Lewis v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ELLIOTT ARTHUR LEWIS,

Petitioner,

v. Case No. 3:17-cv-468-J-34JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Elliott Lewis, an inmate of the Florida penal system, initiated this action

on April 7, 2017,1 by filing a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254

(Petition; Doc. 1) in the United States District Court Northern District of Florida. The

Northern District transferred the case to this Court on April 19, 2017. See Doc. 5. In the

Petition, Lewis challenges a 2013 state court (Putnam County, Florida) judgment of

conviction for the sale of oxycodone. Lewis raises four grounds for relief. See Petition at

13-47.2 Respondents have submitted an answer in opposition to the Petition. See

Response to Petition (Response; Doc. 18) with exhibits (Resp. Ex.). Lewis filed a brief in

reply. See Petitioner’s Reply to State’s Response to Petition and Renewed Request for

an Evidentiary Hearing (Reply; Doc. 18). This case is ripe for review.

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

2 For purposes of reference, the Court will cite the page number assigned by the

Court’s electronic docketing system.

II. Relevant Procedural History

On May 28, 2013, the State of Florida (State) charged Lewis in an amended

Information with trafficking in oxycodone. Resp. Ex. A. Lewis proceeded to a jury trial, at

the conclusion of which the jury found Lewis guilty of the lesser-included offense of the

sale of oxycodone. Resp. Ex. M. On August 13, 2013, the circuit court adjudicated Lewis

as a habitual felony offender (HFO) and sentenced him to a term of incarceration of thirty

years in prison. Resp. Ex. N. The circuit court further ordered that the sentence would run

concurrently to any active sentences being served at the time. Id.

Lewis appealed his conviction and sentence to Florida’s Fifth District Court of

Appeal (Fifth DCA). Resp. Ex. P. Lewis’ appellate counsel filed an Anders3 brief. Resp.

Ex. Q. The State did not file an answer brief. Resp. Ex. R. On December 9, 2014, the

Fifth DCA affirmed Lewis’ conviction and sentence per curiam, without issuing a written

opinion, Resp. Ex. S, and issued the Mandate on January 2, 2015. Resp. Ex. T.

On December 4, 2015, Lewis filed a petition for writ of habeas corpus with the Fifth

DCA, arguing his appellate counsel was ineffective for failing to argue that the circuit court

considered inappropriate factors at sentencing. Resp. Ex. U. The State filed a response

in opposition to Lewis’ habeas petition, Resp. Ex. V, and Lewis filed a reply brief, Resp.

Ex. W. The Fifth DCA denied the habeas petition on February 1, 2016. Resp. Ex. X. Lewis

filed a motion for rehearing, Resp. Ex. Y, which the Fifth DCA denied on February 25,

2016. Resp. Ex. Z.

On April 29, 2015, Lewis filed a motion for postconviction relief pursuant to Florida

Rule of Criminal Procedure 3.850 (Rule 3.850 Motion). Resp. Ex. AA. In the Rule 3.850

3 Anders v. California, 386 U.S. 738 (1967).

Motion, Lewis asserted the following grounds for relief: (1) counsel erred in presenting a

duress defense instead of an entrapment defense; (2) the State committed a Brady4

violation; (3) counsel failed to call three witnesses; (4) counsel failed to timely request an

in-camera hearing to make the State disclose the identity of its confidential informant; (5)

counsel failed to object to the circuit court’s use of allegedly improper sentencing factors;

(6) counsel failed to investigate Lewis’ claim he was mentally incompetent at the time of

trial; (7) counsel failed to object to the circuit court’s allegedly improper limitation of voir

dire; (8) counsel failed to question and strike a prospective juror; (9) counsel failed to

question a prosecutive juror; and (10) the cumulative impact of counsel’s errors

prejudiced him. Id. On May 19, 2016, the circuit court denied the Rule 3.850 Motion. Resp.

Ex. DD. Lewis moved for rehearing, Resp. Ex. EE, which the circuit court denied on June

21, 2016. Resp. Ex. FF. On November 29, 2016, the Fifth DCA per curiam affirmed the

denial of the Rule 3.850 Motion, without a written opinion. Resp. Ex. LL. Lewis filed a

motion for rehearing, Resp. Ex. MM, which the Fifth DCA denied on January 9, 2017.

Resp. Ex. NN. The Fifth DCA issued the Mandate on January 30, 2017. Resp. Ex. OO.

III. One-Year Limitations Period

This Petition was timely filed within the one-year limitations period. See 28 U.S.C.

§ 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to establish the

need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d

1057, 1060 (11th Cir. 2011). “In deciding whether to grant an evidentiary hearing, a

4 Brady v. Maryland, 373 U.S. 83 (1963).

federal court must consider whether such a hearing could enable an applicant to prove

the petition’s factual allegations, which, if true, would entitle the applicant to federal

habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t

of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017).

“It follows that if the record refutes the applicant’s factual allegations or otherwise

precludes habeas relief, a district court is not required to hold an evidentiary hearing.”

Schriro, 550 U.S. at 474. The pertinent facts of this case are fully developed in the record

before the Court. Because the Court can “adequately assess [Lewis’] claim[s] without

further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an

evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

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

state prisoner’s federal petition for habeas corpus. 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) (quotation marks omitted)). As such, federal habeas review of final state court

decisions is “‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting Hill v. Humphrey,

662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).

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

if any, that adjudicated the claim 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 a written 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 United States

Supreme Court has instructed:

[T]he federal court should “look through” the unexplained

decision to the last related state-court decision that does

provide a relevant rationale. It should then presume that the

unexplained decision adopted the same reasoning.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be rebutted by

showing that the higher state court’s adjudication most likely relied on different grounds

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

that were briefed or argued to the higher court or obvious in the record it reviewed. Id. at

1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars relitigation

of the claim unless the state court’s decision (1) “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States;” or (2) “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited

scope of federal review pursuant to § 2254 as follows:

First, § 2254(d)(1) provides for federal review for claims of

state courts’ erroneous legal conclusions. As explained by the

Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct.

