Cozzens v. Secretary, Department of Corrections (Pinellas County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

WILLIAM COZZENS

Petitioner,

v. Case No. 8:18-cv-1346-T-02JSS

SECRETARY, Department of Corrections,

Respondent.

______________________________________/

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

William Cozzens petitions for the writ of habeas corpus under 28 U.S.C.

§ 2254 (Dkt. 1) and challenges the validity of his state conviction for burglary of

an unoccupied dwelling, for which conviction Mr. Cozzens serves thirty years

imprisonment. The Respondent admits the petition’s timeliness. (Dkt. 6 at 7).

Background and Procedural history1

The victim was out of town for work. A neighbor, Stuart Turnbull, saw a

man, later identified as Mr. Cozzens, exiting the victim’s house two times carrying

boxes. Mr. Turnbull called out to Mr. Cozzens but Mr. Cozzens ignored him,

placed the boxes in a van, and left. Mr. Turnbull called the victim to confirm that

1 This factual summary derives from Mr. Cozzens’s brief on direct appeal and the record. (Dkt.

7, Exs. 3 and 7).

the victim had not given anyone permission to enter his house. Mr. Turnbull called

the police and provided a description of the perpetrator. Based on both Mr.

Turnbull’s description and past dealings with Mr. Cozzens, the victim believed that

Mr. Cozzens was the man Mr. Turnbull saw removing the boxes from the house.

Upon returning from out of town, the victim attempted without success to retrieve

from Mr. Cozzens the items that Mr. Cozzens had taken from the home. Mr.

Cozzens was subsequently was arrested and, after receiving Miranda warnings,

admitted to the police that he had broken into the victim’s house. Mr. Cozzens was

charged with burglary. He proceeded to trial and was convicted by a jury. Mr.

Cozzens was sentenced as a violent career criminal to thirty years imprisonment.2

I. EXHAUSTION AND PROCEDURAL DEFAULT

The Respondent correctly argues that Grounds One, Two, and Four are

unexhausted and procedurally barred from federal review.

Grounds One and Two

In Ground One Mr. Cozzens contends that the victim committed perjury

during his deposition and at trial. In Ground Two Mr. Cozzens contends that he

was wrongfully convicted based on the allegedly perjured evidence. He argues

that these alleged errors violated his right to due process. The Respondent opposes

2 The state appellate court affirmed Mr. Cozzens’s conviction on direct appeal but remanded to

the trial court because the court imposed restitution without holding a hearing. (Dkt. 7, Ex. 5).

2

both Ground One and Ground Two as unexhausted and procedurally barred

because Mr. Cozzens did not present the federal dimension of either claim to the

state court.

A petitioner must present each claim to a state court before raising the claim

in federal court. “[E]xhaustion of state remedies requires that petitioners ‘fairly

presen[t]’ federal claims to the state courts in order to give the State the

opportunity to pass upon and correct’ alleged violations of its prisoners’ federal

rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995), Picard v. Connor, 404 U.S.

270, 275 (1971). Accord Rose v. Lundy, 455 U.S. 509, 518 19 (1982) (“A

rigorously enforced total exhaustion rule will encourage state prisoners to seek full

relief first from the state courts, thus giving those courts the first opportunity to

review all claims of constitutional error.”), and Upshaw v. Singletary, 70 F.3d 576,

578 (11th Cir. 1995) (“[T]he applicant must have fairly apprised the highest court

of his state with the appropriate jurisdiction of the federal rights which allegedly

were violated.”). Also, a petitioner must present to the federal court the same

claim presented to the state court. Picard, 404 U.S. at 275 (“[W]e have required a

state prisoner to present the state courts with the same claim he urges upon the

federal courts.”). “Mere similarity of claims is insufficient to exhaust.” Henry,

513 U.S. at 366.

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As Baldwin v. Reese, 541 U.S. 27, 32 (2004), explains, a petitioner must

alert the state court that he is raising a federal claim and not just a state law claim:

A litigant wishing to raise a federal issue can easily indicate the federal

law basis for his claim in a state-court petition or brief, for example, by

citing in conjunction with the claim the federal source of law on which

he relies or a case deciding such a claim on federal grounds, or by

simply labeling the claim “federal.”

