ADKISON v. JONES (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

TERRY ADKISON,

Petitioner,

vs. Case No. 3:18-cv-1176-J-39MCR

SECRETARY, DEPARTMENT

OF CORRECTIONS, et al.,

Respondents.

ORDER

I. INTRODUCTION

Petitioner, who is represented by counsel, challenges his

state court (Duval County) conviction through an Amended Petition

for Writ of Habeas Corpus (Petition) (Doc. 21) pursuant to 28

U.S.C. ' 2254. He filed an Amended Memorandum of Law in Support

of Petition Filed Under 28 U.S.C. § 2254 (Memorandum) (Doc. 22) as

well. He is serving three consecutive life sentences for three

counts of sexual battery. Petition at 1. Respondents filed a

Response to Petition for Writ of Habeas Corpus (Response) (Doc.

23). 1 Petitioner, through counsel, filed a Reply to the

1 The Court hereinafter refers to the Exhibits to the Appendix

(Doc. 23) as "Ex." Where provided, the page numbers referenced

in this opinion are the Bates stamp numbers at the bottom of each

page of the exhibit. Otherwise, the page number on the document

Respondents' Response to Mr. Adkison’s Petition for Writ of Habeas

Corpus (Doc. 24). The Petition is timely filed. See Response at

13.

II. EVIDENTIARY HEARING

The pertinent facts are fully developed in this record or the

record otherwise precludes habeas relief; therefore, the Court is

able to "adequately assess [Petitioner's] claim[s] without further

factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th

Cir. 2003), cert. denied, 541 U.S. 1034 (2004). As the record

refutes the asserted factual allegations or otherwise precludes

habeas relief, the Court finds Petitioner is not entitled to an

evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474

(2007). Petitioner has not met his burden of demonstrating a need

for an evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of

Corr., 647 F.3d 1057, 1060 (11th Cir. 2011) (opining a petitioner

bears the burden of establishing the need for an evidentiary

hearing with more than speculative and inconcrete claims of need),

cert. denied, 565 U.S. 1120 (2012).

III. CLAIMS OF PETITION

Petitioner raises four grounds in the Petition: (1) the

Petitioner’s constitutional rights were violated when the state

will be referenced.

2

trial court denied the Petitioner’s motion to suppress; (2) the

Petitioner’s constitutional rights were violated when the trial

court premised the Petitioner’s sentence on his tardy remorse; (3)

the Petitioner’s constitutional right to effective counsel was

violated when counsel failed to call a witness that would have

supported the Petitioner’s theory of innocence; and (4) the

Petitioner’s constitutional right to effective counsel was

violated when counsel misadvised the Petitioner about testifying

during his [first] sentencing hearing. Petition at 4, 6-7, 9.

These claims are exhausted. Response at 13.

IV. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act (AEDPA)

governs a state prisoner's federal petition for habeas corpus.

See 28 U.S.C. ' 2254. This statute "imposes important limitations

on the power of federal courts to overturn the judgments of state

courts in criminal cases." Shoop v. Hill, 139 S. Ct. 504, 506

(2019) (per curiam). The AEDPA statute: "respects the authority

and ability of state courts and their dedication to the protection

of constitutional rights." Id. Therefore, "[u]nder AEDPA, error

is not enough; even clear error is not enough." Meders v. Warden,

Ga. Diagnostic Prison, 911 F.3d 1335, 1349 (11th Cir. 2019) (citing

Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (per curiam)),

petition for cert. filed, (U.S. Aug. 2, 2019) (No. 19-5438).

3

Applying the statute as amended by AEDPA, federal courts may

not grant habeas relief unless one of the claims: "(1)'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) '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)." Nance v. Warden, Ga. Diagnostic

Prison, 922 F.3d 1298, 1300-1301 (11th Cir. 2019).

Thus, in order to obtain habeas relief, the state court

decision must unquestionably conflict with Supreme Court

precedent. Harrington v. Richter, 562 U.S. 86, 102 (2011). If

some fair-minded jurists could agree with the lower court's

decision, habeas relief must be denied. Meders, 911 F.3d at 1351.

As noted in Richter, unless the petitioner shows the state court's

ruling was so lacking in justification that there was error well

understood and comprehended in existing law beyond any possibility

for fair-minded disagreement, there is no entitlement to habeas

relief. Burt v. Titlow, 571 U.S. 12, 19-20 (2013).

In undertaking its review, this Court is not obliged "to

flyspeck the state court order or grade it." Meders, 911 F.3d at

1349. Indeed, specificity and thoroughness of the state court

decision is not required; even if the state court fails to provide

rationale or reasoning, AEDPA deference is due "absent a

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conspicuous misapplication of Supreme Court precedent." Id. at

1350 (citation and quotation marks omitted).

