Ford v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KENNETH FORD,

Petitioner,

v. Case No. 3:15-cv-750-TJC-JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, is proceeding on a pro

se Amended Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 filed on

May 16, 2019 (mailbox rule). See Doc. 19. He challenges a state court (Columbia

County, Florida) judgment of conviction for second degree murder and first

degree arson for which he is serving life imprisonment. Id. Respondents filed a

Response with exhibits. See Doc. 20.1 Petitioner filed a Reply. See Doc. 24. This

case is ripe for review.

1 Attached to the Response are numerous exhibits. See Docs. 20-1 to 20-15. The Court

cites to the exhibits as “Resp. Ex.”

II. Governing Legal Principles

A. Standard of Review

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

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

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

2016). “‘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.” Richter, 562 U.S. at 101 (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 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); Strickland v. Washington,

466 U.S. 668, 687 (1984)). Courts employ a two-part test when reviewing

ineffective assistance of counsel claims. See Strickland, 466 U.S. at 687.

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” 466 U.S. at 688. A court considering

a claim of ineffective assistance must apply a “strong

presumption” that counsel’s representation was

within the “wide range” of reasonable professional

assistance. Id. at 689. The challenger’s burden is to

show “that counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. at 687.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694. It is not enough

“to show that the errors had some conceivable effect on

the outcome of the proceeding.” Id. at 693. Counsel’s

errors must be “so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Id. at

687.

Richter, 562 U.S. at 104 (internal citations modified).2

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). Both prongs of the two-part Strickland test must be satisfied to show a

Sixth Amendment violation; thus, “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)). “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.”

Strickland, 466 U.S. at 697.

2 This two-part Strickland standard also governs a claim of ineffective assistance of

appellate counsel. Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016).

“Appellate counsel has no duty to raise every non-frivolous issue and may reasonably

weed out weaker (albeit meritorious) arguments. Generally, only when ignored issues

are clearly stronger than those presented, will the presumption of effective assistance

of counsel be overcome.” Id. (internal quotations and citations omitted). To satisfy the

prejudice prong, a petitioner must show a reasonable probability that “but for the

deficient performance, the outcome of the appeal would have been different.” Black v.

United States, 373 F.3d 1140, 1142 (11th Cir. 2004); see also Philmore v. McNeil, 575

F.3d 1251, 1264-65 (11th Cir. 2009) (prejudice results only if “the neglected claim

would have a reasonable probability of success on appeal”)

A state court’s adjudication of an ineffectiveness claim is afforded great

deference.

“[T]he standard for judging counsel’s representation is

a most deferential one.” Richter, 562 U.S. at 105. But

“[e]stablishing that a state court’s application of

Strickland was unreasonable under § 2254(d) is all the

more difficult. The standards created by Strickland

and § 2254(d) are both highly deferential, and when

the two apply in tandem, review is doubly so.” Id.

(citations and quotation marks omitted). “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.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014) (internal

citations modified). In other words, “[i]n addition to the deference to counsel’s

performance mandated by Strickland, the AEDPA adds another layer of

deference--this one to a state court’s decision--when we are considering whether

to grant federal habeas relief from a state court’s decision.” Rutherford v.

Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such, “[s]urmounting

Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,

371 (2010).

III. Analysis

Petitioner’s allegations in each ground are not a model of clarity.

However, in each ground, Petitioner cites and refers to specific claims he raised

in his direct appeal, Rule 3.850 proceeding, and ineffective assistance of

appellate counsel proceeding. Given his citations to those claims previously

raised in the state courts, this Court assumes Petitioner is attempting to raise

the same claims here.

A. Ground One

Petitioner argues that his trial counsel was ineffective during the

January 20, 2011 hearing on Petitioner’s motions to suppress. Doc. 19 at 7. He

asserts that his counsel “fail[ed] to object to the court not being able to view

incriminating video evidence, and that counsel made unprofessional and

damaging remarks about this video recording.” Id. at 8. He further argues that

counsel failed to use Detective Williams’ statement—“obviously you know what

we want to talk to you about is what happened at the house there”—to show

that Williams’ stated reasons for reinitiating contact with Petitioner after he

invoked his right to counsel were a pretext, and “[c]ounsel deprived Petitioner

of his 6th Amendment right to confront [Williams] with his statement of ‘what

happened at the house.’” Id. at 8-9 (emphasis omitted). Additionally, Petitioner

contends that his appellate counsel was ineffective for failing to raise these

issues. Id. at 9. Petitioner references claim 1 on his direct appeal; claims 5, 7,

and 10 from his state court amended Rule 3.850 motion; and issues 1 and 2 from

his petition raising ineffective assistance of appellate counsel claims. Id. at 7-9.

