Hamrick v. Secretary, Florida Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LARRY GENE HAMRICK

Petitioner,

v. Case No. 3:17-cv-704-J-32PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, initiated this case by

filing a pro se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. Doc.

1; Petition. He is challenging a state court (Duval County, Florida) judgment of

conviction for robbery. Id. at 1. He is currently serving a thirty-year term of

incarceration as a habitual felony offender, with a fifteen-year minimum

mandatory term as a prison releasee reoffender. Id. at 7. Respondents have

responded. See Doc. 14; Response.1 Petitioner declined to file a reply, and

1 Attached to the Response are numerous exhibits. See Doc. 14-1 through

Doc. 14-4. The Court cites to the exhibits as “Resp. Ex.”

instead notified the Court that he intends to rely on the allegations as alleged

in his Petition. See Doc. 16. This case is ripe for review.

II. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal habeas corpus petition. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure

that federal habeas relief functions as a guard against extreme malfunctions in

the state criminal justice systems, and not as a means of error correction.’” Id.

(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the petitioner’s claims on the merits. See

Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The

state court need not issue an opinion explaining its rationale in order for the

state court’s decision to qualify as an adjudication on the merits. See Harrington

v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s adjudication on the

merits is unaccompanied by an explanation,

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. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

grounds than the lower state court’s decision, such as

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

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

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “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)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (internal quotation marks omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,

538 U.S. 63, 75 (2003)). The Supreme Court has

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

mere error or even clear error. See, e.g., Mitchell v.

Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at

75 (“The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear

error) with unreasonableness.”); Williams v. Taylor,

529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense counsel’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a

person must show that: (1) counsel’s performance was outside the wide range of

reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

Notably, there is no “iron-clad rule requiring a court to tackle one prong

of the Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th

Cir. 2010). Since both prongs of the two-part Strickland test must be satisfied

to show a Sixth Amendment violation, “a court need not address the

performance prong if the petitioner cannot meet the prejudice prong, and vice-

versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As

stated in Strickland: “If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, which we expect will often be so, that

course should be followed.” 466 U.S. at 697.

“The question is not whether a federal court believes the state court’s

determination under the Strickland standard was incorrect but whether that

determination was unreasonable - a substantially higher threshold.” Knowles

v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If there is

“any reasonable argument that counsel satisfied Strickland’s deferential

standard,” then a federal court may not disturb a state-court decision denying

the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting Strickland’s high

bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

“Reviewing courts apply a ‘strong presumption’ that counsel’s representation

was ‘within the wide range of reasonable professional assistance.’” Daniel v.

Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting

Strickland, 466 U.S. at 689). “When this presumption is combined with §

2254(d), the result is double deference to the state court ruling on counsel’s

performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y, Dep’t

of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,

concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).

III. Analysis

A. Ground One

Petitioner argues that his trial attorney was ineffective for failing to

impeach the victim, Nicholas Israel’s, trial testimony with statements Israel

made during his deposition and in his written statement to police. Doc. 1 at 9.

Petitioner highlights four allegedly inconsistent prior statements that trial

counsel should have used to discredit Israel’s version of events. Id. at 10-11.

Petitioner raised an identical claim in his Rule 3.850 motion. Resp. Ex. H at 18-

23. The postconviction court summarily denied the claim, finding in pertinent

part:

In the first claim of the instant Motion,

Defendant raises four subclaims, each alleging counsel

was ineffective for failing to impeach State witness and

victim Nicholas Israel for prior inconsistent

statements. In each subclaim, Defendant contends

counsel’s failure to impeach undermined confidence in

the outcome of his case.

SUBCLAIM ONE

In his first subclaim, Defendant argues counsel

should have impeached Nicholas Israel when he

testified at trial, on direct-examination, that it was

dark at the scene of the robbery and, on cross-

examination, it was not well-lit and relatively dark.

Defendant alleges Mr. Israel testified during his

deposition that the location was “pretty lit up.” (Def.’s

Mot. at 3, 5.) Defendant asserts counsel should have

impeached Mr. Israel for lying at trial about the degree

of light at the scene of the crime.

Initially, this Court notes Defendant fails to

attach as an exhibit the transcript from the deposition

to which he cites, and the transcript is not in the court

records. Regardless, it is clear, from what does exist in

the record, defense counsel did impeach Mr. Israel

during his effective cross-examination. (Ex. B at 36-54.)

First, on direct-examination, Mr. Israel did testify the

location was dark. (Ex. B at 36.) On cross-examination,

Mr. Israel testified that it was 1:00 in the morning, that

it was dark outside, and that it was not well-lit. (Ex. B

at 48.) Taking as true Defendant’s allegation that Mr.

