Fernandez v. Secretary, Department of Corrections et al
Filing
23
OPINION AND ORDER. 1. Petitioner's amended petition for a writ of habeas corpus 2 is DENIED. 2. A certificate of appealability is DENIED in this case because Petitioner cannot make "a substantial showing of the denial of a constitu tional right." 28 U.S.C. § 2253(c)(2). And because Petitioner is not entitled to a certificate of appealability, he is not entitled to proceed on appeal in forma pauperis. 3. The Clerk is directed to enter judgment against Petitioner and close this case. Signed by Judge Charlene Edwards Honeywell on 8/22/2019. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RON ALLEN FERNANDEZ,
Petitioner,
-vs-
Case No. 8:16-cv-2565-T-36SPF
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
_______________________________/
ORDER
Petitioner, a Florida prisoner, initiated this action by filing a petition for a writ of habeas
corpus pursuant to 28 U.S.C. Section 2254 (Doc. 1). He subsequently filed an amended petition
(Doc. 2). The Court ordered Respondent to show cause why the relief sought in the amended
petition should not be granted (Doc. 7). Respondent filed a limited response in opposition,
incorporating therein a motion to dismiss the petition as untimely (Doc. 9), to which Petitioner
replied (Doc. 13). The motion to dismiss was denied (see Doc. 16), and Respondent filed a
supplemental response (Doc. 21). Upon consideration, the amended petition will be denied.
PROCEDURAL BACKGROUND
Petitioner was found guilty of theft and aggravated battery (Doc. 9-1, p. 3).1 He was
sentenced to 15 years in prison on the aggravated battery conviction, and 5 years on the theft
conviction, consecutive to the aggravated battery (Id., pp. 4-12). His convictions and sentences were
affirmed on appeal (Id., pp. 15-16).
1
Petitioner had two trials, the first ending in a mistrial after a witness testified that Petitioner had told her that
he was going back to prison (see Doc. 22-2, docket pp. 326-34).
Petitioner’s motion for post-conviction relief was denied (Doc. 22-4, docket pp. 231-350),
and the denial of the motion was affirmed on appeal (Doc. 9-1, p. 68, 70). He thereafter initiated
this action by filing a petition for a writ of habeas corpus (Doc. 1). His amended petition (Doc. 2)
is now before the Court.
DISCUSSION
The amended petition raises five grounds for relief:
Ground One:
MS. AMBER TUCKER RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL FOR FAILING TO PROTECT MR. FERNANDEZ’S RIGHT
TO A SPEEDY TRIAL BY WAIVING THE RIGHT AGAINST MR.
FERNANDEZ’S ORAL MOTION FOR SPEEDY TRIAL
Ground Two:
MS. JENNIFER STROUF RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN SHE WITHDREW HER REQUEST FOR MISTRIAL
DURING THE TESTIMONY OF STATE WITNESS JACQUELINE
BEILER
Ground Three:
MS. JENNIFER STROUF RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN SHE FAILED TO OBJECT TO THE SURPRISE
TESTIMONY OF STATE WITNESS BILLY HAMM AS A DISCOVERY
BRADY V. MARYLAND VIOLATION
Ground Four:
MS. JENNIFER STROUF RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN SHE FAILED TO PREPARE AND ADVISE MR.
FERNANDEZ ON THE CORRECT NUMBER OF PRIOR CONVICTIONS
THAT COULD BE USED TO IMPEACH HIS TESTIMONY
Ground Five:
MS. JENNIFER STROUF AND MS. MELISSA WILSON RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO MOVE
FOR JUDGMENT OF ACQUITTAL RELATIVE TO THE LESSER
INCLUDED OFFENSE OF GRAND THEFT
I. GOVERNING LEGAL PRINCIPLES
This case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson
v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The AEDPA “establishes a more deferential
2
standard of review of state habeas judgments,” Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir.
2001), in order to “prevent federal habeas ‘retrials’ and to ensure that state-court convictions are
given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002); see also
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (recognizing that the federal habeas court’s evaluation
of state-court rulings is highly deferential and that state-court decisions must be given the benefit of
the doubt).
A. Standard of Review Under the AEDPA
Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim adjudicated
on the merits in state court unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The phrase “clearly established Federal law,” encompasses only the holdings
of the United States Supreme Court “as of the time of the relevant state-court decision.” Williams v.
Taylor, 529 U.S. 362, 412 (2000).
“[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the
‘contrary to’ and ‘unreasonable application’ clauses articulate independent considerations a federal
court must consider.” Maharaj v. Secretary for Dep’t. of Corr., 432 F.3d 1292, 1308 (11th Cir.
2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker
v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
Under the “contrary to” clause, a federal court may grant the writ if the state court
arrives at a conclusion opposite to that reached by [the United States Supreme Court]
on a question of law or if the state court decides a case differently than [the United
3
States Supreme Court] has on a set of materially indistinguishable facts. Under the
‘unreasonable application’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the United States
Supreme Court’s] decisions but unreasonably applies that principle to the facts of the
prisoner’s case.
If the federal court concludes that the state court applied federal law incorrectly, habeas relief is
appropriate only if that application was “objectively unreasonable.” Id.
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state
court’s decision “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” A determination of a factual issue made by a state court,
however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28
U.S.C. § 2254(e)(1).
B. Standard for Ineffective Assistance of Counsel
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984),
established a two-part test for determining whether a convicted person is entitled to relief on the
ground that his counsel rendered ineffective assistance: (1) whether counsel’s performance was
deficient and “fell below an objective standard of reasonableness”; and (2) whether the deficient
performance prejudiced the defense.2 Id. at 687-88. A court must adhere to a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. at
689-90. “Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
2
In Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), the United States Supreme Court clarified that the prejudice
prong of the test does not focus solely on mere outcome determination; rather, to establish prejudice, a criminal defendant
must show that counsel’s deficient representation rendered the result of the trial fundamentally unfair or unreliable.
4
conduct.” Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of
counsel:
has nothing to do with what the best lawyers would have done. Nor is the test even
what most good lawyers would have done. We ask only whether some reasonable
lawyer at the trial could have acted, in the circumstances, as defense counsel acted
at trial. Courts also should at the start presume effectiveness and should always avoid
second guessing with the benefit of hindsight. Strickland encourages reviewing courts
to allow lawyers broad discretion to represent their clients by pursuing their own
strategy. We are not interested in grading lawyers’ performances; we are interested
in whether the adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules
and presumptions, “the cases in which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between.” Rogers v. Zant, 13 F.3d 384, 386 (11th
Cir. 1994).
C. Exhaustion of State Remedies and Procedural Default
Before a district court can grant habeas relief to a state prisoner under § 2254, the petitioner
must exhaust all state court remedies that are available for challenging his conviction, either on
direct appeal or in a state post-conviction motion. See § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526
U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act on his
claims before he presents those claims to a federal court in a habeas petition.”). A state prisoner
“‘must give the state courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process,’ including review by the state’s
court of last resort, even if review in that court is discretionary.” Pruitt v. Jones, 348 F.3d 1355,
1358-59 (11th Cir. 2003) (quoting O’Sullivan, 526 U.S. at 845.)
To exhaust a claim, a petitioner must make the state court aware of both the legal and factual
5
bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (“Exhaustion of
state remedies requires that the state prisoner ‘fairly presen[t] federal claims to the state courts in
order to give the State the opportunity to pass on and correct alleged violations of its’ prisoners
federal rights.’”) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). A federal habeas petitioner
“shall not be deemed to have exhausted the remedies available in the courts of the State. . .if he has
the right under the law of the State to raise, by any available procedure, the question presented.”
Pruitt, 348 F.3d at 1358. The prohibition against raising an unexhausted claim in federal court
extends to both the broad legal theory of relief and the specific factual contention that supports
relief. Kelley v. Sec’y, Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).
