Campbell v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RODERICK W. CAMPBELL

Petitioner,

v. Case No. 8:16-cv-2189-T-02CPT

SECRETARY, Department of Corrections,

Respondent.

______________________________________/

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

On July 27, 2016, Petitioner Roderick W. Campbell filed his petition for the

writ of habeas corpus by a person in state custody under 28 U.S.C. § 2254, Dkt. 1.

He seeks relief from February 5, 2008, state convictions for carrying a concealed

firearm and for possession of a firearm by a convicted felon, for which convictions

Mr. Campbell serves thirty years imprisonment. Respondent filed a response. Dkt.

12. Mr. Campbell filed a reply. Dkt. 16. The Court finds that a hearing is

unnecessary and denies the Petition.

I. Background1

Melvin Burnham, a confidential informant working for the Tampa Police

Department, purchased from Mr. Campbell $20 worth of crack cocaine in a “buy

1 This factual summary derives from Mr. Campbell’s brief on direct appeal and the record. Dkts.

13-3, 13-9, 13-10.

bust” operation. After Burnham alerted the police of the purchase, Mr. Campbell

was arrested. Officer Daniel Evers discovered a firearm in Mr. Campbell’s

waistband. Mr. Campbell was charged in case number 07-CF-14574 with carrying

a concealed firearm, possession of cocaine, and delivery of cocaine, and he was

charged separately in case number 07-CF-16460 with possession of a firearm by a

convicted felon. Mr. Campbell successfully moved to consolidate the cases for

trial. A jury convicted Mr. Campbell of the two firearm charges and acquitted him

of the two drug charges. Mr. Campbell was sentenced as a violent career criminal

to thirty years imprisonment for the firearm possession conviction and to a

concurrent term of five years imprisonment for carrying a concealed firearm. The

Respondent admits the petition’s timeliness. Dkt. 12 at 3.

II. Exhaustion and Procedural Default

The Respondent correctly argues that Grounds One, Two, Three, Four, Five,

Fifteen, and Sixteen are procedurally barred from habeas review.2

2 In Ground Three, Mr. Campbell contends that the police lacked probable cause to arrest him

and that “the search and seizure that followed w[ere] unlawful and violated the Defendant’s 4th

Amendment right against unreasonable searches and seizures.” Dkt. 1 at 11. In Ground Four, Mr.

Campbell contends that the evidence was insufficient to establish that he actually possessed a

firearm. Id. at 14–15. The Respondent correctly argues that both Ground Three and Ground Four

are procedurally barred. Dkt. 12 at 13–14. Mr. Campbell does not oppose the Respondent’s

assertion of the procedural bar. In his reply, Mr. Campbell states as to both Ground Three and

Ground Four that he “will concede and not reply to this ground.” Dkt. 16 at 7. Accordingly, Mr.

Campbell is not entitled to relief on either ground.

In order for a federal court to review a habeas claim it must be “fairly

presented” to the state court. Baldwin v. Reese, 541 U.S. 27, 29 (2004). A claim is

not fairly presented if the state court “must read beyond a petition ... that does not

alert it to the presence of a federal claim.” Id. at 32. Requiring courts to follow a

“daisy chain” to divine the federal constitutional claim is an insufficient

presentation of the federal claim. See Howell v. Mississippi, 543 U.S. 440, 443–44

(2005) (holding federal claim was not properly presented where case relied on by

petitioner cited a case, which cited another case, which cited the relevant case).

The Supreme Court has provided the lower courts with guidance for

determining whether a habeas petitioner has met the “fair presentation”

requirement. In Picard v. Connor, the Court held that, for purposes of exhausting

state remedies, a claim for relief in habeas corpus must include reference to a

specific federal constitutional guarantee, as well as a statement of the facts which

entitle the petitioner to relief. 404 U.S. 270, 277 (1971). In announcing that “the

substance of a federal habeas corpus claim must first be presented to the state

courts,” the Court rejected the contention that the petitioner satisfied the

exhaustion requirement by presenting the state courts only with the facts necessary

to state a claim for relief. Id. at 278.

An issue that was not properly presented to the state court and which can no

longer be litigated under state procedural rules is considered procedurally

defaulted, that is, procedurally barred from federal review. See O’Sullivan v.

Boerckel, 526 U.S. 838, 839–40, 848 (1999); Bailey v. Nagle, 172 F.3d 1299,

1302–03 (11th Cir. 1999). This Court will also consider a claim procedurally

defaulted if it was presented in state court and rejected on the independent and

adequate state ground of procedural bar or default. See Coleman v. Thompson, 501

U.S. 722, 734–35 & n.1 (1991); Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir.

2001) (“[C]laims that have been held to be procedurally defaulted under state law

cannot be addressed by federal courts.”); Chambers v. Thompson, 150 F.3d 1324,

1326–27 (11th Cir. 1998) (applicable state procedural bar should be enforced by

federal court even as to a claim which has never been presented to a state court);

accord Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993); Parker v. Dugger, 876

F.2d 1470 (11th Cir. 1990), rev’d on other grounds, 498 U.S. 308 (1991).

In Ground One, Mr. Campbell contends that the prosecutor failed to prove

that the weapon used in the crimes is a “firearm” under Florida law because no

expert witness testified that the “alleged firearm” was tested to determine whether

the weapon could expel a projectile. Dkt. 1 at 7. In Ground Two, Mr. Campbell

contends that the trial court erred by allowing the prosecutor to make allegedly

improper remarks during closing argument. Id. at 8–9. In Ground Five, Mr.

Campbell contends that the trial court lacked jurisdiction to either issue the

information or to try the case based on a violation of Florida Rule of Criminal

Procedure 3.140(g). Id. at 17.

Mr. Campbell asserts no federal constitutional violation in either Grounds

One, Two, or Five. When he presented each of these grounds to the state court on

direct appeal, Mr. Campbell asserted only a violation of state law.3 Dkt. 13-9 at 7–

10; Dkt. 13-10 at 8–17. Affording the petition a generous interpretation, see

Haines v. Kerner, 404 U.S. 519 (1972), to the extent that Mr. Campbell asserts a

federal due process violation based on the allegations presented in either Grounds

One, Two, or Five of the federal petition, he cannot obtain relief because a federal

due process claim is unexhausted.