1495, 146 L.Ed.2d 389 (2000), § 2254(d)(1) consists of two

distinct clauses: a “contrary to” clause and an “unreasonable

application” clause. The “contrary to” clause allows for relief

only “if the state court arrives at a conclusion opposite to that

reached by [the Supreme] Court on a question of law or if the

state court decides a case differently than [the Supreme]

Court has on a set of materially indistinguishable facts.” Id. at

413, 120 S. Ct. at 1523 (plurality opinion). The “unreasonable

application” clause allows for relief only “if the state court

identifies the correct governing legal principle from [the

Supreme] Court's decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for claims of

state courts’ erroneous factual determinations. Section

2254(d)(2) allows federal courts to grant relief only if the state

court’s denial of the petitioner’s claim “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)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1), which

imposes a burden on the petitioner to rebut the state court’s

factual findings “by clear and convincing evidence.” See Burt

v. Titlow, 571 U.S. ---, ---, 134 S. Ct. 10, 15, 187 L.Ed.2d 348

(2013); accord Brumfield v. Cain, 576 U.S. ---, ---, 135 S. Ct.

2269, 2282, 192 L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual determination is

not unreasonable merely because the federal habeas court

would have reached a different conclusion in the first

instance.’”[5] Titlow, 571 U.S. at ---, 134 S. Ct. at 15 (quoting

Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849, 175

L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert. denied, 137 S. Ct. 2298

(2017). Also, deferential review under § 2254(d) generally is limited to the record that was

before the state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1)’s “requires an examination

of the state-court decision at the time it was made”).

5 The Eleventh Circuit has described the interaction between § 2254(d)(2) and §

2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3 (11th

Cir. 2016), cert. denied, 137 S. Ct. 1103 (2017).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for prisoners

whose claims have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16

(2013). “Federal courts may grant habeas relief only when a state court blundered in a

manner so ‘well understood and comprehended in existing law’ and ‘was so lacking in

justification’ that ‘there is no possibility fairminded jurists could disagree.’” Tharpe, 834

F.3d at 1338 (quoting Richter, 562 U.S. at 102-03). This standard is “meant to be” a

“difficult” one to meet. Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s

claims were adjudicated on the merits in the state courts, they must be evaluated under

28 U.S.C. § 2254(d).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a § 2254 habeas

action in federal court, a petitioner must exhaust all state court remedies that are available

for challenging his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To exhaust state

remedies, the petitioner must “fairly present[]” every issue raised in his federal petition to

the state’s highest court, either on direct appeal or on collateral review. Castille v.

Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust a claim,

“state prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established appellate

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28 U.S.C. §

2254(b)(1), thereby giving the State the “‘“opportunity to pass

upon and correct” alleged violations of its prisoners’ federal

rights.’” Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887,

130 L.Ed.2d 865 (1995) (per curiam) (quoting Picard v.

Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438

(1971)). To provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each appropriate

state court (including a state supreme court with powers of

discretionary review), thereby alerting that court to the federal

nature of the claim. Duncan, supra, at 365-366, 115 S. Ct.

887; O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct.

1728, 144 L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies results in a

procedural default which raises a potential bar to federal habeas review. The United

States Supreme Court has explained the doctrine of procedural default as follows:

Federal habeas courts reviewing the constitutionality of a

state prisoner’s conviction and sentence are guided by rules

designed to ensure that state-court judgments are accorded

the finality and respect necessary to preserve the integrity of

legal proceedings within our system of federalism. These

rules include the doctrine of procedural default, under which a

federal court will not review the merits of claims, including

constitutional claims, that a state court declined to hear

because the prisoner failed to abide by a state procedural rule.

See, e.g., Coleman,[6] supra, at 747–748, 111 S. Ct. 2546;

Sykes,[7] supra, at 84–85, 97 S. Ct. 2497. A state court’s

invocation of a procedural rule to deny a prisoner’s claims

precludes federal review of the claims if, among other

requisites, the state procedural rule is a nonfederal ground

adequate to support the judgment and the rule is firmly

established and consistently followed. See, e.g., Walker v.

Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–1128, 179

L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct.

612, 617–618, 175 L.Ed.2d 417 (2009). The doctrine barring

procedurally defaulted claims from being heard is not without

exceptions. A prisoner may obtain federal review of a

defaulted claim by showing cause for the default and

prejudice from a violation of federal law. See Coleman, 501

U.S., at 750, 111 S. Ct. 2546.

6 Coleman v. Thompson, 501 U.S. 722 (1991).

7 Wainwright v. Sykes, 433 U.S. 72 (1977).

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been procedurally

defaulted, a federal court may still consider the claim if a state habeas petitioner can show

either (1) cause for and actual prejudice from the default; or (2) a fundamental miscarriage

of justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). In order for a petitioner to

establish cause,

the procedural default “must result from some objective factor

external to the defense that prevented [him] from raising the

claim and which cannot be fairly attributable to his own

conduct.” McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir.

1992) (quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[8]

Under the prejudice prong, [a petitioner] must show that “the

errors at trial actually and substantially disadvantaged his

defense so that he was denied fundamental fairness.” Id. at

1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may receive

consideration on the merits of a procedurally defaulted claim if the petitioner can establish

that a fundamental miscarriage of justice, the continued incarceration of one who is

actually innocent, otherwise would result. The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice, there

remains yet another avenue for him to receive consideration

on the merits of his procedurally defaulted claim. “[I]n an

extraordinary case, where a constitutional violation has

probably resulted in the conviction of one who is actually

innocent, a federal habeas court may grant the writ even in

the absence of a showing of cause for the procedural default.”

Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This exception

is exceedingly narrow in scope,” however, and requires proof

of actual innocence, not just legal innocence. Johnson v.

Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).

