Brown v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

SAMUEL RALPHEAL BROWN,

Petitioner,

v. CASE NO. 5:19-cv-109-Oc-02PRL

SECRETARY, DEPARTMENT OF

CORRECTIONS and

FLORIDA ATTORNEY GENERAL,

Respondents.

___________________________________/

ORDER

Petitioner, a prisoner serving a state sentence, brings this habeas corpus

petition pursuant to 28 U.S.C. § 2254. Dkt. 1. Respondents filed a timely

response, Dkt. 14, and the time for Petitioner to file a reply has elapsed. The Court

finds no need for a hearing and denies the petition.

In September 2015, Petitioner was convicted by a jury of attempted second

degree murder, attempted felony murder, and attempted burglary. The evidence

showed that Petitioner and his brother burgled a house, and returned the next day

with others to steal two gun safes they had spied there. Upon returning to the

house, armed, the men participated in a botched home invasion where Petitioner

was shot while exchanging gunfire with the victim. Trial evidence included the

victim and three codefendants all testifying against Petitioner and inculpating him

unequivocally. Additionally, his DNA was found on a gun stolen in the first

burglary and used in the second. Before heading out to the second robbery,

Petitioner texted his paramour that he was “about to hit a lick” that morning.1

Petitioner was sentenced to life imprisonment as a prison releasee

reoffender. Dkt. 15-1, Exh. A, Vol. II at pp. 178–289, 395–399.2 On October 28,

2016, Petitioner’s judgment and sentence for attempted felony murder and

attempted burglary was affirmed, and his conviction and sentence for attempted

second degree murder was set aside because it violated double jeopardy principles.

Exh. D; see also Brown v. State, 204 So.3d 546 (Fla. 5th DCA 2016). Petitioner’s

amended sentence upon remand was life. Dkt. 15-16 at 90.

On January 18, 2018, Petitioner, through counsel, filed a Rule 3.850 motion

to vacate or set aside convictions and sentences. Exh. F at pp. 1-71. On April 19,

2018, the trial court denied all relief. Exh. F at pp. 595-909. On January 22, 2019,

the district court of appeal per curiam affirmed the denial. Exh. I; see also Brown

v. State, 263 So.3d 46 (Fla. 5th DCA 2019).

On August 7, 2018, Petitioner filed a petition for writ of habeas corpus

alleging ineffective assistance of appellate counsel in the Florida Fifth District

1 Tr. 296–305, 707–708 (DNA); Tr. 1075 (text message). The trial transcript will be cited as

“Tr.” and is found in Exhibit A as noted at Dkt. 15-1.

2 All record exhibits of the proceedings (Exhibits A through N) are found here at Dkt. 15, which

is docketed electronically in number attachments. This order will cite to the lettered exhibits

and, when appropriate, the specific electronic attachments, Dkt. 15-1 through Dkt. 15-16. .

Court of Appeal, pursuant to Fla. R. App. P. 9.141(d). Exh. K; Dkt. 15-16 at 145.

On November 20, 2018, the petition was denied. Exh. N.

The Respondents state that the instant petition is timely, and the Court

agrees.

Petitioner’s case is governed by the Anti-Terrorism and Effective Death

Penalty Act of 1996 (AEDPA). Pub.L. 104-132, §104, 110 Stat. 1214, 1218-19.

Concerning the AEDPA the Eleventh Circuit Court of Appeals noted:

With respect to claims adjudicated on the merits, § 2254(d)(1) restricts

the issuance of habeas relief to those cases resulting in a decision that

was contrary to, or involving an unreasonable application of, clearly

established federal law, as determined by the United States Supreme

Court. Section 2254(d)(2) provides for habeas relief where the state

court determination “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.”

The AEDPA also mandates deference to state court factual

determinations. Under § 2254(e)(1), a state court’s determination of a

factual issue is presumed correct. One seeking habeas relief must rebut

this presumption by clear and convincing evidence. § 2254(e)(1).

Valle v. Sec’y for the Dep’t of Corrs., 459 F.3d 1206, 1211 (11th Cir. 2006).

The instant petition contains claims of ineffective assistance of counsel.

Ineffective assistance of counsel claims are governed by the two-part performance-

and-prejudice standard set forth in Strickland v. Washington, 466 U.S. 668, 687

(1984). Clark v. Crosby, 335 F.3d 1303, 1310 (11th Cir. 2003).