The requirement of exhausting state remedies as a prerequisite to federal review is satisfied
if the petitioner “fairly presents” his claim in each appropriate state court and alerts that court to the
federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971).
A petitioner may raise a federal claim in state court “by citing in conjunction with the claim the
federal source of law on which he relies or a case deciding such claim on federal grounds, or simply
by labeling the claim ‘federal.’” Baldwin v. Reese, 541 U.S. 27, 32 (2004).
The doctrine of procedural default provides that “[i]f the petitioner has failed to exhaust state
remedies that are no longer available, that failure is a procedural default which will bar federal
habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice
exception is established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To establish cause
for a procedural default, a petitioner “must demonstrate that some objective factor external to the
defense impeded the effort to raise the claim properly in state court.” Wright v. Hopper, 169 F. 3d
695, 703 (11th Cir. 1999). See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice,
6
a petitioner must demonstrate not only that the errors at his trial created the possibility of prejudice
but that they worked to his actual and substantial disadvantage and infected the entire trial with error
of constitutional dimensions. United States v. Frady, 456 U.S. 152 (1982). The petitioner must
show at least a reasonable probability of a different outcome. Crawford v. Head, 311 F.3d 1288,
1327-28 (11th Cir. 2002).
Alternatively, a petitioner may obtain federal habeas review of a procedurally defaulted
claim if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter,
529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96. A fundamental miscarriage of justice occurs
in an extraordinary case where a constitutional violation has probably resulted in the conviction of
someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995). “‘[A]ctual innocence’
means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623
(1998). To meet this standard, a petitioner must show a reasonable likelihood of acquittal absent
the constitutional error. Schlup, 513 U.S. at 327.
II. ANALYSIS
A. Ground One
Petitioner contends that Attorney Tucker was ineffective in waiving Petitioner’s right to
speedy trial against his expressed wishes.3 He alleges that he did not agree with Attorney Tucker
when on January 14, 2009, she moved for a continuance of his trial scheduled for January 20, 2009.
He argues that he was prejudiced by the continuance because it allowed the State to collect DNA
evidence from him, which was used against him at trial. He states that in light of the DNA evidence
3
Attorney Amber L. Tucker filed Petitioner’s first two motions for continuances (Doc. 22-2, docket pp. 53, 57).
During Petitioner’s trials, he was represented by Attorneys Jennifer H. Strouf and Melissa Wilson (Doc. 22-2, docket
pp. 229, 341).
7
and “late witnesses,” he was “forced” into pursing a “risky” theory of self-defense and testifying at
trial. He contends that had Attorney Tucker not waived speedy trial, there is a reasonable
probability that the outcome of his trial would have been different.
This claim was raised in Ground One of Petitioner’s Amended Second Motion for
Postconviction Relief (Doc. 22-4, docket pp. 102–04). After an evidentiary hearing (see id., docket
pp. 145-225), the state post-conviction court denied the claim as follows:
Defendant alleges ineffective assistance of counsel due to trial counsel’s
failure to protect Defendant’s right to speedy trial. Defendant alleges he was arrested
on July 26, 2008, and Fla. R. Crim. P. 3.191(a) provides every person charged with
a felony shall be brought to trial within 175 days of arrest. Defendant explains his
speedy trial period expired on January 17, 2009, and with the recapture period until
February 1, 2009. Defendant alleges his trial was scheduled for January 20, 2009, but
at a pretrial conference on January 14, 2009, his counsel moved for a continuance
and in her motion stated she had consulted with Defendant who has no objection and
understands speedy trial is waived on granting the motion. Defendant alleges he did
not agree to waive speedy trial and orally moved for speedy trial which counsel did
not adopt. Defendant alleges the continuance harmed his defense because it allowed
the State more time to prepare and allowed the State time to move to compel blood
and saliva samples from the Defendant for comparison to evidence from the crime
scene. Defendant explains an analysis of the evidence from the crime scene resulted
in a DNA match of the Defendant to a tank top found at the scene and to the victim’s
socks. Defendant alleges that needlessly continuing the trial bolstered the State’s
case through DNA evidence and forced Defendant into a risky self-defense
argument, required Defendant to admit to the offense and testify at trial.
In his Amended Second Motion, Defendant alleges the waiver of speedy trial
was not consensual and not a reasonable trial strategy. Defendant alleges absent
counsel’s performance there is a reasonable probability the outcome of the trial
would have been different.
At the January 9, 2015 evidentiary hearing, Amber Tucker, Defendant’s
former counsel testified. Counsel testified she began her representation of Defendant
in November of 2008. (Evid. Hrg. Transc. p. 13). Counsel testified she met with
Defendant on January 12, 2009, and explained how speedy trial worked. (Evid. Hrg.
Transc. p. 14). Counsel explained she requested a continuance because her level of
preparation on January 14, 2009 was only in the beginning stages. (Evid. Hrg.
Transc. p. 15). Counsel admitted Defendant was not in agreement with having his
case continued and waiving his speedy trial rights. (Evid. Hrg. Transc. p. 18).
8
On cross examination, counsel testified that in December, 2008 she requested
depositions of witnesses named in the police reports, but the first date she was able
to schedule to take depositions was not until January, 23, 2009; three days after
Defendant’s case was set for trial. (Evid. Hrg. Transc. p. 20). Counsel explained she
did not feel she would be effective going to trial before taking depositions, as they
are an invaluable resource in preparation for trial because witnesses may have heard
statements that were not included in the police report. (Evid. Hrg. Transc. p. 21).
Counsel testified she filed a second motion to continue on February 11, 2009, and
Defendant had no objection to the continuance at that time. (Evid. Hrg. Transc. pp.
21 22).
Defendant testified at the evidentiary hearing. Defendant testified that
maintaining his speedy trial right was a large concern for him because he had a good
relationship with some of the witnesses and he felt that could change suddenly.
(Evid. Hrg. Transc. pp. 68-69). He testified that Ms. Tucker advised him she was
moving to continue his trial, and that he did not agree with her decision because it
would waive his speedy trial right. (Evid. Hrg. Transc. pp. 69-70).
Defendant testified once his speedy trial right was waived, he no longer had
any objection to continuing his case, because the State then had an opportunity to
collect DNA evidence. (Evid. Hrg. Transc. pp. 71-72).
After reviewing Defendant’s allegations, the testimony taken at the January
9, 2015 evidentiary hearing, the court file, and the record, the Court finds counsel’s
testimony at the evidentiary hearing to be more credible. The Court finds counsel’s
decision to continue Defendant’s case in order to depose witnesses was a reasonable
trial strategy. The Court notes that counsel may waive a defendant’s right to speedy
trial even against the defendant’s wishes. See State v. Kruger, 615 So. 2d 757 (Fla.
4th DCA 1993). The Court additionally finds that Defendant’s claim that the
continuances bolstered the State’s case through DNA evidence is without merit, as
DNA results were not available until March 31, 2009, and Defendant did not object
to his case being continued on February 11, 2009. (Evid. Hrg. Transc. pp. 75-77).
Consequently, the Court finds counsel’s performance was not deficient and no relief
is warranted on claim one.
(Id., docket pp. 233-35).
The state post-conviction court’s denial of this claim did not result in a decision that involved
an unreasonable application of Strickland, or was based on an unreasonable determination of the
facts. Attorney Tucker was not deficient in moving for a continuance without Petitioner’s consent
because “scheduling issues are the province of counsel.” Fayson v. Sec’y, Fla. Dep’t of Corr., 568
9
F. App’x 771, 774 (11th Cir. 2014). “An attorney, acting without consent from his client, may
waive his client’s right to a speedy trial because ‘[s]cheduling matters are plainly among those
[decisions] for which agreement by counsel generally controls.’” Id., 568 F. App’x at 773 (quoting
New York v. Hill, 528 U.S. 110, 115 (2000) (alterations in original)).
