Thomas v. Secretary, Department of Corrections

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDUART

TAMPA DIVISION

LOUIS THOMAS,

Applicant,

v. CASE NO. 8:17-cv-2205-T-23AAS

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

Louis Thomas applies for the writ of habeas corpus under 28 U.S.C. § 2254

(Doc. 1) and challenges the validity of his state conviction for robbery, for which

conviction Thomas serves thirty years imprisonment. Numerous exhibits

(“Respondent’s Exhibit __”) support the response. (Doc. 7) The respondent admits

the application’s timeliness. (Doc. 7 at 11)

Facts1

Thomas entered a retail store, confronted the store clerk (the “victim”), and

demanded money. While in the store, Thomas pulled a stocking over his face and

pushed the victim to the back of the store. Thomas took money from the cash

register and fled. When the police arrived at the scene, the victim provided a

physical description of the perpetrator and his clothing, which description was

1 This factual summary derives form Thomas’s brief on direct appeal and the record.

(Respondent’s Exhibits 6 and 11)

broadcast to other officers in the area. Within ten minutes of the broadcast Officer

Liem Mach saw a man — later identified as Thomas — matching the suspect’s

description and riding a bicycle less than two miles from the crime scene. Thomas

was riding a bicycle without a proper registration. When Officer Mach attempted to

initiate a traffic stop, Thomas fled. Officer Mach chased Thomas and apprehended

him. When the victim was brought to the location where Thomas was apprehended,

Thomas was removed from a police car in handcuffs. The victim immediately

identified Thomas as the robber and advised that he had changed his clothes.

Thomas was arrested. In a subsequent search of Thomas’s backpack the police

discovered the clothing the victim had described that Thomas was wearing when he

entered the store, some nylon stockings, and cash.

Thomas was charged with robbery. A jury convicted Thomas and he serves

thirty years imprisonment as a prison releasee re-offender.

Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AAEDPA@)

governs Thomas’s application. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210

(11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a

highly deferential standard for federal court review of a state court adjudication,

states in pertinent part:

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

in custody pursuant to the judgment of a State court shall not

be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim C

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.

Williams v. Taylor, 529 U.S. 362, 412S13 (2000), explains 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 C the

state-court adjudication resulted in a decision that (1) “was

contrary to . . . clearly established Federal Law, as determined

by the Supreme Court of the United States” or (2) “involved an

unreasonable application of . . . clearly established Federal law,

as determined by the Supreme Court of the United States.”

Under the “contrary to” clause, a federal habeas court may

grant the writ if the state court arrives at a conclusion opposite

to that reached by this Court on a question of law or if the state

court decides a case differently than this Court has on a set of

materially indistinguishable facts. Under the “unreasonable

application” clause, a federal habeas court may grant the writ if

the state court identifies the correct governing legal principle

from this Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.

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

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

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

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

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

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

law beyond any possibility for fairminded disagreement.” Harrington v. Richter,

562 U.S. 86, 103 (2011). See White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical

point is that relief is available under ' 2254(d)(1)’s unreasonable-application clause if,

and only if, it is so obvious that a clearly established rule applies to a given set of

facts that there could be no ‘fairminded disagreement= on the question . . . .”)

(citing 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 v.

Taylor, 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 v. Cone, 535 U.S. at 694.

A federal court must afford due deference to a state court=s decision. “AEDPA

prevents defendants — and federal courts — from using federal habeas corpus review

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

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

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

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

the doubt’ . . . .”) (citations omitted). If 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.” Wilson, 138 S. Ct. at 1192. “[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 . . . .” Wilson, 138 S. Ct. at 1192.

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

on direct appeal affirmed Thomas’s conviction and sentence. (Respondent’s

Exhibit 13) In another per curiam decision without a written opinion the state

appellate court affirmed the denial of Thomas’s subsequent Rule 3.850 motion for

post-conviction relief. (Respondent=s Exhibit 17) A state appellate court’s per curiam

affirmance warrants deference under Section 2254(d)(1) because “the summary

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

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

(2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003); Richter, 562 U.S.

at 100 (“When a federal claim has been presented to a state court and the state court

has denied relief, it may be presumed that the state court adjudicated the claim on

the merits in the absence of any indication or state-law procedural principles to the

contrary.”); Bishop v. Warden, 726 F. 3d 1243, 1255S56 (11th Cir. 2013) (describing

the difference between an “opinion” or “analysis” and a “decision” or “ruling” and

explaining that deference is accorded the state court’s “decision” or “ruling” even

absent an “opinion” or “analysis”).

As Pinholster, 563 U.S. at 181B82, explains, review of the state court decision is

limited to the record that was before the state court:

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

record that was before the state court that adjudicated the claim

on the merits. Section 2254(d)(1) refers, in the past tense, to a

state-court adjudication that Aresulted 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.

Thomas 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 Thomas’s

post-conviction claims warrants deference in this case. (Order Denying Motion for

Post-Conviction Relief, Respondent=s Exhibit 15)

Ineffective Assistance of Counsel

Thomas 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 v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that

Strickland v. Washington, 466 U.S. 668, 687 (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 conduct

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

466 U.S. at 690. Strickland requires that “in light of all the circumstances, the

identified acts or omissions were outside the wide range of professionally competent

assistance.” 466 U.S. at 690.

Thomas 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.” 466 U.S. at 691. To meet this burden, Thomas 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.” 466 U.S. 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.” 466 U.S. at 690B91. Thomas cannot meet his burden merely by

showing that the avenue chosen by counsel proved unsuccessful.

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

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

have done. We ask only whether some reasonable lawyer at the

trial could have acted, in the circumstances, as defense counsel

acted at trial . . . . We are not interested in grading lawyers’

performances; we are interested in whether the adversarial

process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220B21 (11th Cir. 1992). Accord Chandler v.

United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“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.’”) (en banc) (quoting

Burger v. Kemp, 483 U.S. 776, 794 (1987)).

