James v. Secretary, Department of Corrections et al
Filing
29
OPINION AND ORDER. James' petition for writ of habeas corpus 1 is DENIED. The Clerk is directed to enter judgment against Darian James and to close this case. James 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 9/24/2018. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DARIAN D. JAMES,
Petitioner,
v.
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Case No. 8:15-cv-2332-T-36AAS
Respondent.
______________________________/
ORDER
Darian Darneill James, a Florida prisoner, filed a 28 U.S.C. ' 2254 petition for writ
of habeas corpus challenging his convictions for racketeering, conspiracy to traffic in
cocaine, trafficking in cocaine, and felon in possession of a firearm, rendered in the
Thirteenth Judicial Circuit for Hillsborough County. (Dkt. 1). Respondent responded.
(Dkt. 19). James did not file a reply. After review, the petition will be denied.
Procedural History
In 2005, the State charged Darian James (“Darian or James”)
1
and 15
codefendants with racketeering and other offenses in a 20-count information. James’
charges were severed from those of the co-defendants, three of whom, Sidney Deloch,
Tamiko James and Christine Pace, testified as state witnesses at James’ 2007 jury trial.
1
The Court refers to the Petitioner by his first name in some instances to differentiate him from his family
members.
1
The state trial court granted a judgment of acquittal on count three, trafficking in cocaine.
The jury found James guilty of racketeering (count one), conspiracy to commit
racketeering (count two), conspiracy to traffic in cocaine (count four), and trafficking in
cocaine (count ten). As to count eleven, felon in possession of a firearm, the parties
agreed before trial to sever the “felon” portion. The jury found James guilty of possession
of a firearm, and he stipulated that he was a convicted felon. The state trial court
sentenced James to twenty years in prison on counts one, two, four, and ten,
concurrently, with minimum mandatory prison terms of fifteen and seven years on counts
four and ten, respectively. The state trial court sentenced James to five years in prison
on count eleven, concurrently. (Dkt. 20, Resp. Ex. A11). On March 17, 2010, the state
appellate court per curiam affirmed the convictions and sentences. James v. State, 30
So. 3d 501 (Fla. 2d DCA 2010).
The state appellate court granted, in part, James’ petition alleging ineffective
assistance of appellate counsel. The state appellate court reversed the conviction on
count two, conspiracy to commit racketeering and remanded for the trial court to strike
the conviction.
James v. State, 61 So. 3d 492, 494 (Fla. 2d DCA 2011). On August 8,
2011, the state trial court rendered an amended sentence. (Dkt. 20, Resp. Ex. D).
On June 12, 2012, the state appellate court dismissed James= second petition
alleging ineffective assistance of appellate counsel. James v. State, 93 So. 3d 1027 (Fla.
2d DCA 2012). The state postconviction court denied James= May 10 and December 7,
2012, motions for postconviction relief, which the state appellate court per curiam
2
affirmed, James v. State, 175 So. 3d 295 (Fla. 2d DCA 2015), and issued the mandate
on July 7, 2015. The state appellate court denied James’ March 8, 2015 petition for writ
of habeas corpus, James v. State, 210 So. 3d 667 (Fla. 2d DCA 2016), and his motion
for rehearing on June 28, 2016.
In a prior order (Dkt. 14), the Court determined that the instant petition is timely.
The Facts 2
Darian James’ charges arose from an undercover investigation of suspected drug
trafficking activities of members of the James family. Police obtained information about
the James family in 2000, and in May and July 2005, confidential sources provided
information on individuals connected with the organization.
Initially, police identified
seven to nine of the individuals, including Darian James, who were involved. During the
course of the investigation, police identified three apartments connected with the
organization. Darian James rented one of the apartments, located on Del Ray Court in
the Brookside Apartments, and had a cellular phone assigned to his name at that location.
Darian James’ mother was the subscriber for both his cellular phone and the
cellular phone of James’ cousin, Sidney Deloch.
Police determined from controlled
telephone calls with a confidential source that Deloch was using his cellular phone to
conduct narcotics sales. In recorded calls with the confidential source, Deloch agreed
to sell the confidential source 125 grams of crack cocaine for $3200. On August 22,
2
The factual summary derives from the briefs on direct appeal, the hearing on the wiretap motion,
and the trial transcript.
3
2005, Deloch sold the source the crack cocaine. The confidential source also performed
controlled purchases of crack cocaine from Deloch on September 6 and 14, 2005. Police
did not arrest Deloch at the time because the goal was to determine from where the supply
came.
On September 7, 2005, police initiated an authorized wiretap on the cellular phone
under the control of Deloch and intercepted approximately 255 pertinent (drug related)
calls. On September 30, 2005, police obtained an authorized wiretap of the cellular
phone under the control of Darian James. From September 30 to October 30, 2005,
police intercepted 109 “drug pertinent” calls through the wiretaps on James’ and Deloch’s
cellular phones. Among those identified on the calls were Darian James, Sidney Deloch,
James Nicholas, Sonya Seago, Christina Pace, Chuckie James, Tamiko James, Donald
James, and Derrick James.
Police noticed the use of code words in intercepted
conversations, such as references to amounts of cocaine by numbers associated with
football players.
Fifty-five calls intercepted from the wiretap on James’ phone were introduced at
trial. In one of the calls, Sonya Seago negotiated with James to sell her an ounce of
crack cocaine for $750 instead of $800. Darian had conversations with several of his
codefendants, including James Nicholas, Chuckie James, Derrick James, Tamiko James,
and Christine Pace, concerning quantities of drugs and money. In one of the calls,
James Nicholas and Darian James discussed monies that James owed Nicholas.
4
Police determined from information obtained in the investigation that the James
family had two organizations, one including Deloch and his girlfriend, Rhonda Hunter, and
the other including Darian James and his cousin, James Nicholas.
Police received
information from the confidential source that Deloch obtained kilograms of cocaine from
John Young. Police determined that James Nicholas obtained cocaine from Lonnie
Tinge and Cedric Lamb and supplied cocaine to Darian James, who distributed crack
cocaine to Sonya Seago, Christine Pace, James Nicholas’ brothers, Derrick and Tamiko
James, and to Donald Ray James, an uncle of Deloch and Darian James.
At trial, Detective Peters testified that the common purpose of those involved was
to acquire and cook powder cocaine, yielding crack cocaine that would be distributed to
others for street sales. The drug proceeds were reinvested to purchase more cocaine.
The detective testified that based on his knowledge, the activities of cooking and
distributing cocaine were performed on a daily basis.
At trial, Deloch testified that he obtained powder cocaine in amounts of half a
kilogram and a kilogram of cocaine from John Young, who charged him $24,000 for a
kilogram. Deloch further testified that James Nicholas received cocaine from Cedric
Lamb and Lonnie Tingle and that on one occasion, Deloch obtained cocaine from James
Nicholas. Deloch cooked the cocaine at his house on Broad Street in Tampa, yielding
more cocaine than supplied. From August through October 2005, Deloch distributed
approximately ten kilograms of crack cocaine. Among those he distributed crack cocaine
to were Allen Johnson (Deloch’s cousin) and Myron Grooms (Deloch’s brother-in-law).
5
Deloch also distributed an ounce of cocaine at a time to Geremi Pierce, who sold cocaine
on Deloch’s behalf.
Deloch knew that Darian James was selling cocaine between
August and November 2005. During this period, Deloch spoke with Darian James daily.
Deloch would loan Darian James and other individuals money that came from drug sales.
At trial, the State introduced a compact disc containing recorded phone calls. The
prosecution played for the jury five phone calls between Deloch and Darian James. In
one of the intercepted calls, Darian James asked Deloch if he could call a third person
about obtaining drugs, and in another call, Darian asked to borrow “fifteen bucks,”
meaning $1500. In a recorded call on September 8, 2005, Darian said that “Bone”
(Tamiko James) said he was “thirsty” and “hollering” at Darian, meaning that Tamiko
wanted some drugs. In a September 10, 2005, phone call with Larry James (Deloch’s
and Darian James’ uncle), Deloch discussed an argument that he had with James
Nicholas at Brookside Apartments. In the conversation, Deloch stated that Deloch paid
for half of the furniture in Darian James’ apartment, that Deloch had talked Darian James
into letting James Nicholas have access to the apartment, that James stated there were
too many people in and out of the apartment, and that James wanted everyone to stay
out. In a September 11, 2005, phone call with Deloch, Darian asked to borrow $100 and
discussed others who were selling drugs in the “country” (Thonotosassa) and who did not
want the James family selling drugs there. In a September 25, 2005, phone call, Darian
asked Deloch to help post bond for Christine Pace’s daughter.
6
Deloch testified that from August to November 2005, he went to the Morro Manor
apartment often and placed calls to individuals about drugs. Deloch would provide the
individuals with crack cocaine that he obtained from the Broad Street house.
During redirect examination of Deloch, the State played for the jury a phone call in
which Darian James spoke about not having money. In an October 26, 2005, phone call
played for the jury, James asked Deloch to call someone to get drugs.
Christine Pace testified that during the latter part of 2005, she obtained crack
cocaine from Darian James on numerous occasions. Pace called him several times a
day and indirectly told him what she wanted. She purchased cocaine from him at the
Brookside Apartments and other places, including her home. She testified that she
would secure buyers of large amounts and sell them portions of the cocaine so that she
could get high “for free.” The State introduced a call between Pace and James in which
she was trying to obtain cocaine. She explained that she owed James money for a
packet of cocaine she had consumed and that she needed more product to sell so that
she could pay him. She testified that the phone call was in October of 2005. After she
was arrested in November of 2005, James sent her a card with a note that stated
“Sincerely, Quick. Keep your head up and your trap tight. He’s got you. Check your
account.” Subsequently, she received a deposit of $25 into her jail account.
Tamiko James testified that between August and November of 2005, he sold crack
cocaine that James Nicholas and Darian James provided to him. Tamiko James testified
that he saw Nicholas cook cocaine numerous times at Chuckie James’ apartment. In
7
addition, Tamiko had seen Nicholas at Darian James’ apartment. Tamiko observed a
gun and cocaine in kitchen cabinets at that apartment. Before Tamiko pleaded guilty, he
and Darian James listened to intercepted calls on a compact disc between Tamiko and
Darian. At the time, they were not in custody. Tamiko testified that Darian told him to
“take it to trial” and “we can’t go against each other.”
