Copeland v. Florida Attorney General

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

WILLIAM R. COPELAND,

Petitioner,

v. Case No. 3:17-cv-735-J-32MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

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

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

1. He is proceeding on an Amended Petition challenging a state court (Flagler

County, Florida) judgment of conviction for attempted first degree murder,

aggravated battery with a firearm, and shooting into a building. Doc. 10. He is

currently serving a forty-year term of incarceration to be followed by a life term

of probation. Id. Respondents have responded. See Doc. 18; Response.1

1 Respondents also filed numerous exhibits in support of their Response.

See Doc. 19. The Court cites to the exhibits as “Resp. Ex.”

Petitioner declined to file a reply and instead filed a Notice that he intends to

rely on the claims as alleged in his Amended Petition. See Doc. 21. This case is

ripe for review.

II. Governing Legal Principles

A. Standard of Review

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

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

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

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

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

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

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

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

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

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

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

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

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

merits is unaccompanied by an explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that

does provide a relevant rationale. It should then

presume that the unexplained decision adopted the

same reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

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

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

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

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

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

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

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

States,” or “was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(1),

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

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

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

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

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

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

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

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

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

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

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

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

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

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

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

deference to state courts by conflating error (even clear

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

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

application of federal law is different from an incorrect

application of federal law.”).

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

citations modified).

B. Exhaustion and Procedural Default

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

habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]”

every issue raised in his federal petition to the state’s highest court, either on

direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351

(1989) (emphasis omitted). Thus, to properly exhaust a claim, “state prisoners

must give the state courts one full opportunity to resolve any constitutional

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

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

v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the

state collateral review process as well as the direct appeal process.”).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘opportunity to pass upon and correct’ alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor, 404

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,” the

prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

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

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[2] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[3] supra, at 84–85, 97 S. Ct.

2497. A state court’s invocation of a procedural rule to

deny a prisoner’s claims precludes federal review of the

claims if, among other requisites, the state procedural

rule is a nonfederal ground adequate to support the

judgment and the rule is firmly established and

consistently followed. See, e.g., Walker v. Martin, 562

U.S. --, --, 131 S. Ct. 1120, 1127–1128, 179 L.Ed.2d 62

(2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct. 612,

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

procedurally defaulted claims from being heard is not

without exceptions. A prisoner may obtain federal

review of a defaulted claim by showing cause for the

default and prejudice from a violation of federal law.

See Coleman, 501 U.S., at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been

procedurally defaulted, a federal court may still consider the claim if a state

habeas petitioner can show either (1) cause for and actual prejudice from the

default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause and

prejudice,

the procedural default “must result from some objective

factor external to the defense that prevented [him] from

raising the claim and which cannot be fairly

attributable to his own conduct.” McCoy v. Newsome,

953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Carrier,

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

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

477 U.S. at 488, 106 S. Ct. 2639).[4] Under the prejudice

prong, [a petitioner] must show that “the errors at trial

actually and substantially disadvantaged his defense

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

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

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

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

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would result.

The Eleventh Circuit has explained:

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

remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence of

a showing of cause for the procedural default.” Carrier,

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

exceedingly narrow in scope,” however, and requires

proof of actual innocence, not just legal innocence.

Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001).

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

is more likely than not that no reasonable juror would have convicted him’ of

the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

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

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

III. Petitioner’s Claims and Analysis

A. Ground One

Petitioner argues that his trial attorney was ineffective for failing to file

a motion to suppress evidence of the firearm. Doc. 10 at 5. According to

Petitioner, Detective Steve Brandt, upon finding the firearm, took the evidence

out of a brown bag and placed it in a black bag. Id. Petitioner contends that

Detective Brandt then took a photo of the firearm in the black bag, “in an

attempt to make it appear as [if] the firearm was found in the black bag.” Id.

Because Detective Brandt tampered with such evidence, Petitioner alleges

counsel should have sought suppression.

Petitioner raised this claim in his second Florida Rule of Criminal

Procedure 3.850 motion for postconviction relief. Resp. Ex. T at 9-11. The trial

court dismissed the claim with prejudice, finding in pertinent part as follows:

Defendant filed this Second or Successive Motion

for Postconviction Relief on January 24, 2017. He

alleges Detective Brandt said that the firearm would be

found in a brown bag, like the witness Wiggins said, but

the gun was actually found in Defendant’s black Gerber

bag. Therefore, Defendant surmises that law

enforcement must have moved the gun to his bag in

order to establish probable cause for his arrest. He

claims that his counsel was ineffective for failing to file

a motion to suppress the firearm and for failing to

preserve the issue of evidence tampering for appeal. He

claims that he could not have filed this issue in his first

motion for postconviction relief because he did not have

the documents and discovery from counsel.

