# Johnson v. Jones

> District Court, M.D. Florida · May 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10105154

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 4, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10105154

## How later opinions describe it (automated extraction)

- holding state court’s adjudication of Faretta claim entitled to deference because invocation of right to self- representation was equivocal and the petitioner’s conduct indicated a waiver of his Faretta rights

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

LARRY DAVID JOHNSON,

Petitioner,

v. Case No. 3:17-cv-731-J-32JRK

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. He is challenging a state court (Duval County, Florida) judgment of
conviction for trafficking 400 grams or more but less than 150 kilograms of
cocaine. Id. He is currently serving a twenty-year term of incarceration with a
fifteen-year minimum mandatory. Id. Respondents have responded. See Doc.
13; Response.1 Petitioner filed a Reply. See Doc. 14. This case is ripe for review.

1 Attached to the Response are numerous exhibits. See Docs. 13-1 through
13-8. The Court cites to the exhibits as “Resp. Ex.”
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 Appellate 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.

This two-part Strickland standard also governs a claim of ineffective
assistance of appellate counsel. Overstreet v. Warden, 811 F.3d 1283, 1287
(11th Cir. 2016).
When considering deficient performance by appellate counsel,
a court must presume counsel’s performance was
“within the wide range of reasonable professional
assistance.” Id. at 689, 104 S. Ct. 2052. Appellate
counsel has no duty to raise every non-frivolous issue
and may reasonably weed out weaker (albeit
meritorious) arguments. See Philmore v. McNeil, 575
F.3d 1251, 1264 (11th Cir. 2009). “Generally, only
when ignored issues are clearly stronger than those
presented, will the presumption of effective assistance
of counsel be overcome.” Smith v. Robbins, 528 U.S.
259, 288 (2000) (quoting Gray v. Greer, 800 F.2d 644,
646 (7th Cir.1986)); see also Burger v. Kemp, 483 U.S.
776, 784 (1987) (finding no ineffective assistance of
counsel when the failure to raise a particular issue had
“a sound strategic basis”).

Id.; see also Owen v. Sec’y, Dep’t of Corr., 568 F.3d 894, 915 (11th Cir. 2009)
(“failing to raise or adequately pursue [meritless issues on appeal] cannot
constitute ineffective assistance of counsel”).
To satisfy the prejudice prong of an ineffective assistance of appellate
counsel claim, a petitioner must show a reasonable probability that “but for the
deficient performance, the outcome of the appeal would have been different.”
Black v. United States, 373 F.3d 1140, 1142 (11th Cir. 2004); see also Philmore
v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir. 2009) (prejudice results only if “the
neglected claim would have a reasonable probability of success on appeal”).
Also,
[a] reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id., at 694, 104
S. Ct. 2052. It is not enough “to show that the errors
had some conceivable effect on the outcome of the
proceeding.” Id., at 693, 104 S. Ct. 2052. Counsel’s
errors must be “so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id., at
687, 104 S. Ct. 2052.

Richter, 562 U.S. at 104. As such, “[a]ppellate counsel might fail to identify a
mediocre or obscure basis for reversal without being ineffective under
Strickland.” Overstreet, 811 F.3d at 1287 (citation omitted).
For both claims of ineffective assistance of trial counsel and appellate
counsel, 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. Petitioner’s Claims and Analysis
A. Ground One
Petitioner argues that upon his unequivocal request to discharge his
court-appointed counsel and proceed pro se, the trial court erred in failing to

conduct inquiries pursuant to Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA
1973), and Faretta v. California, 422 U.S. 806 (1975). Doc. 1 at 4-9. According
to Petitioner, the trial court’s error deprived him of his Sixth Amendment and
due process rights. Id.

To add context to this allegation, the Court provides a brief summary of
the relevant procedural history. On March 15, 2010, the state charged
Petitioner by Information with one count of trafficking in cocaine. Resp. Ex. A
at 7. Thereafter, Jonathan Sacks, Esquire, was appointed to represent
Petitioner. See State v. Johnson, 16-2010-CF-002093 (Fla. 4th Cir. Ct.). On

September 29, 2010, Mr. Sacks filed a motion to withdraw as counsel,2 and that
same day, the trial court granted Mr. Sacks’ request, see Resp. Ex. A at 52, and
appointed Sandra Suarez, Esquire, to represent Petitioner, see Johnson, 16-
2010-CF-002093.

