Oliver v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

RICKY T. OLIVER,

Petitioner,

v. Case No. 3:18-cv-694-TJC-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

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

se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254, with exhibits,

filed on May 24, 2018 (mailbox rule). See Doc. 1.1 He challenges a state court

(Duval County, Florida) judgment of conviction for two counts of attempted

murder with a firearm and one count of shooting or throwing deadly missiles,

for which he is serving life imprisonment. Id. at 1. Respondents filed a Response

with exhibits. See Docs. 9, 18. Petitioner filed a Reply. See Doc. 13. This case is

ripe for review.

1 For all documents filed in this case, the Court cites to the page numbers as

assigned by the Court’s electronic case filing system.

II. Governing Legal Principles

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

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

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

2016). “‘The purpose of AEDPA is to ensure that federal habeas relief functions

as a guard against extreme malfunctions in the state criminal justice systems,

and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S.

34, 38 (2011)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the petitioner’s claims on the merits. See

Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The

state court need not issue an opinion explaining its rationale in order for the

state court’s decision to qualify as an adjudication on the merits. See Harrington

v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s adjudication on the

merits is unaccompanied by an explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that

does provide a relevant rationale. It should then

presume that the unexplained decision adopted the

same reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

grounds than the lower state court’s decision, such as

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

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

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Richter, 562 U.S. at 101 (internal quotation

marks omitted). “It bears repeating that even a strong

case for relief does not mean the state court’s contrary

conclusion was unreasonable.” Id. [at 102] (citing

Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The

Supreme Court has repeatedly instructed lower federal

courts that an unreasonable application of law requires

more than mere error or even clear error. See, e.g.,

Mitchell v. Esparza, 540 U.S. 12, 18 (2003); Lockyer,

538 U.S. at 75 (“The gloss of clear error fails to give

proper deference to state courts by conflating error

(even clear error) with unreasonableness.”); Williams v.

Taylor, 529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

III. Relevant Procedural History

During the relevant time period, Petitioner was facing criminal charges

in three separate state court cases. See Duval County Case Nos. 16-2010-CF-

6391 (attempted murder case challenged in the instant Petition); 16-2010-CF-

6393 (robbery case); 16-2008-CF-17817 (sale or delivery of cocaine). For the pre-

trial proceedings, the attempted murder case and the robbery case largely

travelled together.

On July 10, 2012, Petitioner filed a pro se motion to discharge his

appointed counsel, Sissy Adams-Jones, in the attempted murder and robbery

cases. See Doc. 9-2 at 52-55. On September 20, 2012, the trial court conducted

a final pretrial hearing. See Doc. 9-5 at 42. The court asked Petitioner whether

he still wanted to discharge his counsel, to which Petitioner responded, “I’m

thinking.” Id. at 47. After allowing some time for Petitioner to contemplate his

decision, the court stated:

All right. Well, let me let you think about it. I’m

only going to hear this, if you really want to do it. And

the fact that you’re thinking now, which is a good

thing, tells me that I’m certainly not going to hear it

today.

So what we’re going to do, is we’re going to

continue these cases. . . . So we are going to set this for

trial and final pretrial and also set it for an interim

date where Mr. Oliver can tell us whether he wants to

proceed with his Nelson[2] request or not.

Id. at 47, 49. Subsequently, on September 25, 2012, the trial court held a

hearing to resolve Petitioner’s pro se request to discharge his counsel:

THE COURT: All right. Mr. Oliver, have you

decided which way you want to proceed, sir?

THE DEFENDANT: Yes, sir. I’d like to obtain

conflict . . . free counsel and, as a last resort, I’d go pro

se, but I have a conflict with my attorney and I’d like to

- -

THE COURT: Okay. Let me ask two questions

then, since you’ve told me that you, in effect, want a

Nelson hearing and then you’d like a Faretta[3] hearing

if the Nelson hearing doesn’t go your way. So, have you

filed a written motion for both of those things?

THE DEFENDANT: Just a motion to dismiss

counsel.

Id. at 55-56. The court then explained to Petitioner that he needed to file a

Nelson motion and a Faretta motion and the requirements of such motions, and

continued the proceeding. Id. at 56-57.

On September 27, 2012, the court reconvened and Petitioner advised the

court that he wished to withdraw his motion to dismiss counsel and proceed

2 Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).

3 Faretta v. California, 422 U.S. 806 (1975).

with a Faretta hearing so he could proceed pro se. Id. at 64. After extensive

questioning and advising Petitioner of his rights and the dangers of self-

representation, see id. at 64-101, the court made the following findings:

THE COURT: All right. At this time, even though

the defendant’s got physical problems and he has been

diagnosed as paranoid schizophrenic, he is not

exhibiting any such behavior.

In fact, he is exhibiting quite clear thought in

court. His demeanor is excellent. And I can tell by all of

his answers, they are logical and they make sense.

