Porter v. Secretary, Department of Corrections et al
Filing
17
OPINION AND ORDER denying re: 1 Petition for writ of habeas corpus. The CLERK is directed to enter a judgment against Porter and to CLOSE this case. A certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Signed by Judge Mary S. Scriven on 9/19/2017. (RO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DEVON PORTER,
Petitioner,
v.
Case No. 8:14-cv-2458-T-35AAS
SECRETARY, DEPARTMENT
OF CORRECTIONS, et al.,
Respondent.
/
ORDER
This cause comes before the Court on Petitioner Porter’s petition for the writ of
habeas corpus under 28 U.S.C. § 2254. Upon consideration of the petition, the response
and the reply (Docs. 1, 8, and 10), and in accordance with the Rules Governing Section
2254 Cases in the United States District Courts, it is ORDERED that the petition is
DENIED.
Porter challenges his conviction for trafficking in methamphetamine, for which
conviction he serves a seven year sentence. Numerous exhibits (“Respondent’s Exhibit
__”) support the response. The Respondent admits that Porter fully exhausted the
grounds asserted in the petition and affirmatively “does not contest the timeliness of the
petition . . . .” (Doc. 8 at 4)
I. 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, 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
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there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 131 S. Ct.
770, 786–87 (2011). See Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (“And an
‘unreasonable application of’ those holdings must be objectively unreasonable, not
merely wrong; even clear error will not suffice.”) (quoting White v. Woodall, 134 S. Ct.
1697, 1702 (2014)). 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 693. Federal courts must
afford due deference to a state court’s decision. “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, 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). As
recognized in Burt v. Titlow, 134 S. Ct. 10, 15‒16 (2013), an applicant’s burden under
Section 2254 is very difficult to meet:
Recognizing the duty and ability of our state-court colleagues to adjudicate
claims of constitutional wrong, AEDPA erects a formidable barrier to federal
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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 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).
In a per curiam decision without a written opinion the state appellate court affirmed
Porter’s conviction and sentence on direct appeal. (Respondent’s Exhibit 8) Similarly, in
another per curiam decision without a written opinion the state appellate court affirmed
the denial of Porter’s subsequent Rule 3.850 motion to vacate. (Respondent’s Exhibit 6)
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 Harrington v. Richter, 131 S. Ct. at 784–85 (“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, 1255–56 (11th Cir. 2013) (describing the difference between an “opinion” or
“analysis” and a “decision” or “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
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“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. Porter bears the burden of overcoming a state court factual
determination by clear and convincing evidence. “[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).
II. DIRECT APPEAL
Porter raised two claims on direct appeal, specifically, whether the trial court erred
by both denying a pre-trial motion to suppress evidence discovered during the post-arrest
search of his car and excluding Porter’s self-serving hearsay response to a question
posed by one of the police officers. (Respondent’s Exhibit 3) Porter’s federal petition
presents a claim regarding the motion to suppress but does not raise a claim with respect
to the exclusion of his out of court statement as inadmissible hearsay.
Ground One:
Porter asserts that, “prior to the start of trial, trial counsel filed a motion to suppress
the statements, sensory impressions and the contraband found as a result of an illegal
search.” (Doc. 1 at 6) Porter contends that the “trial court erred in denying Petitioner’s
motion to suppress.” (Doc. 1 at 5) After two pre-trial hearings in which two security
officers and the arresting police officer testified, the trial court denied a motion to suppress
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the drugs that were discovered inside Porter’s vehicle and issued the following findings
of fact (Respondent’s Exhibit 12, vol. I at 191–92):
During the early morning hours of March 13, 2008, Anthony and Rafael Gonzalez
were on duty as Security Guards at the Heart of Florida Hospital. They described
their duties as being on foot patrol and occasionally using golf carts to generally
police the hospital grounds.
Some time after 4:00 a.m., they received a call indicating that there was a car
parked in the no parking area next to the emergency entrance at the hospital.
Together, they went to investigate. Upon their arrival at the emergency entrance
of the hospital, they observed a car parked in front of the door in a no parking area.
The security guards described the no parking area as a lined area in front of the
emergency entrance with signs posted stating “'No Parking” and a painted “'No
Parking” on the ground.