At trial, Tamiko identified Sonya Seago’s voice on six phone calls in which Darian
James discussed obtaining cocaine for Seago. between Seago and Darian James. In one
of the phone calls, Darian James told Sonya Seago to go to Chuckie James’ apartment
for drugs. The State introduced nine phone calls between Tamiko and Darian. In the
calls, Tamiko asked Darian for cocaine, and they discussed money he owed Darian for
cocaine. The State also introduced five phone calls between Chuckie James and Darian
James. At the time, Chuckie James was living at the Brookside Apartments. In the
phone calls, they discussed cocaine and its quality. The phone conversations included
references to “cookin[g] it,” and “a little Vick.”
The State also introduced two phone calls between Kevin Smith and Darian
James. In one of the phone calls, Smith stated that he needed “something” and Darian
told him to stop by the house.
Tamiko also identified others who discussed cocaine and monies owed. In one
phone call with Darian James, Lonnie Tingle stated, “I’m gonna bring that back to ya.”
In a phone call between Derrick James and Jerome Fabian, there were discussions about
needing “seven dollars” and “just fourteen.”
8
The State introduced three calls between Darian James and Derrick James. In
one phone call, Derrick asked for “a Brad” and a “softball”.
In a second call, they
discussed cocaine, and in a third call discussed doing “some business” involving “just a
little Vick.” In a phone call between Donald James and Darian James, they discussed
making “the stuff,” money, and the Morro Manor apartment. In five phone calls between
James Nicholas and Darian James, they discussed cocaine, money, and meeting.
Standard of Review
The AEDPA requires a prisoner who challenges Aa matter >adjudicated on the merits
in State court= to show that the relevant state-court >decision= (1) >was contrary to, or
involved an unreasonable application of, clearly established Federal law,= or (2) >was
based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.=@ Wilson v. Sellers, 138 S. Ct. 1188, 1191 (2018) (quoting 28
U.S.C. ' 2254(d)). A habeas petitioner meets Athis demanding standard only when he
shows that the state court’s decision was >so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.=@
Dunn v. Madison, 138 S. Ct. 9, 11 (2017) (per curiam) (quoting
Harrington v. Richter, 562 U.S. 86, 103 (2011)).
Ineffective Assistance of Counsel
Darian James alleges that his trial and appellate counsel rendered ineffective
assistance. To establish ineffective assistance of counsel, he must show that his Sixth
Amendment right to counsel was violated because (1) his attorney=s performance was
9
deficient, and (2) the deficient performance prejudiced his defense.
Strickland v.
Washington, 466 U.S. 668, 687 (1984). Counsel=s performance is deficient only if it falls
below the wide range of competence demanded of attorneys in criminal cases. Id. at 688.
To establish Strickland prejudice, he must show that there is a reasonable probability that,
but for counsel=s unprofessional errors, the result of the proceeding would have been
different.
Id. at 694.
Sustaining a claim of ineffective assistance of counsel on federal habeas review is
difficult because A[t]he standards created by Strickland and ' 2254(d) are both >highly
deferential,=@ and Awhen the two apply in tandem, review is >doubly= so.@
Richter, 562 U.S.
at 105 (citations omitted). AThe question is whether there is any reasonable argument
that counsel satisfied Strickland=s deferential standard.@ Id.
Discussion
Procedurally Defaulted Grounds
Grounds Four, Five, Six, and Eight
In Ground Four, James alleges that his trial attorneys failed to call Donald James,
a codefendant, at trial. According to Darian James, his codefendant would have testified
both that Donald placed the cocaine in Darian’s apartment and that Darian had no
knowledge of its presence. (Dkt. 1 at 10). In Ground Five, James contends that attorney
McKeever represented several codefendants in the same case during the same time and
that his attorney created a dire situation for him in attempting to convince Donald James
to testify against him. (Dkt. 1 at 11). James alleges that attorney McKeever should have
10
removed himself from representing James and that the state trial court should have
appointed conflict-free counsel. Although James raised these grounds in his amended
postconviction motion, his postconviction counsel announced that he was not going
forward on these claims at the evidentiary hearing (Dkt. 20, Resp. Ex. F8 at 28–29), and
James did not raise the claims on appeal of the order denying relief.
In Ground Six, James contends that his trial counsel rendered ineffective assistance
by not moving to strike the verdict on the racketeering offense alleged in count one of the
information. (Dkt. 1 at 13). He alleges that the jury instructions set out seven possible
predicate offenses, of which the jury must find two offenses to convict him of racketeering.
James argues both that none of the predicate acts alleged that he was part of a conspiracy
and that there was no evidence of an agreement between James and another party to
store the drugs located at James’ apartment. (Id.). Although James raised this claim of
ineffective counsel in his postconviction motion, he did not raise the summary denial
(Resp. Ex. F at 16) of this claim on appeal.
In Ground Eight, James alleges that attorney McKeever failed to file a motion for
judgment of acquittal on count four, conspiracy to traffic in cocaine. James contends that
the State failed to make a prima facie showing that James conspired to traffic in 400 grams
of cocaine. (Dkt. 1 at 16). James raised this claim of ineffective assistance of counsel
in his amended postconviction motion, but did not raise the summary denial of the claim
(Resp. Ex. F6 at 10–12) on appeal.
11
James has failed to satisfy the requirement that a petitioner exhaust his federal
claims in state court before presenting them in his federal habeas petition. See 28 U.S.C.
§ 2254(b)(1)(A). To properly exhaust these four claims, James was required to “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.”
O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); Picard, 404 U.S. at 277–78. Because some of
James’ postconviction claims were denied after an evidentiary hearing, he was required
to raise, in his appellate brief, all arguments he wished the appellate court to consider.
See Fla. R. App. P. 9.141(b)(3)(C); Cunningham v. State, 131 So.3d 793 (Fla. 2d DCA
2012). Grounds Four through Six and Ground Eight are unexhausted because he did not
raise them on appeal of the denial of postconviction relief.
A claim that was not presented to the state court and can no longer be litigated
under state procedural rules is considered procedurally defaulted, i.e., procedurally barred
from federal review. See Boerckel, 526 U.S. at 839–40, 848; Coleman v. Thompson, 501
U.S. 722, 735 n.1 (1991). State procedural rules do not provide for second collateral
appeals. See Fla. R. Crim. P. 3.850(k) (stating that an appeal may be taken within 30
days of rendition of a final order denying postconviction relief). Because James cannot
return to state court to file an untimely appeal or another postconviction motion, see Fla.
R. Crim. P. 3.850(b), Grounds Four through Six and Ground Eight are procedurally
defaulted.
12
A petitioner who fails to exhaust his claim is procedurally barred from pursuing that
claim on habeas review in federal court unless he shows either cause for and actual
prejudice from the default or a fundamental miscarriage of justice from applying the
default.” Lucas v. Sec’y, Dep’t of Corr., 682 F.3d 1342, 1353 (11th Cir. 2012). Cause
must be something external to the petitioner, something that cannot fairly be attributed to
him. If a petitioner fails to show cause, the court need not consider whether prejudice
exists. McCleskey v. Zant, 499 U.S. 467, 502 (1991).
The miscarriage of justice exception requires the petitioner to show that “a
constitutional violation has probably resulted in the conviction of one who is actually
innocent.”
Schlup v. Delo, 513 U.S. 298, 327 (1995).
To establish the requisite
probability, the petitioner must show that it is more likely than not that no reasonable juror
would have convicted him in the light of new evidence. Id.
James has made none of the requisite showings to excuse his procedural defaults.
This failure bars federal habeas review of the claims. Coleman v. Thompson, 501 U.S.
722, 7734–35 (1991). Grounds Four, Five, Six and Eight are procedurally defaulted and
barred from review.
Merits Review of Remaining Grounds
In Grounds One and Two, James alleges claims that he presented in a petition
alleging ineffective assistance of appellate counsel. (Dkt. 20, Resp. Ex. C2). The state
appellate court denied these claims without discussion. James, 61 So. 3d at 493. This
Court presumes the state court’s denial is an adjudication on the merits entitled to
13
deference under Section 2254. See Wilson, 834 F.3d at 1235. The petitioner bears the
burden of showing that no reasonable basis exists for denying relief. Id.
Ground One
Darian James alleges that his appellate counsel rendered ineffective assistance by
not raising, on appeal, the state trial court’s denial of his motion for rehearing of the order
denying his motion to suppress communications intercepted from the wiretaps (“wiretap
motion.”). (Dkt. 1 at 5). James alleges that he moved for rehearing based on new
information that was developed after the denial of his wiretap motion.
(Id.)
James
argues that at a September 7, 2007, deposition, Deloch testified that James had nothing
to do with Deloch’s telephone discussions of drugs or narcotics and that law enforcement
misinterpreted language in calls that were used to establish probable cause for the wiretap
of James’ phone.
(Id.)
James further contends that he was neither linked to the
controlled purchases from Deloch occurring in August and September 2005, nor named
as a drug supplier for Deloch. (Dkt. 1 at 5–6).
After conducting a pretrial evidentiary hearing on May 18, 2007, the state trial court
entered an order denying James’ wiretap motion. (Dkt. 20, Resp. Ex. A4). In the order,
the state trial court found that the wiretap application was sufficient, that probable cause
existed, and that the exhaustion requirement had been met. 3 (Id. at 167). In a motion
3
Before approving a wiretap, a judge must determine that normal investigative procedures have been tried
and failed or reasonably appear unlikely to succeed or are too dangerous. § 934.09(3)(c), Florida Statutes
(2005). The law enforcement agency need not show that it exhausted all other possible investigative
techniques before seeking wiretap authorization; “[n]or must every other conceivable method of investigation
14
for rehearing of that denial, James alleged that a September 7, 2007, deposition, Deloch
was asked whether any of the alleged pertinent phone calls involved discussion of drugs
or narcotics, and he answered “no.” (Dkt. 20, Resp. Ex. A5 at 182). James also alleged
that Deloch clarified that police misinterpreted some of the language in the calls and that
Deloch advised Detectives Peters and Stephenson of this information in a July 30, 2007,
debriefing after Deloch entered a guilty plea. (Id. at 182–83). In addition, James alleged
that Deloch would testify that James was not involved in any way with the controlled buys
between Deloch and the confidential informant, and that the controlled buys were listed as
probable cause for the wiretap on Deloch’s phone. (Id.)