Of importance, a state court's finding of fact, whether a

state trial court or appellate court, is entitled to a presumption

of correctness under 28 U.S.C. ' 2254(e)(1). But, this presumption

of correctness applies only to findings of fact, not mixed

determinations of law and fact. Brannan v. GDCP Warden, 541 F.

App'x 901, 903-904 (11th Cir. 2013) (per curiam) (recognizing the

distinction between a pure question of fact from a mixed question

of law and fact), cert. denied, 573 U.S. 906 (2014).

Where there has been one reasoned state court judgment

rejecting a federal claim followed by an unexplained order

upholding that judgement, federal habeas courts employ a "look

through" presumption: "the federal court should 'look through' the

unexplained decision to the last related state-court decision that

does provide a relevant rationale. It should then presume that the

unexplained decision adopted the same reasoning." Wilson v.

Sellers, 138 S. Ct. 1188, 1192 (2018) (Wilson).

Once a claim is adjudicated in state court and a prisoner

seeks relief in the federal court system, AEDPA's formidable

barrier to habeas relief comes into play, and it is very difficult

for a petitioner to prevail under this stringent standard. As

such, state-court judgments will not easily be set aside once the

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Court employs this highly deferential standard that is

intentionally difficult to meet. See Richter, 562 U.S. at 102.

Although AEDPA does not impose a complete bar to issuing a writ,

it severely limits those occasions to those "where there is no

possibility fairminded jurists could disagree that the state

court's decision conflicts" with Supreme Court precedent. Id. In

sum, application of the standard set forth in 28 U.S.C. ' 2254(d)

ensures that habeas corpus is a guard against extreme malfunctions

in the state criminal justice systems, and not a mechanism for

ordinary error correction. Richter, 562 U.S. at 102-103 (citation

and quotation marks omitted).

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner raises claims of ineffective assistance of

counsel. To prevail on his Sixth Amendment claims, Petitioner

must satisfy the two-pronged test set forth in Strickland v.

Washington, 466 U.S. 668, 688 (1984), requiring that he show both

deficient performance (counsel's representation fell below an

objective standard of reasonableness) and prejudice (there is a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different).

See Brewster v. Hetzel, 913 F.3d 1042, 1051-52 (11th Cir. 2019)

(reviewing court may begin with either component).

6

In order to obtain habeas relief, a counsel's errors must be

so great that they adversely affect the defense. In order to

satisfy this prejudice prong, the reasonable probability of a

different result must be "a probability sufficient to undermine

confidence in the outcome." Strickland, 466 U.S. at 694.

The standard created by Strickland is a highly deferential

standard, requiring a most deferential review of counsel's

decisions. Richter, 562 U.S. at 105. Not only is there the

"Strickland mandated one layer of deference to the decisions of

trial counsel[,]" there is the added layer of deference required

by AEDPA: the one to a state court's decision. Nance, 922 F.3d

at 1303. Thus,

Given the double deference due, it is a "rare

case in which an ineffective assistance of

counsel claim that was denied on the merits in

state court is found to merit relief in a

federal habeas proceeding." Johnson v. Sec'y,

DOC, 643 F.3d 907, 911 (11th Cir. 2011). And,

for the reasons we have already discussed, it

is rarer still for merit to be found in a claim

that challenges a strategic decision of

counsel.

Nance, 922 F.3d at 1303.

VI. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Ground One

In the first ground of the Petition, Petitioner claims his

constitutional rights were violated when the state trial court

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denied Petitioner’s motion to suppress. Petition at 4. He

contends officers coerced him during custodial interrogation, and

his inculpatory statement that he showed a knife to one victim and

admitted having sex with the women was the result of coercion

despite his request for an attorney early in the interrogation.

Id. Basically, Petitioner argues his statements should have been

suppressed because they were involuntary and in violation of his

rights under Miranda2 to terminate questioning.

The record demonstrates, prior to trial, Petitioner moved to

suppress his statements. Ex. 3 at 65-71. The trial court on

August 10, 2011, conducted a hearing on the motion. Ex. 6 at 564-

652. Petitioner and two officers testified. Id. The trial court

considered their testimony as well as the DVD recording of the

interview and the two rights forms. Ex. 4 at 314.

Providing a detailed, written decision, the trial court

denied the motion to suppress. Id. at 314-17. The court found

the statements elicited from Petitioner during the police

interrogation were not illegally obtained. Id. at 315. With

citation to the relevant Supreme Court case law, Edwards v.