Before trial, Petitioner’s counsel filed three motions to suppress various

statements made by Petitioner. On January 20, 2011, the trial court held a

hearing on the motions, and on February 2, 2011, the court entered an order

granting in part and denying in part Petitioner’s requests. See Resp. Ex. B at

253-56. In the order, the court classified Petitioner’s statements as follows:

“Statement A: Polk County, Florida interview (June 8th) – where Ford was held

on a violation of pretrial release; Statement B: in police vehicle on trip from

Polk County to Columbia County, Florida (June 8th, afternoon); Statement C –

at Columbia County Jail (June 9th).” Id. at 253.3 The court further divided

Statement C into two parts: “C-1 (regarding the contents of Ford’s vehicle); and

C-2 (about the burning of the mobile home/setting of the fire).” Id. at 254. The

trial court ultimately denied Petitioner’s request as to Statement A, finding that

Petitioner’s statement—“not talking to ya’ll no more”—was a “very brief phrase

in the midst of two/three people talking [and] was very hard to hear, and was

not clear, unequivocal.” Id. Additionally, the court noted that Petitioner had

been given appropriate Miranda4 warnings, and his “actions (continuing to talk

3 The state conceded the impropriety of Statement B, and the trial court granted

Petitioner’s request to suppress Statement B. See Resp. Ex. B at 253.

4 Miranda v. Arizona, 384 U.S. 436 (1966).

freely almost immediately after the phrase) were totally inconsistent with any

invocation of [his] right to remain silent, right to counsel, etc.” Id. Regarding

Statement C, the trial court reasoned:

C-1 was a very brief discussion when Mr. Ford

was in the Columbia County Jail. It occurred after a

search warrant for Mr. Ford’s vehicle had been signed

by a judge, after the search warrant had been read to

Mr. Ford in the jail; and after the deputies searching

the car saw items inside which appeared to be

potentially incendiary, hazardous, dangerous, and/or

explosive; and were similar to items they had seen in

the manufacture of methamphetamine. The vehicle

was in close proximity to the jail, and posed an

immediate potential danger to officers, employees,

and/or persons incarcerated.

Statement C-1 involved an officer approaching

Mr. Ford only about the hazardous substance(s) in the

vehicle. The defendant confirmed the bottles were

used for making a kind of methamphetamine [Ford

had earlier discussed with these officers meth-

making of a type he called “shake-n-bake”]. As a

result of the officer’s observations, and Mr. Ford’s

confirmation(s) - the vehicle was rolled/pushed away

from the jail, a federal D.E.A. unit was brought on-

site, hazardous materials (haz-mat) procedures

including full-body suits for safety were used.

Without doubt, the officers had every reason to

believe (probable cause to believe) an

exigent/imminent circumstance/danger existed, and

public safety [including incarcerated citizens who had

no ability to voluntarily leave] was threatened.

Statement C-1 is admissible on one or more basis,

including under the public safety exception (N.Y. vs.

Quarles, 104 S.Ct. 2626 (1984) and its progeny[)].

During the very brief, focused C-1 statement,

Mr. Ford brought up to Detective Williams -

unprompted - that he wanted to discuss other matters

with the authorities (paraphrase: ... I want to talk to

you, straighten this other out... ). Detective Williams

told Mr. Ford to wait, they had to deal with the safety

issue. Detective Williams informed other officers

(Nydam, Lussier) of Mr. Ford’s desire to speak with

them without an attorney, and proceeded to interview

him. This is statement C-2. Once again, Mr. Ford was

very talkative, anxious to speak, and even recited

part/most of the standard Miranda warnings to the

officers as they gave the warnings to him.

Later on in the C-2 statement, Mr. Ford says:

he wants a lawyer ... will not answer another question

(paraphrase). Questioning ceased, but even then Mr.

Ford continues to say more[] like: I’ll talk to you, but

... guys in weeds did that shit (paraphrase). The

statement C-2 Motion to Suppress is likewise

DENIED.

Resp. Ex. B at 254-56.

Subsequently, on January 22, 2013, the trial court entered the following

order regarding Statement C-2:

This matter came before the Court for hearing

on May 21, 2012 on Defendant’s Motion to suppress

statements obtained July 9, 2009 at the Columbia

County Jail. Pursuant to the agreed upon disposition

of the motion as announced in open court with the

Defendant present it is ORDERED and ADJUDGED

as follows:

1. The motion is granted to the extent that any

and all statements given by Defendant to law

enforcement at the Columbia County Jail prior

to defendant being advised of his Miranda

rights are suppressed. The suppressed

statements are more specifically identified as

those statements appearing in the transcript of

the statement filed herein on June 6, 2012

beginning at page 4, line 17 through page 13,

line 2.

2. The motion is denied as to the remaining

portions of the statement which are those

statements beginning at page 1, line 1 through

page 4 line 16 and beginning on page 13, line 3

to the end of said transcript.

Resp. Ex. C at 497-98.

On direct appeal, Petitioner, through counsel, filed an initial brief raising

as the only issue whether the trial court erred in denying Petitioner’s motions

to suppress statements A and C. Resp. Ex. T. The state filed an answer brief,

Resp. Ex. U, and Petitioner filed a counseled reply, Resp. Ex. V. The First

District Court of Appeal per curiam affirmed without issuing a written opinion

and denied Petitioner’s motion for rehearing. Resp. Ex. W; see Ford v. State of

Florida, No. 1D13-1209 (Fla. 1st DCA).