Upon further inspection of the car, they observed someone sitting behind the
steering wheel, apparently either unconscious or asleep. Anthony Gonzalez
knocked on the car window and the occupant (the Defendant, Devon Porter)
appeared to wake up, look at him, and then go back to sleep.
In light of the car being parked in a no parking zone and the occupant of the vehicle
not being responsive other than to open his eyes, look at the security guards, and
then go back to sleep, they decided to call the Haines City Police Department. The
two security guards stepped back from the vehicle and waited for the police to
arrive, which took approximately ten to fifteen minutes.
Officer Nicole Gusaeff received a dispatch at 4:39 a.m. indicating that there was a
car parked in the emergency lane at the Heart of Florida Hospital. It took her
apparently seven minutes to arrive, and she parked her car and made contact with
the two security guards, Anthony Gonzalez and Rafael Gonzalez. She also
observed the Chevy automobile parked, with its engine running, in front of the
emergency entrance to the hospital. The car’s right passenger side tires were
sitting on the white striped area containing the words, “No Parking.” She then
approached the vehicle. Officer Gusaeff testified that she had no idea as to what
the condition of the occupant might be. She was concerned that the occupant
might be suffering from some type of medical emergency and, having arrived at
the hospital, not being able to get out of the vehicle or go in.
In any event, Officer Gusaeff knocked on the car window and did not get an
immediate response. She knocked a second time without any results and then
knocked a third time at which point the occupant (the Defendant, Devon Porter)
responded and opened the car door. She asked the Defendant if he was alright
and he said that he was there waiting for his girlfriend.
Officer Gusaeff states that as soon as the Defendant opened his door, she
immediately smelled the aroma of alcohol and noticed that the Defendant’s eyes
were bloodshot and watery. When the Defendant got out of his car, she also
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noticed that his eyes were dilated. She asked the Defendant if he had had anything
to drink, and he stated that he had a drink about fifty minutes before arriving.
The Defendant appeared to be “somewhat out of it” to Officer Gusaeff and initially
somewhat unsteady upon getting out of the car.
Officer Gusaeff suspected that the Defendant was under the influence of alcohol
and proceeded to perform some sobriety tests.
The Defendant was not able to follow the Officer’s instructions concerning the
Horizontal Gaze Nystagmus. During the one leg stand test, the Defendant stopped
after counting to six, and the Officer gave him a second opportunity to stand on
one leg, which he was able to do but counted very quickly. The Defendant was
also unable to properly do the heel to toe walk.
Based on her observations of the Defendant in the vehicle, the smell of alcohol
about his person, the condition of his eyes and his inability to properly perform all
of the field sobriety tests, Officer Gusaeff concluded that she had probable cause
to arrest the Defendant for a DUI.1
After handcuffing the Defendant, the Officer searched the vehicle and found drugs
and drug paraphernalia, which have led to the charges in this case.
As discussed above under the standard of review, absent clear and convincing
evidence to prove otherwise, the above facts are presumed to be correct. 28 U.S.C.
§ 2254(e)(1)
Porter argues that “[t]here was no basis for the arrest of petitioner on DUI charges”
and “[t]herefore the trial court erred in denying [his] motion to suppress evidence collected
from [his] vehicle.” (Doc. 1 at 8) Based on the above findings of fact, the trial court denied
the motion to suppress with the following analysis (Respondent’s Exhibit 12 vol. I at 193):
Officer Gusaeff arrived on the scene and observed a motor vehicle parked in a no
parking area with the engine running and the occupant either unconscious or
asleep. It look her several attempts to get the attention of the occupant (the
Defendant, Devon Porter). As soon as the Defendant opened the door to the car,
Officer Gusaeff immediately recognized the aroma of alcohol and noted that the
Defendant’s eyes were bloodshot and watery.
1
The online docket for the Circuit Court for Polk County, available by searching under Porter’s name at
https://pro.polkcountyclerk.net/PRO/PublicSearch/PublicSearch, discloses that the State filed a nolle
prosequi for the DUI charge two days after Porter’s sentencing on the underlying trafficking conviction.