Arizona, 451 U.S. 477 (1981), the trial court made several

pertinent findings. Ex. 4 at 315-16. The court found Petitioner

2 Miranda v. Arizona, 384 U.S. 436 (1966).

8

invoked his right to counsel. Id. at 316. The court found the

officers respected this invocation, as evidenced by their efforts

to gather their belongings and the statement of Detective Devevo

that they would be outside. Id. The court found the detectives

conducted no further questioning of Petitioner, nor did they make

any statements that they should have known were reasonably likely

to elicit an incriminating response from Petitioner. Id.

Contrary to Petitioner’s contentions, the court also found

that after Petitioner invoked his right to counsel, Petitioner

reinitiated the dialogue with the detectives. Id. Petitioner

asked a question of the detectives. Id. Detective Devevo told

Petitioner they were done as Petitioner had invoked his right to

counsel. Id. Detective Devevo asked Petitioner if he desired to

waive the right he had invoked, and Petitioner assured the

detective he understood his rights and wanted to waive his rights.

Id. At this point, the detective went over a second rights form

with Petitioner, and Petitioner waived his right to counsel and

proceeded to talk to the detectives. Id. at 316-17. Ultimately,

the trial court held, “that, after reinitiating conversation with

the detectives, the Defendant knowingly and intelligently waived

his earlier request for counsel.” Id. at 317.

On direct appeal, Petitioner raised the following issue:

"[w]hether the trial court erred in admitting Appellant’s

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interrogation video into evidence over objection that his re-

waiver of Miranda rights was coerced and not voluntary.” Ex. 13

at ii. He asserted the trial court erred in denying the motion

to suppress. Id. at 23. With respect to the findings of the

trial court, Petitioner argued the trial court erred in determining

Petitioner’s re-waiver of his Miranda rights was a product of his

voluntary re-initiation of his interrogation. Id. at 26.

Petitioner urges this Court to conclude that the second waiver was

a product of police coercion, involuntary, and certainly subject

to suppression. Id. at 27. Petitioner relies on several factors,

including his limited opportunity to sleep or eat, the physical

setting of the interrogation, his emotional condition, the

duration and nature of questioning, the officers’ implication of

promises, and suggestive questioning. Id. at 30-40.

The First District Court of Appeal (1st DCA) affirmed the

convictions. Ex. 16. The mandate issued March 20, 2014. Ex.

17.

In his Memorandum, Petitioner urges this Court to find the

Florida courts unreasonably applied the governing principles set

forth in Edwards and its progeny, or alternatively, the courts

unreasonably declined to extend the holding of Edwards to the facts

of Petitioner’s case. Memorandum at 17. In brief, Petitioner

admits that the trial court appropriately identified the governing

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legal principle set forth in Edwards, but Petitioner asserts the

court unreasonably applied the decision to the facts of

Petitioner’s case. Memorandum at 21. In support, Petitioner

states that there was no break between the request for counsel and

further interrogation which resulted in Petitioner re-waiving his

rights. Id. He argues there was no valid re-initiation of the

conversation by Petitioner because the detectives never left the

room. Id. at 30.

Apparently, Petitioner is claiming there was an unreasonable

determination of the facts, and the state courts’ failure to

suppress evidence of the confession was based upon unreasonably

applied governing principles set forth in Edwards. Upon review

of the record, the factual findings of the state court were not

unreasonable determinations of the facts based on the evidence

presented at the suppression hearing. Indeed, these findings are

presumed to be correct.3 28 U.S.C. 2254(e)(1). Petitioner has

not met his burden of overcoming this presumption of correctness

by clear and convincing evidence.

3 The factual findings regarding the non-coercive nature of the

interrogation are entitled to a presumption of correctness. See

Harris v. Dugger, 874 F.2d 756, 762 (11th Cir.) (recognizing that

subsidiary factual questions, including whether intimidation

tactics were employed by the police, are entitled to a presumption

of correctness), cert. denied, 493 U.S. 1011 (1989).

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Furthermore, the state courts’ legal determination was not

contrary to established Supreme Court law, nor did it involve an

unreasonable application of clearly established Federal law. See

Edwards, 451 U.S. at 484-85 (“[A]n accused . . . having expressed

his desire to deal with the police only though counsel, is not

subject to further interrogation by the authorities . . . unless

the accused himself initiates further communication, exchanges, or

conversations with the police.”). See Land v. Allen, 573 F.3d

1211, 1217 (11th Cir. 2009) (per curiam) (citing Lam v. Kelchner,

304 F.3d 256, 264 (3d Cir. 2002)) (recognizing, under the AEDPA

habeas standard, the federal district court is required to

determine whether the state court’s legal determination of

voluntariness was contrary to or an unreasonable application of

Supreme Court precedent), cert. denied, 559 U.S. 1072 (2010).

