Pink v. Secretary, Department of Corrections (Hillsborough County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

WARREN PINK,

Petitioner,

v. Case No. 8:18-cv-1984-MSS-CPT

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________________/

O R D E R

Pink petitions for the writ of habeas corpus under 28 U.S.C. § 2254 and challenges his

state court convictions for attempted second-degree murder, aggravated battery, and fleeing

to elude a law enforcement officer, for which he is serving 25 years in prison. After reviewing

the amended petition (Doc. 5), the response and appendix (Docs. 14 and 15), and the reply

(Doc. 18), the Court DENIES the petition.

PROCEDURAL HISTORY

The evidence at trial showed that Pink shot and wounded Delroy Dyer in a nail salon

in Tampa, Florida. Pink entered the nail salon, approached Dyer, who was sitting down,

yelled profanities at him, and pointed his mobile telephone at Dyer in anger. Dyer stood up

unarmed and faced Pink. A woman at the salon tried to intervene but moved out of the way

when Pink pulled out a gun from his waistband. Pink shot Dyer behind his left shoulder just

as Dyer started to turn away. The bullet also struck another woman at the salon in the neck

and arm. Witnesses at the salon heard Pink yell at Dyer, “Stay away from my girl!”

Both Dyer and Pink each fathered a child with Deneice Ramsay. Earlier that day, Dyer

offered Ramsay money for their child. Pink had driven to the nail salon with Ramsay. When

Pink left the salon wielding a gun, a police officer ordered Pink to stop but Pink disobeyed

the command and drove away with Ramsay in the vehicle. The police officer followed Pink

in a marked police car with her emergency lights on and sirens blaring. As a chase ensued,

Pink threw the gun that he used to shoot Dyer out the window. After Ramsay continued to

scream, Pink pulled over and surrendered to police.

Pink testified that Dyer had repeatedly called him and threatened to kill him during

the months before the shooting. Pink’s relationship with Ramsay angered Dyer. Pink had

seen Dyer carry a gun and learned that people in the Jamaican community knew that Dyer

was violent and regularly carried a gun. Because of the death threats and Dyer’s reputation,

Pink broke up with Ramsay and started carrying his own gun.

On the day of the shooting, Pink, Ramsay, Ramsay’s child, and Ramsay’s babysitter

drove to the fish market. Ramsay’s babysitter purchased fish at the market. Pink saw his

cousin’s daughter inside the nail salon next door and walked into the salon to speak with her.

Dyer who was inside the nail salon saw Pink and immediately blamed Pink for separating

Dyer from his child. Pink responded that Dyer must stop threatening him and Ramsay. Dyer

replied, “P*ssyhole, I’m going to kill you.” When Pink saw Dyer reach into his waistband for

a gun, Pink pulled out his own gun and shot Dyer. Pink fled to get away from Dyer. When

he heard the police sirens, Pink did not pull over immediately because he could not find a

place to pull over. Before pulling over, Pink threw his gun out of the window because he was

scared. After he pulled over, Pink cooperated with police.

The jury found Pink guilty of attempted second-degree murder with a firearm, a lesser

included offense of the charged attempted first-degree murder, aggravated battery with a

firearm, and fleeing to elude a law enforcement officer. (Doc. 15-3 at 263–65) The trial court

sentenced Pink to a mandatory 25 years in prison for the attempted murder and aggravated

battery convictions and a concurrent 10 years for the fleeing to elude a law enforcement officer

conviction. (Doc. 15-3 at 271–77) The state appellate court affirmed the convictions and

sentences. (Doc. 15-3 at 418) The post-conviction court denied Pink’s motion for post-

conviction relief after an evidentiary hearing (Doc. 15-4 at 100–25), and the state appellate

court affirmed. (Doc. 15-4 at 271) Pink’s federal petition followed.

STANDARDS OF REVIEW

AEDPA

Because Pink filed his federal petition after the enactment of the Antiterrorism and

Effective Death Penalty Act, AEDPA governs his claims. Lindh v. Murphy, 521 U.S. 320,

327 (1997). AEDPA amended 28 U.S.C. § 2254(d) to require:

An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not

be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim —

(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.

A decision is “contrary to” clearly established federal law “if the state court arrives

at a conclusion opposite to that reached by [the U.S. Supreme Court] on a question of law

or if the state court decides a case differently than [the U.S. Supreme Court] has on a set of

materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). A

decision involves an unreasonable application of clearly established federal law “if the state

court identifies the correct governing legal principle from [the U.S. Supreme Court’s]

decisions but unreasonably applies that principle to the facts of the prisoner’s case.”

Williams, 529 U.S. at 413. Clearly established federal law refers to the holding of an opinion

by the U.S. Supreme Court at the time of the relevant state court decision. Williams, 529

U.S. at 412.

“[AEDPA] modified a federal habeas court’s role in reviewing state prisoner

applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court

convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 694

(2002). A federal petitioner must show that the state court’s ruling was “so lacking in

justification that there was an error well understood and comprehended in existing law

beyond any possibility of fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103

(2011).

Ineffective Assistance of Counsel

Pink asserts ineffective assistance of counsel — a difficult claim to sustain. Strickland

v. Washington, 466 U.S. 668, 687 (1984) explains:

First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so

serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

“There is no reason for a court . . . to address both components of the inquiry if the defendant

makes an insufficient showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. “[A] court

deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s

challenged conduct on the facts of the particular case, viewed as of the time of counsel’s

conduct.” Strickland, 466 U.S. at 690.

“An error by counsel, even if professionally unreasonable, does not warrant setting

aside the judgment of a criminal proceeding if the error had no effect on the judgment.”

Strickland, 466 U.S. at 691. To demonstrate prejudice, the defendant must show “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 691. A reasonable probability

is a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.

at 694.

Strickland cautions that “strategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at

690–91. A defendant cannot meet his burden by showing that the avenue chosen by counsel

was unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992). Because the

standards under Strickland and AEDPA are both highly deferential, “when the two apply in

tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105. “Given the double deference due,

it is a ‘rare case in which an ineffective assistance of counsel claim that was denied on the

merits in state court is found to merit relief in a federal habeas proceeding.’” Nance v.

Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303 (11th Cir. 2019) (citation omitted).

The state appellate court affirmed in a decision without a written opinion the post-

conviction court’s order denying Pink relief. (Doc. 15-4 at 271) A federal court “‘look[s]

through’ the unexplained decision to the last related state-court decision that does provide

a relevant rationale [and] presume[s] that the unexplained decision adopted the same

reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

Because the post-conviction court recognized that Strickland governed the claims

(Doc. 15-4 at 102–03), Pink cannot meet the “contrary to” test in Section 2254(d). Pink

instead must show that the state court either unreasonably applied Strickland or

unreasonably determined a fact.

