Vannoske v. Secretary, Department of Corrections et al

Filing 28

ORDER denying application for the writ of habeas corpus; denying as moot 25 --motion for miscellaneous relief; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to ENTER JUDGMENT against Vannoske and to CLOSE the case. Signed by Judge Steven D. Merryday on 6/30/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EUGENE D. VANNOSKE
Applicant,
v.

CASE NO. 8:14-cv-1852-T-23TGW

MICHAEL D. CREWS,
Secretary, Department of Corrections,
Respondent.
/

ORDER
Eugene E. Vannoske applies under 28 U.S.C. § 2254 for the writ of habeas
corpus (Doc. 1) and challenges his convictions for trespass in an occupied structure
(count one), armed trespass of a structure (count two), and battery (counts three and
four), for which convictions Vannoske is imprisoned for ten years. The respondent
filed his response, which is supported by fourteen exhibits. (Docs. 6 and 7) The
respondent admits the application’s timeliness. (Response at 4, Doc. 6) Vannoske
replied. (Doc. 11)
Vannoske was charged with burglary of an occupied structure, armed trespass
of a structure, and two counts of battery. (Ex. 1, at 12–16) A jury found Vannoske
guilty on all four counts. (Ex. 1, at 152–53) Vannoske was sentenced both to ten
years in prison and to timed served on the remaining three counts. (Ex. 1, at 166–71,
Vol. 3, at 262–63)

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). Section 2254(d), which creates a highly
deferential standard for federal court review of a state court adjudication, states in
pertinent part:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim —
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.

In Williams v. Taylor, 529 U.S. 362, 412S13 (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
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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, 693 (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,
131 S. Ct. 770, 786S87 (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 we are 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 v. Taylor, 529 U.S. at 412.
The purpose of federal review is not to re-try the state 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.” Bell v. Cone, 535 U.S. at 694. A
federal court must afford due deference to a state court’s decision. “AEDPA
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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, 131 S. Ct. 1388, 1398 (2011)
(“This is a ‘difficult to meet,’ . . . and ‘highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the benefit of
the doubt’ . . . .”) (citations omitted).
In a per curiam decision without a written opinion the state appellate court on
direct appeal affirmed Vannoske’s convictions and sentence. (Respondent’s Ex. 4).
Similarly, in another per curiam decision without a written opinion the state appellate
court affirmed the denial of Vannoske’s subsequent Rule 3.850 motion to vacate.
(Respondent’s Composite Ex. 9) The state appellate court’s per curiam affirmances
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, 131 S. Ct.
at 784S85 (“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.”), and Bishop v. Warden, 726 F. 3d 1243, 1255S56 (11th Cir. 2013)
(describing the difference between an “opinion” or “analysis” and a “decision” or

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“ruling” and explaining that deference is accorded the state court’s “decision” or
“ruling” even if there is no “opinion” or “analysis”).
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, 131 S. Ct. at 1398. Vannoske 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). The state
court’s rejection of Vannoske’s post-conviction claims warrants deference. (Order
Denying Motion for Post-Conviction Relief, Respondent’s Ex. 9 and 12).
INEFFECTIVE ASSISTANCE OF COUNSEL
Vannoske claims ineffective assistance of counsel, a difficult claim to sustain.
“[T]he cases in which habeas [applicants] can properly prevail on the ground of
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ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d
1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th
Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that
Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of
counsel claim:
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.

Strickland requires proof of both deficient performance and consequent
prejudice. Strickland, 466 U.S. at 697 (“There 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.”). “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct
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on the facts of the particular case, viewed as of the time of counsel’s conduct.” 466
U.S. at 690. Strickland requires that “in light of all the circumstances, the identified
acts or omissions were outside the wide range of professionally competent
assistance.” 466 U.S. at 690.
Vannoske 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.” 466 U.S. at 691S92. To meet this burden, Vannoske must show “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.” 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation.” 466 U.S. at 690S91. Vannoske cannot meet his burden merely by
showing that the avenue chosen by counsel proved 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.
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White v. Singletary, 972 F.2d 1218, 1220S21 (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)). The required extent of counsel’s
investigation was addressed recently in Hittson v. GDCP Warden, 759 F.3d 1210, 1267
(11th Cir. 2014), cert. denied sub nom., Hittson v. Chatman, 135 S. Ct. 2126 (2015):
[W]e have explained that “no absolute duty exists to investigate
particular facts or a certain line of defense.” Chandler, 218 F.3d at
1317. “[C]ounsel has a duty to make reasonable investigations or
make a reasonable decision that makes particular investigations
unnecessary.” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066
(emphasis added). “[C]ounsel need not always investigate before
pursuing or not pursuing a line of defense. Investigation (even a
nonexhaustive, preliminary investigation) is not required for
counsel reasonably to decline to investigate a line of defense
thoroughly.” Chandler, 218 F.3d at 1318. “In assessing the
reasonableness of an attorney’s investigation . . . a court must
consider not only the quantum of evidence already known to
counsel, but also whether the known evidence would lead a
reasonable attorney to investigate further.” Wiggins, 539 U.S. at
527, 123 S. Ct. at 2538.