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At that point, based on the totality of the circumstances, Officer Gusaeff formed a
reasonable suspicion of criminal activity in that the Defendant was in control of a
motor vehicle and his faculties could reasonably be interpreted to be impaired.
Officer Gusaeff proceeded with a series of field sobriety tests, which led her to the
conclusion, based on her training and experience, and the totality of the
circumstances that the Defendant’s faculties were indeed impaired and he was in
control of a motor vehicle. She, therefore, had probable cause to arrest the
Defendant. Once the arrest was effectuated, she performed a search (incident to
the arrest) of the vehicle in which the Defendant had been sitting. She found the
drugs and paraphernalia that led to those charges being filed against the
Defendant.
The Respondent argues that Stone v. Powell, 428 U.S. 465 (1976), precludes
federal review of this Fourth Amendment claim because Porter had an opportunity for a
full and fair review in the state court. Stone, 428 U.S. at 494, holds “that where the State
has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a
state prisoner may not be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was introduced at his trial.”
For the preclusion under Stone to apply, the state court must issue findings of fact, as
Hern v. Florida, 326 Fed. App’x 519, 522 (11th Cir. 2009),2 explains:
A state does not afford a defendant a full and fair opportunity to litigate the validity
of a search under the Fourth Amendment when the state courts fail to make
essential findings of fact. In Tukes v. Dugger, we addressed whether Stone
foreclosed review of the validity of a search when the defendant presented his
argument but the state courts failed to make findings of fact to resolve that
argument. 911 F.2d 508, 513–14 (11th Cir. 1990). We concluded that the state
courts had failed to afford the defendant a full and fair opportunity to litigate the
validity of the search when they did not make findings of fact about whether the
defendant had invoked his right to counsel or was in custody when he consented
to the search of his home. We stated, “The trial court’s failure to make explicit
findings on matters essential to the fourth amendment issue, combined with the
fact that the state appellate court issued only a summary affirmance, precludes a
conclusion in this case that the state provided the meaningful appellate review
necessary to erect a Stone v. Powell bar to our review of the claim.” Id. at 514.
2
“Unpublished opinions are not considered binding precedent, but they may be cited as persuasive
authority.” 11th Cir. Rule 36-2.
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The Respondent provided both a transcript of the evidentiary hearing on the
pre-trial motion to suppress and the state trial court’s order, which denies the motion to
suppress and contains clear findings of fact as recited above. (Respondent’s Exhibit 12,
vols. I and II at 56–80 and 90–193) The state trial court’s ruling was affirmed on appeal
in a per curiam decision without a written opinion. (Respondent’s Exhibit 8) Porter fails
to show denial of his opportunity for a full and fair review of this claim during the state trial
and subsequent appellate proceedings.
Consequently, Stone bars the Fourth
Amendment claim from federal review.
Moreover, the state court correctly determined that the evidence discovered inside
Porter’s car was admissible. See e.g., Carroll v. United States, 267 U.S. 132 (1925)
(finding an automobile exception to search warrant requirement), Texas v. White, 423
U.S. 67 (1975) (holding that a warrantless search of automobile is not unconstitutional,
even if conducted at a later time and a different place from the arrest, if probable cause
and exigent circumstances exist), South Dakota v. Opperman, 428 U.S. 364 (1976)
(holding that an inventory search of automobile does not violate the constitution), and
United States v. Ross, 456 U.S. 798 (1982) (holding that a warrantless search of
automobile is not unconstitutional if police have probable cause to believe the vehicle
contains evidence of a crime).
III. POST-CONVICTION
As discussed earlier regarding the standard of review, under Wright v. Moore, 278
F.3d at 1254, the state court’s rejection of Porter’s post-conviction claims warrants
deference in this case. (Order Denying Motion for Post-Conviction Relief, Respondent’s
Exhibit 9) In his federal petition, Porter alleges three claims of ineffective assistance of
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counsel within his Ground Two. As determined below, Porter cannot meet his burden of
proving that he was denied the effective assistance of counsel.
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Porter claims ineffective assistance of counsel, a difficult claim to sustain. “[T]he
cases in which habeas petitioners can properly prevail on the ground of ineffective
assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d 1506, 1511
(11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)).
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.