At the hearing on James’ motion for rehearing, the prosecutor explained that the
facts alleged in the rehearing motion came to light in July 2007 and did not affect the
probable cause determination in 2005:
[T]he facts that Mr. McKeever alleges in his motion for a rehearing are all
facts and information that came about subsequent to the probable cause
finding.
The probable cause finding by Judge Black that authorized the wire intercept
occurred on September 6, 2005. In the State’s original argument back in
May of this year it was the State’s position, and it continues to be my position,
that this Court, in determining whether there was probable cause for the wire
intercept, should look only at the facts known to law enforcement and to
Judge Black on September 6th of 2005. And the Court had agreed with the
State and allowed the testimony into evidence back in May as to the facts
that were known to law enforcement at that time, which did not only include
controlled phone calls between a cooperating source and Mr. Deloch but
be unsuccessfully attempted before electronic surveillance will be authorized.” United States v. Johnson,
281 F. App'x 909, 912 (11th Cir. 2008) citing Shaktman v. State, 529 So. 2d 711, 722 (Fla. 3d DCA1988).
15
information from three separate confidential informants who did implicate
Darian James in the sale of crack cocaine.
So, I don’t dispute that the facts that Mr. McKeever has put in his motion,
those are facts that have come out in July of this year. But those did not
affect the probable cause determination back in 2005 and that’s what Your
Honor reviewed. So, I would ask Your Honor not to change your decision.
(Dkt. 20, Resp. Ex. A 13 at 423--24).
James’ trial counsel did not dispute the prosecutor’s representation that the facts
alleged in the rehearing motion came out after the probable cause determination in 2005,
and the trial court denied the motion for rehearing. On direct appeal, James’ appellate
counsel argued that law enforcement failed to comply with state statutory requirements for
obtaining a wiretap, thereby violating his constitutional right to privacy. (Dkt. 20, Resp.
Ex. B1).
In his memorandum in support of the instant petition, James contends that the
telephone calls were used to establish probable cause in obtaining the wiretap of James’
phone. He cites his trial counsel’s argument that Deloch’s subsequent information was
essential in determining whether law enforcement had met the statutory requirements prior
to tapping James’ phone. (Dk. 2 at 7).
“Probable cause for a wiretap is the same probable cause required for a search
warrant.” United States v. Nixon, 918 F.2d 895, 900 (11th Cir.1990) (citation omitted).
Probable cause is based upon whether “given all the circumstances set forth in the
affidavit. . ., there is a fair probability that contraband or evidence of a crime will be found
in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). The court need merely
16
determine whether the judge who signed the warrant had a substantial basis for concluding
that probable cause existed. Nixon, 918 F.2d at 900 (citing Illinois v. Gates, 462 U.S. at
238-39). James’ rehearing motion did not present facts that would show the state trial
court lacked a substantial basis for finding probable cause. Accordingly, James cannot
show his appellate counsel performed deficiently by not arguing that the state trial court
erred by not granting rehearing of the order denying the wiretap motion.
James has not shown Strickland prejudice.
His appellate counsel presented
argument based on James’ allegations in the motion for rehearing. Specifically, appellate
counsel argued that the motion for rehearing “pointed out new evidence that Deloch would
testify the Defendant was not involved in any narcotics phone calls or transactions.” (Dkt.
20, Resp. Ex. B1 at 38).
In addition, appellate counsel argued that because law
enforcement failed to demonstrate the confidential source’s reliability to support probable
cause, “especially in light of the new testimony by Deloch,” law enforcement did not strictly
comply with the dictates of the statute,” rendering the application insufficient and the
wiretap authorization illegal. (Id. at 39).
Further, James failed to demonstrate that he was entitled under state law to
rehearing of the ruling on the wiretap motion based on Deloch’s subsequent testimony.
Although James’ ineffective assistance of counsel claim is a federal constitutional claim,
when “the validity of the claim that [counsel] failed to assert is clearly a question of state
law, . . . [a federal court] must defer to the state’s construction of its own law.” Will v.
Sec’y, Dep’t of Corr., 278 Fed. App’x 902, 908 (11th Cir. 2008) (quoting Alvord v.
17
Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)). Given also that his appellate counsel
advanced arguments raised in the rehearing motion, James fails to demonstrate a
reasonable probability that he would have prevailed on appeal had his appellate counsel
argued that the state trial court erred in denying the motion for rehearing of the ruling on
the wiretap motion.
The state appellate court’s denial of this ground was not contrary to or an
unreasonable application of Strickland, and the denial is not based on an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d). Darian is not entitled to relief on
Ground One.
Ground Two
James contends that his appellate counsel rendered ineffective assistance by not
arguing that the verdict form was defective. (Dkt. 1 at 7). He contends that count four of
the charging document, conspiracy to traffic in cocaine, defined trafficking as “to
manufacture or deliver or be in actual or constructive possession of 400 grams or more
but less than 150 kilograms of cocaine or any mixture containing cocaine. (Id.). James
contends that although the jury was instructed on the offense of conspiracy to traffic in
cocaine, the verdict form did not give the jury the option of finding him guilty of the lesser
offense of conspiracy “to deliver” cocaine. (Id.).
Instruction on conspiracy to deliver cocaine is not automatically required as a lesser
included offense of conspiracy to traffic in cocaine. State v. Weller, 590 So. 2d 923, 926
(Fla. 1991). In James’ case, his trial counsel did not request an instruction on conspiracy
18
to deliver cocaine as a permissible lesser offense of the conspiracy offense alleged in
count four of the charging document. For that reason, appellate counsel did not perform
deficiently by not raising the issue.
James has also failed to demonstrate prejudice. A habeas petitioner cannot show
prejudice from an appellate counsel’s failure to raise an issue that would not have been
decided because it was not preserved in the trial court. Pinkney v. Sec’y, Dep’t of Corr.,
876 F.3d 1290, 1298 (11th Cir. 2017). Further, the jury had the option of exercising its
pardon power by finding James not guilty of conspiracy to traffic in cocaine. (Dkt. 20,
Resp. Ex. A10). Accordingly, he fails to show a reasonable probability that he would have
prevailed on appeal had his appellate counsel argued that the verdict form was defective.
The state appellate court’s denial of this ground was neither an unreasonable
application of Strickland, nor based on an unreasonable determination of the facts.
James is not entitled to relief on Ground Two.
Grounds Three and Seven allege claims of ineffective assistance of trial counsel
that James raised in his amended postconviction motion and on postconviction appeal.
Ground Three
Darian James alleges that his trial counsel failed to conduct any meaningful
investigation and to call witnesses at trial. Specifically, he contends his attorneys failed
to call Marian Rivera, Chuckie James, and James Nicholas, whom Darian James
characterizes as exculpatory witnesses. He argues that these witnesses knew Tamiko
James from childhood and knew “his character to be untruthful.”
19
(Dkt. 1 at 8).
Contending that Tamiko James testified to the substance of coded calls that were obtained
through a wiretap, Darian James argues that Rivera, Chuckie James, and James Nicholas
would have testified to Tamiko’s “untruthfulness,” thereby calling into doubt his testimony.
(Id.)
Darian also alleges that he provided his counsel the names of other witnesses and
co-defendants who would have testified that Darian “was not talking about drugs.” (Dkt.
1 at 9). He contends that Derrick James, Sonya Seago, and Chuckie James signed
affidavits “attesting to these facts.” (Id.)
After conducting an evidentiary hearing, the postconviction court made these
findings in denying relief on the failure-to-investigate component of this ground:
At the evidentiary hearing Defendant testified on his own behalf. Defendant
claimed that he had provided a list of witnesses to Dalton McKeever, his trial
counsel, and that Defendant and Mr. McKeever had discussed the witnesses
“about every time [he] had a chance to talk to him about the case.” Defendant
testified that the list included Marian Rivera, Derrick James, Chuckie James,
Sonya Seago, and James Nicholas. He stated that all the listed witnesses
were codefendants except for Marian Rivera. Defendant then alleged that
Mr. McKeever told Defendant he could not call the witnesses on the list
because they were codefendants. Defendant additionally alleged that, to his
knowledge, Mr. McKeever never spoke to any of the witnesses or had an
investigator or someone else from the office speak to the witnesses.
Defendant further stated that Tamiko James, Defendant’s cousin, testified at
his trial and that Tamiko James's testimony interpreting wiretapped
conversations, along with the wiretapped conversations, was a large portion
of the case against Defendant. Defendant then testified that Tamiko James
is “a known liar” in their community. Because of Tamiko James’s untruthful
reputation, Defendant alleged, Defendant wanted the witnesses called to
testify regarding that reputation.
On cross-examination, Defendant conceded that Tamiko James, Chuckie
James, Derrick James, and James Nicholas were all his codefendants as
20
well as his relatives. When asked whether he had told Mr. McKeever that he
did speak about drugs in coded language with Tamiko James, Derrick
James, Chuckie James, or Christina Pace, Defendant responded that he had
not. Defendant also testified that he did not tell Mr. McKeever that he had
supplied drugs to Sonya Seago. Defendant also admitted to having five
previous felony convictions.
On re-direct examination, Defendant clarified that Tamiko James had an
untruthful reputation among family, friends, and “[j]ust general people on the
streets.”
Tonya Yvette James Rhodes, Defendant’s sister, then testified on
Defendant’s behalf. Ms. James Rhodes testified that she provided names of
witnesses to Mr. McKeever, including Marian Rivera, Derrick James,
Chuckie James, Sonya Seago, and James Nicholas. Additionally, Ms.
James Rhodes testified that, before trial, she spoke with Mr. McKeever or
his secretary between five to eight times.
