Hayes v. Secretary, Florida Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

RICHARD LEROY HAYES,

Petitioner,

v. Case No. 3:17-cv-1159-J-32PDB

SECRETARY, FLORIDA

DEPARTMENT OF

CORRECTIONS, et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, Richard Leroy Hayes, an inmate of the Florida penal system,

initiated this action by filing a pro se Petition for Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2254. See Doc. 1. He challenges a state court (Duval

County, Florida) judgment of conviction for possession of a firearm by a

convicted felon and possession of cocaine while armed, for which he is serving a

cumulative twelve-year term of incarceration as a Habitual Felony Offender.

See id. Respondents filed a Response. See Doc. 12.1 And Petitioner filed a Reply.

See Doc. 15. This case is ripe for review.

1 Attached to the Response are numerous exhibits. See Doc. 12-1 through Doc.

12-10. The Court cites to the exhibits as “Resp. Ex.”

II. Governing Legal Principals

A. Standard Under AEDPA

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). “‘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. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense counsel’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a

person must show that: (1) counsel’s performance was outside the wide range of

reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

Notably, there is no “iron-clad rule requiring a court to tackle one prong

of the Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th

Cir. 2010). Since both prongs of the two-part Strickland test must be satisfied

to show a Sixth Amendment violation, “a court need not address the

performance prong if the petitioner cannot meet the prejudice prong, and vice-

versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As

stated in Strickland: “If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, which we expect will often be so, that

course should be followed.” 466 U.S. at 697.

“The question is not whether a federal court believes the state court’s

determination under the Strickland standard was incorrect but whether that

determination was unreasonable - a substantially higher threshold.” Knowles

v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If there is

“any reasonable argument that counsel satisfied Strickland’s deferential

standard,” then a federal court may not disturb a state-court decision denying

the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting Strickland’s high

bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

“Reviewing courts apply a ‘strong presumption’ that counsel’s representation

was ‘within the wide range of reasonable professional assistance.’” Daniel v.

Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting

Strickland, 466 U.S. at 689). “When this presumption is combined with §

2254(d), the result is double deference to the state court ruling on counsel’s

performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y, Dep’t

of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,

concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).

III. Analysis

Ground One

Petitioner argues his trial counsel was ineffective for failing to challenge

the legality of the traffic stop that led to evidence being illegally seized from

Petitioner’s vehicle. Doc. 1 at 4. He contends that police conducted the stop and

issued a citation for “improper parking within an intersection”; however, the

conduct police stated they observed did not amount to such a violation. Id. at 5.

As such, according to Petitioner, the police dismissed that traffic violation and

thus, the resulting criminal charges should have also been dismissed.2 Id.

Petitioner raised this claim in his Florida Rule of Criminal Procedure

3.850 motion for postconviction relief.3 Resp. Ex. G at 4-7. The state filed a

response to the claim, arguing the following, in relevant part:

In the instant case, the Defendant was issued two

traffic citations, to-wit: operating a motor vehicle

without a safety belt in use (Florida Statute

316.614(4)(B)) and improper parking within an

intersection (Florida Statute 316.1945(1)(A)(3)).

Neither of the traffic violations the Defendant received

require another vehicle to be impeded or hindered as

the Defendant argues in his Motion. The statute the

2 Petitioner also argues trial counsel should have filed a motion to suppress.

Doc. 1 at 4-5. The Court addresses Petitioner’s claim regarding trial counsel’s failure

to file a motion to suppress in Ground Two.

3 In his Rule 3.850 Motion, Petitioner also challenged the legality of the traffic

stop based on officers’ alleged racial profiling of Petitioner and that counsel should

have obtained dash cam video footage. Resp. Ex. G at 5-6. Ground One of his Petition,

however, is a more general attack regarding the legality of the stop based on the

asserted traffic violations. Doc. 1 at 5.

Defendant references in his Motion, 316.2045, is

directed at a pedestrian who impedes or hinders traffic.

Thus, it is irrelevant that the arrest and booking report

did not include the information that a car was impeded

or hindered by the Defendant’s vehicle and/or whether

the defense attorney was surprised by that testimony.