I am not saying that he is going to be a good

lawyer, and I doubt very seriously that he will be one,

but he does understand the dangers that he is

encountering.

And he’s got the right under case law and our

constitution to represent himself. So even though I

think he is making a real bad mistake, I’m here to

guarantee his right to make that mistake.

Therefore, at this time I do allow Mr. Oliver to

proceed pro se. His current counsel will be here as

standby counsel, and we’ll proceed to trial.

Now, I do believe we’ve got a final pretrial on

11/15 and a jury selection date 11/26.

Let me just ask you now, Mr. Oliver. Do you want

to keep that trial date?

The State is announcing that they want to try the

robbery first?

[PROSECUTOR]: Your Honor, that’s the one

that has been prepared. It’s my understanding in

discussions with Ms. Sissy Adams that the defense had

not completed depositions in the shooting case. I

believe everything is ready to go in the . . . unarmed

robbery case.

So at this point, obviously, he would be entitled

to get all of that material. I don’t know if he still wants

to try to do the 26th or if he wants to move it.

THE COURT: That’s what I’m asking now.

I’ll ask counsel. Did you take depositions in the

robbery case?

MS. ADAMS-JONES: In the robbery case, yes,

with the exception of about two category A witnesses.

THE COURT: Okay. So it may well be that Mr.

Oliver is all ready to go. His counsel has already

prepared the case, and we can keep that trial date of

11/15, 11/26.

If both sides agree with that, we will, but if you

want a continuance, tell us now, Mr. Oliver.

THE DEFENDANT: Yes, sir, I do. . . . I want to

deposition the other remaining two category A

witnesses.

Id. at 101-03. The trial court then granted Petitioner’s request for a continuance

of the trial date. Id. at 103.

On January 9, 2013, during a status hearing, the court confirmed that

Petitioner wanted to continue representing himself, granted Petitioner

additional time for discovery, and reset the trial for May 13, 2013. Id. at 150,

157-58. Petitioner commented during the status hearing that he was being

“forced to be representing [himself] now, because nobody is helping [him].” Id.

at 158. The court advised Petitioner:

THE COURT: . . . [W]hen you say you’re forced

into self-representation, I wanted the record to be very

clear, I’m certainly not forcing you into self-

representation, and if at any time all you have to do is

ask me, and I will put . . . Ms. Adams-Jones back on as

your attorney at any time. So you’re not being forced. I

want the record to be real clear. You might have meant

something different than the way it sounded, but you’re

not being forced in any way to represent yourself. This

is your decision. . . . You either represent yourself, as

you’ve chosen; or you go back with Ms. Adams-Jones.

Has there ever been a Nelson inquiry in this

case?

THE DEFENDANT: I would like to have another

one, so I can get rid of her.

THE COURT: We’re not going to have another

one, if we’ve already had one.

THE DEFENDANT: No, we didn’t.

THE COURT: A Nelson inquiry is where you say,

Judge, she’s been ineffective in representing me, and

therefore - -

THE DEFENDANT: I withdrew that motion,

Your Honor.

THE CLERK: That’s correct.

THE COURT: . . . [A]t any rate, you have a choice.

The only choices you have are Nelson - - and that’s

where you seek to have someone else represent you - -

or representation of yourself, or Ms. Adams-Jones.

Those are you three choices.

But it’s your decision[]. It’s not the Court’s

decision. And I’m certainly not forcing you one way or

the other.

Do you understand, Mr. Oliver?

THE DEFENDANT: Yes, sir.

Id. at 162-64.

During a pretrial hearing held on March 5, 2013, Petitioner advised the

court that he wanted to remain pro se in his attempted murder case, but he

requested the court reappoint Ms. Adams-Jones as his counsel in the robbery

case and then conduct a Nelson hearing. Id. at 173. The court, Petitioner, and

the prosecutor engaged in a discussion regarding Petitioner’s intentions with

respect to his representation in both cases. See id. at 173-87. Notably, the

following discussion occurred:

[PROSECUTOR:] Judge, one of the things that I

don’t know if the court picked up on, this defendant

stated that in the second case [(the attempted murder

case)]. . . when that goes to trial, he said he is going to

get a lawyer.

. . . .

THE COURT: Did you say that; you’re going to

represent yourself in the second case?

THE DEFENDANT: No, sir. I didn’t say that. I

said I’m going to continue to do my research on that

case. And when the time comes, the trial date is set, I

will hand it over to my counsel.

[PROSECUTOR:] That’s exactly what he said.

He is going to hand it over to a lawyer after he does

what he wants to do with it. That’s a concern.

And I would cite the court to Jones v. State,

which is a Florida Supreme Court case. It says an

individual that is representing himself can’t willy nilly

go back and forth between choices.

It puts the court, it puts the lawyer that’s

representing him in an absolutely impossible position.