In Ground Fifteen, Mr. Campbell contends that he was denied his right to a

fair trial “because the Assistant State Attorney committed fraud upon the court to

invoke jurisdiction without the alleged sworn statement from the true State’s

material witness.” Dkt. 1 at 28. Mr. Campbell claims that the prosecutor “did not

receive sworn testimony from Officer Daniel Evers, the material witness in this

case, before signing the information as constitutionally required by Rule

3.140(G).” Id. at 29. Mr. Campbell alleges in his reply that “[t]his failure is

3 Mr. Campbell alleges in his reply to Ground Five that he “federalized” this ground in his direct

appeal brief by citing Gerstein v. Pugh, 420 U.S. 103 (1975). Dkt. 16 at 8. Gerstein holds “that

the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to

extended restraint of liberty following arrest.” 420 U.S. at 114. Citing Gerstein does not

“federalize” a due process claim based on either a lack of subject matter jurisdiction or an

alleged violation of a state procedural rule.

clearly a violation of the Petitioner’s constitutional right to effective counsel, a fair

impartial trial and substantial [sic] and procedural due process of law.” Dkt. 16 at

19.

Mr. Campbell presented this ground to the state post-conviction court in his

amended Rule 3.850 motion. Dkt. 13-15 at 44–47. The state post-conviction court

denied this ground finding that “[c]laims of prosecutorial misconduct could and

should have been raised on direct appeal and are therefore procedurally barred

from consideration in a postconviction motion. Spencer v. State, 842 So. 2d 52

(Fla. 2003).” Dkt. 13-16 at 8. The state post-conviction court’s denial of Mr.

Campbell’s ground is based on a state procedural rule that is not intertwined with

an interpretation of federal law. Accordingly, Mr. Campbell’s prosecutorial

misconduct claim is procedurally defaulted.

In Ground Sixteen, Mr. Campbell contends that he “is being held in the

Department of Corrections unlawfully where the trial court violated the separation

of powers doctrine which in turn violated the Petitioner’s due process rights under

Article (I) section[s] 9 and 16 of the Florida Constitution and the Fifth and

Fourteenth Amendments of the United States Constitution.”4 Dkt. 1 at 29. Mr.

4 To the extent that Campbell asserts a violation of the Florida Constitution, he cannot obtain

federal relief because such a claim is not cognizable on federal review. Federal habeas relief for

a person in custody pursuant to the judgment of a state court is available only on the ground that

the custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a);

Jones v. Goodwin, 982 F.2d 464, 471 (11th Cir. 1993). A state’s interpretation of its own laws

provides no basis for federal habeas relief because no federal constitutional question is presented.

Campbell alleges that “the trial court committed a fundamental error which led to a

grave miscarriage of justice and a right to due process violation that ultimately

created a manifest injustice when the trial judge, William Fuente, decided to play

the role of ‘executive branch’ of the government (state attorney) and white out a

portion of the information in case number 07-CF-016460, altering it from its

original text once the laches of jeopardy had been attached by the selecting and

swearing in of the jury to hear evidence, thus rendering the information defective.”

Dkt. 1 at 29. Mr. Campbell argues in his reply that “the error was harmful to the

Petitioner because the trial judge stepped outside of his impartial role and

committed a fundamental error.” Dkt. 16 at 20. He further argues that “this plain

error is clearly a violation of the Petitioner’s constitutional right to effective

counsel, a fair and impartial trial, and substantial [sic] and procedural due process

of law.”5 Id.

Mr. Campbell presented this Ground to the state appellate court in his state

habeas petition, which petition the court denied without elaboration. Dkt. 13-33;

Dkt. 13-34. As the Respondent correctly argues, Mr. Campbell could have raised

this ground at trial and on direct appeal. Dkt. 12 at 34. Mr. Campbell did not

28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of

a federal habeas court to re-examine state-court determinations on state law questions.”).

5 Campbell did not present to the state appellate court in his state habeas petition a federal fair

trial claim or a claim of ineffective assistance of either trial or appellate counsel. To the extent

that Campbell asserts these claims as independent bases for relief, he cannot prevail because he

did not exhaust the claims in the state court.

properly present this ground to the state court pursuant to the firmly established

state procedural rule that habeas corpus cannot be used to litigate an issue that

could have been raised on direct appeal. See Breedlove v. Singletary, 595 So. 2d 8,

10 (Fla. 1992) (“Habeas corpus is not a second appeal and cannot be used to

litigate or relitigate issues which could have been, should have been, or were raised

on direct appeal.”). Accordingly, Mr. Campbell’s federal due process claim, based

on an alleged violation of the separation of powers doctrine, is unexhausted. See

Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994) (noting that a state habeas

petitioner who “attempts to raise [a claim] in a manner not permitted by state

procedural rules is barred from pursuing the same claim in federal court absent a

showing of cause for and actual prejudice from the default”).

To overcome a procedural default such that the federal habeas court may

consider the merits of a claim, the petitioner must show cause and prejudice or a

fundamental miscarriage of justice. Tower, 7 F.3d at 210; Parker, 876 F.2d 1470.

“For cause to exist, an external impediment, whether it be governmental

interference or the reasonable unavailability of the factual basis for the claim, must

have prevented petitioner from raising the claim.” McCleskey v. Zant, 499 U.S.

467, 497 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, (1986)). Lack of

counsel or ignorance of available procedures is not enough to establish cause.

Tower, 7 F.3d at 210.

Mr. Campbell has not established cause and prejudice or a fundamental

miscarriage of justice and cannot overcome the procedural default for any of these

Grounds. Grounds One, Two, Three, Four, Five, Fifteen, and Sixteen are not

exhausted and procedurally barred. The remaining grounds in the petition are

exhausted and entitled to review on the merits.

III. Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

governs Mr. Campbell’s petition. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209,

1210 (11th Cir. 1998). Section 2254(d), which creates a highly deferential

standard for federal court review of a state court adjudication, states in pertinent

part:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim –

(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding.

In Williams v. Taylor, 529 U.S. 362, 412–13 (2000), the Supreme Court

interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a federal

habeas court to grant a state prisoner’s application for a writ of habeas

corpus with respect to claims adjudicated on the merits in state court.

Under § 2254(d)(1), the writ may issue only if one of the following two

conditions is satisfied—the state-court adjudication resulted in a

decision that (1) “was contrary to . . . clearly established Federal Law,

as determined by the Supreme Court of the United States” or (2)

“involved an unreasonable application of . . . clearly established Federal

law, as determined by the Supreme Court of the United States.” Under

the “contrary to” clause, a federal habeas court may grant the writ if the

state court arrives at a conclusion opposite to that reached by this Court

on a question of law or if the state court decides a case differently than

this Court has on a set of materially indistinguishable facts. Under the

“unreasonable application” clause, a federal habeas court may grant the

writ if the state court identifies the correct governing legal principle

from this Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case.