The Supreme Court teaches:

Establishing that a state court's application of Strickland was

unreasonable under § 2254(d) is all the more difficult. The standards

created by Strickland and 2254(d) are both “highly deferential,” id., at

689, 104 S. Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.

Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem,

review is “doubly” so, Knowles, 556 U.S., at 123, 129 S. Ct. at 1420.

The Strickland standard is a general one, so the range of reasonable

applications is substantial. 556 U.S., at 123, 129 S. Ct. at 1420. Federal

habeas courts must guard against the danger of equating

unreasonableness under Strickland with unreasonableness under §

2254(d). When § 2254(d) applies, the question is not whether counsel's

actions were reasonable. The question is whether there is any

reasonable argument that counsel satisfied Strickland's deferential

standard.

Harrington v. Richter, 562 U.S. 86, 105 (2011). With that background, the Court

turns to the grounds set forth in the petition.

GROUND ONE

In Ground One, Petitioner argues that his trial counsel was ineffective for

failing to object and move for a mistrial when the trial judge asked a witness a

question. This issue was properly exhausted via the Rule 3.850 motion for

postconviction relief. Trial Judge Stancil inquired of the codefendant, Cornelius

Lewis, whether Lewis was the "ringleader." Judge Stancil's question was posed

during the following examination of Lewis by the prosecutor:

STATE: And who was doing what in the Yukon? Who was seated

where?

LEWIS: I was in the driver seat. I can't remember who was in the

passenger – well, I was in the driver [seat]. Darrell was in the passenger

[seat]. And Caleb [Petitioner’s brother] was in the back.

STATE: Eventually was somebody else driving the car?

LEWIS: Yes.

STATE: Who?

LEWIS: Caleb.

STATE: When did that switch happen?

LEWIS: At the store.

. . . .

STATE: Okay. How did it come to be that Sam [Petitioner] was in the

car?

LEWIS: We drove down a road and we seen (sic) him walking and we

picked him up.

STATE: And what happened when you all picked him up?

LEWIS: We went to the store, the BP – for gas.

STATE: Did you see if he had anything with him when he got in the

car?

LEWIS: No sir. I didn’t pay attention.

STATE: Where did he get in?

LEWIS: The back, behind the driver.

STATE: Do you guys talk between the time he gets in the car and you

guys get to where you're going in the Belleview area?

LEWIS: Yes, sir.

STATE: Okay. What do you talk about? Who says what?

LEWIS: We basically – it was referred to something about, you know,

the safe and what we were going to do.

STATE: Who was talking?

LEWIS: I was talking.

COURT: Were you the ringleader, so to speak?

LEWIS: Am I – was I the ringleader?

COURT: Yeah.

LEWIS: No, sir.

COURT: Who did you consider your leader?

DEFENSE COUNSEL (COUNSEL): Objection, argumentative.

COURT: I'm not going to – going to sustain your objection to my

question.

STATE: Who was the ringleader, Mr. Lewis?

LEWIS: Sam.

COUNSEL: Objection.

COURT: Overruled.

Tr. 877–879.

The Petitioner complains Judge Stancil departed from his role as a neutral

arbiter and took the side of the State when the court inquired as to the identity of

the ringleader. He argues that although counsel objected to the court's inquiry as

being 'argumentative,’ counsel erred when counsel failed to pose a proper

objection to the court inserting itself into the prosecutor's examination, failed to

request a curative instruction, and failed to move for a mistrial.

The Petitioner argues he was prejudiced by the court's inquiry, and counsel's

failure to pose a proper objection, because the court's inquiry could reasonably be

interpreted to favor the State and the response the court elicited assisted the State

of Florida in directly contradicting Petitioner’s theory of the case. Citing Dolan v.

State, 187 So. 3d 262, 266 (Fla. 2d DCA 2016), the Petitioner urges the court

essentially “introduced its own evidence against [Petitioner], thereby departing

from its required position of neutrality.” The Petitioner asserts that when the court

“revealed that Cornelius Lewis considered Sam Brown the ‘ringleader,’ the State

capitalized on the error two more times before the jury” to assist the State in

introducing hearsay testimony and to assist the State in closing argument. The

Petitioner argues there is a reasonable probability the outcome of the trial would

have been different but for counsel's failure to pose a proper objection and move

for a mistrial.