See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (confirming that counsel has no duty
to raise a frivolous claim).
Under Section 2254(d) Vannoske must prove that the state court’s decision
was “(1) . . . contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States

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or (2) . . . based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Sustaining a claim of ineffective assistance
of counsel is very difficult because “[t]he standards created by Strickland and
§ 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is
‘doubly’ so.” Richter, 131 S. Ct. at 788. See also Pinholster, 131 S. Ct. at 1410 (An
applicant must overcome this “‘doubly deferential’ standard of Strickland and the
AEDPA.”), Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911 (11th Cir. 2011)
(“Double deference is doubly difficult for a applicant to overcome, and it will be a
rare case in which an ineffective assistance of counsel claim that was denied on the
merits in state court is found to merit relief in a federal habeas proceeding.”), and
Pooler v. Sec’y, Dep’t of Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) (“Because we
must view Pooler’s ineffective counsel claim — which is governed by the deferential
Strickland test — through the lens of AEDPA deference, the resulting standard of
review is “doubly deferential.”), cert. denied, 134 S. Ct. 191 (2013).
The state court conducted an evidentiary hearing and denied Vannoske’s
claims (Response Ex. 9, at 143):
[Vannoske] failed to establish deficient performance on the past or
former trial counsel, Mr. Jones. See Strickland, 466 U.S. at 686; see
also Taylor v. State, 87 So. 3d 749, 758 (Fla. 2012) (“mere
unhappiness or anger with the representation of counsel, or
disagreement with regard to counsel’s strategic decisions, does not
render counsel ineffective.”), citing McKenzie v State, 29 So. 3d 272,
282–83 (Fla. 2010). Furthermore, the Court finds that Defendant
has also failed to establish that there was a reasonable probability
that the result of the trial would have been different. See Strickland,
466 U.S. at 694. Consequently, Defendant is not entitled to relief.
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Because the state court correctly recognized that Strickland governs each claim of
ineffective assistance of counsel, Vannoske cannot meet the “contrary to” test in
Section 2254(d)(1). Vannoske instead must show that the state court unreasonably
applied Strickland or unreasonably determined the facts. In determining
“reasonableness,” a federal application for the writ of habeas corpus authorizes
determining only “whether the state habeas court was objectively reasonable in its
Strickland inquiry,” not an independent assessment of whether counsel’s actions were
reasonable. Putnam v. Head, 268 F.3d 1223, 1244, n.17 (11th Cir. 2001), cert. denied,
537 U.S. 870 (2002). The presumption of correctness and the highly deferential
standard of review requires that the analysis of each claim begin with the state court’s
analysis.
DISCUSSION
Vannoske raises two grounds in his application for habeas relief. In Ground
One, Vannoske claims that in violation of his constitutional rights his trial counsel
prevented the presentation of his insanity defense. In Ground Two, Vannoske claims
that counsel provided ineffective assistance by allowing Vannoske to stand trial while
he was incompetent. The respondent argues that Vannoske fails to meet his burden
under the AEDPA standard on his alleged claims of ineffective assistance of counsel.
Ground One:
In Ground One, Vannoske argues that he received deficient performance
from both trial and post-conviction counsel. Vannoske alleges that he was denied
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an opportunity to present an insanity defense due to the constitutionally deficient
performance of his trial counsel. Vannoske argues that his insanity defense was
the only defense available. He further asserts that by refusing to present the insanity
defense to the jury, trial counsel violated his Fifth, Eighth, and Fourteenth
Amendment rights. Vannoske claims (1) that, if counsel had presented supporting
evidence, an insanity defense would have succeeded and (2) that trial counsel’s
failure was deficient performance under Strickland.
Vannoske’s claim in Ground One lacks merit. Trial counsel did not assert
the insanity defense because no evidence supported the defense. Trial counsel hired
an expert, Dr. Carpenter, to evaluate whether Vannoske’s mental state at the time of
the offenses could support an insanity defense. Dr. Carpenter opined that Vannoske
was sane at the time of the underlying criminal offense. The post-conviction court
found that trial counsel’s decision to not pursue the insanity defense was reasonable.
At the post-conviction evidentiary hearing trial counsel testified as follows (Ex. 9, at
194–96):
[Prosecutor]: As you know we’re here on the specific issue of
whether or not there was a failure to raise an insanity — viable
insanity defense at the time of trial. As part of the development of
strategic defenses for Mr. Vannoske can you tell me whether or
not you considered an insanity defense?
[Trial Counsel]: Yes.
[Prosecutor]: Okay.