Debra James, Defendant's mother, then testified on Defendant’s behalf.
Debra James testified that she told Mr. McKeever that her sisters, Marian
Rivera and Kathy James, and brother-in-law, as well as a few others, were
willing to testify on Defendant’s behalf. Additionally, Debra James testified
that she told Mr. McKeever during trial that Tamiko James had lied at trial
and that she wanted Mr. McKeever “to recall Tamiko as well as recall
Sidney.” Debra James also testified that Mr. McKeever did not call or recall
Tamiko James as a witness. On cross-examination, Debra James clarified
that the witnesses she wanted Mr. McKeever to investigate were Kathy
James and Willy Waedy. Additionally, she clarified that Tamiko James and
Sidney Deloch had testified on behalf of the State. Then, on re-direct
examination, Debra James clarified that she also gave Mr. McKeever Marian
Rivera’s name.
Marian Yvonne Rivera, Defendant’s aunt and the mother of Tamiko James,
testified on Defendant’s behalf. Ms. Rivera first testified that she is aware of
Tamiko James’s reputation for truthfulness in her family and the community
in general. When asked what Tamiko James’s reputation is, Ms. Rivera
testified that he is a liar. Ms. Rivera additionally stated that she would have
testified at trial that Tamiko James’s [sic] had a reputation for being
untruthful. On cross-examination, Ms. Rivera conceded that she was living
in Gibsonton, Florida and Tamiko James was living in North Tampa, Florida
at the time of Defendant’s trial in November 2007. Ms. Rivera also conceded
21
that Tamiko James was not living with her from July to September of 2005
and that she did not know where he was living.
James Nicholas, Defendant’s cousin and Tamiko James’s brother, also
testified on behalf of Defendant. Mr. Nicholas testified that he is aware of
Tamiko James’s reputation for truthfulness among the family and that he had
a reputation for being untruthful. Mr. Nicholas also testified that his case was
resolved prior to Defendant’s trial and that there was nothing, to his
knowledge, preventing him from testifying at Defendant's trial. (See EH
Transcript, p. 37, attached). Mr. Nicholas stated that if given the opportunity
to testify at trial, he would have testified about Tamiko James’s reputation
for truthfulness. On cross-examination, Mr. Nicholas conceded that at the
time he and Defendant were arrested, he was living in Wesley Chapel, which
is not in Hillsborough County, and Defendant was living in Hillsborough
County.
Derrick James, Defendant’s cousin and Tamiko James’s brother, testified on
behalf of Defendant. Derrick James first stated that he was a codefendant in
the case at hand and that his case resolved prior to Defendant’s trial. He
also testified that he was aware of some phone conversations alleged to
have been between him and Defendant and that he had a chance to review
the transcripts.
Derrick James then testified that at no point in his phone discussion were he
or Defendant discussing the purchase or sale of cocaine and that he would
have testified at trial that they were talking about “football basically and stuff.”
Derrick James also stated on the record that he waived his right to attorneyclient privilege with Mr. McKeever and identified his own signature on the
waiver.
On cross-examination, Derrick James admitted that it had been seven years
since he listened to the taped phone calls. Additionally, he admitted that he
could not read or write, and had never personally read the affidavit he signed.
Derrick James also admitted to having more than four prior felony
convictions. When questioned regarding his phone conversations with
Defendant, Derrick James testified as follows:
Q. Okay. Now you testified that you never spoke about drugs
with Darian James on the phone, is that correct?
A. Exactly.
22
Q. Okay. When the phone calls are being intercepted you
weren’t aware law enforcement was listing to you, were you?
A. How would I know that?
Q: Now, what is booger sugar?
A. Booger sugar? I have no idea what booger sugar is.
Q. Well, if you used that term to Darian on the phone, what
were you talking about?
A. It, it could be a lot of things. It a lot of terms on the phone.
I don't know.
Q: You don’t know?
A. I have no idea.
Q. Okay. What about telling Darian James that someone
wants a Michael Vick?
A. We talking about a gambling bet.
Q. So what kind of bet is a Michael Vick?
A. It’s a bet, a gambling bet. We talking about gambling. I’m
a compulsive gambler.
Q. Well explain that to me. If you said, I want a Michael Vick in
terms of gambling, what does that mean?
A. You talking about a gambling bet, point blank. Next
question.
Q. What about a softball, does that refer to an amount of
cocaine?
A. No
Q. Are you gambling on softball?
23
A. Darian is on a softball team and a football team. He a
captain.
Q: So when you ask Darian if he has any C, what does that
mean?
A. C? I have no idea. I can't recall none of that you talking
about. I don’t know what you talking about.
Chuckie Darnell James then testified on Defendant’s behalf. Chuckie James
testified that he is the cousin of Defendant and Tamiko James. He then
testified that he was aware of Tamiko James’s reputation for truthfulness in
the family and that Tamiko James[’] reputation was that “[h]e just always
lying.” Chuckie Darnell stated that had he been called to testify, he would
have testified to Tamiko James’s reputation as a liar. He additionally testified
that he was a codefendant in the case, that his case was resolved before
Defendant's case, and that he was not aware of anything preventing him
from testifying at Defendant’s trial. Chuckie James also testified that he
reviewed the wiretap conversations and that at no point during the
conversations were he and Defendant discussing the purchase or sale of
cocaine. He then stated that he would have testified to the same facts at trial.
On cross examination, when asked what he and Defendant were talking
about in their phone calls, Chuckie James testified as follows:
A. Um, we were into selling tennis shoes. lt could have been
Jordans, DVDs, it could have been a bunch of anything.
Q. So it could have been anything except for selling cocaine,
is that what you're testifying to?
A. Yes, ma’am.
Q. So you can't say exactly what the calls were about, am I
understanding correctly?
A. The calls were about Michael Vicks, which is a football
player and it’s also a term used for the number Seven Jordans,
Michael Jordans bootleg $125 a piece [sic.], $110 a piece [sic],
you know.
24
Q. Okay. So when you are on a phone call with Darian and
you tell him that you still owe him $200 for the Vick that you got
out of the apartment, what you’re telling me is that that’s about
a pair of shoes that’s [sic] a 150-dollar shoes, not about a
quarter ounce of cocaine?
A. Yes, ma'am.
Q. Okay. And how about pancakes, what are pancakes? Are
those amounts of cocaine?
A. No, ma'am.
Q. Okay. Are you talking about breakfast foods?
A. Yes, ma'am.
Q.
Okay. And were you selling breakfast out of the
apartments back then?
A.
No, ma’am.
Q. Was Darian?
A. I like to cook.
Q. Okay. Now how about thunder?
A. Marijuana.
Chuckie James additionally testified that he pled guilty to trafficking in
cocaine and being a felon in possession of a firearm.
Sonya Seago also testified on Defendant’s behalf. Ms. Seago testified that
she and Defendant have been friends for many years and are basically like
family members. Ms. Seago testified that she did not at any point in her
conversations with Defendant discuss the purchase or sale of cocaine. Ms.
Seago could not specifically recall what she and Defendant discussed in
each conversation
On cross-examination, Ms. Seago conceded that she pleaded guilty to
possession of cocaine with intent to sell or deliver and that she had cocaine
in her possession when she was arrested. She additionally admitted that she
25
had three prior felonies on her record: Additionally, Ms. Seago testified that
she and Defendant did not speak in code regarding the sale of cocaine.
The State then called Dalton McKeever, Defendant's trial counsel, to testify
regarding Defendant’s claims. Mr. McKeever testified that neither Defendant
nor any members of his family had asked Mr. McKeever to call any witnesses
on Defendant’s behalf, which included witnesses Marian Rivera, Chuckie
James, James Nic[h]olas, Derrick James, or Sonya Seago. Mr. McKeever
additionally testified that he did not have any written list of witnesses from
Defendant in his entire case file. Mr. McKeever also testified that had
Defendant or his family told him any names of witnesses, he would have
investigated them.
Mr. McKeever next testified that he reviewed the content of the intercepted
phone calls with Defendant and that Defendant indicated Tamiko, Chuckie,
Sonya Seago, and Christine Pace contacted Defendant about drugs in an
encoded manner. Mr. McKeever additionally testified that Defendant never
told him that the conversations had been misinterpreted or that they were
only regarding football. Mr. McKeever testified that Defendant admitted that
some of the phone calls could be damaging to him because he had sold
drugs to Christina Pace and she had worked for him selling drugs on some
occasions. Mr. McKeever stated that Defendant had told him that sometimes
he loaned his phone to Derrick James and that he was unsure what Derrick
James discussed in the phone calls. Mr. McKeever also testified that
Defendant did not specifically ask him to call any of Defendant’s
codefendants as witnesses and that if he had been asked to investigate the
codefendants as witnesses, he would have.
On cross-examination, Mr. McKeever conceded that if Derrick James had
been called as a witness on behalf of Defendant, he probably would have
testified that they were not talking about drugs on the phone. However, Mr.
McKeever also noted that Derrick James would have placed Defendant
inside the apartments where the drugs were being produced. Mr. McKeever
additionally testified that his strategy was to question the credibility of
witnesses Tamiko James, Christina Pace, and Sidney Deloch.
After reviewing Defendant's allegations; the testimony, evidence, and
arguments presented at the March 7, 2014 evidentiary hearing; the court file;
and the record; the Court finds, to the extent necessary, the testimony of Mr.
McKeever to be credible than that of Defendant and his additional defense
witnesses. Consequently, the Court finds that Mr. McKeever investigated the
phone calls between Defendant and his codefendants and determined from
26
Defendant’s statements that the phone conversations did relate to the sale
of drugs. Moreover, Defendant never suggested to Mr. McKeever that the
encoded conversations related to football rather than the sale of drugs.
Finally, in light of the information he gathered, Mr. McKeever opted to pursue
a strategy in which he questioned the credibility of witnesses Tamiko James,
Christina Pace, and Sidney Deloch.