Ground One

Pink asserts that trial counsel was ineffective for not adequately impeaching Dyer.

(Doc. 5 at 8–9) He contends that trial counsel should have impeached Dyer with “evidence

that [Dyer] had an active warrant from New York stemming from a violation of probation,

and that he was a wanted felon who worked for the police as a confidential informant.” (Doc.

5 at 8) The post-conviction court denied the claim as follows (Doc. 15-4 at 103–06) (state court

record citations omitted):

. . . Defendant alleges that his trial counsel was ineffective for

failing to research and prepare for the cross-examination of

victim Delroy Dyer. Specifically, Defendant argues that counsel

should have been prepared to show that the victim was a

“wanted felon who worked for the police as a confidential

informant.” Defendant alleges that had counsel properly

impeached the victim and been able to show the jury the victim’s

“propensity towards violence,” then the “theory of defense

would not have been as prejudicial as presented to the jury and

[would have] brought about a more favorable verdict.”

In response, the State argues that “to the extent that [Defendant]

alleges that his counsel was ‘unprepared to cross examine Dyer

as a wanted felon,’” Defendant’s allegation is refuted by the

record. Specifically, the States cites to a portion of the record in

which the Court heard a proffer of the defense’s expected line of

cross-examination of the witness and denied it following the

defense’s presentation.

After reviewing the allegations, the court file, the testimony, and

the record, the Court finds that Defendant has failed to

demonstrate deficient performance. To gain post-conviction

relief based on a claim of ineffective assistance of counsel, a

defendant must show that counsel’s performance was deficient

and that this deficient performance prejudiced the defense.

Strickland, 466 U.S. at 687.

At the evidentiary hearing, Defendant testified that he informed

his counsel that Mr. Dyer “carried a gun” and that he was a

confidential informant. According to Defendant, his counsel

relayed that she planned to get that information “in” at his trial

and that his case was “looking good.” When asked how he

believed this additional reputation and knowledge of a gun may

have affected the outcome of his case, Defendant testified as

follows:

[Pink:] With everything and the jury would

have heard the way I felt with my

defense and knowing that, you

know, I’m literally scared to go

home at night . . . . I’m paranoid

because this dude [is] constantly

calling my phone, I’m going to kill

you when I catch you, I’m going to

kill, over and over. It’s not just one

phone call. This — this has been

going on for approximately, I

would say, about a year-and-a-half,

two years, before the shooting.

Defendant’s lead trial counsel, Ms. Tanya Dugree, testified that

she proffered the testimony to the Court prior to trial at a hearing

on July 31, 2009. Ms. Dugree further testified that in addition to

the oral argument, she also filed a written argument on the same

issue highlighting the reasons why this information was

important to Defendant’s self-defense claim.

After reviewing the allegations, the court file, the testimony, and

the record, the Court finds Ms. Dugree’s testimony credible. The

record reflects that Ms. Dugree did proffer the information

Defendant requested at a hearing on July 31, 2009. Further, she

filed a response in further support of her argument on August 11,

2009. Following Ms. Dugree’s repeated attempts of having the

evidence deemed admissible, the Court issued an order on

September 8, 2009 in which it prohibited Ms. Dugree from

asking Mr. Dyer “whether he is, was, or has been an informant,”

but did not “preclude any witness from responding to a properly

asked question that he or she believed Mr. Dyer is, was, or had

been an informant.” As such, the Court finds that Defendant has

failed to establish that his trial counsel’s performance was

ineffective as Ms. Dugree attempted to introduce the evidence

Defendant alleges would have changed the outcome of his case.

Consequently, the Court finds Defendant is not entitled to relief

on [the claim].

The post-conviction court found trial counsel credible at the evidentiary hearing, and

a state court’s credibility determination receives deference on federal habeas. Raheem v. GDCP

Warden, 995 F.3d 895, 929 (11th Cir. 2021) (“‘Determining the credibility of witnesses is the

province and function of the state courts, not a federal court engaging in habeas review.’”)

(quoting Consalvo v. Sec’y, Dep’t Corrs., 664 F.3d 842, 845 (11th Cir. 2011)).

At the evidentiary hearing, trial counsel testified about the evidence concerning Dyer’s

reputation as follows (Doc. 15-4 at 185–86):

[Prosecutor:] Okay. Now, address the issue of

attempting to present testimony about his

— Mr. Dyer’s alleged reputation as a

known drug dealer, alleged reputation as a

C.I., reputation that he carried a gun, that

he had done so in connection with the

possible intent towards the defendant. Did

you attempt to proffer those matters in and

get those matters addressed prior to trial?

[Trial counsel:] There’s actually a transcript of it. It

happened on July 31st, 2009, in front of

Judge Fuente. It was a very rather lengthy

hearing. I believe it happened as a result of

the State filing a motion in limine, because

I was in constant contact with the State,

because we were litigating every issue.

There [were] so many motions I lost count,

and we did them in front of multiple

judges, because for a while we were in front

of Judge Pomponio, and then we went

back to Judge Fuente. He’s the one that

gave a final ruling on this issue.

Um, I actually did a written argument on

this same issue, and I filed it around

August 11th of 2009 with the Court and

gave copies to the State, which talks about

the reasons that it’s important for his self-

defense claim to be able to talk about

Delroy Dyer as a confidential informant,

because the reason he found that he had to

arm himself and take the measures that he

did is because all the while he had been

trying to report it or do something lawfully,

and the officer turned a blind eye to it, and

so he felt like he had to defend and protect

his family and himself.

And part of the reason they were turning a

blind eye to it is because he was a

confidential informant. So he tried to do

the regular course of what he was going to

do, and then at that time is when he

decided he was going to become armed and

carried it around with him for his

protection. So it was very relevant, and I

did a very long argument with a bunch of

case law in it, and I filed it with the Court

and with Judge Fuente, and his ruling

came out after that date.

[Court:] What was the date you filed it, you believe?

[Trial counsel:] I believe it was August 11th, 2009, or

maybe one or two days off from that.

[Court:] Okay.

[Trial counsel:] That’s the day I gave it to the State. I just

checked my emails.

[Court:] Okay.

[Prosecutor:] And it’s the — the bottom line is, it’s not

for lack of trying you didn’t present this

material[,] you presented it. There was a

specific ruling excluding it —

[Trial counsel:] That was on October 15th.

[Prosecutor:] — and, in fact, the defendant appealed that

exclusion as part — as part of his appeal in

this case?

[Trial counsel:] Yes. I actually wrote the appeal and

included that in the appeal.

At a hearing on July 31, 2009, trial counsel presented argument in response to the

prosecution’s motion in limine to exclude evidence that Dyer was a confidential informant.