It needs to be a solid decision made by this

defendant based on all the information the court gets

through a Faretta [i]nquiry of whether he truly wants

to represent himself or not.

This defendant is stating today before the Court

that he is just going to do what he wants, and then he

is going to hand it off to a lawyer right before the trial

or whatever. I think that is completely unacceptable.

And the State of Florida would object.

If we have a hearing, we should have it as to both

cases and not just the one case.

THE DEFENDANT: I don’t see where that’s a

concern, Your Honor, because either I get appointed a

counsel or I take it all the way to the jury selection and

then hand it over to a counsel. That’s the same thing.

THE COURT: I’m not really sure that that issue

is ripe, especially in light of the fact that the State

wants to try the case ending in 6393 [(the robbery case)]

first. And if we do try that case, that will be the second

case that Mr. Oliver gets tried, and then eventually if

he is convicted, sentenced upon.

I’m not really going to worry too much about the

third case unless that comes up.

But I think the State is correct. The defendant

should not be able to just play games with the court and

bounce back and forth between self representation and

tax-payer provided attorney representation.

And the State, you can bring that up tomorrow.

If there is some way that we can resolve it, then I will

do that. But right now his current motion only

addresses the 6393 case.

Id. at 184-86.

On March 25, 2013, a hearing was held, at the beginning of which the

court confirmed that Petitioner wanted to proceed pro se. Doc. 9-6 at 5, 12.

Petitioner advised the court that he was withdrawing his request to have

counsel reappointed in the robbery case. Id. at 6-7. The court heard argument

on Petitioner’s pro se motion to dismiss the robbery case and denied the motion.

Id. at 24-25. The court then had a discussion with Petitioner about his options

of proceeding with or without counsel in both his robbery and attempted murder

cases. See id. at 25-33. Petitioner renewed his request for a Nelson hearing in

his robbery case. Id. at 33.

Therefore, another hearing was held the following day. See id. at 36.

Petitioner withdrew his request for a Nelson hearing in the robbery case, and

requested that counsel be appointed to represent him in that case only. Id. at

41 (requesting counsel be appointed for the robbery case but indicating he would

“like to remain pro se on [his] 6391 case”). The court reappointed Ms. Adams-

Jones in the robbery case. Id. at 41-42. The robbery trial had previously been

set for May 13, 2013, and the court confirmed that date with the parties. Id. at

45.

On June 3, 2013, Petitioner filed a pro se demand for speedy trial in his

attempted murder case. Doc. 9-2 at 93. On June 5, 2013, the court held a

hearing to discuss the case. See Doc. 18 at 7-17. The prosecutor advised the

court that the case was set for trial in September 2013, but in light of

Petitioner’s demand for speedy trial, the trial would have to be moved up. Id. at

9, 12. The court suggested July 8 or 15, 2013, but the clerk advised that

Petitioner’s stand-by counsel had asked that the trial not be set for the week of

July 8 because she would be unavailable. Id. at 12-14. The following exchange

then occurred:

THE COURT: . . . [The clerk] told us that [stand-

by counsel] didn’t want that week, but that is the week

it is going to have to be. By the way, Mr. Oliver, you

still want to represent yourself?

THE DEFENDANT: Yes, sir.

THE COURT: In this other trial, even though

your attorney got you practically off during the last

trial. You want to represent yourself?

THE DEFENDANT: Yes, sir.

. . . .

THE COURT: Did you want her to be your

standby counsel?

THE DEFENDANT: Yes, sir.

THE COURT: She may not be able to be there

that week. You are the one asking for speedy trial. You

may not have a standby counsel that week. Do you

understand?

THE DEFENDANT: Yes, sir.

THE COURT: If it turns out she can’t be here if

you want to continue and withdraw your demand for

speedy trial, it is up to you. Otherwise, you may be

putting yourself in a position where you can’t try this

case with standby counsel. Do you understand, sir?

THE DEFENDANT: Yes, sir.

THE COURT: She is going to be out of town that

week. She can’t be here that week. So I will tell you

right now she is not going to be here. So if you want

speedy trial, that is the week we are going to set this.

You are going to be without standby counsel.

That is just the way it is. Do you understand? If you

want standby counsel, tell me now. If you would rather

have standby counsel than speedy trial within the next

45 days tell me now.

THE DEFENDANT: Yes, sir. I want standby

counsel.

THE COURT: Well, you are not going to have

standby counsel, because I am setting this within the

45-day period. I am setting it on the week where your

standby counsel can’t be here. Do you understand that,

sir?

THE DEFENDANT: Yes, sir.

THE COURT: I will consider appointing another

attorney as your standby counsel. But they won’t be as

familiar with the case as she is.

THE DEFENDANT: I need her.

THE COURT: Okay. Well, you are not going to

have her pursuant to your demand for speedy trial. You

can appeal this all you want if you get convicted. Thank

you. Take Mr. Oliver back.