Israel did testify during his deposition that the location

was “pretty lit up,” this Court notes that phrase is open

to interpretation and does not necessarily contradict

his trial testimony. Nonetheless, counsel did

successfully impeach Mr. Israel for other prior

inconsistent statements (duration of robbery, suspects’

descriptions) given at his deposition and in his written

statement to police, and Mr. Israel testified that his

sworn deposition testimony was not accurate. (Ex. B. at

49-54.) Mr. Israel also testified on cross-examination

that he was drunk at the time of the incident and that

his memory of the incident is a little hazy. (Ex. B at 47-

50.) When counsel asked if his memory is hazy due to

excessive drinking, Mr. Israel responded it could have

been a result of the head trauma he suffered during the

robbery when he blacked-out and hit his head on the

concrete. (Ex. B at 49-51.) Assuming arguendo that

counsel did err by failing to impeach Mr. Israel based

on the level of light at the crime scene, which this Court

does not hold, Defendant has failed to show prejudice.

Mr. Israel was effectively impeached before the jury,

which convicted Defendant despite the prior

inconsistent statements. Lastly, counsel argued during

his closing that Mr. Israel’s trial testimony was not

credible because of his level of intoxication at the time

of the robbery. (Ex. B at 152-167.) It is unreasonable

that, had counsel also impeached Mr. Israel as to the

level of light at the scene of the crime, the outcome of

the proceeding would have been different. Accordingly,

Defendant’s first subclaim is denied.

SUBCLAIM TWO

In his second subclaim, Defendant argues

counsel should have impeached Mr. Israel when he

testified at trial, on cross-examination, that he was not

100-percent sure which of the two men involved in the

robbery touched him first or which one put him in a

chokehold. Defendant alleges Mr. Israel testified

during his deposition that he was ninety-percent sure

Defendant strangled him.

This Court finds the statements are not

inconsistent. Assuming arguendo Mr. Israel did so

testify during his deposition, as Defendant states, there

would be no basis on which to impeach Mr. Israel for an

inconsistent statement. Trial counsel is not ineffective

for failing to raise a nonmeritorious issue. Lugo v.

State, 2 So. 3d 1, 21 (Fla. 2008); Parker v. State, 611

So. 2d 1224, 1227 (Fla. 1992). Accordingly, Defendant’s

second subclaim is denied. Out of an abundance of

caution, this Court also denies Defendant’s second

subclaim under the reasoning set forth in this Court’s

denial of his first subclaim.

SUBCLAIM THREE

In his third subclaim, Defendant contends

counsel should have impeached Mr. Israel when he

testified at trial that the duration of the encounter was

several minutes when, during his deposition, Mr. Israel

testified that the encounter took only five-to-six

seconds.

This Court denies Defendant’s third subclaim

under the reasoning set forth in this Court’s denial of

Defendant’s first subclaim.

SUBCLAIM FOUR

In his third [sic] subclaim, Defendant contends

counsel should have impeached Mr. Israel for

inconsistent statements, between his trial testimony,

deposition testimony, and written statement to police

regarding the descriptions of the two attackers.

Defendant argues Mr. Israel’s direct-examination

testimony, describing the clothing of the two attackers,

contradicts his cross-examination testimony that the

only identification he provided to police in his written

statement was that the two robbers were black males.

Defendant asserts these statements also conflict with

Mr. Israel’s re-direct testimony that he provided a more

thorough description of the robbers in his deposition

testimony.

This Court notes the inconsistencies alleged in

his argument are the direct result of his counsel’s

effective impeachment of the witness for the very

reasons Defendant now alleges he should have used.

(Ex. B at 31-56.) Defendant’s claim is without merit.

Trial counsel is not ineffective for failing to raise a

nonmeritorious issue. Lugo, 2 So. 3d at 21; Parker, 611

So. 2d at 1227. Accordingly, Defendant’s fourth

subclaim[] is denied. Out of an abundance of caution,

this Court also denies Defendant’s fourth subclaim

under the reasoning set forth in this Court’s denial of

Defendant’s first subclaim.

Resp. Ex. H at 53-56. Petitioner appealed the postconviction court’s denial.

Resp. Ex. I. The First District Court of Appeal per curiam affirmed the

postconviction court’s summary denial without a written opinion. Resp. Ex. K.

To the extent that the First DCA affirmed the postconviction court’s denial on

the merits, the Court will address the claim in accordance with the deferential

standard for federal court review of state court adjudications.