As a consequence, “[i]t is not enough that all the facts necessary to support

the federal claim were before the state courts, or that a somewhat similar

state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982). See

also Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1271, 1345 (11th Cir. 2004)

(“The exhaustion doctrine requires a habeas applicant to do more than

scatter some makeshift needles in the haystack of the state court record.”)

(citations omitted).

When Mr. Cozzens presented these grounds to the state court in his

Rule 3.850 motion he neither cited a federal case, nor asserted a violation of

a federal constitutional right, nor labeled his grounds as “federal.” (Dkt. 7,

Ex. 4 at 6–8). Consequently, Mr. Cozzens did not “fairly present” the

federal grounds to the state court. See Baldwin, 541 U.S. at 27; Lucas v.

Sec’y, Dep’t of Corr., 682 F.3d 1342, 1352 (11th Cir. 2012) (“In other

words, ‘to exhaust state remedies fully the petitioner must make the state

court aware that the claims asserted present federal constitutional issues.’”)

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(quoting Jimenez v. Fla. Dep’t of Corr., 481 F.3d 1337, 1342 (11th Cir.

2007)); Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 458 (11th Cir.

2015) (finding that Baldwin and Lucas “stand for the proposition that a

petitioner with a claim that could arise under either state or federal law must

clearly indicate to the state courts that he intends to bring a federal claim”).

Mr. Cozzens’s failure to present to the state court a federal due

process claim challenging the allegedly perjured testimony deprived the state

court of a “full and fair opportunity to resolve any constitutional issues by

invoking one complete round of the State’s established appellate review

process.” Boerckel, 526 U.S. at 845. See also Preston, 785 F.3d at 460

(noting that “simply mentioning a phrase common to both state and federal

law . . . cannot constitute fairly presenting a federal claim to the state

courts”). Consequently, Grounds One and Two are unexhausted. State

procedural rules preclude Mr. Cozzens from returning to state court to

present his federal claims in either a second direct appeal or a second Rule

3.850 motion. Mr. Cozzens’s failure to properly exhaust his federal claims

in the state court results in a procedural default.

“If the petitioner has failed to exhaust state remedies that are no longer

available, that failure is a procedural default which will bar federal habeas relief,

unless either the cause and prejudice or the fundamental miscarriage of justice

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exception is applicable.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).

To establish cause for a procedural default, a petitioner “must demonstrate that

some objective factor external to the defense impeded the effort to raise the claim

properly in state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To

show prejudice, a petitioner must demonstrate not only that an error at the trial

created the possibility of prejudice but that the error worked to her actual and

substantial disadvantage and infected the entire trial with error of constitutional

dimension. United States v. Frady, 456 U.S. 152 (1982). In other words, a

petitioner must show at least a reasonable probability of a different outcome.

Henderson, 353 F.3d at 892.

Absent a showing of cause and prejudice, a petitioner may obtain federal

habeas review of a procedurally defaulted claim only if review is necessary to

correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446,

451 (2000); Murray v. Carrier, 477 U.S. 478, 495 96 (1986). A fundamental

miscarriage of justice occurs if a constitutional violation has probably resulted in

the conviction of someone who is “actually innocent.” Schlup v. Delo, 513 U.S.

298, 327 (1995); Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To

meet the “fundamental miscarriage of justice” exception, Mr. Cozzens must show

constitutional error coupled with “new reliable evidence — whether . . .

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exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence — that was not presented at trial.” Schlup, 513 U.S. at 324.

Mr. Cozzens fails to demonstrate cause for the default of his federal due

process claims because he fails to show that some “external factor” prevented him

from raising the federal claims in state court. Wright, 169 F.3d at 703. Mr.

Cozzens likewise fails to establish prejudice because he does not show that the

alleged errors infected the entire trial with constitutional error. Frady, 456 U.S. at

170. He cannot meet the “fundamental miscarriage of justice” exception because

he presents no “new reliable evidence” that he is actually innocent. Schlup, 513

U.S. at 327. Because Mr. Cozzens satisfies neither exception to procedural default,

both Ground One and Ground Two are procedurally barred from federal review.