Attorney Tucker’s decision to move for a continuance was not objectively unreasonable. She
began her representation of Petitioner in November 2008, and requested depositions of witnesses
in December 2008. However, she was unable to schedule the first deposition until January 23, 2009,
three days after the scheduled date for trial (Doc. 22-4, docket p. 164). And additional depositions
were scheduled for April 3, 2009 (Id., docket p. 166). Attorney Tucker believed that depositions
were “an invaluable tool or resource in preparation for trial[,]” and she would not have been
effective if she went to trial without taking the depositions (Id., docket pp. 164-65). In light of these
circumstances, Attorney Tucker made a reasonable strategic decision to move for a continuance and
waive speedy trial. See Fayson, 568 F. App’x at 774 (counsel’s decision to move for continuance
and waive speedy trial was not objectively unreasonable “because counsel still had 23 depositions
to conduct 5 days before trial, including 2 of the state’s key witnesses.”); Strickland, 466 U.S. at 690
(1984) (“strategic choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable”).
Even if Attorney Tucker’s decision to request a continuance amounted to deficient
performance, Petitioner has failed to demonstrate prejudice. There was ample evidence, other than
the DNA evidence and Petitioner’s own testimony,4 tying Petitioner to the battery of the victim and
4
Petitioner appears to contend that once the State obtained the DNA evidence, he was forced to testify and
present a theory of self-defense. Petitioner testified that he obtained the victim’s money, watch, and necklace in
exchange for cocaine (Doc. 22-3, docket pp. 444-47). He further testified that he had to physically defend himself by
fighting the victim after the victim grabbed him and attempted to pull him into a car (Id., docket pp. 449-54).
10
theft of the victim’s property. The victim identified Petitioner as the man who approached him and
with whom he had a confrontation before he awoke in the hospital (Doc. 22-3, docket pp. 35-38).
At the time of the confrontation, the victim was wearing a gold necklace and watch, and had cash
in his wallet (Id., docket pp. 33, 37). Witnesses testified that after the time of the offense, they saw
Petitioner with blood on his arms, pants, shoes, and shirt, and the money he possessed had blood on
it (Id., docket pp. 138- 41, 161-62, 204). Witnesses also testified that Petitioner had told them that
he was in trouble because someone saw him dragging a body down the road, and that he had hurt
someone badly and tried to carry him (Id., docket pp. 149-50, 167). During a telephone conversation
between Petitioner and a witness while Petitioner was in jail, Petitioner admitted to an altercation,
but claimed it was self-defense (Id., docket p. 171). Petitioner told another witness that he beat up
the victim because he wanted the victim’s money and chain (Id., docket p. 276). Another witness
was told by Petitioner that he had taken the victim’s watch and wallet (Id., docket p. 218). That
witness gave the watch to a detective (Id., docket p. 259). That watch, and the gold necklace
Petitioner had been wearing, belonged to the victim (Id., docket p. 329, 333). In light of this
evidence, Petitioner has failed to demonstrate a reasonable probability that, but for defense counsel
waiving speedy trial, the result of the trial would have been different.
The state courts’ denial of this claim was not an unreasonable application of Strickland, nor
was it based on an unreasonable determination of the facts. Accordingly, Ground One does not
warrant federal habeas relief.
B. Ground Two
Petitioner contends that Attorney Strouf was ineffective in withdrawing the motion for
mistrial she made after witness Jacqueline Beiler testified that Petitioner told her that he got jumped
11
earlier in the night and got into another fight later that night. He alleges that Beiler’s testimony
violated a motion in limine prohibiting the State from introducing evidence that Petitioner had been
in another fight earlier on the same night that the offense for which he was being tried had occurred.
He opines that the testimony was prejudicial to him and denied him a fair trial because it
“characterized him [as] a violent person and damaged his ability to argue self-defense.” (Doc. 2,
p. 9). He argues that had Attorney Strouf not withdrawn the motion for mistrial, it would have been
granted.
This claim was raised in state court as Ground Two of Petitioner’s Amended Second Motion
for Postconviction Relief (Doc. 22-4, pp. 104-05). In denying the claim, the state post-conviction
court stated:
Defendant alleges ineffective assistance of counsel due to trial counsel
withdrawing her request for mistrial. Defendant alleges defense’s motion in limine
was granted prior to trial prohibiting the State from introducing evidence that
Defendant had been involved in another fight on the night of the offense.
Defendant alleges State witness Jacqueline Beiler testified that Defendant told her
he got jumped earlier in the night and got in another fight. Defendant alleges counsel
then requested a mistrial and that the prosecutor agreed the witness had been
instructed to follow the motion in limine. Defendant alleges counsel then withdrew
the motion for mistrial stating she conferred with the Defendant and that Defendant
does not want to declare a mistrial, and requested if the witness was instructed to go
no further she believed it would not be error requiring a mistrial. Defendant
alleges counsel never asked him for his input on this matter or the strategy.
Defendant alleges the testimony that he was in a fight earlier in the night
characterized him a violent person and damaged his ability to argue self-defense.
In his Amended Second Motion, Defendant alleges counsel should have
stuck with the motion for mistrial. Defendant alleges counsel’s error prejudiced
him and that absent counsel’s error there is a reasonable probability the outcome of
the trial would have been granted [sic].
The Court previously found claim two facially sufficient and ordered the
State to respond. In Response, the State argues the record refutes Defendant’s
allegation. The State explains the Court asked counsel to confer with her client and
counsel stated twice she conferred with her client regarding the request for mistrial.
12
The State argues Defendant did not indicate to the Court that counsel did not confer
with [sic] concerning the request for mistrial. The State further argues the motion
for mistrial would not have been granted because the Court found that the
statement did not violate the motion in limine.
A review of the record reflects, that on direct examination State witness
Jacqueline Beiler was asked by the State “and what was it that the defendant told you
about why he was covered in blood?” to which Beiler responded: “he said that he
had got jumped earlier that night, but then he had also stated that he got in another
fight later on in the night and that he had basically got the chain that night.” Tr.
Transc. p. 327. Counsel objected and requested a mistrial arguing that Beiler’s
testimony was excluded by a pretrial motion in limine. Tr. Transc. p. 327.
Counsel requested to confer with the Defendant and twice informed the court she had
conferred with the Defendant. Tr. Transc. p. 328-29. Counsel informed the court
that after conferring with the Defendant and co-counsel, although the defense
believed Beiler’s testimony was subject of the pretrial motion in limine, that:
At this point in time, the defendant does not wish to have this
declared a mistrial, although we’ve explained that, on [sic], I asked
for that at the bench, and two, I think we could ask for the [sic] that
as the testimony thus far was simply that he was jumped earlier in the
night and it was not a matter of a fight or something that he stated.
If the witness is instructed to go no further and does not
discuss anything else about being jumped or a fight or that witness’
testimony does not somehow convert into a fight, we believe this will
not be an error that is such that require [sic] a mistrial.
However, of course, that is predicated upon it going no
further. We’ve also discussed it and thought about it and any
curative instruction I could possibly ask for I think would only
highlight the situation and highlight that there were, in fact, two
possible incidents that evening.
So at this time, I withdraw my request for a mistrial, but that
is of course, predicated upon the witness being instructed to go no
further....
Tr. Transc. pp. 329-30. The Court went on and noted that Defendant’s April
6th motion in limine concerned “allegations, any and all, of uncharged conduct
including, but not limited to, an unrelated fight which is alleged to have occurred on
or about July 25th, 2008 between defendant and individuals who are appearing at
trial.” Tr. Transc. pp. 331. The Court concluded the testimony presented by
witness Beiler was not about a fight but that Defendant had been jumped earlier in
the evening. Tr. Transc. pp. 331.