“The focus . . . is on whether the state court’s application of clearly established

federal law is objectively unreasonable, . . . an unreasonable application is different

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “As a condition

for obtaining habeas corpus from a federal court, a state prisoner must show that

the state court’s ruling on the claim being presented in federal court was so lacking

in justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.” Harrington v.

Richter, 562 U.S. 86, 103 (2011); see White v. Woodall, 572 U.S. 415, 427 (2014)

(“The critical point is that relief is available under § 2254(d)(1)’s unreasonable-

application clause if, and only if, it is so obvious that a clearly established rule

applies to a given set of facts that there could be no ‘fairminded disagreement’ on

the question . . . .”) (quoting Richter); Woods v. Donald, 575 U.S. 312, 316 (2015)

(“And an ‘unreasonable application of’ those holdings must be objectively

unreasonable, not merely wrong; even clear error will not suffice.”) (quoting

Woodall, 572 U.S. at 419); accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir.

2001) (“It is the objective reasonableness, not the correctness per se, of the state

court decision that we are to decide.”). The phrase “clearly established Federal

law” encompasses only the holdings of the United States Supreme Court “as of the

time of the relevant state-court decision.” Williams, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. “The [AEDPA]

modified a federal habeas court’s role in reviewing state prisoner applications in

order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions

are given effect to the extent possible under law.” Bell, 535 U.S. at 694. A federal

court must afford due deference to a state court’s decision. “AEDPA prevents

defendants—and federal courts—from using federal habeas corpus review as a

vehicle to second guess the reasonable decisions of state courts.” Renico v. Lett,

559 U.S. 766, 779 (2010); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011)

(“This is a ‘difficult to meet,’ . . . and ‘highly deferential standard for evaluating

state court rulings, which demands that state court decisions be given the benefit of

the doubt’ . . . .”) (citations omitted). When the last state court to decide a federal

claim explains its decision in a reasoned opinion, a federal habeas court reviews

the specific reasons as stated in the opinion and defers to those reasons if they are

reasonable. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018) (“[A] federal habeas

court simply reviews the specific reasons given by the state court and defers to

those reasons if they are reasonable.”). When the relevant state-court decision is

not accompanied with reasons for the decision, the federal court “should ‘look

through’ the unexplained decision to the last related state court decision that does

provide a relevant rationale [and] presume that the unexplained decision adopted

the same reasoning.” Id. “[T]he 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 . . . .” Id.

In a per curiam decision without a written opinion, the state appellate court

on direct appeal affirmed Mr. Campbell’s convictions and sentences. Dkt. 13-13.

In another per curiam decision without a written opinion, the state appellate court

affirmed the denial of Mr. Campbell’s subsequent Rule 3.850 motion for post-

conviction relief. Dkt. 13-31. The state appellate court’s per curiam affirmances

warrant deference under Section 2254(d)(1) because “the summary nature of a

state court’s decision does not lessen the deference that it is due.” Wright v.

Moore, 278 F.3d 1245, 1254 (11th Cir.), reh’g and reh’g en banc denied, 278 F.3d

1245 (2002); see also Richter, 562 U.S. at 99 (“When a federal claim has been

presented to a state court and the state court has denied relief, it may be presumed

that the state court adjudicated the claim on the merits in the absence of any

indication or state law procedural principles to the contrary.”); Bishop v. Warden,

726 F. 3d 1243, 1255–56 (11th Cir. 2013) (describing the difference between an

“opinion” or “analysis” and a “decision” or “ruling” and explaining that deference

is accorded the state court’s “decision” or “ruling” even absent an “opinion” or

“analysis”).

As Pinholster explains, review of the state court decision is limited to the

record that was before the state court:

We now hold that review under § 2254(d)(1) is limited to the record

that was before the state court that adjudicated the claim on the merits.

Section 2254(d)(1) refers, in the past tense, to a state court adjudication

that “resulted in” a decision that was contrary to, or “involved” an

unreasonable application of, established law. This backward-looking

language requires an examination of the state court decision at the time

it was made. It follows that the record under review is limited to the

record in existence at that same time i.e., the record before the state

court.

563 U.S. at 181–82. Mr. Campbell bears the burden of overcoming by clear and

convincing evidence a state court factual determination. “[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.” 28 U.S.C. § 2254(e)(1). This presumption of correctness

applies to a finding of fact but not to a mixed determination of law and fact.

Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001).

The state court’s rejection of Mr. Campbell’s post-conviction claims warrants

deference in this case.

IV. Merits

Mr. Campbell claims ineffective assistance of counsel, a difficult claim to

sustain. “[T]he cases in which habeas petitioners can properly prevail on the

ground of ineffective assistance of counsel are few and far between.” Waters v.

Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant,

13 F.3d 384, 386 (11th Cir. 1994)). Counsel is constitutional ineffective if “(1)

counsel’s performance was deficient; and (2) the deficient performance prejudiced

the defense such that petitioner was deprived of a fair trial.” Dill v. Allen, 488 F.3d

1344, 1354 (11th Cir. 2007) (citing Strickland v. Washington, 466 U.S. 668, 687

(1984)). But beyond that, in the habeas context, “[t]he 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) (citation and

internal 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.” Hittson v. GDCP Warden, 759

F.3d 1210, 1248 (11th Cir. 2014) (citation omitted).

Strickland cautions that “strategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are reasonable

precisely to the extent that reasonable professional judgments support the

limitations on investigation.” 466 U.S. at 690–91. Mr. Campbell cannot meet his

burden merely by showing that the avenue chosen by counsel proved unsuccessful.

The test has nothing to do with what the best lawyers would have done.

Nor is the test even what most good lawyers would have done. We ask

only whether some reasonable lawyer at the trial could have acted, in

the circumstances, as defense counsel acted at trial. . . . We are not

interested in grading lawyers’ performances; we are interested in

whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992). And, while “no

absolute duty exists to investigate particular facts or a certain line of defense.”

