Howard v. Secretary, DOC (Collier County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

SADLE D. HOWARD, JR.,

Petitioner,

v. Case No: 2:18-cv-747-JES-MRM

SECRETARY, DOC,

Respondent.

OPINION AND ORDER

Before the Court is Petitioner Sadle D. Howard, Jr.’s Petition

Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in

State Custody (Doc. 1). Howard challenges his conviction and

resulting sentence for burglary of an occupied conveyance and grand

theft.

I. Background

On August 1, 2021, the State of Florida charged Howard of

stealing property worth at least $300 from Kristina Gulliford’s

vehicle while her two children were inside. (Doc. #19-2 at 10).

Attorney Steven Smith represented Howard.

At trial, Gulliford testified that she parked her vehicle

outside a veterinary clinic to drop off a specimen. (Id. at

134). Her two children were in the back seat. (Id.). Within

two minutes, Gulliford’s son ran in and told her someone stole her

purse from the front passenger seat. (Id. at 135). Sean Cooper

witnessed the theft while stopped at a nearby traffic light. He

saw a new model black Camaro convertible—a vehicle he had interest

in purchasing—pull up next to Gulliford’s car. (Id. at 155-56).

There were three people in the Camaro. The driver got out, opened

Gulliford’s passenger-side door, grabbed a purse, jumped back into

the Camaro, and drove away. (Id. at 157). Cooper remained at the

scene until police arrived. (Id. at 162).

Police broadcasted a BOLO (short for “be on the lookout”) for

a newer style Camaro. (Id. at 187-88). About ten minutes after

the burglary, Collier County Sheriff’s Office Deputy Daniel

Darren spotted Howard driving a Camaro about four miles from the

site of the crime and conducted a traffic stop. (Id. at 180-85).

Police found Gulliford’s sunglasses in the backseat. (Id. at

216). The purse and wallet were not recovered.

Within thirty minutes of the crime, police brought Cooper to

the traffic stop, where he identified the Howard as the burglar;

he also identified the man he saw in the passenger seat of the

Camaro, but he was unable to identify the man in the back seat.

(Id. at 164-66). On cross-examination, Cooper acknowledged that

he probably could not have identified the Howard in a lineup.

(Id. at 173).

After the parties rested, Howard moved for a judgment of

acquittal. The trial court denied the motion. The jury found

Howard guilty of burglary and theft of property worth $300 or more.

(Id. at 325-26). At the sentencing hearing, the trial court found

that Howard qualified as a violent career criminal and sentenced

him to the 30-year mandatory minimum prison sentence. (Id. at 346,

351-53). Howard appealed, and the Second District Court of Appeal

of Florida (2nd DCA) affirmed without a written opinion. (Id. at

477). Howard then filed a motion under Florida Rule of Civil

Procedure 3.850, raising three grounds of ineffective assistance

of counsel. (Id. at 482-504). The post-conviction court denied

the motion without an evidentiary hearing. (Id. at 637-41). The

2nd DCA affirmed without a written opinion. (Id. at 707).

Howard’s federal habeas Petition is now ripe.

II. Applicable Habeas Law

a. AEDPA

The Antiterrorism Effective Death Penalty Act (AEDPA) governs

a state prisoner’s petition for habeas corpus relief. 28 U.S.C.

§ 2254. Relief may only be granted on a claim adjudicated on the

merits in state court if the adjudication:

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court

proceeding.

28 U.S.C. § 2254(d). This standard is both mandatory and difficult

to meet. White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A state

court’s violation of state law is not enough to show that a

petitioner is in custody in violation of the “Constitution or laws

or treaties of the United States.” 28 U.S.C. § 2254(a); Wilson

v. Corcoran, 562 U.S. 1, 16 (2010).

“Clearly established federal law” consists of the governing

legal principles set forth in the decisions of the United States

Supreme Court when the state court issued its decision. White,

134 S. Ct. at 1702; Casey v. Musladin, 549 U.S. 70, 74 (2006)

(citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Habeas

relief is appropriate only if the state court decision was

“contrary to, or an unreasonable application of,” that federal

law. 28 U.S.C. § 2254(d)(1). A decision is “contrary to”

clearly established federal law if the state court either: (1)

applied a rule that contradicts the governing law set forth by

Supreme Court case law; or (2) reached a different result from the

Supreme Court when faced with materially indistinguishable facts.

Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v.

Esparza, 540 U.S. 12, 16 (2003).

A state court decision involves an “unreasonable application”

of Supreme Court precedent if the state court correctly identifies

the governing legal principle, but applies it to the facts of the

petitioner’s case in an objectively unreasonable manner, Brown v.

Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526,

531 (11th Cir. 2000), or “if the state court either unreasonably

extends a legal principle from [Supreme Court] precedent to a new

context where it should not apply or unreasonably refuses to extend

that principle to a new context where it should apply.” Bottoson,

234 F.3d at 531 (quoting Williams, 529 U.S. at 406). “A state

court’s determination that a claim lacks merit precludes federal

habeas relief so long as fair-minded jurists could disagree on the

correctness of the state court’s decision.” Harrington v.

Richter, 562 U.S. 86, 101 (2011). “[T]his standard is difficult

to meet because it was meant to be.” Sexton v. Beaudreaux, 138

S. Ct. 2555, 2558 (2018).

Finally, when reviewing a claim under 28 U.S.C. § 2254(d), a

federal court must remember that any “determination of a factual

issue made by a State court shall be presumed to be correct[,]”

and the petitioner bears “the burden of rebutting the presumption

of correctness by clear and convincing evidence.” 28 U.S.C. §

2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A] state-

court factual determination is not unreasonable merely because the

federal habeas court would have reached a different conclusion in

the first instance.”).

b. Exhaustion and Procedural Default

AEDPA precludes federal courts, absent exceptional

circumstances, from granting habeas relief unless a petitioner has

exhausted all means of relief available under state law. Failure

to exhaust occurs “when a petitioner has not ‘fairly presented’

every issue raised in his federal petition to the state’s highest

court, either on direct appeal or on collateral review.” Pope v.

Sec’y for Dep’t. of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012)

(quoting Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010)).

The petitioner must apprise the state court of the federal

constitutional issue, not just the underlying facts of the claim

or a similar state law claim. Snowden v. Singletary, 135 F.3d

732, 735 (11th Cir. 1998).

Procedural defaults generally arise in two ways:

(1) where the state court correctly applies a procedural

default principle of state law to arrive at the

conclusion that the petitioner’s federal claims are

barred; or (2) where the petitioner never raised the

claim in state court, and it is obvious that the state

court would hold it to be procedurally barred if it were

raised now.

Cortes v. Gladish, 216 F. App’x 897, 899 (11th Cir. 2007). A

federal habeas court may consider a procedurally barred claim if

(1) petitioner shows “adequate cause and actual prejudice,” or (2)

if “the failure to consider the claim would result in a fundamental

miscarriage of justice.” Id. (citing Coleman v. Thompson, 501

U.S. 722, 749-50 (1991)).

c. Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established a

two-part test for determining whether a convicted person may have

relief for ineffective assistance of counsel. 466 U.S. 668, 687-

88 (1984). A petitioner must establish: (1) counsel’s performance

was deficient and fell below an objective standard of

reasonableness; and (2) the deficient performance prejudiced the

defense. Id.

When considering the first prong, “courts must ‘indulge a

strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.’” Sealey v. Warden,

954 F.3d 1338, 1354 (11th Cir. 2020) (quoting Strickland, 466 U.S.

at 689). And “[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.” Franks v. GDCP Warden, 975 F.3d 1165, 1176 (11th Cir.

2020) (quoting Harrington, 562 U.S. at 101). Thus, a habeas

petitioner must “show that no reasonable jurist could find that

his counsel’s performance fell within the wide range of reasonable

professional conduct.” Id.

The second prong requires the petitioner to “show that there

is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Sealey, 954 F.3d at 1355 (quoting Strickland, 466 U.S. at 694).

“A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id.

“An ineffective-assistance claim can be decided on either the

deficiency or prejudice prong.” Id. And “[w]hile the Strickland

standard is itself hard to meet, ‘establishing that a state court’s

application of Strickland was unreasonable under § 2254(d) is all

the more difficult.’” Id. (quoting Harrington, 562 U.S. at 105).