After reviewing Defendant's claim, the testimony and arguments presented
at the evidentiary hearing, the court file, and the record, the Court finds that
Defendant has failed to meet his burden to demonstrate that counsel’s
performance was deficient. In demonstrating deficiency, defendants bear the
burden to “overcome the presumption that, under the circumstances, the
challenged action ‘might’ be considered sound trial strategy.” See Strickland,
466 U.S. at 690 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (] 955));
Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000) (holding that
“strategic decisions do not constitute ineffective assistance of counsel if
alternative courses have been considered and rejected and counsel’s
decision was reasonable under the norms of professional conduct”). Here,
the Court finds that Mr. McKeever reasonably investigated the facts
surrounding Defendant’s case and adopted a reasonable trial strategy,
which involved impeaching the credibility of the witnesses against Defendant
rather than calling witnesses to rebut the testimony. Thus, because
Defendant has failed to demonstrate deficiency in counsel’s performance
and that such deficiency led to prejudice, Claim (1)(a) must be denied. See
Strickland, 466 U.S. at 686-687.
(Dkt. 20, Resp. Ex. F7 at 12–15) (record citations and footnote omitted). Addressing
James’ claim that counsel failed to call witnesses at trial, the postconviction court also
credited counsel’s testimony in finding that James failed to demonstrate that his counsel’s
performance was deficient and that such deficiency prejudiced him. (Resp. Ex. 20, Resp.
Ex. F9 at 18–19).
In his memorandum in support of the instant petition, James argues that his
attorneys did not adequately investigate his case by interviewing or deposing several
“exculpatory” witnesses whom he “identified and requested that they contact.” (Dkt. 2 at
27
11). His trial counsel’s accredited testimony was that neither Darian James nor his family
provided counsel with the names of witnesses to investigate.
The state court’s
determination that counsel’s testimony was more credible than the testimony of James
and his witnesses is a finding of fact that is presumed to be correct. James has not
rebutted this presumption by clear and convincing evidence. See Rolling v. Crosby, 438
F.3d 1296, 1301 (11th Cir. 2006) (“The factual findings of the state court, including the
credibility findings, are presumed to be correct unless [the petitioner] rebuts the
presumption by clear and convincing evidence.” (citing 28 U.S.C. § 2254(e)(1)).
In addition, James has not shown that the state postconviction court unreasonably
applied Strickland in finding that counsel made a reasonable strategic decision to question
the State’s witnesses, rather than to call witnesses at trial. See Dingle v. Sec’y, Dep’t of
Corr., 480 F.3d 1092, 1099 (11th Cir. 2007) (a tactical decision amounts to ineffective
assistance “only if it was ‘so patently unreasonable that no competent attorney would have
chosen it.’” (quoting Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983)). In light
of counsel’s testimony that James told counsel that phone conversations did relate to the
sale of drugs, James fails to show that no competent attorney would have employed the
chosen strategy.
James also failed to show prejudice. In view of the state postconviction court’s
finding that counsel’s testimony was more credible than the testimony of James and his
witnesses, James failed to establish that there was any reasonable probability that the
28
outcome of the trial would have been different had counsel pursued and called James’
associates or family members at trial.
The state court’s ruling constitutes a reasonable application of Strickland and is
based on a reasonable determination of the facts. James is not entitled to relief on
Ground Three.
Ground Seven
James alleges that trial counsel induced him to sign a stipulation. At trial, the
parties stipulated to the items recovered at the Morro Manor apartment. (Dkt. 20, Resp.
Ex. A15 at 537--538, 586). According to James, his counsel explained that the stipulation
only addressed the location of the cocaine. He contends that the stipulation also dealt
with the weight of the substance and the positive result that the substance was cocaine.
(Dkt. 1 at 14). After conducting an evidentiary hearing, the postconviction court denied
this ground:
At the evidentiary hearing Defendant testified that Mr. McKeever presented
him with a stipulation. When asked what Mr. McKeever told him was in the
stipulation, Defendant testified as follows:
A. What was told to me that he didn't want the FDLE to just
come in and say that it was drugs or whatever the case may
be, but that was all we talked about at the time. He told me it
would help my case.
Q. Did he explain to you that you were agreeing to the
substance being cocaine and the amount of drugs?
A. No, ma’am. Just the fact that we didn't want the FDLE to
take the stand since we already –– it didn’t matter what the
drugs were or not –– really or not. He just didn’t want the·FDLE
to take the stand. We were going from there.
29
The State called Dalton McKeever to testify regarding the stipulation. Mr.
McKeever testified that he had a conversation with Defendant regarding
whether or not they would stipulate to the FDLE results. Specifically, Mr.
McKeever referenced his notes, which stated, “(T]alked to defendant about
stipulating to the FDLE reports. Defendant does not object because issue is
not of amount of drugs, it is constructive possession.” Mr. McKeever also
testified that he did not say that the stipulation was only as to the location of
the drugs and that he specifically discussed with Defendant what he was
stipulating to. Mr. McKeever then explained that he discussed with
Defendant how signing the stipulation fit into his trial strategy, which was
based on the theory that Defendant rented the apartments but did not have
knowledge of what was going on inside them or of the location of the drugs.
He also explained that the strategy did not involve challenging whether the
substance was cocaine or what amount of cocaine existed.
After reviewing Defendant's allegations; the testimony, evidence, and
arguments presented at the March 7, 2014 evidentiary hearing; the court file;
and the record; the Court finds the testimony of Mr. McKeever to be more
credible than that of Defendant. Accordingly, the Court finds that Mr.
McKeever fully discussed the stipulation with Defendant and explained how
the stipulation fit into his trial strategy, which was not based on challenging
the nature or amount of the substance found at the scene.
Thus, the Court finds that Defendant has failed to meet his burden to show
that Mr. McKeever's performance was deficient because Mr. McKeever did
explain to Defendant the contents of the stipulation. Moreover, the
Defendant failed to meet his burden to “overcome the presumption that,
under the circumstances, the challenged action 'might' be considered sound
trial strategy.” . . . The Court finds that Mr. McKeever exercised sound trial
strategy in advising Defendant of the contents of the stipulation and how it fit
into his theory of the case. Thus, Defendant has failed to demonstrate that
counsel’s performance was deficient, and that the outcome of his trial was
prejudiced. Consequently, no relief is warranted on Defendant’s Claim (5).
(Dkt. 20, Resp. Ex. F7 at 20–22) (citations omitted).
James has not rebutted the presumption of correctness of the state court’s
credibility determinations by clear and convincing evidence.
Counsel’s accredited
testimony shows that counsel did not advise James that the stipulation addressed only the
30
location of the drugs. Rather, counsel explained to James the matters of which he was
stipulating and how the stipulation served the defense that James rented the apartments
but had no knowledge of what occurred therein, or of the location of drugs. Based on
counsel’s testimony and the defense theory presented at trial, a fairminded jurist could
agree with the state court's determination that James failed to establish both deficient
performance and prejudice under Strickland. Because James failed to show his counsel
gave any misleading advice about the stipulation, he cannot show his counsel performed
deficiently to James’ prejudice.
The state court’s rejection of this ground does not involve an unreasonable
application of the Strickland standard. and the decision is not based on an unreasonable
determination of the facts. James is not entitled to relief on Ground Seven.
Ground Nine
James alleges that the state trial court erred in denying his motion to suppress
communications from an “illegally obtained” wiretap. (Dkt. 1 at 17). James alleges that
the State failed to comply with state statutory requirements of Chapter 934, Florida
Statutes, thereby violating his constitutional right to privacy. (Dkt. 1 at 17–18).
Specifically, James argues that law enforcement did not pursue normal investigative
techniques that were available.
He also argues that probable cause was based on
information from unreliable and unproven informants, the criminal history of eight
defendants, a controlled buy with an informant on August 22, 2005, and surveillance that
yielded no illegal activity. (Dkt. 1 at 19).
31
The Florida legislature substantially revised chapter 934 in 1988 to conform with
the federal provisions regarding the interception of wire, oral, or electronic
communications. State v. Jackson, 650 So. 2d 24, 27 (Fla. 1995). As amended in 1988,
the statute allows the interception of wire, oral, or electronic communications only when a
law enforcement agency follows the wiretap procedures in section 934.09. Jackson, 650
So. 2d at 27.
An order authorizing the interception of wire, oral, or electronic
communication requires a judicial finding of probable cause for the belief that an individual
is committing, has committed, or is about to commit an offense listed in section 934.07,
probable cause for belief that communications about the offense will be obtained through
the interception, and a determination that normal investigative procedures have failed, or
reasonably appear to be unlikely to succeed if tried or to be too dangerous. Id.
At the hearing on James’ wiretap motion, the state trial court found that the issuing
judge’s authorization order was not arbitrarily entered, there was sufficient probable case,
and statutory requirements were met. (Dkt. 20, Resp. Ex. A12 at 410).
In the written
order denying the wiretap motion, the court held that the wiretap application was sufficient,
probable cause existed, and the exhaustion requirement was met. (Dkt. 20, Resp. Ex.
A4).
To the extent that James challenges the trial court’s ruling that state statutory
requirements were met or he challenges the wiretap authorizations as violative of his state
right to privacy, he raises issues of state law for which federal habeas relief does not lie.
See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of federal
habeas court to re-examine state court determinations on state-law questions.).
32
To the extent that he argues a violation of his federal constitutional right to privacy,
he shows no entitlement to relief.
James alleges that Florida’s Security of
Communications Act is a statutory exception to state and federal constitutional rights of
privacy and must be strictly construed. (Dkt. 1 at 18). See Jackson, 650 So. 2d at 26
(stating that wiretap statutes are exceptions to the federal and state constitutional rights to
privacy) (citation omitted).
Deference must be afforded the state trial court’s
determination that law enforcement satisfied Florida’s statutory requirements for
interception of communications on Deloch and James’ phones. See United States v.
Johnson, 281 F. App’x 909, 912 (11th Cir. 2008) (stating that federal courts must defer to
state law on the question of the validity of wiretap orders obtained by state law enforcement
officers). Because his federal constitutional claim is premised on his claim that the State
did not comply with the dictates of the state’s statute and the state trial court determined
that state statutory requirements were met, James cannot establish that his federal
constitutional right to privacy was violated.