A defendant is entitled to file one motion for

postconviction relief, and claims raised in a successive

motion may be denied if they could have been raised in

the prior postconviction motion. Owen v. Crosby, 854

So. 2d 182 (Fla. 2003). Florida Rule of Criminal

Procedure 3.850(h)(2) states:

A second or successive motion is an

extraordinary pleading. Accordingly, a

court may dismiss a second or successive

motion if the court finds that it fails to

allege new or different grounds or, if new

and different grounds are alleged, the

judge finds that the failure of the defendant

or the attorney to assert those grounds in a

prior motion constituted an abuse of the

procedure or there was no good cause for

the failure of the defendant or defendant’s

counsel to have asserted those grounds in a

prior motion.

The Court finds that the grounds in the

successive motion are different from the grounds raised

in Defendant’s prior motion; however, the Court finds

no good cause for Defendant’s failure to assert them in

his first motion. Defendant makes no allegation that

this evidence is newly discovered, and any such

allegation would fail as a matter of law. Defendant was

present during trial when the witnesses testified as to

the color of the bag where the firearm was found. If

Defendant wished to review the trial transcripts prior

to filing his initial motion, then he should have

requested those documents prior to filing. Defendant’s

Exhibit A to the second, successive motion

demonstrates that Defendant did not request

documents from his attorney until May 3, 2016, after

the ruling on his first motion. Therefore, Defendant’s

motion shall be dismissed with prejudice, as it is

procedurally barred because Defendant shows no good

cause for failing to assert these grounds in his prior

motion.

Further, Defendant’s motion fails substantively

as well. As explained in the Interim Order and Final

Order to Defendant’s first motion for postconviction

relief, the FCSO[5] had ample probable cause to arrest

Defendant. Ex. A, B. The FCSO had no need to

fabricate probable cause for Defendant’s arrest, and

contrary to Defendant’s assertion in his motion, there

was direct evidence presented against him at trial,

which the jury weighed and found him guilty. In

addition, Defendant has no evidence or affidavits to

support his bare allegation that the FCSO tampered

with evidence, other than the trial testimony regarding

the color of the bag in which the firearm was found. The

Court finds neither deficient performance nor

prejudice, under the Strickland standard, for counsel’s

alleged failure to file a motion to suppress. Strickland

v. Washington, 466 U.S. 668, 687-88 (1984). Likewise,

the Court finds no ineffective assistance of counsel for

counsel’s alleged failure to preserve the issue of

evidence tampering for appeal.

Resp. Ex. T at 24-27. The Fifth District Court of Appeal per curiam affirmed the

trial court’s summary denial without a written opinion. Resp. Ex. X.

5 Flagler County Sherriff’s Office.

Respondents argue Petitioner is barred from raising this claim on federal

habeas review because the state court declined to consider it due to an

independent and adequate state procedural bar. Resp. at 9. The Court agrees.

The state court’s finding that the Rule 3.850 motion raising this claim

was successive rests on independent and adequate state grounds that preclude

federal habeas review. See, e.g., Jennings v. McDonough, 490 F.3d 1230, 1247-

48 (11th Cir. 2007) (holding that a state court’s conclusion that the petitioner’s

claims were procedurally barred by Florida’s rule against successive

postconviction motions was a state law ground independent of the federal

question and adequate to support the state court’s judgment, thereby rendering

the claims procedurally defaulted on federal habeas review). Although the trial

court alternatively found no merit to the claim, this Court must honor the state

court’s reliance on a state-law ground for rejecting this claim because the state

court explicitly invoked a state procedural rule as a separate and independent

basis for its decision. Harris v. Reed, 489 U.S. 255, 264 n.10 (1989). Of note,

“where a state court has ruled in the alternative, addressing both the

independent state procedural ground and the merits of the federal claim, the

federal court should apply the state procedural bar and decline to reach the

merits of the claim.” Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994)

(citations omitted); see also Marek v. Singletary, 62 F.3d 1295, 1301 (11th Cir.

1995) (finding that when a state court addresses both the independent state

procedural ground and the merits, the federal court should apply the bar and

decline to reach the merits). As such, this claim is procedurally defaulted, and

Petitioner fails to allege or show cause for and prejudice from this procedural

default. He also fails to meet the fundamental miscarriage of justice exception.

Ground One is due to be denied.

B. Ground Two

Petitioner argues the following: “[s]tate obtained conviction by coercing

the witness by the state’s own admissions on March 28, 2016 at a[n] evidentiary

hearing[.] The state clarifying stat[ed]: [I] don’t want the court to think that the

state was arguing that they actually witnessed Defendant firing the shots

because that was not the case. [I]f that was not the case and the victim and

state have two different statements which does not coincide with each other.”

Doc. 10 at 6.

Respondents argue that Petitioner failed to raise this claim in state court,

and thus, it is unexhausted and procedurally defaulted. Resp. at 10. In his

Amended Petition, Petitioner provides that he raised this issue on direct appeal,

see Doc. 10 at 6; however, a review of Petitioner’s initial brief on appeal shows

no claim regarding the state’s alleged coercion of an unknown witness, Resp.