After reviewing Defendant’s Motion, the State’s Response, the court file, and
13
the record, the Court finds contrary to Defendant’s allegation the record reflects
counsel did confer with the Defendant concerning withdrawing the request for a
mistrial and counsel gave a detailed explanation to the court as to the Defendant’s
decision to withdraw the request for a mistrial. See Tr. Transc. pp. 328-30.
Additionally, the record reflects the Court concluded witness Beiler’s testimony
did not violate the motion in limine because the testimony was not about a fight but
that Defendant had been jumped. See Tr. Transc. p. 331. Consequently, the Court
finds the record conclusively refutes Defendant’s allegations in claim two. Further,
the Court finds Defendant cannot demonstrate prejudice given the Court’s conclusion
that Beiler’s testimony was not about a fight but about Defendant being jumped
and thus the testimony was not yet in violation of the motion in limine. See Tr.
Transc. p. 327; 331. As such, no relief is warranted on claim two.
(Doc. 22-4, pp. 122-24) (emphasis in original).
The state post-conviction court concluded that defense counsel was not deficient in
withdrawing the motion for mistrial, and there was no prejudice to Petitioner, because the trial court
found that Beiler’s testimony did not violate the motion in limine, and therefore the motion for
mistrial would have been denied had it not been withdrawn. Whether a motion would have
succeeded under Florida’s standard for granting a mistrial is a question of state law. This Court
must defer to the state court’s interpretation of state law. See Will v. Sec’y, Dep’t of Corr., 278
Fed.Appx. 902, 908 (11th Cir. 2008) (“Although an ineffective-assistance-of-counsel claim is a
federal constitutional claim, which we consider in light of the clearly established rules of Strickland,
when ‘the validity of the claim that [counsel] failed to assert is clearly a question of state law, ... we
must defer to the state’s construction of its own law.’”) (quoting Alvord v. Wainwright, 725 F.2d
1282, 1291 (11th Cir. 1984)); Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) (“[T]he
Alabama Court of Criminal Appeals has already answered the question of what would have
happened had [counsel] objected to the introduction of Callahan’s statements ... Therefore, [counsel]
was not ineffective for failing to make that objection.”); Herring v. Sec’y, Dep’t of Corr., 397 F.3d
1338, 1354-55 (11th Cir. 2005) (“The Florida Supreme Court already has told us how the issues
14
would have been resolved under Florida state law had [petitioner’s counsel] done what [petitioner]
argues he should have done ... It is a ‘fundamental principle that state courts are the final arbiters
of state law, and federal habeas courts should not second-guess them on such matters.’”) (quoting
Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)).
The record supports the state post-conviction court’s factual finding that the trial court found
that Beiler’s testimony did not violate the motion in limine. The motion in limine requested, in
pertinent part, instruction from the court prohibiting the State from commenting on a fight involving
Petitioner that occurred earlier on the same day as the offense for which Petitioner was on trial, and
that was unrelated to the offense (Doc. 22, docket pp. 108-09). The purpose of the request was to
prevent any comment on Petitioner’s “character, other crimes, wrongs, or acts. . . .” (Id., docket p.
108). The motion in limine was granted (Id., docket p. 125).
During direct examination of Beiler, the prosecutor asked “And what was it that the
defendant told you about why he was covered in blood?” (Doc. 22-3, docket p. 142, lines 7-8).
Beiler answered “[h]e said that he had got jumped earlier that night, but then he had also stated that
he got in another fight later on in the night and that he had basically got the chain that night.” (Id.,
lines 9-12). Defense counsel approached the bench and moved for a mistrial, arguing that Beiler’s
testimony violated the motion in limine prohibiting any comment on a fight involving Petitioner
earlier in the night (Id., lines 14-21). However, after consulting with both co-counsel and Petitioner,
defense counsel withdrew the motion for mistrial on the condition that the court instruct Beiler “to
not go further and. . .not discuss anything else about being jumped or a fight or that witness’s
testimony does not somehow convert into a fight. . . .” (Id., docket pp. 144-45).
The trial court reviewed the motion in limine and determined that it requested no comment
15
on “allegations. . .of uncharged conduct including, but not limited to, an unrelated fight which is
alleged to have occurred on or about July 25th, 2008 between defendant and individuals who are not
appearing at trial.” (Id., docket p. 146, lines 7-11). The trial court concluded that the motion in
limine had not been violated because Beiler’s testimony was “not about a fight, but that [Petitioner]
had been jumped earlier.” (Id., lines 14-15).
Because the trial court determined that Beiler’s testimony did not violate the motion in
limine, the state post-conviction court’s decision was not based on an unreasonable determination
of the facts. And the decision was not an unreasonable application of Strickland, since defense
counsel was not deficient for withdrawing a motion for mistrial that would have been denied.
Accordingly, Ground Two warrants no relief.
C. Ground Three
Petitioner contends that Attorney Strouf was ineffective in failing to object to State witness
Billy Hamm’s “surprise” testimony that Petitioner had asked him to lie at trial on the ground that
the testimony amounted to a Brady violation.5 Petitioner alleges that near the conclusion of Hamm’s
direct testimony, the prosecutor informed the judge and Attorney Strouf that Hamm was going to
testify that Petitioner had asked him to lie at trial. Although Attorney Strouf moved to exclude the
testimony based on its content, she did not argue that it should be excluded as a “Brady/discovery
violation.” Petitioner argues that Attorney Strouf should have moved to exclude the testimony based
on the “timeliness of production.”
Petitioner further contends that Attorney Strouf was deficient in failing to request a
continuance “to further investigate or to discover impeachment evidence[,]” and in failing to cross5
See Brady v. Maryland, 373 U.S. 83 (1963) (government must disclose all exculpatory information in its
possession to the defendant).
16
examine Hamm regarding this testimony. He asserts that the testimony prejudiced him because it
“completely undermined” his credibility.
These three sub-claims were raised in state court in Ground Two of Petitioner’s Amended
Second Motion for Postconviction Relief (Doc. 22-4, pp. 105-07). In denying Ground Two, the state
post-conviction court stated:
Defendant alleges ineffective assistance of counsel due to trial counsel’s
failure to respond to the surprise testimony of State witness Billy Hamm. Defendant
alleges near the end of Hamm’s direct testimony the prosecutor informed the Court
and defense counsel that Hamm was going to testify that Defendant asked him to lie
at trial. Defendant alleges the prosecutor told the Court that Hamm and Defendant
rode to court from the jail together, discussed the case on the bus ride, and Defendant
told Hamm to lie. Defendant alleges after Hamm testified that Defendant asked him
to lie, counsel failed to cross examine Hamm on this allegation. Defendant asserts
that trial counsel’s error materially contributed to his conviction that absent the
error
there is a reasonable probability the result of the proceeding would have been
different.
At the January 9, 2015 evidentiary hearing Defendant’s former trial
counsel Jennifer Strouf testified. Counsel testified she represented Defendant in two
trials, the first of which was a mistrial. (Evid. Hrg. Transc. p. 25). Counsel testified
that at the second trial, toward the end of the State’s direct examination of Billy
Hamm, the prosecutor asked to approach the bench and informed defense counsel
that the State planned to elicit testimony from Hamm based on a conversation he
had with Defendant on the bus ride from the jail to the courthouse that morning.