Hittson v. GDCP Warden, 759 F.3d 1210, 1267 (11th Cir. 2014), cert. denied sub

nom., Hittson v. Chatman, 135 S. Ct. 2126 (2015), explains the required extent of

counsel’s investigation:

[W]e have explained that “no absolute duty exists to investi-

gate 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).

Under 28 U.S.C. ' 2254(d) Thomas 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. Pinholster, 563 U.S. at 202 (stating that 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.”), and

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 C which is governed by the deferential

Strickland test C through the lens of AEDPA deference, the resulting standard of

review is “doubly deferential.”), cert. denied, 134 S. Ct. 191 (2013).

Because the state court correctly recognized that Strickland governs each

claim of ineffective assistance of counsel, Thomas cannot meet the “contrary to”

test in Section 2254(d)(1). Thomas instead must show that the state court

unreasonably applied Strickland or unreasonably determined the facts. In

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

authorizes determining only “whether the state habeas court was objectively

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

counsel’s actions were reasonable. Putnam v. Head, 268 F.3d 1223, 1244, n.17 (11th

Cir. 2001), cert. denied, 537 U.S. 870 (2002). 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 One

Thomas contends that the trial court erred by conducting an “inadequate”

Nelson2 hearing. Thomas argues that he advised the trial judge that his trial counsel

failed to both file a “meritorious” motion to suppress and effectively communicate

with him about the case. He alleges that “the circumstances of his case implicate

constitutional due process violations” and that his “interactions with counsel

constituted ‘good cause,’ such as a complete breakdown in communication and an

irreconcilable conflict over the meritorious motion to suppress,” warranting

appointment of new counsel. (Doc. 1 at 20)

The respondent correctly argues that, to the extent Thomas argues that the

trial court misapplied Nelson, he cannot obtain relief because he alleges a violation

of state law. Federal habeas relief for a person in custody under the judgment of a

state court is available only on the ground that the custody violates the Constitution,

laws, or treaties of the United States. 28 U.S.C. § 2254(a). Whether the trial court

correctly applied either state law or a state procedural rule is a matter of state law

that is not cognizable on federal habeas corpus review. See Swarthout v. Cooke,

562 U.S. 216, 219 (2011) (“The habeas statute unambiguously provides that a federal

court may issue a writ of habeas corpus to a state prisoner only on the ground that

he is in custody in violation of the Constitution or laws or treaties of the United

States.”) (internal quotations and citations omitted); Estelle v. McGuire, 502 U.S.

2 See Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).

62, 67 (1991) (“[I]t is not the province of a federal habeas court to re–examine state-

court determinations on state­law questions.”).

To the extent that he argues that the trial court’s “inadequate” Nelson hearing

violated his federal constitutional rights to self-representation and due process,

Thomas cannot obtain relief.3 Nelson establishes “the procedure which the trial court

should follow for the purpose of protecting an indigent’s Sixth Amendment right to

counsel in a criminal prosecution where before the commencement of the trial the

Defendant moves to discharge appointed counsel.” Nelson, 274 So. 2d at 258.4 The

United States Supreme Court has established no procedure for when an indigent

criminal defendant with court-appointed counsel does not want to proceed pro se, but

instead wants another court-appointed lawyer because his current lawyer is allegedly

ineffective. United States v. Garey, 540 F.3d 1253, 1262 (11th Cir. 2008) (“Although

the Sixth Amendment guarantees counsel, it does not grant defendants the

unqualified right to counsel of their choice. An indigent criminal defendant ‘does

not have a right to have a particular lawyer represent him, nor to demand a different

appointed lawyer except for good cause.’”) (quoting Thomas v. Wainwright, 767 F.2d

738, 742 (11th Cir. 1985)). A defendant must show good cause — a fundamental

3 The state appellate court rejected this argument in Thomas’s direct appeal. (Respondent’s

Exhibits 11 and 13)

4 Under Nelson “[i]f incompetency of counsel is assigned by the defendant as the reason, or

a reason, [that an indigent defendant wants to discharge his court-appointed counsel], the trial judge

should make a sufficient inquiry of the defendant and his appointed counsel to determine whether

or not there is reasonable cause to believe that the court appointed counsel is not rendering effective

assistance to the defendant.” 274 So. 2d at 258–259.

problem that would lead to an apparently unjust verdict — in order to demand a

different appointed lawyer.

United States v. Jimenez-Antunez, 820 F.3d 1267, 1271 (11th Cir. 2016),

explains:

Good cause exists where there is “a fundamental problem,

‘such as a conflict of interest, a complete breakdown in

communication or an irreconcilable conflict which leads to an

apparently unjust verdict.’” United States v. Garey, 540 F.3d

1253, 1263 (11th Cir. 2008) (en banc) (quoting United States v.

Young, 482 F.2d 993, 995 (5th Cir. 1973)). The exception for

good cause protects the right to effective assistance of counsel;

if good cause exists, a defendant no longer has effective

representation. See United States v. Rivera–Corona, 618 F.3d 976,

979 (9th Cir. 2010).

Thomas’s “reasons for seeking substitute appointed counsel included counsel’s

failure to file a motion to suppress, lack of communication, lack of visiting the

Petitioner in jail, calling Petitioner a . . . racial slur, and Petitioner’s pending bar

complaint against defense counsel.” (Doc. 11 at 3) In his reply Thomas asserts that

“the presiding judge did not determine the frequency or adequacy of [appointed

counsel]’s communicating with Mr. Thomas and never determined on the record

that the motions to suppress were not meritorious and therefore could not be

litigated, that [appointed counsel] had adequately communicated with Mr. Thomas,

or that an adequate attorney/client relationship existed for proceeding to trial.”

(Doc. 11 at 3)

Thomas moved for a Nelson hearing seeking to discharge his public defender,

Marc Parish.5 (Respondent’s Exhibit 3) The state court denied the motion after a

hearing. Thomas again moved for a Nelson hearing and moved to dismiss the Office

of the Public Defender. During the Nelson hearing Thomas explained the basis for

his motions (Respondent’s Exhibit 10, February 17, 2012, motion hearing at 6–15):

THE COURT: All right. On State of Florida v. Louis

Thomas. . . . The public defender entered a plea of not guilty

and demand for discovery. That first attorney was Mr. Swisher.