Ex. I. Petitioner also contends he raised this issue in a Rule 3.850 motion, which

the trial court allegedly denied on June 2, 2017. See Doc. 10 at 7. However,

while the record before this Court shows that the trial court entered an order

on June 2, 2017, denying a “second successive” Rule 3.850 motion, Resp. Ex. Z

at 29-32; that June 2, 2017, order and the Rule 3.850 motion that the trial court

denied on that date do not contain the claim currently before the Court in

Ground Two, see id. at 11-32.

Instead, a review of Petitioner’s state court docket shows that he first

raised this claim in state court through a successive Rule 3.850 motion filed on

June 25, 2017.6 State v. Copeland, No. 2011-CF-000533 (Fla. 7th Cir. Ct.). On

July 12, 2017, the trial court dismissed the June 25, 2017, motion as legally

insufficient because Petitioner failed to satisfy the oath requirement of Rule

3.850(c) but granted Petitioner sixty days to file an amended motion. Id.

Petitioner filed his amended motion raising this claim on July 19, 2017, but

thereafter, filed a motion to voluntarily dismiss his July 19, 2017, motion. Id.

The trial court granted Petitioner’s motion to dismiss on March 26, 2018. Id. As

such, it appears that this claim is unexhausted and procedurally barred.

Further, Petitioner fails to argue or show cause for or prejudice from this

procedural bar; and he does not allege he is entitled to the fundamental

miscarriage of justice exception.

In any event, while the nature of Petitioner’s claim is unclear, he appears

to be challenging the state’s statement made during the trial court’s evidentiary

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

hearing on ground one of his initial Rule 3.850 motion.7 Resp. Ex. O. The trial

court held a bifurcated evidentiary hearing on the claim on March 9, 2016, and

March 28, 2016. Resp. Ex. N at 124-44. During the March 28, 2016, hearing,

the state made the following statement:

Now, as you know, the issue here is whether or

not there was probable cause on that particular night

to detain Mr. Copeland. The State does not make any

argument saying that he was not detained, and that

there needed to be probable cause up until that point.

So we concede that point. But the State also argues that

there was sufficient probable cause to detain him at the

time that he made his statement to law enforcement.

And the thing I wanted to clarify for the Court

was, I didn’t want the Court to think the State was

arguing that, that the victims in the case or the

witnesses, Corina Venezia, I think the two 9-1-1 calls

that were entered into evidence, one which was made

by Corina Venezia, the other by her mother Josephine

Venezia saying that they knew that it was Mr.

Copeland.

I don’t want the Court to think that the

State was arguing that they actually witnessed

Mr. Copeland firing the shots because that was

not the case. However, they knew that it was Mr.

Copeland that had fired the shots because earlier that

day there had been a conversation where Corina

Venezia, who was the ex-girlfriend of Mr. Copeland,

they had a child, a daughter together, Corina Venezia

had asked – there was a discussion about child support,

and that discussion turned into an argument during

7 In ground one of his initial Rule 3.850 motion, Petitioner argued that

trial counsel was ineffective for failing to “petition the trial court for said de

facto arrest without probable cause” in violation of his Fourth Amendment

rights. Resp. Ex. N at 8.

which Mr. Copeland threatened Corina Venezia and

her family.

Resp. Ex. O at 14 (emphasis added). Reading this challenged statement in

context, Petitioner appears to claim this statement conflicts with the testimony

at trial because Corina Venezia and Josephine Venezia testified they saw

Petitioner fire the shots. However, Petitioner is mistaken. It was the victim,

Accursio Venezia, who testified that after being hit by the second shot, he was

“looking straight, ahead, and [saw] William Copeland shooting at [him].” Resp.

Ex. C at 115. Corina Venezia testified she did not see who fired the shots, see

id. at 87, and Josephine Venezia did not testify at trial. As such, the state did

not present conflicting testimony from Corina or Josephine Venezia, and this

claim is due to be denied.

C. Ground Three

Petitioner raises a claim of newly discovered evidence in the form of sworn

statements from two fellow Century Correctional Institution inmates –

Kenneth Huffman Jr. and Tarvarus Lee Cooper – in which they attest that

someone named “Pooty” committed the crime for which Petitioner was

convicted. Doc. 10 at 8. The Court addresses each affidavit in turn.

i. Cooper Affidavit

Petitioner raised his newly discovered evidence claim regarding Cooper’s

affidavit in a successive Rule 3.850 motion filed on or about May 15, 2017. Resp.

Ex. Z at 11-19. The trial court summarily denied the claim as follows:

Defendant filed the instant motion, his third “bite

at the apple.” This second successive motion is

untimely because it was not filed within the two-year

limitations period provided by Rule 3.850(b); however,

Defendant seeks an exception to that rule alleging

newly discovered evidence under Rule 3.850(b)(1). He

requests that his sentence be set aside and his

conviction vacated based upon this newly discovered

evidence.