(Evid. Hrg. Transc. pp. 30-31). Counsel testified she then proffered Hamm to the
Court, and used the one hour lunch break in trial to discuss with her co-counsel
and Defendant about how to proceed. (Evid. Hrg. Transc. p. 32). Counsel explained
her strategy for dealing with Hamm’s damaging testimony:
“Here was the problem I had. I had to make a choice. I could either
choose to argue with Mr. Hamm, assuming the conversation
happened and try to minimize it...or I could choose to somewhat
ignore the statement and call Mr. Hamm a liar. If I chose to cross
examine him to the extent I did with the proffer, I was essentially
owning that the conversation happened.”
(Evid. Hrg. Transc. p. 38). Counsel testified she was concerned that if she
questioned Billy Hamm about his conversation with Defendant on the bus ride from
17
jail, she ran the risk of corroborating Hamm’s testimony and alerting the jury that
Defendant was in custody. (Evid. Hrg. Transc. p. 33). Counsel admitted she
purposely did not ask a specific question on cross examination about the
conversation, and instead chose to mention it in only in closing argument. (Evid.
Hrg. Transc. p. 35). Counsel testified she cross examined Hamm on his bias
against Defendant, and his prior convictions for crimes of dishonesty in lieu of
directly addressing the veracity of the bus conversation. (Evid. Hrg. Transc. p. 37).
The Court notes “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.” Occhicone
v. State, 768 So. 2d 1037, 1048 (Fla. 2000). The defendant carries the burden of
overcoming the presumption that a decision might be considered sound trial
strategy. Strickland, 466 U.S. at 689; see also Asay v. State, 769 So. 2d 974, 984
(Fla. 2000). “Counsel’s strategic decisions will not be second-guessed on
collateral attack.” Johnson v. State, 769 So.2d 990, 1001 (Fla. 2000).
After reviewing Defendant’s allegations, the testimony taken at the January
9, 2015 evidentiary hearing, the court file, and the record, the Court finds counsel
made a reasonable decision in trial strategy by choosing to attack Billy Hamm’s
testimony in closing argument rather than specifically addressing it on cross
examination. Consequently, the Court finds counsel’s performance was not
deficient and no relief is warranted on claim three.
(Id., docket pp. 235-37) (emphasis in original).
With respect to Ground Three of the instant petition, Respondent first argues that Petitioner
failed to exhaust his state court remedies with regard to his sub-claims that Attorney Strouf was
ineffective in failing to (1) move to exclude Hamm’s testimony as a Brady/discovery violation, and
(2) move for a continuance to further investigate the matter, since he did not raise these claims on
appeal from the denial of his amended second Rule 3.850 motion (see Doc. 21, pp. 15-16). The
Court agrees.
Before a district court can grant habeas relief to a state prisoner under § 2254, the petitioner
must exhaust all state court remedies that are available for challenging his conviction, either on
direct appeal or in a state post-conviction motion. See § 2254(b)(1)(A); O’Sullivan, 526 U.S. at 842.
18
To exhaust state remedies a state prisoner “‘must give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of the State’s established appellate review
process,’ including review by the state’s court of last resort, even if review in that court is
discretionary.” Pruitt, 348 F.3d at 1358-59 (quoting O’Sullivan, 526 U.S. at 845). See also Leonard
v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979) (stating that exhaustion of a claim raised in a Rule
3.850 motion includes an appeal from the denial of the motion). Petitioner did not raise these two
sub-claims on appeal from the denial of his amended second Rule 3.850 motion (see Doc. 22-4,
docket pp. 539-41). His failure to raise these sub-claims in his Initial Brief resulted in the
abandonment of the claims. See Ward v. State, 19 So. 3d 1060, 1061 (Fla. 5th DCA 2009) (en banc).
The sub-claims are now procedurally defaulted because any future attempt to exhaust these
claims in state court would be futile under Florida’s procedural default doctrine, since the state rule
requiring submission of an appellate brief bars Petitioner from returning to state court to challenge
the denial of this claim in a second appeal of the denial of the Rule 3.850 motion, see Fla. R. App.
P. 9.141(b)(3)(C), and any further attempt to raise the claim in another Rule 3.850 motion would be
subject to dismissal as untimely and successive. See Fla. R. Crim. P. 3.850(b), (h). And Petitioner
has failed to show either cause and prejudice for the default, or that a fundamental miscarriage of
justice will result if these sub-claims are not addressed on the merits. Therefore, he is not entitled
to federal review of these two sub-claims.
Petitioner, however, did assert on appeal that counsel was ineffective in failing to crossexamine Hamm on his testimony that Petitioner had asked him to lie at trial (see Doc. 22-4, docket
pp. 539-41). He therefore exhausted his state remedies with respect to this claim. Accordingly, the
claim will be addressed on the merits.
19
The claim fails on the merits. First, it is vague and conclusory. Petitioner alleges that
Attorney Strouf failed to cross-examine Hamm regarding his testimony that Petitioner asked him
to lie at trial, but fails to assert the specific questions Attorney Strouf failed to ask, and the
information that was omitted as a result of the failure to cross-examine Hamm on this issue. “Mere
allegations of inadequate performance during cross-examination are conclusory and do not permit
the Court to examine whether counsel’s failure prejudiced him.” Reid v. Jones, 2018 WL 2437647,
at *7 (S.D. Fla. Apr. 23, 2018), report and recommendation adopted, 2018 WL 2435169 (S.D. Fla.
May 30, 2018) (citations omitted).
Second, the state post-conviction court’s determination that Attorney Strouf’s decision not
to cross-examine Hamm on this testimony was reasonable trial strategy was not an unreasonable
application of Strickland, nor was it based on an unreasonable determination of the facts in light of
the evidence presented during the state proceedings. During Hamm’s trial testimony, the prosecutor
asked to approach the bench (Doc. 22-3, docket p. 220, lines 3-4). At the bench conference, the
prosecutor stated that Hamm was going to testify that while he and Petitioner were riding from jail
to the trial, Petitioner told him to lie (Id., lines 10-13). Attorney Strouf requested a recess and to
proffer the witness (Id., lines 17-21). She also moved to exclude the testimony on the grounds that
it was overly prejudicial because it would reveal that Petitioner was transported from jail that
morning, and irrelevant because it did not amount to a confession (Id., docket pp. 223-24). The
court decided that the testimony was relevant and would be admitted if the witness did not reveal
that the conversation took place while he and Petitioner were in custody (Id., docket p. 231, lines
15-20).
During the subsequent proffer of testimony, Hamm testified that while he and Petitioner were
20
riding on the bus from the jail to the courthouse, Petitioner “asked me to lie for him.” (Id., docket
p. 233, lines 4-20). He further testified that noone else was present during the conversation (Id.,
docket p. 234, lines 14-17). During cross-examination, he testified that there were 40 other
prisoners on the bus, and two officers (Id., docket pp. 234-35). He clarified that Petitioner did not
use the word “lie,” but rather asked him to testify that Petitioner’s girlfriend Chelsey Harris “was
lying on him” because Petitioner was “messing with [Hamm’s] girlfriend” (id., docket p. 239, lines
2-4), and that Harris “would do anything to put him in prison” because Petitioner “had left her” (Id.,
docket p. 242, lines 12-14).
When trial resumed, Hamm testified that earlier in the day he had a conversation with
Petitioner during which Petitioner asked him to lie and told him specific things he should say (Id.,
docket p. 261, lines 16-22; docket p. 262, lines 2-4). During cross-examination, Attorney Strouf did
not ask Hamm about the alleged conversation he had with Petitioner earlier that day (Id., docket pp.
263-70). Rather, she asked Hamm about the deterioration of his friendship with Petitioner, his
omission of important facts when he first spoke to law enforcement, and his prior felonies and
crimes of dishonesty (Id., docket pp. 263-65). During closing argument, Attorney Strouf attacked
Hamm’s credibility by emphasizing that he “showed up in orange,” had “three felony convictions
and three crimes of dishonesty,” was no longer friends with Petitioner after “they had a fight over
women,” and never said anything to law enforcement about what Petitioner allegedly told him until
more than a year after the offense (Doc. 22-3, docket p. 556, lines 2-25; docket p. 557, lines 1-9).