. . . .

THE COURT: So the record is clear, it is over his

objection, but the Court has no choice.

[PROSECUTOR]: Are we doing it the 8th?

THE COURT: Yes, ma’am.

Id. at 13-16.

On June 25, 2013, the court confirmed with Petitioner that he wanted to

continue proceeding pro se and reviewed the procedural history of the case. See

id. at 21-24. The following discussion occurred:

THE COURT: We had our calendar call on 6/5 I

believe?

THE DEFENDANT: Yes, sir. Jury selection was

set for 7/8.

THE COURT: That’s right. And I told you that if

you wanted us to keep that trial date that your standby

counsel would not be available. Let me ask you this, . .

. do you want me to appoint someone else to be your

standby counsel that week?

THE DEFENDANT: No, sir. Ms. Adams has

informed me that she’ll be able to represent me as

standby on the 8th.

THE COURT: Oh, okay. So whatever plan that

she made she’s changed it so she can be there?

THE DEFENDANT: Been delayed, yes, sir.

Id. at 24. Then, at the final pretrial hearing on July 1, 2013, the court conducted

a final Faretta inquiry, during which petitioner confirmed that he wanted to

continue representing himself and that his standby counsel would be present.

Id. at 29-56. The prosecutor interrupted, “Your Honor, if I may interject, Miss

Adams-Jones won’t be here.” Id. at 33-34. The following exchange then occurred:

THE COURT: Thank you, sir, I stand corrected.

Because you demanded speedy trial, this was the only

day the Court could try your case within the speedy

trial period, therefore, you will have to proceed without

Miss Adams. Miss Adams, what?

[PROSECUTOR]: Jones.

THE COURT: Jones, do you understand?

THE DEFENDANT: Yes, sir, she told me she

would be present.

THE COURT: Okay, but I always try to give you

the worst case scenario in a waiver like this. . . . I don’t

think you can waive your rights unless you know. Now,

she might not be here that week, but you’d prefer to

go to trial that week within your demand for

speedy trial with or without her, is that correct,

sir?

THE DEFENDANT: Yes, sir.

Id. at 34 (emphasis added). At the conclusion of the hearing, the court again

inquired of Petitioner:

THE COURT: Having been advised of your right

to counsel, the advantages of having counsel, the

disadvantages and dangers of proceeding without

counsel, the nature of the charges and possible

consequences in the event of a conviction, are you

absolutely certain that you do not want me to appoint

[a] lawyer to defend you, sir?

THE DEFENDANT: Yes, sir.

THE COURT: Do you want me to continue to

appoint Miss Adams-Jones in the event she can be

here, we’re not sure if she can, but if she’s here[.] Do

you want me to continue to appoint her as stand-by

counsel?

THE DEFENDANT: Yes, sir.

THE COURT: If she’s not here you want to go

to trial without her, is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. Then she is so appointed.

We’ll see whether she can make it or not.

Id. at 55-56 (emphasis added).

On July 8, 2013, the day of jury selection, Petitioner advised the court

that he wanted his stand-by counsel, Ms. Adams-Jones, reappointed to

represent him. Doc. 9-3 at 9. Ms. Adams-Jones advised the court that she had

spoken with Petitioner the night before, and he advised her that he was going

to request she be reappointed. Id. at 11. She indicated that if the court

reappointed her, she would need a continuance of the trial to prepare. Id. The

court acknowledged that Petitioner had filed a demand for speedy trial, and

after some discussion, Petitioner stated he would withdraw that demand. Id. at

11-12. The state, however, objected, and argued that Petitioner was engaging a

delay tactic; according to the state: Petitioner “was asked on numerous prior

court dates by Judge Stetson whether or not he wanted his trial or his stand-by

counsel, knowing that Ms. Jones would be unavailable the week of July 8th.”

Id. at 12-13. The state continued:

I actually had Mr. Oliver added on the calendar when I

received a copy of the [demand for] speedy trial. He

filed it directly after a trial that I tried him on. When

he came to court the date that he said himself was July

8th. At that point in time Ms. Gardner, who’s Judge

Stetson’s JA, who knew Ms. Adams-Jones[’] schedule,

said Ms. Adams-Jones has already notified us that she

is not available that week.

Judge Stetson went through a long series of

questions with him, do you want your stand-by counsel

or do you want your trial, do you want your stand-by

counsel or do you want your trial. Every time he said

he wanted his trial.

He’s had three pending cases. One he’s serving a

sentence on for 20 years and the other one he had a

robbery case and all of which he filed speedy trial

notices and then when the trial date comes he wants a

continuance. I know the Court is not aware of that, but

as an officer of the court, I know Ms. Adams-Jones will

also agree as an officer of the court, that every time we

get to a trial date he somehow - - he’ll file a demand for

speedy trial and at the trial date he’ll say, oh, no, I want

a continuance, I want this, I want that. And then the

last time we went to trial it was over his objection to a

continuance where he basically demanded a speedy

trial in that case, too.