A trial judge is permitted, generally, to ask questions of witnesses and may

even comment on the evidence. See United States v. Block, 755 F.2d 770, 775

(11th Cir. 1985) (holding no error: trial judge asked 45 questions). This single

incident, comprised of two questions, is entirely innocuous and far from a federal

constitutional violation. This is especially so given the particular facts of

Petitioner’s trial.

Defense counsel ably sought to rebut the witness’s statement that Petitioner

was the ringleader and suggested instead it was Petitioner’s brother Caleb. This

included the following examination:

DEFENSE COUNSEL (COUNSEL): You knew what was going on

once you got up to Ocala. By then, you knew what was going on

through Caleb, is that correct?

LEWIS: Yes.

. . . .

COUNSEL: Okay. Now, let's go back again and talk about something.

You were asked by [the prosecutor] for some reason who was the

ringleader of this, okay. And who did you say?

LEWIS: Sam.

COUNSEL: Well, why would Sam be the ringleader?

LEWIS: I mean, Caleb is his brother, right?

COUNSEL: Last I checked, yeah.

LEWIS: Huh?

COUNSEL: So why Sam? Is it because he's sitting here and you' re

sitting there that he's now the ringleader?

LEWIS: No.

COUNSEL: Well, you know what a ringleader is, don't you? What' s a

ringleader?

LEWIS: Shot caller.

. . . .

COUNSEL: Okay. So – but meanwhile nobody called any shots. You

just drove, how many miles from your house up here to Ocala,

approximately? Marion – Marion Oaks-

LEWIS: Probably ten. I don't know.

. . . .

COUNSEL: All right. Whatever the distance is. Okay. So, you drove

that difference to meet with Caleb, correct?

LEWIS: Yes.

COUNSEL: Okay. And he was calling the shots, wasn't he?

LEWIS: He told me he – he was the one that told me about it, yeah.

COUNSEL: Yeah?

LEWIS: The safes.

COUNSEL: So he's calling the shots and you go there and he's the one

that's asking for the – for the truck, right?

LEWIS: Yes.

. . . .

COUNSEL: And you don't even know where you' re – where you're

going, do you?

LEWIS: No.

COUNSEL: And he takes over the wheel, right?

LEWIS: Yes.

COUNSEL: And he drives, right?

LEWIS: Yes.

COUNSEL: And Sam's just walking on the side of the road and you

guys pick Sam up, right?

LEWIS: Yes.

COUNSEL: All right. So, who does it look like to you right now is the-

is the shot caller?

LEWIS: I'm guessing you want me to say Caleb.

COUNSEL: No. No, I don't want you to say anything, I just want –

what is the – based on what we just talked about, now, you seem like a

reasonable fellow-

LEWIS: Uh-huh.

COUNSEL: --who do you think is the shot caller?

PROSECUTOR: I'm going to object as asked and answered.

COURT: Well, I think he's answered that he – you brought out what

you needed to bring or, you know – could bring out.

. . . .

COUNSEL: What's this thing about a dirt bike?

LEWIS: That was – that's what I was initially told, there was a dirt bike.

COUNSEL: By who?

LEWIS: By Caleb.

Tr. 906-910.

COUNSEL: Okay. Now, based on your testimony, I – I get the

impression that Sam gets involved in this as far as your – your

knowledge is concerned is when you pick him up. In other words, he's

walking on the side of the road and you – you pick- you pick him up or

Caleb picks him up. I'm sorry.

LEWIS: I picks (sic) him up.

. . . .

COUNSEL: . . . And, you indicated that there was no – no plan, right?

LEWIS: No thought up plan.

. . . .

COUNSEL: Okay. So, if you're still going to get a dirt bike, why – if

you know, why is there conversations about – supposed conversations

about two safes? Why are they talking about safes?

LEWIS: Because, sir, if you seen the – the form [the prosecutor]

showed me and you, you'll see when we was texting on Facebook it

said two safes.

COUNSEL: Right. Your text to Caleb?

LEWIS: Facebook messages.

COUNSEL: Right. To Caleb?

LEWIS: Yes.

. . . .

COUNSEL: Now, where everybody was at the house that you

described, how did you wind up in your position? In other words, did

you just kind of wander over there on your own, or did somebody tell

you to go over there?

. . . .

LEWIS: I was peeking through the window

. . . .

COUNSEL: You guys didn't have a plan, right?

LEWIS: No thought up plan.

COUNSEL: So you just kind of happened to wind up stopped there?