She further argued that Hamm’s testimony that Petitioner asked him to “lie” was “suspect” and
unsupported by any other evidence (Id., docket p. 556, lines 22-25; docket p. 557, lines 1-3).
During the post-conviction evidentiary hearing, Attorney Strouf testified that she believed
21
her options were either to cross-examine Hamm regarding his testimony that Petitioner had asked
him to falsely testify, or “ignore the conversation and call Billy Hamm a liar.” (Doc. 22-4, docket
p. 200, lines 3-6). She was concerned that if she cross-examined Hamm regarding the alleged
conversation with Petitioner, the jury may hear that Petitioner was still in jail nearly two years after
the offense, and Hamm could come across as believable, which could damage Petitioner’s defense
(Id., docket p. 276, lines 4-19). Therefore, she decided to not cross-examine Hamm on the alleged
conversation, and instead to question him regarding his prior criminal history, bias against
Petitioner, and delay in giving his statement to police, then argue his lack of credibility during
closing argument (Id., docket p. 276, lines 22-25; docket p. 277, lines 1-6; docket p. 278, 3-12).
Attorney Strouf’s decision to not cross-examine Hamm on his testimony that Petitioner had
asked him to lie at trial, and the manner of her cross-examination, were strategic decisions entitled
to deference. Dorsey v. Chapman, 262 F.3d 1181 (11th Cir. 2001), cert. denied, 535 U.S. 1000
(2002). The only question is whether Attorney Strouf’s strategic decision was “reasonable.” See
Minton v. Sec’y, Dep’t of Corr., 271 Fed.Appx. 916, 918 (11th Cir. 2008) (“The Supreme Court has
‘declined to articulate specific guidelines for appropriate attorney conduct and instead has
emphasized that the proper measure of attorney performance remains simply reasonableness under
prevailing professional norms.’ ”) (quoting Wiggins v. Smith, 539 U.S. 510, 521 (2003)).
Her decision was reasonable. She had concerns that if she cross-examined Hamm on this
testimony, he may come across as credible, which could corroborate his story that Petitioner asked
him to lie. She believed the better approach was to cross-examine Hamm on his damaged
relationship with Petitioner, his criminal history that included multiple felonies and crimes of
dishonesty, and the long delay in giving his statement to police, then emphasize Hamm’s overall
22
lack of credibility during closing argument. Moreover, she was concerned that cross-examining
Hamm regarding his alleged conversation with Petitioner on the morning of the trial could result in
the jury learning that Petitioner was still detained more than two years after the offense, which could
undermine Petitioner’s credibility and presumption of innocence. Cf. Estelle v. Williams, 425 U.S.
501, 503–05 (1976) (appearance in prison clothing seriously compromises a defendant’s right to the
presumption of innocence).
Petitioner has failed to demonstrate that no reasonable attorney would have done as Attorney
Strouf did with regard to Hamm’s testimony that Petitioner had asked him to lie at trial. Harvey v.
Warden, Union Corr. Inst., 629 F.3d 1228, 1239 (11th Cir. 2011) (to show deficient performance,
“trial counsel’s error must be so egregious that no reasonably competent attorney would have acted
similarly.”). Accordingly, Petitioner fails to meet his burden of proving that the state court
unreasonably applied Strickland or unreasonably determined the facts by rejecting this ground. 28
U.S.C. § 2254(d)(1), (2). Ground Three therefore warrants no relief.
D. Ground Four
Petitioner contends that Attorney Strouf was ineffective in failing to advise him on the
correct number of prior felony convictions that could be used to impeach him. He alleges that
although the State indicated it was prepared to impeach him with three prior felony convictions, he
told Attorney Strouf that he believed he had only one prior felony conviction. He complains that
Attorney Strouf’s failure to investigate “the true number of prior offenses” left him no choice but
to admit to having three prior felonies, to avoid the jury learning the nature of any of his prior felony
offenses. Subsequently, during sentencing, the State admitted that it could only prove one prior
felony conviction. Petitioner argues that because he admitted to having three prior felony offenses
23
rather than only one, both his credibility and self-defense theory were tainted.
This claim was raised in Ground Four of Petitioner’s Amended Second Motion for
Postconviction Relief (Doc. 22-4, docket pp. 107-08). In denying the claim, the state postconviction court stated:
Defendant alleges counsel was ineffective for failing to advise Defendant
on the correct number of prior felony convictions that could be used to impeach
Defendant. Defendant alleges the State claimed Defendant had been convicted of
three felonies and Defendant believed he only had one. Defendant alleges despite
being aware of this dispute prior to trial, counsel did not conduct any investigation
into the true number of priors. Defendant alleges he testified at trial and admitted
to three prior felonies but at sentencing the State admitted it could only prove one
prior felony. Defendant alleges this shows counsel’s lack of preparation in
Defendant’s case. Defendant alleges admitting to three felonies hurt his defense of
self-defense and his credibility.
In his Second Amended Motion, Defendant alleges there is a reasonable
probability he would not have been convicted absent counsel’s error. Defendant
alleges the number of convictions matters to the jury especially in a self-defense
case based on credibility of the witnesses.
At the January 9, 2015 evidentiary hearing, Defendant’s former trial counsel
Jennifer Strouf testified the State was prepared to impeach Defendant and say
that he had three prior convictions if he testified at trial. (Evid. Hrg. Transc. p. 39).
Counsel testified Defendant did not inform her he had been convicted of only one
felony, and that she researched Defendant’s prior offenses before trial by speaking
to Defendant about his priors, using the clerk’s system, the Hillsborough County
jail website, the Department of Corrections website, and physically looking at what
the State had. (Evid. Hrg. Transc, pp. 39-40). Counsel testified the defense only
realized at sentencing that Defendant’s violation of probation was erroneously given
a new case number due to a clerical error. Id. The error caused Defendant’s juvenile
case to be given a felony case number. (Evid. Hrg. Transc. p. 58). Counsel
testified that as a result of the error, she mistakenly believed that Defendant had
been direct filed into felony court as a juvenile and sentenced as an adult. Id.
Counsel brought the oddity to the Court’s attention during trial and did not
feel Defendant should have to admit to three prior convictions. (Evid. Hrg. Transc.
p. 41). Counsel “absolutely believed” that based on her conversations with the
Court, if Defendant did not admit to three prior convictions, the State would then
bring out the nature of the offenses on cross examination. (Evid. Hrg. Transc. pp.
56-58). Counsel elected to stipulate to the number of Defendant’s felony convictions
24
rather than risk the State impeaching Defendant with the nature of the
convictions. (Evid. Hrg. Transc. p. 45).
Defendant testified he knew he had only one prior felony conviction and
that he told his attorney. (Evid. Hrg. Transc. p. 72). He testified he was aware that
as long as they stipulated to the number of prior felony convictions, the State would
not be allowed to introduce the nature of the offenses. (Evid. Hrg. Transc. pp. 7273).
The Court notes the record reflects the dispute of Defendant’s priors was
discussed by the Court, State, and defense counsel during trial prior to the Defendant
deciding to testify. (See Tr. Transc. pp. 608-16). Additionally, the record reflects
not until sentencing did the State inform the Court of the clerical error
concerning Defendant’s priors in case 02-CF-8732. (See July 30, 2010 Transc. pp.
7-11).