This case is distinguishable from United States v. Lafond,

No. 1:13-cr-92-01-WSD-LTW, 2013 WL 6269448, at *8 (N.D. Ga. Dec.

4, 2013). Here, Petitioner was properly given his Miranda

warnings. He invoked his right to counsel. The detectives told

Petitioner they were leaving because he had invoked his rights and

they would be outside. Petitioner reinitiated contact with the

detectives by asking questions. The detectives, quite wary, told

Petitioner they could not converse with Petitioner unless he

decided to waive his right to counsel, but reminded him it was his

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decision. Petitioner indicated he desired to waive his right to

counsel, and once again, the detectives properly gave Petitioner

his Miranda warnings.

Based on the totality of the circumstances, Petitioner

voluntarily elected to waive his rights and voluntarily confessed.4

The detectives scrupulously honored Petitioner’s right to cut off

questioning. Lafond, 2013 WL 629448, at *8. No questions were

posed to Petitioner once he invoked. Id. at *11. Petitioner

initiated further conversation and his statement was obtained in

accordance with the Constitution as the officers properly gave

Petitioner Miranda warnings for a second time.

Thus, to the extent Fifth and Fourteenth Amendment claims

were raised and addressed, the adjudication of the state appellate

court resulted in a decision that involved a reasonable application

of clearly established federal law, as determined by the United

States Supreme Court. Therefore, Petitioner is not entitled to

relief on this ground because the 1st DCA's decision was not

contrary to clearly established federal law, did not involve an

unreasonable application of clearly established federal law, and

4 In order to determine whether a confession was voluntarily given,

there must be “an examination of the totality of the

circumstances[.]” United States v. Lall, 607 F.3d 1277, 1285 (11th

Cir. 2010) (citing Arizona v. Fulminante, 499 U.S. 279, 287

(1991)). After waiving, Petitioner made a limited confession to

some of the acts.

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was not based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceedings.

Ground one is due to be denied.

B. Ground Two

In his second ground for relief, Petitioner claims his

constitutional rights were violated when the trial court premised

the Petitioner’s sentence on his tardy remorse. Petition at 6.

Petitioner urges this Court to find the “[s]tate judge violated

due process by premising life sentences in part on Petitioner’s

failure to timely admit remorse.” Id. Although Petitioner does

not specifically identify the constitutional rights at issue in

the body of the Petition, the Fifth Amendment provides: “[n]o

person . . . shall be compelled in any criminal case to be a

witness against himself[.]” U.S. Const. amend. V. A sentencing

proceeding is part of “any criminal case.” Mitchell v. United

States, 526 U.S. 314, 327 (1999). As such, “[t]he due process

clause of the Fifth Amendment prohibits a court from punishing a

defendant for exercising a constitutional right, such as the right

to remain silent.” Green v. State, 84 So. 3d 1169, 1171 (Fla. 3rd

DCA 2012).

On appeal after re-sentencing, Petitioner raised one issue:

“[t]he trial court erred in sentencing Mr. Adkison, based in part,

on an unlawful sentencing characteristic.” Ex. 20 at i.

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Petitioner claimed the trial court’s improper consideration of

impermissible factors to support the severity of the sentence

constituted a violation of Petitioner’s due process rights. Id.

at 7. The 1st DCA affirmed per curiam. Ex. 23.

A brief procedural history will be provided to provide context

for this claim. At his original sentencing, Petitioner did not

admit guilt or express remorse. Instead, he said:

The man you heard about in this courtroom

is not me – was not me. Prior to the day I

got arrested, prior to being in this facility,

was not me.

I am not saying I am an innocent man.

I’m not saying I am a guilty man. But I wasn’t

living the right life. I was running around

with prostitutes, and I know I was. More than

one, More than two. I wouldn’t even start to

count.

Ex. 6 at 717.

The trial court, in pronouncing sentence, opined:

But one thing that really concerns me, and it

was confirmed today by the defendant’s

statement, unfortunately, with respect to the

current case, Mr. Adkison denies culpability

and shows no remorse.

Mr. Adkison did not mention the victims

at all today. He did not mention that he was

sorry, that he regretted his actions. I think

he still maintains his innocence and that

concerns me greatly.

Id. at 742.