LEWIS: Actually, they – they went ahead and I was – like I said, I was

lagging behind. I was behind. So, while they was knocking on the door,

I was looking through the window. I looked through the window.

. . . .

COUNSEL: Okay. Nobody told you to do that, though?

LEWIS: No.

COUNSEL: You did it on your own, okay. Now, the gun that you got,

you got that from Caleb, right?

LEWIS: Yes.

COUNSEL: Okay. Did he ask you to pick one, or did he just hand you

one?

LEWIS: Just handed it to me.

Tr. 913–917.

Additionally, there was other sufficient evidence, aside from the

“ringleader” testimony, to establish the Petitioner as a leader. Codefendant Lewis

testified Petitioner discussed the two safes while traveling to the victim's home.

Tr. 885. According to Caleb, Petitioner was going to “help” him by “put(ting) the

gun in the victim's face” to facilitate the theft. Id. The victim testified Petitioner

was the defendant who pointed a gun at him, and Petitioner and he exchanged

gunfire during the failed burglary. Tr. 438–439.

The manner in which counsel handled the Court’s two simple questions was

in no way ineffective or prejudicial, and does not come close to stating grounds for

relief. Cf. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 11 (2002).

GROUNDS TWO AND THREE

In Ground Two, Petitioner argues that his trial counsel was ineffective for

failing to object to opinion testimony and denigration and ridicule3 of the defense.

3 The second burglary was a home invasion, botched with the four robbers running amok after

encountering the victim, who shot Petitioner. Petitioner complains the prosecutor argued it was

In Ground Three, Petitioner argues that his trial counsel was ineffective for failing

to call a rebuttal witness. Petitioner’s Grounds Two and Three before this Court

are generally the same as Petitioner’s Grounds Two and Three in his Rule 3.850

motion for postconviction relief. The trial court denied the instant grounds finding:

Ground three and a portion of ground two should be considered

together. In his second ground for relief, the Defendant argues trial

counsel was ineffective for failing to object to improper opinion

testimony the State elicited from two officers regarding the meaning of

the Defendant's text message he was going to “hit a lick.” At trial, the

officers testified this phrase “basically” or “typically” means a robbery,

burglary or theft. Tr. 1017-1019; 1076. Though skeptical, Officer

Spillman conceded the term “could” involve a drug run or drug

transaction. Tr. 1017. In his third ground for relief, the Defendant

argues counsel was ineffective for failing to present a rebuttal witness,

Kiyah Cody, to rebut the officer's testimony regarding the meaning of

“hit a lick” and to add credibility to Caleb Brown's testimony that “hit

a lick” has multiple meanings, including a drug purchase. The

Defendant surmises that had counsel presented the rebuttal witness, the

outcome of the proceedings would have been different, because

Defendant's “hit a lick” statement “was the only evidence Sam had any

intention of committing the crimes with his cohorts.” The Defendant's

arguments are a little unusual in that the Defendant appears to urge

counsel was ineffective for failing to present additional testimony

regarding other possible crimes or bad acts contemplated or committed

by the Defendant.

Trial counsel did pose an “argumentative” objection to Officer

Spillman's testimony regarding the meaning of “hit a lick.” Tr. 1016.

“like amateur hour.” In the first burglary Petitioner stole a replica tommy gun and made fruitless

internet searches on how to load it. Petitioner complained the prosecutor said the “Defendant

could not distinguish a replica gun,” the Defendant was “no ... firearms expert; he certainly (was)

no Christopher Rishel” and the defendants were “not the sharpest knives in the drawer.” Both the

State and the defense recognized the ineptitude of these young defendants and both referred to it

in their closing argument. In closing, defense counsel referred to the defendants as “this group of

merry men” and “our comedy gang” and argued that the way the defendants committed the

attempted burglary did not make sense “even for the dumbest people.” Tr. 1162, 1186, 1187.

Although counsel's argumentative objection was not a proper objection,

counsel expanded on his objection and argued the term “could mean

different things to different people.” Id.