After reviewing Defendant’s allegations, the testimony taken at the January
9, 2015 evidentiary hearing, the court file, and the record, the Court finds counsel’s
testimony more credible than Defendant’s. The Court finds counsel reasonably
believed Defendant had three prior felony convictions based on the representations
by the State and her own research of Defendant’s case. The Court finds counsel made
a reasonable strategic decision in advising Defendant to concede the number of prior
felony convictions the State claimed Defendant had, rather than risk
impeachment on cross examination. Thus, the Court finds counsel’s performance was
not deficient, because even though the State was incorrect about the number of
Defendant’s prior felony convictions at trial, counsel correctly advised Defendant
about the number of prior felony convictions the State was prepared to impeach
Defendant with should he testify. Consequently, no relief is warranted on claim
four.
(Id., docket pp. 237-39) (emphasis in original).
The state post-conviction court found that Attorney Strouf “believed [Petitioner] had three
prior felony convictions based on the representations by the State and her own research of
[Petitioner’s] case[,]” and made a strategic decision “to concede the number of prior felony
convictions the State claimed [Petitioner] had, rather than risk impeachment on cross examination.”
These factual findings are supported by the record and are presumed correct, and Petitioner has not
rebutted those findings with clear and convincing evidence to the contrary.
25
During the second trial, the State informed the court that “it’s the state’s position the
defendant has two prior burglaries of a dwelling, one prior grand theft and two prior petty thefts.
So it would be three felonies and two crimes of dishonesty. . . .” (Doc. 22-4, docket p. 608, lines
16-19). The State indicated that it had certified copies of these convictions (Id., docket p. 609, lines
8-15; docket p. 612, lines 1-10). Attorney Strouf indicated that the defense agreed that there was
one prior felony burglary conviction and two petty theft convictions, but did not believe there was
a second burglary conviction and a grand theft conviction (Id., docket p. 609, lines 2-5; docket p.
611, lines 20-25).
During the first trial, the same issue was discussed between Attorney Strouf, the State, and
the court. There, the State indicated that there were two burglaries and one grand theft (Doc. 22-2,
docket p. 302, lines 15-16). Attorney Strouf indicated that the defense believed that there was only
one burglary and some petit thefts (Id., lines 22-24). The State provided certified convictions to the
court (Id., docket pp. 302-04). Attorney Strouf indicated that the defense agreed with the burglary
conviction in case number 02-6900 (Id., docket p. 304, lines 12-13), but disagreed with the burglary
and grand theft convictions in case number 02-8732 (Id., docket p. 304, lines 16-19; docket p. 305,
lines 1-11). When Attorney Strouf indicated that Petitioner was “adjudicated delinquent as a
juvenile” in that case, the court stated that “[t]here’s nothing juvenile about this one.” (Id., lines 611). The clerk indicated that the offenses in case number 02-8732 were “upgraded from a juvenile
provision packet” and handled in felony court (Id., docket p. 305, lines 24-25; docket p. 306, line
1). The court stated that if the State could get a [finger]print comparison, “you’ll have another
burglary and another grand theft.” (Id., docket p. 307, lines 2-12).
During the evidentiary hearing on Petitioner’s post-conviction motion, Attorney Strouf
26
testified that the State was prepared to impeach Petitioner with three prior felony convictions (Doc.
22-4, docket p. 280, lines 10-13). She testified that Petitioner had been arrested in “a number
different cases. . .over the years.” (Id., lines 21-22). She researched Petitioner’s prior convictions
by discussing the matter with Petitioner, searching the clerk’s system, the Hillsborough County Jail
website, and the Department of Corrections website, and looking at what the State had provided (Id.,
docket p. 280, lines 24-25; docket p. 281, lines 1-16). Until sentencing, Attorney Strouf believed
that the burglary and grand theft charges in case number 02-8732 were initiated in a juvenile
petition, then subsequently “direct filed” in an adult felony case (Id., docket p. 281, lines 22-25).
The state court “allowed the juvenile case to go before the felony court judge and the clerk gave it
a CF number which would normally indicate it is an adult felony number.” (Id., docket p. 282, lines
4-6). She did not see “anything that said. . .this is a juvenile case.” (Id., docket p. 285, lines 24-25).
“In [all her] years of practice, [she] had never seen that particular error before. . . .” (Id., docket p.
287, lines 24-25). She “had never seen a juvenile case number end up with a felony conviction
number, for anyone who was not direct filed to adult court.” (Id., docket p. 299, lines 8-14). Based
on her research, she “thought [the State] would be able to introduce the [three prior felonies] and []
thought there would be a problem [if Petitioner admitted to only one prior felony].” (Id., docket p.
284, lines 19-21). Moreover, based on the conversations and the court’s comments regarding the
matter, she “absolutely believed” that the court was going to allow the State to impeach Petitioner
with the nature of his prior offenses unless Petitioner testified that he had three prior felony
convictions (Id., docket p. 298, lines 1-7).
As the state post-conviction court determined, Attorney Strouf reasonably believed that the
trial court would allow the State to impeach Petitioner if he testified that he had only one prior
27
felony conviction. In Florida, the proper method to impeach a witness who answers the question
regarding his prior convictions incorrectly is to offer a certified record of the witness’ prior
convictions, which will necessarily reveal the nature of the crimes. See Gavins v. State, 587 So. 2d
487, 489-90 (Fla. 1st DCA 1991) (citations omitted). The State indicated that it had certified records
of the prior convictions and a good faith basis to say that Petitioner had three prior felony
convictions. During the first trial, the trial judge stated that case number 02-8732, in which
Petitioner was convicted of both burglary and grand theft, was not a juvenile case, and that the State
would “have another burglary and another grand theft.” Attorney Strouf’s own investigation
revealed that case number 02-8732 was assigned as a felony case rather than a juvenile case, and she
therefore believed that Petitioner had been tried as an adult. And after Attorney Strouf discussed
the matter with Petitioner immediately before the trial colloquy regarding Petitioner’s decision
whether to testify, Attorney Strouf told the court that Petitioner “doesn’t have a personal recollection
of it, but he is willing to basically state on the stand the number the state has shown us today.” (Doc.
22-4, docket p. 614, lines 14-16). Finally, the trial judge during the second trial gave no indication
to the parties whether he was or wasn’t going to allow the State to impeach Petitioner with three
prior convictions if he testified that he only had one prior conviction (See id., docket pp. 608-16).
In light of these circumstances, Attorney Strouf decided that the best strategy was to have
Petitioner admit to three prior felony convictions rather than one to avoid the possibility that the
court would allow the State to impeach Petitioner with three prior convictions, and risk the jury
hearing that Petitioner had two previous convictions for burglary and one for grand theft (See id.,
docket p. 286, lines 2-11). In light of her experience, Attorney Strouf believed that “it’s much more
damaging to hear the name of what the charge is” rather than the number of prior felonies (Id.,
28
docket p. 283, lines 1-5). And because Petitioner was charged with robbery, she was concerned that
the prior burglary and theft convictions “kind of support[] a robbery charge.” (Id., lines 11-12).6
Petitioner has not attempted to argue that Attorney Strouf’s strategy was unreasonable. And
“[e]ven if in retrospect the strategy appears to have been wrong, the decision will be held ineffective
only if it was so patently unreasonable that no competent attorney would have chosen it.” Adams
v. Wainright, 709 F.2d 1443, 1445 (11th Cir.1983). Under the circumstances, Attorney Strouf’s
decision to have Petitioner admit to three prior felony convictions to avoid the possibility of the jury
learning the nature of his prior convictions was reasonable trial strategy that is virtually unassailable.
Strickland, 466 U.S. at 690 (“Strategic choices made after a thorough investigation are virtually
unassailable.”).