Petitioner subsequently filed an amended Rule 3.850 motion, in which he

claimed that his trial counsel was ineffective with respect to the suppression

issues (grounds 5, 7, and 10). The postconviction court denied the claims,

finding as follows:

GROUND FIVE . . .

The Defendant alleges that his trial counsel was

ineffective because he should have moved for

rehearing on the trial court’s suppression order

because the trial court allegedly “mixed statements

made in ‘A’ into it[]s denial of statement ‘C-2’.” The

Defendant further alleges that the trial court

paraphrased from statement “A” rather than “C-2” in

its denial to suppress statement “C-2.”

On December 17, 2010, the Defendant’s trial

counsel filed three separate motions to suppress

statements made to law enforcement on June 8-9,

2009. The trial court held a hearing on these motions

to suppress on January 20, 2011; for reasons unknown

to the undersigned, this hearing was not

transcribed.[5] On February 2, 2011, the trial court

judge, in his order, labeled the various statements

using the letters A-C, the Statement C had two sub-

parts. The trial court denied the suppression of

Statements “A,” “C-1,” and “C-2,” and based upon the

State’s concession, granted the motion to suppress

Statement “B.”

The underlying claims, that “the trial judge

erred in denying the defense motion to suppress [the

Defendant]’s statement to the police on June 9, 2009,”

was raised on direct appeal. In this lengthy brief, the

Defendant’s appellate counsel argued why the trial

court erred in admitting the statements that trial

counsel sought to suppress. However, the Defendant’s

appeal on this issue—and any other issues—was

unsuccessful, as the First District issued a per curiam

affirmed opinion in 2014. Therefore, this argument

clearly lacks merit, and “[t]rial counsel cannot be

ineffective for failing to pursue meritless arguments.”

Accordingly, Ground Five is denied.

. . . .

GROUND SEVEN . . .

The Defendant alleges that his trial counsel

should have made a “meaningful” argument

concerning suppression of the June 9, 2009, interview

5 The transcript of this hearing was filed at Resp. Ex. F.

with law enforcement. He claims that law enforcement

inquired about what occurred at the crime scene

rather than focusing on the potential safety issue,

which is in violation of New York v. Quarles, 467 U.S.

649 (1984). As a result, such statements should have

been suppressed. This claim, like the other grounds in

the instant motion, is poorly written and difficult to

understand. However, it appears that the Defendant

contends that law enforcement used the safety issue

(the methamphetamine lab) as a pretext for inquiring

about the arson and homicide. He also argues that law

enforcement ignored the Defendant’s request for

counsel and “deliberately delayed giving Miranda, not

for safety but to induce [the Defendant]’s cooparation

[sic] in the ingoing [sic] investigation of the fire.”

The Defendant specifically challenges the

statement made by law enforcement that sought to

change the topic from the safety concern to the

investigation: “Obviously you know what we want to

talk to you about is what happened at the house

there.” This exact quote appears in an interview with

law enforcement that occurred on June[] 9, 2009, the

transcript of which was filed with the Columbia

County Clerk of the Court on June 6, 2012 [(Statement

C-2)]. Per the trial court’s “Order on Motion to

Suppress Statement Obtained July 9, 2009 at

Columbia County Jail,” a significant portion of this

interview was suppressed. In fact, the suppression

began with the line immediately following this

statement by law enforcement and continued until the

Defendant was reminded of his Miranda rights at page

13, lines 3 through 10. Moreover, an even more limited

version of this transcript was admitted at trial,

whereby nothing preceding the reminder of the

Defendant’s Miranda rights was admitted. Therefore,

any and all of the statements made after the statement

by law enforcement that the Defendant challenges,

until the Defendant was reminded of his Miranda

rights, was not used at trial. Accordingly, trial counsel

cannot be ineffective for failing to make a meaningful

argument to suppress this because it was not admitted

at trial, and much of it was, in fact, suppressed. As

such, there certainly was no prejudice. Ground Seven

is denied.

. . . .

GROUND TEN . . .

The Defendant, in addition to the claim

contained in the subheading, raises additional

allegations, many of which were previously addressed.

These will be addressed with this court’s analysis and

findings below.

In the subheading, the Defendant claims that

his trial counsel admitted that there was another case

that was more important than the Defendant’s. The

Defendant somewhat misstates or inaccurately recalls

what occurred at the March 12, 2012, hearing. First,

the hearing was held as a result of the Defendant’s pro

se motion seeking additional counsel. In response, the

Defendant’s trial counsel explained that he had just

resolved the prior case that he was “almost obsessed

with” and that his office would now be focusing on the

Defendant’s case:

Very briefly, Your Honor. I really wish I

got along as well with all my clients as Kenneth

and I do. And, you know, he’s expressed his --

and since, and, you know, I’ve made him aware

of this, since about August we have been

shorthanded down in our office. We’re up to full

speed right now and I just resolved a case that I

was almost obsessed with. It’s over with now.