Over the next year and a half, Ms. Suarez actively petitioned the trial
court to compel the state to reveal the identities of the two confidential
informants involved in Petitioner’s criminal investigation.3 See Resp. Ex. A 108.
However, after an in-camera hearing in which the trial court considered

testimony from the confidential informants, on March 7, 2012, the trial court
denied Petitioner’s request to compel the disclosure of the informants’
identities. Id.; see also Resp. Ex. C at 405. On or about April 30, 2012, Petitioner
filed a pro se “Request for Nelson He[a]ring.” Resp. Ex. A at 158. In the request,

Petitioner argued as follows:
(1) The office of the public defender was
appointed to represent the defendant in the above
mentioned criminal proceedings.

2 It is unclear why Mr. Sacks withdrew from his representation of
Petitioner.

3 Delay in Petitioner’s state court prosecution could have also been
attributed to his pending federal criminal case in the Southern District of
Georgia for a 2007 charge of distribution of cocaine base. Resp. Ex. A at 122;
Resp. Ex. C at 438.
(2) On February 24, 2010 the defendant was
charged with trafficking in cocaine.

(3) The public defender assigned to represent the
defendant is Sandra Suarez. The P.D. has failed to
properly prepare defendant’s case for trial, and has
failed to file appropriate pre-trial motions. Failed to
adopt defendant’s motion. Counsel failed [to] properly
assist in the defendant’s in camera hearing. Counsel
failed to appeal the court’s order denying the in camera
hearing.

(4) The defendant is being denied effective
assistance of counsel, contrary to his 6th Amendment
right to counsel.

(5) There is currently a conflict of interest
between the defendant, and the office of the public
defender because of the assigned counsel[’]s
ineffectiveness.

Based upon the allegations set forth in the above-
mentioned, the defendant prays this court grant this
motion, which is being submitted in good faith.

1) The Defendant prays that no further actions
will be taken in this case, until a hearing is held
pursuant to Nelson supra . . . to evaluate counsel’s
competency.

2) In [the] alternative, allow the defendant to
proceed pro/se [sic]

3) Any other relief the court deems just and fair
as to hybrid representation. . . .

Id. at 158-59. The same day that Petitioner’s request was filed, the trial court
held a pretrial status conference in which Ms. Suarez presented an ore tenus
motion for the trial court to reconsider its denial of the motion to compel. Resp.
Ex. G at 17. Ms. Suarez made her request for reconsideration before Petitioner

could be escorted to the courtroom, and once he was finally present, the trial
court granted the request to reconsider the motion and continued the case. Id.
at 17-19. Petitioner’s request for a Nelson or Faretta hearing was not mentioned
or discussed during the April 30, 2020, status conference.4 Id.

At the next pretrial conference, on June 25, 2012, Ms. Suarez advised the
trial court that Petitioner had filed a pro se request for a Nelson inquiry and
that the trial court needed to determine whether he wanted to represent
himself. Resp. Ex. I at 13. Ms. Suarez also reminded the trial court about her

prior request to reconsider its denial of her motion to compel the identities of
the confidential informants. Id. The trial court promptly advised Ms. Suarez
that the case was passed until July 23, 2012, and that it would not consider the
Nelson request until it resolved the issues regarding the in-camera evaluation

4 It is unclear if the parties and the trial court were aware of Petitioner’s
pro se written request for a Nelson or Faretta inquiry during the April 30, 2012,
status hearing, because the request appears to have been filed after the status
conference. See Johnson, 16-2010-CF-002093.
of the confidential informants.5 Id. at 14-15. Thereafter, the trial court held
pretrial status conferences on July 23, 2012, Resp. Ex. J at 4-7; August 7, 2012,

see id. at 9-15; September 4, 2012, see id. at 17-24; and October 9, 2012, see id.
at 26-32. During these pretrial conferences, neither Petitioner nor Ms. Suarez
mentioned Petitioner’s pending Nelson or Faretta request.
The state ultimately withdrew its objection to Petitioner’s motion to

compel and listed the informants’ names in discovery, allowing Ms. Suarez to
take their depositions. See Resp. Ex. J at 11. Thereafter, Ms. Suarez filed a
motion to dismiss. On November 19, 2012, the trial court conducted a hearing
on the motion to dismiss, during which Ms. Suarez advised the trial court that

the arguments in the motion were actually prepared by Petitioner and that she
“adopted most of it . . . and [] included the case law. . . .” Id. at 39. The trial court
denied the motion. Id. at 45. Again, Petitioner and Ms. Suarez did not remind
the trial court of Petitioner’s pending Nelson or Faretta request at the motion

hearing. Id.