Furthermore, and contrary to the Defendant’s

allegation that the officers do not handle traffic

enforcement and are members of a drug hit crew,

Nobles testified that he is a sergeant in Zone 5 and

addresses complaints from citizens, which can include

drug complaints, but also includes many other types of

complaints. Faulkner testified that he was assigned to

a unit that targeted violent crime in Zone 5. Holtsman

and Thompkins both testified that they were Zone 5

patrol officers.

During the trial, Sergeant Nobles testified that

he came into contact with the Defendant based upon a

traffic stop. Specifically, Nobles testified that he first

saw the Defendant parked about one length away from

a stop sign with a gentleman leaning into the passenger

window and a car sitting behind him waiting for him to

move out of the way. Nobles also testified that he

noticed the Defendant was not wearing a seatbelt at the

time. Nobles used a picture on Google map to explain

the exact location of his vehicle and the Defendant’s

vehicle to the jury. Nobles also testified that Officer

Faulkner was driving his patrol car directly behind him

and as he passed the Defendant’s vehicle, he notified

Faulkner that the Defendant was not wearing a

seatbelt and Faulkner confirmed that he also noticed

the Defendant was not wearing a seatbelt. Based upon

his observations, Nobles made a u[-]turn and as soon as

the Defendant pulled in front of him, he turned on his

blue lights to initiate a traffic stop. Nobles testified that

the Defendant did not stop in a normal manner, which

caused him to run up to the Defendant’s vehicle door.

When Nobles ran up to the Defendant’s vehicle, he saw

the Defendant moving what appeared to be a large

clear plastic bag of crack cocaine from the cup holder

into the console. Nobles testified that as he was pulling

the Defendant out of the car based upon the crack

cocaine he had seen, Officer Holtsman alerted him to a

gun in the vehicle. However, Nobles testified that until

he saw the crack cocaine, it was going to be a normal

traffic stop. Finally, Nobles testified that because he is

a sergeant, he is issued a digital camera, which he used

within one minute of the traffic stop to take

photographs of the evidence.

Officer Faulkner testified that he was travelling

behind Nobles when he saw the Defendant stopped in

the roadway just before a stop sign and saw a guy

leaning into the passenger side window of the

Defendant’s car. Officer Faulkner also testified that the

Defendant was not wearing a seatbelt and confirmed

that fact with Nobles. Faulkner testified that both he

and Nobles turned their vehicles around to stop the

Defendant and that at the time of the stop, he was right

behind Nobles. Faulkner further testified that they

reached the driver’s side of the vehicle pretty much

simultaneously and Nobles alerted him to drugs being

present in the vehicle.

Next Officer Holtsman testified that he received

a transmission that several officers were conducting a

traffic stop. Holtsman stated that when he arrived at

the scene of the traffic stop, he walked over to the

passenger side and saw the Defendant attempt to kick

a gun underneath the driver’s seat on the floorboard

and alerted the other officers. Similarly, Detective

Thompkins testified that he received a radio

transmission about a traffic stop and turned around to

head to the stop. When he arrived at the traffic stop, he

started to walk over to the passenger side of the

Defendant’s vehicle but heard Holtsman say there was

a gun so he went to the driver’s side of the vehicle.

Thompkins testified that he saw the Defendant kicking

the firearm.

During closing arguments, the defense attorney

told the jurors that the officers pulled the Defendant

out of the car because they thought he was going to run,

which is illegal so they searched the car to find

something to support the arrest. The State objected and

the court sustained the objection with respect to the

argument that the actions of the officers were illegal.

The defense attorney also tried to argue that the

Defendant was on trial for a false probable cause, which

the court again sustained an objection for and called

the attorneys to a sidebar conference. The court told the

defense attorney that it was highly improper for her to

argue to the jury that the arrest was illegal.

Based upon the traffic tickets that were issued,

the facts as noted in the arrest and booking report and

the testimony of the officers involved in the traffic stop

and arrest of the Defendant, the defense attorney did

not have any grounds to support the filing of a motion

to suppress. Specifically, the only concern under the

Fourth Amendment relative to a traffic stop is the

validity of the basis asserted by the officer involved in

the traffic stop and not the subjective motivations of the

individual officers conducting the stop. Dobrin v.

Florida Department of Highway Safety and Motor

Vehicles, 874 So. 2d 1171, 1173 (Fla. 2004). Thus, a

traffic stop is reasonable under the Fourth Amendment

where a law enforcement officer has probable cause to

believe that a traffic violation has occurred. State v.