Chandler, 218 F.3d at 1317. “[C]ounsel has a duty to make reasonable

investigations or make a reasonable decision that makes particular investigations

unnecessary.” Strickland, 466 U.S. at 691 (emphasis added). The Court will

address each of Mr. Campbell’s ineffective assistance Grounds in turn.

Ground Six

Mr. Campbell contends that Officer Gary Garboski issued a perjured arrest

affidavit and the State presented perjured testimony at trial. Mr. Campbell further

alleges that the State “rehearsed” its witnesses’ testimony but “forgot to instruct

[the] witnesses not to mention the rehearsal.” Dkt. 1 at 19. Mr. Campbell argues

that “[t]his prosecutorial misconduct constitutes a major due process violation and

call[s] for a reversal” of his convictions. Id.

The Respondent correctly asserts that this ground is “conclusory and

insufficient” because “[Mr.] Campbell does not identify any specific statements in

the arrest affidavit or testimony at trial that he believes constituted perjury.” Dkt.

12 at 16. In his reply, Mr. Campbell states he “will concede and not reply to this

ground.” Dkt. 16 at 9. Given Mr. Campbell’s failure to present facts to support

this ground, along with his concession in the reply, Ground Six warrants no federal

habeas relief.

Ground Seven

Mr. Campbell presents two separate claims for relief in Ground Seven: (1)

the prosecutor improperly met with all of the State’s witnesses at the same time to

review their testimony and (2) the trial court improperly allowed the jury to

become aware that Mr. Campbell’s prior conviction involved a firearm. Dkt. 1 at

20. Mr. Campbell alleges that these errors violated his rights to due process and a

fair trial. The state district court of appeal rejected both of these claims in Mr.

Campbell’s direct appeal in a per curiam decision without a written opinion.6 Dkt.

13-13.

6 The Respondent argues that both claims in Ground Seven are procedurally barred from federal

review because Campbell did not preserve the claims in the trial court. Dkt. 12 at 17–18. When

Campbell raised these claims in his direct appeal brief, the State failed to acknowledge or

Prosecutorial Misconduct

Mr. Campbell alleges that “the State met with all of its witnesses in one

room and went over the evidence together.” Dkt. 1 at 20. He relies on the

following excerpt of confidential informant Melvin Burnham’s trial testimony on

cross examination to support his claim:

Q: And you had to meet with [the prosecutor] this morning, correct?

A: Correct.

Q: And let him know what you were saying on [the audio recording of

the drug exchange between Burnham and Campbell], correct?

A: No. He just wanted to make sure we all had an understanding. We

heard the tape and make sure it refreshes my memory of everything[,]

that’s what it was, not talking about what he couldn’t hear or

understand.

Q: I’m sorry, you said that you all met so he could refresh your memory

and everyone could understand what was going on?

A: Correct.

Q: Who is we all?

A: Me, Gary Garboski, Ben,[7] and him.

Q: So all of you this morning in one room went over today’s evidence

together?

A: Yes.

address in its appellate brief the prosecutorial misconduct claim and responded on the merits to

the jury instruction claim without asserting a lack of preservation bar. Dkt. 13-11 at 8. Because

the appellate court issued no written opinion, the record contains no “‘plain statement’ that [the

state court’s] decision rests upon adequate and independent state grounds.” Harris, 489 U.S. at

261 (quoting Michigan v. Long, 463 U.S. 1032, 1042 (1983)); cf., Bennett v. Fortner, 863 F.2d

804, 807 (11th Cir. 1989) (“This circuit to a point has presumed that when a procedural default

is asserted on appeal and the state appellate court has not clearly indicated that in affirming it is

reaching the merits, the state court’s opinion is based on the procedural default.”). Accordingly,

because it is not clear that the state appellate court rejected these claims based on a state

procedural bar, the claims are reviewed on the merits. See, e.g., Moore v. Sec’y, Fla. Dep’t of

Corr., 762 F. App’x 610, 621 (11th Cir. 2019) (noting that the Bennett presumption “only

properly applies ‘in the absence of any evidence to the contrary’” that the state court resolved a

claim on the merits) (quoting Bennett, 863 F.2d at 807).

7 Officer Benjamin Brown collected evidence after Campbell’s arrest and testified at trial about

his participation in the case. Dkt. 13-3 Vol. III at 264–88.

Q: Okay. And that’s with [the prosecutor,] Mr. Gale?

A: Which — is that Mr. Gale?

Q: Was [the prosecutor’s co-counsel] Ms. Matot present as well?

A: Yes.

Dkt. 13-3 Vol. III at 176–77. Mr. Campbell argues that “[t]his was apparent

prosecutorial misconduct and a violation [his] Due Process [r]ights.” Dkt. 1 at 20.

He further argues that the trial judge’s instructions to the jury—(1) “it is entirely

proper for a lawyer to talk to a witness about what testimony the witness would

give if called to the courtroom” and (2) the “witness should not be discredited by

talking to a lawyer about his or her testimony”—improperly bolstered the State’s

witnesses, “especially since the judge failed to point out the difference between a

witness talking to a lawyer and all of the witnesses meeting with the lawyer at the

same time to coordinate their testimony.” Id. This particular instruction was taken

directly from Florida’s Standard Jury Instructions in Criminal Cases.

Upon review, the Court finds that Mr. Campbell is unable to demonstrate the

requisite prejudice under Strickland. See United States ex rel. Clark v. Fike, 538

F.2d 750, 758 (7th Cir. 1976) (“The rule that the prosecution cannot bring all its

witnesses together prior to trial to discuss their testimony is one to ensure the

credibility of the witnesses. That the witnesses in this case did meet together, and

did discuss some aspects of their testimony was a proper subject for impeachment

on cross-examination and for comment during closing argument. However, the

violation here is not so extreme as to render the witnesses’ testimony incredible as

a matter of law, nor is it so extreme as to deny the petitioner fundamental fairness

in his trial.”). Consequently, no relief is warranted upon this ground.

Prior conviction

Before the trial began, the parties agreed to stipulate that Mr. Campbell is a

convicted felon. Dkt. 13-3 Vol. II at 3–4. The trial judge read to the jury the

stipulation: “The defendant Roderick Campbell is a convicted felon.” Dkt. 13-3

Vol. III at 311. The jury was provided a redacted copy of the information that

omitted a description of Mr. Campbell’s prior conviction

RODERICK W. CAMPBELL, on the 15th day of July, 2007 in the

county of Hillsborough and state of Florida, did unlawfully and

feloniously own or have in his care, custody, possession, or control, a

firearm, the said RODERICK W. CAMPBELL having previously been

convicted of a felony in Hillsborough County Circuit Court [. . . ] and

during the commission of the offense, the said RODERICK W.