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
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
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of counsel’s challenged conduct 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.
Porter must demonstrate that counsel’s 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 691–92. To meet this burden, Porter 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
690–91. Porter 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.
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
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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)). See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (counsel has no
duty to raise a frivolous claim).
Porter 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 or (2) . . . based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d). In determining “reasonableness,” a federal petition for the writ of
habeas corpus permits an independent assessment of “whether the state habeas court
was objectively reasonable in its Strickland inquiry” but 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). 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 (A
petitioner must overcome this “‘doubly deferential’ standard of Strickland and the
AEDPA.”), and Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911 (11th Cir. 2011)
(“Double deference is doubly difficult for a petitioner 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.”).
The state court conducted an evidentiary hearing and denied the claims of
ineffective assistance of counsel. Although the state court’s order omits citing Strickland
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as the standard for an ineffective assistance of counsel claim, no explicit citation is
required. A state court need not cite Supreme Court precedent (or even be aware of it) if
the decision is consistent with the precedent. Early v. Packer, 537 U.S. 3, 8 (2002);
Parker v. Sec’y of Dep’t of Corr., 331 F.3d 764, 775‒86 (11th Cir. 2003). In Florida,
Strickland governs a claim of ineffective assistance of counsel. Walls v. State, 926 So. 2d
1156 (Fla. 2006). The state post-conviction court analyzed Porter’s ineffective assistance
of counsel claims consistent with Strickland — not contrary to Strickland — by phrasing
the issue as “whether [trial counsel] was remiss” in performing certain functions that
Porter alleges counsel should have performed, in other words, whether counsel’s
performance was deficient under Strickland. (Respondent’s Exhibit 9 at 2) Consequently,
Porter must show that the state court’s ruling was either an unreasonable application of
Strickland or an unreasonable determination of the facts. 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.
Ground Two:
Porter alleges three claims of ineffective assistance of counsel within Ground Two,
specifically, that counsel was ineffective for failing (1) to question the laboratory analyst
regarding the analysis of the drugs, (2) to retain an independent expert to test the drugs,
and (3) to adequately move for a judgment of acquittal and a new trial. The postconviction court denied the claims with the following analysis (Respondent’s Exhibit 9 at
1–6) (footnotes omitted) (italics original):
1. [The] Defendant was originally charged with trafficking in 200 grams or more of
methamphetamine but, during trial, the State amended the information to reduce
the trafficking amount to 28 grams or more but less than 200 grams. This had the
effect of exposing Defendant, who was convicted by a jury, to a shorter minimum
mandatory sentence than he might otherwise have faced. The amended motion
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asserts that Defendant received ineffective assistance from his trial attorney Kayo
Morgan. [T]his order will address the question whether Mr. Morgan was remiss in
not questioning the State’s lab analyst, not hiring an independent expert to test the
drugs, and/or not making a more specific motion for judgment of acquittal.
2. The theory behind the present claim is that the drugs seized from Defendant’s
car, which were in the form of pills in two colors, actually contained only a small
amount of methamphetamine; it is only additives that caused the combined weight
to exceed the trafficking threshold. Thus, in Defendant’s view, adequate counsel
would have exploited this fact and established that Defendant could be convicted
only of simple possession (if that). In support of this contention Defendant called
an expert witness at [the] hearing, Dr. Terry Hall, a forensic chemist and onetime
FDLE drug analyst. [T]he Court finds no basis to question the competency of this
witness or his findings. Dr. Hall did not dispute the report of the FDLE witness who
testified at Defendant’s trial. However, the State chemist appears to have tested
sample pills to determine the presence of methamphetamine, without quantifying
the exact amount or percentage. Dr. Hall’s testing found those amounts and
percentages to be quite low, as his testimony will reflect.