And some time has freed up, we have gotten

some people that are wanting to get involved in

this case in our office, I plan on bringing them

in. Because quite frankly for two reasons,

obviously, yes, it is better to have two heads

than one, and, secondly, we are in the process of

trying to get some more people qualified to these

type cases. So, it’s going to be a mutually

beneficial relationship there because we’re going

to get one and maybe two more lawyers involved

in this case. And I think that helps us out and it

will give Mr. Ford, hopefully, the comfort of what

he wants. Now, I will point out that we’re not

going to have one lawyer tagging around with

the other one just so there will be two heads

there. So, you know, I’ll be handling still all the

preliminary court proceedings and things of that

nature. But, as far as finishing up, we’re fairly

close to finishing up the mitigation investigation

and things of that nature. Yeah, there will be

other lawyers involved in that. Oh, yes, sir, there

will be other lawyers involved in that.

This transcript further illustrates that the

Defendant’s case was a priority and that additional,

qualified attorneys would be working on this case.

Therefore, the Defendant’s trial counsel did not

indicate, in open court, that the Defendant’s case was

less important than others. To the contrary, trial

counsel explained that additional attorneys would be

brought on to work on this capital case. Accordingly,

the Defendant’s allegation is refuted by the record and

meritless.

The Defendant also raises four brief allegations

of ineffective assistance of counsel in the body of this

ground: (1) trial counsel withheld the video evidence,

which allegedly forced the Defendant to accept the

agreement regarding suppression of part of the

interview; (2) trial counsel withheld the transcripts

and misled the Defendant about the content of the

statements, which ultimately left the most damaging

portion of the interview in evidence, and prevented the

Defendant from having an opportunity to testify; (3)

trial counsel, in private, allegedly told the Defendant

that his future election was at stake and that the

Defendant was “just going to have to fight it out in the

appeals court”; and (4) trial counsel mentioned that

the Defendant[] had confessed and indicated that the

Defendant’s claim regarding another person being at

or around his house was unbelievable.

The first two allegations, concerning the

suppression of his confession, have been extensively

discussed in this order. This Court has previously

found that trial counsel’s conduct regarding

suppression of the Defendant’s interview with law

enforcement was not ineffective because he

successfully got a major portion of that interview

suppressed and that no prejudice resulted because the

only portion used was that which occurred after the

Defendant was reminded of his Miranda rights. It is

not his trial counsel’s fault or the result of his action

or inaction that the most damning portion of the

Defendant’s interview came after the Defendant was

reminded of his rights yet continued to discuss this

matter and confess to law enforcement. Moreover, the

Defendant’s potential testimony at the suppression

hearing would not have altered the outcome as the

State only used a portion of the interview that

occurred after Miranda warnings at trial.

The third allegation cannot be proved by the

Defendant as it did not occur on the record.

Nonetheless, even if this Court were to accept it as

true, it does not impact what trial counsel did in open

court. Thus far, the Defendant has not offered any

meritorious allegation of wrongdoing or incompetence

committed by his attorney during the Defendant’s

pretrial procedures or jury trial. Therefore, even if the

Defendant’s trial counsel made such an unprofessional

remark to the Defendant, which this Court does not

necessarily believe occurred, this alone—without

actual proof of deficient performance and prejudice—

is insufficient for an ineffective assistance of counsel

claim.

The fourth allegation is also meritless. In his

opening statement, the Defendant’s trial counsel was

attempting to discredit the statements that the

Defendant made during the drive back from Polk

County to Columbia County by showing that the

Defendant was overwhelmed by the two officers and

the other stimuli and events that took place:

So then the two detectives get in a car and

drive him roughly three to three and a half hours

back up here to Lake City. He did make a

statement there that tends to implicate him, but

I think we have to put that in context again.

Multiple people, they’re law enforcement people

with their badges and their guns.

Let’s look at sane [sic] of the other things

he told them. He was being bombarded by things

that were caning [sic] through his radio

speakers. He was being subjected to positive and

negative charges that were controlling him. He

had been enveloped by sane [sic] type of spray or

cloud. And there were people on the outside of

his home hiding in the bushes. Hardly the

statements of a rational person. Things that are

quite frankly we would submit unbelievable.

Therefore, the Defendant’s trial counsel did not

indicate that the specific allegation that there was a

person outside the Defendant’s home was

unbelievable. Instead, trial counsel attempted to

illustrate that the Defendant’s statement in its

entirety was irrational and therefore incredible and

should not be believed. This laid the foundation to

later cast major doubt on the credibility of his

confession, which trial counsel knew would be

introduced as State’s evidence. Accordingly, the

Defendant’s trial counsel was not attacking the

credibility of this single statement concerning

someone being at or near the Defendant’s home, as the

Defendant alleges. Trial counsel was merely

attempting to create a belief among the jury that the

Defendant’s confession in the police car was unreliable

due to the attendant circumstances present at that

moment.[6]

Therefore, based on the above analysis, none of

the various allegations of ineffective assistance of

counsel raised in Ground Ten warrant relief as the

Defendant’s trial counsel did not render deficient

performance. Ground Ten is denied.