The prosecutor continued to ask clarifying questions and the court

ultimately overruled the objection. Tr. 1016-1017. Although the

Defendant may have demonstrated error, the Defendant fails to meet

the prejudice prong of Strickland. The Defendant's “hit a lick” text

message was not the only evidence the Defendant had an intention to

participate in the crimes. Both the Defendant, and his brother Caleb,

burglarized the victim's home the day before. The Defendant's “hit a

lick” text was sent shortly before the brothers traveled to the victim's

home a second time to re-burglarize the home and take the two safes

they saw the day before. They armed themselves with the weapons they

stole the day before. The brothers were better prepared the second day

and took numerous acts towards the second burglary attempt before the

victim discovered their presence. At least two witnesses testified the

“hit a lick” phrase “could” refer to a drug deal. The Defendant urges

that Ms. Cody would have testified the phrase “can mean any number

of things including buying or selling drugs.” The proposed third

witness's testimony that the term “could” mean “any number of things”

including drug related activity would not have changed the outcome of

proceedings. Given the timing of the “hit a lick” message, and all the

other surrounding facts and circumstances, outcome of the trial,

counsel’s failure to interpose a proper objection and to call the rebuttal

witness would not have made any difference to the outcome of the trial.

Also see the court's findings above on ground one, commencing with

the first full paragraph on page 12, regarding the Defendant's failure

to meet the prejudice prong of Strickland.

In his second ground for relief, the Defendant also included an

argument counsel was ineffective for failing to object to the improper

denigration and ridicule of the Defendant and the defense. Failure to

pose an objection to a prosecutor's closing remarks can be a cognizable

claim for a post-conviction relief motion. See for example, Perry v.

State, 787 So. 2d 67 (Fla. 2d DCA 2001). Although the State argues the

comments were fair argument, some did exceed fair argument. The

Defendant's second ground for relief, however, should be denied

because the Defendant fails to meet the prejudice prong of Strickland.

The result of the trial would not have been different but for the

prosecutor's comments. There was overwhelming evidence of the

Defendant's guilt. See the court's findings above on ground one,

commencing on page, regarding the Defendant's failure to meet the

prejudice prong of Strickland. The prosecutorial comments, when

considered in the context of all of the evidence and argument, did not

deprive the defendant of a fair trial. The Defendant's second and third

grounds for relief should be denied.

Exh. F at pp. 608-610 (footnotes omitted and emphasis in original).

Notwithstanding the accuracy of the opinion testimony, as noted by the trial

court, Petitioner’s “hit a lick” text message, sent to his paramour telling her what

he was about to do, was only the slightest part of the evidence that Petitioner had

an intention to participate in the crimes. On this record, there was no reasonable

probability that counsel’s failure to call a rebuttal witness regarding possible

alternative illicit meanings for “hit a lick” had any impact on the jury’s verdicts.

The state court's conclusion that Petitioner suffered no prejudice, and thus no

ineffective assistance of counsel, was not an unreasonable application of Strickland

or other clearly established federal law. See Strickland, 466 U.S. at 687 ("First, the

defendant must show that counsel's performance was deficient. Second, the

defendant must show that the deficient performance prejudiced the defense. ...

Unless a defendant makes both showings, it cannot be said that the conviction or

death sentence resulted from a breakdown in the adversary process that renders the

result unreliable."). Accordingly, the instant argument is insufficient to establish

either ground for habeas relief from this Court. See 28 U.S.C. § 2254(d); Early v.

Packer, 537 U.S. at 11.

Regarding the prosecutor’s mild mocking of the botched, amateurish

burglary, there was no reasonable probability that counsel’s failure to object to the

comments had any impact on the jury’s verdicts. There was a bemusing aspect to

the four invaders running amok, with the victim and Petitioner exchanging fire and

Petitioner getting shot with the victim disabling their getaway car by blasting out

the windshield and the tires. Strategically, a defense theme of bumbling, unskilled

amateurs plays better than the alternative. Given the overwhelming evidence at

trial, the state court's conclusion that Petitioner suffered no prejudice, and thus no

ineffective assistance of counsel, was not an unreasonable application of Strickland

or other clearly established federal law. Strickland, 466 U.S. at 687. Accordingly,

the instant argument is insufficient to establish either ground for habeas relief from

this Court.

GROUND FOUR

In Ground Four, Petitioner argues that his trial counsel was ineffective for

failing to object to the codefendants appearing in jail garb and shackles.