To add context to this claim, the Court briefly summarizes relevant

testimony presented at trial. During his direct-examination, Israel testified

that on the night of the robbery, he and some friends had gone to a bar to see a

concert. Resp. Ex. B at 33-34. When Israel’s friends unintentionally left him at

the bar, Israel walked outside to phone a ride. Id. at 34-35. He testified that

while he was waiting to be picked up, two black males approached him and

asked him for a cigarette. Id. at 36-37. He testified that the lighting in the area

was dark, but he was able to describe the height and clothing of the two

individuals who approached him and explained that one of the individuals was

wearing a black shirt and long red shorts. Id. at 37. He stated that while he was

reaching down to get a cigarette, he felt someone grab his neck and begin

strangling him. Id. at 39-40. As he was being strangled, he also felt someone

grabbing his legs. Id. at 39. He lost consciousness for a brief moment but woke

up just in time to see the individual in the black shirt and red shorts running

away, but still within a half of a block. Id. at 40. When asked how long the

incident lasted, he testified “[o]ver minutes, I think.” Id. at 40-41. He identified

Petitioner as one of the two black males, and explained that Petitioner was the

individual wearing the black shirt and red shorts the night of the incident. Id.

at 39-40.

He also testified that when he regained consciousness, eyewitness Cecil

Kendall ran to Israel to see if he was alright. Id. at 41-42. Israel and Kendall

then began chasing the assailant in the black shirt and red shorts (Petitioner)

as Kendall called 911 and described the assailants to the police dispatcher. Id.

at 42. Police were nearby and soon after the 911 call, police apprehended

Petitioner who was still wearing the black shirt and red shorts. Id. at 42-43.

Following his arrest, Petitioner was read his Miranda2 rights and questioned

by police. Id. at 109-14. During his police interview, which was played for the

jury at trial, Petitioner stated that prior to the incident, Israel had stopped

Petitioner and another individual named “Jit” in the street and asked if they

could help Petitioner purchase drugs. Id. at 112-13. Petitioner explained that

he then saw Israel reach down and pull out cash from his wallet. Id. at 111-12.

Petitioner told police that after he saw Israel’s cash, Petitioner turned around

to urinate. Id. at 112-13. Petitioner explained that he then turned around to

find Jit choking Israel before slamming Israel on the ground and running away

with his wallet.3 Id. at 112-13.

Petitioner argues that trial counsel should have elicited prior inconsistent

statements from Israel regarding the area being “well-lit,” that he was 90-

percent sure Petitioner was the individual who choked him, that the attack

lasted only five-to-six seconds, and that Israel did not provide a description of

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

3 Police were not able to identify or locate “Jit.” Resp. Ex. B at 114.

the attacker’s clothing to police on the night of the incident. Doc. 1 at 10-11.

However, on cross-examination, trial counsel attempted to discredit Israel’s

trial testimony by questioning him about his level of intoxication at the time of

the crime, and by eliciting testimony that he was hit on his head and lost

consciousness, the area of the attack was not well lit, he could not identify who

attacked him, and his memory of the incident was “a little hazy.” Id. at 48-52.

Further, contrary to Petitioner’s current allegation, trial counsel did question

Israel about his inconsistent deposition testimony, in which he stated that the

encounter took five-to-six seconds. Id. at 50. And trial counsel used Israel’s prior

written statement to police to highlight that Israel did not give police, on the

night of the robbery, a description of the assailants’ clothing or physical

features. Id. at 52-53. He also elicited testimony that Israel and Kendall were

placed in the same interview room during police questioning, and Israel

admitted that Kendall did not actually see the entire robbery take place. Id.

However, during, re-direct, Israel acknowledged that during his prior

deposition testimony, he did testify that one of the assailants was wearing “[a]

black shirt with – [ ] a shiny print on the front of it and long red shorts.” Id. at

55.

Trial counsel’s obvious efforts to impeach and discredit Israel’s trial

testimony were not deficient. Also, considering Petitioner’s admissions made

during his police interrogation, Petitioner cannot demonstrate that but for

counsel’s failure to cross-examine Israel regarding the assailants’ clothing or

the lighting, the outcome of the trial would have been different. Upon thorough

review of the record and the applicable law, the Court concludes that the state

court’s decision to deny Petitioner’s claims is neither contrary to nor an

unreasonable application of Strickland, and it is not based on an unreasonable

determination of the facts in light of the evidence presented to the state court.

See 28 U.S.C. § 2254(d). Ground One is denied.