Resp. Ex. AA at 432-39 (internal record and case citations omitted). The First

DCA per curiam affirmed the denial of Petitioner’s amended Rule 3.850 motion

without issuing a written opinion, Resp. Ex. DD, and subsequently denied

Petitioner’s request for rehearing, Resp. Ex. EE.

Relatedly, Petitioner filed a petition alleging ineffective assistance of

appellate counsel. Resp. Ex. GG. He argued that the trial court erred when it

used a statement made in “A” to deny suppression of statement “C-2,” trial

counsel failed to object to this fundamental error, and appellate counsel failed

to raise it on direct appeal. See id. He also argued that “[a]ppellate counsel

failed to present a meaningful argument against the denial of suppression of

the statement labeled as ‘C-2.’” Id. at 9. Petitioner asserted that the public

safety exception was simply a pretext, Detective Williams withheld Miranda

from him, and Williams provided inconsistent testimony about the location of

6 It is unclear why counsel referred to the statement made in the police car, because

that statement was suppressed. Counsel may have been referring to Petitioner’s

confession made in Statement C-2, which was admitted at trial.

Petitioner’s vehicle during the search. The First DCA entered a per curiam

opinion: “The petition alleging ineffective assistance of appellate counsel is

denied on the merits.” Resp. Ex. HH. Petitioner sought rehearing, which was

denied. Resp. Ex. II.

Upon thorough review of the record and the applicable law, this Court

concludes that the state courts’ adjudications of these claims were not contrary

to clearly established federal law, did not involve an unreasonable application

of clearly established federal law, and were not based on an unreasonable

determination of the facts in light of the evidence presented. At the initial

interrogation, Petitioner was advised of his Miranda rights and subsequently

engaged in a conversation with the police (Statement A), during which he

uttered what the trial court deemed a “very brief phrase in the midst of two-

three people talking [and] was very hard to hear, and was not clear,

unequivocal.” Petitioner continued talking with the detectives thereafter, and

when he subsequently invoked his right to counsel, the interrogation ceased.

See Resp. Ex. D at 592-705.

Petitioner’s statements made during the subsequent drive to Columbia

County (Statement B) were suppressed. While Petitioner was being housed in

the jail, the police obtained a search warrant and searched Petitioner’s car,

which was located in the sally port of the jail. When the police found potentially

hazardous materials in the car, Detective Williams—under the public safety

exception—initiated a conversation with Petitioner solely about the items found

in Petitioner’s car (Statement C-1). During that conversation, Petitioner told

Williams that he wanted to speak with police again. After handling the safety

issue, Williams, Nydam (from the state attorney’s office), and Petitioner

engaged in another conversation (Statement C-2), at the initiation of which

Williams confirmed Petitioner had previously invoked his right to counsel but

subsequently said he wanted to speak with the police again. See Resp. Ex. C at

385-405. It was during this conversation that Williams said, “Obviously you

know what we want to talk to you about is what happened at the house there.”

Id. at 388. Petitioner made some incriminating statements before Williams

advised Petitioner (for the first time during the C-2 statement) of his Miranda

rights. See id. at 394-97. The trial court suppressed all statements made

between Williams’ statement about what they actually wanted to talk about

(the fire) to Williams’ advising Petitioner of his Miranda rights, but denied

Petitioner’s request to suppress the statements he made after the Miranda

warnings.7 At trial, the only portion of the C-2 interview that was admitted into

7 The trial court’s initial order denying Petitioner’s request to suppress statement C-2

did rely on statements made in statement A to deny suppression of statements made

in statement C-2. However, the trial court subsequently entered an order suppressing

all statements made between Williams’ statements about what they actually wanted

to talk about (the fire) and Williams’ advising Petitioner of his Miranda rights. Thus,

any error with respect to mixing up statements between statements A and C-2 was

mooted by the subsequent order.

evidence was after Petitioner was advised of his Miranda rights. Compare Resp.

Ex. C at 385-405 (transcript of complete interview), with, Resp. Ex. R at 723-29

(interview played at trial). Upon review, the record supports the state courts’

conclusions with respect to the claims regarding the suppression of Petitioner’s

statements raised in Petitioner’s direct appeal, Rule 3.850 proceeding, and

ineffective assistance of appellate counsel proceeding. Petitioner is not entitled

to federal habeas relief on Ground One.

B. Ground Two

Petitioner claims that his trial counsel was ineffective at the May 21, 2012

suppression hearing. Doc. 19 at 11. He claims that the postconviction court

erred in relying on its denial of grounds 5 and 7 to deny grounds 10 and 11.

According to Petitioner,

[w]ithout transcripts of the May 21, 2012 hearing in

the record, there’s no way the state courts could have

properly disputed the lack of a two-step interrogation

argument claim, or counsel[’]s unprofessional remark

of saying he[] “didn’t want to argue the motions” and

counsel[’]s poor judgment of “just accepting state’s

offers” for suppression of some non-incriminating

statements. Just so he wouldn’t have to argue

suppression on a statement that he had previously told

the court that he thought was unimportant. Counsel

most definitely denied Petitioner’s right to due process

by doing this. Where suppression could have been

obtain[ed] for the second time if counsel would have

just brought up the error made in the ruling of the first

suppression and argued the two-step interrogation

technique.