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[Trial Counsel]: Mr. Vannoske had a number of mental issues.
Because of that he was evaluated for competency and spent some
time at Florida State Hospital to address his competency issues.
At the time this case was going on we had a mental health expert
on our staff named Marcia Perlin who was one of our attorneys. I
consulted with her. She reviewed the mental health records in Mr.
Vannoske’s case and she opined that she didn’t think there was a
viable insanity defense in the case. However, out of abundance of
caution, she recommended that we hire a confidential expert to
address that issue.
We did hire Dr. Carpenter and one of the things we asked him to
do was to address the on-going issue of his competency, but also
to specifically evaluate him for insanity at the time of the offense.
[State]: Okay so it is my understanding that your office, with you
included, in preparation for trial did review an analysis of the
defendants history, the facts of the case, competency reports that
had been performed on behalf of the defendant, and a decision
was made to retain Dr. Carpenter to not only reach a decision as
to competency but also on the issue of whether or not an insanity
defense was viable, is that correct?
[Trial Counsel]: Yes.
[State]: Okay. I’m showing you a report that is date — well, it’s
received by the Public Defender’s Office on January 25, 2010. I
don’t see a date on it. Excuse me January 10, 2010. Do you
recognize this?
[Trial Counsel]: Yes.
[State]: Okay and how do you recognize it?
[Trial Counsel]: This is a copy of the confidential report that was
received from Dr. Carpenter that’s a part of our file.
[State]: Okay. And did you have a chance to review the report
prior to trial?
[Trial Counsel]: Yes.

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[State]: Okay. And did that report have — was it of any import in
to you reaching a decision of trial strategy?
[Trial Counsel]: Yes.
[State]: In what [w]ay?
[Trial Counsel]: In order to pursue an insanity defense one of
the things you have to have is an expert who would be available
to testify at the trial as to that experts opinion on whether the
individual was insane at the time of their offense. After reviewing
the records and interviewing Mr. Vannoske, Dr. Carpenter
indicated that he did not feel that there was a basis upon which to
assert that he meets the standard for an insanity plea. So lacking
an expert, that was not one of the strategies we utilized in going
forward with this case.