The critical question is not whether this Court can see a

substantial likelihood of a different result had defense counsel

taken a different approach. Mays v. Hines, 141 S. Ct. 1145, 1149

(2021). All that matters is whether the state court,

“notwithstanding its substantial ‘latitude to reasonably determine

that a defendant has not [shown prejudice],’ still managed to

blunder so badly that every fairminded jurist would disagree.”

Id. (quoting Knowles v. Mirazayance, 556 U.S. 111, 123 (2009)).

III. Analysis

a. Ground 1: The State failed to prove every element of the

offense.

At trial, Gulliford testified she purchased the purse—a Prada

designer handbag—for $2,400 a couple years before it was stolen.

(Doc. #19-2 at 142). The purse contained a Prada wallet she

purchased for $395 and sunglasses she purchased for $350. (Id.

at 143-44). Howard argues this evidence was insufficient to prove

the value of the stolen property, so the trial court’s denial of

his motion for acquittal—and the 2nd DCA’s affirmance—violated his

federal right to due process.

Howard argued on direct appeal that the evidence was

insufficient to support a conviction under Florida law. (Id. at

412). But he did not argue the trial court violated his federal

constitutional rights or cite any federal law. (Id. at 418-23).

Because Howard did not apprise the state court of the federal

nature of his claim, he failed to exhaust it. See Snowden, supra.

And it is procedurally barred under Florida law. See Spencer v.

Sec’y, Dep’t of Corr., 609 F.3d 1170, 1179 (11th Cir. 2010) (“under

Florida law, a claim is procedurally barred from being raised on

collateral review if it could have been, but was not raised on

direct appeal”).

Even if Howard did exhaust this ground in state court, his

argument is frivolous. When evaluating a due process challenge

to the sufficiency of evidence supporting a guilty verdict, the

only question is “whether that finding was so insupportable as to

fall below the threshold of bare rationality.” Coleman v.

Johnson, 566 U.S. 650, 656 (2012). Gulliford testified that she

purchased three of the stolen items for $3,145 and that they were

in good condition when stolen. The jury’s finding that the value

of the stolen property exceeded $300 was not irrational. The

Court denies Ground 1.

b. Ground 2: Trial counsel failed to object to an

intentionally racist jury selection process.

Howard next claims Smith was constitutionally ineffective

because he did not object to a jury selection process that

systematically excluded African Americans. Howard does not

explain how African Americans were excluded. He instead presents

census data showing that 7.2% of Collier County’s population

identified as Black or African American in July 2015, about a year

1

after Howard’s trial. (Doc. #2-1 at 5). Howard claims—and

Respondent does not refute—the jury pool included zero African

1

Howard claims 13.3% of Collier County’s population was

African American at the time of trial. But according to Howard’s

exhibits, the 13.3% figure represents the Black or African American

population of the United States, not Collier County. (Doc. #2-1

at 7).

Americans.

The Sixth and Fourteenth Amendment entitle criminal

defendants to a jury selected from a fair cross section of the

community. Duren v. Missouri, 439 U.S. 357, 358-59 (1979). To

establish a prima facie violation of this right, a defendant must

show:

(1) that the group alleged to be excluded is a

“distinctive” group in the community; (2) that the

representation of this group in venires from which

juries are selected is not fair and reasonable in

relation to the number of such persons in the community;

and (3) that this underrepresentation is due to

systematic exclusion of the group in the jury-selection

process.

Id. at 364.

The post-conviction court correctly applied federal law when

it found that Howard failed to show an objection to the jury

selection process would have had merit: “Defendant’s claim is

without merit because it failed to allege any facts establishing

a systematic exclusion of non-white persons.” (Doc. #9-1 at 638).

A conclusory challenge to the racial composition of the jury venire

is not enough to satisfy the third Duren element. Cull v. City

of Orlando, Fla., 700 F. App’x 909, 913 (11th Cir. 2017) (rejecting

a similar claim because the plaintiff failed “to identify anything

about the jury selection process that could be considered not

racially neutral or susceptible to abuse as a tool of

discrimination”). The Court denies Ground 2.

c. Ground 3: Trial counsel misadvised Howard to reject a

plea offer.