Thomas, 109 So. 3d 814, 817 (Fla. 5th DCA 2013), citing

Whren v. United States, 517 U.S. 806, 810 (1996). The

constitutional reasonableness of a traffic stop does not

depend on the subjective motivation of the officer who

stopped the vehicle. Id. and Whren at 813. The term

traffic violation encompasses non-criminal and non-

moving violations. State v. Arevalo, 112 So. 3d 529, 531

(Fla. 4th DCA 2013). Once a stop is made, an officer is

justified in asking a driver to exit the vehicle for officer

safety. Hatcher v. State, 834 So. 2d 314, 316 (Fla. 5th

DCA 2003).

Since June 30, 2009, drivers may be stopped for

not wearing a seatbelt even if it is the primary reason

for the stop as opposed to a secondary action. See

Section 316.614 (Florida Statutes 2009) and Laws of

Florida 2009-32 (2009). Additionally, pursuant to

Section 316.1945, a driver may be stopped for parking

a vehicle on the roadway or within an intersection.

Thus, the traffic stop of the Defendant was valid

pursuant to two different statutes and the Defendant

received traffic citations for both violations. An

attorney is not ineffective for failing to make a

meritless objection. Lugo v. State, 2 So. 3d. 1 (Fla.

2008). If the record conclusively refutes a factual basis

for filing a motion to suppress, it is not ineffective

assistance of counsel to fail to file a motion to suppress.

Jackson v. State, 640 So. 2d 1173 (Fla. 2nd DCA 1994).

Furthermore, if case law demonstrates that a motion to

suppress evidence would not have been successful, then

a claim of ineffective assistance of counsel fails. Ramos

v. State, 559 So. 2d 705 (Fla. 4th DCA 1990). Because

the Defendant has failed to demonstrate that a motion,

even if filed, would have been successful in light of the

evidence in the case, the Defendant has failed to show

he has suffered any prejudice due to counsel’s failure to

file a motion to suppress. Gettel v. State, 449 So. 2d

413, 414 (Fla. 1984) and State v. Freeman, 796 So. 2d

574, 578 (Fla. 2nd DCA 2001). Post-conviction relief is

properly denied where the record rebuts a defendant’s

claim of ineffective assistance. Ferrell v. State, 29 So.3d

959, 971 (Fla. 2010). Accordingly, since the Defendant

has failed to show a prima facie case for relief as to

Ground (A)1 regarding either a legal deficiency, or

prejudice, in his attorney’s failure obtain a dash cam

video that did not exist and failure to challenge the

traffic stop, the State suggests this honorable court

may summarily deny Ground (A)1 of the Defendant’s

Motion based upon the record provided by the State and

the arguments contained within this Response, without

holding an evidentiary hearing.

Resp. Ex. G at 20-25 (record citations omitted). The trial court then summarily

denied Petitioner’s claim, finding the following:

The Court finds that the facts alleged in the

Response to Defendant’s Motion for Post-Conviction

Relief filed by the State of Florida, and the record

excerpts attached thereto, are true and correct. The

Court also adopts the legal conclusions reached by the

State, and for the reasons asserted therein, it is,

ORDERED AND ADJUDGED:

1. Defendant’s pro se Motion for Post-Conviction Relief

is hereby DENIED.

Id. at 154-55. Petitioner appealed, Resp. Ex. H, and the First District Court of

Appeal per curiam affirmed the trial court’s denial without a written opinion,

Resp. Ex. J. Assuming the First DCA affirmed the denial on the merits, the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications.

A traffic stop is a seizure within the meaning of the Fourth Amendment.

Whren v. United States, 517 U.S. 806, 809-10 (1996). To comply with the Fourth

Amendment, the officer must have reasonable suspicion to conduct the traffic

stop. Heien v. North Carolina, 574 U.S. 54, 60 (2014) (“All parties agree that to

justify [a traffic stop], officers need only reasonable suspicion”). That is, the

officer must have “a particularized and objective basis for suspecting the person

stopped of criminal activity.” Navarette v. California, 572 U.S. 393, 396 (2014).

“Criminal activity includes even minor traffic violations.” United States v.