B. Ground Two

Petitioner argues that trial counsel was ineffective for failing to file a

motion to suppress Israel’s and Kendall’s in-court and out-of-court

identifications of Petitioner as one of the assailants. Doc. 1 at 13-15. He claims

that the out-of-court identifications were inherently incredible, because neither

witness described the assailants in their written statements to police; police did

not verify their identifications using a photo lineup; Israel was heavily

intoxicated at the time of the offense; the area of the robbery was very poorly lit

and Israel lost consciousness; Israel did not personally view the men; Kendall

described the assailant as wearing an orange shirt and blue shorts; Kendall lost

eye contact of the fleeing assailant when he stopped to help Israel; and

Petitioner approached Israel after the attack and asked if he needed help. Id.

He claims that the in-court identification of Petitioner should have been

suppressed because it “was extremely prejudicial and erroneous, and the

outcome of his trial would have been different without such in-court

identification.” Id. at 15.

Petitioner raised a similar claim in his Rule 3.850 motion.4 Resp. Ex. H

at 24-31. The postconviction court summarily denied the claim as follows:

In Defendant’s second claim, Defendant contends

counsel was ineffective for failing to file a motion to

suppress evidence that identified Defendant as one of

the two assailants in the robbery. Specifically,

Defendant argues a motion to suppress would have

been meritorious because his out-of-court

identifications did not involve “often standard police

procedures” including a line-up, show-up, or photo

spread. (Def.’s Mot. at 10.) Defendant also alleges

counsel should have filed the motion to suppress

because various witnesses provided inconsistent

clothing descriptions and there was no detailed

description of the assailants’ clothing shortly after the

robbery. Defendant alleges, but for counsel’s failure to

file the motion to suppress, the result of the trial would

have been different.

SUBCLAIM ONE

This Court construes Defendant’s claim as two

subclaims. In Defendant’s first subclaim, he argues

counsel should have filed a motion to suppress because

the police did not employ the use of a line-up, a show-

up, or photo spread.

4 In his Rule 3.850 motion, Petitioner did not challenge Israel and

Kendall’s in-court identifications. Resp. Ex. B at 24-31. Because Respondents

do not argue that Petitioner failed to exhaust that subclaim, the Court assumes

Respondents have waived any exhaustion defense. Nevertheless, as explained

in the Court’s analysis of this Ground, any challenge to Israel and Kendall’s in-

court identifications would have been meritless.

Mr. Israel testified that, once he regained

consciousness, he and another witness ran after one of

the suspects and that he flagged down a police officer

and drove with her until he saw the man he had been

chasing. (Ex. B at 41-43.) At trial, Mr. Israel identified

that person as Defendant. (Ex. B at 40.) Officer

Pomeroy testified as to how she drove Mr. Israel around

in her cruiser, having Mr. Israel look at two people

walking on the street as she drove by. (Ex. B at 91-92.)

She testified that Mr. Israel identified the second

person shown to him as one of the assailants because

he was wearing the exact description of clothing given

by a different witness. (Ex. B at 91.) Officer Pomeroy

testified that the suspect was walking briskly and was

breathing heavily as though he had been running. (Ex.

B at 92-93.) At trial, Officer Pomeroy identified that

person as Defendant. (Ex. B at 93-94.) Defendant has

failed to show that his out-of-court identification was

obtained by unnecessarily suggestive police

procedures. Had counsel moved to suppress, that

motion would have been denied. Counsel cannot be

ineffective for failing to file a motion which would have

been properly denied. Branch v. State, 952 So. 2d 470,

476 (Fla. 2006).

Furthermore, “[w]here an evidentiary hearing

has not been held, a movant’s allegations in a motion

for postconviction relief must be accepted as true except

to the extent that the allegations are conclusively

rebutted by the record.” Murphy v. State, 638 So.2d

975, 976 (Fla. 1st DCA 1994) (citing Harich v. State,

484 So. 2d 1239 (Fla. 1986)). Defendant admits in his

motion that counsel advised Defendant he would not

file a motion to suppress because there were no grounds

to support suppression and that he thought he could

win the case at trial without filing a motion to suppress.

(Def.’s Mot. at 9.) Accepting the allegations as true, this

Court finds counsel’s decision to be based on reasonable

trial strategy. Generally, an evidentiary hearing is

required to determine whether counsel’s action or

inaction was a strategic decision. Hamilton v. State,

979 So. 2d 420, 422 (Fla. 2d DCA 2008) (citations

omitted). However, when it is obvious from the record

that counsel’s decision was strategic, an evidentiary

hearing is not required. Id. Here, Defendant admits

counsel’s decision was strategic. Accordingly,

Defendant’s first subclaim is denied.

SUBCLAIM TWO

In Defendant’s second subclaim, he contends

counsel should have filed the motion to suppress due to

inconsistent clothing descriptions and the lack of a

detailed description of the assailants’ clothing shortly

after the robbery.