Id. at 11-12 (internal record citation and emphasis omitted). Petitioner further

argues that his appellate counsel was ineffective “as claimed in ground one” of

this Petition. Id. at 12. Petitioner refers to ground 1 of his direct appeal, grounds

10 and 11 in his amended Rule 3.850 motion, and issues 1 and 2 of his petition

alleging ineffective assistance of appellate counsel. Id. at 11.

As noted in Ground One supra, the First DCA entered a per curiam

affirmance without written opinion on Petitioner’s direct appeal, the

postconviction court denied ground 10 of Petitioner’s amended Rule 3.850

motion, and the First DCA per curiam denied on the merits his petition alleging

ineffective assistance of appellate counsel. The record supports the state courts’

adjudications of the claims raised on Petitioner’s direct appeal, the DCA’s per

curiam affirmance of the denial of ground 10 of Petitioner’s amended Rule 3.850

motion, and the DCA’s denial of Petitioner’s issues raised in his petition alleging

ineffective assistance of appellate counsel. Thus, insofar as Petitioner raises the

same claims in Ground Two as he does in Ground One, the Court denies the

claims for the same reasons stated in Ground One.

The postconviction court also denied ground 11 of Petitioner’s amended

Rule 3.850 motion:

GROUND ELEVEN . . .

[T]he Defendant presents 34 very brief ineffective

assistance of counsel allegations, which he calls “the

errors and omissions of counsel.” All of these “errors,”

standing alone, are insufficient as they fail to properly

allege both prongs of Strickland. Some were previously

raised and addressed:

• Errors 1 and 2 were previously addressed in

Ground Ten.

• Errors 6, 8, and 23 were already addressed in

Ground Nine.

Others were not previously raised at all:

• Errors 3, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18,

19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, and

33 were not previously raised by the Defendant

in this Amended Motion, and these brief

sentences are insufficient to warrant relief.[]

And finally, some of the alleged errors were similar to

grounds already raised:

• While Errors 4 and 32 may not have been

precisely alleged earlier in this motion, this

Court has thoroughly examined trial counsel’s

conduct with regard to the video recording and

trial counsel’s attempt to suppress the

Defendant’s recorded interview. However, even

if this raised a different or additional allegation,

the brief sentences describing Errors 4 and 32

are insufficient.

• Error 5, while again not specifically raised

earlier in the motion, is insufficient and

immaterial. The trial court had the benefit of the

transcript, which the Defendant did not

challenge the accuracy of. The only reason the

Defendant wanted the court to observe the video

was to show that it was only one file during

which a hand is waved in front of the camera.

This one versus two video file issue has been

discussed and found to be a nonissue repeatedly

in this order.

• Errors 9 and 34[8] again challenge the

Defendant’s “C-2” statement and its

admissibility. The admissibility and ultimate

use of this statement has been addressed

repeatedly in this order, specifically in Grounds

Five and Seven. Errors 9 and 34 do not add any

allegations that the Defendant has not

previously raised.

Pursuant to Florida Rule of Criminal Procedure

3.850(f)(3)[] and given that the Defendant was already

afforded an opportunity to amend, these insufficient

grounds are denied.

Resp. Ex. AA at 439-40 (internal record citations and footnotes omitted). The

First DCA per curiam affirmed the denial of Petitioner’s amended Rule 3.850

motion without issuing a written opinion, Resp. Ex. DD, and subsequently

denied Petitioner’s request for rehearing, Resp. Ex. EE.

Upon thorough review of the record and the applicable law, this Court

concludes that the state court’s adjudication of this claim was not contrary to

clearly established federal law, did not involve an unreasonable application of

clearly established federal law, and was not based on an unreasonable

determination of the facts in light of the evidence presented. The record

8 In Petitioner’s amended Rule. 3.850 motion, “error 34” was: “Counsel failed to put

before the Court in his argument for suppression of C-2 that the police used a two-step

interrogation to obtain the statement as in Seibert and Elstad.” Resp. Ex. AA at 414

(formatting modified) (referring to Missouri v. Seibert, 542 U.S. 600 (2004) and Oregon

v. Elstad, 470 U.S. 298 (1985)).

supports the state court’s conclusion. Petitioner is not entitled to federal habeas

relief on Ground Two.

C. Ground Three

Petitioner asserts that his trial counsel was ineffective for failing to

properly investigate his claims of making a 911 call on the day of the fire, and

for allowing witness Jessica Milton to “mislead the jury about this 911 call.”

Doc. 19 at 13. He also claims that the “[s]tate withheld their recording of this

911 call” which is a violation of Brady v. Maryland, 373 U.S. 83 (1963), and the

state court refused to hold an evidentiary hearing which violated his rights.9 Id.

at 14. He refers to grounds 2 and 3 of his amended Rule 3.850 motion. Id. at 13.