CAMPBELL actually possessed a firearm.[8]

8 The trial judge instructed the jury on the felon in possession of a firearm charge as follows,

Dkt. 13-3 Vol. IV at 364–65:

To prove the crime of Felon in Possession of a Firearm, the State must prove the

following two elements beyond a reasonable doubt:

1. Roderick Campbell has been convicted of a felony.

2. After the conviction, Roderick Campbell knowingly owned or had in

his care, custody, possession or control a firearm.

The term “convicted” means that a judgment has been entered in a criminal

proceeding by a court pronouncing Roderick Campbell guilty.

Dkt. 13-35.9 Mr. Campbell argues that the highlighted phrase—“possessed a

firearm”10—refers to his prior felony. He alleges that this phrase “placed illegally

in the jur[y’s] mind[] the thought that the Defendant had previously demonstrated a

propensity to carry a firearm and created prejudice against the Defendant.” Dkt. 1

at 20.

Taken in context, the phrase “possessed a firearm” refers to the charge for

which Mr. Campbell was tried and not to the prior offense. The state appellate

court, by affirming Mr. Campbell’s convictions and sentences, neither

unreasonably applied controlling Supreme Court precedent nor unreasonably

determined the facts. 28 U.S.C. § 2254(d)(1), (d)(2). As a result, Ground Seven

warrants no relief.

9 Count one of the original information charges the following, Dkt. 13-2:

RODERICK W. CAMPBELL, on the 15th day of July, 2007 in the County of

Hillsborough and State of Florida, did unlawfully and feloniously own or have in

his care, custody, possession, or control, a firearm, the said RODERICK W.

CAMPBELL having previously been convicted of a felony in Hillsborough County

Circuit Court for the crime of Attempted First Degree Murder on April 10,

1987, and during the commission of the offense, the said RODERICK W.

CAMPBELL actually possessed a firearm.

The highlighted language was omitted from the copy of the information provided to the jury,

Dkt. 13-35.

10 In his petition and in his direct appeal brief, Campbell cites the challenged phrase as “with a

firearm.” Dkt. 1 at 20; Dkt. 13-10 at 20. He attached to his direct appeal brief a copy of the

redacted information and specifically highlighted the words “possessed a firearm” as the basis

for his claim of error. Dkt. 13-10 Ex. A. Campbell’s citation to the words “with a firearm”

appears to be his own interpretation of the charging document.

Ground Eight

Mr. Campbell contends that his trial counsel rendered ineffective assistance

by misadvising Mr. Campbell to consolidate his two criminal cases. He argues that

trial counsel’s “advice that the jury would find out about his prior convictions

anyway and that by consolidating the offenses for one trial, [counsel] would be

able to use testimony from the drug offenses in defense of the firearm possession

charge and that consolidating the trials could have no negative [e]ffect on a motion

to suppress the firearm was erroneous advice which caused [him] to waive his

constitutional rights associated with, and to a bifurcated (separate) trial on, the

felon in possession of a firearm charge.” Dkt. 1 at 22. In his reply Mr. Campbell

alleges that the consolidation was “highly prejudicial” because, if he had had

separate trials, he “could have proceeded to file his motion to suppress the firearm

based on probable cause to detain and arrest after acquittal on the drug charges.”

Dkt. 16 at 11. Mr. Campbell argues that “[t]rial counsel’s misadvice to consolidate

the two cases is clearly a violation of the Petitioner’s constitutional right to

effective counsel, a fair and impartial trial and substantial [sic] and procedural due

process of law.” Id. at 12.

The state post-conviction court denied this ground of ineffective assistance

of counsel as follows:

[T]he Defendant alleges counsel was ineffective for recommending a

consolidation of his two cases for trial and for advising him to stipulate

to being a convicted felon. The Defendant alleges counsel stated the

jury would be advised of his prior record regardless of whether he chose

to testify and she would use testimony relating to the drug charges to

discredit law enforcement officers’ testimony on the felon in possession

of a firearm offense. The Defendant asserts that if the cases had not

been consolidated, the jury would not have been advised of his prior

felony conviction.

A review of the record indicates that prior to trial, counsel for

Defendant advised the Court that Defendant was requesting a

consolidation of his two cases. The trial judge stated that counsel had

informed the Court that at Defendant’s request she had moved to

consolidate the cases for trial. The judge asked if that was what he

wanted and Defendant replied, “Yes, sir.” The judge advised the

Defendant that he had a right to two trials, and if he chose to consolidate

his cases, the State would be permitted to introduce evidence that

Defendant had previously been convicted of a felony. It appears from

the record that the cases were consolidated at the Defendant’s request

and the Court made a sufficient inquiry. As such, the Defendant is not

entitled to relief . . . .

Dkt. 13-19 at 2 (court’s record citations omitted). Upon review, the Court finds the

reasoning of the post-conviction court to be correct, and that the cases were

consolidated upon Defendant’s own request. As such, Mr. Campbell fails to meet

his burden of proving that the state court unreasonably applied Strickland or

unreasonably determined the facts by rejecting this ground. 28 U.S.C. §

2254(d)(1), (d)(2).

Ground Nine

Mr. Campbell contends that his trial counsel rendered ineffective assistance

and violated his rights to due process and a fair trial by not moving to suppress the

firearm based on a lack of probable cause. Mr. Campbell alleges that “[t]he police

gave inconsistent testimony in regards to who made reports on the firearm” and

that “[t]here was no fingerprint or DNA on the gun connecting the gun to the

Petitioner.” Dkt. 16 at 12–13.

The state post-conviction court denied this ground of ineffective assistance

of counsel as follows:

[T]he Defendant alleges counsel was ineffective for failing to file a

motion to suppress. The Defendant alleges law enforcement lacked

probable cause to arrest the Defendant because the officers did not

witness a transaction and the audio tape does not reflect a transaction

occurred. As noted above, “[p]robable cause is not the same standard

as beyond a reasonable doubt and the ‘facts constituting probable cause

need not meet the standard of conclusiveness and probability required

of the circumstantial facts upon which a conviction must be based.’”

Catt, 839 So. 2d at 759.