Ground Four

Mr. Cozzens contends that the trial court erred by not providing him notice

of the State’s intent to seek application of the violent career criminal sentencing

enhancement. Mr. Cozzens asserts no federal constitutional violation resulting

from this alleged error. To the extent that the petition, liberally construed, see

Haines v. Kerner, 404 U.S. 519 (1972), asserts a federal due process claim, Mr.

Cozzens cannot obtain relief because he did not present this ground to the state

court, rendering the ground unexhausted. Because Florida procedural rules

preclude the filing of a second direct appeal, the ground is procedurally defaulted.

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Mr. Cozzens fails to demonstrate cause for the default of a federal due

process claims because he fails to show that some “external factor” prevented him

from raising the federal claim in state court. Wright, 169 F.3d at 703. Mr.

Cozzens likewise fails to establish prejudice because he does not show that the

alleged error infected the entire trial with constitutional error. Frady, 456 U.S. at

170. He cannot meet the “fundamental miscarriage of justice” exception because

he presents no “new reliable evidence” that he is actually innocent. Schlup, 513

U.S. at 327. Because Mr. Cozzens satisfies neither exception to procedural default,

Ground Four is procedurally barred from federal review.

II. MERITS

The remaining grounds in the petition are exhausted and entitled to review

on the merits.

Standard of Review

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

governs Mr. Cozzens’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

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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

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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

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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.

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

record that was before the state court:

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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. Cozzens 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. Cozzens’s post-conviction claims warrants

deference in this case.

Ineffective Assistance of Counsel

Mr. Cozzens 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)). Sims, 155 F.3d at 1305, explains that

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Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance

of counsel claim:

The law regarding ineffective assistance of counsel claims is well

settled and well documented. In Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Supreme Court set

forth a two-part test for analyzing ineffective assistance of counsel

claims. According to Strickland,

First, the defendant must show that counsel’s performance

was deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious as

to deprive the defendant of a fair trial, a trial whose result

is reliable.

Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

Strickland requires proof of both deficient performance and consequent prejudice.

Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an ineffective

assistance claim . . . to address both components of the inquiry if the defendant

makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When applying

Strickland, we are free to dispose of ineffectiveness claims on either of its two

grounds.”). “[C]ounsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s challenged

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conduct on the facts of the particular case, viewed as of the time of counsel’s

conduct.” Id. Strickland requires that “in light of all the circumstances, the

identified acts or omissions were outside the wide range of professionally

competent assistance.” Id.

Mr. Cozzens must demonstrate that counsel’s alleged error prejudiced the

defense because “[a]n error by counsel, even if professionally unreasonable, does

not warrant setting aside the judgment of a criminal proceeding if the error had no

effect on the judgment.” Id. at 691. To meet this burden, Mr. Cozzens must show

“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.

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.” Id. at 690–91. Mr. Cozzens 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

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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); accord Chandler v.

United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc) (“To state the

obvious: the trial lawyers, in every case, could have done something more or

something different. So, omissions are inevitable . . . . [T]he issue is not what is

possible or ‘what is prudent or appropriate, but only what is constitutionally

compelled.’”) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). The required

extent of counsel’s investigation was addressed in Hittson v. GDCP Warden, 759

F.3d 1210, 1267 (11th Cir. 2014):

[W]e have explained that “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, 104 S. Ct. at 2066 (emphasis

added). “[C]ounsel need not always investigate before pursuing or not

pursuing a line of defense. Investigation (even a nonexhaustive,

preliminary investigation) is not required for counsel reasonably to

decline to investigate a line of defense thoroughly.” Chandler, 218

F.3d at 1318. “In assessing the reasonableness of an attorney's

investigation . . . a court must consider not only the quantum of

evidence already known to counsel, but also whether the known

evidence would lead a reasonable attorney to investigate further.”

Wiggins, 539 U.S. at 527, 123 S. Ct. at 2538.