So this has been a pattern for this particular

defendant. . . . I’m sure once we get back, if the Court

grants a continuance, he’ll file another demand for

speedy trial and then we’ll be in the same kind of

circular hamster wheel, essentially, like we’ll come at

his whim that he wants a speedy trial and then when

we get there he doesn’t want it.

Id. at 13-14. Ms. Adams-Jones also recognized that Petitioner had filed

“numerous demands for speedy trial” in his other cases, but she explained that

discovery still needed to be conducted and assured the court that if she were

reappointed, she would not file a demand for speedy trial. Id. at 15.

In considering Petitioner’s request to withdraw his demand for speedy

trial, the court summarized the procedural history of the case:

THE COURT: Well, I think the problem is, and,

of course, I can’t read the future, but and I take you[4]

at your word as an officer of the court that you would

not file a demand for speedy trial, but that doesn’t stop

him from deciding to go pro se again and then doing it

again. So there’s no guarantee whatsoever that that

wouldn’t occur again.

But beyond that, there’s some very specific rules

I think. The first thing I need to do is figure out, since

I haven’t handled the case all along -- this is case No.

2010-6391 and I just need to make sure I’ve got a

printout of the cases I’ll give the correct one -- or maybe

I don’t even have the correct one. I do. So it looks like,

just for my own sake, on July 15th, 2010, he was

arraigned. He had a final pretrial November 10th of

2010 and then following that, obviously it didn’t go to

trial, several status hearings and then a disposition

date of January 25th of 2011, obviously did not get

4 Referring to Petitioner’s stand-by counsel, Ms. Adams-Jones.

disposed of. Another final pretrial February 17th of

2011, two pretrials and then a final pretrial April 7th

of 2011. Final pretrial July 21st of 2011. One, two,

three, four, five pretrials and then another final

pretrial October 13th of 2011. Three more pretrials and

then a final pretrial December 8th of 2011, a final

pretrial March 15th of 2012, final pretrial March 22nd

of 2012, final pretrial June 14th of 2012, a pretrial and

then a final pretrial September 20th of 2012, a pretrial

and then a hearing on a motion September 27th of

2012. Four, five, six, seven, eight, nine, 11 pretrials and

then a final pretrial May 8th of 2013. Final pretrial

May 23rd of 2013. Two pretrials, a hearing on motion

June 5th of 2013, a final pretrial June 25th of 2013,

final pretrial June 27th of 2013, final pretrial July 1st

of 2013 at which it was passed until today for jury

selection.

Id. at 15-17. The court recited the pertinent portion of Florida Rule of Criminal

Procedure 3.191(g) regarding demands for speedy trial,5 confirmed the state

objected to Petitioner’s request to withdraw his demand, and then concluded:

THE COURT: The rule is here for a reason and

the reason it’s here and the reason it is so strict is to

keep people -- and I’m not accusing you of doing this,

please don’t misunderstand, but it’s to keep people from

playing games with the Court, that when they say

they’re ready they’re ready, and a demand for speedy

trial is something that the rest of us all have to sort of

jump through some hoops and get it done and we

change schedules, we get other judges to help us,

whatever we need to do to as a system to assure that

5 “A demand [for speedy trial] may not be withdrawn by the accused except on

order of the court, with consent of the state or on good cause shown. Good cause

for continuances or delay on behalf of the accused thereafter shall not include

nonreadiness for trial, except as to matters that may raise after the demand for

trial is filed and that reasonably could not have been anticipated by the accused

or counsel for the accused.” Fla. R. Crim. P. 3.191(g).

your demand is honored. And that’s why the rules

committee of the Supreme Court and the legislature

have made this rule so strict, is that it causes everyone,

besides you, to take note that you’re ready, that you’re

demanding your trial, and it’s time to move forward.

And there’s nothing that’s been told to me, unless

there’s some case law I’m not aware of, where what

you’re saying today would be good cause.

And although Mr. Oliver has apparently related

to you that he was under the impression that you would

be available, the State has indicated that that is not

correct, that Judge Stetson clearly told him that you

would not be available and that that was his choice if

he wanted to go ahead and proceed and he chose to

proceed without.

In fact, I believe Mr. Overstreet [(the prosecutor)]

might have even told me that right as Mr. Oliver

mentioned that he might want to have you reappointed

that he had already made that decision that he was

prepared to proceed. He wanted to honor -- have the

Court honor his demand for speedy trial as opposed to

waiving, withdrawing, whatever Judge Stetson,

whatever words he might have used.

So I don’t know anything more than what I’ve

been told and what the rules say. Based on what the

rules say, I can’t find good cause and the State has

informed us that they are not prepared to consent to

having that demand withdrawn.