There was an amended information and a reaffirmation of the

plea of not guilty. It looks like discovery commenced. I see in

the court file a notice of trial for December the 14th.

There was a motion for a Nelson hearing. Complaints were

made about Attorney Swisher. There was a Nelson hearing

scheduled for October the 13th of last year. And then prior to

that hearing, a public defender, Bethany Jackson, entered a

notice. There was also a motion to reset the trial date because

of the change in attorneys. And then apparently Public

Defender Parish was assigned to the case and the defendant

has filed another motion for a Nelson hearing that was filed

December 20th.

The last time that we were here I went over the Nelson hearing

with you, giving you a Nelson hearing and you explained what

your complaints were with Mr. Parish. And the Court made a

finding that you — that Mr. Parish was not doing anything

below the standard acceptable in the community, the legal

community, in representing you.

The you filed the following: a motion to suppress evidence.

You filed, in fact, a couple of those. And I’m telling you that

those motions are nullities because right now Parish is still

your attorney.

That’s the status of the case as you stand at that podium

right now. So, the last time you were here, I heard all your

complaints. I said that your complaints did not rise to the

5 Public defender John Swisher was originally appointed to represent Thomas. Thomas

moved to discharge Swisher, which motion was denied. The case was subsequently reassigned

before trial to public defender Marc Parish.

continue with Attorney Parish?

THE DEFENDANT: No, sir.

THE COURT: Do you want to hire a lawyer?

THE DEFENDANT: I can’t afford a lawyer, sir.

THE COURT: Okay. So what do you want to do?

THE DEFENDANT: I do not want Mr. Parish to represent

me.

THE COURT: Okay.

THE DEFENDANT: And I’ve never went through no Nelson

hearing with Mr. Parish. I never stand before you with a

motion, a Nelson hearing with my complaint against Mr. Parish,

period.

THE COURT: Let’s go through, one more time, your

complaints with Mr. Parish. Go ahead.

. . . .

THE DEFENDANT: I have a Bar complaint against Mr.

Parish that’s pending right now, sir.

THE COURT: All right. That’s not a ground. Go ahead.

THE DEFENDANT: Mr. Parish supposed to came — I

have no communication with Mr. Parish. I think it’s rude

for (unintelligible) of communication and plus diligency. Mr.

Parish have not even came to visit me. Mr. Parish have not

done anything for me. Mr. Parish told me he would not file no

motions period. Him and Mr. Swisher is conspired against me

and I don’t trust Mr. — I don’t have no confidence in this man.

When I first came to jail I was taking two blood pressure

medications. Now I’m taking five because Mr. Parish have

not came to visit me. He told me he was going to come and

visit me. He told me he would help me out, he’ll fight for me.

He told me he’s not intimidated by you. He told me he’ll step

before you and then Mr. Parish, when I told him I was going to

file a Bar complaint against Mr. Parish and Mr. Parish told — I

said like I needed him and Swisher. He told me in the cell that

racial slur.

THE COURT: Okay.

THE DEFENDANT: And I have no confidence in this man,

period, with my life at stake. I’m a grandfather, first time, and I

don’t trust Mr. Parish. Mr. Parish has not done nothing for me.

He don’t even visit me. I have sent 62’s to him six times. He

never came to visit me. And he promised me he was going to

visit. He told me, said he going to visit me. And, like, I say, I

had a hearing for a complaint against him at the Bar. I have

paper here from the Bar telling him to come [visit] me on the

24th of last month. He did not come. Then I filed a bar [sic] and

made a formal complaint against Mr. Parish. It’s right now, it’s

already pending.

THE COURT: Okay.

THE DEFENDANT: I have the paperwork here to show.

THE COURT: Okay. I reviewed your motion for Nelson

hearing. And let’s — we’ll go through it paragraph by

paragraph.

Marc Parish failed to challenge the defendant [sic] by raising the

constitutionality of identification. Okay? That didn’t make any

sense at all, that paragraph. But I’m sure that you have some

sort of a complaint about your identification in the case. You

requested him to submit a motion to suppress and he failed to

file a motion to suppress regarding misidentification. That’s

what paragraph two says.

Mr. Nelson [sic], have you reviewed the facts of the case?

MR. PARISH: Yes, sir.

THE COURT: Mr. Parish, do you have — have you reviewed

the facts of the case?

MR. PARISH: I have, sir.

THE COURT: In your professional judgment, does a motion

for misidentification exist?

MR. Parish: No, sir.

question is because he has four years of college, three years of

law school and years of experience as an attorney. Now let’s go

to you. What is your educational background?

THE DEFENDANT: Tenth grade, sir.

. . . .

THE COURT: Counsel failed to subpoena for a deposition

witness. Have you subpoenaed people for deposition or has

your office subpoenaed people for deposition?

MR. PARISH: At this point in time the depositions of all the

witnesses except for one, which was added, I believe, a month

ago. And we tried doing that on Tuesday. That person did not

show up so we’re in the process of resetting that now.

THE COURT: Okay.

MR. PARISH: That’d be the last witness.

THE COURT: All right. So in paragraph five, counsel failed

to subpoena the victim. That’s not true?

MR. PARISH: I have the transcript here from that deposition.

THE COURT: Okay. So then you, again, talk about this

motion to suppress identification. And he failed to schedule a

pro visit after being requested. I’m not really sure what that

means. But, have you visited with this man?

MR. PARISH: I visited with him here in court and any issues

regarding personal visits at the jail, I believe, [are] being taken

up with the Bar. And that was for the purposes of not sort of

going into attorney/client privilege.

. . . .

THE COURT: Okay. So you’ve had Mr. Swisher; you

complained about him. You had Ms. Jackson; you didn’t

complain about her.

THE DEFENDANT: Because see, sir, I had Ms. Jackson,

right, and Ms. Jackson helped me out. Okay. Mr. Swisher have

done nothing for me in 10 months.

THE DEFENDANT: Okay? Ms. Jackson came in and stepped

to the plate and she represented me to the fullest for two weeks.