8 Murray v. Carrier, 477 U.S. 478 (1986).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it is more

likely than not that no reasonable juror would have convicted him’ of the underlying

offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v.

Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be credible,’ a claim of actual

innocence must be based on reliable evidence not presented at trial.” Calderon v.

Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the rarity

of such evidence, in most cases, allegations of actual innocence are ultimately summarily

rejected. Schlup, 513 U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective assistance of

counsel. That right is denied when a defense attorney’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 deficient performance, a person challenging a

conviction must show that “counsel’s representation fell below

an objective standard of reasonableness.” [Strickland,] 466

U.S. at 688, 104 S. Ct. 2052. A court considering a claim of

ineffective assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range” of

reasonable professional assistance. Id., at 689, 104 S. Ct.

2052. The challenger’s burden is to show “that counsel made

errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must demonstrate “a

reasonable probability that, but for counsel’s unprofessional

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

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. The Eleventh Circuit has recognized “the absence of any iron-

clad rule requiring a court to tackle one prong of the Strickland test before the other.”

Ward, 592 F.3d at 1163. 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.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is a most

deferential one.” Richter, - U.S. at -, 131 S. Ct. at 788. But

“[e]stablishing 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, and when the two apply in tandem, review is

doubly so.” Id. (citations and quotation marks omitted). “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, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (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, - U.S. at -, 131 S. Ct. at

788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v. Mirzayance,

556 U.S. 111, 123 (2009). In other words, “[i]n addition to the deference to counsel’s

performance mandated by Strickland, the AEDPA adds another layer of deference--this

one to a state court’s decision--when we are considering whether to grant federal habeas

relief from a state court’s decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.

2004). As such, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

As Ground One, Lewis alleges that the State committed a Brady violation when it

willfully withheld police agency files on two confidential informants, Lee Hall and Gregory

Williams. Petition at 15-27. According to Lewis, he needed their files to help formulate an

entrapment defense and demonstrate outrageous conduct on the part of law enforcement

and their agents. Id. at 20. That conduct included Hall orchestrating and observing a drug

sale between Lewis and police, preying on Lewis’ addiction, and constant threats of gun

violence. Id. at 21. Lewis contends that the files would have demonstrated that law

enforcement approved of or acquiesced to Hall and Williams trafficking in drugs and their

use of coercive arrangements with vulnerable addicts, such as Lewis. Id. Lewis maintains

the State purposely withheld this information and did not call Hall as a witness in order to

goad the defense into calling him. Id. at 24. According to Lewis, had these files been

disclosed, he would have been able to show a larger “sponsorship” conspiracy9 and that

9 In the Petition, Lewis avers that Hall and Williams “sponsored” addicts to visit

doctors, obtain prescription pills, and sell those pills. Petition at 5-10. He explains that

Hall and Williams would drive their “sponsorees” to Dr. Sachs’ office in South Florida,

he was entrapped. Id. at 24-25. In support of his arguments, Lewis relies on Roviaro v.

United States, 353 U.S. 53 (1957).

Lewis raised a substantially similar claim in his Rule 3.850 Motion. Resp. Ex. AA

at 16-21. The circuit court rejected the claim, explaining in pertinent part:

The Defendant claims that there was some kind of

“confidential informant file” relating to confidential informant

Lee Hall. Before and during trial, the State continually

asserted that the [sic] no such file existed. It was repeatedly

asserted by the Palatka Police Department and the Florida

Department of Law Enforcement (FDLE) that there was no

confidential informant file kept in relation to Lee Hall. During

Trial, the Defense called Detective Brad Forsythe [sic] who

testified that Lee Hall was working as a “cooperating

defendant” for FDLE at the time of the Defendant’s drug sale.

He further testified that that [sic] FDLE only keeps confidential

informant files on “paid informants” in order to track the money

being spent by the Department, but does not keep files on

“cooperating informants”. It would appear that there was no

“confidential informant file”.

The Court agrees here from a review of the record, that

if in fact, the Defense was repeatedly seeking the alleged

“confidential informant file” to impeach confidential informant

and witness Lee Hall, it would appear that it would not likely

would [sic] have had an effect on the proceedings as there

was enough to impeach Hall on. It is not at all clear that the

Defendant was prejudiced here. Ground Two is denied.

Resp. Ex. DD at 3-4 (record citations omitted). The Fifth DCA per curiam affirmed the

denial of relief on this claim without issuing a written opinion. Resp. Exs. LL; OO.

then drive them back up to North Florida and fill their prescriptions at the Extended Care

Pharmacy in Hastings, Florida. Id. However, Lewis contends both Hall and Williams were

also confidential informants who would coerce their “sponsorees” to sell drugs to

undercover officers, take the money from the sales, and buy more drugs with it. Id.

To the extent that the Fifth DCA decided the claim on the merits,10 the Court will

address the claim in accordance with the deferential standard for federal court review of

state court adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim 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. Thus, Lewis is not entitled to relief

on the basis of this claim.

Nevertheless, even if the Fifth DCA’s adjudication of this claim is not entitled to

deference, the claim in Ground One is without merit. The United States Supreme Court

decision in Brady governs a state’s withholding of exculpatory evidence. To establish a

Brady claim, a petitioner must demonstrate: (1) the government possessed evidence

favorable to the defendant; “‘(2) the defendant does not possess the evidence and could

not obtain the evidence with any reasonable diligence; (3) the prosecution suppressed

the favorable evidence; and (4) had the evidence been disclosed to the defendant, there

is a reasonable probability that the outcome would have been different.’” Riechmann v.

Fla. Dep’t of Corr., 940 F.3d 559, 580 (11th Cir. 2019) (quoting United States v. Stein,

846 F.3d 1135, 1145-46 (11th Cir. 2017)). Notably, the holding in Brady only applies to

information in the possession of the prosecutor or anyone under his authority that defense

counsel could not have obtained by exercising reasonable diligence. United States v.

