Conaway took money from Marvicsin, he was not asked
about this on direct examination, and the charging document did not list Marvicsin as a
victim of the robbery. (Dkt. 12, Ex. 1; Ex. 24, Vol. II, p. 224.) Therefore, Conaway does not
show a reasonable probability that the outcome of trial would have been different had
counsel cross-examined Valladares about his prior statements concerning the amount of
money taken or the number of people robbed.
Additionally, Conaway has not demonstrated that Valladares gave inconsistent
statements about how many people were present during the robbery by allegedly telling
police that the “theft occurred while Conaway was in the apartment and no one else was
close” but testifying at trial that Marvicsin was also present in the apartment during the
events. The statement that “no one else was close” is vague and unclear. It does not
exclude the possibility that Marvicsin was inside the apartment but was not near Valladares
or the bag. Conaway does not demonstrate a reasonable probability that the outcome of
8

Robbery “means the 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.

Page 21 of 28

trial would have been different had counsel cross-examined Valladares in the manner
Conaway suggests.
Accordingly, Conaway 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, he is not entitled to relief on
Ground Three.
Ground Four
Conaway argues that counsel was ineffective for interfering with his right to testify
at trial by incorrectly advising him that the specific nature of his prior offenses would be
presented if he testified. He alleges that “[c]ounsel told Petitioner that if he testified the jury
would find out that he had been in prison for two counts of attempted 2nd degree murder”
and that “[r]elying on counsel’s misadvice, Petitioner involuntarily waived his right to testify
at trial.” (Dkt. 1, p. 12.)9
The state court granted an evidentiary hearing on this claim, after which it denied
Conaway’s argument:
Claim 4 of the Defendant’s Motion was the subject of the evidentiary
hearing held on December 3, 2009. In Claim 4 of his Motion, the Defendant
alleges that his trial counsel was ineffective for misinforming him that if he
testified at trial the jury would learn the “specific nature of his prior
convictions” and not just the number, “which compelled the Defendant in
9

Johnson v. State, 923 So. 2d 541, 543 (Fla. 3d DCA 2006), provides:

Under section 90.610, Florida Statutes (2001), a party may attack the credibility of a witness
by introducing evidence of a prior felony conviction. The general rule for impeachment by
prior convictions is that the State is restricted to asking a witness if he or she has previously
been convicted of a crime, and if so, the number of times. Fotopoulos v. State, 608 So.2d
784 (Fla. 1992). An exception exists, however, when the witness attempts to mislead the jury
about his prior convictions. In those circumstances, the State is entitled to inquire further
about the prior convictions to dispel any false impression that may have been given. McCrae
v. State, 395 So.2d 1145 (Fla. 1980).

Page 22 of 28

court colloquy to involuntarily waive his right to testify.”
The Defendant testified at the evidentiary hearing that his attorney told
him that the specific nature of his previous charges would come out if he
testified. The State asked the Defendant about the trial court’s discussion
with him about testifying, and the Defendant acknowledged that the trial court
did not tell him that the specific nature of his offenses would come out if he
testified. The Defendant also testified that he obtained prescription drugs at
the jail which had not been prescribed to him, and he took them during the
trial. He alleges that this caused him to be confused and scared at the trial.
At the evidentiary hearing, the defense argued that the taking of these drugs
and the Defendant’s confusion had a connection to claim 4 of the
Defendant’s Motion.
At the evidentiary hearing, the Defendant’s trial counsel . . . testified
that she leaves the decision of whether or not to testify in the hands of her
clients. She testified that she discusses the benefits and non-benefits of
testifying with all of her clients. The State asked [counsel] what she tells her
clients with regard to prior offenses: She testified that; “ I tell them that if they
testify that the State can ask them have they ever been convicted of a felony
or a crime of dishonesty and then they can be asked how many times.”
[Counsel] testified that she has never told a client that the specific nature of
the convictions would come in if they testified. [Counsel] testified that she did
not have the feeling that her client didn’t understand her at trial or that he
looked confused.
The Court finds that the Defendant’s testimony is not credible that his
attorney told him that the specific nature of his offenses would come out if he
testified. The Court found [counsel’s] testimony regarding what she tells her
clients about testifying to be credible. The Court particularly finds credible
[counsel’s] testimony that she does not tell her clients that the specific nature
of their offenses will come out if they testify. The court finds that the
Defendant’s testimony regarding the unprescribed medications he took and
his confusion during the trial has little or no connection to claim 4 of his
Motion. The Court notes that the Defendant testified at the evidentiary
hearing that he did not tell anyone that he was taking these unprescribed
drugs during the trial or that he was confused. The Defendant has not shown
that Counsel’s performance fell below an objective standard of
reasonableness with respect to claim 4 of his Motion.
In addition, to the extent it might be argued that there was deficient
performance by counsel, the Court does not find there is any reasonable
probability that the result of the proceedings would have been different but
for such deficiencies. To some extent, the Defendant’s testimony regarding
what he would have said had he testified at the trial reflected information
Page 23 of 28