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The 1st DCA affirmed the convictions but vacated the sentences

and remanded for resentencing because the trial court’s oral

pronouncement conditioned the sentence, in part, on Petitioner’s

lack of remorse and claim of innocence, in violation of his due

process rights. Ex. 16. At re-sentencing on August 8, 2014,

Petitioner admitted his guilt. Ex. 19 at 46. When asked when he

decided to admit guilt and express remorse at re-sentencing,

Petitioner said “a month ago.” Id. at 48. Petitioner testified

he told his mother first. Id. He said the admission was for his

salvation. Id. In closing argument, his counsel said Petitioner

crossed the barrier to admit his crimes, seek help, and express

his remorse. Id. at 64. Counsel argued it was genuine remorse

and asked the court to accept it as genuine remorse. Id. at 69-

70. The state asked the court to sentence Petitioner to three

consecutive life sentences, and the defense asked for a downward

departure. Id. at 61, 64-65.

During the re-sentencing, the court said it considered

Petitioner’s acknowledgment and acceptance of responsibility and

guilt. Id. at 73. However, the court also considered “the timing

of the acknowledgment[,]” finding “the mitigating affect of your

acceptance of responsibility is severely limited because the

timing of such and the posture of these proceedings today in light

of that acknowledgment.” Id. at 73-74. In this regard, the court

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pondered the implication of Petitioner’s admissions made long

after Dr. Neidigh rendered his opinion, see id. at 64, an opinion

upon which Petitioner was relying to seek a departure sentence,

that concluded Petitioner was a prime candidate for counseling and

any risk of recidivism was low. Id. at 64, 76. The record shows

Dr. Neidigh had referenced the presence of sexually related anger

and hostility that could be addressed with counseling, but also

stated there would be a low risk of recidivism based on an

evaluation that was done two years before Petitioner’s

acknowledgment of guilt. Id. at 76. See Ex. 6 at 709-747. The

court said it was “left to ponder the impact on the doctor’s

conclusions from [Petitioner’s] confession.” Ex. 19 at 76. The

court concluded neither doctors nor courts are vested with crystal

balls to determine whether an individual will commit an offense in

the future. Id.

The court provided an explanation for its sentencing

decision:

So we start with the scope of your crimes

being profound, and you have no prior

significant felony history, nothing

commensurate with violence of this sort and in

this manner, and that has been well argued by

your lawyer. The reality of it is, there’s

not defendant – there’s not one victim on one

date, there is not two victims on two

different dates, there are three victims from

three different dates for which you were

convicted. . . .

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So while you lack a prior history, these

crimes are severe, and it seems to the Court

this, the question that is placed squarely

before the Court, artfully stated by lawyers

who are representing various interests is

this, should your sentence be lessened because

the victims of your crimes were prostitutes.

That’s the – that seems to the Court, if I

were to peel the onion back a layer at a time

to get to what is truly the core of the matter,

which this Court has taken great time to

review in great detail in this case, that

seems to be the heart, the core of the

sentencing decision.

And so the question is should your

sentence be lessened because your victims were

actively engaged in prostitution, willing

participants in multiple sexual acts with

multiple sexual partners for profit, and as

crass as that sounds, this Court’s answer to

that question, should your sentence be

lessened because they’re prostitutes, is

squarely no, it should not[.]

Id. at 76-78.

The court declined to depart downward, recognizing the

“inherent dignity due every single human being[,]” and rejecting

any contention that the sentences should be lessened because the

victims were prostitutes. Id. at 78. Noting Petitioner’s

convictions for three crimes of armed sexual battery against three

victims, the court sentenced Petitioner to consecutive life

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sentences.5 Id. at 79-80. The 1st DCA affirmed. Ex. 23. The

mandate issued April 23, 2015. Ex. 24.

This Court must consider whether the re-sentencing court’s

remarks at sentencing “were so erroneous as to be equivalent to a

denial of due process.” See Griffin v. Sec’y, Dep’t of Corr., No.

8:13-cv-2025-T-36TBM, 2016 WL 5146611, at *11 (M.D. Fla. Sept. 21,

2016) (quoting Hannum v. State, 13 So. 3d 132, 135 (Fla. 2d DCA

2009)). In undertaking its review, the Court recognizes: “the

Constitution forbids the exaction of a penalty for a defendant’s

unsuccessful choice to stand trial.” Smith v. Wainwright, 664

F.2d 1194, 1196 (11th Cir. 1981) (citation omitted). Of course,

“[a]n accused cannot be punished by a more severe sentence because

he unsuccessfully exercised his constitutional right to stand

trial rather than plead guilty.” Baker v. United States, 412 F.2d

1069, 1073 (5th Cir. 1969)6 (citing Thomas v. United States, 368

F.2d 941 (5th Cir. 1966); United States v. Martell, 335 F.2d 764

5 Clearly the court was not persuaded this was isolated behavior.

The court expressed its profound dismay that Petitioner had raped

three different women at knifepoint on three different occasions

and rejected the defense’s core contention that the sentence should

be lessened because the victims were prostitutes.