5 Apparently when the trial court conducted its in-camera hearing, a court
reporter was not present to transcribe the proceeding. Resp. Ex. I at 12. The
trial court’s confusion regarding the in-camera issue also may have been
attributed to the extended pendency of the pretrial proceedings and that three
different trial court judges presided over the case during its pretrial stage. See
generally Johnson, 16-2010-CF-002093. Incidentally, by the time the case went
to trial, a fourth trial court judge was assigned to the case. Resp. Exs. C at 416;
D at 1.
On January 17, 2013, Ms. Suarez filed a demand for speedy trial, and jury
selection began on January 22, 2013. Resp. Ex. E at 3. Immediately before the

jury pool was brought into the courtroom, while Petitioner was present in the
courtroom with counsel, the trial court asked whether there were any
preliminary matters that needed to be heard, to which both parties replied in
the negative. Id. The trial court on two more occasions asked if the parties were

ready to proceed, and in response to each request, Ms. Suarez advised that she
was ready. Id. at 5. Jury selection began, and after an outburst from one of the
potential jurors, Ms. Suarez successfully moved to strike the jury panel. Id. at
14-15. Before the new jury panel was brought into the courtroom, the trial court

again asked the parties whether they were ready to proceed, and Ms. Suarez
said yes. Id. at 16. No one mentioned Petitioner’s prior Nelson or Faretta
request.
Once the jury was selected, the trial court had the following exchange

with Petitioner:
THE COURT: Before we bring the jury in, Mr. Johnson,
I see that you’ve been consulting with your attorney
throughout this process. Are you satisfied with the jury
that remains and that’s been selected for your case?

THE DEFENDANT: Yes, ma’am.

Resp. Ex. E at 92. Petitioner again failed to notify the Court of his pending
Nelson or Faretta request. Further, on January 24, 2013, prior to the parties’
opening statements, the trial court asked if “there [were] any other motions in
limine or pretrial motions that haven’t been filed or need to be heard?” Id. at

106. In response, Ms. Suarez successfully argued two motions in limine and
successfully moved the trial court to take judicial notice of various matters. Id.
at 106-13. Neither Petitioner nor Ms. Suarez mentioned that Petitioner’s pro se
Nelson or Faretta request was still pending. Id. After the state rested its case-

in-chief, the trial court conducted a colloquy with Petitioner regarding his
decision not to testify. Id. at 296-98. At no time during the colloquy did
Petitioner request a Nelson or Faretta inquiry. Id. The jury found Petitioner
guilty, Resp. Ex. F 377-78, and the trial court subsequently sentenced him to a

twenty-year term of incarceration with a fifteen-year minimum mandatory,
Resp. Ex. C at 463. Again, at sentencing, Petitioner addressed the trial court,
but he never mentioned a request to proceed pro se or a Nelson or Faretta
inquiry. Id. at 460-61.

Petitioner, with the help of appellate counsel, sought a direct appeal. As
his sole claim for relief, Petitioner argued that “the trial court erred by not
conducting any inquiry when [Petitioner] requested that his appointed counsel
be dismissed or that, in the alternative, he be allowed to represent himself.”

Resp. Ex. K at 13. The state filed an answer brief arguing that the trial court
did not err in failing to conduct a Nelson or Faretta hearing, because: (a)
Petitioner’s pro se motion failed to make a clear and unequivocal request to
discharge counsel and proceed pro se; (b) Petitioner waived his pro se request
to proceed pro se by proceeding to trial with the same counsel and never

requesting that the motion be heard, even when given multiple opportunities to
request a hearing; and (c) any error in failing to conduct an inquiry was
harmless, considering the overwhelming evidence of guilt and the lack of record
evidence supporting Petitioner’s claim that trial counsel was ineffective. See

generally Resp. Ex. L. The First District Court of Appeal per curiam affirmed
Petitioner’s judgment and sentence without a written opinion. Resp. Ex. M.
Petitioner now seeks review of the state court’s adjudication of this issue during
his direct appeal.

i. Nelson
Respondents argue that Petitioner’s claim that the trial court failed to
conduct a Nelson hearing is an issue of state law, and thus, not cognizable on
federal habeas review. Resp. at 15. The Court agrees. In Nelson, Florida’s

Fourth District Court of Appeal held that if an indigent defendant expresses a
desire to discharge court-appointed counsel because of counsel’s ineffectiveness,
the trial court must hold a hearing to determine whether there is reasonable
cause to believe that the court-appointed counsel is not rendering effective

assistance to the defendant. Nelson, 274 So. 2d at 256; see also Glover v. State,
226 So. 3d 795, 807 (Fla. 2017) (discussing Nelson hearings); Hardwick v. State,
521 So. 2d 1071, 1074-75 (Fla. 1988) (approving and adopting Nelson hearings).
If the trial court finds that counsel is acting ineffectively, the trial judge will
appoint substitute counsel. Id.