(Doc. 15-5 at 112–22) After the hearing, the trial court entered an order directing the parties

to submit supplemental briefing. (Doc. 15-5 at 84–85) Trial counsel filed a written

memorandum arguing that Dyer’s identity as a confidential informant was relevant and

admissible. (Doc. 15-5 at 92–97) In a written order, the trial court granted the State’s motion

in limine and prohibited trial counsel from asking Dyer about his identity as a confidential

informant but ruled that a witness could respond to a properly asked question that “he or she

believed that [Dyer] is, was, or had been an informant.” (Doc. 15-5 at 178–80)

During trial, trial counsel orally moved for permission to cross-examine Dyer about

an active bench warrant for his arrest in New York and the prosecutor objected. (Doc. 15-2

at 130–31) Trial counsel was prepared to cross-examine the victim with a certified copy of the

bench warrant. (Doc. 15-2 at 132) The trial court permitted trial counsel to question Dyer

about the bench warrant outside the presence of the jury. (Doc. 15-2 at 132–49) After hearing

the proffer, the trial court sustained the prosecutor’s objection as follows (Doc. 15-2 at 150):

[Court:] With respect to the question propounded to

this witness: Is he on probation? No. Is he

aware of any warrant outstanding? He is

not. Did he go to New York and take care

of the warrant? He said he went to New

York and took care of all his criminal

matters. So as far as this witness is

concerned and the testimony before this

jury is he is not on probation. So I’ll sustain

the objection. I think you have made your

record. . . .

Also, trial counsel asked Pink during his testimony at trial why Pink did not report the

death threats by Dyer to police. (Doc. 15-2 at 402–04) Pink testified that he learned that Dyer

was a confidential informant. (Doc. 15-2 at 402–04) The prosecutor objected, and the trial

court sustained the objection. (Doc. 15-2 at 402, 404)

Because the trial court prohibited trial counsel from impeaching Dyer with both his

identity as a confidential informant and the active bench warrant, trial counsel was not

ineffective and the state court did not unreasonably apply Strickland. Hunt v. Comm’r, Ala. Dep’t

Corrs., 666 F.3d 708, 723 (11th Cir. 2012) (“‘Absent a showing that real impeachment

evidence was available and could have been, but was not, pursued at trial, [the petitioner]

cannot establish that the cross conducted by his attorneys fell outside the range of

professionally competent assistance.’”) (quoting Johnson v. Alabama, 256 F.3d 1156, 1186

(11th Cir. 2001)); Pinkney v. Sec’y, Dep’t Corrs., 876 F.3d 1290, 1297 (11th Cir. 2017) (“[A]n

attorney will not be held to have performed deficiently for failing to perform a futile act, one

that would not have gotten his client any relief.”).

Ground One is denied.

Ground Two

Pink asserts that trial counsel was ineffective for not impeaching Deneice Ramsay with

her renewed relationship with Dyer. (Doc. 5 at 10–11) Before the evidentiary hearing, the

post-conviction court denied the claim as follows (Doc. 15-4 at 92–95) (state court record

citations and footnote omitted):

In [this ground] of his original Motion for Post-Conviction

Relief, Defendant argues that his trial counsel was ineffective

because trial counsel was privy to information that could have

been used to impeach State witness Deneice Ramsay, but failed

to do so. In particular, Defendant complains about the following

exchange which took place during trial counsel’s questioning of

Ms. Ramsay:

[Trial counsel:] Are you back with Mr. Dyer?

[Ramsay:] No, we just have a child together.

Defendant claims that Ms. Ramsay and Mr. Dyer were, in fact,

living together, as evidenced by a pre-sentence investigation

(PSI) report showing that Ms. Ramsay and Mr. Dyer shared a

home address. Defendant asserts that if trial counsel had

impeached Ms. Ramsay’s testimony with this PSI report, it

would have “[discredited] [Ms.] Ramsay’s changed testimony

suggesting it was a ploy invented by [Ms.] Ramsay and [Mr.]

Dyer to [e]nsure the defendant would be convicted.” Defendant

argues that, had trial counsel impeached Ms. Ramsay with the

PSI report, there is a reasonable probability that the outcome of

the trial would have been different.

After reviewing the allegations, the court file, and the record, the

Court finds that Defendant is not entitled to relief on the

above-stated allegations. The Court begins by noting that a PSI

report is usually not prepared until after a defendant is found

guilty; and this is true in the instant case. See Fla. R. Crim. P.

3.711. Therefore, the suggestion that trial counsel could have

impeached Ms. Ramsay using information contained within the

PSI is inaccurate. Without some sort of extrinsic evidence or

contradictory testimony, trial counsel would have to accept Ms.

Ramsay’s answer that “we just have a child together.” As

Defendant’s allegations suggest that trial counsel did not become

aware that Ms. Ramsay allegedly shared an address with Mr.

Dyer until the PSI report was prepared, it would appear that trial

counsel was not, in fact, privy to any special or contradictory

information about Ms. Ramsay’s living arrangements at the time

of her questioning. Accordingly, the Court cannot find counsel’s

performance deficient.

Further, assuming that trial counsel did have some sort of

information with which to impeach Ms. Ramsay on this issue,

impeachment on a collateral issue is generally impermissible.

Foster v. State, 869 So. 2d 743, 745 (Fla. 2d DCA 2004). The test

for whether a matter is collateral is whether the proposed

impeachment evidence can be introduced for any purpose other

than to demonstrate a contradiction. Mariano v. State, 933 So. 2d

111, 114 (Fla. 4th DCA 2006). In the present case, it appears that

Defendant is arguing that evidence of Ms. Ramsay’s address

could be used to discredit Ms. Ramsay by showing bias, which

is an appropriate use of impeachment evidence. See generally

Jeancharles v. State, 25 So. 3d 656 (Fla. 4th DCA 2010). However,

evidence of Ms. Ramsay’s address would not necessarily

demonstrate a bias. Even assuming that Ms. Ramsay and Mr.

Dyer shared an address at the time of trial, an assumption not

supported by any evidence or information introduced at trial,

Ms. Ramsay already stated that she was not together with Mr.

Dyer and that they shared a child in common. The trier of fact

could draw whatever inference of bias they wished from that

statement. Evidence that Ms. Ramsay shared an address with

Mr. Dyer would not necessarily contradict her statement that

they were not in a relationship, nor would it necessarily

demonstrate any particular bias. Ms. Ramsay’s address is a

collateral matter, and it cannot be said that trial counsel would

be ineffective for failing to impeach Ms. Ramsay on the issue.