When she got my dispatch records reflected that the victim lied

on — about how I came into the store, so on and so on. And

then she was removed for no reason at all. I wrote Mr. Dillinger

asking why when I had a woman that is willing to fight for me

when she told me she would. And she said she read my

discovery entirely.

What I ask him to talk to her — when I first met this gentle-

man October 27th he told me he would fight for me and he

told me he got to talk to Swisher first. Ms. Jackson, when she

represented me, she told me that she — once she got — she

read my discovery entirely. She’s willing to represent me to

the fullest extent and she said I got investigators watching —

observing your dispatch records. She said, you will that [sic]

and she got it with me in two weeks.

Strangely, on the 27th when I meet this gentleman here, she

disappeared for no explanation at all. And then I ask him why

was she dismissed. He told me that she did not have the

experience. I couldn’t believe that, sir.

THE COURT: Okay. Like I say, I don’t run the Public

Defender’s Office and how they assign public defenders.

I’ve pretty much covered everything that you covered in your

motion to discharge Mr. Parish. Okay? He’s indicated that your

request to run a motion to suppress[, h]e ethically cannot run it

as an attorney. He has a lot more legal knowledge than you. I

don’t know who does your research, whether you do it yourself

or one of those jailhouse lawyers is doing it for you. But the

jailhouse lawyer’s not going to do a day of your time. You have

to understand that. So at this juncture I cannot remove Mr.

Parish.

THE DEFENDANT: I don’t want him, sir.

THE COURT: All right.

THE DEFENDANT: I don’t trust him.

THE COURT: Well, so, you’re going to have to decide what

your next move is going to be. Okay? So, I’m not going

to — so you can either have you or your family hire someone

or embark on self-representation after a proper motion for a

filed are stricken as nullities.

Thomas subsequently moved for a Faretta hearing. After a hearing and

through colloquy, the state court granted the motion and Thomas proceeded pro se

with Parish as standby counsel. Thomas filed another motion to suppress and

was granted a hearing on the motion. After encountering difficulty with examin-

ing a witness during the hearing, Thomas elected to have Parish re-appointed.

(Respondent’s Exhibit 7, transcript of November 2, 2012, at 38–39) Parish again

asserted that no basis for suppression existed and moved to dismiss the motion,

which motion the state court granted.

Later Thomas again moved to dismiss Parish and moved to proceed pro se so

that he could litigate the motion to suppress. The state court held a hearing on the

motions during which Thomas again complained that Parish would not

communicate with him or file a motion to suppress. The judge inquired

(Respondent’s Exhibit 8, transcript of January 17, 2013, hearing at 5–12):

THE COURT: What’s the basis of your motion to dismiss

counsel today, Mr. Thomas?

THE DEFENDANT: First of all, my motion’s based, again,

on the facts that I had [at] that suppression hearing. And before

I had the suppression hearing, before I became pro se, Judge

Luce instructed me before he granted a Faretta hearing, he told

me if I filed any frivolous motions, that they would be striked

[sic]. And, apparently, Judge Luke [sic] seen that my motion

had merit to it because he wouldn’t address my motions to be

filed within the court. But my main concern was after the

hearing of the suppression hearing [sic], Mr. Parish and I, he

came back and talked to me in the back. As he was speaking to

me and he just told me, he showed me, the things that I did

wrong as part of the suppression hearing. And then I asked him

why he wouldn’t honor my motions. And his — it was his

Swisher, told him I have no grounds, and he say he can’t go

against his boss. And then I said, well, okay, since you my full

time —

. . . .

THE COURT: If you say, this is what Mr. Parish and I talked

about in private, I can’t say, oh, Mr. Parish, you can’t respond

to what Mr. Thomas said to defend yourself because you’re

going to give up attorney-client [privilege]. If you were going to

tell us all this stuff, supposedly he said she said, in your own

attorney-client relationship, then Mr. Parish has to be given a

fair opportunity to respond. So, I’m cautioning you as to what

you’re going to tell us as far as this complaint is concerned. Is

the bottom line you want to go back to representing yourself

and do the motion to suppress?

THE DEFENDANT: No, sir. I would like to dismiss the

Public Defender’s Office because I have a bar complaint

against —

THE COURT: That’s not a basis to dismiss a lawyer. You

can’t — anybody can — if that was the case, you just file a

bar complaint, hey, I got a new lawyer. Everybody in here

would — we’d have — they’d have six or seven different

lawyers. That’s not a basis.

THE DEFENDANT: Yes, sir.

THE COURT: If there’s a factual basis — what has he not

done that you think he needs to, or that you believe needs to

be done in your case; the filing of the motion to suppress?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. Well, Mr. Parish, do you think there’s

a basis, a legal basis, to file a motion to suppress?

MR. PARISH: No, sir.

THE COURT: All right. You know, I — this — we had

this argument, whether or not we had this discussion with

another client already because he was upset and wanted to

fire his lawyer because the lawyer wouldn’t file a motion to

suppress he said that he needed to file. And I explained to that

client, as I’m going to explain to you, that there — the lawyer

has to have a good-faith belief that there’s a basis to go forth

motion to suppress, so I’m going to file it. If the lawyer assesses

the situation and decides there’s not a sufficient legal basis, then

as a matter of ethics, the lawyer cannot file the motion, so, is

that what you’re telling me, Mr. Parish?

MR. PARISH: It is, sir. And, like Mr. Thomas stated,

following the culmination of the last motion, I took the time to

explain everything he did wrong, the appropriate methods to

conduct a motion to suppress and prepare his questions ahead

of time, all the different things necessary should he desire to

proceed on that course.

THE COURT: Okay.

THE DEFENDANT: Your Honor, excuse me, sir.

THE COURT: So Mr. Parish is not going to be filing the

motion to suppress for the reasons indicated. So where does

that leave you?

THE DEFENDANT: Okay. And not only that, sir, I’ve been

having problems with Mr. Parish as far as him doing anything

for me. I had a bar complaint against Mr. Parish. I also have

got a bar complaint against Mr. Swisher pertaining —

THE COURT: He’s not even your lawyer.