The United States Supreme Court has not established a procedure for
when a represented indigent criminal defendant does not want to proceed pro
se, but instead wants another court-appointed lawyer because his current
lawyer is allegedly ineffective. See, e.g., United States v. Garey, 540 F.3d 1253,

1262-66 (11th Cir. 2008) (“Although the Sixth Amendment guarantees counsel,
it does not grant defendants the unqualified right to counsel of their choice. An
indigent criminal defendant ‘does not have a right to have a particular lawyer
represent him, nor to demand a different appointed lawyer except for good

cause.’” (quoting Thomas v. Wainwright, 767 F.2d 738, 742 (11th Cir. 1985)).
This Court will not reexamine state court determinations on issues of state law.
See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Since Petitioner’s claim
regarding a Nelson inquiry presents a state law claim concerning the trial

court’s failure to follow the procedures of a state law requirement, Petitioner is
not entitled to federal habeas relief on that claim, as there has been no breach
of a federal constitutional mandate. Ortiz v. McNeil, No. 3:09-cv-563-J-12TEM,
2010 WL 4983599, at *5 (M.D. Fla. Dec. 2, 2010) (“Any complaint about the lack

of a proper Nelson inquiry raises an issue of state law that is not cognizable in
this proceeding.”).
ii. Faretta
In contrast, Petitioner’s claim that the state court erred in failing to

conduct a Faretta inquiry is cognizable on federal habeas review. As such, to
the extent that the First DCA found on the merits that the trial court did not
violate the purview of Faretta, the Court will address the issue in accordance
with the deferential standard for federal court review of state court

adjudications.
The obligation to conduct a Faretta hearing, at which the trial court
advises a defendant of the dangers and disadvantages of self-representation, is
triggered by the defendant’s “clear and unequivocal” assertion of a desire to

represent himself. See Cross v. United States, 893 F.2d 1287, 1290 (11th Cir.
1990) (“In recognition of the thin line that a district court must traverse in
evaluating demands to proceed pro se, and the knowledge that shrewd litigants
can exploit this difficult constitutional area by making ambiguous self-

representation claims to inject error into the record, this Court has required an
individual to clearly and unequivocally assert the desire to represent himself.”);
Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir. 1986) (“Insofar as the
desire to proceed pro se is concerned, [a] petitioner must do no more than state

his request, either orally or in writing, unambiguously to the court so that no
reasonable person can say that the request [to proceed pro se] was not made.”).
The only record evidence supporting Petitioner’s assertion that he made a
request for a Faretta inquiry is Petitioner’s pro se motion, in which he asks the
trial court to evaluate trial counsel’s competency or, “in the alternative, allow

the defendant to proceed pro [ ] se.” Resp. Ex. A at 159. This conditional request
is not sufficiently clear and unambiguous as to mandate the purviews of
Faretta.
Further, even assuming this singular statement should have prompted

the trial court to conduct a Faretta inquiry, “[a] defendant can waive his Faretta
rights.” McKaskle v. Wiggins, 465 U.S. 168, 182 (1984). Notably, “[e]ven if
defendant requests to represent himself, . . . the right may be waived through
defendant’s subsequent conduct indicating he is vacillating on the issue or has

abandoned his request all together.” Brown v. Wainwright, 665 F.2d 607, 611
(5th Cir. 1982); see also Gill v. Mecusker, 633 F.3d 1272, 1296 (11th Cir. 2011).
Petitioner’s subsequent acquiescence and acceptance of assistance from Ms.
Suarez constituted a waiver of his Faretta rights and/or abandonment of his

initial written invocation of his right to represent himself. Indeed, during the
ten-month period between the filing of his pro se motion and his sentencing
hearing, Petitioner never made a second request to represent himself, nor did
he remind the trial court of his prior request or reiterate his desire to proceed

pro se even though he had multiple opportunities to do so.
For these reasons, the Court concludes that the state court’s adjudication
of this issue was neither contrary to nor an unreasonable application of clearly
established federal law, and it is not based on an unreasonable determination
of the facts in light of the evidence presented in the state court proceeding. See

28 U.S.C. § 2254(d); Gill, 633 F.3d at 1296 (holding state court’s adjudication of
Faretta claim entitled to deference because invocation of right to self-
representation was equivocal and the petitioner’s conduct indicated a waiver of
his Faretta rights). Ground One is due to be denied.