Finally, the Court notes that there is no reasonable probability

that evidence of Ms. Ramsay’s address would have resulted in a

different outcome. Assuming again that Ms. Ramsay did share

an address with Mr. Dyer, trial counsel already thoroughly

impeached Ms. Ramsay concerning her change in testimony

from her original statements given to police and during

deposition to the statements she made during trial. The substance

of the inconsistent statements for which Ms. Ramsay was

questioned by trial counsel concerned matters of actual import to

the case, compared to the issue of whether Ms. Ramsay shared

an address with Mr. Dyer, which had little, if any, significance.

The jury heard the entirety of this impeachment, from which it

could have derived that Ms. Ramsay was unreliable or biased,

but nonetheless found Defendant guilty. It cannot be said that

there is a reasonable probability that this additional piece of

information concerning Ms. Ramsay’s address would have

changed the outcome of the trial, particularly where significant

impeachment on actual relevant issues failed to do so.

Consequently, no relief is warranted on [this ground] of

Defendant’s original motion.

Whether evidence that Ramsay shared an address with the victim concerned a

collateral matter is an issue of state law, and a state court’s determination of state law receives

deference in federal court. Fla. Stat. § 90.608(2). McClain v. State, 395 So. 2d 1164, 1165 (Fla.

2d DCA 1981) (“Inquiries into collateral matters should only be allowed when they affect the

credibility of the witness.”); Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985) (“The

federal courts must defer to a state court’s interpretation of its own rules of evidence and

procedure.”). Because evidence that Ramsay shared an address with the victim concerned a

collateral matter, trial counsel could not have impeached Ramsay with that extrinsic

evidence. Wilson v. State, 72 So. 3d 331, 334 (Fla. 4th DCA 2011) (“‘It is well-established that

if a party cross-examines a witness concerning a collateral matter, the cross-examiner must

‘take’ the answer, is bound by it, and may not subsequently impeach the witness by

introducing extrinsic evidence to contradict the witness on that point.’”) (citation omitted).

At the evidentiary hearing, Pink introduced into evidence a document from a wrongful

death lawsuit on behalf of Pink and Ramsays’ daughter. (Doc. 15-4 at 153–57) The document

also showed that Ramsay lived with Dyer at the time of trial. (Doc. 15-4 at 154–55) Because

evidence that Ramsay shared an address with the victim concerned a collateral matter, trial

counsel could not have impeached Ramsay with the document either. Wilson, 72 So. 3d at

334. At the hearing, Pink failed to introduce available evidence that trial counsel could have

used to impeach Ramsay concerning her renewed relationship with Dyer. Consequently, Pink

failed to prove his claim. Hunt, 666 F.3d at 723.

After the evidentiary hearing, the post-conviction court denied an additional related

claim as follows (Doc. 15-4 at 106–11) (state court record citations omitted):

. . . Defendant argues that [the claim] actually includes three

sub-claims: (1) ineffective assistance for failing to move the Court

for mistrial, (2) ineffective assistance due to counsel’s failure to

“investigate the facts of the case and learn the truth of the

rekindled relationship of defense witness [Ms. Ramsay] and the

alleged victim[”], and (3) ineffective assistance due to counsel’s

failure to “expose [Ms. Ramsay’s] false testimony that she and

[the alleged victim] had not rekindled their romantic relationship

between the time [Ms. Ramsay] gave her last deposition and

trial.” Defendant concedes that the State is correct with regard to

the first sub-claim and agrees that the record refutes his allegation

that counsel failed to move for mistrial following the discovery

violation. However, Defendant argues that because the State

failed to respond to sub-claims two and three, he is entitled to an

evidentiary hearing on those portions of [the claim].

After reviewing the allegations, the court file, the testimony, and

the record, the Court finds Defendant is unable to prove deficient

performance or prejudice. At the evidentiary hearing, Defendant

testified that he was in a “romantic relationship” with Ms.

Ramsay at the time of the shooting. Defendant testified that he

became aware of Ms. Ramsay’s rekindled relationship with [the

victim] “before trial” and that he told [trial counsel] because he

believed “it could help [that Ms. Ramsay] was back with [the

victim].” When asked whether [trial counsel] took any steps “to

investigate whether or not they had rekindled their relationship,”

Defendant testified as follows:

[Pink:] No, she didn’t. All she did is tell me

that she got the depositions and she

cannot testify to nothing more than

the depositions, the two

depositions, and the recorded

statement that she gave to Detective

Boswell, I think that’s his name, at

the time. And I want to bring to the

Court that, um, at trial, my

attorney, she didn’t even have the

recorded statement transcribed for

trial, and that was important to

show that, you know, here’s what

she [gave] fifteen — about an hour

after the shooting to the detective.

Defendant testified that after he was sentenced, he learned that

Ms. Ramsay had been living with Mr. Dyer during his trial. It is

Defendant’s contention that had [trial counsel] sent an

investigator out to investigate the living arrangements, the jury

would have known why Ms. Ramsay changed her testimony.

[Trial counsel] testified that she did know about the relationship

between Ms. Ramsay and Mr. Dyer. Specifically, [trial counsel]

testified as follows:

[Trial counsel:] Yes, I actually did know. That

wasn’t what the changed testimony

was or what that whole issue was

about. [Defendant] told me

multiple times, and his family

knew[,] everyone knew —

everybody. It’s a certain type of

culture where everyone knew

everyone’s business. They all talked

to each other. They would report it

to me. I knew that they were

essentially back together. I did a

second deposition of her because of

it and asked her about that. Um,

and — so there was not only one

deposition of her; there [were] two.

. . .

[Prosecutor:] So, again, with regard to the present

— presenting this issue, it’s not

something that came in as a surprise

or that you weren’t aware of?

[Trial counsel:] There was a surprise after her

testimony, but it wasn’t about her

being with him.

[Prosecutor:] And addressing that, the transcript,

because, in fact, you did make a

motion for a mistrial; the remedy

that was given, a Richardson hearing

was conducted because you moved

for one, and, uh, the remedy was to

give you some additional time, and

we recessed, I believe, and came

back the next day —

[Trial counsel:] We actually got to call her as a

witness a second time, and the

judge told the jury, you know, to

disregard her testimony or — there

was a reason for it. He thought that

was the cure, and it is in the

transcript. Um, it wasn’t that I just

wouldn’t do anything about that. I

pretty much had a fit. I approached

the bench. I demanded a mistrial.

The judge wouldn’t give me a

mistrial. I asked for a Richardson

hearing.

We did a full Richardson hearing.

The judge actually found it was a

discovery violation, but that it was

unintentional. So Judge Fuente’s

remedy was that she would be

called as a witness again, and I

would be allowed to cross-examine

her again, and we recessed. So I was

able to get my materials together of

all the impeachment that I would

need to show on multiple other

times you said different things than

what you said yesterday. And that’s

what happened and that’s what we

did, although I disagreed that that

was the proper remedy. We also

appealed that issue.