Campbell, 970 F.3d 1342, 1351 (11th Cir. 2020) (holding “a rapidly blinking

turn signal provided [officer] with reasonable suspicion to believe that [the

defendant’s] car was in violation of the traffic code”; and thus, the traffic stop

was lawful). In addition, officers are “entitled to seize evidence revealed in plain

view in the course of the lawful stop” and to arrest passengers of a motor vehicle

“when evidence discovered in plain view [gives] probable cause to believe the

passenger[s] ha[ve] committed a crime . . . .” United States v. Hensley, 469 U.S.

221, 235 (1985) (citing Texas v. Brown, 460 U.S. 730 (1983)).

Here, Sergeant Nobles, an officer who was previously on the sheriff’s

office narcotics task force, testified that he was patrolling Zone 5 when he saw

Petitioner in the driver’s seat of a vehicle that was stopped in the middle of the

street. Resp. Ex. B at 197-204. Nobles stated a pedestrian was leaning into

Petitioner’s passenger side window. Id. at 203-04. Nobles immediately noticed

Petitioner was not wearing a seatbelt and radioed Officer Faulkner, who was

following Nobles, and Faulkner confirmed Petitioner did not have on a seatbelt.

Id. at 204. Nobles then initiated a traffic stop and radioed for officer assistance

because once he was behind Petitioner, Petitioner rapidly accelerated before

pulling into a nearby driveway. Id. at 203. Nobles exited his police cruiser and

approached Petitioner’s vehicle and when he was within “touching” distance, he

looked inside the vehicle’s open window and saw Petitioner moving a large,

clear bag of crack cocaine from the cup holder to the center console. Id. At that

time, Officers Thompkins, Faulkner, and Holtsman arrived at the scene. Id.

Faulkner walked up behind Nobles, and Holtsman walked up to the passenger

side of the vehicle. Id. Nobles signaled to the other officers that there were drugs

in the vehicle before asking Petitioner to step out of the car. Id. at 214-15.

Petitioner voluntarily opened his car door to exit, but “tensed up” before he got

out. Id. At that time, Holtsman notified the other officers that there was a

firearm in the car. Id. Nobles and Faulkner then grabbed Petitioner and

handcuffed him. Id. at 215. Holtsman testified that when Petitioner first opened

his door to get out of the car, he saw a gun lying on the driver’s side floorboard,

and that Petitioner was attempting to kick the gun further under the seat. Id.

at 271.

Operating a vehicle without a safety belt is a violation of Florida Statute

section 316.614(4)(B). Because Petitioner was violating this traffic statute, the

initial traffic stop was lawful. Further, once the officers conducted the lawful

stop, “they were authorized to take such steps as were reasonably necessary to

protect their personal safety and to maintain status quo during the course of

the stop.” Hensley, 469 U.S. at 684. In the course of the stop, officers saw drugs

and a firearm suggesting that Petitioner was engaged in illegal activity and

giving the officers probable cause to arrest Petitioner and subsequently seize

the items. See, e.g., id. (holding that “police were entitled to seize evidence

revealed in plain view in the course of lawful stop, to arrest . . . passenger when

evidence discovered in plain view gave probable cause to believe passenger had

committed a crime, . . . and subsequently to search the passenger compartment

. . . because it was within passenger’s immediate control.”).

Based on this evidence, trial counsel was not deficient for failing to raise

a meritless argument challenging the traffic stop or the subsequent seizure of

the cocaine and firearm. See Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136,

1142 (11th Cir. 2005) (holding counsel cannot be ineffective for failing to raise

a meritless argument); Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir.

1994) (noting that “it is axiomatic that the failure to raise nonmeritorious issues

does not constitute ineffective assistance”). Accordingly, upon thorough review

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

adjudication of this claim was neither contrary to nor an unreasonable

application of Strickland, and it is not based on an unreasonable determination

of the facts in light of the evidence presented to the state court. See 28 U.S.C.

§ 2254(d). Ground One is due to be denied.

Ground Two

Petitioner argues his trial counsel was ineffective for failing to file a pre-

trial motion to suppress the cocaine because it was the product of an illegal

search of his vehicle. Doc. 1 at 6. According to Petitioner, even assuming the

initial traffic stop was proper, officers lacked probable cause to believe that

Petitioner possessed drugs, and thus, could not have searched Petitioner’s

vehicle without his consent. Id. He asserts that officers “pulled” him out of his

car because they thought Petitioner was going to run; however, Petitioner avers

such action is illegal and they “searched Petitioner’s car to find something to

support the arrest.” Id.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. G at 7-11.