At trial, Melvin Burnham, a confidential informant for the Tampa

Police Department, testified that, at the direction of Officer Garboski,

he purchased three pieces of crack cocaine from the Defendant during

a “buy bust.” Mr. Burnham then said, “Deal is done. Move in. Move

in,” the signal he was to give when the transaction was completed.

Officer Garboski testified that he was watching from a distance as Mr.

Burnham and the Defendant made an exchange. Although he was

unable to see what had been exchanged due to his distance, he saw Mr.

Burnham walk away and give the signal that the deal was done. The

Court finds that based on the testimony at trial, officers had probable

cause to arrest the Defendant and, therefore, he has failed to

demonstrate counsel performed deficiently by failing to file a motion

to suppress on that ground. Consequently, the Court will deny this

claim.

Dkt. 13-16 at 4 (court’s record citations omitted).

Upon review, the Court finds that the trial court correctly denied the claim.

The record supports that counsel was not ineffective for failing to move to suppress

the firearm because there was probable cause to arrest Mr. Campbell.

Consequently, Mr. Campbell fails to meet his burden of proving that the state court

unreasonably applied Strickland or unreasonably determined the facts by rejecting

this ground. 28 U.S.C. § 2254(d)(1), (d)(2).

Ground Ten

Mr. Campbell contends that his trial counsel rendered ineffective assistance

by not objecting to the jury receiving a copy of the information which allegedly

included a reference to the use of a firearm in a prior offense. Dkt. 1 at 23–25. The

state post-conviction court denied this ground of ineffective assistance of counsel

as follows:

[T]he Defendant alleges counsel was ineffective for failing to request

that the phrase “and during the commission of the offense, the said

Roderick W. Campbell actually possessed a firearm” be redacted from

the copy of the charging document provided to the jury. The Defendant

alleges that the phrase informed the jury that his prior conviction

involved the possession of a firearm. However, the Court finds the

phrase “and during the commission of the offense, the said Roderick

W. Campbell actually possessed a firearm” refers to the instant Felon

in Possession of a Firearm charge. After the jury found the Defendant

guilty of Felon in Possession of a Firearm, they were required to

determine whether he actually or constructively possessed the firearm.

Therefore, the Defendant has failed to demonstrate counsel performed

deficiently and he is not entitled to relief on this ground.

Dkt. 13-16 at 5 (court’s record citations omitted). Upon review, the Court finds

that the trial court correctly found that trial counsel was not ineffective because the

phrase “and during the commission of the offense, the said Roderick W. Campbell

actually possessed a firearm” referred to the instant felon in possession of a firearm

charge rather than his prior conviction. As a result, Mr. Campbell fails to meet his

burden of proving that the state court either unreasonably applied Strickland or

unreasonably determined the facts by rejecting this ground. 28 U.S.C. §

2254(d)(1), (d)(2).

Ground Eleven

Mr. Campbell contends that his trial counsel rendered ineffective assistance

by not investigating or discovering two witnesses who could have provided

testimony favorable to the defense. Dkt. 1 at 25. Mr. Campbell alleges that his trial

counsel deposed both Officer Garboski and Officer Evers who each disclosed in

their testimony that they were accompanied by their police partners. Mr. Campbell

claims that after he read the depositions and discovered the names of each partner

(Sessler Pickett and Matthew Dalynski,11 respectively), he asked trial counsel to

depose both partners “because he felt the State was intentionally trying to withhold

these witnesses’ names because their testimony would not help the State’s case.”

Id. More specifically, Mr. Campbell argues that he told trial counsel that (1)

“Officer Pickett’s testimony would demonstrate that he did not see any crime

11 Throughout the record the spelling of the second officer’s name varies from Matthew Dalynski

and Matthew Dolitsky. Despite this inconsistency it is clear the Parties were aware it referred to

the same officer. Thus, the Court will refer to him as Matthew Dalynski, in keeping with the state

circuit court order.

committed by the defendant on July 15, 2007,” and (2) “that Officer D[alynski]’s

testimony would demonstrate that he did not see any firearm retrieved from the

Defendant by Officer Evers.” Id. According to Mr. Campbell, testimony from

Officers Pickett and Dalynski would have discredited the testimony of both Officer

Garboski and Officer Evers.

The state post-conviction court denied this ground of ineffective assistance

of counsel after an evidentiary hearing as follows:

Defendant alleges counsel was ineffective for failing to depose and call

Officer Pickett to testify at trial. Defendant asserts that Officer Pickett

would have testified that he did not see Defendant commit a crime.

At the evidentiary hearing, Corporal Selser Pickett testified that he

witnessed the Defendant conduct a hand to hand exchange with the

informant but he could not see the items that were exchanged. Corporal

Pickett also testified that he did not see a firearm during the transaction

but he arrived at the location after Defendant was placed in handcuffs.

He testified that he was informed that other officers on the scene

removed a firearm from the small of Defendant’s back.

[Trial counsel] testified that Defendant had admitted to her prior to trial

that he conducted the transaction and that he had possession of a firearm

at the time. [Trial counsel] stated that she knew Corporal Pickett was

watching the transaction through binoculars. She testified that the audio

recording of the transaction was very poor and their defense focused

heavily on inconsistencies in the officers’ testimony. She stated she did

not depose Corporal Pickett because she was afraid his testimony would

substantiate the State’s case and undermine her defense strategy. The

Court finds [trial counsel]’s testimony credible. After considering the

motion, testimony presented at the evidentiary hearing, and the record,

the Court finds counsel’s decision not to depose and call Corporal

Pickett was reasonable trial strategy, and Defendant is not entitled to

relief on this claim.

The Defendant also alleges . . . that counsel was ineffective for failing

to depose and call Officer Dalynski to testify at trial. The Defendant

alleges Officer Dalynski would have testified that no firearm was ever

recovered from Defendant.

At the evidentiary hearing, [trial counsel] testified that Officer Dalynski

was not mentioned in the police reports or in any deposition and he was

never listed in the State’s discovery. She stated she first learned of

Officer Dalynski’s presence during trial. [Trial counsel] further

testified that even if she had known about Officer Dolitsky prior to trial,

she could not say for sure that she would have deposed him. The

Defendant had admitted to her that he conducted the transaction and

had possession of a firearm and [trial counsel] did not want another

officer testifying to these facts. Officer Dalynski did not testify at the

evidentiary hearing. After considering the motion, the testimony

presented at the hearing, and the record, the Court finds Defendant has

failed to meet his burden regarding this claim. As such, he is not entitled

to relief.