3. Defendant’s second witness was Attorney Morgan. The Court found this witness
to be a zealous advocate who holds a sincere belief that he failed this client. While
that question is ultimately for the Court to decide, the Court’s appreciation for the
candor of this witness should not go unremarked. Mr. Morgan testified that he
approached this as a constructive possession case and argued that the State had
not proven Defendant knew of the presence of the pills. (In fact he retains that
belief to the present day.) This was so because all the pills were found inside a
bag, which in turn was covered by a towel. Mr. Morgan made no effort to retain his
own drug expert because he understood that the trafficking statute does not
require that the illegal substance be segregated out from buffers, fillers, or other
substances one might find in conjunction with illegal drugs. The information filed in
this case tracks the statute, in that it alleges Defendant trafficked in “amphetamine
or methamphetamine [or] any mixture containing amphetamine or
methamphetamine” (emphasis added). In other words, Mr. Morgan’s interpretation
of the law is consistent with the statutory language.
....
5. As noted above the relevant statute permits prosecution for trafficking in
methamphetamine or any mixture containing it so long as the total weight exceeds
certain minimum thresholds. In State v. Yu, 400 So. 2d 762 (Fla. 1981), the
Supreme Court long ago held that the legislature’s decision to include the “mixture”
language when criminalizing drug trafficking was neither irrational nor
unreasonable because dilution of a pure controlled substance could make that
substance available to a greater number of persons. Defendant has attempted to
distinguish Yu, first by citing Ross v. State, 528 So. 2d 1237 (Fla. 3d DCA), rev.
denied, 537 So. 2d 569 (Fla. 1988). For the reasons that follow the Court holds
that reliance on Ross is misplaced even though the Second District Court of Appeal
(unlike others) has elected to follow it. See, e.g., Safford v. State, 708 So. 2d 676
(Fla. 2d DCA 1998). This is so because Ross is clearly distinguishable from the
case at bar.
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6. Ross was arrested based on his possession of 92 separate packets of white
powder. Only two of the packets were lab-tested, the result proving positive for
cocaine. The two packets alone would not have satisfied the 28-gram trafficking
threshold, but the trial court permitted the State to extrapolate trafficking weight
from the fact there were ninety more packets which, presumably, contained
cocaine (or a mixture of same) as well. The decision to reverse seems to have
turned solely on the rather ambiguous notion of “white powder,” which could be
any number of innocuous things including sugar. See Bond v. State, 538 So. 2d
499 (Fla. 3d DCA 1989). As noted in Bond, Ross distinguished white powders from
items which can be at least tentatively identified as unlawful without chemical
analysis, such as marijuana or pills. See also Asmer v. State, 416 So. 2d 485 (Fla.
4 DCA 1982). Because the present case, with hundreds of identical pills, does not
involve powders, it is governed by Asmer rather than Ross or Safford (another
“packet commingling” case).
7. Defendant has also placed great reliance on a federal decision, United States
v. Jackson, 115 F.3d 843 (11th Cir. 1997). As a prefatory matter, the decisions of
lower federal courts are not binding on state courts, though they may be
considered for their persuasive value. State v. Dwyer, 332 So. 2d 333 (Fla. 1976).
This is so even when such courts attempt to interpret a state statute. Pennzoil Co.
v. Texaco, Inc., 481 U.S. 1 (1987). Jackson did not construe Florida’s trafficking
statute, but rather the federal sentencing guidelines.
In rejecting the three claims of ineffective assistance of counsel, the postconviction court determined that counsel had not performed deficiently because the pills
indisputably were a “mixture containing amphetamine or methamphetamine,” which is all
that is required under Florida’s trafficking statute. When searching the car the arresting
officer found a bag of pills, which she gave to the subsequent investigating office who
determined that the bag contained 502 “blue-greenish” pills and 500 tan pills.
(Respondent’s Exhibit 12, vol. IV at 351 and 358). The state’s chemist testified at trial
(1) that the pills presented to him for testing consisted of “blue-greenish” pills and tan pills,
(2) that each type of pill tested positive for methamphetamine and MDMA (also called
“ecstasy”), and (3) that the total weight of each of the two types of pills exceeded one
hundred grams (Respondent’s Exhibit 12, vol. V at 417–22), which supports the
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conviction for trafficking in excess of 28 grams of methamphetamine. In fact, as noted,
the state reduced the charged offense to 28 to 200 grams, well within the weight found
by the state’s chemist. Contrary to Porter’s contention, neither proof of a certain weight
of the controlled substance segregated from the mixture nor proof of a certain percentage
of the controlled substance is required to meet the charging threshold. Porter fails to
show that the post-conviction court’s denial of his claims of ineffective assistance of
counsel is an unreasonable application of controlling federal law or an unreasonable
determination of fact. As a consequence, Porter is not entitled to relief under Ground
Two.