THE DEFENDANT: I know. But I’m saying based on

what — what I was told, I filed a bar complaint based on the

conversation we had, me and Mr. Parish had. Mr. Parish have

never came and visit me. I’ve been — he’s been my attorney

since October the 27th, 2011. He never visit[ed] me. He never

asked for any of my 62’s. We don’t have no type of

communication and relationship as far as —

THE COURT: All right. Well, the subjective relationship you

have and whether you feel good about it is not a basis. Have

you had discussions — responded to his 62’s, Mr. Parish?

MR. PARISH: I’ve discussed these issues previously on the

record. I’ve discussed them with the Florida Bar. They’ve

dismissed his complaint. And I’ll stand by anything I’ve

previously said.

THE COURT: All right. Anything additional, Mr. Thomas?

I’m not dismissing the PD’s office based on what I’ve heard.

THE DEFENDANT: Well, sir, right as far as I can say, sir, the

public defender office and the state attorney is trying to — it

conspired against me in this situation.

THE COURT: Oh, now, . . . we got the conspiracy theory out

there now, right?

THE DEFENDANT: It is, sir, because —

THE COURT: They’re conspiring against you. The fact that

you have what, how lengthy a criminal record? And the fact

that you’re alleged to have committed a serious offense that

you’re facing a 30-year min[imum] mand[atory]. And they’re

the only people standing between you and potentially going to

prison for the next 30 years or so.

. . . .

THE COURT: All right. Do you want — I guess, bottom line

is, do you stay with Mr. Parish? There’s not a basis for you, for

them to come off. And I’m frankly, you know, this history of

this back and forth, it’s all my lawyer’s fault is something that

I’ve seen over and over again in the system. So, if you want to

represent yourself, fine. You’ve got a trial on April 2nd. You’ve

been through it all with Judge Luce. I’ll tell you all the foolish

things, which you’ve already established for yourself in trying

to conduct a motion to suppress. So you don’t need me to tell

you how you’re going to be disadvantaged representing yourself

because you’ve already proven it apparently even though I

wasn’t there on one occasion before. But if that’s what you

want to do, that’s fine.

The judge inquired of Thomas about his educational background and

his understanding of legal procedure. The judge advised Thomas that, if he

represented himself and renewed the motion to suppress, the motion would be

addressed during the course of the trial and not in another suppression hearing.

(Respondent’s Exhibit 8, transcript of January 17, 2013, hearing at 12–15) The judge

advised Thomas of the disadvantages of proceeding pro se and inquired of Thomas

who he wanted to represent him at trial (Respondent’s Exhibit 8, transcript of

January 17, 2013, hearing at 15–18):

THE COURT: You’re going to be at a disadvantage. He’s

been doing this for 30 years. You’ve never done this before.

You’ve got a tenth grade education and no background. It’s a

ridiculous idea for anybody to ever self-represent but people

decide to do it all the time. But you understand that you’re

going to be disadvantaged in doing this. You’ve already

demonstrated that. I mean, you should be the poster child

for somebody saying I don’t want to represent myself based on

apparently what happened in the last hearing. Understanding

all that, you’re still making the free and volitional decision that

you choose to represent yourself?

THE DEFENDANT: You leave me between a rock and a hard

place on that one, sir. I guess I can’t have another suppression

hearing. Is that what you’re saying?

THE COURT: You can object to the admission of the

evidence. I’m just not going to go . . . chasing my tail for four or

five hours on something that we’ve already gone through once.

Typically, with a lawyer you would set the hearing in advance

of the trial, but it’s not required. There’s nothing that says you

have to. If we’re in trial, jeopardy attaches and I grant the

motion, State’s got a problem. But they don’t have a problem

in doing it that way because they’ve — they’re confident that

they’re going to win as far as the motion’s concerned. Is that

right?

[THE PROSECUTOR]: That’s right, judge.

THE COURT: All right. And so, there’s nothing that says I

can’t do it. If I get it wrong it doesn’t really matter if I get it

wrong and I should have granted it, and I deny it, because it’s

going to be on appeal.

And it doesn’t matter whether it’s pretrial or a trial because

eventually if you get convicted and I was mistaken about not

granting the motion to suppress, the Court’s not going to care

whether I didn’t — whether I did it in the trial or whether I did

it in advance of the trial.

So logistically it makes more sense to do it this way. So, yeah,

you’ll be able to argue at the trial. We’ll probably proffer some

of the witness testimony outside the hearing of the jury and

And so, yes, we will have a motion to suppress but it will be

as part of the trial itself. So, no, we’re not going to have one

in advance of the trial. Everybody’s going to show up and

we’re going to do the trial and go from there. So that’s how

I’m planning on handling it. So with that in mind and given

everything we’ve discussed, you’ve got a choice to make

whether you want to represent yourself or whether you want

to stick with Mr. Parish.

THE DEFENDANT: Well, I have no choice. I guess I have

to represent [sic] Mr. Parish then.

THE COURT: You want — you’re going to stick with Mr.

Parish?

THE DEFENDANT: Yes, sir. I have to.

THE COURT: All right. Then we’ll indicate that he’s

withdrawing the motion to dismiss counsel at this point. . . .

Thomas proceeded to trial represented by Parish.

Thomas fails to show “good cause” justifying entitlement to a different

appointed lawyer. Thomas v. Wainwright, 767 F.2d 738, 742 (11th Cir.1985),

explains:

Good cause for substitution of counsel cannot be determined

“solely according to the subjective standard of what the

defendant perceives.” McKee v. Harris, 649 F.2d at 932. A

defendant’s general loss of confidence or trust in his counsel,

standing alone, is not sufficient. Id. See also Hutchins v. Garrison,

724 F.2d 1425, 1430–31 (4th Cir. 1983) (rejecting ineffective

assistance of counsel claim where defendant’s trial counsel had

moved to withdraw due to lack of communication with

defendant allegedly stemming from defendant’s distrust based

on defense counsel’s earlier service as assistant district

attorney), cert. denied, 464 U.S. 1065, 104 S. Ct. 750, 79

L. Ed. 2d 207 (1984). A defendant, by unreasonable silence or

intentional lack of cooperation, cannot thwart the law as to

appointment of counsel.