See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (confirming that counsel has

no duty to raise a frivolous claim).

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Under 28 U.S.C. § 2254(d), Mr. Cozzens must prove that the state court’s

decision was “(1) . . . contrary to, or involved an unreasonable application of,

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

States or (2) . . . based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” Sustaining a claim of

ineffective assistance of counsel is very difficult because “[t]he standards created

by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply

in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 106; see also Pinholster,

563 U.S. at 202 (An applicant must overcome this “‘doubly deferential’ standard

of Strickland and [the] AEDPA.”); Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907,

911 (11th Cir. 2011) (“Double deference is doubly difficult for a petitioner to

overcome, and it will be a rare case in which an ineffective assistance of counsel

claim that was denied on the merits in state court is found to merit relief in a

federal habeas proceeding.”); Pooler v. Sec’y, Dep’t of Corr., 702 F.3d 1252, 1270

(11th Cir. 2012) (“Because we must view Pooler’s ineffective counsel

claim — which is governed by the deferential Strickland test — through the lens

of AEDPA deference, the resulting standard of review is ‘doubly deferential.’”).

Because the state court correctly recognized that Strickland governs each

claim of ineffective assistance of counsel, Mr. Cozzens cannot meet the “contrary

to” test in Section 2254(d)(1). Mr. Cozzens instead must show that the state court

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unreasonably applied Strickland or unreasonably determined the facts. In

determining “reasonableness,” a federal petition for the writ of habeas corpus

authorizes determining only “whether the state habeas court was objectively

reasonable in its Strickland inquiry,” not an independent assessment of whether

counsel’s actions were reasonable. Putman v. Head, 268 F.3d 1223, 1244, n.17

(11th Cir. 2001). The presumption of correctness and the highly deferential

standard of review requires that the analysis of each claim begin with the state

court’s analysis.

Ground Three

Mr. Cozzens alleges in Ground Three of his federal petition “trial court error

and ineffective assistance of defense counsel [based on a ] wrongful VCC sentence

enhancement.” (Dkt. 1 at 7). More specifically, Mr. Cozzens contends that his

trial counsel rendered ineffective assistance by not objecting to the sentencing

enhancement “where no prior notice thereof was provided to the defendant.”

(Dkt. 1 at 7). Mr. Cozzens alleges that he “has been erroneously convicted of the

charged burglary offense and thereafter illegally and mistakenly given a VCC

enhanced sentence of thirty (30) years instead of the normal 69.15-month State

Prison sentence that should have been imposed, pursuant to Fla. Stat. 775.084,

when no mandatory notice of [the] State’s [i]ntent to seek an enhanced penalty was

17

provided therefore.” (Dkt. 1 at 7). Mr. Cozzens claims that trial counsel’s alleged

error resulted in a due process violation.

The state post-conviction court denied this ground as follows:

In his third ground, Defendant argues that counsel was ineffective for

failing to object to his VCC sentence enhancement on the basis that the

requisite notice was not provided. Defendant further argues that he was

prejudiced as a result of this failure because he was sentenced to 30

years incarceration rather than 69.15 months. Despite his contentions,

Defendant’s argument is refuted by the record.

Section 775.084(3)(c)(1) requires that notice be served on a defendant

and his attorney a sufficient time before the imposition of a VCC

sentence in order to allow for the preparation of a submission on the

defendant’s behalf. Here, the record reflects that such notice was

served in August of 2012. Moreover, even if Defendant did not receive

written notice that he qualified for the VCC enhancement, he received

actual notice at the end of his trial. As such, Defendant’s claim that

counsel was deficient for failing to object based upon lack of notice is

refuted by the record. See Massey v. State, 589 So. 2d 336, 337 (Fla.