Dkt. 13-27 at 2–3.

The AEDPA “erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Daniel v. Comm’r,

Ala. Dep’t of Corr., 822 F.3d 1248, 1260 (11th Cir. 2016). “[Q]uestions about the

credibility and demeanor of a witness is a question of fact. See Consalvo v. Sec’y

for Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011) (citing Freund v.

Butterworth, 165 F.3d 839, 862 (11th Cir. 1999) (en banc)). Under Section

2254(e)(1), “[f]ederal habeas courts generally defer to the factual findings of state

courts, presuming the facts to be correct unless they are rebutted by clear and

convincing evidence.” Jones v. Walker, 540 F.3d 1277, 1288 n.5 (11th Cir. 2008)

(en banc) “Determining the credibility of witnesses is the province and function of

state courts, not a federal court engaging in habeas review. Federal habeas courts

have ‘no license to redetermine credibility of witnesses whose demeanor was

observed by the state court, but not by them.’” Consalvo, 664 F.3d at 845 (quoting

Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). The state court’s credibility

determination is presumed correct. See Rice v. Collins, 546 U.S. 333, 341–42

(2006) (“Reasonable minds reviewing the record might disagree about the

[witness]’s credibility, but on habeas review that does not suffice to supersede the

trial court’s credibility determination.”).

As to Officer Pickett, the state post-conviction court’s credibility

determination regarding trial counsel’s decision to not depose him is entitled to

deference by this Court. As to Officer Dalynski, the state post-conviction court

accepted trial counsel’s assessment that she was not sure if she would have

deposed the officer because “she did not want another officer testifying[.]” Dkt.

13-27 at 3. This assessment is bolstered by counsel’s testimony regarding Corporal

Pickett and counsel’s concern about having another officer “substantiate the State’s

case and undermine her defense strategy.” Id. The state court’s credibility

determinations bind this Court. As a result, the Court finds that counsel was not

deficient for failing to call these witnesses. Mr. Campbell fails to meet his burden

of proving that the state court unreasonably applied Strickland or unreasonably

determined the facts by rejecting this ground. 28 U.S.C. § 2254(d)(1), (d)(2).

Ground Twelve

Mr. Campbell contends that his trial counsel rendered ineffective assistance

by not objecting when the trial judge allegedly failed to read in its entirety the jury

instruction on carrying a concealed firearm. Specifically, Mr. Campbell alleges

that during the charge conference both the State and defense counsel agreed to

eliminate from the instruction the definition of a “concealed firearm.” Mr.

Campbell argues that “[t]he Florida Standard Jury Instruction on carrying a

concealed firearm directs that the definition of ‘concealed firearm’ be defined to

the jury from section 790.001, FS.” Dkt. 1 at 26. Mr. Campbell claims that trial

counsel’s failure to object to the omission of this definition from the jury

instruction in his case deprived him of the effective assistance of counsel.

The state post-conviction court denied this ground of ineffective assistance

of counsel as follows:

[T]he Defendant alleges counsel was ineffective for agreeing to

eliminate the definition of concealed firearm from the jury instructions.

At trial, the judge asked both the prosecutor and defense counsel if they

would object to omitting the definition of concealed firearm from the

jury instructions, reasoning the definition is already included in the

elements of the offense. To be found guilty of Carrying a Concealed

Firearm, the State was required to prove that the Defendant knowingly

carried on or about his person a firearm, and the firearm was concealed

from the ordinary sight of another person. Section 79.001 of the Florida

Statutes defines a concealed firearm as “any firearm . . . which is carried

on or about a person in such a manner as to conceal the firearm from

the ordinary sight of another person.” The Court finds that the

Defendant has failed to demonstrate how he was prejudiced by the

removal of the definition of a concealed firearm when it was included

in the elements of the offense. As such, the Defendant is not entitled to

relief on this claim.

Dkt. 13-16 at 6 (court’s record citations omitted).

Upon review, the Court finds that the record supports the post-conviction

court’s rejection of this ground. In his reply Mr. Campbell states, he “will concede

and not reply to this ground.” Dkt. 16 at 16. Accordingly, Ground Twelve

warrants no federal habeas relief.

Ground Thirteen

Mr. Campbell contends that his trial counsel rendered ineffective assistance

by not objecting to the prosecutor “committing perjury and fraud upon the court”

by swearing under oath that testimony taken from a material witness, Officer

Evers, had itself been taken under oath when, in fact, it had not. In his reply Mr.

Campbell alleges that “had trial counsel filed a motion to dismiss based on the fact

that the officer writing the probable cause affidavit was not a material witness[,]

the charges would have been dismissed.” Dkt. 16 at 17. Mr. Campbell claims that

trial counsel’s failure to both object and file a pretrial motion to dismiss resulted in

“a violation of the Petitioner’s constitutional right to effective counsel, a fair and

impartial trial[,] and substantial [sic] and procedural due process of law.” Id.

The state post-conviction court denied this ground of ineffective assistance

of counsel as follows:

[T]he Defendant alleges counsel was ineffective for failing to object or

move to dismiss the information in cases 07-CF-14574 and 07-CF-

16460 when the State failed to obtain sworn testimony from a material

witness as required by Florida Rule of Criminal Procedure 3.140(g).

The Court dismissed this claim without prejudice for the Defendant to

file a facially sufficient claim. The Defendant filed his Amended

Motion for Postconviction Relief on June 6, 2012. The Defendant

alleges Officer Evers, the arresting officer and only material witness to

his firearm possession charges, was required to provide the testimony.

The Defendant asserts that Officer Evers admitted he never wrote a

report or signed the criminal report affidavit. However, the Assistant

State Attorney certified in the information that he received sworn

testimony from a material witness. Additionally, Officer Garboski, who

was present and witnessed the buy bust operation and Defendant’s

arrest, swore to the facts alleged in the criminal report affidavit.[12]

Defendant has failed to demonstrate how counsel should have known

to file in good faith a motion to dismiss the information on the grounds

that no sworn testimony was received by a material witness. As such,

[this] ground . . . is denied.

Dkt. 13-19 at 3 (court’s record citations omitted).