Neither Thomas’s disagreement with Parish about the viability of a motion to

suppress nor his unsupported allegations of a breakdown in communication provides

a basis for appointment of a different attorney. The state court conducted thorough

inquiries into Thomas’s allegations and concluded that no basis existed to replace

Parish with another appointed attorney. Thomas establishes no violation of either

his federal constitutional right to self-representation or his federal right to due

process. Accordingly, because he fails to show that the state court either

unreasonably applied clearly established federal law or unreasonably determined the

facts, Thomas is entitled to no relief on ground one. 28 U.S.C. § 2254(d)(1), (d)(2).

Ground Two

Thomas contends that the state post-conviction court’s denial of grounds one

and two of his Rule 3.850 motion resulted in either an unreasonable application of

clearly established federal law or an unreasonable determination of the facts. In

ground one of his Rule 3.850 motion Thomas alleges that his trial counsel rendered

ineffective assistance by not “mov[ing] for discharge based upon legally insufficient

probable cause to stop Petitioner.” (Doc. 1 at 25) In ground two of his Rule 3.850

motion Thomas alleges that his trial counsel rendered ineffective assistance by not

“mov[ing] to suppress the items seized in the search following his unlawful stop.”

(Doc. 1 at 25)

Ground One of Rule 3.850 motion

Thomas claims that Officer Liem Mach lacked probable cause to stop him.

Thomas asserts that “[t]he BOLO description described the robber as a black male,

possibly wearing a mask, wearing a green jacket, with a big face and possibly riding

a bicycle.” (Doc. 1 at 28) (emphasis in original) He argues that his clothing did

not match the description “to a sufficient degree to justify a stop.” (Doc. 1 at 28)

Thomas contends that his trial counsel “provided ineffective assistance by failing to

move for discharge based upon legally insufficient probable cause to stop Petitioner.”

(Doc. 1 at 25)

The state post-conviction court denied this ground as follows (Respondent’s

Exhibit 15, Order Denying Defendant’s Motion for Postconviction Relief at 2–3)

(court’s record citations omitted):

In ground one, Defendant’s previous motion claimed that

counsel was ineffective for failing to investigate a police stop

and move to suppress the stop. The Court previously struck

that claim as facially insufficient. In Defendant’s amended

motion, he does not address the insufficiencies identified by

the Court's prior order, but sets out a somewhat different claim.

Defendant’s amended ground one alleges that counsel was

ineffective for failing to move to dismiss based on allegedly

manufactured probable cause. He alleges that the police

manufactured the description of the robber relied upon to stop

Defendant and alleges that the traffic law relied upon to stop

Defendant did not exist. Notes in the margins of Defendant’s

exhibits (which are unsworn) appear to suggest that he asserts

that the bicycle registration ordinance did not apply to him

because he was a resident of Hillsborough County. Defendant

alleges that he would have been acquitted if counsel had moved

to dismiss.

Ground one is without merit because it does not set out

any ground for dismissing the charges against Defendant[.]

Defendant filed a pro se motion to suppress based on this stop

while representing himself, and the traffic stop was proper.

“[C]ounsel cannot be deemed ineffective for failing to object to

meritless issues.” Thompson v. State, 759 So. 2d 650, 665 (Fla.

2000). The remedy for a violation of the Fourth Amendment

to the United States Constitution is suppression of evidence

obtained as a result of the illegal stop, not dismissal of the case.

See, e.g., Williams v. State, 138 So. 2d 960, 961 (Fla. 2d DCA

as a result of it should have been excluded.”). Even if

Defendant was correct that the stop was illegal, the issue could

be adequately addressed by a motion to suppress and would

not give rise to a motion to dismiss. Although Defendant

previously alleged that counsel should have filed a motion to

suppress, his claim was facially insufficient because he did not

specify what evidence would have been suppressed, specify

how it would have affected the outcome of the trial, or allege

that he would not have been found guilty if counsel had filed a

motion to suppress. See Kormondy v. State, 983 So. 2d 418, 430

(Fla. 2007); accord Kimmelman v. Morrison, 477 U.S. 365, 375

(1986); Zakrzewski v. State, 866 So. 2d 688, 694 (Fla. 2003).

Defendant’s motion still fails to clarify these insufficiencies.

Regardless, counsel was not deficient: the stop was justified

because the officer had probable cause to believe that

Defendant was in violation of the ordinance requiring residents

to register their bicycles. This ordinance requires St. Petersburg

residents to register their bicycles and display a license. St.

Petersburg, Fla., Code of Ordinances §§ 26-202, 26-204 (2010).

Residency is presumed if the person cannot establish

non-residence. Id. at § 26-202(c). An officer may conduct a

traffic stop when he or she has probable cause to believe a

traffic violation has occurred. Gordon v. State, 901 So. 2d 399,

402 (Fla. 2d DCA 2005); see State v. Johns, 920 So. 2d 1156,

1157–[5]8 (Fla. 2d DCA 2006) (holding that an expired license

tag justifies a traffic stop). “Probable cause is evaluated from

the viewpoint of a prudent cautious police officer on the scene

at the time of arrest.” State v. Riehl, 504 So. 2d 798, 800 (Fla. 2d

DCA 1987). The issue is not whether the traffic violation

actually occurred, but whether the officer had probable cause to

believe that a violation occurred. State v. Wimberly, 988 So. 2d

116, 119–20 (Fla. 5th DCA 2008) (holding that a stop based

on illegally tinted windows was not invalid merely because the

window tint was legal). The officer who made the stop testified

at a hearing on Defendant’s pro se motion to suppress that he

observed Defendant riding a bicycle without a registration in St.

Petersburg. Even if Defendant was not actually a St. Petersburg

resident, the officer had probable cause to stop Defendant based

on the lack of registration and his presence in St. Petersburg.