Id. at 17-21. The court conducted another Faretta inquiry. Id. at 23-38. During

that inquiry, the following occurred:

THE DEFENDANT: For one thing I totally

misunderstood what [Judge] Stetson was telling me

last - - when we set this trial date. My stand-by counsel,

Sissy Adams, was informing me that she was not going

on vacation until the end of the week and that she

would be her to represent me on my trial and when

[Judge] Stetson asked me if I would - - he gave me the

option to withdraw my demand for speedy trial,

knowing that she wouldn’t be there to represent me,

but I was not aware of that and still ain’t aware of that.

She’s told me that she’s going to be able to represent

me and I need an attorney. Point-blank. And I need

somebody that’s familiar with my case. I’m facing two

life sentences and 60 years.

. . . .

THE COURT: . . . You’ve known for three years

what you’re facing, correct? And you’ve gone back and

forth attorney, not attorney, attorney, not attorney.

THE DEFENDANT: No, ma’am, I have not. I

have not went pro se but one time. I don’t know what

they’re talking about, but I’ve never went pro se but one

time and I reappointed her on my trial last month and

I had her on my robbery case, she represented me, and

I stayed pro se on my remaining charges to do research

on it and - - and just like I did in my last trial I’m

requesting trial counsel.

Id. at 35-36. The court, while recognizing that Petitioner was requesting

counsel, found that Petitioner was competent to waive his right to counsel and

his waiver was knowingly and intelligently made. Id. at 36-37.

The case then proceeded to jury selection, during which Petitioner

commented to the prospective jurors that he was being forced to proceed pro se

despite his request for counsel. Id. at 129. The following discussion was had

outside the presence of the prospective jurors:

[PROSECUTOR]: Mr. Oliver, as the Court has

ruled previously, has shown that he is flip-flopping

between counsel and not having counsel simply to, in

the State’s argument, to achieve delay, that the

defendant demanded speedy trial, he was asked

numerous times by Judge Stetson in the scheduling of

his trial whether he wanted stand-by counsel or

counsel and the defendant stated he wanted his trial

regardless of the fact whether counsel would be

available to assist him in trial as stand-by counsel. It

wasn’t until today that the defendant has chosen that

he would like counsel back in an effort to delay. He’s

bound by his demand for speedy trial.

. . . .

THE DEFENDANT: I’m just saying I’m not

trying to flip-flop the system. . . . I know absolutely

nothing about this system. I know I read this Faretta

inquiry and it states right off the rip if you request

counsel, I should be requesting counsel, I’m requesting

it and I don’t know why I’m being refused it. And other

than that, you know, you can go on and railroad me,

whatever you’re going to do and, you know, how you

wait. That’s all I can say. I can’t change it. . . .

THE COURT: . . . I think [the prosecutor] is

requesting that the Court advise you that during the

rest of the trial you cannot comment on whether or not

you requested counsel. He won’t comment on it. He is

going to say that you chose to represent yourself. I’m

going to say it. And even though you disagree that

that’s what you did, based on the history of the case,

based on conversations that you had with Judge

Stetson before it came to me, based on your demand

and based on your knowledge of the unavailability of

your stand-by counsel, and based on your repeated

request to, at the time of trial, then choose to have an

attorney when the rest of the time you chose not to have

an attorney, the Court cannot go on like that forever

and ever. We could go on like that for years, so at some

point the Court has to make a decision that you have

changed your mind enough times that we’re going to

proceed.

I told you that the filing of a demand for speedy

trial is a serious filing. It’s not like asking for a witness’

name. That’s how important it is. But when you

demand speedy trial, you say you’re ready, you don’t

need anything else. You demanded it when you were

pro se and Judge Stetson went over all this at final

pretrial, he gave you the option, you chose not to take

it and said you were ready to go. You come in today at

jury selection and ask for something different. The

Court has ruled that we’re going to proceed without

counsel. You can appeal that ruling and the appellate

court can make a decision as to whether or not this

Court’s ruling was correct. But you can’t stand up and

say that’s not true, I did not choose to represent myself

and - -

THE DEFENDANT: I’m not choosing that.

THE COURT: You chose that up until the time of

selecting the jury. . . .

. . . .

THE DEFENDANT: . . . And what I don’t

understand is Judge Stetson even offered to appoint me

counsel that wouldn’t know nothing about my case,

even if Ms. Adams wasn’t here, you know, and I - -

THE COURT: And you said no.

THE DEFENDANT: She told me she was going

to be here. That is the reason why I said I’ll keep

counsel, ‘cause he asked me did he want me to

reappoint counsel or at some point in time he - - he

might be reappointed counsel that don’t know nothing

about your case and you’ll go to trial with somebody

that’s not even familiar with the case. That’s what

Judge Stetson told me.