I also included it in a motion for

new trial after he was found guilty.

Um, that — I can’t remember the

date of that. I think it was like

November 1st that I filed a motion

for new trial with a lengthy

argument with case law to say that

wasn’t the proper remedy. It was

included in the appeal as well.

After reviewing the allegations, the court file, the testimony, and

the record, the Court finds [trial counsel’s] testimony credible.

The record reflects that [trial counsel] immediately objected at

trial following Ms. Ramsay’s change in testimony. Specifically,

[trial counsel] stated that Ms. Ramsay had been deposed twice,

gave two statements to the police, and the information she was

providing was not provided in any of those statements. During

her direct examination, Ms. Ramsay testified that her statements

to the police were untrue and that she provided untrue

statements in her depositions. On cross-examination, Ms.

Ramsay testified that [the victim] told her, on multiple occasions,

that he “was going to kill [Defendant].” [Trial counsel] also

impeached Ms. Ramsay with her prior inconsistent statements.

Following Ms. Ramsay’s testimony, [trial counsel] moved for a

Richardson hearing. [Trial counsel] outlined the changes in Ms.

Ramsay’s testimony and the Court found that while the

information was discoverable, the violation was inadvertent.

[Trial counsel] moved for mistrial, which the Court denied, but

was allowed to recall Ms. Ramsay for further cross-examination.

After the State rested, [trial counsel] renewed her motion for

mistrial based on the discovery violation and moved for

judgment of acquittal, both of which were denied.

The defense also filed “Defendant’s Motion for Judgment of

Acquittal or Motion for New Trial” on November 2, 2009, in

which it argued that the denial of Defendant’s motion for mistrial

due to the discovery violation entitled Defendant to a new trial.

The Court finds that contrary to Defendant’s allegations, [trial

counsel] did know of Ms. Ramsay’s relationship with [the

victim] and deposed her a second time in order to assure that Ms.

Ramsay was remaining consistent with regard to her recitation

of the facts. As such, Defendant failed to prove that [trial

counsel] performed deficiently. Further, Defendant failed to

prove that he was prejudiced by [trial counsel’s] alleged lack of

investigation. The record reflects that while [trial counsel]

investigated the relationship between [the victim] and Ms.

Ramsay, she did not know of Ms. Ramsay’s intention to change

her testimony until she took the stand during trial. At that time,

[trial counsel] immediately objected, and over the course of the

remaining proceedings, moved for a Richardson hearing, moved

for mistrial, and moved for Judgment of Acquittal. Further, [trial

counsel] included argument in the motion for new trial regarding

Ms. Ramsay’s change in testimony. As such, Defendant is

unable to prove that he was prejudiced by any alleged lack of

investigation. Consequently, [the sub-claims] are without merit.

The post-conviction court found trial counsel credible at the evidentiary hearing, and

a state court’s credibility determination receives deference on federal habeas. Raheem, 995

F.3d at 929. The post-conviction court accurately quoted trial counsel’s testimony at the

evidentiary hearing. (Doc. 15-4 at 187–87) Trial counsel testified that she knew that the victim

and Ramsay resumed their relationship before Pink’s trial and took a second deposition of

Ramsay because of the renewed relationship. (Doc. 15-4 at 187–88)

Pink contends that trial counsel should have impeached Ramsay with the renewed

relationship to explain why she changed her recollection of events at trial. (Doc. 5 at 11)

Instead of impeaching Ramsay with why she changed her recollection, trial counsel

impeached Ramsay with how she changed her recollection as follows (Doc. 15-2 at 354–58)1:

[Trial counsel:] Ms. Ramsay, yesterday for the first time

you mentioned that Delroy’s car was

parked in the parking lot of Top Nail Salon,

is that correct?

[Ramsay:] Correct.

[Trial counsel:] You never mentioned that in your two

police interviews, correct?

[Ramsay:] Correct.

[Trial counsel:] You never mentioned that in your two

depositions where you were deposed under

the same oath you took yesterday and

today, is that correct?

[Ramsay:] Correct.

1 Also trial counsel objected to the change in recollection (Doc. 15-2 at 195–97), argued that

the prosecutor violated his discovery obligations by not disclosing the change (Doc. 15-2 at 239–40,

313–38), argued that any remedy would not cure the violation and moved for a mistrial (Doc. 15-2 at

330–31), and moved for a new trial because of the discovery violation. (Doc. 15-5 at 221–23)

[Trial counsel:] And further, you also said that Mr. Pink

told you that he was going into Top Nail to

speak to Delroy; do you remember saying

that yesterday?

[Ramsay:] Right.

[Trial counsel:] And that’s the first time you ever made that

statement, correct?

[Ramsay:] Correct.

[Trial counsel:] And you had multiple times to speak with

multiple people you never mentioned it?

[Ramsay:] This time I’m telling the truth.

[Trial counsel:] That’s not what I’m asking you. I’m asking

if you ever mentioned it prior to yesterday?

[Ramsay:] No, ma’am.

. . .

[Trial counsel:] The fact that Delroy’s car was there and

you thought Mr. Pink should recognize it,

and the fact that you said Mr. Pink told you

that he was going in to speak with Delroy,

those two statements, you never

mentioned them to Mr. State Attorney

before yesterday either, did you? Oh,

excuse me, prior to Sunday, prior to being

prepared for trial on Sunday?

[Ramsay:] No. Sunday was the first we had those

conversations.

[Trial counsel:] Thank you. My mistake. And also

something that you spoke of yesterday was

you said Mr. Pink said to you in the vehicle

right after the incident something to the

effect of: If you want a father for your child

you better do what you need to do and say

what I need you to say, basically lie for him

and say it’s self-defense, correct, do you

remember saying that?

[Ramsay:] Correct.

[Trial counsel:] Now, that was the first time you ever said

that, correct?

[Ramsay:] I said it to Mr. Falcone —

[Trial counsel:] On Sunday. Other than trial preparation

for this case the Sunday before trial —

[Ramsay:] It’s been awhile and everything started

coming back to me. It’s been two years. I

didn’t remember every single incident.

Trial counsel’s approach proved successful. Ramsay’s change in recollection of events

supported the attempted first-degree murder charge. The information charged Ramsay with

attempting commit murder with a “premeditated design to effect death.” (Doc. 15-2 at 3)

Premeditation is “more than a mere intent to kill” and instead “a fully formed conscious

purpose to kill.” Dubose v. State, 210 So. 3d 641, 653 (Fla. 2017) (citation omitted). Ramsay

changed her recollection and testified that, just before Pink shot Dyer, Pink both saw the

Dyer’s car in the parking lot of the nail salon and told Ramsay that he planned to enter the

nail salon to speak with Dyer. (Doc. 15-2 at 354–58) Ramsay’s change in testimony tended to

prove that Pink knew Dyer was in the salon and had a “a fully formed conscious purpose to

kill” when he entered the salon with a gun. Dubose, 210 So. 3d at 653.