6 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc), the Eleventh Circuit adopted as binding precedent

all decisions of the former Fifth Circuit handed down prior to

October 1, 1981.

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(4th Cir. 1964); United States v. Wiley, 278 F.2d 500 (7th Cir.

1960)), cert. denied, 396 U.S. 1018 (1970). That would be patently

unconstitutional.

Here, the court did not punish Petitioner for exercising his

right to stand trial rather than plead guilty. United States v.

Jackson, 390 U.S. 570, 581 (1968) (questioning any provision that

discourages the assertion of the Fifth Amendment right not to plead

guilty and any provision which deters the exercise of the Sixth

Amendment right to a jury trial). Indeed, the court expressly

took into consideration Petitioner’s expression of remorse and his

admission of guilt.

At re-sentencing, the court said it considered Petitioner’s

acknowledgment and acceptance of responsibility and guilt, but

also found the mitigating effect of Petitioner’s pronouncement

diminished by its timing and circumstance, noting the doctor’s

opinion was rendered long prior to Petitioner’s admission of guilt

and expression of remorse. In addition, the court explained that

the conduct for which Petitioner was convicted and to which he had

confessed “is profound in its scope and heinous in its nature.”

Ex. 19 at 75. The court described the raping of a human being

while armed with a knife in a threatening manner is “beyond all

doubt profound.” Id. Although the court took into consideration

Petitioner’s statement of remorse, the court declined to pronounce

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a departure sentence, a matter well within its discretion. Id.

at 76.

In sum, although the court considered the request for

mitigation based on remorse and admission of guilt, the court

declined to impose a departure sentence, and as the state had

requested, sentenced Petitioner to life, a legal sentence for armed

sexual battery. “Although remorse and an admission of guilt may

be grounds for mitigation of sentence, the opposite is not true.

Reliance on these impermissible factors violates the defendant's

due process rights.” Brown v. State, 27 So. 3d 181, 183 (Fla. 2nd

DCA 2010) (emphasis added) (quoting Ritter v. State, 885 So.2d

413, 414 (Fla. 1st DCA 2004)).

There is no indication in the record that the court harbored

any belief of lack of remorse which affected the sentence imposed.

See Griffin, 2016 WL 5146611, at *12 (finding a failure to

establish the sentencing court violated the Fifth Amendment

privilege against self-incrimination by impermissibly considering

a lack of remorse in imposing its sentence). Upon review of the

record, the court did not rely on impermissible factors when

sentencing Petitioner and Petitioner is not entitled to habeas

relief on this ground. Ground two is due to be denied.

The 1st DCA’s decision, Ex. 23, is not inconsistent with

Supreme Court precedent, and the state court’s adjudication of

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this claim is not contrary to or an unreasonable application of

Supreme Court law or based on an unreasonable determination of the

facts. The Court concludes AEDPA deference is due and Petitioner

is not entitled to federal habeas relief.

C. Ground Three

In ground three, Petitioner claims trial counsel was

constitutionally ineffective for failure to call a witness that

would have supported the Petitioner’s theory of innocence.

Petition at 7. In the supporting facts, Petitioner claims counsel

was aware of a witness that would have supported the theory of

innocence but failed to call her at trial. Id. In the Memorandum,

Petitioner explains that this claim is based on counsel’s failure

to investigate and call Laura Kettler to testify on behalf of

Petitioner at trial. Memorandum at 43. He asserts that Ms.

Kettler could have corroborated his testimony that it was

Petitioner’s habit to place his pocketknife in the center console

of the vehicle, in plain view. Id. at 45. Thus, Petitioner

surmises that this testimony would have provided an explanation

for why the victims were aware of the knife. Id. at 46.

This ground is due to be denied. The record demonstrates the

following. After the state rested, upon inquiry as to whether

anyone would be called by the defense other than the defendant,

defense counsel told the court that she would recall Detective

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Maynard. Ex. 10 at 638. The court asked Petitioner if there was

any additional evidence he wished to present to the jury, and he

responded in the negative. Id. at 639. The defense called

Detective Maynard and Petitioner. Id. at 641-740. Defense

counsel announced there were no additional witnesses, but counsel

asked to publish the video to the jury. Id. at 740. The defense

put on the DVD of the entire interview. Id. at 753. After playing

the video, the defense rested. Ex. 11 at 875.