B. Ground Two
Petitioner argues that appellate counsel was ineffective for failing to
challenge on direct appeal the trial court’s denial of Petitioner’s motion to
dismiss, in which he argued an affirmative defense of entrapment. Doc. 1 at 10-

18. According to Petitioner, “appellate counsel acted unreasonably by failing to
raise this meritorious entrapment claim which had the most reasonable
probability of prevailing than all the other grounds raised on direct appeal . . .
.” Id. at 17.

Prior to Petitioner’s trial, trial counsel extensively argued that the
government’s involvement in the reverse sting operation that ultimately
resulted in Petitioner’s arrest was outrageous and moved to dismiss the
Information on that basis. Resp. Ex. A at 180-94; Resp. Ex. J at 34-45. At the

hearing on the motion to dismiss, and without explanation, the trial court
denied the motion. Resp. Ex. J at 45.
Petitioner proceeded to trial, during which the state presented evidence
that Petitioner initiated contact with confidential informant James Hall,

requesting to purchase half a kilogram of cocaine. Resp. Ex. E at 142, 214. Hall
testified that he had known Petitioner for approximately eleven years, and that
prior to Hall becoming an informant, Petitioner would regularly call him
requesting to purchase drugs. Id. at 217-18, 221. Hall notified Detective Cook

about Petitioner’s most recent request, and Detective Cook advised Hall and
another confidential informant, Sean Peeples, to set up a drug transaction. Id.
at 158. Peeples also testified that he had known Petitioner for approximately
eleven years, and he was friends with him prior to becoming an informant. Id.

at 264. Detective Cook explained that he set the price of the drugs, and at the
time of the purchase, the market price for one kilogram of cocaine was $30,000.
Id. at 147. As such, he allowed the confidential informants to negotiate a sale
with Petitioner for $15,000, consistent with the market price for the amount

Petitioner was seeking to purchase. Id.
Through recorded phone conversations played for the jury, Petitioner
voluntarily agreed to drive from Georgia to Jacksonville, Florida, to meet Hall
and conduct the deal. Id. Per the arrangement, Petitioner was to bring an initial

lump-sum payment of $10,000 with the agreement that Petitioner would pay
the remaining $5,000 the following week. Id. Detective Cook stated that this
payment plan was not uncommon for these types of drug deals. Id. at 158. Hall
explained that during the negotiations, Petitioner did not exhibit any signs of
hesitation or a desire to back out. Id. at 215-16.

Petitioner then drove to Jacksonville, where he met Hall and an
undercover police officer to conduct the deal. Id. at 149, 216. In a shopping
center parking lot, Petitioner and Hall got into the undercover officer’s vehicle,
and Petitioner exchanged approximately $10,000 for the cocaine. Id. at 216,

280-82. An audio recording of the transaction was played for the jury. Id. at 278-
80. Immediately after the hand-to-hand exchange, Detective Cook and other
police officers stormed the vehicle and arrested Petitioner. Id. at 159, 280-83.
Detective Cook read Petitioner his Miranda6 rights, to which Petitioner verbally

stated he understood. Id. at 161. Petitioner then admitted he was in the vehicle
to purchase a half of a kilogram of cocaine for approximately $10,000 and that
he was planning to return to Jacksonville in a few days to pay the remaining
$5,000. Id.

Hall and Peeples also extensively testified about their cooperation with
the government and their unrelated pending criminal cases. Hall was arrested
in late 2009 for trafficking heroin and conspiracy to traffic. Id. at 212. He
immediately indicated a desire to cooperate with police in hopes of receiving a

lesser sentence. Id. Police agreed to defer Hall’s arrest in exchange for his

6 Miranda v. Arizona, 384 U.S. 436 (1966).
substantial assistance as a confidential informant; however, police made no
promises to Hall during his deferred arrest, nor did Hall enter a plea agreement.