Defendant attaches an affidavit by Tarvarus Lee

Cooper, D.C. #R50868, a fellow inmate, who swears

that someone named “Pooty” committed the crime for

which Defendant is now incarcerated. The affidavit

indicates that, on an unidentified date, Mr. Cooper

drove Pooty to an unidentified house in Palm Coast;

Mr. Cooper waited while Pooty went to the front door

with a brown bag; Pooty walked to the back of the house

and Mr. Cooper heard gun shots, then Pooty ran back

to the car and asked Mr. Cooper to drive him back to

his house. Mr. Cooper’s affidavit also attempts to

establish an alibi for Defendant by stating that

Defendant did not go out with him that night because

“[Defendant] said it was late and that he had work

[indiscernible] the morning.”

A defendant must prove two factors to succeed on

a motion for postconviction relief on the grounds of

newly discovered evidence: (l) the evidence “must have

been unknown by the trial court, by the party, or by

counsel at the time of trial, and it must appear that

defendant or his counsel could not have known them by

the use of diligence;” and (2) the newly discovered

evidence “must be of such nature that it would probably

produce an acquittal on retrial.” Jones v. State, 591 So.

2d 911, 915-16 (Fla. 1991) (emphasis in original). “The

defense known in law as an ‘alibi’ is that, at the time of

the commission of the crime charged in the

[information or] indictment, the defendant was at a

different place, so that he could not have committed it.”

Blackwell v. State, 79 Fla. 709, 86 So. 224, 227 (Fla.

1920).

The Court finds that Mr. Cooper’s affidavit is

inherently incredible and obviously immaterial to the

verdict and sentence. Davis v. State, 26 So. 3d 519 (Fla.

2009). As written - without any identification of Pooty,

the date that this allegedly occurred, the address of the

home, or any reason why Pooty would shoot into a

house - the affidavit is not of a nature that would

produce an acquittal on retrial. To the extent that the

affidavit attempts to establish an alibi for Defendant,

it is refuted by the record by Defendant’s own testimony

that he was near the victim’s residence at the time of

the shooting. See, e.g., Exhibit A at 4-6.[8]

The Court finds that Mr. Cooper’s flimsy affidavit

does not contradict the overwhelming evidence that

was presented against Defendant over the three-day

trial. Defendant admitted that he had motive, and he

made threats against the victim’s daughter the day of

the shooting (an admission corroborated by other

evidence). Ex. A at 5-6. Defendant admitted (and his

admission was corroborated) that he had a bag that

night, and he handed that bag to Anthony Wiggins. Ex.

A at 6. Testimony at the trial established that law

enforcement found - inside that bag - the firearm that

had been used in the shooting. Exhibit B, Trial

Transcript at 358, 371. Defendant’s claim of newly

discovered evidence fails.

8 The trial court is referring to the statements Petitioner made during the

trial court’s evidentiary hearing on his initial Rule 3.850 motion.

Upon review of the instant motion in conjunction

with the record, the Court finds the motion to be

frivolous.

Resp. Ex. Z at 29-32. Petitioner appealed the trial court’s denial, Resp. Ex. AA,

and the Fifth DCA per curiam affirmed the trial court’s denial without a written

opinion, Resp. Ex. BB.

Respondents argues that this claim is unexhausted because in appealing

the trial court’s order, Petitioner only argued the trial court should have

granted an evidentiary hearing, and thus, he “waived any error as to the rulings

of the trial judge . . . .” Resp. at 11. Respondents are mistaken. When a Rule

3.850 motion is summarily denied without an evidentiary hearing, a prisoner is

not required to file an appellate brief when appealing the order; and if he

chooses to do so and raises only some issues in the brief, he does not waive

review of the remaining issues. See Fla. R. App. P. 9.141(b)(2)(C); see also

Cortes v. Gladish, 2016 F. App’x 897, 899 (11th Cir. 2007). As such, this claim

is exhausted. To the extent that the Fifth DCA affirmed the trial court’s denial

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

deferential standard for federal court review of state court adjudications.

To provide context, the Court summarizes the evidence presented at trial.

Corina Venezia testified that she and Petitioner dated on and off for four years

and that they have a daughter together. Resp. Ex. C at 71. In May of 2011,

Corina and Petitioner broke up, but he still saw his daughter three to four times

a week. Id. at 72. At that time, Corina and her daughter lived with her parents,

Josephine Venezia and the victim Accursio Venezia. Id. at 72. Corina testified

that on May 18, 2011, she went to Walmart with a prepaid card that Petitioner

had given her to buy formula and diapers for their daughter. Id. at 74. When

the prepaid card got declined for insufficient funds, Corina called Petitioner and

they got into an argument about money. Id. at 76. She explained that the

argument eventually turned threatening, and Petitioner told Corina “I’ll kill

you” and also threatened to kill her family. Id. at 78. Corina testified she told

her father about the threatening statements that Petitioner made, and

concerned, Accursio called the police and told law enforcement about the

threatening conversation Corina had with Petitioner earlier that day. Id. at 79-

80. Corina explained that later that day, she, her mother, her daughter, and

her father went to church and returned home around 9:30 p.m. Id. at 81. She

testified that around 10:30 p.m., they all went upstairs to their rooms to sleep,

and once they were upstairs, the doorbell rang. Id. at 82-83. Corina testified

that she immediately knew that it was Petitioner and that she “knew that there

was trouble.” Id. at 84.