However, trial counsel impeached Ramsay by showing the jury that she had omitted

these material inculpatory statements from both her earlier statements to police and her

deposition. Hawn v. State, 300 So. 3d 238, 242 (Fla. 4th DCA 2020) (“‘[A]n omission in a

previous out-of-court statement about which the witness testifies at trial’ can be considered an

inconsistent statement for impeachment purposes, if the omission is a ‘material, significant

fact rather than mere details and would naturally have been mentioned.’”) (citation omitted);

Pearce v. State, 880 So. 2d 561, 569 (Fla. 2004) (“The theory of admissibility is not that the

prior statement is true and the in-court testimony is false, but that because the witness has not

told the truth in one of the statements, the jury should disbelieve both statements.”).

During closing argument, trial counsel relied on these material omissions to argue that

Ramsay was untruthful. (Doc. 15-3 at 183–84, 191–92) The jury rejected Ramsay’s change in

recollection, acquitted Pink of attempted first-degree murder, and found him guilty of

attempted second-degree murder, a lesser included offense. (Doc. 15-3 at 263) The jury found

that Pink did not have a premeditated intent to kill. Fla. Stat. § 782.04(2) (“The unlawful

killing of a human being, when perpetrated by any act imminently dangerous to another and

evincing a depraved mind regardless of human life, although without any premeditated

design to effect the death of any particular individual, is murder in the second degree

. . . .”) (bolding added). Because trial counsel’s approach proved successful, the state court

did not unreasonably apply Strickland.

For self-defense, the defense bore the burden of proving that Pink “reasonably

believe[d] that using or threatening to use [deadly force] [was] necessary to prevent imminent

death or great bodily harm to himself.” Fla. Stat. § 776.012(2). Dyer’s reputation for violence

was relevant to show that Pink reasonably held that belief. Mohler v. State, 165 So. 3d 773, 775

(Fla. 2d DCA 2015) (“Reputation evidence of the victim is admissible as circumstantial

evidence to prove that the victim acted consistently with his or her reputation for violence.”).

On cross-examination, trial counsel elicited from Ramsay that she and Dyer fought

when they were in a relationship (Doc. 15-2 at 210) and she obtained a restraining order

against Dyer because she needed to protect herself and Pink from Dyer’s death threats. (Doc.

15-2 at 205–06) During closing argument, trial counsel reminded the jury that Ramsay

admitted that she was afraid of Dyer, obtained a restraining order against him, and reported

Dyer’s threats to police. (Doc. 15-3 at 178–79) Trial counsel would not have impeached

Ramsay with her renewed relationship with Dyer because that impeachment would have

undermined this other evidence that supported Pink’s claim of self-defense. For that reason

as well, the state court did not unreasonably apply Strickland. Hunt, 666 F.3d at 724 (“‘There

is a strong presumption that counsel’s attention to certain issues to the exclusion of others

reflects trial tactics rather than sheer neglect.’”) (quoting Richter, 562 U.S. at 109).

Ground Two is denied.

Ground Three

Pink asserts that trial counsel was ineffective for not advising him to accept the plea

offer of 10 years in prison knowing that a defense of self-defense would not have succeeded.

(Doc. 5 at 13) He further asserts that trial counsel was ineffective for not advising him that he

faced a 25-year mandatory minimum term if the jury found him guilty at trial. (Doc. 5 at 13)

He contends that he would have accepted the plea offer if he had known that Ramsay planned

to testify differently than her deposition testimony because that change in the testimony

undermined his defense. (Doc. 5 at 13–14) He asserts that the change in Ramsay’s recollection

rendered his rejection of the plea unknowing and involuntary. (Doc. 5 at 14)

The post-conviction court denied the claim as follows (Doc. 15-4 at 118–23) (state

court record citations omitted):

. . . Defendant makes two allegations: (a) that trial counsel was

ineffective for failing to advise Defendant to accept a plea offer

where it could be determined that Defendant could not achieve

an acquittal; and (b) that trial counsel was ineffective for failing

to advise Defendant of the potential sentences Defendant faced

in the event of a guilty verdict. In particular, Defendant alleges

that the State initially offered Defendant a ten-year sentence in

exchange for a guilty plea which Defendant acknowledges “may

not have appeared attractive at the time” but which he should

have been encouraged to accept in light of “the volume of

evidence against” Defendant. Defendant further alleges that

counsel failed to properly advise Defendant that he faced a

25-year mandatory minimum sentence. Defendant claims that,

but for trial counsel’s misadvice, he would have accepted the plea

offer rather than proceed to trial.

In response, the State concedes that “an evidentiary hearing will

need to be conducted concerning the advice given by

Defendant’s counsel to him concerning the statutory

maximums.”

To be granted relief on a claim of ineffectiveness with regard to

a plea offer, a defendant must prove that “(1) counsel failed to

communicate a plea offer or misinformed defendant concerning

the penalty faced, (2) defendant would have accepted the plea

offer but for the inadequate notice, and (3) acceptance of the

State’s plea offer would have resulted in a lesser sentence.”

Murphy v. State, 869 So. 2d 1228, 1229 (Fla. 2d DCA 2004)

(quoting Cottle v. State, 733 So. 2d 963, 967 (Fla. 1999)). Here,

the Court finds that Defendant failed to meet his burden.

At the evidentiary hearing, Defendant testified as follows with

regard to discussions he had with [his] attorneys about the plea

offer:

[3.850 Counsel:] [D]uring those meetings with Ms.

Dugree and Mr. Parrocha toward

the end, did you have discussions

about offers or making an offer to

the State?

[Pink:] Yes.

[3.850 Counsel:] Okay. And what — what were

those discussions — the substance

of those discussions?

[Pink:] They, uh — before trial, they came

to me with, uh, ten years plea deal,

I think it was, mandatory.

[3.850 Counsel:] Okay. And did you have a

meaningful discussion about that

offer?

[Pink:] He just asked me, you know, what

do you want to do. Uh, Mr.

Parrocha came out. He asked me,

what do you want to do, and I told

him, I said, um, you know, I want

to go to trial at the time, you know.

So he said, okay, just reject the plea

and we’ll go to trial, and I signed the

paper. And the meeting, just like I

said, when he came out, it wasn’t

that long because he just basically

came out there about the plea.