5th DCA 1991), approved, 609 So. 2d 598 (Fla. 1992) (“While lack of

any notice, written or otherwise, is a due process violation, lack of

written notice, when actual notice is given, is not. The statutory

requirement for written notice is to insure (and offer a method of proof)

that actual notice was given.”); Bradford v. State, 567 So. 2d 911, 915

(Fla. 1st DCA 1990) (“It is clear that appellant did receive this record

notice of the state’s intentions at the end of the trial (27 days prior to

his sentencing), giving ample time to prepare a submission at

sentencing.”). Additionally, Defendant’s claim is further refuted by the

fact that his attorney prepared a submission that was presented on his

behalf at sentencing. See Roberts v. State, 559 So. 2d 289, 291 (Fla. 2d

DCA 1990), cause dismissed, 564 So. 2d 488 (Fla. 1990) (finding that

the purpose of the notice requirement is fulfilled when a defendant’s

attorney makes a presentation on his behalf prior to sentencing). In

view of the above, Defendant’s third ground is denied.

(Dkt. 7, Ex. 7-4 at 36) (court’s record citations omitted).

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The record shows that on August 9, 2012, (nearly two years before the June

2014 trial) the State provided to Mr. Cozzens and his counsel a notice of enhanced

penalty indicating that Mr. Cozzens qualified for both the habitual felony offender

enhancement and the violent career criminal enhancement. (Dkt. 7, Ex. 7-4 at 47).

The record also shows that after the jury returned its verdict the trial judge

confirmed in open court that the State had noticed Mr. Cozzens of the VCC

enhancement. (Dkt. 7, Ex. 2 at 352). Consequently, trial counsel had no basis to

object to a lack of notice as Mr. Cozzens alleges. Mr. Cozzens fails to establish

either deficient performance or resulting prejudice as Strickland requires.

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

either unreasonably applied Strickland or unreasonably determined the facts by

rejecting this ground of ineffective assistance of counsel. 28 U.S.C. § 2254(d)(1),

(d)(2).

Ground Five

Mr. Cozzens contends that his trial counsel rendered ineffective assistance

by not “more fully object[ing] and preserv[ing] for appeal purposes” an argument

that, despite the State acknowledging that Mr. Cozzens was not a “violent threat”

to society,3 the State nevertheless pursued the “conflicting position” that Mr.

3 During his argument at sentencing that the VCC enhancement should apply, the prosecutor

argued:

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Cozzens qualified as a violent career criminal for sentencing purposes. The

Respondent argues that this ground is procedurally barred because Mr. Cozzens

did not raise the ground in state court. However, a review of Mr. Cozzens’s Rule

3.850 motion shows that he made substantially similar claims of ineffective

assistance of counsel in grounds four and five of his Rule 3.850 motion. (Dkt. 7,

Ex. 7-4 at 11–13). To the extent that Mr. Cozzens’s raises in the federal petition

the same allegations that he presented to the state post-conviction court in his Rule

3.850 motion, he is not entitled to relief.

The state post-conviction court denied these grounds as follows:

Ground IV

In his fourth ground, Defendant argues that trial counsel was ineffective

for failing to object to the VCC sentencing enhancement absent

evidence of violence. Despite his contentions to the contrary,

Defendant did qualify for the VCC enhancement. Accordingly, his

attorney was not deficient in failing to object as Defendant has

suggested.

Pursuant to Florida law:

“‘Violent career criminal’ means a defendant for

whom the court must impose imprisonment

pursuant to paragraph (4)(d), if it finds that . . . [t]he

defendant has previously been convicted as an adult

He may not be a threat to society in terms of a violent threat, but he’s certainly a

threat with respect to property and given the opportunity to take things that don’t

belong to him out of other people[’s] homes; especially when they’re not in the

position to prevent it or stop it.

(Dkt. 7, Ex. 1 at 184).

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three or more times for an offense in this state or

other qualified offense that is . . . [a]ny forcible

felony, as described in s. 776.08 . . . .”

§ 775.084, Fla. Stat. Under§ 776.08, the definition of forcible felony

includes burglary. As noted above, Defendant was convicted of

burglary in this case. Thus, Defendant’s conviction falls within the

scope of the VCC statute.