According to Corina, she got up and went to get her father from his room.

Id. at 84. They went downstairs and looked out the glass panels next to the front

door but did not see anyone. Id. at 85. She explained that while she was still

looking through the front windows, her father went to the kitchen area and

about ten seconds later, she heard three gunshots. Id. at 85. Corina said she

immediately ran upstairs, and she and her mother called 911. Id. at 86. She

stated that her father eventually walked upstairs and sat down, and he was

bleeding. Id. Paramedics arrived about ten minutes later and transported her

father to the hospital. Id. at 87.

Accursio testified that he recalled calling the police during the day of May

18, 2011, because of a threatening conversation between his daughter and

Petitioner. Id. at 110. He further stated that he and his family later went to

church and went to bed around 10:30 p.m. that evening. Id. at 111. He testified

that around 11:30 p.m. or so, the doorbell rang, so he got up and saw Corina

going down the stairs, as well. Id. at 112. He explained he looked out the front

windows but saw no one. Id. He then turned around and went to the kitchen in

an attempt to get his pellet gun from behind the refrigerator, but before he could

get to it, he heard gunshots coming from the sliding glass doors leading to his

backyard patio. Id. at 114-15. He explained that he immediately ducked, but

the second gunshot hit him. He testified that while this was happening, he was

“looking straight ahead, and there’s William Copeland shooting at me.” Id. at

115. He testified that Petitioner was standing directly in front of the sliding

glass doors about 10 to 12 feet away, Petitioner was wearing a black shirt, and

holding the gun pushed against the back-sliding window. Id. at 115, 118.

Accursio then ran upstairs to make sure his family was ok, and only then

noticed he was bleeding. Id. at 116.

Deputy Steve Carr testified that he examined the crime scene

immediately after the shooting and found shell casings by the sliding glass door.

Id. at 146. He also found two bullets inside the home, one that had ricocheted

off the refrigerator and one that was next to the baseboard by the front door. Id.

at 147. Shaun Fuller testified he knows Petitioner as one of his son’s friends.

Id. at 173. According to Fuller on May 18, 2011, Petitioner arrived at Fuller’s

house around 9:45 p.m. and asked Fuller to drive him to Walmart to pick up

supplies for his daughter. Id. at 179. Fuller explained that Petitioner was

holding a small black bag when he arrived at Fuller’s home. Id. Fuller agreed

to drive Petitioner, so he, Brandi Johnson (Fuller’s godson), and Petitioner got

into Fuller’s 1994 green Jeep Grand Cherokee and began to drive; however, once

in the car, Petitioner asked Fuller to take him to his girlfriend’s house instead.

Id. at 184. When Fuller got to the corner of Lakeview and Laramie Drive,

Petitioner asked Fuller to pull over, so Fuller pulled to the right-side of the road.

Id. at 185. Petitioner then got out of the vehicle and Fuller leaned his seat back

to take a nap. He and Brandi remained inside the vehicle, waiting on Petitioner

to return. Id. at 187. Fuller did not recall which direction Petitioner went once

he got out of the car. Id. at 188. Fuller said he fell asleep and when Petitioner

came back to the car, he appeared out of breath. Id. at 789. According to Fuller,

Petitioner then asked Fuller to drive him to McDonald’s. Id. at 191. Fuller

agreed and once they arrived at the McDonald’s, Petitioner got out of the car

and walked to another car. Id. at 194. Fuller then proceeded to take Petitioner

home, but once they got to Petitioner’s house, police pulled Fuller over and he,

Brandi, and Petitioner were taken into custody. Id.

Brandi Johnson recalled Petitioner coming over on May 18, 2011, to ask

for a ride. Id. at 249. He explained Petitioner was carrying a black satchel with

one strap and that the bag “had a baby on the front of it.” Id. at 250. He testified

that he and Fuller gave Petitioner a ride to a residential golf course off

Lakeview. Id. at 255. He said that once they got there, he saw Petitioner get out

of the car and walk across the golf course while holding the black satchel. Id. at

256, 60. Fuller went to sleep, so Brandi pulled out his phone and got on

Facebook. Id. at 256. He explained he then heard gunshots coming from the

direction that Petitioner walked towards after getting out of the car. Id. at 258.