Trial counsel further testified that he discussed the insanity defense with Vannoske
and that he informed him that the evidence would not support the defense. (Ex. 9,
at 197).
The post-conviction court noted that trial counsel hired an expert to determine
if the insanity defense was feasible and that Dr. Carpenter found after his
examination of Vannoske the defense unsupported. After hearing testimony and
reviewing the record, the post-conviction court concluded that trial counsel was not
deficient under Strickland, and the state appellate court affirmed. (Doc. 9, at 138–43)
Whether to pursue an insanity defense is a strategic decision. Chandler,
218 F.3d at 1313. Vannoske argues that trial counsel unreasonably forbore the
insanity defense. However, a tactical decision by trial counsel amounts to ineffective
assistance only if no competent attorney would have chosen that patently
unreasonable strategy. Adams v. Wainwright, 709 F. 2d 1443, 1445 (11th Cir. 1983).
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In this instance, trial counsel considered both Vannoske’s past and his mental health,
and counsel obtained an evaluation by a qualified expert, who opined that Vannoske
was sane at the time of the offense. Based upon a review of Vannoske’s records and
Dr. Carpenter’s opinion, the post-conviction court’s determination — that trial
counsel reasonably decided not to pursue the insanity defense — was not
unreasonable under Strickland.
Vannoske also argues that post-conviction counsel was ineffective because he
should have presented more evidence to support his insanity defense. Vannoske
avers that post-conviction counsel should have argued that Dr. Gamache and Dr.
Northrup, both of whom initially found him incompetent, could have extrapolated
an opinion about sanity from an earlier opinion about competence and testified to
Vannoske’s insanity. Vannoske continues that, even if he had no expert testimony to
support his insanity defense, post-conviction counsel should have allowed his parents
to testify at the evidentiary hearing that based on their observations of his behavior he
was insane. Vannoske argues that under Martinez v. Ryan, 566 U.S. 1 (2012), postconviction counsel was ineffective for not presenting at the post-conviction hearing
the additional evidence that he claims would have established his insanity defense.
Vannoske’s reliance on Martinez is misplaced. Martinez, 566 U.S. at 17, holds
that “[w]here, under state law, ineffective-assistance-of-trial-counsel claims must be
raised in an initial-review collateral proceeding, a procedural default will not bar a
federal habeas court from hearing those claims if, in the initial-review collateral
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proceeding, there was no counsel or counsel in that proceeding was ineffective.”
Martinez also holds that Section § 2254(i) precludes an applicant from relying on any
other ineffectiveness of his post-conviction counsel as a ground for habeas relief.
Consistent with Martinez and Section 2254(i), as construed by Martinez, Vannoske can
argue that post-conviction counsel was ineffective for failing to raise the
ineffectiveness of Vannoske’s trial counsel.
Vannoske does not argue that post-conviction counsel failed to raise the issue
of ineffective assistance of trial counsel. Vannoske argues that post-conviction
counsel failed at the post-conviction hearing to present sufficient evidence to support
his claim. Specifically, Vannoske suggests that post-conviction counsel was deficient
because he could have called lay witnesses to testify or could have attempted to
extrapolate the conclusion of insanity from the opinions of the experts who examined
him for competency. However, the governing test for ineffectiveness is not whether
counsel could have done more; perfection is not required. Chandler, 218 F.3d
at 1313. Nor is the test whether the best criminal defense attorneys might have done
more. Instead the test is whether the defense was within the “wide range of
reasonable professional assistance.” Finally, Vannoske’s claim alleges the violation
of a legal right only during the state collateral proceeding. This offers no basis for
habeas relief. Quinn v. Crosby, 360 F. 3d 1259, 1266 (11th Cir. 2004).
Finally, even if cognizable on habeas review, post-conviction counsel’s
decision to not present Vannoske’s evidence — evidence that was not presented at
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trial — was not deficient performance. Vannoske’s proposed evidence is based on
speculation about the expert testimony of lay witnesses and on speculation about
what, if anything, an extrapolation from an expert opinion on incompetency might
prove. Mere speculation about the testimony of witnesses who failed to testify is
insufficient to establish ineffective assistance of counsel under Strickland. See Johnson
v. Alabama, 256 F. 3d 1156, 1187 (11th Cir. 2001) (stating that Johnson only offers
speculation that the missing witnesses might have been helpful and that this kind of
speculation is insufficient to carry the burden of a habeas corpus petitioner).
Vannoske fails to demonstrate that post-conviction counsel’s representation fell
below an objective standard of reasonableness — that is, that counsel’s performance
was unreasonable “under prevailing professional norms . . . considering all of the
circumstances.” Strickland, 104 S. Ct. at 2064–65. Having failed to show deficient
performance or resulting prejudice as required by Strickland, Vannoske is not entitled
to relief on Ground One.
Ground Two:
In Ground Two, Vannoske claims that he was denied the effective assistance of
counsel because he was not competent to stand trial. Vannoske did not specifically
raise this issue in his Rule 3.850 post-conviction motion. However, he used the terms
“incompetence” and “the insanity defense” interchangeably at times in his Rule
3.850 motion. Based upon the record and Vannoske’s arguments, the postconviction court determined that Vannoske raised an insanity defense issue and not a
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competency issue. Nevertheless, the competency issue, even though not specifically
asserted, was thoroughly addressed during the post-conviction proceeding.
Vannoske acknowledges that he was found competent to stand trial two
months before his trial. However, Vannoske claims that he decompensated and was
incompetent when his trial began. Vannoske argues that both counsel and the court
were aware that “his grip on reality had slipped” and that he could no longer assist
his attorney. Vannoske admits that this claim of incompetence was not fully
presented to the post-conviction court; under Martinez, he blames the failure on
ineffective assistance of counsel.
Contrary to Vannoske’s claim, the trial court throughly considered Vannoske’s
competency. The trial court ordered Vannoske examined by two experts to
determine his competency to stand trial. Although Dr. Michael P. Gamache, Ph.D.,
and Dr. George M. Northrup, M.D., found Vannoske incompetent, both opined that
he was restorable with treatment. (Ex. 1, Vol. I at 36, 52). The trial court issued an
order finding Vannoske incompetent to stand trial and committed him to the custody
of the Department of Children and Families (DCF) for treatment. DCF committed
Vannoske to the Florida State Hospital, at which he received treatment. (Ex. 1,
Vol. I at 36, 52).
After several months of treatment at the Florida State Hospital, Dr. Sandi
Lewis, Ph.D., and Dr. Stephen Kopetskie, Ph.D., found Vannoske competent to
stand trial. (Ex. 1, Vol. I at 66, 67) Dr. Gamache, who had previously found
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Vannoske incompetent, re-evaluated him and opined that he was competent to stand
trial. (Ex. 1, Vol. 1, at 75). Dr. Gamache stated (Ex. 1, Vol. 1, at 75):
In summary, reevaluation of this defendant reveals improvement
in his clinical presentation since first evaluated in March of this
year. Mr Vannoske appears stable at this time on psychotropic
medications. He now displays both a rational and factual
understanding of the proceedings against him. Therefore, it is my
recommendation to the Court that he be found competent to
proceed.