Though Defendant argues that his particular crime should not be

considered for purposes of VCC enhancement, his assertions are

misguided. Defendant avers that because this case involves the

burglary of an unoccupied structure, his crime cannot be considered

violent in nature. Despite Defendant’s position, case law makes clear

that burglary of an unoccupied structure may qualify as a predicate

conviction under § 775.084. Cala v. State, 854 So. 2d 840, 840–41

(Fla. 3d DCA 2003) (citing Woody v. State, 847 So. 2d 566 (Fla. 3d

DCA 2003)); Delsol v. State, 837 So. 2d 428 (Fla. 3d DCA 2002);

Spikes v. State, 851 So. 2d 252 (Fla. 3d DCA 2003)); c.f. Fisher v. State,

129 So. 3d 468, 468–69 (Fla. 2d DCA 2014) (reversing VCC

designation, not because burglary of an unoccupied structure was not a

qualifying offense, but because the appellant did not have the requisite

number of prior offenses).

Since Defendant’s conviction qualifies as a predicate conviction under

the VCC statute, his attorney was not deficient in failing to object to

Defendant’s VCC enhancement on the basis alleged by Defendant. C.f.

Rogers v. State, 957 So. 2d 538, 549 (Fla. 2007) (noting that trial

counsel is not ineffective for failing to raise a frivolous objection). As

such, Defendant’s fourth ground is denied.

Ground V

In his fifth ground, Defendant argues that “counsel was ineffective for

failing to object to the State’s conflicted position on the Defendant’s

qualification for violent career criminal (VCC) sentence enhancement.”

Defendant claims that because the State commented that Defendant is

not a violent threat, he was not eligible for VCC enhancement. In light

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of this, he claims that his attorney was ineffective in failing to address

this issue.

Defendant’s . . . ground is denied because his attorney was not

ineffective for the reasons asserted therein. As discussed in Ground IV,

above, Defendant’s conviction in this case qualified for the VCC

enhancement. Thus, Defendant’s argument that counsel was

ineffective for failing to object to the enhancement is misguided.

Moreover, the record reflects that defense counsel did argue that

Defendant’s sentence should not be enhanced in view of the non-violent

nature of Defendant’s crime. As such, the record appears to refute

Defendant’s assertion. In view of the above, Defendant’s . . . ground is

denied.

(Dkt. 7, Ex. 7-4 at 36–38) (court’s record citations omitted).

The state post-conviction court determined that, as a matter of statutory

interpretation and as a matter of state law, Mr. Cozzens qualified as a violent

career criminal and application of the sentence enhancement was proper. This

court is bound by the state court’s interpretation of state law. Bradshaw v. Richey,

546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court’s interpretation

of state law . . . binds a federal court sitting in habeas corpus.”); McCullough v.

Singletary, 967 F.2d 530, 535–36 (11th Cir. 1992) (“A state’s interpretation of its

own laws or rules provides no basis for federal habeas corpus relief, since no

question of a constitutional nature is involved.”), cert. denied, 507 U.S. 975

(1993); Davis v. Jones, 506 F.3d 1325, 1332 (11th Cir. 2007) (same). Because

application of the sentencing enhancement was appropriate, trial counsel

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had no basis to object as Mr. Cozzens suggests. Mr. Cozzens fails to meet his

burden of proving that the state court unreasonably applied Strickland or

unreasonably determined the facts by rejecting this ground of ineffective assistance

of counsel. 28 U.S.C. § 2254(d)(1), (d)(2).

Ground Six

Mr. Cozzens contends that his trial counsel rendered ineffective assistance

by not objecting to an allegedly suggestive photopack identification. Mr. Cozzens

alleges that the photopack was “prejudicial and suggestively tainted” because (1)

two of the six photographs “were extremely dark, one . . . of which was the

defendant,” (2) “[t]he hair of the defendant/Appellant is much shorter than that of

the other five (5) subjects depicted,” and (3) “[a]ll of the photos were unfairly

hi[gh]lighted and overly prejudicial to the defendant/Appellant being the only

short-haired person and one . . . of the two . . . extremely dark photos, causing a

much greater opportunity for a ‘false positive’ or mistaken identification.” (Dkt. 1

at 12).