There was therefore no basis for a motion to suppress, and

counsel was not deficient. Ground one is denied.

Contrary to Thomas’s contention, the record supports a finding of probable

cause to stop Thomas. Officer Mach observed Thomas riding a bicycle that lacked

the registration required under local ordinance. An officer’s decision to initiate a

traffic stop is generally reasonable “where the police have probable cause to believe

that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810

(1996). Based on his observation of Thomas, Officer Mach had sufficient probable

cause to stop and detain Thomas for failing to comply with the local ordinance

requiring a resident to both register a bicycle and display the registration. See, e.g.,

United States v. Barker, 2013 WL 6231282 at *3 (M.D. Fla. 2013) (“Thus, even if

the Court accepted Defendant's testimony that he was not riding his bicycle in the

middle of the road as credible, which the Court does not, the officers still had

probable cause to stop and detain Defendant given that it was after sunset, and

Defendant’s bicycle was not properly equipped with a light in violation of Florida

Statute § 316.2065(7). Thus, the officer’s stop and subsequent detention of

Defendant to investigate the bicycle infractions did not violate Defendant’s Fourth

Amendment rights).

Thomas establishes neither deficient performance nor resulting prejudice

from counsel’s alleged error. Strickland, 466 U.S. at 691–92. Thomas fails to meet

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

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

(d)(2).

Ground Two of Rule 3.850 motion

Thomas alleges that his trial counsel rendered ineffective assistance by

not “mov[ing] to suppress the items seized in the search following his unlawful

stop.” (Doc. 1 at 25) The state post-conviction court denied this ground as follows

(Respondent’s Exhibit 15, Order Denying Defendant’s Motion for Postconviction

Relief at 3–4) (court’s record citations omitted):

In ground two, Defendant alleges that counsel failed to move to

suppress a search incident to arrest. He alleges that the victim

testified in deposition that she saw the clothes from Defendant’s

backpack before she identified Defendant. He argues that the

police must therefore have searched his backpack and removed

the clothes before she identified him as the perpetrator. He

alleges that any search was unreasonable prior to the victim’s

identification. He alleges that he would have been acquitted if

counsel had brought these facts to the Court’s attention.

Ground two is without merit because it continues to be

facially insufficient, it is refuted by the record, and Defendant

was not prejudiced. First, ground two continues to be facially

insufficient because it does not allege that the motion would

have been granted. In order to establish prejudice as the result

of a failure to file a motion to suppress, a defendant must also

demonstrate that the motion would have been successful and

the evidence would have been excluded. See Kormondy v. State,

983 So. 2d 418, 430 (Fla. 2007); accord Kimmelman v. Morrison,

477 U.S. 365, 375 (1986); Zakrzewski v. State, 866 So. 2d 688,

694 (Fla. 2003). Even after an opportunity to amend,

Defendant has not specifically alleged that the motion would

have been granted and the evidence would have been excluded.

It therefore continues to be facially insufficient.

Regardless, counsel was not deficient because Defendant’s

allegations are refuted by the record. While Defendant alleges

that the victim testified that she saw the clothes before she

identified Defendant, he has taken her testimony out of context.

In context, it is clear that the victim’s testimony Defendant

cites was a misunderstanding. The victim initially testified as

Defendant alleges.[6] Counsel continued to ask her questions to

clarify her testimony:

6 The victim testified in her deposition (Respondent’s Exhibit 15, attach. C to final order

denying Rule 3.850 motion at 10–11):

Q: Okay, now let me ask you this. Did you see the clothes from the

backpack, or from wherever they had them, did you see that before

you were asked to identify him?

(continued…)

Q. Okay. But what I'm trying to find out is did

you see the clothes before you saw the person

standing next to the police car, or did you see the

guy standing next to the police car first?

A. I saw the guy first.

Q. Okay, and then they showed you the clothes.

A. Yes.

A: Yes.

Q: So you knew about the clothes before you saw the person?

A: Yeah.

Q: Did they tell you that the clothes that you were shown came out

of that guy’s backpack?

A: No. I said when he told me, the sheriff, the police look in the bag,

they cannot see, you know, they pull the stuff and the mask and the

stuff, you know, I told him that’s the stuff he was wearing. And that’s

the nylon socks and they found that in his bag, the nylon socks, the

one he was wearing.

Q: Okay. But did you identify those clothes before or after you saw

the person?

A: Oh no, before I told him what he was wearing. I told him he was

wearing [a] jacket.

Q: All right.

A: Dark color.

Q: Right?

A: And the pant[s], like khaki color dark. But I’m not sure, you

know, because — but I’m sure that’s him.

Q: Okay. But what I’m trying to find out is did you see the clothes

before you saw the person standing next to the police car or did you

see the guy standing next to the police car first?

A: I saw the guy first.

Q: Okay, and then they showed you the clothes[?]

A: Yes.

confused as to counsel’s question initially, but she ultimately

testified that she saw Defendant first, then saw the clothes. This

is consistent with Officer Scott Cameron’s trial testimony that

he conducted a search of the backpack after the victim told him

that Defendant was wearing different clothes. There is therefore

no basis for Defendant’s allegation that the search occurred

prior to the identification. Ground two is denied.

To obtain relief on an ineffective assistance of counsel claim for failing to file a

motion to suppress, Thomas must prove that (1) counsel’s representation fell below

an objective standard of reasonableness, (2) he has a meritorious Fourth Amendment

claim, and (3) a reasonable probability of a different verdict exists absent the

excludable evidence. Zakrzewski v. McDonough, 455 F.3d 1254, 1260 (11th Cir. 2006)

(citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).

Thomas fails to show that he has a meritorious Fourth Amendment claim.