To the extent the Defendant appears to be

attempting to challenge the sufficiency of the evidence

against him, the Defendant may not challenge the

admissibility, validity, or sufficiency of the evidence

against him in a motion seeking postconviction relief.

Betts v. State, 792 So. 2d 589, 590 (Fla. 1st DCA 2001);

Jackson v. State, 640 So. 2d 1173, 1174 (Fla. 2d DCA

1994). Defendant may not seek to avoid this procedural

bar by couching his allegations in terms of ineffective

assistance of counsel. See Arbelaez v. State, 775 So. 2d

909 (Fla. 2000); Cherry v. State, 659 So. 2d 1069 (Fla.

1995); Chandler v. State, 634 So. 2d 1066 (Fla. 1994);

Lopez v. Singletary, 634 So. 2d 1054 (Fla. 1994); Torres-

Arboleda v. Dugger, 636 So. 2d 1321 (Fla. 1994);

Swafford v. State, 569 So. 2d 1264 (Fla. 1990); Medina

v. State, 573 So. 2d 293 (Fla. 1990). Accordingly,

Defendant’s second subclaim is denied.

Resp. Ex. H at 52-57-59. The First DCA per curiam affirmed the trial court’s

denial without a written opinion. Resp. Ex. K. To the extent that the First DCA

affirmed the trial court’s denial on the merits, the Court will address the claim

in accordance with the deferential standard for federal court review of state

court adjudications.

To add context to this claim, the Court briefly summarizes Kendall’s trial

testimony. Kendall testified that he was walking in the downtown area when

he heard screams. Resp. Ex. B at 60-61. He looked around and saw, from about

forty yards away, two black males attacking a white male. Id. at 61. According

to Kendall, both assailants were touching Israel and sticking “their hands in

his pockets, digging in his pockets.” Id. at 83. He testified that one of the males

was wearing blue jean shorts and a white shirt and the other assailant was

wearing red shorts and a gray shirt. Id. at 62. Kendall explained that he began

running toward the men while yelling for the assailants to stop. Id. At that time,

the assailant in the blue jean shorts ran away, out of sight, while the assailant

in the red shorts ran another direction. Id. at 62. After stopping to check on

Israel, Kendall and Israel began pursuing the assailant in red shorts and during

the pursuit, Kendall saw the individual in red shorts drop an object that was

later identified as Petitioner’s cell phone. Id. at 63. During the chase, Kendall

used his own cell phone to call 911. Id. at 63-64.

The 911 call was played for the jury, during which Kendall describes the

assailant as wearing “red shorts and black shirt . . . .” Id. at 66-68. As he is

describing the assailant to the 911 dispatcher, it is clear that Kendall and Israel

are looking at the assailant and tracking him while they provide the

description. Id. at 66-68. Kendall testified that Israel then flagged down a

nearby police officer, and Israel and the officer drove around in the vicinity until

they saw Petitioner again, and at that time, police apprehended him. Id. at 70.

Kendall stated that on the night of Petitioner’s arrest, he had an opportunity to

view the individual in custody and recognized him to be the assailant that he

saw attack Israel. Id. at 70. He also made an in-court identification of Petitioner

as one of the individuals who participated in the robbery of Israel. Id. 70-71.

On cross-examination, trial counsel challenged Kendall’s identification of

Petitioner by noting that in his written statement to police, he originally

described the assailant as wearing an orange shirt and blue shorts. Id. at 76.

He also attempted to discredit Israel’s identification by eliciting testimony from

Kendall that when Israel regained conscious, Kendall pointed at Petitioner and

exclaimed “there he is” before engaging in their pursuit. Id. at 78. Trial counsel

also elicited testimony from Kendall that during their pursuit of Petitioner,

Petitioner “voluntarily walked up to [Kendall] and Mr. Israel,” and that “he

wasn’t fleeing,” but walking. Id. at 79. However, it is unclear what Petitioner

actually said to Israel and Kendall at that time. Id. Further, as detailed in

Ground One above, on cross-examination of Israel, trial counsel attempted to

challenge Israel’s identification of Petitioner by questioning him about his level

of intoxication at the time of the crime, that he hit his head and lost

consciousness, that the area of the attack was not well lit, he could not identify

who attacked him, and elicited an admission that his memory was “a little

hazy.” Id. at 225-28.

Petitioner’s argument that Kendall and Israel’s identifications were

unreliable and subject to suppression is without merit. Trial counsel is not

deficient for failing to raise a meritless argument. See Diaz v. Sec’y for the Dep’t

of Corr., 402 F.3d 1136, 1142 (11th Cir. 2005) (holding counsel cannot be

ineffective for failing to raise a meritless argument); Bolender v. Singletary, 16

F.3d 1547, 1573 (11th Cir. 1994) (noting that “it is axiomatic that the failure to

raise nonmeritorious issues does not constitute ineffective assistance”).