already presented to the jury at the trial when his law enforcement interview
was played for the jury. His testimony at the evidentiary hearing regarding
what he would have told the jury does not support a reasonabl[e] probability
that the result of the proceedings would have been different had he testified
at the trial. Claim 4 of the Defendant’s Motion is denied.
(Dkt. 12, Ex. 14, pp. 269-70.)
Upon reviewing the evidentiary hearing testimony, the state court found credible
counsel’s testimony that she does not inform clients the specific nature of their offenses will
be presented if they testify.10 A federal habeas court must defer to factual findings of the
state court. 28 U.S.C. § 2254(e)(1). Conaway does not overcome the presumption of
correctness afforded to the state court’s determination that counsel’s testimony was
credible. See Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998) (“We must accept
the state court’s credibility determination and thus credit [the attorney’s] testimony over [the
petitioner’s].”); Devier v. Zant, 3 F.3d 1445, 1456 (11th Cir. 1993) (“Findings by the state
court concerning historical facts and assessments of witness credibility are . . . entitled to
the same presumption accorded findings of fact under 28 U.S.C. § 2254(d).”). See also

Gore v. Sec’y, Dep’t of Corr., 492 F.3d 1273, 1300 (11th Cir. 2007) (“A certain amount of
deference is always given to a trial court’s credibility determinations. That the case is
before us on habeas review heightens that deference.”) (citations omitted).
Conaway has not demonstrated that counsel was ineffective for the reason alleged.
He fails to establish that the state court’s decision was contrary to or an unreasonable
application of clearly established federal law, or was based on an unreasonable

10

Counsel testified that she does not tell her clients that the specific nature of their prior convictions
will be addressed. (Dkt. 12, Ex. 25, p. 253.) She further testified that, with respect to prior convictions, she
tells her clients to “just answer those questions” and that “if you say something more than that then the State
could possibly get into the circumstances surrounding those convictions.” (Id.)

Page 24 of 28

determination of the facts. Consequently, Ground Four warrants no relief.
Ground Five
Conaway asserts that counsel was ineffective for failing to object when the
prosecutor improperly advanced a golden rule argument during closing arguments. He
claims that the prosecutor “improperly asked the jury to place themselves in the victims’
position and relive what the victims experienced.” (Dkt. 1, p. 14.)
The prosecutor made the following statements during closing arguments:
You heard from the two sisters and the dad and from the law enforcement
officers that basically came after the fact and did law enforcement stuff. But
[the] heart of the State’s case were the two sisters and the dad, the powerful
and compelling testimony that came from this witness stand. The emotion,
the raw emotion as they relived what happened to them a year and a day
ago.
(Dkt. 12, Ex. 24, Vol. III, pp. 411-12.)
In arguing that the State’s witnesses were credible, the prosecutor further stated:
Some things you should consider are did the witness seem to have an
opportunity to see and know the things about which the witness testified?
You recall how Sara when she was reliving it she was real emotional. When
she would get to certain parts she just about couldn’t talk. When I asked her
to point out the person who did it she just about could not do it. Is that not
proof of this young lady reliving what took place a year ago, as well as her
sister who was a little bit less emotional and the dad? Think about the times
in his testimony when he put on the big tough exterior, you know protected
my daughters, the dad role, but did you see when he was talking about his
kids and not being able to protect them or do anything because Conaway
had the gun, did you see how emotional he got? Was that acting? Was that
like a soap opera actor who can turn on the tears because it is time to turn
on the tears? Or was that genuine raw emotion of someone who was reliving
what took place, a terrible episode in your life a day and a year ago?
(Dkt. 12, Ex. 24, Vol. IV, pp. 414-15.)
The state court denied Conaway’s claim of ineffective assistance of counsel:
In response to Claim 5, that Defendant’s counsel was ineffective for
Page 25 of 28