Naranjo, 634 F.3d 1198, 1212 (11th Cir. 2011); United States v. Griggs, 713 F.2d 672,

10 Throughout this order, in looking through the appellate court’s per curiam

affirmance to the circuit court’s “relevant rationale,” the Court presumes that the appellate

court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.

674 (11th Cir. 1983) (“Where defendants, prior to trial, had within their knowledge the

information by which they could have ascertained the alleged Brady material, there is no

suppression by the government.”). And, “a Brady claim fails when it is only speculative

that the materials at issue would have led to exculpatory information.” Wright v. Sec’y Fla.

Dep’t of Corr. 761 F.3d 1256, 1281 (11th Cir. 2014).

The United States Supreme Court has held that the government has a limited

privilege to withhold from disclosure the identity of confidential informants. Roviaro, 353

U.S. at 59. However, “once the identity of the informer has been disclosed to those who

would have cause to resent the communication, the privilege is no longer applicable.” Id.

at 60. Additionally, “[w]here the disclosure of an informer's identity, or of the contents of

his communication, is relevant and helpful to the defense of an accused, or is essential

to a fair determination of a cause, the privilege must give way.” Id. at 60-61.

Here, the record reflects that on January 10, 2013, Lewis’ counsel filed a motion

for disclosure of informant and informant files. Resp. Ex. F. The circuit court held hearings

on the motion on April 1, 2013, and April 8, 2013. Resp. Exs. H; I. At the April 1, 2013

hearing, defense counsel already knew the identity of the informants, but wanted any

documentation that law enforcement had on them as well as the policy and procedures

regarding the handling of confidential informants. Resp. Ex. H at 8, 16. The State

represented that the policies and procedures could be obtained via a public records

request and that the Florida Department of Law Enforcement (FDLE) and the Palatka

Police Department (PPD) did not have a case file on Hall because he was a cooperating

defendant, not a paid informant, as such their policy did not require formal documentation.

Id. at 17, 20-23. The State further represented that it had every case that Hall had worked

on but did not turn that information over in discovery because prosecutors viewed it as

irrelevant and a fishing expedition. Id. at 21. During the April 8, 2013 hearing, the State

again represented it had a list of the controlled buys in which Hall participated. Resp. Ex.

I at 7-8. The circuit court thought the defense’s request was a fishing expedition and did

not see the relevance of how law enforcement handled Hall in previous cases, despite

hearing defense counsel’s duress and entrapment arguments. Id. at 10-13, 18. However,

the circuit court allowed the defense to re-depose the undercover officer and ask him

about the handling of Hall and any documentation of Hall. Id. at 20-21.

On May 22, 2013, counsel filed a renewed motion to disclose informant information

and to depose Hall prior to trial. Resp. Ex. J. The circuit court addressed this motion at a

May 23, 2013 hearing. Resp. Ex. K. At that hearing, defense counsel stated that he

thought the local sheriff’s office had records on Hall. Id. at 3. The circuit court then told

the parties to call the sheriff’s office to see if such records existed. Id. at 4. According to

defense counsel, he re-deposed the undercover officer, but the officer would not discuss

Hall or the file. Id. at 4-5.

The day of trial, defense counsel again sought to obtain documentation on Hall,

representing to the circuit court that he took Hall’s deposition, during which Hall said he

signed papers for two agencies. Resp. Ex. L at 4. The prosecutor said there was no file

with FDLE or PPD, and that she did not check with the sheriff’s office because the sheriff’s

office had no role in the undercover controlled-buy. Id. at 7-10. The circuit court denied

the defense’s request for the files. Id. at 11-12.

At trial, the defense called Hall’s handler, Brad Forsyth, as a witness. Id. at 63,

167-68. Forsyth was an officer with the PPD assigned to the FDLE’s Tri-County High

Intensity Drug Trafficking Area Task Force (Tri-County Task Force). Id. at 168. Forsyth

explained that confidential informants either get paid or are “working off charges,” i.e.

cooperating defendants with pending charges that work as confidential informants to

lessen their potential punishment. Id. at 171. Hall was the latter type of confidential

informant. Id. at 197, 204. According to Forsyth, FDLE policy was to document only paid

informants, not cooperating defendants. Id. at 174-75. He further stated that the

cooperation agreement between the different localities and agencies in the Tri-County

Task Force made it difficult to document whether an informant worked for local law

enforcement or for the FDLE as part of the task force. Id. at 174, 201. As such, he testified

there was no file with the FDLE that he was aware of, although defense counsel elicited

testimony from Forsyth that in his deposition he had stated that he documented

everything Hall did for the PPD. Id. at 175, 192-93, 195. On cross-examination, Forsyth

explained that PPD does create confidential informant files. Id. at 203-04. He also clarified

that he mistakenly stated in his deposition that Hall was a confidential informant for PPD

when he was actually an FDLE informant. Id. at 205. Forsyth explained that after his

deposition, he was asked to produce Hall’s PPD file, but when he searched for it he

realized that Hall was an FDLE informant. Id. Nevertheless, he did state that he personally

documented on his computer all the cases in which he used Hall as an informant. Id.

The defense also called Hall to testify at trial. Id. at 233-60. According to Hall, when

he first became a cooperating defendant for the PPD, his handler was John Merchant. Id.

at 233-36. Eventually Forsyth and Travis Smith took over. Id. at 236-37. Hall testified that

as far as paperwork, he filled out one sheet of paper that informed him of what he could

and could not do as an informant and policies for controlled buys. Id. at 237.

This evidence reflects that while Hall may have served as a confidential informant

for both the PPD and FDLE, for purposes of the controlled buy Lewis participated in, Hall

was working as a confidential informant for FDLE. Both pre-trial and during trial, the State

and relevant law enforcement officers represented that there was no official file on Hall.