[3.850 Counsel:] Okay. Now, during the course of

these meetings, did you discuss the

minimum mandatory sentencing

that was required under this?

[Pink:] No. We never got into minimum

mandatory because all she ever

talk[ed] about is you [are] facing a

[felony punishable by life], and, uh,

once you — when the — the charge

on [the victim], you’re automatic

when the case on Ms. Vicky Brown,

because it’s a transfer [of] intent. So

we never really got into a minimum

mandatory on the other lesser

include[d]s or nothing like that.

[3.850 Counsel:] So there was never any discussion

about —

[Pink:] No.

[3.850 Counsel:] — what the minimum mandatory

sentence[ ] was?

[Pink:] No. She never — she never

explained that to me, no.

[3.850 Counsel:] Going into trial, did the Court or

anybody else explain to you what

minimum mandatory sentencing

was?

[Pink:] No, they never did.

. . .

[3.850 Counsel:] Now, prior to trial, did you receive

an offer from the State?

[Pink:] Yes, sir.

[3.850 Counsel:] And what was that offer?

[Pink:] It was ten years.

[3.850 Counsel:] Okay. And did you discuss that

offer with your attorney?

[Pink:] Yes, sir.

[3.850 Counsel:] And if you would have known

about the lesser offenses that you

could have been convicted of short

of the attempted first-degree

murder, do you believe you would

have accepted that offer?

[Pink:] Yes, I would.

[3.850 Counsel:] And was the offer available up — to

you up until the time of jury

selection?

[Pink:] Yes. Yes, it was.

[3.850 Counsel:] And if you would have known that

you faced minimum mandatory

time on lesser offenses, would you

have accepted that ten-year offer

then?

[Pink:] Yes, I would.

[3.850 Counsel:] Okay. At some time during trial,

did you attempt to offer ten years to

the State?

[Pink:] Yes.

[3.850 Counsel:] And why was that?

[Pink:] Uh, when, uh Deneice Ramsay got

up on the stand and totally changed

her theory, and, uh, Ms. Tanya —

Tanya Dugree telling me there’s

nothing she could do, I say, okay,

ask the State — okay, I’ll take the

ten-year plea, because now the

change of testimony and everything

is going to hurt me, you know. Ask

the State if I can get the ten-year

plea also. And, uh, they went over

and they talked to the State, and he

said no at that point.

Mr. Parrocha testified that he met with Defendant five or six

times and during the course of his discussions with Defendant,

he discussed the minimum mandatory associated with his

charges. Specifically, Mr. Parrocha testified as follows:

[Prosecutor:] Okay. So, specifically, did you

advise the defendant in this case

that he was looking at twenty-five

year minimum mandatories up to

life on the attempted murder —

[Parrocha:] Yes.

[Prosecutor:] — charge.

[Parrocha:] Yes.

[Prosecutor:] And twenty-five years to thirty

years on the aggravated battery?

[Parrocha:] Yes.

[Prosecutor:] Okay. Based on your conversation

with him, did he understand that?

[Parrocha:] Yes.

[Prosecutor:] And that was before the trial?

[Parrocha:] Yes.

[Prosecutor:] Now, also before trial, did you

discuss with him the plea offer —

[Parrocha:] Yes.

[Prosecutor:] — that the State had proposed for

ten years in Florida State Prison?

[Parrocha:] Yes, I did. That was on October

18th, and I went to see him to

discuss the offer of ten years.

[Prosecutor:] And what was his position with

regard to that?

[Parrocha:] He rejected the offer. He wanted

three years [of] probation or a

suspended sentence.

[Prosecutor:] And, again, this was on a case

where he’d been specifically

advised this is a twenty-five year

minimum mandatory, correct?

[Parrocha:] Yes, sir.

[Prosecutor:] Okay. Was it his decision and his

alone to go to trial?

[Parrocha:] Yes.

Ms. Dugree also testified as to the discussions she had with

Defendant regarding the plea offer and minimum mandatory

sentence. Specifically, she testified as follows:

[Prosecutor:] Prior to the commencement of trial,

did you have occasion to discuss the

minimum mandatories with Mr.

Pink that he was facing in this case?

[Dugree:] Multiple times because the gun law

I would explain to him 10/20/Life

and that he was facing a [felony

punishable by life], which he said

today he knew he was facing a

[PBL], which is a possibility of life

offense, and that when a gun is

used, what — if it’s used and if it’s

fired, if there’s an injury or if there’s

death, and each mandatory

minimum that applies to it. In fact,

when he got the offer, I begged him

to take the offer, and he did not

want to take it . . . .

Ms. Dugree testified that she met with Defendant “well over

twenty times” and that once the ten year offer was on the table,

they discussed whether they should risk a mandatory minimum

because “essentially we were admitting it happened by doing a

justification defense. So there was no lesser included or anything

to that effect, because with a self-defense claim, which we — we

talked about from the very beginning, is that you are admitting it

happened and you’re saying that you were justified in protecting

your life.” Ms. Dugree testified that it was “absolutely”

Defendant’s knowing decision to go to trial.

After reviewing the allegations, the court file, the testimony, and

the record, the Court finds Mr. Parrocha and Ms. Dugree’s

testimony to be more credible than that of Defendant. Defendant

testified that both of his attorneys communicated and discussed

the ten-year plea offer with him prior to trial. Further, both

attorneys testified that they both, on multiple, separate

occasions, discussed both the plea offer and the associated

minimum mandatories. As such, neither Mr. Parrocha nor Ms.

Dugree can be said to have performed below an objective

standard of reasonableness nor did either of the attorneys

perform unreasonably under professional norms. Therefore no

relief is warranted on [the claim].

The post-conviction court found trial counsel credible at the evidentiary hearing, and

a state court’s credibility determination receives deference on federal habeas. Raheem, 995

F.3d at 929. The post-conviction court accurately quoted testimony by trial counsel at the

evidentiary hearing. (Doc. 15-4 at 176–77, 183–84) Both trial counsel testified that they

discussed with Pink the 25-year mandatory minimum term for the firearm enhancement.

(Doc. 15-4 at 176–77, 183–84) Parrocha testified that Pink would only accept an offer of three

years of probation or a suspended sentence. (Doc. 15-4 at 176) Dugree testified that she

“begged him to take the offer” but Pink would not accept the offer. (Doc. 15-4 at 184)

Dugree further testified that she met with Pink to discuss self-defense as follows (Doc.

15-4 at 184–85):

[Prosecutor:] How many different times did you meet

with him generally in terms of case

preparation or prior to —

[Trial counsel:] Well over twenty times. I don’t know the

exact amount but even, um — each time

[sentencing] would come up [ ] because it

was always — always a relevant factor

because at first we didn’t get an offer.