Petitioner’s Ground Four before this Court is generally the same as Petitioner’s

Ground Four in his Rule 3.850 motion for postconviction relief. The trial court

denied the instant ground finding:

In his fourth ground for relief, the Defendant argues trial counsel was

ineffective for failing to object and move for a mistrial when the

codefendants appeared before the jury in shackles and jail garb, making

it appear as though the Defendant was guilty by association. [footnote

21 – see below] The State of Florida argues the Defendant failed to

demonstrate prejudice. The court agrees. The jail garb was hardly a

surprise for the jury. All three of the witnesses who appeared in jail garb

testified they had pending charges as a result of this case. Two of the

codefendants testified they already had made a plea agreement with the

State of Florida and had agreed to lengthy prison sentences. Tr. 772,

858 and 958. Additionally, the court must consider the alleged error in

light of all of the evidence offered at trial. There was overwhelming

evidence against the Defendant. See the court's findings above on

ground one, commencing on page 12, regarding the Defendant's failure

to meet the prejudice prong of Strickland. The Defendant failed to

establish there is a reasonable probability that, but for the alleged error,

the result of the proceeding would have been different." Strickland, 466

U.S. at 694. The Defendant's fourth ground for relief should be denied.

[footnote 21] At trial, the defense suggested the codefendants were

culpable and he was not. There may have been strategic reasons for

counsel not posing an objection to the codefendants’ jail garb, but the

court need not reach that issue because the Defendant fails to

demonstrate prejudice.

Exh. F at pp. 610-611 (footnote and emphasis in original).

As noted by the trial court, the jail garb and shackles were hardly a surprise

for the jury. All three of the witnesses who appeared in jail garb testified they had

pending charges as a result of this case. Two of the codefendants testified they

already had made a plea agreement with the State of Florida and had agreed to

lengthy prison sentences. Moreover, the State’s evidence of Petitioner’s guilt was

overwhelming. Therefore, the state court's conclusion that Petitioner suffered no

prejudice, and thus no ineffective assistance of counsel, was not an unreasonable

application of Strickland or other clearly established federal law. See Strickland,

466 U.S. at 687. Accordingly, the instant argument is insufficient to establish

either ground for habeas relief from this Court. See 28 U.S.C. § 2254(d); Early v.

Packer.

Further, there are strategic reasons for a defense attorney to want those

testifying against his client to be in jail garb. It contrasts with the defendant, who

sits at defense table in street clothes. It makes the adverse witnesses look more

sinister, like the ones who really did it (and by definition the defense must show

that they did it and they are lying to save themselves). It reminds the jury of the

severity of what may befall the nicely-dressed defendant by their verdict. Finally,

juries are very sophisticated, and would not believe for a moment that the

sentenced and/or admittedly guilty armed home invaders would be at liberty, on

“the street.”

GROUND FIVE

In Ground Five, Petitioner argues that his trial counsel was ineffective for

failing to preserve defense objections to the genuineness of the State’s bases for

striking two black prospective jurors. Petitioner’s Ground Five before this Court is

generally the same as Petitioner’s Ground Five in his Rule 3.850 motion for

postconviction relief. The trial court denied the instant ground finding:

In his fifth ground for relief, the Defendant alleges trial counsel was

ineffective for failing to properly preserve an objection to the

genuineness of the State's race neutral explanations for peremptory

removal of the only two black prospective jurors on the jury panel. The

Fifth District Court of Appeal did indeed find that counsel failed to

preserve the issue of whether the trial court erred in failing to make a

separate finding as to the genuineness of the race-neutral reasons

offered by the State of Florida. Brown at 547. Clearly counsel failed to

properly preserve this issue. The State of Florida argues there is nothing

in the record to support the Defendant’s assertion that the race-neutral

reasons offered by the prosecutor were pretextual. The State also argues

the Defendant fails to demonstrate “actual bias” by the jurors who sat

on the jury and fails to demonstrate prejudice. The court agrees. Tr. 36,

45-46, 74-76, 79, 134-135, 151-154, 161-162 and 164. See Caratelli v.

State, 961 So. 2d 312 (Fla. 2007). The Defendant's fifth ground for

relief should be denied.

Exh. F at p. 611 (footnote omitted).

The trial court’s attachments show that there was nothing in the record to

support a finding that the State’s reasons were not genuine. Further, the trial

court’s attachments show that there was nothing in the record to support a finding

of actual bias by a juror who sat on Petitioner’s jury. Therefore, the state court's

conclusion that Petitioner suffered no prejudice, and thus no ineffective assistance

of counsel, was not an unreasonable application of Strickland or other clearly

established federal law. See Strickland, 466 U.S. at 667; see also Hightower v.

Terry, 459 F.3d 1067, 1072 n.9 (11th Cir. 2006) (recognizing that a trial judge can

implicitly find a prosecutor’s proffered reasons credible).