The state responded, arguing in pertinent part:

Once a driver is lawfully stopped for a traffic

violation, an officer is authorized to order him out of the

vehicle. Reid v. State, 898 So. 2d 248, 249 (Fla. 4th DCA

2005). In the Beard case, the officer stopped the

defendant for speeding, asked him to step out of the

vehicle and noticed a white powdery substance on the

front seat which he believed to be cocaine. Beard v.

State, 548 So. 2d 675, 676 (Fla. 5th DCA 1989). The

appellate court held that once the officer saw the

substance he believed to be cocaine in plain view in the

vehicle, the officer had the right to arrest and search

incident to arrest. Id. In the case sub judice, as noted in

Ground [(A)](1) above, Sergeant Nobles testified that

he saw the Defendant stopped about one length away

from a stop sign with a gentleman leaning into the

passenger window with a car waiting for him to move

out of the way. Nobles also testified that the Defendant

was not wearing a seatbelt. . . . Thus, Nobles had

probable cause to believe a traffic violation had

occurred. . . . . [And] when an officer stops a vehicle for

a violation of a traffic law, probable cause is present for

the stop. . . . .

Once the Defendant’s vehicle was lawfully

stopped, each officer testified as to what they saw in

terms of the crack cocaine and the firearm being located

inside the vehicle. Specifically, Nobles testified when

he got to the window of the Defendant’s vehicle, he

looked in and the Defendant was in the process of

moving what appeared to be a large bag of crack cocaine

from the cup holder and putting it inside the center

console. Nobles also testified that once the Defendant

moved the cocaine from the cup holder to inside the

console, the Defendant closed the lid of the console.

Thus, Nobles[’] testimony was consistent with the

testimony of Faulkner and Thompkins, who both

testified that the cocaine was inside the closed console

when they arrived at the Defendant’s vehicle. Nobles

further testified that at that point he knew he had

felony charges on the Defendant for the cocaine.

Finally, and contrary to the Defendant’s conclusory and

speculative allegation that his attorney should have

obtained Nobles’ dash cam video, Nobles testified that

he was only issued a digital camera, which he used

within one minute of the traffic stop to take

photographs of the evidence. When the State initially

moved the crack cocaine into evidence, the defense

attorney objected based upon the State failing to lay a

proper foundation and chain of custody. However, the

State was able to lay a proper foundation and the crack

cocaine was admitted over the defense attorney’s

objection. After Officer Holtsman testified, the defense

attorney renewed her motion to suppress the cocaine

based upon the officer’s testimony that the console was

closed at the time he approached the vehicle. The court

denied the defense attorney’s motion to suppress.

. . . .

Because the Defendant has failed to demonstrate

that a motion, even if filed, would have been successful

in light of the evidence in the case, the Defendant has

failed to show he has suffered any prejudice due to

counsel’s failure to file a motion to suppress. . . . In the

case sub judice, as noted above, the record conclusively

refuted the Defendant’s claim that his attorney was

ineffective for failing to file a motion to suppress either

the cocaine in plain view, or the firearm subsequently

located under the driver’s seat, as both were inside the

lawfully stopped vehicle.

Resp. Ex. G at 25-28. The trial court adopted the state’s legal conclusions and

summarily denied Petitioner’s claim. Id. at 154-55. The First DCA per curiam

affirmed the trial court’s denial without a written opinion. Resp. Ex. J.

Assuming the First DCA affirmed the denial on the merits, the Court will

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

review of state court adjudications.

As explained in Ground One, the cocaine and the firearm were in plain

view during the lawful traffic stop; and thus, officers had probable cause to

believe Petitioner was committing a crime, and probable cause to arrest

Petitioner and subsequently conduct a search of his vehicle. See Hensley, 469

U.S. at 684. Trial counsel was not deficient for failing to file a meritless motion

to suppress the cocaine and/or firearm. See Diaz, 402 F.3d at 1142. As such,

upon thorough review of the record and the applicable law, the Court concludes

that the state court’s adjudication of this claim was neither contrary to nor an

unreasonable application of Strickland, and it is not based on an unreasonable

determination of the facts in light of the evidence presented to the state court.

See 28 U.S.C. § 2254(d). Ground Two is due to be denied.

Ground Three

Petitioner argues his trial counsel was ineffective for failing to “prepare

and file a pre-trial motion to depose” state witness Faulkner. Doc. 1 at 8.