The state court’s decision is neither contrary to nor an unreasonable application of
federal law as clearly established by the Supreme Court and is not based on an
unreasonable determination of the facts. James is not entitled to relief on Ground Nine.
Ground Ten
James alleges that the trial court abused its discretion in denying his motion to sever
count ten, trafficking in cocaine, and count eleven, felon in possession of a firearm. (Dkt.
1 at 20). James alleges that both charges resulted from the execution of the search
33
warrant at his apartment on November 3, 2005, and that the charges constitute separate
episodes connected only by similar circumstances and were not relevant to the charges
alleging a violation of the “Florida RICO (Racketeering Influenced and Corrupt
Organization) Act.” Section 895.01, Florida Statutes. James alternatively argues that
any relevancy was outweighed by unfair prejudice to him “as the only connection was the
Defendant’s alleged guilt” of both offenses. (Id.)
Although James raised his issue of improper joinder of offenses on direct appeal,
he raised the issue in state law terms. (Dkt. 20, Resp. Ex. B1). The Court need not address
the exhaustion issue because the Respondent does not advance an argument that the
ground is unexhausted. Even if the ground is unexhausted, the claim warrants no relief.
See 28 U.S.C. § 2254(b)(2) (“an application for habeas corpus may be denied on the
merits, notwithstanding a petitioner's failure to exhaust in state court.”).
Under Fla. R. Crim. P. 3.150, two or more offenses which are triable in the same
court may be charged in the same indictment or information in a separate count for each
offense, when the offenses, whether felonies or misdemeanors, or both, are based on the
same act or transaction or on two or more connected acts or transactions. Id. This permits
the joinder of offenses that are causally related because they “stem from the same
underlying dispute and involve the same parties.” Spencer v. State, 645 So. 2d 377, 382
(Fla. 1994). Whether to grant a requested severance is within the trial court’s discretion.
State v. Vazquez, 419 So. 2d 1088, 1090 (Fla. 1982). To the extent that James contends
that the state trial court abused its discretion under Florida law in denying his motion for
34
severance of offenses, the claim is not cognizable on federal habeas review because it
involves only an alleged error in state law. The habeas statute “unambiguously provides
that a federal court may issue a writ of habeas corpus to a state prisoner ‘only on the
ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.’” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (quoting 28 U.S.C. §
2254(a)). “It is not the province of a federal court to reexamine state court determinations
of state law questions.” Estelle v. McGuire, 502 U.S. 62, 71-72 (1991).
To the extent this ground could be construed to present a claim that the trial court’s
refusal to sever the two counts from the remaining claims violated James’ Fifth
Amendment right to a fair trial, such claim also fails. In United States v. Lane, 474 U.S.
438, 446 n.8 (1986), the Supreme Court stated in a footnote that “[i]mproper joinder does
not, in itself, violate the Constitution. Rather, misjoinder would rise to the level of a
constitutional violation only if it results in prejudice so great as to deny a defendant his
Fifth Amendment right to a fair trial.” Id. Lane dealt with the joinder under Federal Rules
of Criminal Procedure 8 and 52. No constitutional issue was before the Court. Even
assuming, however, that the standard mentioned in the footnote in Lane governs this
issue, James shows no violation of his constitutional right to a fair trial.
The state court granted his motion for severance of offenses, in part, by severing
the felon portion of the charge alleging that he was a felon in possession of a firearm.
Further, counts ten and eleven arose from the same occurrence, the execution of the
search warrant, and evidence that a trafficking amount of cocaine and the firearm were
35
found in the apartment was within the time alleged in the rackeetering and conspiracy
offense alleged in counts one and four. In addition, the evidence was admissible and
relevant to these charges. Accordingly, joinder of the offenses would not cause undue
prejudice such as to deprive James of his federal constitutional right to a fair trial.
James is not entitled to relief on Ground Ten.
Ground Eleven
James alleges that the state trial court erred in admitting into evidence a compact
disk containing 61 recorded phone calls. (Dkt. 1 at 20). He contends that the prosecutor
played eight of the phone calls on the CD for the jury and that seven phone calls were
between Deloch and James, and one call was between Deloch and James. (Dkt. 1 at
20). James alleges that during Christine Pace’s testimony, the State introduced another
CD containing a recorded phone call between James and Pace. (Id.) In addition, he
alleges that during Tamiko James’ testimony, the State introduced nine recorded phone
calls on the CD between Tamiko and Darian, 25 calls between Darian and other identified
parties to the conversations, 17 calls between Darian and unidentified parties, and one
call between Derrick James and Jerome Fabian that did not involve Darian.
(Id.)
According to James, the State did not properly authenticate any of the recordings prior to
their introduction. (Dkt. 1 at 20). He also argues that two of the phone calls constituted
inadmissible hearsay.
Further, James argues that 42 of the calls violated the Confrontation Clause and
Bruton v. United States, 391 U.S. 123 (1968). (Dkt. 1 at 20-21). He argues the persons
36
whom Tamiko James identified as speaking with Darian did not testify at trial or were
subject to cross-examination. He also contends that none of the unidentified speakers
were subject to cross-examination. (Dkt. 1 at 22).
To the extent that James alleges the recorded conversations were inadmissible
hearsay or did not qualify under the co-conspirator hearsay exception under state law,
these claims are not cognizable on federal habeas review. Likewise, his arguments that
the State did not lay a proper predicate to authenticate the recordings are not cognizable.
See Estelle, 502 U.S. at 67–68 (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”); Wainwright v. Goode, 464
U.S. 78, 83 (1983) (“It is axiomatic that federal courts may intervene in the state judicial
process only to correct wrongs of a constitutional dimension.”).
As to his claims that the trial court’s admission of the recordings violated his
constitutional right to confrontation under Crawford v. Washington and Bruton v. United
States, 391 U.S. 123 (1968), James fails to show entitlement to relief. In Bruton, the
Supreme Court held that a criminal defendant is deprived of his right of confrontation when
a non-testifying codefendant’s facially incriminating confession, naming the defendant as
a participant, is introduced at their joint trial. Bruton, 391 U.S. at 131. (1987). See also
Greene v. Fisher, 565 U.S. 34, 36 (2011) (noting that Bruton establishes that “the
Confrontation Clause forbids the prosecution to introduce a nontestifying codefendant's
confession implicating the defendant in the crime”). After Bruton, the Supreme Court held
in Crawford v. Washington that the Confrontation Clause permits “[t]estimonial statements
37
of witnesses absent from trial. . . only where the declarant is unavailable, and only where
the defendant has had a prior opportunity to cross-examine.”
541 U.S. 36 at 52.
Testimonial statements include those “made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for use at a
later trial.” Crawford, 541 U.S. at 52. See also Davis v. Washington, 547 U.S. 813, 822
(2006) (statements are testimonial when “circumstances objectively indicate that . . . the
primary purpose of the interrogation is to establish or prove past events potentially relevant
to later criminal prosecution.”).
As Crawford recognized, “statements in furtherance of a conspiracy” are an
example of nontestimonial statements that fall outside the protection of the Confrontation
Clause. See Crawford, 541 U.S. 36 at 56 (“Most of the hearsay exceptions covered
statements that by their nature were not testimonial — for example, business records or
statements in furtherance of a conspiracy.”).
In James’ case, the statements of his co-
defendants in phone calls introduced at trial were in furtherance of the conspiracy to traffic
in cocaine and were not made under circumstances that would have led the codefendants
reasonably to believe that their statements would be available for use at a later trial. See,
e.g., United States v. Makarenkov, 401 F. App’x. 442, 444 (11th Cir. 2010) (“[T]he
statements made by [a co-conspirator] to the confidential informant were not testimonial
because the statements were not made under circumstances in which he would expect
his statements to be used in court –– he believed he was speaking to a trusted accomplice
in crime. Therefore, the admission of [the co-conspirator’s] statements did not violate
38
Makarenkov’s rights under the Confrontation Clause.”).
See also United States v.
Underwood, 446 F.3d 1340, 1347 (11th Cir. 2006) (recorded statements of co-conspirator
to informant made “in furtherance of the criminal conspiracy . . . clearly were not made
under circumstances which would have led him reasonably to believe that his statement
would be available for use at a later trial”). Because the nontestifying co-defendants’
statements in the recorded phone calls were not testimonial, the introduction of the
recorded statements did not implicate the Bruton rule. In United States v. Rodriguez, 591
F. App’x 897, 902 (11th Cir. 2015), the Eleventh Circuit stated:
We have not yet addressed, in a published case, whether an out-of-court
statement must be testimonial for Bruton to apply. However, we conclude that,
as Bruton was premised on the Confrontation Clause, its protections only
apply to testimonial statements. Every other Circuit to have considered the
issues has concluded the same. See, e.g., United States v. Berrios, 676 F.3d
118, 128–29 (3d Cir. 2012); United States v. Castro–Davis, 612 F.3d 53, 65–
66 (1st Cir. 2010); United States v. Smalls, 605 F.3d 765, 768 n. 2 (10th Cir.
2010); United States v. Johnson, 581 F.3d 320, 325–26 (6th Cir. 2009); United
States v. Avila Vargas, 570 F.3d 1004, 1008–09 (8th Cir. 2009). Accordingly,
here, there was no Bruton error.
Id. at 902. James has not shown that Bruton applies to non-testimonial statements of his
codefendants in phone conversations introduced at trial. Additionally, James had the
opportunity to cross-examine the testifying codefendants, and he establishes neither a
Bruton error or a Crawford violation in the trial court’s allowance of their statements in the
phone calls. And he shows no federal confrontation violation based on his claim that he
was deprived of an opportunity to confront unidentified speakers on intercepted phone
calls. Because the statements by unidentified co-conspirators were non-testimonial, the
39
introduction of their statements in recorded calls did not violate the Confrontation Clause.
See Whorton v. Bockting, 549 U.S. 406, 420 (2007) (Under Crawford, the Confrontation
Clause has no application to an out-of-court nontestimonial statement not subject to prior
cross-examination.).