Further, trial counsel painstakingly attempted to discredit Israel and Kendall’s

identifications by impeaching these witnesses with the evidence Petitioner now

claims would have supported a motion to suppress. Despite such efforts, any

challenge to Israel and Kendall’s identifications would not have precluded the

state from presenting to the jury Petitioner’s police interrogation, in which he

admitted that he was present during the robbery, although arguing he did not

touch Israel. See Rep. Ex. B at 109-14. Thus, Petitioner fails to show that but

for trial counsel’s alleged deficiency, the outcome of his trial would have been

different. Upon thorough review of the record and the applicable law, the Court

concludes that the state court’s decision to deny Petitioner’s claims was neither

contrary to nor an unreasonable application of Strickland, and it is not based

on an unreasonable determination of the facts in light of the evidence presented

to the state court. See 28 U.S.C. § 2254(d). Ground Two is denied.

C. Ground Three

Petitioner argues that trial counsel was ineffective for failing to move for

a mistrial and object to the state’s Giglio5 violation. Doc. 1 at 16-19. He asserts

that during Kendall’s pretrial written statement to police, he described the

robber as wearing an orange shirt and blue shorts. Id. He claims that at trial,

however, Kendall changed his testimony and testified that the robber was

wearing red shorts and a black shirt – the exact outfit that Petitioner was

wearing the night of the offense. Id. He argues that the state advised Kendall

to change his testimony, so it would match the physical evidence supporting its

theory that Petitioner was one of the robbers. Id.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. H at 32-

35. The postconviction court summarily denied the claim, finding in pertinent

part:

In his third claim, Defendant contends counsel

was ineffective for failing to object to the State’s Giglio[]

violation. Defendant argues the State committed the

violation when it knowingly presented the false

testimony of witness Cecil Kendall. Defendant states

the testimony was false because he made inconsistent

statements on direct-, cross-, and redirect-examination.

Defendant states Mr. Kendall, on direct-examination,

testified the suspect wore red shorts and a gray shirt,

5 Giglio v. United States, 405 U.S. 150 (1972).

but on cross-examination, Mr. Kendall testified he

reported to police, in his written statement, the suspect

was wearing blue shorts and an orange shirt.

Defendant points out Mr. Kendall, on redirect-

examination, testified that he stated, during his

deposition, the suspect was wearing red shorts and a

gray shirt with a white headband around one of his

arms. Defendant argues, because the State knew or

should have known Defendant was arrested while

wearing red shorts and black shirt, it knowingly

presented false testimony at trial when Mr. Kendall

testified the suspect wore red shorts and a gray shirt.

To establish a Giglio violation, a defendant must

show: (1) the testimony given was false; (2) the

prosecutor knew the testimony was false; and (3) the

statement was material. Guzman v. State, 868 So. 2d

498, 505 (Fla. 2003) (citing Ventura v. State, 794 So. 2d

553, 564-65 (Fla 2001)). Under the third prong of Giglio,

when a prosecutor knowingly uses perjured testimony,

or fails to correct what the prosecutor later learns is

false testimony, the false evidence is material “if there

is any reasonable likelihood that the false testimony

could have affected the judgment of the jury.” Guzman,

868 So. 2d at 506 (quoting United States v. Agurs, 427

U.S. 97, 103 (1976)). Stated differently, the false

testimony is material unless the failure to disclose it is

harmless beyond a reasonable doubt. Id. (quoting

United Stated v. Bagley, 473 U.S. 667, 679-80 (1985)).

It is the State’s burden to prove harmless error beyond

a reasonable doubt. Id.

Here, Defendant fails to prove Mr. Kendall’s

testimony was false or that the State knowingly

presented false testimony. The record shows Mr.

Kendall did testify, on direct-examination, that the

suspect was wearing red shorts and a gray shirt. (Ex. B

at 61-62.) On cross-examination, counsel impeached

Mr. Kendall for his prior inconsistent written

statement to police, which stated the suspect was

wearing blue shorts and an orange shirt. (Ex. B at 76.)

Mr. Kendall testified he was distracted while writing

his written statement. (Ex. B at 76-77.) Mr. Kendall

testified, on redirect-examination, that he stated

during his deposition the suspect was wearing red

shorts, a gray shirt, and a white headband wrapped

around one of his arms. (Ex. B at 85.) Thus, the record

shows the State presented testimony consistent with

Mr. Kendall’s deposition testimony. Defendant has

failed to show the State has committed a Giglio

violation. Had counsel made an objection to such a

violation, that objection would have been overruled.