Petitioner then came back to the car still holding the black bag and asked them

to drive to the McDonald’s, where Petitioner then handed the black satchel to

someone in a pickup truck. Id. at 261. Brandi testified Petitioner walked to the

passenger said of the pickup truck to hand off the bag, and though he could not

see who was in the passenger seat of the truck, it appeared that a white female

was driving the pickup truck. Id. at 261. He explained that after Petitioner

made the hand off, they drove to Petitioner’s home where they were arrested.

Id. at 263.

Kaja Daniels testified that on May 18, 2011, Petitioner and her ex-

boyfriend, Anthony Wiggins, spoke to each other by telephone multiple times

throughout the day. Id. at 329. She testified that eventually that day, around

11:30 or 11:45 p.m., Wiggins received a call from Petitioner, and after the call,

she drove Wiggins in her truck to McDonald’s. Id. at 332. She said she and

Wiggins waited in the parking lot for about five minutes until Petitioner arrived

in a Jeep. Id. at 334-35. Petitioner got out of the Jeep and approached the

passenger side of her truck where Wiggins was sitting. Id. at 336. She explained

that Petitioner and Wiggins had a conversation and then Petitioner passed

Wiggins a black bag. Id. at 337. Daniels stated she and Wiggins then drove back

to her house, Wiggins put the bag in her room, and they went to sleep. Id. at

338. She said she never looked in the bag and does not recall if Wiggins looked

in the bag. Id. She stated that the next morning, Wiggins got a phone call from

Petitioner and Wiggins became noticeably upset. Id. at 339. Thereafter, the

police arrived at Daniels’s home and arrested Daniels and Wiggins. Id. Police

then found a bag with a gun in Daniels’s room. Id. at 340.

Officer Steve Brandt testified that the morning after the shooting, he

received briefing that the gun may be in the possesson of Anthony Wiggins. Id.

at 362. Brandt made contact with Wiggins while at Daniels’s home, and Wiggins

advised that the firearm was in Daniels’s bedroom and was located in a bag in

the closet. Id. at 364. Wiggins then pointed Brandt to the closet where the

firearm was located in a brown bag, and then Wiggins pointed to the bed and

said that the black bag that the firearm was originally in was under the bed.

Id. at 364. Brandt recovered the firearm and the black bag. Id. at 365. Laura

Draga testified she is a firearms analyst for FDLE. Id. at 345. She explained

she received the following evidence in relation to this case: a .32 semiautomatic

pistol, two fired bullets, and three fired .32 auto caliber cartridge cases. Id. at

355. She determined that the bullets and cartridges were fired from the .32

caliber firearm that was recovered from the closet at Daniels’s home. Id. at 358,

68.

Lieutenant Christopher Sepe testified that he conducted Petitioner’s

initial police interrogation. Id. at 532. A DVD recording of the interview was

played for the jury. Id. at 538-90. During the interview, Petitioner tells police

that he did not shoot the victim but knows who did and states that he tried to

convince the shooter not to commit the crime. Id. at 558. Petitioner eventually

advised police that the shooter’s name is “Pootie,” but that he cannot remember

Pootie’s real name. Id. at 564. He advised that Pootie drives a pickup truck and

currently has the gun in his possession and he is at his house. Id. at 561, 562,

570. When Petitioner’s father and mother arrive, Sepe leaves the interrogation

room. Id. at 602. Petitioner’s parents then ask Petitioner what happened, and

asked Petitioner “who is Pootie?” Id. at 604. Petitioner then states that “I told

him his name is Anthony Wiggins.” Id. Petitioner then agreed to conduct a

controlled phone call to Wiggins, and Wiggins was then arrested, and the

firearm was found in his possession. Id. at 647, 650. Petitioner was released

that night, but a few days later, he was arrested again, and a second police

interview occurred. Id. at 664. That second interview was also played for the

jury. Id. at 664-710. During that interrogation, Petitioner stated that he and

Wiggins fired a gun in Petitioner’s backyard early in the day on May 18, 2011.

Id. at 667. Petitioner stated that the victim then called Petitioner and

threatened to kill him, and Wiggins overheard the conversation and left

Petitioner’s house after advising Petitioner he would take care of the threat. Id.

at 669. Petitioner stated that night he went to the Venezia’s house in an effort

to prevent the crime, and when Petitioner got to the backyard, he saw Wiggins

shooting. Id. at 669-70. Petitioner stated Wiggins dropped a bag, and then

Wiggins phoned Petitioner and they met at a McDonald’s where Petitioner gave

the bag back to Wiggins. Id. at 672.

Tyrell Mobley testified that in July 2011, he met Petitioner while they

were both housed in the Flagler County Jail. Id. at 445-46. Mobley testified that

Petitioner told Mobley that he wanted to kill Wiggins because he was the reason

Petitioner was in jail. Id. at 452-55. Mobley also testified that Petitioner told

Mobley that on the night of the shooting, Petitioner asked a friend to drive him

to a neighborhood on a golf course, where he shot his ex-girlfriend’s father by

sneaking around to the back of the house. Id. Petitioner also told Mobley that

after the shooting, he met a friend at the McDonald’s and gave him a bag and

asked the friend to hold on to the bag for him. Id.