Petitioner contends that Attorney Strouf was ineffective in failing to “perform any
investigation” between the first and second trials, “despite the availability of investigators and
support staff in the office of the Public Defender to look into the dispute.” (Doc. 2, p. 13). His
contention is vague, conclusory, and self-serving because he does not specify what further
investigation could have been done, nor state what further investigation would have revealed. He
therefore has not carried his burden of showing that Attorney Strouf’s decision not to further
investigate Petitioner’s prior convictions between the first and second trials amounted to deficient
performance. Cf. Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir.1985), cert. denied, 479 U.S.
918 (1986) (speculation insufficient to carry the burden of a habeas corpus petitioner as to what
evidence could have been revealed by further investigation).
Attorney Strouf testified that “[l]ong before the trial, [she] had researched [Petitioner’s]
6
Although Petitioner was charged with robbery (Doc. 22-2, docket p. 104), he was found guilty of the lesser
included crime of theft (Id., docket p. 191).
29
priors.” (Doc. 22-4, docket p. 280, lines 24-25). She did not further investigate the matter between
the first and second trial because “[b]ased on what [she] had already looked at which was looking
at the Banner file, looking at the Hillsborough County Jail records, looking at the conviction on the
VOP, [she] did not believe there was something else that needed to be done to look at it differently.”
(Id., docket p. 285, lines 12-16). Petitioner does not argue or show that Attorney Strouf’s
investigation before the first trial was inadequate. And “[s]trategic choices to forego further
investigation into an issue are not deficient when a reasonable professional judgment based on a
sufficient initial inquiry supports the decision to terminate the investigation.” Lynd v. Terry, 470
F.3d 1308, 1316 (11th Cir. 2006) (citing Strickland, 466 U.S. at 690-91). Based on what was
revealed from her investigation before the first trial, Attorney Strouf reasonably believed further
investigation would not reveal new information.
Petitioner has failed to show that Attorney Strouf was deficient in failing to further
investigate his prior convictions. Accordingly, he has failed to demonstrate that the state courts’
denial of this claim was an unreasonable application of Strickland. Ground Four therefore does not
warrant federal habeas relief.
E. Ground Five
Petitioner contends that his trial attorneys were ineffective in failing to move for a judgment
of acquittal on his grand theft conviction on the ground that the State failed to introduce sufficient
evidence proving that the value of the stolen property exceeded $300.00. He argues that although
the victim testified that the purchase price of his watch was $500.00, and the value of the necklace
was $1,000.00, the testimony was legally insufficient because there was no evidence of the “market
value” of the watch at the time of the offense, and the victim was not “competent to testify” as to
30
the value of the necklace because it belonged to the victim’s father. He opines that had defense
counsel moved for a judgment of acquittal, he would have been convicted of petit theft rather than
grand theft.7
This claim is unexhausted because Petitioner did not raise it in his state post-conviction
motion (See Doc. 22-4, docket pp. 101-12). Acknowledging the lack of exhaustion and resulting
procedural default, Petitioner argues that he has established the cause and prejudice exception under
Martinez v. Ryan, 566 U.S. 1 (2012) (See Doc. 2, pp. 16-17). Ineffective assistance of postconviction counsel generally does not constitute cause to overcome a procedural default. See
Coleman v. Thompson, 501 U.S. 722, 752–55 (1991). Martinez recognizes a narrow, equitable
exception to this rule:
Where, under state law, claims of ineffective assistance of trial counsel must be
raised in an initial-review collateral proceeding, a procedural default will not bar a
federal habeas court from hearing a substantial claim of ineffective assistance at trial
if, in the initial-review collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.
Martinez, 566 U.S. at 17.
“To overcome the default, a prisoner must. . .demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner
must demonstrate that the claim has some merit.” Id. at 14. See also Duffy v. Sec’y, Dep’t of Corr.,
729 Fed. App’x. 669, 670 (11th Cir. 2018) (“A defaulted claim is substantial if the resolution of its
merits would be debatable among jurists of reason.”) (citing Miller–El v. Cockrell, 537 U.S. 322,
336 (2003)).
Petitioner’s defaulted claim of ineffective assistance of trial counsel is not substantial. The
7
In Florida, petit theft of the items taken from the victim in Petitioner’s case is a second-degree misdemeanor
which carries a maximum sentence of sixty days’ imprisonment. See §§ 812.014(3)(a), 775.082(4)(b), Fla. Stat.
31
jury instruction on theft indicated that “‘Value’ means the market value of the property at the time
and place of the offense, or if that value cannot be satisfactorily ascertained, the cost of replacement
of the property within a reasonable time after the offense.” (Doc. 22-2, docket p. 170). The victim
testified that a few months before the offense, he bought the watch for over $500.00 (Doc. 22-3,
docket p. 33, lines 7-8). He further testified that the value of the necklace at the time of the offense
was “[r]oughly over a thousand dollars.” (Id., lines 15-17). Moreover, Petitioner testified that the
value of the cocaine he gave to the victim in exchange for the watch and necklace was $1,400.00
(Doc. 22-3, docket p. 447).
This evidence was sufficient to establish the value of the stolen
property as more than $300.00 and overcome a motion for judgment of acquittal.
Petitioner argues that the victim “was not competent to testify as to the value of the
[necklace]” because the necklace belonged to the victim’s father rather than the victim himself (Doc.
2, p. 16). He does not, however, support his argument with any law indicating that the victim was
not competent to testify as to the necklace’s value solely because the victim’s father owned the
necklace. Under Florida law, “one’s competency to testify as to the value of stolen property is not
so much a question of whether he owns the stolen property as it is a question of his personal
knowledge of the property. If the lay witness has personal knowledge of the property, he is
competent to express an opinion as to the value of [the] property.” Taylor v. State, 425 So. 2d 1191,
1193 (Fla. 1st DCA 1983) (citation omitted). The victim in Petitioner’s case had “personal
knowledge of the property” because the necklace had “been in [his] family for quite some time.”
(Doc. 22-2, docket p. 33, line 13). Consequently, the victim was competent to testify as to the value
of the necklace, and his testimony regarding the value of the necklace alone established that the total
value of the stolen property exceeded $300.00. See Pickett v. State, 839 So. 2d 860, 861 (Fla. 2d
32
DCA 2003) (for purposes of establishing theft, “[v]alue may be established by direct testimony of
fair market value. . . .”) (citation omitted). Moreover, the value of the victim’s property was
established by Petitioner’s testimony that he was willing to accept that property in exchange for
cocaine that he valued at $1,400.00. See Toole v. State, 270 So. 3d 371, 375 (Fla. 4th DCA 2019)
(“‘Fair market value’ is defined as ‘[t]he price that a seller is willing to accept and a buyer is willing
to pay on the open market and in an arm’s-length transaction.’”) (quoting Black’s Law Dictionary
1785 (10th ed. 2014)).
Petitioner has not shown that a judgment of acquittal on his grand theft conviction would
have been granted had trial counsel argued that there was insufficient evidence supporting the jury’s
determination that the value of the stolen property was greater than $300.00. He therefore fails to
demonstrate that his defaulted claim of ineffective assistance of trial counsel is substantial.
Consequently, he has not established cause and prejudice to overcome the procedural default.
Accordingly, Ground Five is denied.
Any of Petitioner’s claims not addressed in the Order have been determined to be without
merit.
It is therefore ORDERED that:
1. Petitioner’s amended petition for a writ of habeas corpus (Doc. 2) is DENIED.
2. A certificate of appealability is DENIED in this case because Petitioner cannot make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). And because
Petitioner is not entitled to a certificate of appealability, he is not entitled to proceed on appeal in
forma pauperis.
3. The Clerk is directed to enter judgment against Petitioner and close this case.
33
DONE and ORDERED in Tampa, Florida, on August 22, 2019.
Copies to: Petitioner pro se; Counsel of Record
34
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?