Upon review, the Court finds that the post-conviction court correctly found

that counsel was not ineffective where the Assistant State Attorney certified in the

information that he received sworn testimony from a material witness, and Officer

Garboski—who was present and witnessed the offense and arrest—swore to the

facts alleged in the criminal report affidavit. Consequently, Mr. Campbell fails to

meet his burden of proving that the state court unreasonably applied Strickland or

12 Attached to the state post-conviction court’s order denying this ground of ineffective

assistance of counsel is a copy of Officer Garboski’s criminal report affidavit in which he swears

to the facts included in the probable cause statement. Dkt. 13-19.

unreasonably determined the facts by rejecting this ground. 28 U.S.C.

§ 2254(d)(1), (d)(2).

Ground Fourteen

Mr. Campbell contends that his trial counsel rendered ineffective assistance

by not objecting to the prosecutor “fraudulently invoking” the state court’s subject

matter jurisdiction. In his reply Mr. Campbell alleges that trial counsel “should

have discovered that the charging informations in this case were fatally defective”

because “no reports were made by the arresting officer [Officer Evers] and the

officer that filed the probable cause affidavit [Officer Garboski] was not involved

in the arrest or a material witness to the firearm offense.” Dkt. 16 at 17. Mr.

Campbell asserts that trial counsel’s alleged error resulted in a violation of his right

to due process.

The state post-conviction court denied this ground of ineffective assistance

of counsel as follows:

[T]he Defendant alleges counsel was ineffective for failing to object to

the Court’s lack of subject matter jurisdiction. The Defendant alleges

the State failed to receive a sworn statement from a material witness as

required by rule 3.140(g). The Defendant alleges Officer Evers, the

only material witness, was required to either draft the criminal report

affidavit or provide a written or transcribed statement to be affixed to

the criminal report affidavit or arrest report. Rule 3.140(g) requires that

the prosecutor receive testimony under oath from a material witness

prior to filing the information. This rule neither requires this testimony

to be written or affixed to the criminal report affidavit or arrest report.

Further, because a claim that the prosecutor failed to receive sworn

testimony from a material witness is waived if not raised before the

defendant enters a plea to the merits of the charge, the Court finds that

failure to receive such testimony would not affect the Court’s subject

matter jurisdiction. See Fla. R. Crim. P. 3.140(g); Logan v. State, 1 So.

3d 1253, 1255 (Fla. 4th DCA 2009); Carbajal v. State, 75 So. 3d 258,

263 (Fla. 2011) (finding it illogical to conclude that an unauthorized

signature on an information strips the circuit court of subject matter

jurisdiction when a complete lack of signature may be waived by the

defendant). Therefore, the Defendant is not entitled to relief on this

claim.

Dkt. 13-16 at 7 (court’s record citations omitted).

A circuit court in Florida has subject matter jurisdiction over a felony case.

Fla. Stat. § 26.012(2)(d); see also Carbajal, 75 So. 3d at 262. Rule 3.140(g),

Florida Rules of Criminal Procedure, requires that the state attorney or a

designated assistant state attorney sign a felony information under oath affirming

good faith in instituting the prosecution and certifying the receipt of testimony

under oath from the material witness or witnesses to the offense. Before the filing

of the informations in Mr. Campbell’s case, a criminal report affidavit was filed

describing the factual basis for Mr. Campbell’s arrest.13 Officer Garboski, who

operated the recording device worn by the confidential informant and personally

13 The criminal report affidavit includes the following factual basis to establish probable cause

for Campbell’s arrest, Dkt. 13-19 (attachment to state post-conviction court’s order denying in

part Campbell’s Rule 3.850 motion):

Def[endant] sold a TPD CI (3) crack rocks for twenty dollars. . . . Once the deal

was done we moved in and arrested the Def[endant]. He had the buy money in his

right front pocket. The Def[endant] had (2) additional rocks in his cigarette pack.

The Def[endant] had a fully loaded Jennings 9mm. The substance that was sold

field tested positive by Ofc. Brown. The Def[endant] is a convicted felon and been

in prison for various felonies including homicide. . . . The firearm was concealed

in the Def[endant’s] waistband.

observed Mr. Campbell’s arrest by Officer Evers, signed the criminal report

affidavit upon being sworn by another officer.14 Officer Garboski verified, “I

swear the above statements are correct to the best of my knowledge.” Dkt. 13-19.

“The fellow officer rule provides a mechanism by which officers can rely on their

collective knowledge to act in the field. Under this rule, the collective knowledge

of officers investigating a crime is imputed to each officer and one officer may rely

on the knowledge and information possessed by another officer to establish

probable cause.” State v. Bowers, 87 So. 3d 704, 707 (Fla. 2012).

Mr. Campbell fails to show that a statement from Officer Evers was required

in order to confer subject matter jurisdiction upon the trial court. Consequently,

counsel had no basis to object to the trial court’s subject matter jurisdiction. See

Jones v. Barnes, 463 U.S. 745, 751 (1983) (stating that trial counsel has no duty to

raise a frivolous claim). Mr. Campbell fails to meet his burden of proving that the

state court either unreasonably applied Strickland or unreasonably determined the

facts by denying this ground of ineffective assistance of counsel. 28 U.S.C. §

2254(d)(1), (d)(2).

14 Florida law provides that a law enforcement officer is authorized to administer an oath when

engaged in the performance of official duties. See Fla. Stat. § 117.10. The affidavit shows that

Officer Garboski’s statements were “sworn and subscribed” to Officer S. Pickett, an officer

authorized to administer an oath.

CERTIFICATE OF APPEALABILITY

“The district court must issue or deny a certificate of appealability when it

enters a final order adverse to the applicant,” and if a certificate is issued, “the

court must state the specific issue or issues that satisfy the showing required by 28

U.S.C. § 2253(c)(2).” Rule 11(a), Rules Governing Section 2254 Proceedings for

the United States District Courts; see Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To merit a COA, Mr. Campbell must show that reasonable jurists would

find debatable both the merits of the underlying claims and the procedural issues

he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,

484 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001). Because he fails

to show that reasonable jurists would debate either the merits of the claims or the

procedural issues, Mr. Campbell is not entitled to either a COA or leave to appeal

in forma pauperis.

Accordingly, a certificate of appealability is denied. Leave to appeal in

forma pauperis is denied. Mr. Campbell must obtain permission from the circuit

court to appeal in forma pauperis.

CONCLUSION

The Court denies Mr. Campbell’s Petition with prejudice. Dkt. 1. The Clerk

is directed to enter judgment accordingly, terminate any pending motions, and

close the file.

DONE AND ORDERED at Tampa, Florida, on June 30, 2020.

/s/ William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record

Petitioner, pro se