Petitioner raised similar claims in his amended Rule 3.850 motion as

grounds 2 and 3.10 The postconviction court denied the claims, finding as

follows:

9 Insofar as Petitioner argues that the state court erred by failing to hold an

evidentiary hearing, such a claim is not appropriately raised in a federal habeas

petition. See Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987) (“Neither the

state court’s failure to hold a hearing on petitioner’s 3.850 motion nor its failure to

attach the relevant portions of the record in any way undermines the validity of

petitioner’s conviction,” and thus “does not state a basis for habeas relief.”).

10 Any Brady claim regarding the alleged 911 call record would be unexhausted as

Petitioner did not raise a Brady claim in the state courts. Regardless, the record

suggests that no 911 call record of Petitioner’s alleged call exists. Petitioner attached

to his postconviction motion a letter from his trial counsel explaining that counsel

contacted FHP and the local 911 call center “and there is no record of [Petitioner’s]

call.” Resp. Ex. AA at 199. Therefore, the state could not have suppressed a document

or recording that does not exist.

GROUND TWO . . .

The Defendant alleges that he made a 911 call

earlier on the day of the crime to report that someone

had been lurking on his property and that such would

have supported his alibi defense and provided an

alternative theory as to who committed the crime.

The State, on the other hand, alleges that the

CAD record submitted by the Defendant relates to “an

area near I-75 and I-10 in reference to people in the

median.” Therefore, this record, acquired by the

Defendant, does not prove anything that the

Defendant claims—that it was made by the Defendant

or that it shows someone was reported being in or

around his yard.

This Court agrees with the State that the CAD

record, submitted by the Defendant as Exhibit A,[11]

does not prove what the Defendant purports. It does

not identify that the Defendant was the caller, it does

not concern the Defendant’s property, and it does not

even indicate that persons are on the private property

of another, let alone the Defendant’s property. Rather,

it alleges that subjects are in the median acting

suspicious. In no way would this bolster or support the

Defendant’s alibi theory contained in Ground One,

which was found to be meritless. Therefore, given that

the CAD record provided by the Defendant does not

reflect what the Defendant alleges, this Court finds

that it is not relevant and would not have been helpful

in the Defendant’s trial. Accordingly, trial counsel was

not ineffective in failing to investigate and use the

CAD record. Ground Two is also denied.

GROUND THREE . . .

The Defendant contends that Ms. Milton

testified that no 911 call came in from the Defendant

11 See Resp. Ex. AA at 194-96.

on June 7, 2009, and that such testimony was

“misleading” because of the CAD report that the

Defendant attached as Exhibit A.

The State, in its response, alleges that . . . Ms.

Milton testified truthfully because there were no 911

calls where the Defendant identified himself as the

caller, or that were made from the street where the

crime occurred, or that complained of someone being

in or on the yard of another.

This Court, having carefully reviewed the CAD

report, Exhibit A, agrees with the State and finds that

the 911 call to which the Defendant refers does not

identify the caller, does not indicate where the call

originated, and does not complain of the behavior that

the Defendant alleges. Accordingly, based upon the

CAD record submitted by Defendant, Ms. Milton’s

testimony was not untrue or misleading. Therefore,

trial counsel was not ineffective, and Ground Three is

denied.

Resp. Ex. AA at 431-32. The First DCA per curiam affirmed the denial of

Petitioner’s amended Rule 3.850 motion without issuing a written opinion,

Resp. Ex. DD, and subsequently denied Petitioner’s request for rehearing, Resp.

Ex. EE.

Upon thorough review of the record and the applicable law, this Court

concludes that the state court’s adjudication of these claims was not contrary to

clearly established federal law, did not involve an unreasonable application of

clearly established federal law, and was not based on an unreasonable

determination of the facts in light of the evidence presented. Petitioner is not

entitled to federal habeas relief on Ground Three.

D. Ground Four

According to Petitioner, his trial counsel was ineffective for “allowing J.T.

Williams to mislead the court.” Doc. 19 at 15. Petitioner argues that his counsel

should have confronted witness Williams about his prior inconsistent statement

regarding the location of Petitioner’s vehicle after Petitioner had been arrested.

Id. Petitioner refers to ground 8 of his amended Rule 3.850 motion. Id.

Petitioner raised this claim as ground 8 in his amended Rule 3.850

motion. In denying the claim, the postconviction court reasoned as follows:

GROUND EIGHT . . .

The Defendant again challenges what occurred

at the suppression hearing. The Defendant believes

that his trial counsel was not paying attention, which

resulted in the following alleged oversights. The

Defendant believes that his trial counsel should have

asked Detective Williams “wouldn’t it have been

counter-productive to you to even ask him about a

lawyer if you were intentionally withholding Miranda

and felt that his right to counsel was overridden by the

safety concerns.” He also alleges that Detective

Williams introduced Ryan Nydam as a lawyer in an

effort to continue this alleged charade. The Defendant

also believes that Detective Williams could have been

impeached during the suppression hearing because his

earlier testimony regarding the location of the

Defendant’s vehicle conflicted with his suppression

hearing testimony. In short, the Defendant believes

that Detective Williams could have been impeached on

three occasions during the suppression hearing, and

this impeachment would have resulted in the

confession being suppressed.