And, Hall himself testified that he filled out a single piece of paper, that did not document

anything of relevance to the underlying charge in Lewis’ criminal case or any defense he

might have raised to that charge. Lewis has not presented any evidence, let alone clear

and convincing evidence, that refutes the law enforcement officers’ representations. As

such, Lewis has failed to establish that the government even possessed this evidence,

let alone suppressed it. See Riechmann, 940 F.3d at 580.

To the extent Lewis sought information regarding other cases on which Hall

worked as a confidential informant, those cases were not relevant to Lewis’ charged

offense. The State represented pretrial that it had information on the cases Hall worked,

but that it did not want to turn it over and the circuit court agreed, reasoning it was a fishing

expedition. Resp. Ex. I at 10-11, 18. Lewis’ assertion in his Petition that this information

was necessary to uncover a larger conspiracy does not make it relevant to his specific

case or defense. As to a duress defense, Lewis presented his own testimony and the

testimony of another witness that alleged Hall coerced and threatened Lewis to sell his

prescription drugs. Resp. Ex. L at 136-59, 267-318. To the extent Lewis argues Hall’s

action in other cases he worked as a confidential informant would establish similar fact

evidence to prove intent or a plan, his argument is based purely on speculation. He

assumes, without proof, that had he been able to review these other cases he would have

found evidence of Hall’s wrong-doing. However, mere speculation that something might

lead to exculpatory information is insufficient to establish a Brady violation. See Wright

761 F.3d at 1281. Accordingly, Lewis’ Brady claim fails on this basis as well.

To the extent Lewis sought information on the other confidential informant that

allegedly conspired with Hall, the Court finds that Lewis has failed to establish Williams’

relevancy to his case in light of the fact that there is no evidence suggesting that Williams

was in any way associated with the controlled-buy at issue here. Moreover, his assertions

of a Brady violation based on the failure to disclose Williams’ file suffers from the same

deficiencies as Lewis’ argument concerning Hall’s files. For these reasons, the Court finds

that the State did not commit a Brady violation; therefore, relief on the claim in Ground

One is due to be denied.

B. Ground Two

In Ground Two, Lewis avers that he was denied due process because his

conviction was the result of objective entrapment. Petition at 29-34. Lewis argues that

objective entrapment took place because but for Hall and Williams initiating contact with

him, suggesting the criminal enterprise, and supplying the funding and knowledge

necessary to commit the crime, he would not have committed this offense. Id. at 29, 31.

According to Lewis, Hall and Williams were law enforcement agents that entrapped him

by supplying him with narcotics and introducing him to an undercover officer as a

prospective buyer. Id. at 33. Lewis maintains the government’s action in either allowing

or acquiescing to Hall and Williams’ conduct was so outrageous that it violated his right

to due process of law. Id. at 34.

Respondents contend that Lewis never raised this claim in the state court system;

therefore, it is unexhausted. Response at 9-12. In his Reply, Lewis acknowledges he did

not present this claim in state court, but argues that good cause and prejudice exist to

excuse this procedural default. Reply at 41-45. According to Lewis, cause exists because

section 914.28(8), Florida Statutes (2011), prevented him from raising this claim in any

state motion or legal proceeding. Id. at 43. Lewis asserts that prejudice exists because

law enforcement violated his due process rights through entrapment. Id. at 44-45.

Florida Statutes section 914.28 governs the use of confidential informants in

criminal cases and directs the implementation of policies and procedures. Pursuant to

section 914.28(8):

The provisions of this section and policies and

procedures adopted pursuant to this section do not grant any

right or entitlement to a confidential informant or a person who

is requested to be a confidential informant, and any failure to

abide by this section may not be relied upon to create any

additional right, substantive or procedural, enforceable at law

by a defendant in a criminal proceeding.

§ 914.28(8), Fla. Stat. (2011) (emphasis added). A plain reading of this statute reflects

that a criminal defendant would have no additional right enforceable at law if law

enforcement or confidential informants did not follow the policies and procedures

enumerated in the statute. However, the Constitution, not a statute, creates a defendant’s

right to due process of law. Therefore, this statute does not prevent a criminal defendant

from raising an entrapment or due process argument in state criminal proceedings.

Accordingly, Lewis’ contention that section 914.28(8) prohibited him from raising this

claim is without merit, and, therefore, he has failed to establish cause to overcome his

failure to exhaust this claim. As such, relief on the claim in Ground Two is due to be denied

as the claim is procedurally defaulted.

Nevertheless, even assuming Lewis properly exhausted this claim, he is not

entitled to federal habeas relief. The objective entrapment defense does not arise from

the United States Constitution but is a creation of Florida law. Lewis has not identified any

clearly established federal law stating that there is a constitutional right to dismiss a case

based on objective entrapment. Likewise, the Court is aware of no such clearly

established federal law. See Sairras v. Fla. Dep’t of Corr., 496 F. App’x 28, 35 (11th Cir.

2012) (citing United States v. Russell, 411 U.S. 423, 433 (1973)) (“It is well-settled that

the defense of entrapment is not of constitutional dimension.”); McFadden v. DOC and

Florida Attorney General, No. 2:14-cv-128-FtM-38MRM, 2016 WL 6822451, *5-*6 (M.D.

Fla. November 18, 2016) (reviewing cases to determine that the United States Supreme

Court has never found a constitutional basis for an objective entrapment defense).

Accordingly, Lewis is not entitled to federal habeas relief on this claim. See Swarthout v.

Cooke, 562 U.S. 216, 219 (2011) (holding errors of state law are not cognizable in federal

habeas review); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of

a federal habeas court to reexamine state-court determinations on state-law questions.”);

Quince v. Crosby, 360 F.3d 1259, 1261-62 (11th Cir. 2004) (“while habeas relief is

available to address defects in a criminal defendant's conviction and sentence, an alleged

defect in a collateral proceeding does not state a basis for habeas relief.”). Therefore,

relief on the claim in Ground Two is due to be denied.

C. Ground Three

As Ground Three, Lewis asserts that his trial counsel was ineffective for presenting

a duress defense instead of presenting an entrapment defense. Petition at 36-42.