Before the trial date, the State made a plea offer of ten

years with credit for time served. (Doc. #19-2 at 17). Howard

did not accept the offer, despite his understanding that trial

risked a minimum 30-year sentence. (Id. at 18). On the morning

of trial, the State lowered its offer to 8 years. (Id. at 21).

The trial court cautioned Howard that only two of its previous 40

felony jury cases ended with not-guilty verdicts. (Id. at 19-20).

Smith responded, “Your Honor, I will say, as far as defense counsel

goes, that is a statistic that would put my stomach in my throat.”

(Id. at 20). After discussing the 8-year offer with Smith, Howard

rejected it. (Id. at 22-23).

Howard claims Smith convinced him to reject the plea offer by

promising him that Cooper’s testimony would be excluded and

guaranteeing a not-guilty verdict. Howard only partially

exhausted this ground. He did not allege in his Rule 3.850 motion

that Smith promised he would suppress Cooper’s identification

testimony. (Id. at 490). Because Howard did not fairly present

this alleged promise to the state court, he cannot rely on it here.

When a petitioner alleges ineffective advice led him to reject

a plea offer, he must show four elements:

that but for the ineffective advice of counsel there is

a reasonable probability that the plea offer would have

been presented to the court (i.e., that [1] the defendant

would have accepted the plea and [2] the prosecution

would not have withdrawn it in light of the intervening

circumstances), [3] that the court would have accepted

its terms, and [4] that the conviction or sentence, or

both, under the offer’s terms would have been less severe

than under the judgment and sentence that in fact were

imposed.

Lafler v. Cooper, 566 U.S. 156, 164 (2012). In the post-conviction

proceeding, the State conceded all but the first element—that

Howard would have accepted the plea absent Smith’s advice. The

post-conviction court denied this ground without a hearing:

As to the first element, the Defendant’s claim is

supported only by his affidavit dated February 2, 2017.

The record reflects that the Defendant had ample

opportunity to accept the plea on at least two different

occasions before trial; that Defense counsel made a

statement in response to the Court’s advice concerning

juries in Collier County that strongly rebuts

Defendant’s claim of misadvice; and that the Defendant

was well informed of the potential consequences of

rejecting the State’s plea offer. The Court granted a

recess, then a lengthy discussion took place between the

Court, Defendant and his counsel. The Court conducted

an additional colloquy relating to the plea offer.

Thus, Defendant cannot demonstrate a claim of

ineffective assistance since the record conclusively

refutes the Defendant’s allegations.

(Doc. #19-2 at 639 (internal citations omitted)).

The post-conviction court’s rejection of this ground was not

an unreasonable application of federal law. A “defendant’s own

conclusory after-the-fact assertion that he would have accepted a

guilty plea, without more, is insufficient to satisfy the first

prong of the [Lafler] test.” United States v. Smith, 983 F.3d

1213, 1222 (11th Cir. 2020). And even assuming Smith advised

Howard to reject the plea offer because the State’s case was weak—

a claim the post-conviction court rejected based on its reasonable

interpretation of the record—the guilty verdict did not render

that advice constitutionally deficient. See Wiggins v. Sec’y,

Fla. Dep’t of Corr., 766 F. App’x 817, 823 (11th Cir. 2019) (“The

fact that Petitioner ultimately lost at trial does not render

counsel’s assessment of the relative strengths of Petitioner’s

case unreasonable.”).

Howard argues the post-conviction court erred by considering

Smith’s comment on the rate of guilty verdicts in the trial court—

“that is a statistic that would put my stomach in my throat”—as

evidence refuting Howard’s claim. Howard offers an alternative

interpretation: “Counsel’s statement can easily be understood as

both an attempt to form some camaraderie and bonding with the judge

who was about to be presiding over this trial and as a literal

statement that it was clearly not wise to roll the dice in that

courtroom.” (Doc. #25 at 9). But offering an alternative

interpretation of the record is not enough to overcome the doubly

deferential standard of review mandated by Strickland and §

2254(d). See Tuomi v. Sec’y, Fla. Dep’t of Corr., 980 F.3d 787,

795 (11th Cir. 2020). The question is whether the post-conviction

court “blunder[ed] so badly that every fairminded jurist would

disagree[.]” Mays, supra. It did not. The Court denies Ground

3.

d. Ground 4: Trial counsel failed to suppress testimony

identifying Howard as the person who committed the

burglary.