Here, Petitioner now presents an affidavit from fellow inmate Cooper,

which provides that “Pooty” committed the offense for which Petitioner was

convicted. However, as the trial court correctly noted, Cooper’s affidavit is vague

and wholly contradicts the evidence presented at trial. Cooper’s statement that

“Pooty” committed the crime coincides with the version Petitioner initially told

police, and thus, the trial court properly determined that this statement did not

amount to newly discovered evidence. This Court affords deference to that

finding and concludes that the state court’s decision was not based on an

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

the state court, nor was it based on a unreasonable application of clearly

established federal law. See 28 U.S.C. § 2254(d). This claim is due to be denied.

ii. Huffman Affidavit

Petitioner also argues a claim of newly discovered evidence in the form of

a similar affidavit from Kenneth Huffman, Jr., another fellow inmate at

Century Correctional Institution. Doc. 10 at 8. Petitioner raised this claim in

another successive Rule 3.850 motion filed on June 6, 2017. Resp. Ex. Z at 46-

47. In the affidavit Huffman states that on May 19, 2011, he was playing

basketball when he saw “Pooty,” who was noticeably aggravated. Id. at 47.

Huffman then asked Pooty if he wanted to talk, and Pooty confided in Huffman

and explained that he had to “handle up” someone over a debt owed to him and

was “doing bad,” so Pooty had called Will for help. Id. Pooty then stated that

Will met him at McDonald’s and brought Pooty some drugs in a black bag and

some money. According to Huffman, Pooty wanted to tell Will that he shot Will’s

friend on May 18, but could not find a way to do so. Id. Pooty told Huffman that

police came to his girl’s house looking for the gun, but the gun was still in his

personal brown bag, so he told the officers that Will gave him the gun in the

black bag. Id. Huffman stated that Pooty, nevertheless, refused to tell police or

help Will and Huffman explained he did not come forward sooner because he

“had issues of [his] own.” Id.

Respondents argue that this claim regarding Huffman’s affidavit is

unexhausted and procedurally barred, because the state court never ruled on

it. Resp. at 12. A review of Petitioner’s state court docket shows that on June

14, 2017, the state court dismissed Petitioner’s June 6, 2017, Rule 3.850 motion

raising this claim, finding the motion facially insufficient for failing to comply

with the requirements of Rule 3.850(c). Copeland, No. 2011-CF-000533. The

state court then gave Petitioner sixty days leave to file an amended motion. Id.

Petitioner proceeded to file two other successive Rule 3.850 motions raising this

claim, both of which the trial court again dismissed as insufficient. Id. With the

trial court’s leave, Petitioner filed a third amended successive Rule 3.850

motion on July 19, 2017, but as previously explained, Petitioner moved to

voluntarily dismiss it. The state court granted that motion to dismiss on March

26, 2018. Id. As such, this claim is unexhausted and procedurally defaulted, and

Petitioner fails to argue cause for or prejudice from this default. He also fails to

demonstrate a fundamental miscarriage of justice exception. In any event, upon

review of the evidence presented at trial, and for the reasons explained in this

Court’s analysis of Petitioner’s newly discovered evidence claim involving

Cooper’s affidavit, the Court finds that this claim is meritless and due to be

denied.

D. Ground Four

Petitioner claims a double jeopardy violation in that he was allegedly

charged, convicted, and sentenced for two crimes “for the single act of one

firearm where the record did not establish beyond a reasonable doubt that the

victim was struck by more than one bullet [and] both offenses were predicated

on one single underlying act and multiple punishments were inappropriate.”

Doc. 10 at 10. He further argues “dual convictions for the two crimes for a single

act were impermissible.” Id.

Respondents argue that this claim is unexhausted and procedurally

defaulted because Petitioner never raised it in state court. Resp. at 13-14. In

his Amended Petition, Petitioner asserts he raised this issue on direct appeal,

Doc. 10 at 10; however, a review of his initial brief shows that Petitioner did not

assert this claim during his direct appeal, Resp. Ex. I. Petitioner also claims

that he raised this claim in his Florida Rule of Criminal Procedure 3.800(a)

motion to correct illegal sentence, which the state court granted in part and

denied in part on June 19, 2017. Doc. 10 at 10. However, Petitioner did not raise

this double jeopardy claim in that Rule 3.800(a) motion, Resp. Ex. DD at 11-12,

and a review of the record before the Court reveals that Petitioner did not raise

this claim in any other state court postconviction motion. As such, this claim

appears to be unexhausted and procedurally defaulted. Petitioner has not

argued cause for or prejudice from this default, nor has he alleged facts

demonstrating a fundamental miscarriage of justice.