Thomas presents no evidence showing that his arrest was unlawful. Accordingly,

a motion to suppress the contents of the backpack obtained as a result of a search

incident to his lawful arrest would have failed. Thomas also presents no evidence

to substantiate his allegation that the police impermissibly showed the victim the

contents of the backpack before she identified Thomas as the perpetrator. Because

Thomas fails to establish a meritorious Fourth Amendment claim, he cannot sustain

his ground of ineffective assistance of counsel for not filing a motion to suppress this

evidence. Zakrzewski, 455 F.3d at 1260. Thomas fails to meet his burden of proving

that the state court either unreasonably applied Strickland or unreasonably

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

Ground Three

Thomas contends that his trial counsel rendered ineffective assistance by

not moving to suppress the victim’s show-up identification of Thomas. Thomas

argues that when the victim identified him, he was surrounded by police officers and

was the only black male at the scene. He further argues that he did not match the

description of the suspect and that the police showed the victim the contents of his

backpack — including clothing worn during the robbery — before the victim

identified him. Thomas alleges that his trial counsel should have moved to suppress

the victim’s identification based on this allegedly suggestive identification procedure.

The state post-conviction court denied this ground as follows (Respondent’s

Exhibit 15, Order Denying Defendant’s Motion for Postconviction Relief at 4–6)

(court’s record citations omitted):

In ground three Defendant alleges that counsel should have

moved to suppress the show-up identification. He alleges that

the victim was asked to identify him while he was handcuffed,

after she had been shown the clothes, and where there were no

other black males. Defendant alleges that he would have been

acquitted if counsel had brought these facts to the Court’s

attention.

Ground three is without merit because it continues to be

facially insufficient and the motion would have been denied if

counsel had made it. First, this ground continues to be facially

insufficient because Defendant does not specifically allege

that the motion would have been granted and the evidence

excluded. See Kimmelman, 477 U.S. at 375; Kormondy, 983

So. 2d at 430; Zakrzewski, 866 So. 2d at 694. Second, this

motion would have been denied. “[S]how-ups are not invalid

unless the police aggravate the suggestiveness of the

confrontation or the procedure gives rise to a substantial

likelihood of irreparable misidentification under the totality

of the circumstances.” Jenkins v. State, 96 So. 3d 1110, 1112

(Fla. 1st DCA 2012). Keeping a suspect in handcuffs does not

totality of the circumstances, including the length of time

between the crime and the confrontation and the witness’s

opportunity to view the criminal at the time of the crime,

degree of attention, accuracy of prior description, and level

of certainty. Perez v. State, 648 So. 2d 715, 719 (Fla. 1995).

The police did not aggravate the suggestiveness of the

identification and there was not a substantial likelihood of

irreparable misidentification in this case. The victim identified

Defendant the same day as the crime, about half an hour after

the crime occurred. She testified that she got a good view of

Defendant’s face when he was close to her, in the daylight,

before he put a stocking over his head. Her prior description

of Defendant to the police, although not incredibly detailed,

was accurate — as demonstrated by the picture attached

to Defendant’s motion, he was a muscular, older, bald

African-American male. When asked to identify Defendant,

she recognized him even though he was wearing different

clothing and noted that his clothing was different. The clothing

that she testified Defendant was wearing during the robbery

was found in his backpack. She testified that she was sure of

her identification. Like in Jenkins, the fact that Defendant was

in handcuffs, by itself, does not invalidate the identification.

The fact that he was the only black male is inherent in a one-

on-one show-up, and, as addressed in ground two, the victim

was not shown the clothes before she identified Defendant. The

police did not do anything else to aggravate the suggestiveness.

Accordingly, the totality of the circumstances does not give

rise to a substantial likelihood of irreparable misrepresentation

and the police did not aggravate the suggestiveness of the

procedure. A motion to suppress the identification would

therefore be denied, and counsel was not deficient for failing

to make that meritless motion. Ground three 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).

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 out­of­court identification is a

two-step analysis. 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 postindictment 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 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.”).

Thomas fails to show that the identification was unduly suggestive. See, e.g.,

United States v. Walker, 201 F. App’x 737, 741 (11th Cir. 2006) (per curiam) (holding

that a one-on-one identification of an individual in front of a marked patrol car with

his hands cuffed behind his back was not unnecessarily suggestive).7 Even assuming

7 “Unpublished opinions are not considered binding precedent, but they may be cited as

persuasive authority.” 11th Cir. Rule 36-2.

that the show­up identification procedure was unduly suggestive, based on the

totality of the circumstances, the victim’s identification was reliable. Cikora v. Dugger,

840 F.2d 893, 895 (11th Cir. 1988). The victim testified that she had the opportunity

to view Thomas when he entered the store and came face-to-face with her. The

victim saw Thomas in broad daylight and had the opportunity to see his face before

he put the stocking over his head. The victim provided the police with a physical

description of the perpetrator and his clothing before she was taken to the show-up

and unequivocally identified Thomas at the arrest scene less than an hour after the

crimes despite Thomas changing his clothes.

Even if the show­up identification was suggestive, the identification was

reliable. Biggers, 409 U.S. at 199–200; Johnson, 817 F.2d at 729 (holding that

because the Neil factors were met, the eyewitness’s “out-of-court identification was

not unreliable even if it had been impermissibly suggestive, and [the] trial was not

rendered fundamentally unfair by the trial court’s admission of [the eyewitnesses’]

testimony”). Because no constitutional defect exists in the victim’s out-of-court

identification, trial counsel had no basis to move to suppress the identification.

Thomas fails to meet his burden of proving that the state court either unreasonably

applied Strickland or unreasonably determined the facts by rejecting this ground.

28 U.S.C. § 2254(d)(1), (d)(2).

Accordingly, Thomas’s application for the writ of habeas corpus (Doc. 1) is

DENIED. The clerk must enter a judgment against Thomas and close this case.

DENIAL OF BOTH

A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Thomas is not entitled to a certificate of appealability (“COA”). A prisoner

seeking a writ of habeas corpus has no absolute entitlement to appeal a district

court’s denial of his application. 28 U.S.C. § 2253(c)(1). 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, Thomas 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, Thomas

is entitled to neither a COA nor leave to appeal in forma pauperis.

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

forma pauperis is DENIED. Thomas must obtain permission from the circuit court to

appeal in forma pauperis.

ORDERED in Tampa, Florida, on September 30, 2020.

Mia Wnrryelurs

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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