Vannoske’s expert, Dr. Carpenter, opined that Vannoske was competent to
stand trial. (Ex. 9, at 195). As a consequence, trial counsel did not argue at the
beginning of trial that Vannoske was incompetent to stand trial.
The available evidence uniformly confirmed Vannoske’s competency to stand
trial. An attorney is not ineffective for failing to raise or preserve a meritless issue.
Ladd v. Jones, 864 F.2d 108, 109–10 (11th Cir. 1989); United States v. Winfield, 960
F.2d 970, 974 (11th Cir. 1992) (“a lawyer’s failure to preserve a meritless issue
plainly cannot prejudice a client”). Accordingly, the post-conviction court found trial
counsel was not ineffective for not raising the issue of Vannoske’s competence at
trial.
In sum, post-conviction counsel was not ineffective under Martinez for not
raising Vannoske’s competency. Vannoske did not specifically raise competency in
his Rule 3.850 motion; however, trial counsel testified at the post-conviction
evidentiary hearing about Vannoske’s competency. Trial counsel testified that Dr.
Carpenter was hired to specifically review Vannoske’s competency to stand trial and
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to determine whether Vannoske was insane at the time he committed the offenses at
issue. (Ex. 9, at 197). Dr. Carpenter found Vannoske competent to stand trial.
(Ex. 9, at 197). While Vannoske claims he “decompensated” and returned to being
incompetent after Dr. Carpenter’s examination, no evidence supports such a claim.
In fact, the evidence at both his trial and his post-conviction evidentiary hearing
supports a contrary conclusion. Vannoske simply makes an unsupported claim that
he decompensated and was not competent when his trial started. Vague, conclusory,
or unsupported allegations cannot support an ineffective assistance of counsel claim.
Tejada v Dugger, 941 F. 2d 1551, 1559 (11th Cir. 1991). Vannoske fails to establish
that post-conviction counsel acted unreasonably, as such, the post-conviction court
did not err by finding that trial counsel was not ineffective under Strickland.
Vannoske is not entitled to relief on Ground Two.
CONCLUSION
Vannoske fails to meet his burden to show that the state court’s decision was
either an unreasonable application of controlling Supreme Court precedent or an
unreasonable determination of fact. As Burt v. Titlow, 134 S. Ct. 10, 15S16 (2013),
recognizes, an applicant’s burden under Section 2254 is very difficult:
Recognizing the duty and ability of our state-court colleagues
to adjudicate claims of constitutional wrong, AEDPA erects a
formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court. AEDPA requires
“a state prisoner [to] 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 . . . beyond any possibility
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for fairminded disagreement.” Harrington v. Richter, 562 U.S.
[86, 103] (2011). “If this standard is difficult to meet” — and it
is — “that is because it was meant to be.” Id., at [102]. We will
not lightly conclude that a State’s criminal justice system has
experienced the “extreme malfunctio[n]” for which federal habeas
relief is the remedy. Id., at [103] (internal quotation marks
omitted).

Additionally, this order renders moot Vannoske’s motion (Doc. 25) for a ruling
on his application.
Accordingly, Vannoske’s application for the writ of habeas corpus (Doc. 1) is
DENIED. Vannoske’s motion for miscellaneous relief (Doc. 25) is DENIED AS
MOOT. The clerk must enter a judgment against Vannoske and close this case.
DENIAL OF BOTH
A CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Vannoske is not entitled to a certificate of appealability (“COA”). A prisoner
seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s
denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first
issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has
made a substantial showing of the denial of a constitutional right.” To merit a COA,
Vannoske must show that reasonable jurists would find debatable both the merits of
the underlying claims and the procedural issues he seeks to raise. See 28 U.S.C.
§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d
926, 935 (11th Cir 2001). Because he fails to show that reasonable jurists would

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debate either the merits of the claims or the procedural issues, Vannoske is entitled to
neither a COA nor leave to appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Vannoske must obtain permission from the circuit court
to appeal in forma pauperis.
ORDERED in Tampa, Florida, on June 30, 2017.

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