In any event, this claim is without merit. The Double Jeopardy Clause of

the Fifth Amendment protects against: (1) a second prosecution for the same

offense after an acquittal; (2) a second prosecution for the same offense after a

conviction; and (3) multiple punishments for the same offense. Jones v. Sec’y,

Dep’t of Corr., 778 F. App’x 626, 634 (11th Cir. 2019) (citing North Carolina v.

Pearce, 395 U.S. 711, 717 (1969)). Regarding the protection against multiple

punishments, when the same conduct violates two statutory provisions, courts

conduct an analysis to determine whether the legislature “intended that each

violation be a separate offense.” Garrett v. United States, 471 U.S. 773, 778

(1985). In conducting the double jeopardy analysis referenced in Garrett, a court

first looks to the charged offenses and the statutes codifying those charges. If a

clear indication of intent to create and punish separate offenses exists from

reading the plain language of the statute, “our inquiry is at an end and the

double jeopardy bar does not apply.” Williams v. Singletary, 78 F.3d 1510, 1513

(11th Cir. 1996); see also United States v. Stewart, 65 F.3d 918, 928 (11th Cir.

1995) (stating that “when the relevant statutes on their face indicate a clear

legislative intent to allow multiple punishments, we need not engage in a

Blockburger9 analysis, because we must give effect to that legislative intent”)

(citing Garrett, 471 U.S. at 779; United States v. Albernaz, 450 U.S. 333, 340

(1981)). If the legislature’s intent is unclear based upon the plain language of

the statutes, a court should “apply the ‘same elements’ test established in

Blockburger.” United States v. Smith, 532 F.3d 1125, 1128 (11th Cir. 2008). The

rule expressed in Blockburger “is that, where the same act or transaction

constitutes a violation of two distinct statutory provisions, the test to be applied

to determine whether there are two offenses or only one, is whether each

provision requires proof of a fact which the other does not.” Blockburger, 284

U.S. at 304.

Petitioner was convicted of attempted first degree murder under sections

777.01(1), 782.04(1)(A), and 775.087(1)-(2), Florida Statutes; aggravated

9 Blockburger v. United States, 284 U.S. 299 (1932).

battery with a firearm under section 784.045(1)(a)10; and shooting into a

building under section 790.19, Florida Statutes. Resp. Ex. A at 274. Because

Petitioner’s double jeopardy claim hinges on an allegation that the victim was

only struck by one bullet, it appears he is arguing that his convictions for

attempted first degree murder and aggravated battery with a firearm violate

double jeopardy. Doc. 10 at 10. Those statutes do not indicate a clear legislative

intent to allow multiple punishments. Accordingly, the Court will review the

elements of each offense under the Blockburger test.

In doing so, the Court finds that attempted first degree murder and

aggravated battery with a firearm do not violate double jeopardy because the

offenses contain different elements. See Gutierrez v. State, 860 So. 2d 1043,

1046 (Fla. 5th DCA 2003) (“[T]he elements of the two crimes were different

because attempted murder requires proof of an act that could have resulted in

death, which is not an element required for aggravated battery [causing great

bodily harm].”); see also Bradley v. State, 901 So.2d 924 (Fla. 5th DCA 2005)

(holding the defendant’s convictions for both attempted first degree murder

with a firearm and aggravated battery causing great bodily harm for a single

act of shooting the victim did not violate double jeopardy because each offense

10 Petitioner was resentenced on the aggravated battery count because

the state court initially improperly enhanced the sentence for use of a firearm

under 775.087, Florida Statutes, which is one of the elements of the crime. Resp.

Ex. CC at 14-15.

had an element distinct from the other); Schirmer v. State, 837 So. 2d 587 (Fla.

5th DCA 2003) (convictions for attempted second degree murder with a weapon

and aggravated battery with a deadly weapon based on the defendant stabbing

the victim did not violate double jeopardy). As such, Petitioner’s convictions for

these offenses do not violate the Double Jeopardy Clause.11 Ground Four is due

to be denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Amended Petition (Doc. 10) is DENIED and this case is

DISMISSED WITH PREJUDICE.

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

any pending motions, and close this case.

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

appealability. Because the Court has determined that a certificate of

appealability is not warranted, the Clerk shall terminate from the pending

11 The Court further notes that the trial court ordered the sentences

imposed for these offenses to run concurrent. Therefore, even if Petitioner was

entitled to relief, the result would have no practical effect on the time he is

serving.

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida, this 21st day of

September, 2020.

TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: William R. Copeland, #V42342

Bonnie Jean Parrish, Esq.

12 The Court should issue a certificate of appealability only if the

Petitioner makes “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). To make this substantial showing, Petitioner “must

demonstrate that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.

274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that

“the issues presented were ‘adequate to deserve encouragement to proceed

further.” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v.

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

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

33