The State used peremptory challenges to challenge the two prospective

African-American jurors, Ms. Sancho and Mr. Wright. During jury selection, Ms.

Sancho was asked about how she felt about accomplices becoming witnesses, to

which she responded:

PROSPECTIVE JUROR (SANCHO): Well, I always say if you, if you

can’t do time, don’t do the crime. I don’t really have a problem with it

in a sense and in a way I do . . . I mean, if you done it, you know, handle

your time – you know, don’t drag anybody else in with you, you know

– do your thing. You did it, so deal with it.

Tr. 75–76. She then indicated, “I don’t – I don’t – I don’t have a problem with it.”

Tr. 75.

Later, when exercising a peremptory challenge to strike Ms. Sancho, the

State was asked to provide a race-neutral reason for the strike. Tr. 152. The State

noted that Ms. Sancho, “when asked about accomplice testimony, . . . stated that

she believed if people get caught committing a crime, they need to take their plea

or do whatever and not get involved with other people, not get involved.” Tr. 152.

The trial court found this was a race-neutral reason to strike Ms. Sancho and

denied the Petitioner’s Melbourne challenge. Tr. 152.

During jury selection, as a follow-up to the panel being asked if they knew

any of the participants in the trial, the State and Mr. Wright had the following

exchange:

MR. McCOURT [State prosecutor]: Mr. Wright, did you kind of put

your hand up a minute ago?

PROSPECTIVE JUROR (WRIGHT): I know Jack Maro is a lawyer.

MR. McCOURT: Okay. How do you know him as a lawyer?

WRIGHT: He represented my mother a few years back.

MR. McCOURT: All right. Do you feel like he did a good job for your

mom?

WRIGHT: Yeah.

MR. McCOURT: Okay. All right. Would anything about that affect

your deliberations in this case?

WRIGHT: No.

Tr. 36. Later, when exercising a peremptory challenge to strike Mr. Wright, the

State provided a race-neutral reason for doing so, noting he was the individual

whose mother was represented by Mr. Maro (Petitioner’s present trial lawyer) and

who felt that Mr. Maro did a good job. Tr. 153. The court found this was a valid

race-neutral reason to strike Mr. Wright and denied the Petitioner’s Melbourne

challenge.

Petitioner alleges that the State’s reasons given for striking the prospective

jurors was not genuine. In support of this allegation, Petitioner argues that

similarly situated Caucasian jurors were not stricken. Petitioner argues that Ms.

Gawn, who was not stricken by the State, made comments similar to Ms. Sancho

when Ms. Gawn stated she was “not really sure” how she felt about accomplices

testifying. Tr. 151. Being “not really sure” how she felt about accomplices

testifying is different from believing that if you “done it” you should not “drag

anybody else in with you” and should simply “do your thing” and “deal with it.”

Petitioner argues that Ms. Miller, who was not stricken by the State, made a

comment similar to Mr. Wright when Ms. Miller stated she lived down the street

from Detective Spillman, who coached her son’s football team and who she

considered a friend. Tr. 45–46. Ms. Miller was not selected as an alternate juror

based upon the agreement of the State and the defense. Tr. 161–162. There is a

material difference between a juror whose mother was represented by defense

counsel, who was in the same position relative to the Defendant that he was

formerly in relative to the juror’s mother, and a juror who was friends with a

detective who would be called by the State.

Petitioner points to no other portion of the record to support his allegation

that the State’s race-neutral reasons given to strike the prospective jurors Sancho

and Wright were pretextual. He merely speculates that they were not genuine and

speculates that the trial court, if prompted to determine whether they were genuine,

“would have found that the reasons were not genuine.”

Race-neutral reasons were given and were accepted by the trial court.

Following jury selection, the court asked the State, and Petitioner personally, if

they were satisfied with the jurors selected. They stated they were. Tr. 163 (“The

Court: Mr. Brown are you satisfied with this jury? Petitioner: Yes, Sir.”).

Petitioner’s lawyer made appropriate objections to the strikes of these two African-

American potential jurors.

Petitioner argues that the remaining jurors were biased, but his record

citations do not support this. The defense attorney did not exhaust his peremptory

strikes, Tr. 158, and Petitioner does not ascribe fault in his failure to do so.

Accordingly, the instant argument is insufficient to establish either ground

for habeas relief from this Court. See 28 U.S.C. § 2254(d); Early v. Packer, 537

U.S. at 11.