Id. at 165, 212-15.
Hall’s assistance led to the arrest of Peeples, who was Hall’s heroin
supplier. Id. at 213. Peeples was arrested on a drug trafficking offense, and he
testified that he signed a plea agreement with the state in exchange for

substantial assistance. Id. at 267. Per the terms of the agreement, Peeples was
to provide information leading to the arrest of three or more people for crimes
that would result in a seven-year sentence or higher. Id. at 267. According to
Peeples, if he facilitated such arrests, the state would agree to a negotiated

sentence between three and fifteen years. Id. If he did not provide assistance,
he was facing a maximum sentence between twenty-five and sixty years. Id. at
268. A copy of Peeples’s plea agreement was entered into evidence at
Petitioner’s trial. Id. at 317.

At Petitioner’s sentencing hearing, the state advised the trial court that
Petitioner, Hall, and Peeples knew each other prior to Petitioner’s arrest,
because they were all previously incarcerated in the same federal prison in
South Carolina. Resp. Ex. C at 461. The state also provided evidence

demonstrating that Petitioner had three prior felony convictions, including a
conviction for possession with intent to distribute cocaine and a federal
conviction for selling cocaine base. Id. at 457-58. Petitioner’s trial counsel
attempted to argue for a downward departure sentence based on sentence
manipulation regarding the amount of cocaine involved in the offense and the

price negotiated by the confidential informants. Id. at 423-43. However, after
considering the evidence submitted at trial showing Petitioner initiated the
transaction and Petitioner’s prior criminal record, the trial court denied the
request for a downward departure. Id. at 453-59.

Petitioner now claims that his appellate counsel was ineffective for failing
to raise as an argument on direct appeal that the trial court erred in denying
the pretrial motion to dismiss based on entrapment. Doc. 1 at 10-18. Petitioner
raised an identical claim of ineffective assistance of appellate counsel in his

state postconviction petition for writ of habeas corpus filed with the First DCA.
Resp. Ex. T. The First DCA denied the claim, issuing a brief opinion stating,
“[t]he petition alleging ineffective assistance of appellate counsel is denied on
the merits.” Resp. Ex. U. As such, there is a qualifying state court decision; and

the Court will address this claim in accordance with the deferential standard
for federal court review of state court adjudications.
The Court gives considerable deference to appellate counsel’s strategic
decision of selecting the issue or issues to raise on appeal. The danger of raising

weaker issues in a “kitchen-sink” approach is that it detracts from the attention
an appellate court can devote to the stronger issues and reduces appellate
counsel’s credibility before the court. See Miller v. Keeney, 882 F.2d 1428, 1434
(9th Cir. 1989); see also McBride v. Sharpe, 25 F.3d 962, 973 (11th Cir. 1994).
Thus, effective appellate attorneys “will weed out weaker arguments, even

though they may have merit.” Philmore v. McNeil, 575 F.3d 1251, 1264 (11th
Cir. 2009); see also Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016).
Appellate counsel’s failure to raise a meritless or weaker issue does not
constitute deficient performance which falls measurably outside the range of

constitutionally acceptable performance. See Brown v. United States, 720 F.3d
1316, 1335 (11th Cir. 2013) (citing Jones v. Barnes, 463 U.S. 745, 754 (1983)).
Prejudice results only if “the neglected claim would have a reasonable
probability of success on appeal.” Philmore, 575 F.3d at 1264-65.

After an independent review of the record and the applicable law, the
Court concludes that Petitioner’s case was not subject to dismissal based on an
affirmative entrapment defense. As such, because he has failed to show that the
issue of entrapment would have had a reasonable probability of success on

direct appeal, Petitioner has failed to demonstrate that he was prejudiced by
appellate counsel’s failure to challenge the trial court’s denial of Petitioner’s
motion to dismiss. The First DCA’s denial of Petitioner’s claim of ineffective
assistance of appellate counsel was not contrary to clearly established federal

law, did not involve an unreasonable application of clearly established federal
law, and was not based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceedings. As such, Ground Two
is due to be denied.

Accordingly, it is
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.7

7 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. 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)). Here, after consideration of the record as a whole,
the Court will deny a certificate of appealability.
DONE AND ORDERED at Jacksonville, Florida, this 4th day of May,
2020.

TIMOTHY J. CORRIGAN
United States District Judge

Jax-7
C: Larry David Johnson, # J49413
Bryan G. Jordan, Esq.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105154. Public record. Not legal advice.