In his Rule 3.850 motion, Petitioner claimed his trial counsel

rendered ineffective assistance by failing to investigate and call

Ms. Kettler. Ex. 40 at 10-11. In its order, the circuit court

set forth the two-pronged Strickland standard before addressing

the grounds for relief. Id. at 18-20. After the circuit court's

introduction to the claim and its rendition of the relevant law,

the court took the trial record under consideration. It found the

record demonstrated trial counsel told the court that one detective

and the defendant would be called as witnesses. Id. at 21. The

record also showed the court inquired of Petitioner about his

decision to testify and specifically asked him if there were any

other witnesses he wished to call to testify. Id. The circuit

court noted the Petitioner responded no and advised the court there

was no additional evidence he wished to present to the jury. Id.

Finding Petitioner’s own testimony refuted his allegation of

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defense counsel’s ineffectiveness, the Court held Petitioner was

not entitled to post-conviction relief. Id.

Through counsel, Petitioner briefed this claim of ineffective

assistance of counsel on appeal of the denial of the Rule 3.850

motion. Ex. 41. The 1st DCA affirmed per curiam without

explanation. Ex. 43. This affirmance is an adjudication on the

merits entitled to AEDPA deference. This Court will employ the

"look through" presumption; the Court will "look through" the

unexplained decision to the last related state court decision that

provides relevant rationale (the circuit court's decision denying

post-conviction relief) and will presume the unexplained 1st DCA

decision adopted the same reasoning as the circuit court. Wilson.

The Court is convinced that fair-minded jurists could agree

with the circuit court's decision. As the state court reasonably

determined the facts and reasonably applied federal law to those

facts in rejecting the claim of ineffective assistance of counsel,

Petitioner is not entitled to habeas relief. The state court's

ruling is entitled to AEDPA deference. The 1st DCA affirmed the

trial court's decision and its decision is not inconsistent with

Supreme Court precedent, and the state court's adjudication of

this claim is not contrary to or an unreasonable application of

Strickland or based on an unreasonable determination of the facts.

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Thus, AEDPA deference is due, and Petitioner is not entitled to

relief on ground three.

Of note, the proposed testimony of Ms. Kettle is cumulative

testimony and the failure of counsel to present such testimony did

not prejudice the defense nor did it constitute deficient

performance. In order to demonstrate ineffectiveness, the

decision must be so patently unreasonable that no competent

attorney would have chosen that path. Moreover, “[w]hich

witnesses, if any, to call . . . is the epitome of a strategic

decision, and it is one that [a court] will seldom, if ever, second

guess.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995),

cert. denied, 516 U.S. 856 (1995).

The record shows Petitioner took the stand and described his

habit of taking his pocketknife out of his pocket and placing it

in the console of his vehicle. Ex. 10 at 653-54. Indeed, he

provided an in-depth explanation for his placement of the knife in

the center console due to the seatbelt assembly and the discomfort

of keeping the pocketknife in his pocket while driving. Id. at

654. He repeatedly stated his knife remained in the center console

during sexual relations with prostitutes while they were inside

the vehicles. Id. at 665, 686.

By calling Petitioner, defense counsel established strong

evidentiary effect through her questioning of Petitioner that he

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routinely carried a pocketknife and would place it in the console

of a vehicle where it was in plain sight for the prostitutes to

see during sexual encounters. Defense counsel did not need to

call Ms. Kettle to get this point across to the jury. Indeed,

“failure to present cumulative evidence is not ineffective

assistance of counsel.” Haag v. Sec’y, Dep’t of Corr., No. 8:14-

CV-1794-T-35AEP, 2017 WL 6550884, at *16 (M.D. Fla. Sept. 25, 2017)

(citing Maharaj v. State, 778 So. 2d 944, 957 (Fla. 2000)).

Under these circumstances, there is not a probability of a

different result sufficient to undermine confidence in the outcome

of the trial if counsel had called Ms. Kettle. Strickland, 466

U.S. 694. Defense counsel presented abundant evidence that

Petitioner would routinely place his knife in the center console

of a vehicle, and counsel’s performance was not ineffective for

failure to call Ms. Kettle because similar evidence had already

been presented. Finally, Petitioner was not prejudiced by any

failure of counsel to investigate or call Ms. Kettle to elicit

further testimony that Petitioner habitually placed his

pocketknife in plain view in the center console of a vehicle.

Based on the record, Petitioner is not entitled to habeas

relief on ground three of the Petition. He has neither shown

deficient performance nor prejudice under the Strickland standard

of review.

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D. Ground Four

In his fourth ground for relief, Petitioner claims his

constitutional right to effective counsel was violated when

counsel misadvised Petitioner about testifying during his [first]

sentencing hearing. Petition at 9. In the supporting facts,

Petitioner asserts trial counsel misadvised him about whether he

should show remorse during the first sentencing proceeding. Id.