James cites Pointer v. Texas, 380 U.S. 400 (1965), stating that to deprive a
defendant of the right to cross-examine the witnesses against him is a denial of the
Fourteenth Amendment’s guarantee of due process. Id. at 405. To the extent that he
alleges he was denied his federal right to due process because he had no opportunity to
cross-examine non-testifying co-defendants and other declarants about the phone calls,
the due process claim fails, as no Sixth Amendment confrontation violation occurred in
admission of the recorded calls, as explained, supra.
The state court’s ruling is not contrary to or an unreasonable application of clearly
established federal law and is not based on an unreasonable factual determination. He
is not entitled to relief on Ground Eleven.
Grounds Twelve, Thirteen, and Fourteen
Grounds Twelve, Thirteen, and Fourteen allege claims of trial court error concerning
the testimony of Christine Pace.
Ground Twelve
James contends the state trial court abused its discretion in denying his motion for
mistrial “when the State impermissibly introduced collateral crimes evidence,” thereby
violating his right to due process. (Dkt. 1 at 23). He alleges that his trial counsel objected
40
when Christine Pace testified that she had known James since 2001 and that in 2005 she
learned that he was involved with drugs through her husband. (Id.).
Asked how she knew to get in touch with James, Pace testified at trial that “in July
my husband disappeared, and I knew he had been dealing with Darian.” (Dkt. 20, Resp.
Ex. A15 at 342). James’ trial counsel objected and moved for a mistrial on grounds that
July 2005 was not alleged in the charging document and that the witness testified to an
uncharged crime in violation of James’ right to a fair trial. (Id.). The prosecutor argued
that the State was not offering the evidence to prove an uncharged crime. Rather, the
witness was establishing some basis for what she knew to explain her initiation of contact
with Darian. (Id.) The state trial court denied the motion for mistrial without elaboration.
James also argues that Pace did not recall specific dates. His counsel objected to
Pace’s testimony that she called James several times a day, told him what drugs she
needed, and he told her whether he had the drugs. Additionally, James alleges that his
counsel objected to Pace’s testimony that she met him several times a day and, on some
occasions, met him at Brookside Apartments. (Id.) In addition, James alleges that Pace
testified that he discussed a plan to sell drugs out of her house and that this conversation
occurred in July 2005. (Dkt. 1 at 24). James argues that Pace’s testimony constituted
impermissible collateral crimes evidence and/or hearsay. (Id.)
To the extent he contends that the state trial court abused its discretion in denying
the motion for mistrial under state law, the claim is not cognizable on federal habeas
review. To the extent he argues that the witness’ testimony constituted impermissible
41
collateral crime evidence. hearsay or irrelevant evidence, these claims also are not
cognizable in this habeas proceeding. “As a general rule, a federal court in a habeas
corpus case will not review the trial court’s actions concerning the admissibility of
evidence”, because the state court has wide discretion in determining whether to admit
evidence at trial”. Alderman v. Zant, 22 F.3d 1541, 1555 (11th Cir. 1994). See also
Boykins v. Wainwright, 737 F.2d 1539, 1543 (11th Cir. 1984) (federal courts are not
empowered to correct erroneous evidentiary rulings in state court except where rulings
deny petitioner fundamental constitutional protections). Violations of state law are not
cognizable in a § 2254 proceeding unless they are of federal constitutional magnitude.
See Pulley v. Harris, 465 U.S. 37, 41 (1984).
On direct appeal, James raised the state court’s ruling on his motion for mistrial in
state and federal terms.
The state appellate court’s decision is construed as an
adjudication of the constitutional claim on the merits. Because the state appellate court
issued a per curiam affirmance and the state trial court did not explain its reasons for
denying the motion for mistrial, James has the burden to show there was no reasonable
basis for the state court to deny relief.” Richter, 562 U.S. at 98.
The state appellate court could reasonably conclude that Pace’s testimony about
matters occurring before August of 2005 did not render the trial fundamentally unfair. See
Lisenba v. California, 314 U.S. 219, 236 (1941) (holding that in “a criminal trial, denial of
due process” occurs when the “absence of [fundamental] fairness fatally infected the trial”).
To constitute a denial of fundamental fairness, the evidence erroneously admitted at trial
42
must be material in the sense of a “crucial, critical, highly significant factor.” Jameson v.
Wainwright, 719 F.2d 1125, 1127 (11th Cir. 1983). Pace’s testimony about her initial
contact with James was offered to explain Pace’s contact with James and not to prove
James committed an uncharged crime. And while Pace could not recall specific dates of
her phone conversations with James or her dealings with James in the summer of 2005
(Dkt. 20, Resp. Ex. A15 at 364), she testified that one of the phone calls with James
occurred in October of 2005, within the time frame alleged in the information.
Viewing the evidence in its entirety, the testimony that James challenges did not so
infuse the trial with unfairness as to deny him fundamental fairness and due process, as
the State introduced other evidence of James’ guilt that was sufficiently strong, including
the testimony of Sidney Deloch and Tamiko James and the recorded phone conversations
that did not contain James’ conversations with Pace.
In view of the other strong evidence of James’ guilt, the evidence of Pace’s
conversations and dealings with James that he challenges had no “substantial and
injurious effect” on the jury's verdict. See Brecht v. Abrahamson, 507 U. S. 619, 623
(1993). (a constitutional error will provide habeas relief only when a petitioner shows actual
prejudice in that “the error ‘had substantial and injurious effect or influence in determining
the jury’s verdict.’”).
James fails to show that the state court’s rejection of this ground was contrary to,
or an unreasonable application of, clearly established federal law or was based on an
unreasonable determination of the facts. Ground Twelve does not warrant relief.
43
Grounds Thirteen through Fourteen
In Ground Thirteen, James contends that the state trial court abused its discretion,
thereby violating his right to a fair trial, by the introduction of Pace’s testimony describing
her condition when James supplied her with drugs. (Dkt. 1 at 25).
In Ground Fourteen,
James contends the state trial court denied him a constitutionally fair trial by the
introduction of a handwritten note that Pace testified James wrote to her. (Dkt. 1 at 26).
In Ground Fifteen, James alleges that the state trial court erred in allowing testimony that
Pace received a cash deposit in her jail account. (Dkt. 1 at 27). Because he has not
specified a federal constitutional violation, these claims are not cognizable in this federal
habeas proceeding. See Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (“[A]
habeas petition grounded on issues of state law provides no basis for habeas relief.”).
Further, any federal claim that could be construed from these claims is
unexhausted, as James did not fairly present to the state appellate court the federal
constitutional nature of these claims on direct appeal. (Dkt. 20, Resp. Ex. B1). A state
prisoner does not fairly present a federal claim to a state court “if that court must read
beyond a petition or a brief . . . that does not alert it to the presence of a federal claim.”
Baldwin v. Reese, 541 U.S. 27, 32 (2004). State procedural rules do not provide for
successive direct appeals. See Fla. R. App. P. 9.140(b)(3) (stating that a notice of appeal
must be filed within 30 days of the rendition of a sentence). However, the Respondent
does not argue these grounds are unexhausted and defaulted.
Notwithstanding the
exhaustion issue, the claims are meritless. See 28 U.S.C. § 2254(b)(2) (stating that a §
44
2254 petition “may be denied on the merits, notwithstanding the failure of the [petitioner]
to exhaust the remedies available in the courts of the State”).
Ground Thirteen
James alleges that the state court violated his right to a fair trial by abusing its
discretion in allowing testimony that was irrelevant, inflammatory, and prejudicial to him.
(Dkt. 1 at 25).
Specifically, he contends that James’ counsel objected when the
prosecutor asked Christina Pace what her life was like when James was furnishing her
drugs. (Id.).
Over his counsel’s objection, Pace testified at trial, “It was living hell,” because
“[when you’re an addict your every day depends on that next high. . . . So, then you
become a hustler, I mean I lost a business by my addiction. I lost a home and my family
by my addiction.” (Dkt. 20, Resp. Ex. A15 at 347). After she testified that she had
several sources during the time period and that James was the one with the most drugs,
Pace testified over objection that her photograph on a chart was not who she is because
“[t]hat woman was on drugs” and she was no longer on drugs. (Id. at 348–49).
Under Section 90.403, Florida Statutes, the trial court may exclude relevant
evidence if the court determines that the probative value is outweighed by danger of unfair
prejudice, confusion of the issues, or the potential to mislead the jury. § 90.403, Florida
Statutes (2005). James argues that Pace’s testimony about her condition when James
was supplying her with drugs was not relevant, and alternatively, the probative value was
outweighed by undue prejudice to him, as the sole purpose was to elicit sympathy from
45
the jury. (Dkt. 1 at 25). These arguments provide no basis for relief because this ground
is based on perceived errors of state law for which habeas relief does not lie. See Estelle
v. McGuire, 502 U.S. at 67–68. See also Swarthout v. Cooke, 562 U.S. 216, 219 (2011)
(“The habeas statute unambiguously provides that a federal court may issue a writ of
habeas corpus to a state prisoner only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States.”) (internal quotations and citations
omitted).
The State, on direct appeal, argued that the testimony was relevant to the offense
of trafficking in cocaine and supported Pace’s testimony that she bought cocaine on some
occasions more than once a day. (Dkt. 20, Resp. Ex. 2 at 26). Alternatively, the State
argued that the testimony was harmless in light of the totality of the evidence. (Id.) Even
if erroneous, the allowance of Pace’s testimony did not deprive James of a fundamentally
fair trial, as the State presented other relevant testimony from Pace and Tamiko James
about James’ drug transactions and conversations.
Given also the evidence of the
intercepted phone calls, Pace’s testimony about her drug addiction and condition when
she was photographed was harmless, having no substantial and injurious effect. See
Brecht, supra, at 623. James is not entitled to relief on Ground Thirteen.
Ground Fourteen
James alleges that the state trial court denied him a “constitutionally fair trial” by
allowing the introduction of a handwritten note on a card that Pace testified James sent to
46
her while she was incarcerated in jail. (Dkt. 1 at 26). According to James, the State did
not properly authenticate the note and did not establish that James wrote the note. (Id.)