According to Lewis, the facts of his case did not support a duress defense because Lewis

was not under the immediate threat of death or serious bodily injury; instead, Hall made

a threat of future harm. Id. at 39. Additionally, Lewis asserts that he had numerous

opportunities to escape the threat of harm. Id. at 40. Lewis avers that these two facts

would have prevented him from establishing a successful duress defense and any

reasonable attorney should have known this going into trial. Id. Lewis maintains that from

the beginning he wanted his attorney to pursue an objective entrapment defense. Id. He

contends that had counsel put forth an entrapment defense, the outcome of the trial would

have been different. Id. at 41-42.

In his Rule 3.850 Motion, Lewis raised a similar ground for relief. Resp. Ex. AA at

12-16. The circuit court denied this claim, reasoning:

Here, the State’s citing McNeal v. State, 409 So. 2d

528 (Fla. 5th DCA 1982) is well placed. In McNeal, a Fifth

DCA case, the Court found that Courts should not review any

specific discretionary or judgmental act or position of Trial

Counsel, whether tactical or strategic, on an inquiry as to

effectiveness of counsel.

A review of the record shows that that [sic] Defendant’s

own testimony at trial lends to a duress defense as well a [sic]

witness Heather Kaminsky’s testimony that the Defendant

was threatened with a fire arm [sic] to sell Oxycodone. The

Court agrees that the Defendant now second guesses the

strategy in hindsight. The first prong of Strickland [sic] has not

been met here. Ground One is denied.

Resp. Ex. DD at 2-3 (record citations omitted). The Fifth DCA per curiam affirmed the

denial of relief on this claim. Resp. Exs. LL; OO.

To the extent that the Fifth DCA decided the claim on the merits, the Court will

address the claim in accordance with the deferential standard for federal court review of

state court adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim 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. Thus, Lewis is not entitled to relief

on the basis of this claim.

Nevertheless, even if the Fifth DCA’s adjudication of this claim is not entitled to

deference, the claim in Ground Three is meritless. The Court notes that “[t]he Supreme

Court has mandated a highly deferential review of counsel's conduct, especially where

strategy is involved,” and “[i]ntensive scrutiny and second guessing of attorney

performance are not permitted.” Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir.

1994) (citing Strickland, 466 U.S. at 689-90)). Additionally, the Eleventh Circuit has

instructed that:

Inquiries into strategic or tactical decisions challenged as

ineffective assistance of counsel involve both a factual and a

legal component. The question of whether an attorney's

actions were actually the product of a tactical or strategic

decision is an issue of fact, and a state court's decision

concerning that issue is presumptively correct. By contrast,

the question of whether the strategic or tactical decision is

reasonable enough to fall within the wide range of

professional competence is an issue of law not one of fact, so

we decide it de novo.

Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir. 1998). “In assessing an

attorney’s performance under Strickland, ‘strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually unchallengeable.’”

Knight v. Fla. Dep’t of Corr., 936 F.3d 1322, 1340 (11th Cir. 2019) (quoting Strickland,

466 U.S. at 690).

In Florida, a law enforcement officer commits entrapment:

if, for the purpose of obtaining evidence of the commission of

a crime, he or she induces or encourages and, as a direct

result, causes another person to engage in conduct

constituting such crime by employing methods of persuasion

or inducement which create a substantial risk that such crime

will be committed by a person other than one who is ready to

commit it.

Fla. Stat. § 777.201(1). Florida courts recognize two theories of entrapment, one being

“‘objective entrapment,’ which concerns law enforcement conduct amounting to a denial

of due process,” and the other being “‘subjective entrapment,’ which focuses on whether

the defendant was predisposed to commit the crime.” Jones v. State, 114 So. 3d 1123,

1126 (Fla. 1st DCA 2013). Here, Lewis relies on a theory of objective entrapment; as

such, the Court will not address subjective entrapment. To establish objective

entrapment, a defendant must identeify law enforcement conduct that is so outrageous

that it offends decency or a sense of justice. State v. Laing, 182 So. 3d 812, 816 (Fla. 4th

DCA 2016). The focus of an objective entrapment theory must be on the conduct of law

enforcement officers or their agents. Id. Florida courts recognize that a common thread

in objective entrapment cases is affirmative and unacceptable conduct by law

enforcement or its agent, which entices the commission of a crime. Id. (quoting Bist v.

State, 35 So. 3d 936 (Fla. 5th DCA 2010); Schwartz v. State, 125 So. 3d 946 (Fla. 4th

DCA 2013)). Notably, an alleged failure to properly supervise a confidential informant,

standing alone, does not amount to objective entrapment. State v. Lopez, 908 So. 2d 484,

485 (Fla. 4th DCA 2005).

In order to establish the defense of duress under Florida law, a defendant must

prove the following: (1) the defendant reasonably believed a danger existed that was not

intentionally caused by himself; (2) the danger threatened significant harm to himself or

a third person; (3) the threatened harm must have been real, imminent, or impending; (4)

the defendant had no reasonable means to avoid the danger except by committing the

offense or any lesser included offense; (5) the offense or any lesser included offense

must have been committed out of duress to avoid the danger; and (6) the harm that the

defendant avoided must outweigh the harm caused by committing the offense or any

lesser including offense. Mickel v. State, 929 So. 2d 1192, 1196 (Fla. 4th DCA 2006)

(citations omitted). Notably, a threat of future harm is not sufficient to prove the defense

of duress. Id.

Here, the circuit court made a factual finding that counsel’s decision to utilize a

duress defense over an entrapment defense was sound strategy. Lewis has not

presented evidence, much less clear and convincing evidence, to rebut the state court’s

factual finding on this matter. See 28 U.S.C. § 2254(e)(1) (“[A] determination of a factual

issue made by a State court shall be presumed to be correct. The applicant shall have

the burden of rebutting the presumption of correctness by clear and convincing

evidence.”). Indeed, review of the record supports the circuit court’s conclusion.

