# Ford v. Secretary, Department of Corrections

> District Court, M.D. Florida · May 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10107539

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107539. Public record. Not legal advice.