GROUND SIX

In Ground Six, Petitioner argues that he was denied his right to effective

assistance of trial counsel based on “the cumulative effect” of his trial counsel’s

deficient performance. Petitioner’s Ground Six before this Court is generally the

same as Petitioner’s Ground Six in his Rule 3.850 motion for postconviction relief.

The trial court denied the instant ground finding:

In his sixth ground for relief, the Defendant argues the Defendant's

conviction and sentence was fraught with errors, which, when

considered cumulatively, deprived the Defendant of due process and a

fair trial. The State of Florida agrees the conviction for attempted

second degree murder with a firearm should be vacated, but argues the

Defendant is entitled to no other relief. The court agrees. The

Defendant's judgment and sentence should be corrected to comply with

the Fifth District Court of Appeal mandate…. The court considered

each of the grounds raised by the Defendant, individually and

cumulatively, and finds the Defendant has not demonstrated prejudice

and has not demonstrated he was denied due process or a fair trial.

Exh. F at pp. 611–612.

The trial court’s total record attachments show that the State’s evidence of

Petitioner’s guilt was overwhelming. During trial, all three of Petitioner’s

accomplices, including his brother and his cousin, testified against Petitioner.

DNA evidence tied him to the crimes. Moreover, the victim identified Petitioner

as the individual who had shot at him and as the individual he had shot. On this

record, there was no reasonable probability that counsel’s alleged errors, whether

considered individually or cumulatively, had any impact on the jury’s verdicts.

The state court's conclusion that Petitioner suffered no prejudice, and thus no

ineffective assistance of counsel, was not an unreasonable application of Strickland

or other clearly established federal law. See Strickland, 466 U.S. 668, 687.

GROUND SEVEN

In Ground Seven, Petitioner argues that his appellate counsel was ineffective

for failing to argue the information was fundamentally defective because it charged

a non-existing crime. Petitioner’s Ground Seven before this Court is generally the

same as Petitioner’s only ground raised in his petition for writ of habeas corpus

alleging ineffective assistance of appellate counsel. Exh. K.

The record shows that the information did charge an existing crime, and

Petitioner’s claim was without merit.

Florida law provides:

[W]here the information is merely imperfect or imprecise, the failure to

timely file a motion to dismiss under Rule 3.190(c) waives the defect

and it cannot be raised for the first time on appeal. The test to determine

if an information is fatally defective is whether there is a total omission

of an essential element of the crime, or whether the indictment or

information is so vague, indistinct and indefinite as to mislead the

accused and embarrass him in the preparation of his defense, or expose

him after conviction or acquittal to the substantial danger of a new

prosecution for the same offense.

Ingraham v. State, 32 So. 3d 761, 766 (Fla. 2d DCA 2010) (quoting Jones v. State,

415 So. 2d 852, 853 (Fla. 5th DCA 1982)). Petitioner did not claim that a motion

to dismiss had been filed. So Petitioner’s appellate counsel could not be

considered ineffective for failing to raise a meritless issue that had been waived

and was procedurally barred. Downs v. Moore, 801 So. 2d 906, 909-10 (Fla.

2001). Therefore, the state court’s rejection of the instant claim was not contrary

to, nor an unreasonable application of, Strickland or other clearly established

federal law. Accordingly, the instant argument is insufficient to establish either

ground for habeas relief from this Court. See 28 U.S.C. § 2254(d); Early v.

Packer, 537 U.S. at 11.

The Court has no need to convene an evidentiary hearing to resolve the

matters presented. See Cullen v. Pinholster, 563 U.S. 170, 186 (2011) (“Although

state prisoners may sometimes submit new evidence in federal court, AEDPA’s

statutory scheme is designed to strongly discourage them from doing so.

Provisions like §§ 2254(d)(1) and (e)(2) ensure that ‘[f]ederal courts sitting in

habeas are not an alternative forum for trying facts and issues which a prisoner

made insufficient effort to pursue in state proceedings.’”) (citing Williams v.

Taylor, 529 U.S. 420, 437 (2000)).

The evidence here was overwhelming. Reasonable jurists could not differ

on these findings. Therefore, the Court does not grant a certificate of appealability,

and therefore in forma pauperis status is also denied. The Petition (Dkt. 1) is

dismissed. The Clerk is directed to enter judgment accordingly and close the case.

DONE AND ORDERED at Ocala, Florida, on March 27, 2020.

s/William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record and Petitioner, pro se