Again, as explained above, the only portion of

the interview used at trial was after Detective

Williams reminded the Defendant of his rights, at

which point the Defendant cut off Detective Williams

and said, “I have the right to remain silent. Anything

I say will and can be used against me in the court of

law. You know, dah, dah, dah.” Detective Williams

then said, “You have the right to talk to a lawyer and

have him present when you’re being questioned. If you

cannot afford to hire a lawyer one will be appointed to

represent you.” And the Defendant responded, “Yes.”

Accordingly, the Defendant was clearly well aware of

his rights prior to this reminder. And, notably, the only

portion of the transcript used was what occurred after

the Defendant was re-Mirandized.

Addressing the Defendant’s specific allegations

raised in this ground: first, Detective Williams could

not have truly “withheld” Miranda from the Defendant

because, as evidenced above, the Defendant was well

aware of his Miranda rights and had been previously

advised of them at earlier interviews. And none of this

portion of the transcript was even used at trial.

Moreover, Detective Williams did not suggest or

imply that Ryan Nydam was an attorney; rather, he

simply explained that Mr. Nydam worked at the State

Attorney’s Office. Even if the Defendant believed that

Mr. Nydam was an attorney, given his association

with the State Attorney’s Office, it would have been

obvious that he was not there to represent the

Defendant.

And finally, the Defendant is incorrect in his

assertion that these “issues” combined with the

discrepancy concerning the location of his vehicle

would have sufficiently impeached Detective Williams

so that suppression of the interview would have been

warranted. The location of the vehicle was not a

material issue, and such a minute detail would not

have resulted in rendering Detective Williams’s entire

testimony unbelievable. Additionally, combining the

other “issues” the Defendant raises in this ground

would not have rendered Detective Williams’s

testimony incredible because one “issue”-Mr. Nydam

being a lawyer-is refuted, and the other issue-that

Miranda was “withheld”-is meritless. Therefore, trial

counsel’s conduct was not deficient and did not

prejudice the Defendant’s defense. Ground Eight is

denied.

Resp. Ex. AA at 434-36 (internal record citations omitted). The First DCA per

curiam affirmed the denial of Petitioner’s amended Rule 3.850 motion without

issuing a written opinion, Resp. Ex. DD, and subsequently denied Petitioner’s

request for rehearing, Resp. Ex. EE.

Upon thorough review of the record and the applicable law, this Court

concludes that the state court’s adjudication of these claims was not contrary to

clearly established federal law, did not involve an unreasonable application of

clearly established federal law, and was not based on an unreasonable

determination of the facts in light of the evidence presented. The Court notes

that Petitioner’s assertion that Williams’ deposition testimony differed from his

testimony at the suppression hearing with respect to the location of Petitioner’s

vehicle is not supported by Petitioner’s own filings. At the suppression hearing,

Williams testified that Petitioner’s car was located in the sally port of the jail.

See Resp. Ex. F at 29-30. Petitioner attached to his postconviction motion an

excerpt from a deposition transcript which he purports is from Williams’

deposition. Assuming it is, Williams testified as follows:

Q. What did you do next?

A. Well, Sergeant Morgan had traveled and

brought Kenneth’s vehicle back up to Columbia

County. The Lakeland Police Department had it

secured for us, so we brought it back up here, and they

secured it in the sally port of the jail, and I got a search

warrant for it . . . .

. . . .

Q. Okay. Were you involved at that point in

looking through the car? The car was still in the sally

port at this point; correct?

A. No, I was standing back while they were

doing the search, because I didn’t want to get too many

hands in there.

Resp. Ex. AA at 214-15. A fair reading of this transcript reflects that Williams

answered, “No,” to the question of whether he was involved in searching the

vehicle, and Williams did not confirm that the car was still in the sally port.

Thus, considering Petitioner’s filings, it cannot be said that Williams gave

inconsistent statements regarding the location of Petitioner’s vehicle.

Therefore, counsel cannot be deemed ineffective for failing to impeach Williams

with his prior statement. Petitioner is not entitled to federal habeas relief on

Ground Four.

Accordingly, it is

ORDERED:

1. The Amended Petition (Doc. 19) is DENIED and this case is

DISMISSED WITH PREJUDICE.

2. Petitioner’s Motion for Leave to Conduct Discovery (Doc. 22) is

DENIED.

3. The Clerk of Court shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

4, If Petitioner appeals the denial of his Amended Petition, 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 3° day of May,

2021.

. Cimetbeg Corrig oN

WW. TIMOTHY J. CORRIGAN

United States District Judge

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

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

make this substantial showing, Petitioner “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong,’ Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration

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

32

JAX-3 4/9

c:

Kenneth Ford

Counsel of Record