“[C]ounsel is not ineffective for failing to make a futile

objection.” Willacy v. State, 967 So. 2d 131, 140 (Fla.

2007) (citing Maxwell v. Wainwright, 490 So. 2d 927,

932 (Fla. 1986)). Accordingly, Defendant’s claim is

without merit.

Out of an abundance of caution, this Court

further notes counsel did impeach Mr. Kendall, on

cross-examination, for his prior inconsistent, written

statement to police regarding the suspect’s clothing.

(Ex. B at 76-77.) The jury heard the testimony and

inconsistent statements and nonetheless found

Defendant guilty. Thus, there is no reasonable

probability that the jury’s verdict could have been

affected. See Walton v. State, 3 So. 3d 1000, 101 (Fla.

2009) (affirming the trial court’s denial of the Giglio

claim where “there is no reasonable possibility that it

could have affected the jury’s verdict or

recommendation of a death sentence.”). Consequently,

Defendant’s third claim is denied.

Resp. Ex. H at 59-61. Petitioner appealed the postconviction court’s denial, see

Resp. Ex. I, and the First DCA per curiam affirmed the denial without a written

opinion, see Resp. Ex. K. To the extent that the First DCA affirmed the trial

court’s denial on the merits, the Court will address the claim in accordance with

the deferential standard for federal court review of state court adjudications.

As the postconviction court noted, during cross-examination, trial counsel

questioned Kendall about his written police statement, in which he described

one of the robbers as wearing an orange shirt and blue shorts. Resp. Ex. B at

76. Kendall acknowledged the discrepancy between his written statement and

his trial testimony that the assailant was wearing a grey shirt and red shorts;

however, Kendall explained that he was distracted when he wrote the

statement. Id. at 76. He clarified on re-direct that multiple people were talking

to him as he was trying to write his description, so he “got the statement all

mixed up.” Id. at 84. However, in his deposition, Kendall testified that the

robber was wearing red shorts and a grey shirt. Id. at 84-85.

Kendall’s trial testimony regarding Petitioner’s clothing did not amount

to a Giglio violation, and thus, trial counsel was not deficient for failing to

challenge it. Nevertheless, even assuming trial counsel was deficient, Petitioner

admitted to police that he was present at the time of the robbery and was

arrested while wearing red shorts and a black shirt. Id. at 111-14. Accordingly,

upon thorough review of the record and the applicable law, the Court concludes

that the state court’s decision to deny Petitioner’s claims was neither contrary

to nor an unreasonable application of Strickland, and it was not based on an

unreasonable determination of the facts in light of the evidence presented to

the state court. See 28 U.S.C. § 2254(d).

D. Ground Four

Petitioner argues that trial counsel was ineffective for failing to

adequately move for a judgment of acquittal. Doc. 1 at 20-22. He asserts that

trial counsel should have highlighted the following four insufficiencies when

presenting his motion for judgment of acquittal: (1) there was no independent

verification of which assailant robbed the victim; (2) the state did not present

any of the stolen items as evidence; (3) stolen items were not found on

Petitioner; and (4) the “shorter assailant” was originally described as wearing

an orange shirt and blue shorts. Id.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. H at 35-

39. The postconviction court denied the claim, finding in pertinent part:

In his fourth claim, Defendant contends, but for

counsel’s failure to file an adequate motion for

judgment of acquittal (“JOA”), the motion would have

been granted and the result of the trial would have

been different. In the alternative, Defendant argues,

even if the trial court failed to grant the motion, his

arguments would have been preserved for appellate

review. Defendant contends counsel should have

argued Mr. Israel and Mr. Kendall gave insufficient

and contradictory identifications of the suspect, that

the police failed to use procedures such as a lineup,

show-up, and photo spread, and that the State

presented insufficient evidence to sustain a conviction

for robbery.

The Florida Supreme Court has said the

following in reference to motions for judgment of

acquittal:

A defendant, in moving for a

judgment of acquittal, admits not only the

facts stated in the evidence adduced, but

also admits every conclusion favorable to

the adverse party that a jury might fairly

and reasonably infer from the evidence.

The courts should not grant a motion for

judgment of acquittal unless the evidence

is such that no view which the jury may

lawfully take of it favorable to the opposite

party can be sustained under the law.

Where there is room for a difference of

opinion between reasonable men as to the

proof or facts from which an ultimate fact

is sought to be established, or where there

is room for such differences as to the

inferences which might be drawn from

conceded facts, the Court should submit

the case to the jury for their finding, as it is

their conclusion, in such cases, that should

prevail and not primarily the views of the

judge. The credibility and probative force of

conflicting testimony should not be

determined on a motion for judgment of

acquittal.