According to Petitioner, had counsel properly prepared for this witness, she

would have been able to impeach Faulkner’s trial testimony that he was the

officer who “submit[ted] the gun into property,” because the property storage

card clearly showed that it was Holtsman who provided the gun to the evidence

custodian. Id. Petitioner asserts that had counsel highlighted inconsistencies in

Faulkner’s trial testimony, he would have been found not guilty of the

possession of a firearm charge and would not have been found guilty of

possession of cocaine while armed. Id.

In his Rule 3.850 motion, Petitioner made a general argument that his

trial counsel was ineffective for failing to use depositions to impeach the officers

during trial. Resp. Ex. G at 11-12. The state responded to the claim, explaining

in relevant part:

This is the same argument that the Defendant

presented to the court during his sentencing hearing.

Specifically, he argued that his attorney never

requested to take depositions and that she did not cross

examine the officers regarding the inconsistencies in

the police report.

In the instant case, the State called four police

officers as witnesses during the Defendant’s trial, to-

wit: Sergeant J.C. Nobles, Officer J.M. Faulkner, III,

Officer F.R. Holtsman and Officer G.G. Thompkins. Of

those witnesses, Officer Thompkins wrote the arrest

and booking report and Officers Nobles, Faulkner and

Holtsman were discussed in the report. Additionally,

Officer Faulkner wrote the two traffic tickets. Finally,

the officers were also listed on the State’s initial

discovery. An attorney is not ineffective for failing to

depose a witness if he or she knows what the witness is

going to testify to based upon reports and statements

and there is no reason for the attorney to believe the

witnesses would change their testimony. At the

sentencing hearing on June 25, 2013, the defense

attorney told the court that she explained to the

Defendant that a deposition and an arrest and booking

report are both a sworn statement; therefore, she

decided not to depose the officers. The defense attorney

further stated that she was very clear on what the

officers were going to testify to and there were no

surprises during the trial regarding their testimony.

Finally, the defense attorney noted that there were

certain questions that the Defendant wanted her to ask

when questioning some of the officers during the trial,

but the rules of evidence did not allow her to ask the

questions. However, she did address the

inconsistencies between the officers’ testimony. In fact,

the defense attorney’s cross examination of each officer

that testified was lengthy and detailed and several

inconsistencies were pointed out to the jury. Thus, the

Defendant’s uncorroborated and unsupported

conclusory allegation that his attorney should have

deposed the officers does not establish prejudice

because it fails to establish that the attorney would

have discovered unknown information had [s]he

deposed the witness. Ferrell v. State, 29 So. 3d 959, 969

(Fla. 2010) and Davis v. White, 928 So. 2d 1089, 1117

(Fla. 2005), citing Brown v. State, 846. So. 2d 1114,

1124 (Fla. 2003). Merely alleging that a deposition

would have revealed a number of reliability and

impeachment issues is insufficient to demonstrate

prejudice. Ferrell at 969.

Although an attorney can always be second-

guessed for not doing more, such as deposing a witness

in the hopes the witness will deviate from the

previously provided written and recorded statement,

such speculation is not the standard by which counsel’s

performance is to be evaluated under Strickland.

Kilgore v. State, 55 So. 3d 487, 500 (Fla. 2010). When a

defendant fails to establish prejudice resulting from an

attorney’s decision not to depose a witness, the outcome

of the trial is not undermined and the claim is without

merit. Ferrell at 969. Without a showing of prejudice, a

defendant’s claim of ineffective assistance of counsel

cannot be successful. McCoy v. State, 598 So. 2d 169,

172 (Fla. 1st DCA 1992). Therefore, Defendant’s

allegation fails as the Defendant has failed to

demonstrate a legal deficiency or prejudice.

Resp. Ex. E at 12-14. The trial court adopted the state’s legal conclusions and

summarily denied Petitioner’s claim. Id. at 154-55. Petitioner filed a motion for

rehearing arguing that trial counsel should have impeached Faulkner using the

property storage card.4 Id. at 162, 177. The trial court denied the motion for

rehearing, see id. at 166, and Petitioner argued this fact during his

postconviction appeal, see Resp. Ex. H. The First DCA per curiam affirmed the

trial court’s denial without a written opinion. Resp. Ex. J. Assuming the First

DCA affirmed the denial on the merits, the Court will address the claim in

accordance with the deferential standard for federal court review of state court

adjudications.