At trial, witness Sean Cooper described the burglar as a black

male with a medium build in a light-colored outfit. (Doc. #19-2

at 157). Though the theft took less than ten seconds, Cooper was

able to observe the face of the burglar and the man in the front

passenger seat of the Camaro. (Id. at 160). Within a half-hour

later, Cooper identified Howard and the front seat passenger at

the site of the traffic stop, but he could not identify the rear

passenger because his view had been obscured by the front

passenger. (Id. at 162-67). Howard argues Smith should have

moved to suppress Cooper’s testimony because identifying him at

the traffic stop and in handcuffs was suggestive and overly

prejudicial.

The post-conviction court denied this ground because a motion

to suppress would have lacked merit:

In considering the admissibility of an out-of-court

identification, the court should decide, “[f]irst

whether police used an unnecessarily suggestive

procedure to obtain an out-of-court identification, and

second, if so, considering the circumstances, whether

the suggestive procedure gave rise to a substantial

likelihood of irreparable misidentification.” Green v.

State, 641 So. 2d 391, 394 (Fla. 1994), citing Grant v.

State, 390 So. 2d 341, 343 (Fla. 1980). Show-up

identifications have long been held permissible in

Florida courts, as long as the totality of the

circumstances does not give rise to a substantial

likelihood of misidentification, ‘including the

opportunity of the witness to view the criminal at the

time of the crime, the witness’ degree of attention, the

accuracy of the witnesses’ prior description of the

criminal, the level of certainty demonstrated by the

witness at the confrontation, and the length of time

between the crime and the confrontation.” State v.

Hernandez, 841 So. 2d 469 (Fla. 3rd DCA 2002), citing

Neil v. Biggers, 409 U.S. 188 (1972).

In this case, the record reflects that the State’s

eyewitness, Sean Cooper, had an opportunity to see the

Defendant. He testified that when the Defendant sped

off, he was so close to the vehicle that “they actually

had to go around [his] vehicle.” Furthermore, the

eyewitness was paying close attention to the vehicle

because he was interested in purchasing a similar model

of the car for himself. Not only did the eyewitness

give an accurate description of the vehicle that helped

law enforcement locate the vehicle within 10 minutes of

the crime, but he also provided a description of the

vehicle’s occupants that matched the identities of the

Defendant and passenger. Finally, at a show-up

identification conducted less than 30 minutes after the

crime, the witness was able to identify the Defendant

and passenger without hesitation.

The record demonstrates that the totality of the

circumstances test outlined in Hernandez, supra, has not

been met. The testimony demonstrates that Defendant

cannot show a meritorious claim for suppression of the

evidence of his identity. Counsel cannot be deemed

ineffective for failing to object or raise meritless

claims. Teffeteller v. Dugger, 734 So. 2d 1009 (Fla.

1999).

(Doc. #19-2 at 639-41 (citations to exhibits omitted)). The post-

conviction court reasonably applied the proper legal standard to

evaluate out-of-court identifications. See Neil v. Biggers, 409

U.S. 188, 199-200 (1972). And its factual findings are supported

by the record. Each Neil element, when applied to the facts in

the record, supports admission of Cooper’s identification

testimony. A motion to suppress would have been meritless. The

Court denies Ground 4.

IV. Certificate of Appealability

A prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court's denial of his petition.

28 U.S.C. § 2253(c)(1). Rather, a district court must first issue

a certificate of appealability (COA). “A [COA] may issue...only

if the applicant has made a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a

showing, a 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) (citations omitted). Howard has not made the requisite

showing here and may not have a certificate of appealability on

any ground of his Petition.

Accordingly, it is

ORDERED :

Petitioner Sadle D. Howard, Jr.’s Petition Under 28 U.S.C. §

2254 for Writ of Habeas Corpus by a Person in State Custody (Doc.

1) is DENIED. The Clerk is DIRECTED to terminate all pending

motions and deadlines, enter judgment, and close this case.

DONE and ORDERED in Fort Myers, Florida on June 8th □

2021.

/ (2b fp

: le fy DE, Ah

ade E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies: All Parties of Record