Lynch v. State, 293 So. 2d 44 (Fla. 1974). This Court

notes that counsel did move for judgment of acquittal

and argued in detail that the State failed to present a

prima facie case to support Defendant’s conviction. (Ex.

B at 126-27, 191.) There is no reasonable probability

that, had counsel argued as the Defendant suggests,

such a motion would have been granted and Defendant

would have been acquitted. Defendant has failed to

establish that he was prejudiced by the alleged errors

of counsel. “Although in hindsight one can speculate

that a different argument may have been more

effective, counsel’s argument does not fall to the level

of deficient performance simply because it ultimately

failed.” Ferguson v. State, 593 So. 2d 508 (Fla. 1992).

Therefore, his claim that counsel should have argued

that the State’s evidence was insufficient is without

merit.

Lastly, to the extent Defendant alleges prejudice

by losing his right to appellate review, “failure to

preserve issues for appeal does not show the necessary

prejudice under Strickland.” Strobridge v. State, 1 So.

3d 1240, 1242 (Fla. 4th DCA 2009). Prejudice must be

assessed “based upon its effect on the results of the

trial, not on its effect on appeal.” Id. (citing Carratelli

v. State, 961 So. 2d 312, 323 (Fla. 2007)). Nonetheless,

Defendant’s claims were in fact preserved for appeal, as

counsel filed his motion for JOA, renewed it, and then

filed a motion for new trial based on the trial court’s

denial of the motion for JOA. (Exs. B at 126, 191; E.)

Consequently, Defendant’s fourth claim is denied.

Resp. Ex. H at 61-63. Petitioner appealed the postconviction court’s denial, see

Resp. Ex. I, and the First DCA per curiam affirmed the denial without a written

opinion, see Resp. Ex. K. To the extent that the First DCA affirmed the trial

court’s denial on the merits, the Court will address the claim in accordance with

the deferential standard for federal court review of state court adjudications.

Petitioner was charged with robbery as defined in section 812.13(2)(c),

Florida Statutes. Resp. Ex. A at 125. Under § 812.13(2)(c), robbery is the “taking

of money or other property which may be the subject of larceny from the person

or custody of another, with intent to either permanently or temporarily deprive

the person or the owner of the money or other property, when in the course of

the taking there is the use of force, violence, assault, or putting in fear”; and in

the course of committing the robbery, the offender did not carry a weapon. §

812.13(2)(c), Fla. Stat. At trial, the state presented evidence that Petitioner and

another male encountered Israel on the street, and as Israel was reaching in

his pocket, one of the two males choked Israel until he lost consciousness. Resp.

Ex. B at 38-40. When he regained consciousness, Israel’s wallet and phone were

missing from his pockets. Id. at 41-42.

Kendall also witnessed the attack and identified Petitioner as one of the

assailants. Id. at 61-70. Kendall testified that during the attack, he saw both

assailants digging into Israel’s pockets. Id. at 83. Kendall also testified that he

saw Petitioner drop Israel’s cell phone as he was running away from the scene.

Id. at 63. Indeed, while he attempted to explain that he did not participate in

the robbery, Petitioner admitted he was one of the two males who encountered

Israel in the street, he witnessed the attack occur, and he was apprehended

while wearing the same clothing as one of the assailants. Id. at 111-14.

Considering this record evidence, Petitioner fails to demonstrate that but

for trial counsel’s alleged failure to present a more articulate motion for

judgment of acquittal, the outcome of his trial would have been different. Thus,

upon thorough review of the record and the applicable law, the Court concludes

that the state court’s decision to deny Petitioner’s claim is neither contrary to

nor an unreasonable application of Strickland, and it is not based on an

unreasonable determination of the facts in light of the evidence presented to

the state court. See 28 U.S.C. § 2254(d). Ground Four is denied.

Accordingly, itis ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED and this case is DISMISSED

WITH PREJUDICE.

2. The Clerk of Court shall enter judgment accordingly, terminate

any pending motions, and close this case.

3. If Petitioner appeals this Order, the Court denies a certificate of

appealability. Because the 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.®

DONE AND ORDERED at Jacksonville, Florida, this 20th day of April,

2020.

TIMOTHY J. CORRIGAN

United States District Judge

8 The Court should issue a certificate of appealability only if the 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. 4738, 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 (2008) (quoting Barefoot v. Estelle,

463 U.S. 880, 893 n.4 (1988)). Here, after consideration of the record as a whole,

the Court will deny a certificate of appealability.

28

Jax-7

C: Larry G. Hamrick, #304160

Jennifer J. Moore, Esq.