As pertinent to an objective entrapment defense, the record reflects that Lewis

became addicted to pain medications after losing his arm. Resp. Ex. L at 267-69. At trial,

Lewis testified that he sought out Hall, through a friend, in order to get oxycodone fronted

to him. Id. 270-72. Lewis intended to repay once he got his prescription. Id. When it came

time for Lewis to pick up his next prescription, Hall went with him to ensure that he, Hall,

got the pills Lewis owed him. Id. at 271-80. Lewis’ prescription ended up being less than

he normally received, which according to Lewis made Hall angry. Id. at 276, 282-84. Lewis

testified that Hall threatened him and his family if Lewis did not agree to sell the pills he

obtained with his prescription. Id. at 283-86. Lewis’ friend, Heather Kaminsky, also

testified at trial and her testimony generally supported Lewis’ description of the events.

Id. at 136-59.

Hall testified at trial as well, according to Hall, Lewis called him requesting a ride

to fill his prescription. Id. at 241. Along the way, Lewis said he needed to make some

money to pay bills and asked Hall if he wanted to buy some of his prescription pills. Id.

Hall declined but told him he knew somebody that would buy them from him, at which

point he called Forsyth and set up the controlled buy between Lewis and the undercover

officer. Id. Forsyth testified that he had no intent on conducting a controlled buy that day

until Hall called him early that morning and told Forsyth he had a man who wanted to sell

pills. Id. at 177-81. Hall and Forsyth then set up a plan to conduct a controlled buy

between Lewis and an undercover officer. Id. at 181-83. According to Forsyth, due to the

short notice and the fact that Hall was currently with Lewis, he could not search or wire

Hall prior to the deal. Id. at 183-84, 207-08.

The record demonstrates that, contrary to Lewis’ assertions in his Petition, Lewis

first initiated contact with Hall and that the pills he sold were Lewis’ own prescription pills.

Neither Hall nor law enforcement gave Lewis the money or drugs. Additionally, Hall and

Forsyth’s testimony contradict Lewis’ claims and the Court takes particular note of a letter

Lewis wrote while he was in jail awaiting trial. That letter, which Lewis gave to an inmate

who was getting out of jail to deliver to Lewis’ girlfriend, instructed Lewis’ girlfriend on how

to testify based on who else would possibly testify at trial. Id. at 111-13, 368-74. The letter

demonstrated Lewis’ attempt to manipulate witness testimony and severely crippled his

credibility at trial. Moreover, the controlled buy was recorded, and the video and audio

were played for the jury. Id. at 53-57. During the transaction, Lewis can be seen and heard

counting the pills and asking the undercover officer if he was a cop. Notably, Lewis, not

Hall, was the main actor during the actual drug deal, which cuts against his claim that he

was merely a pawn.

In light of this record, the Court finds that Lewis has failed to demonstrate

outrageous conduct on the part of either law enforcement or Hall. Moreover, even

assuming Hall conspired in the manner Lewis alleges, Lewis has demonstrated at most

that Hall went rogue, which would take Hall out of the scope of his role as an agent for

law enforcement. See Osorio v. State, 186 So. 3d 601, 606 (Fla. 4th DCA 2016) (noting

that for an informant to be considered an agent of the State, the State must be aware of

and acquiesce to the conduct). Here, beyond Lewis’ conclusory allegations, the record is

devoid of any evidence that Hall’s handlers knew of this alleged improper behavior. As

such the record fails to support a finding that an entrapment defense would have been a

good option for Lewis.

Regarding the duress defense, Lewis testified at trial that when Hall returned to his

home, Hall was angry, pointed a gun at him, and threatened to kill him and his family if

he did not agree to sell his pills in the manner Hall wanted. Resp. Ex. L at 282-87.

Accordingly, contrary to Lewis’ assertions in his Petition, there was evidence to support

an imminent threat. Additionally, Lewis testified that Hall had a gun and threatened the

use of it, id., which could have established that Lewis did not have reasonable means to

avoid the danger or threat. In light of this record, the Court finds that between the two

defenses, a duress defense presented Lewis with the best opportunity for success.

Therefore, his counsel was not ineffective for making a strategic decision to pursue a

duress defense instead of an entrapment defense. See Knight, 936 F.3d at 1340. As

such, the Court finds Lewis is not entitled to relief on his claim in Ground Three.

D. Ground Four

Lastly, Lewis contends that his trial counsel was ineffective for failing to call John

Merchant, Travis Smith, Chris Middleton, and a records custodian from “Extended Care

Pharmacy” as witnesses. Petition at 44-47. According to Lewis, he called Merchant,

Smith, and Middleton a week before his arrest to inform them that he was in fear of his

life due to Hall’s egregious and outrageous conduct and that each of these witnesses

would have helped substantiate an entrapment defense. Id. at 44, 46-47. Lewis asserts

that Merchant was the first law enforcement officer to utilize Hall as a confidential

informant and would testify about how Hall and Williams “manipulated the Petitioner and

others to participate in his and CI Hall’s Oxycodone Trafficking Operation with ‘down

south’ doctor Mark Sachs; which would have in turn proved the affirmative defense of

entrapment . . . .” Id. at 46. As to Smith, Lewis maintains that Smith would have been able

to establish that Lewis’ phone call to Merchant a week before his arrest helped initiate the

investigation, arrest, and conviction of Dr. Sachs. Id. Lewis avers that Middleton would

have been able to corroborate the testimony of Merchant and Smith. Id. Regarding

Extended Care Pharmacy, Lewis contends that calling a records custodian from the

pharmacy would have established that his counsel, Mr. Henderson, “had [but failed to

use] a copy of the prescription (and the receipt for the over $900.00 cash payment thereof)

that ‘Sponsors’ Hall and Williams paid . . . .” Id. at 46.