THE COURT: Okay. Well, there’s a transcript of

every court appearance that you’ve had with Judge

Stetson and I’ve taken the word of the officers of the

court and you. I’ve taken it together and determined

what it seems to me the facts and the history of the case

are and I’ve made my ruling. And I understand you

don’t agree with it, but that’s how we’re going to

proceed.

Id. at 131-36. The jury was then selected.

The following morning, outside the presence of the jury, the trial court

cited to three cases that “discuss the fact that when the defendant in each of

those cases appeared before the Judge at their final hearing prior to the date of

jury selection . . . that the conversation or colloquy that the Judge had with the

defendants on that final pretrial date sufficed as the final Faretta inquiry for

purposes of trial.” Id. at 162-63. The court explained pertinent portions of those

cases and reiterated the same finding that Petitioner was competent to waive

his right to counsel and his waiver was knowingly and intelligently made. See

id. at 162-69. In pertinent part, the following conversation was had:

THE DEFENDANT: I’m terribly confused about

this situation where you’re saying that I discharged

counsel, I re-requested reappointment of counsel,

discharged counsel. That ain’t never happened. I went

pro se one time and I requested stand-by counsel Sissy

Adams. . . . I filed one motion to . . . get rid of stand-by

counsel because we had a conflict and I withdrew that

motion and I never went pro se, . . . I only went pro se

one time. I never re-requested counsel. I stayed pro se

all the way until I went to trial and I . . . felt like Ms.

Adams would be better at representing me in my

defense, you know, as far as being more knowledgeable

with what she can object to, what she can’t object to,

and I ain’t never went back and forth, back and forth.

So I don’t know why the State is even going to say that

because I haven’t went pro se but one time and that’s

when I went to trial last month and I requested trial -

- to be reappointed counsel at this trial.

As far as my hearing on final pretrial, if I

wouldn’t have been misadvised from stand-by counsel

that she would be available this week to sit in on my

trial, I would have asked [Judge] Stetson, because he

gave me the opportunity to withdraw my demand for

speedy trial or be reappointed a counsel, but by stand-

by counsel’s words telling me I’ll be here, I’m not going

until the end of the week, I’ll be able to stand in on your

trial, I said okay, I’ll be okay. The record should reflect

that I said my attorney said she will be here and it does.

. . . .

Well, at this time I’m still requesting to be

appointed counsel because I am incompetent as far as

representing myself in this trial and . . . I’m entitled . .

. to be represented by counsel.

. . . .

[PROSECUTOR:] Your Honor, I think the clerk’s

file as well as this case, but also in conjunction with his

other two cases - -

THE COURT: They all have to be read together.

[PROSECUTOR:] They all have to be read

together, the robbery case, the statements of Ms. Sissy

Adams-Jones, also what would be contained on the

record in front of Judge Stetson . . . .

. . . .

THE DEFENDANT: . . . I’ve been represented in

three different cases with Ms. Adams and that’s where

the big confusion is coming in about, you know, I don’t

want to be represented on this and that. But I’ve never

actually requested that she be discharged. When I went

pro se, I requested she be my stand-by counsel and . . .

I placed the motion in to . . . fire stand-by conflict

counsel and be reappointed conflict-free counsel, but I

withdrew the motion because me and her had a talk

and I had an understanding, . . . reason why she was

doing what she did or why she said what she said and .

. . I withdrew that, . . . and I’ve been represented by Ms.

Adams for three and a half years . . . .

THE COURT: Okay. Well, the record will reflect

everything correctly. . . . What I went over from the

record yesterday was the clerk’s printout. I can’t

remember what the State said they were going over

which had a little more detail than what I was going

over. You clearly were pro se and not represented when

you came in here. . . .

Id. at 170-76. The trial was held, Petitioner was found guilty, and he is serving

life imprisonment.

IV. Analysis

a. Ground One

Petitioner argues that he was deprived of his Sixth Amendment right to

counsel. See Doc. 1 at 3 (citing to his initial brief on direct appeal). He

acknowledges that before his trial, he requested to proceed pro se “only one

time.” He contends, however, that he subsequently requested counsel, but he

“was forced on the day of trial to represent himself.”

Petitioner, through appellate counsel, raised this claim on direct appeal.

Petitioner acknowledged on appeal that the trial court, after conducting a

Faretta hearing on September 27, 2012, permitted Petitioner to proceed pro se.

Doc. 1-1 at 40. Petitioner asserted that he “was unequivocal in every court

proceeding up until the proceedings of July 8, 2013, that he wanted to remain

pro se in this case.” Id. According to Petitioner, “[i]t was not until it became

clear that his stand-by counsel was not going to be available for trial, that

[Petitioner] moved to withdraw his demand for speedy trial and advised the

court that he wanted to terminate self-representation in this case and to have

counsel reappointed.” Id. He requested counsel several times throughout the

trial, but the trial court denied his requests. Id. at 40-41.