This claim has no merit. Regina Wright represented

Petitioner at the first sentencing proceeding. Ex. 6 at 710. On

direct appeal, the 1st DCA vacated the sentence. Ex. 16.

Therefore, any question of counsel’s performance at the first

sentencing proceeding is moot. At resentencing, Terry P. Roberts

represented Petitioner. Ex. 19 at 34. Petitioner is serving a

new sentence. Id. at 79-80. As such, Petitioner is not entitled

to habeas relief on this claim of ineffective assistance of counsel

at the first sentencing proceeding.

Petitioner exhausted this ground by raising it in a Rule 3.850

motion. Ex. 40 at 12-15. The circuit court denied the claim.

Id. at 21-22. Petitioner appealed the denial of this claim, and

the 1st DCA affirmed. Ex. 43.

In denying this claim, the court assumed arguendo counsel’s

performance was deficient in the first sentencing proceeding, but

found Petitioner failed to show prejudice because the sentence had

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been reversed on appeal and he received an entirely new sentencing

hearing with a different judge. Ex. 40 at 22. Additionally, the

court found the crime was not an isolated incident as Petitioner

was found guilty of multiple sexual batteries. Id. Finally, the

court found Petitioner’s assertion that he decided not to admit

his wrong doings and express remorse at the first sentencing

hearing because of the advice of trial counsel was clearly refuted

by the record. Id. The court referenced the record, which showed

Petitioner testified under oath at the second sentencing

proceeding that he did not decide to admit guilt and express

remorse until a month prior to the second sentencing hearing. Id.

Based on the above, the court denied relief. Id.

The record shows the circuit court relied on the Strickland

two-pronged standard in reviewing Petitioner's claim of

ineffective assistance of counsel. Ex. 40. In order to obtain

relief under a Sixth Amendment claim of ineffective assistance of

counsel, a defendant must not only establish deficient performance

by counsel, but the defendant must also demonstrate prejudice under

the two-pronged Strickland test. Of note, the court found

Petitioner did not demonstrate prejudice under Strickland. Ex.

40 at 22. The court further found the record refutes Petitioner’s

claim of deficient performance regarding the advice of counsel.

Id. As such, Petitioner could not prevail on his claim of

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ineffective assistance of counsel. See Bester v. Warden, 836 F.3d

1331, 1337 (11th Cir. 2016) (finding a petitioner must satisfy

both prongs of the Strickland test in order to prevail on his claim

of ineffective assistance of counsel), cert. denied, 137 S. Ct.

819 (2017). The 1st DCA affirmed the circuit court’s decision.

Ex. 43.

The Court will “look through” the 1st DCA’s unexplained

decision to the circuit court’s decision denying relief. The

Court assumes the 1st DCA adopted the reasoning of the circuit

court.

Fair minded jurists could agree with the state court's ruling

in rejecting this claim of ineffective assistance of trial counsel.

With respect to this claim of ineffective assistance of counsel,

AEDPA deference should be given to the state court's decision.

The state court's ruling is well-supported by the record and by

controlling case law, Strickland and its progeny. The state

court's adjudication of this claim is not contrary to or an

unreasonable application of Strickland or based on an unreasonable

determination of the facts. Petitioner is not entitled to habeas

relief on ground four.

Accordingly, it is now

ORDERED AND ADJUDGED:

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1. The Amended Petition for Writ of Habeas Corpus (Doc. 21)

is DENIED.

2. This action is DISMISSED WITH PREJUDICE.

3. The Clerk shall enter judgment accordingly and close

this case.

4. If Petitioner appeals the denial of his Amended Petition

for Writ of Habeas Corpus (Doc. 21), the Court denies a certificate

of appealability.7 Because this Court has determined that a

certificate of appealability is not warranted, the Clerk shall

terminate from the pending motions report any motion to proceed on

appeal as a pauper that may be filed in this case. Such

termination shall serve as a denial of the motion.

7 This Court should issue a certificate of appealability only

if a petitioner makes "a substantial showing of the denial of a

constitutional right." 28 U.S.C. ' 2253(c)(2). To make this

substantial showing, Petitioner "must demonstrate that reasonable

jurists would find the district court's assessment of the

constitutional claims debatable or wrong," Tennard v. Dretke, 542

U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)), or that "the issues presented were 'adequate to deserve

encouragement to proceed further,'" Miller-El v. Cockrell, 537

U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983)). Upon due consideration, this Court will

deny a certificate of appealability.

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DONE AND ORDERED at Jacksonville, Florida, this 10th day of

October, 2019.

4 ¢ De

A.

United States District Judge

sa 10/2

Cc:

Terry Adkison

Counsel of Record

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