The state post-conviction court denied this ground as follows:

Defendant claims entitlement to relief, alleging ineffective assistance

of trial counsel. Specifically, he asserts that counsel was ineffective for

failing to object to photopack evidence, and testimony used to identify

him. Defendant claims that the photopack was unduly suggestive and

that his identification as a suspect was the result of the overly

suggestive photopack. He further alleges that he was prejudiced by

counsel’s failure to object to this evidence.

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. . . .

In its response, the State argues that the photopack was admissible

regardless of Defendant’s arguments and that there was nothing unduly

suggestive about the photopack. Upon review, the State’s argument is

well taken. As such, the Court will deny Defendant’s sixth ground.

Photographs used in lineups are not unduly suggestive if “the suspect’s

picture does not stand out more than those of the others, and the people

depicted all exhibit similar facial characteristics.” State v. Francois,

863 So. 2d 1288, 1289–90 (Fla. 4th DCA 2004). Here, Defendant

asserts that the photopack was unduly suggestive because: 1) two

photos (one being Defendant’s) are darker than the others; and 2)

Defendant’s hair is shorter than the other persons in the array.

Photographic arrays can consist of photographs that differ in ways such

as background color, clothing, hair color, and pose, and these

differences alone do not make the arrays suggestive. State v. Styles,

962 So. 2d 1031, 1034 (Fla. 3d DCA 2007), citing Lewis v. State, 572

So. 2d 908 (Fla. 1991); see also Green v. State, 641 So. 2d 391, 394

(Fla. 1994) (finding that photographic array was not suggestive even

though the defendant was pictured with a darker background than the

other photographs). In all six photographs in the relevant photopack,

the background color, hair color, and pose are remarkably similar.

Although Defendant’s face does appear slightly less illuminated than

some of the other photographs in the array, Defendant’s facial

characteristics are not substantially different from the other men

pictured in the array so as to give rise to undue suggestiveness. Despite

the fact that there are minor variations in hair length, the persons

depicted all appear to be in the same general age range and possess

similar facial features. See State v. Francois, 863 So. 2d at 1289–90

(“[g]enerally, photographic arrays have been upheld where they have

included a reasonable number of persons similar to any person then

suspected whose likeness is included in the array.”). Since this Court

finds nothing objectionable about the photo array in question, it holds

that counsel was not deficient in failing to move to suppress it. See

Parker v. State, 611 So. 2d 1224, 1227 (Fla. 1992) (“The failure to raise

a nonmeritorious issue is not ineffectiveness.”).

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Furthermore, regardless of whether the photopack was unnecessarily

suggestive, Defendant has not shown that any purported suggestiveness

of the photopack resulted in a substantial likelihood of irreparable

misidentification. See Fitzpatrick, 900 So. 2d at 517–518. The factors

to be considered in evaluating the likelihood of misidentification

include the opportunity of the witness to view the criminal at the time

of the crime, the witness’[s] degree of attention, the accuracy of the

witness’[s] prior description of the criminal, the level of certainty

demonstrated by the witness at the time of the out-of-court

identification, and the length of time between the crime and the

identification. Grant v. State, 390 So. 2d 341, 343 (Fla. 1980); State v.

Dorsey, 5 So. 3d 702 (Fla. 2d DCA 2009).

In this case, eyewitness Stuart Turnbull clearly observed the burglar, in

broad daylight, from 15 to 20 feet away. Based on his heightened

suspicion, it is clear that the witness was paying a high degree of

attention to the events. Additionally, the record reflects that Mr.

Turnbull participated in the photo identification on the same day he

witnessed the crime. Thus, based upon the record, it is clear that any

suggestiveness in the photopack did not result in a substantial

likelihood of irreparable misidentification.

In view of the above discussion, counsel was not ineffective in failing

to object to the admission of the photo array or the subsequent related

testimony. As such, Defendant’s sixth ground is denied.

A defendant possesses a due process right to exclude identification

testimony resulting from an unnecessarily suggestive identification procedure

conducive to irreparable mistaken identification. Manson v. Brathwaite, 432 U.S.

98, 104 (1977); Stovall v. Denno, 388 U.S. 293, 301–02 (1967). A suggestive

identification procedure, without more, results in no due process violation. Neil v.