At trial, Pace testified that James initiated contact with her by sending her the card
when she was in jail. (Dkt. 20, Resp. Ex. A15 at 355–56). His counsel objected on
grounds of a proper predicate and foundation. The state trial court overruled the objection
and advised his counsel that he could cross-examine Pace about the note. (Id. at 356).
Pace testified that the card was in the same or substantially the same condition as when
she received it. Noting counsel’s objection, the trial court allowed the note into evidence.
(Id. at 358). She read to the jury the note that stated, “Keep your head up and your trap
tight.
He’s got you.
Check your account.”
The card was signed, “Quick,” a name
James used. (Id.)
James contends that introduction of the handwritten note was unduly prejudicial, as
the State used the note to imply his consciousness of guilt and to show bad character.
(Dkt. 1 at 27). These allegations present state law questions involving the admissibility
of evidence under Florida law and are not cognizable claims for habeas relief. Estelle v.
McGuire, supra.
In light of other substantial evidence of his guilt presented at trial, James has not
demonstrated that the admission of his statement rendered the trial fundamentally unfair.
Considering the overwhelming evidence of his guilt, including the intercepted calls and the
testimony of Deloch and Tamiko James, the admission of the handwritten note had no
47
substantial and injurious influence in determining the jury’s verdict. Brecht, 507 U.S. at
623. James is not entitled to relief on Ground Fourteen.
Ground Fifteen
James alleges that the trial court erred in allowing inadmissible hearsay evidence
concerning a receipt for a cash deposit into Pace’s canteen account. (Dkt. 1 at 27). He
contends that the trial court agreed that the receipt was hearsay and sustained his
counsel’s hearsay objection. James further contends that the State ignored the trial
court’s ruling in introducing Pace’s testimony that she received a deposit of $25 into her
canteen account. (Dkt. 1 at 28).
To show that this evidence was offered to prove the truth of the matter asserted,
James alleges that the prosecutor, in closing argument, argued both that James put the
$25 in her account and that what Pace told the jury proved James’ guilt beyond a
reasonable doubt. (Id.)
To the extent James challenges the admission of the evidence under state law, the
claim is not cognizable on federal habeas review. See Estelle, 502 U.S. at 67–68.
In view of the other substantial evidence of his guilt, the introduction of Pace’s
testimony about the cash deposit did not render James’ trial fundamentally unfair. Even
if erroneously admitted, the testimony had no substantial and injurious effect or influence
in determining the jury's verdict given the other substantial evidence of his guilt. Brecht,
507 U.S. at 637.
James is not entitled to relief on Ground Fifteen.
48
Ground Sixteen
James alleges that the state trial court erred in denying his motion for judgment of
acquittal at the close of the State’s case. (Dkt. 1 at 28). He argues that the State failed
to present competent or substantial evidence that he was associated with an enterprise or
was engaged in two predicate acts to support a conviction for racketeering. (Id.)
James also argues that the State did not present substantial evidence that he
conspired to engage in a pattern of racketeering. In addition, he argues that the State
failed to present competent evidence that he constructively possessed a trafficking amount
of cocaine or a firearm. (Dkt. 1 at 30). He argues that the only evidence presented was
his presence in the apartment and his proximity to the items. He contends that the State
did not present sufficient evidence of his knowledge or dominion and control over the
items. (Id.)
James raised the federal constitutional dimension of this ground on direct appeal.
The state appellate court’s per curiam affirmance warrants deference under Section
2254(d) as an adjudication on the merits.
To satisfy the constitutional requirement of due process in a criminal trial, the state
must prove beyond a reasonable doubt every fact that constitutes an essential element of
the crime charged against the defendant. In re Winship, 397 U.S. 358, 364 (1970). When
considering the sufficiency of the evidence on review, the proper inquiry is not whether the
reviewing court itself believes that the evidence established guilt beyond a reasonable
49
doubt but “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citation
omitted). The court will not reweigh the evidence. Id., 443 U.S. at 319.
To establish a substantive racketeering charge under § 895.03(3), Florida Statutes:
[T]he State must prove the defendant’s “(1) conduct or participation in an
enterprise through (2) a pattern of racketeering activity.” Doorbal v. State,
983 So.2d 464, 492 (Fla. 2008). “Racketeering activity” is “defined to
include certain specified crimes under state law and under the federal RICO
Act,” . . . Carlson v. State, 405 So. 2d 173, 174 (Fla.1981); § 895.02(1)(b),
Fla. Stat. (2003); 18 U.S.C. § 1961(1). These specified crimes are typically
called predicate acts. Thus, the State must establish a “pattern of
racketeering activity” by presenting evidence that the defendant engaged in
at least two predicate acts that have the same or similar intents, results,
accomplices, victims, or methods of commission. See Morgan v. State, 117
So. 3d 79, 81–82 (Fla. 2d DCA 2013); Sanchez v. State, 89 So .3d 912, 914
(Fla. 2d DCA 2012).
de la Osa v. State, 158 So.3d 712, 725 (Fla. 4th DCA 2015).
An “enterprise,” is defined as “any . . . group of individuals associated in fact
although not a legal entity[.]” § 895.02(3), Florida Statutes (2005). To prove an enterprise,
the State need only establish two elements: (1) an ongoing organization, formal or
informal, with a common purpose of engaging in a course of conduct, which (2) functions
as a continuing unit.” Gross v. State, 765 So. 2d 39, 45 (Fla. 2000) (citing United States
v. Turkette, 452 U.S. 576, 583 (1981)). “The evidence used to establish the pattern of
racketeering element may very well be the one used to establish the enterprise element.”
See Gross, 765 So. 2d at 45 (citing Turkette) (additional citation omitted
50
Contrary to James’ argument, the State presented sufficient evidence to find he
was engaged in an enterprise, as utilized in the state racketeering statute. The evidence
of the intercepted calls showed that James was associated with his family members for
the purpose of making money from repeated criminal activity. Although he points out that
Sidney Deloch testified Deloch worked alone and not with James, Deloch also testified
that he knew James was selling cocaine during the period from August to November of
2005, and that Deloch loaned James money during that time. (Dkt. 20, Resp. Ex. A15 at
255). And Deloch testified that the money that he loaned James came from the sale of
cocaine. (Id. at 313). In addition, Deloch testified that he talked daily on the telephone
with James and that Deloch used the telephone to further his business of selling drugs.
(Id. at 138). The State introduced intercepted telephone calls and in five calls between
James and Deloch drugs and money were discussed. (Id. at 276-81).
Christine Pace testified that she obtained cocaine from James in the latter part of
2005.
She explained her procedure of obtaining cocaine from James, utilizing code
words on phone calls. (Id. at 343-45). Tamiko James testified that he received cocaine
from James and that James obtained cocaine from James Nicholas. (Id. at 388, 394).
Detective Peter’s testimony revealed that James and his associates shared the
purpose of obtaining cocaine and manufacturing crack cocaine for distribution.
The
evidence shows they carried out this purpose through their participation in the alleged
predicate acts. They discussed the procurement of cocaine and in their intercepted
conversations used terminology to conceal their common criminal purpose of obtaining
51
and distributing cocaine and reinvesting drug proceeds in more cocaine.
From the
evidence, a jury could conclude that James and his associates shared the requisite
common purpose of an ongoing organization. Gross, 765 So. at 46 (citng United States
v. Lemm, 680 F.2d 1193, 1199 (8th Cir.1982).
The State also proved that the organization with which James was associated
functioned as a continuing unit, satisfying the second sub-element of the enterprise
requirement. “Continuity [of an alleged RICO enterprise] exists where an unchanging
pattern of roles is necessary and utilized to carry out the predicate acts of racketeering.”
Id. at 46. The competent substantial evidence supports a finding that Sidney Deloch and
James Nicholas carried out a supply function in the organization and that Darian James
assumed a manufacturing and distribution function. This pattern of roles constitutes
sufficient proof of the requisite continuity.
James argues that the State did not present evidence that he participated in a
pattern of racketeering activity by engaging in at least two incidents of racketeering
conduct. See §§ 895.02(4), 895.03(3), Fla. Stat. (2005). However, the record shows the
State presented sufficient evidence of at least two predicate acts. (Dkt. 20, Resp. Ex. F6
at 11). At trial, the State presented testimony that Darian James manufactured crack
cocaine and packaged and distributed crack cocaine to others, including Christina Pace
and Tamiko James. His intercepted phone discussions with codefendants and others
about cocaine constituted evidence of his participation in conspiracy to possess or deliver
cocaine, a predicate act alleged in the racketeering count. As to the last two predicate
52
acts (Dkt. 20, Resp. Ex. A15 at 799–800), the testimony established that James was in
possession of a trafficking amount of cocaine and a firearm when the search warrant was
executed.
James argues that the State failed to present competent evidence that he was a
member of a conspiracy to engage in racketeering, count two. He is not in custody on
that count. The state appellate court reversed his conviction for conspiracy to commit
racketeering.
As to counts ten and eleven, the State presented sufficient evidence –– including
testimony that James cooked cocaine in the Morro Manor apartment and that he was
present when police found quantities of cocaine, cooking pots, an electric bill in James’
name and the firearm (Dkt. 20, Resp. Ex. A9) –– to support the findings that James
constructively possessed both a trafficking amount of cocaine and the firearm.
Viewing the evidence in the light most favorable to the prosecution, the jury could
have found the essential elements of the crimes beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. at 319. James is not entitled to relief on Ground Sixteen.
Any of James’ claims not specifically addressed in this Order have been determined
to be without merit.
Accordingly, it is ORDERED that James’ petition for writ of habeas corpus (Dkt. 1)
is DENIED. The Clerk is directed to enter judgment against Darian James and to close
this case.
53
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
It is ORDERED that James 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 petition.
28 U.S.C. ' 2253(c)(1).
A COA must first issue.
Id. To
merit a COA, James must show that reasonable jurists would find debatable both (1) the
merits of an underlying claim, and (2) the procedural issues that he seeks to raise.
28 U.S.C. ' 2254(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000).
made the requisite showing.
See
James has not
Because James is not entitled to a COA, he is not entitled
to appeal in forma pauperis.
ORDERED at Tampa, Florida, on September 24, 2018.
Darian D. James
Counsel of Record
54
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?