B. CONSTITUTIONALITY OF CONVICTION
In addition to his claims of ineffective assistance of counsel, in his motion for postconviction relief Porter challenged the constitutionality of his conviction based on a
change in the law, which claim the post-conviction court summarily rejected without an
evidentiary hearing.
Ground Three:
Porter alleges that his conviction is unconstitutional based on Shelton v. Sec’y,
Dep’t of Corr., 802 F. Supp. 2d 1289 (M.D. Fla. 2011), which found Section 893.13,
Florida Statutes, unconstitutional for lacking a mens rea requirement. The post-conviction
court summarily rejected this claim without an evidentiary hearing as follows: (Petitioner’s
Exhibit 3, Doc. 10 at 8 and 10):
Firstly, decisions of federal district courts are not binding on state trial courts. But
decisions of Florida appellate courts are. See State v. Dwyer, 332 So. 2d 333. 335
(Fla. 1976). In Florida, absent inter-district conflict, Florida district court decisions
bind Florida trial courts unless overruled by the Florida Supreme Court, see Pardo
v. State, 596 So. 2d 665 (Fla. 1992). The Defendant is not entitled to relief because
this Court must follow controlling Florida law that upholds the constitutionality of
§893.13, Florida Statutes. The Second District Court of Appeal has rejected
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constitutional challenges to §893.13, Florida Statutes. See Burnette v. State, 901
So. 2d 925 (Fla. 2d DCA 2005). Other district courts of appeal also have upheld
the constitutionality of §893.13, Florida Statutes. See Williams v. Stale, 45 So. 3d
14 (Fla. 1st DCA. 2010); Harris v. State, 932 So. 2d 551 (Fla. 1st DCA 2006), rev.
denied, 962 So. 2d 336 (Fla. 2007); Taylor v. State, 929 So. 2d 665, (Fla. 3d DCA
2006), rev. denied, 952 So. 2d 1191 (Fla. 2007); Wright v. State, 920 So. 2d 21,
25 (Fla. 4th DCA 2005), rev. denied, 915 So. 2d 1198 (Fla. 2005).
Secondly, Defendant was convicted under Section 893.135, not Section 893.13,
which was the subject of Shelton. Section 893.135 expressly states that a
defendant must have knowledge that he or she possesses an illegal substance in
order to be charged with trafficking. Therefore, Defendant’s analogy, likening his
case to Shelton, must fail. The State had to prove that Defendant knew of the
methamphetamine in order to obtain a conviction in this case. Therefore, Claim
Three (3) is DENIED.
Porter cannot meet his burden of showing that the state court’s decision was
contrary to or an unreasonable application of controlling federal law. The state court
corrected distinguished Shelton because his case involved trafficking under Section
893.135, which required knowledge. Moreover, Porter’s reliance on Shelton is misplaced
because the district court decision was reversed in Shelton v. Sec’y, Dep’t of Corr. , 691
F.3d 1348 (11th Cir. 2012), cert. denied, 133 S. Ct. 1856 (2013). As a consequence,
Porter is not entitled to relief under Ground Three.
Accordingly, Porter’s petition for the writ of habeas corpus (Doc. 1) is DENIED.
The CLERK is directed to enter a judgment against Porter and to CLOSE this case.
DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
IT IS FURTHER ORDERED that Porter is not entitled to a certificate of
appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district
court must first issue a certificate of appealability (“COA”). Section 2253(c)(2) limits the
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issuing of a COA “only if the applicant has made a substantial showing of the denial of a
constitutional right.”
To merit a certificate of appealability, Porter must show that
reasonable jurists would find debatable both the merits of the underlying claims and the
procedural issues. 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 debate either the merits of the claims or the procedural
issues, Porter is not entitled to a certificate of appealability and he is not entitled to appeal
in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma
pauperis is DENIED. Porter must obtain permission from the circuit court to appeal in
forma pauperis.
DONE AND ORDERED in Tampa, Florida, this 19th day of September, 2017.
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