Biggers, 409 U.S. 188, 198–99 (1972). An assessment of the constitutionality of a

trial court’s decision to admit an out-of-court identification is a two-step analysis.

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First, the court must determine whether the original identification procedure was

unduly suggestive. Dobbs v. Kemp, 790 F.2d 1499, 1506 (11th Cir. 1986),

modified in part on other grounds, 809 F.2d 750 (11th Cir.), cert. denied, 481 U.S.

1059 (1987). If not, the inquiry is over. See Perry v. New Hampshire, 565 U.S.

228, 233 (2012) (“Our decisions . . . turn on the presence of state action and aim to

deter police from rigging identification procedures, for example, at a lineup, show

up, or photograph array. When no improper law enforcement activity is involved,

we hold, it suffices to test reliability through the rights and opportunities generally

designed for that purpose, notably, the presence of counsel at post-indictment

lineups, vigorous cross-examination, protective rules of evidence, and jury

instructions on both the fallibility of eyewitness identification and the requirement

that guilt be proved beyond a reasonable doubt.”). Only if the original

identification procedure was unduly suggestive must the court then consider

whether, under the totality of the circumstances, the identification was nonetheless

reliable. See Perry, 565 U.S. at 241 (“The due process check for reliability,

Brathwaite made plain, comes into play only after the defendant establishes

improper police conduct.”).

Mr. Cozzens does not overcome with clear and convincing evidence the

presumption of correctness afforded the state post-conviction court’s factual

findings. 28 U.S.C. § 2254(e)(1). Furthermore, he fails to overcome the strong

26

presumption that counsel’s decisions regarding the identification evidence were

made in the exercise of professional judgment. Strickland, 466 U.S. at 690. Even

if the original identification procedure was unduly suggestive, nonetheless, it is

objectively reasonable to conclude under the totality of the circumstances, that the

procedures employed in Mr. Cozzens’s case did not create a substantial risk of

irreparable misidentification. Witness Stuart Turnbull testified that he saw a man,

later identified as Mr. Cozzens, carry two boxes out of the victim’s house. (Dkt. 7,

Ex. 2 at 173). Mr. Turnbull testified at trial that he observed Mr. Cozzens in

“broad daylight” from “15 to 20 feet” away and had nothing obstructing his view

of Mr. Cozzens’s face. (Id. at 174). Officer Dale Johnson testified that Mr.

Turnbull identified Mr. Cozzens in the photopack “within an hour or so” of the

police responding to the victim’s house. (Id. at 231–32). Detective Thomas Tully

testified that Mr. Cozzens, after receiving Miranda warnings, admitted that he

broke into the victim’s house. (Id. at 264). The state record bears out the

objectively reasonable determination that the eyewitness had ample opportunity to

view Mr. Cozzens at the time of crime and, therefore, it is objectively reasonable to

conclude the identification evidence was reliable. Mr. Cozzens fails to show there

was any reasonable probability of a different outcome at trial if his trial counsel

had objected to the photopack evidence. Consequently, Mr. Cozzens fails to meet

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

27

unreasonably determined the facts by rejecting this ground of ineffective assistance

of counsel. 28 U.S.C. § 2254(d)(1), (d)(2).

Accordingly, Mr. Cozzens’s petition for the writ of habeas corpus (Dkt. 1) is

DENIED. The Clerk must enter a judgment against Mr. Cozzens and CLOSE this

case.

DENIAL OF BOTH A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Mr. Cozzens is not entitled to a certificate of appealability (“COA”). Under

Section 2253(c)(1), a prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court’s denial of his petition. Rather, a district court

must first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

To merit a COA, Mr. Cozzens 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, 478

(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. Cozzens is entitled to neither a COA nor leave to appeal in

forma pauperis.

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A certificate of appealability is DENIED. Leave to appeal in forma

pauperis is DENIED. Mr. Cozzens must obtain permission from the circuit court

to appeal in forma pauperis.

DONE and ORDERED on August 3, 2020.

WILLIAM F.

UNITED STATES DISTRICT JUDGE

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