failing to object when the prosecutor, during closing arguments, “advanced
the Golden Rule argument”, after reviewing the closing arguments of the
State the Court disagrees with Defendant’s contention that the State’s closing
arguments were “an advancement of the Golden Rule argument.” When
read in their entire and proper context, the State’s comments and arguments
were neither improper nor legally objectionable. See trial transcript at 41216, copies of which are attached. See also Miller v. State, 926 So.2d 1243,
1254-1255 (Fla. 2006)(“[A]n attorney is allowed to argue reasonable
inferences from the evidence and to argue credibility of witnesses or any
other relevant issue so long as the argument is based on the evidence.”); and
Brown v. State, 787 So.2d 229, 230 (Fla. 2d DCA 2001), citing Caraballo v.
State, 762 So.2d 542, 547 (Fla. 5th DCA 2000)(“[F]undamental error occurs
in closing when the ‘prejudicial conduct in its collective import is so extensive
that its influence pervades the trial, gravely impairing a calm and
dispassionate consideration of the evidence and the merits by the jury’.”)
Accordingly, claim 5 is DENIED.
(Dkt. 12, Ex. 10, p. 124.)
The record supports the denial of this claim. Golden rule arguments “are arguments
that invite the jurors to place themselves in the victim’s position during the crime and
imagine the victim’s suffering.” Braddy v. State, 111 So.3d 810, 842 (Fla. 2012) (quoting
Mosley v. State, 46 So.3d 510, 520 (Fla. 2009)).

Here, the prosecutor’s remarks

concerned the witnesses’ credibility. He argued that the witnesses’ emotional conditions
indicated their recollections were credible. No part of the prosecutor’s remarks suggested
that the jurors place themselves in the victims’ positions and imagine what they
experienced. Accordingly, Conaway has not demonstrated that counsel was ineffective for
failing to object to the identified statements as improper golden rule arguments. He fails
to 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. Ground Five warrants no relief.
Ground Six
Page 26 of 28

Conaway contends that counsel’s cumulative errors and omissions constitute
ineffective assistance of counsel.

Conaway raised this allegation in claim 6 of his

postconviction motion. The state court denied this claim prior to the evidentiary hearing,
when it had denied all but one of Conaway’s postconviction claims. (Dkt. 12, Ex. 13, p.
210.) Because Conaway has not demonstrated any meritorious ineffective assistance of
counsel claims, his claim of cumulative error must also fail. See Morris v. Sec’y, Dep’t of
Corr., 677 F.3d 1117, 1132 (11th Cir. 2012) (when none of individual claims of error or
prejudice have merit, “we have nothing to accumulate.”). Conaway 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. He
is not entitled to relief on Ground Six.
Any claims not specifically addressed in this Order have been determined to be
without merit.
It is therefore
ORDERED that Conaway’s petition for writ of habeas corpus (Dkt. 1) is DENIED.
The Clerk is directed to enter judgment against Conaway and to close this case.
It is further ORDERED that Conaway is not entitled to a certificate of appealability.
A petitioner does not have absolute entitlement to appeal a district court’s denial of his
habeas petition. 28 U.S.C. § 2253(c)(1). A district court must first issue a certificate of
appealability (COA). Id. “A [COA] may issue ... only if the applicant has made a substantial
showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make such a
showing, Conaway “must demonstrate that reasonable jurists would find the district court’s

Page 27 of 28

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)). Conaway has not made this showing. Finally, because Conaway is not entitled
to a COA, he is not entitled to appeal in forma pauperis.
ORDERED in Tampa, Florida, on March 20, 2017.

Copy to:
Ronald L. Conaway
Counsel of Record

Page 28 of 28