When we finally got an offer — it wasn’t

an offer — he would receive, I think, it was

twenty years or something to that effect. So

that, you know, he wasn’t going to accept

it, especially because he felt justified it was

a self-defense case —

. . .

[Prosecutor:] What discussions did you have with him

about the plea offer, and specifically, the

ten-year offer?

[Trial counsel:] Once it became a ten-year offer, that’s

when we had to start thinking do you want

to risk a mandatory minimum if you’re

sentenced, because essentially we were

admitting it happened by doing a

justification defense. So there was no lesser

included or anything to that effect, because

with a self-defense claim, which we — we

talked about from the very beginning, is

that you are admitting it happened and

you’re saying that you were justified in

protecting your life. And that was always

the defense, and the reason that the ten

years was something we talked about, and

the mandatory minimum, if we were doing

a comparative analysis.

Ten years you know you can go home, you

have a wife, you have — I think he has five

children, has many children, and he had a

wife that he was still with at the time. And

then also if you risk it, there’s this

mandatory minimum, which you — which

you face day for day, no gain time. So there

was a very long discussion about it and

multiple times.

[Prosecutor:] And is it clear from your conversation with

him that it was his decision — his knowing

decision to go forward to trial in light of

that?

[Trial counsel:] Absolutely.

The prosecution charged Pink with attempted first-degree murder and aggravated

battery. (Doc. 15-2 at 2–5) The information alleged that Pink actually possessed a firearm

during the commission of both crimes and discharged the firearm causing great bodily harm.

(Doc. 15-2 at 2) For this firearm enhancement, Pink faced a mandatory minimum term of 25

years in prison if convicted of either crime, or the necessary lesser included offense of

attempted second-degree murder. Fla. Stat. § 775.087(2)(a)(3).

The mandatory minimum for the firearm enhancement does not apply to attempted

manslaughter by act, another necessary lesser included offense of attempted first-degree

murder. Brown v. State, 83 So. 3d 777, 778 (Fla. 5th DCA 2011) (“Under section 775.087(2),

attempted voluntary manslaughter is not an enumerated offense subjecting an offender to its

mandatory minimum provisions.”). Attempted manslaughter by act requires proof that the

defendant intended to commit an act that caused the death of the victim, instead of proof that

the defendant intended to kill the victim. Daniels v. State, 121 So. 3d 409, 414–15 (Fla. 2013)

(quoting State v. Montgomery, 39 So. 3d 252, 256 (Fla. 2010)). By asserting self-defense, Pink

conceded that he intended the kill the victim. Saldana v. State, 139 So. 3d 351, 353 (Fla. 2d

DCA 2014). Consequently, trial counsel was not ineffective for advising Pink that, if he

asserted self-defense, a lesser offense without a mandatory minimum did not apply. (Doc.

15-4 at 184–85)2

Ramsay’s change in her recollection of the events occurred during trial. Pink testified

that the prosecution’s plea offer of 10 years was available until jury selection commenced.

(Doc. 15-4 at 162–63) Trial counsel was surprised by the change, could not have anticipated

the change, and could not have advised Pink to plead guilty before jury selection because of

the change. Strickland, 466 U.S. at 689.

Also, Pink testified that he asked trial counsel to present a 10-year offer to the

prosecutor after Ramsay’s change in recollection. (Doc. 15-4 at 163) Trial counsel extended

the offer but the prosecutor rejected the offer. (Doc. 15-4 at 163) Consequently, Pink could

not demonstrate prejudice. Missouri v. Frye, 566 U.S. 134, 148 (2012) (“In order to complete

a showing of Strickland prejudice, defendants who have shown a reasonable probability they

would have accepted the earlier plea offer must also show that, if the prosecution had the

discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a

reasonable probability neither the prosecution nor the trial court would have prevented the

offer from being accepted or implemented.”).

2 Also the mandatory minimum does not apply to battery, a necessary lesser included offense

of aggravated battery. Fla. Stat. § 775.087(2)(a)(1). The information charged Pink with causing great

bodily harm, permanent disability, or permanent disfigurement for the aggravated battery charge.

(Doc. 15-2 at 3) Because unrebutted evidence at trial proved that the bullet struck the woman in the

salon, pierced her arm and neck, and inflicted a permanent scar (Doc. 15-2 at 53–54, 56, 303), trial

counsel was not ineffective for advising Pink that the lesser offense of battery did not apply.

Lastly, Pink asserts that trial counsel was ineffective for not presenting an expanded

motion for mistrial for the discovery violation. (Doc. 5 at 14) He contends that trial counsel

should have argued that Ramsay’s change in recollection procedurally prejudiced the defense

because Pink would have accepted the prosecution’s 10-year offer if he had known about the

change before trial. (Doc. 5 at 14) At sentencing, trial counsel presented this argument as part

of a motion for new trial as follows (Doc. 15-3 at 306–07):

[Trial counsel:] You got to remember, Your Honor, that

during the two depositions she changed her

testimony. At what point in time did this

defendant allegedly make these

statements? In our case in chief, there was

one witness to the case, the nanny,

Charmaine Sealey, who went to the fish

store, was dropped off because she was

going to buy fish before the shooting

occurred. I mean, we would have

examined her had we found out about

these statements. At what point in time did

this defendant allegedly make these

statements? Then we would have prepared

for it. And in the defendant’s words, Your

Honor.

I mean, how was our trial strategy affected?

Perhaps we would never have gone to trial

had we learned about this. The defendant

would have accepted the ten-year offer.

And that’s exactly what he indicated to me

when I went to see him. Had I known, Mr.

Parrocha, those statements are going to

come out at trial there would be no trial

because I would have accepted the ten

years. . . .

After the prosecutor responded to the argument, the trial court denied the motion for new

trial. (Doc. 15-3 at 310–13) Because the record refutes that trial counsel deficiently performed

and the outcome at trial would not have changed, the state court did not unreasonably apply

Strickland.

Ground Three is denied.

Accordingly, it is ORDERED that Pink’s amended petition (Doc. 5) is DENIED

because all claims in the petition are without merit. The Clerk is DIRECTED to enter a

judgment against Pink and CLOSE this case.

CERTIFICATE OF APPEALABILITY AND

LEAVE TO PROCEED IN FORMA PAUPERIS

Because Pink neither makes a substantial showing of the denial of a constitutional

right nor demonstrates that reasonable jurists would find debatable both the merits of the

underlying claims and the procedural issues that he seeks to raise, a certificate of

appealability and leave to appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2).

Slack v. McDaniel, 529 U.S. 473, 478 (2000).

DONE AND ORDERED in Tampa, Florida on July 13, 2021.

UNITED STATES DISTRICT JUDGE

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