As the state noted in its response, during Petitioner’s sentencing hearing,

Petitioner argued he was not able to conduct pre-trial depositions. Resp. Ex. A

at 199. His trial counsel explained to the trial court that she considered

4 Respondents argue that Petitioner failed to present this sub-claim to the trial

court, and thus, it is unexhausted. Resp. at 29-30. Respondents, however, fail to

acknowledge this claim was raised in Petitioner’s motion for rehearing.

deposing the officers but made a strategic decision to not do so. Id. at 205. She

made the following statement:

I did indicate to Mr. Hayes that a deposition is a sworn

statement, an arrest and booking report narrative is a

sworn statement, and that the police would testify to

what was in the sworn statement and that could be

used to impeach them. I did make the decision not to

depose the officers. That was my decision to be made,

and I felt it necessary, and I was very clear on what the

officers were going to testify to. And much of what they

said, there were no real surprises in trial.

Id. Further, during trial counsel’s cross-examinations of the officers, she

challenged Nobles’ credibility about the location of all the officers during the

traffic stop, Resp. Ex. B at 232-35; elicited testimony from Faulkner that he did

not see any cocaine or a firearm until after Petitioner’s arrest, see id. at 259;

and highlighted that Holtsman also did not see the cocaine until after

Petitioner’s arrest, see id. at 279. Trial counsel also questioned Thompkins at

length regarding the contents of the arrest and booking report and the

inconsistencies between the report and the evidence produced at trial. Id. at

303-07. As such, “the challenged action might be considered sound trial

strategy”; and Petitioner has failed to demonstrate deficient performance.

Strickland, 466 U.S. at 689.

In addition, even assuming trial counsel was deficient in failing to

impeach Faulkner with the property storage card after he testified that he

submitted the firearm to the property custodian, Petitioner cannot demonstrate

the necessary prejudice under Strickland. Although the subject property

storage card for which Petitioner relies provides that the “Submitting Officer”

of the firearm was Holtsman, see Resp. Ex. G at 177, the name of the “Reporting

Officer” was redacted, and thus, Faulkner’s participation in transferring

custody of the firearm to the property custodian cannot be entirely excluded.

Also, assuming trial counsel did impeach Faulkner with the property storage

card, Petitioner fails to argue or demonstrate that the state would have been

prohibited from presenting the firearm as evidence during Holtsman’s trial

testimony. As such, Petitioner has failed to show that but for trial counsel’s

alleged failure, the outcome of his trial would have been different. Accordingly,

upon thorough review of the record and the applicable law, the Court concludes

that the state court’s adjudication of this claim was neither contrary to nor an

unreasonable application of Strickland, and it is not based on an unreasonable

determination of the facts in light of the evidence presented to the state court.

See 28 U.S.C. § 2254(d). Ground Three is due to be denied.

Ground Four

Petitioner argues that the postconviction court erred in failing to allow

Petitioner an opportunity to amend his Rule 3.850 motion before summarily

denying his claims. Doc. 1 at 10. He also claims that the postconviction court

failed to attach to its order relevant portions of the record supporting its

summary denial. Id.

Petitioner’s claims that the state court made errors in his postconviction

proceedings solely addresses Florida law and does not include any federal

constitutional infirmity. Such claims that do not present a constitutional

challenge to the validity of Petitioner’s judgment and sentence are not

cognizable on federal habeas review. See Spradley v. Dugger, 825 F.2d 1566,

1568 (11th Cir. 1987) (argument that the state court failed to attach relevant

portions of the record to refute Rule 3.850 motion does not undermine validity

of the petitioner’s conviction, and thus, does not state a basis for habeas relief);

see also Rolack v. Jones, No. 15-CV-22270-WILLLIAMS, 2016 WL 10707030, at

*27 (S.D. Fla. Nov. 2, 2016) (holding the petitioner’ claim that state

postconviction court failed to allow him leave to amend his Rule 3.850 motion

not cognizable on § 2254 habeas review). As such, Ground Four is due to be

denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) 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

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 7th day of

December, 2020.

□□□ Limothy Corrigan

Ww TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Richard Leroy Hayes, #J23838

Holly Noel Simcox, Esq.

5 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. 4738, 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 (2008) (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.

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