Respondents contend that Lewis exhausted this claim as to witnesses Merchant,

Smith, and Middleton, but that Lewis failed to exhaust this claim as to the records

custodian from Extended Care Pharmacy. Response at 10-12. Lewis counters in his

Reply that he did exhaust the claim as to the records custodian because he raised it in

his Rule 3.850 Motion and raised the denial of this claim with the Fifth DCA. Reply at 31-

33. The record reflects that in Lewis’ Rule 3.850 Motion, he raised as ground three a claim

that his counsel was deficient for failing to call three witnesses, Merchant, Smith, and

Middleton. Resp. Ex. AA at 22-24. However, Lewis also alleged in this same ground that

he advised his counsel to subpoena the records custodian of Extended Care Pharmacy

to provide evidence that Hall personally filled Lewis’ prescription. Id. at 24. According to

Lewis, counsel acted on that request, “but then provided ineffective assistance when he

struck the records custodian at Extended Care Pharmacy in Hastings, Florida as a

witness just prior to trial starting.” Id. Lewis went on to make a claim of prejudice based

on the purported testimony of each of the four witnesses. Id. The circuit court did not

specifically address Lewis’ claim as to counsel’s alleged failure to call the records

custodian, Resp. Ex. DD at 4, and Lewis raised this claim again in his initial brief on

appeal, pointing out that the circuit court failed to address the merits of this sub-claim.

Resp. Ex. JJ at 33-34. Based on this record, the Court finds Lewis properly exhausted his

claim as to counsel’s alleged deficiency in failing to call a record custodian from Extended

Care Pharmacy. See Ogle v. Johnson, 488 F.3d 1364, 1369 (11th Cir. 2007) (“A habeas

petitioner exhausts available state remedies when he fairly presents his claim for a state

remedy even if the state never acts on his claim.”). However, because the state court did

not adjudicate this portion of the claim on the merits, the Court must conduct a de novo

review of this sub-claim instead of a deference analysis. See Mason v. Allen, 605 F.3d

1114, 1119 (11th Cir. 2010) (“When, however, a claim is properly presented to the state

court, but the state court does not adjudicate it on the merits, we review de novo.”).

In denying relief on this claim as to Merchant, Smith, and Middleton, the circuit

court wrote:

Here, the Court acknowledges that there [sic]

testimony would be hearsay and inadmissible and that Trial

Counsel seemed to recognize the evidentiary dilemma when

he announced that he would not call witness John Merchant

because he took a phone call from the Defendant and was not

certain he could get it in. Neither prong of Strickland [sic] has

been met here, Ground Three is denied.

Resp. Ex. DD at 4 (record citations omitted). The Fifth DCA per curiam affirmed the denial

of relief on this claim. Resp. Exs. LL; OO.

To the extent that the Fifth DCA decided the claim on the merits as is relates to

witnesses Merchant, Smith, and Middleton, the Court will address the claim in accordance

with the deferential standard for federal court review of state court adjudications. After a

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

adjudication of this claim 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. Thus, Lewis is not entitled to relief on the basis of this claim.

Nevertheless, even if the Fifth DCA’s adjudication of this claim as to Merchant,

Smith, and Middleton is not entitled to deference, the claim is without merit. Likewise,

upon conducting a de novo review of the claim as to the records custodian from Extended

Care Pharmacy, Lewis is not entitled to relief. “‘Which witnesses, if any, to call, and when

to call them, is the epitome of a strategic decision, and it is one that federal courts will

seldom, if ever, second guess.’” Knight, 936 F.3d at 1340 (quoting Waters v. Thomas, 46

F.3d 1506, 1512 (11th Cir. 1995)).

Moreover, the record reflects that at a May 23, 2013 hearing, counsel advised that

he would not be calling Smith, Middleton, Merchant, or a records custodian from Extended

Care Pharmacy as witnesses and explained his reasons. Resp. Ex. K at 24-25.

Concerning Merchant, counsel stated “right now I’m not intending on calling him. He’s --

he took a phone call from the defendant, and I’m not certain I can -- will be able to get

that in.” Id. at 24. As to Extended Care Pharmacy, counsel represented that “I do not

anticipate on calling them. That had to do with some other -- other portion of this case.”

Id. The record reflects counsel did not think the testimony he wanted to get from Merchant

would be admissible and did not think the information from Extended Care Pharmacy was

relevant. Moreover, in his Petition, Lewis merely speculates that these witnesses would

corroborate his defense theory, but speculation is insufficient to establish an ineffective

assistance of counsel claim. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991)

(recognizing that vague, conclusory, speculative, or unsupported claims cannot support

an ineffective assistance of counsel claim). Moreover, the Court finds no error in the circuit

court’s conclusion that Merchant, Middleton, and Smith’s purported testimony would

constitute inadmissible hearsay. Lastly, the Court concludes that what occurred with Dr.

Sachs after the controlled-buy in this case is irrelevant to the offense Lewis committed

and his defense of entrapment as to this specific offense. While Lewis may feel he has

unearthed a large-scale conspiracy, that does not mean it would be admissible and

relevant in his criminal proceeding. For the forgoing reasons, the Court will not second

guess counsel’s strategic decisions here. See Knight, 936 F.3d at 1340.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Lewis seeks issuance of a certificate of appealability, the undersigned opines

that a certificate of appealability is not warranted. 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, Lewis

“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)).

Where a district court has rejected a petitioner’s constitutional claims on the merits,

the petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong. See Slack, 529 U.S. at 484.

However, when the district court has rejected a claim on procedural grounds, the

petitioner must show that “jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record as a whole, the Court will deny a certificate of appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED WITH

PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Petition and

dismissing this case with prejudice.

3. If Lewis appeals the denial of the Petition, 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.

4. The Clerk of the Court is directed to close this case and terminate any

pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 28th day of May, 2020.

United States District Judge

Jax-8

C: Elliott Arthur Lewis #118062

Kaylee Tatman, Esq.

33