# Howard v. Secretary, DOC (Collier County)

> District Court, M.D. Florida · June 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10107707

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** June 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10107707

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107707. Public record. Not legal advice.