In its answer brief, the state argued as follows:

The instant case was one of three of [Petitioner]’s

cases pending in the trial court during the same time

period. In the other two cases, [Petitioner] filed

demands for speedy trial but requested continuances

[whe]n the trial date arrived. Reading from the clerk of

court’s computer, the prosecutor related [Petitioner]’s

long history of retaining and discharging counsel:

I can let the Court know also,

additionally on the clerk’s screen, that

while the defendant demanded speed trial

and discharged his trial counsel in 2011,

he then went pro se, took back Ms. Jones

and then again went pro se in July of 2012.

On July 10th, 2012, he filed a motion to

discharge his counsel, a Faretta inquiry

was held then, and this is always right

before a trial is set. The trial was set in

June of 2012 and the defendant again

fired his attorney as trial was set and then

was allowed to continue the case to

September of 2012. And then it looks

again that counsel was reappointed in

September of 2012 when a November date

was set for trial and then again later on in

September of 2012, again on September

27th 2012. Another Faretta inquiry was

held and counsel was discharged. Trial

was then again reset. There were

numerous pro se motions filed and heard

in October of 2012. And then it appears

the defendant remained pro se for the

length of that time.

. . . .

And then again in March of 2013,

the defendant again requested to remain

pro se and trial was set for May of 2013.

The defendant later on filed his motion for

speedy trial in June and here we are

today.

Thus, [Petitioner]’s attempts to discharge and

reappoint counsel, especially in the face of speedy trial

demands, is the very definition of the type of “willy-

nilly” manipulation of the justice system that Jones

and Langon[6] condemn, and the trial court could not

have abused its discretion in denying the

reappointment of counsel under such circumstances . .

. .

[Petitioner] argues that the trial court and this Court

are required to ignore [his] long history of abusing the

judicial system. [He] cites no authority for this

6 Jones v. State, 449 So. 2d 253 (Fla. 1984); Langon v. State, 791 So. 2d 1105

(Fla. 4th DCA 1999).

proposition, despite bearing the burden of persuasion.

This is unsurprising, as the notion that the trial court

must willfully blind itself to [Petitioner]’s behavior in

other pending cases when evaluating the motives of the

[Petitioner] in the instant case is absurd. Such a rule

would allow a defendant to play games ad infinitum

with the justice system simply by restarting the game

in one case when their manipulations in another case

have reached their limit. This is precisely the kind of

situation that the Florida Supreme Court clearly held

that a trial court need not tolerate from a defendant.

[Petitioner]’s abusive treatment of the court system

caught up to him, and he cannot complain of the lack of

an attorney when it is his games that deprived him of

one.

Doc. 1-1 at 75-77.

In his counseled reply brief on appeal, Petitioner argued that even if he

“abused the right of counsel in his other, unrelated, pending case, nothing in

his behavior in that case applies in the instant case.” Id. at 116. Petitioner

argued that his “constitutional right to counsel, as well as the right of self-

representation, applies to each individual case; choosing to proceed pro se in

one case does not cancel the right to counsel in another case.” Id. at 115.

The First District Court of Appeal entered the following per curiam

opinion:

The appellant, Ricky T. Oliver, appeals his

conviction and sentence on two counts of attempted

first degree murder. Appellant challenges the trial

proceedings on several grounds, and challenges the

consecutive mandatory minimum sentences imposed.

We affirm the convictions without comment.

Regarding the consecutive mandatory sentences, the

consecutive provision is mandatory. Walton v. State,

106 So. 3d 522, 528 (Fla. 1st DCA 2013), rev. granted,

145 So. 3d 830 (Fla. 2014). As in Walton, and Jackson

v. State, 157 So. 3d 539 (Fla. 1st DCA 2015) we certify

conflict with Irizarry v. State, 946 So. 2d 555 (Fla. 5th

DCA 2006).

Doc. 9-9 at 2-3 (emphasis added). The Supreme Court of Florida subsequently

accepted jurisdiction of the case and remanded the case for reconsideration of

the consecutive sentences imposed. See Doc. 1-1 at 139. The First DCA then

remanded the case to the trial court for resentencing on the issue of consecutive

or concurrent service of the sentences on the attempted first-degree murder

counts. See id. at 143-45. Petitioner was resentenced, and the modified

judgment was entered on November 21, 2017, “to reflect mandatory minimum

provisions to run concurrent.” Doc. 9-10 at 2.

This Court finds that the state court’s adjudication of this claim is entitled

to deference and the record supports that adjudication. The trial court

conducted thorough and multiple Faretta inquires, wherein it (1) advised

Petitioner of his right to counsel, the dangers and disadvantages of proceeding

pro se, court procedures, and the nature of the charges against him and possible

penalties; and (2) elicited information from Petitioner regarding his background

and physical and mental capabilities. The trial court found on multiple

occasions that Petitioner had knowingly, intelligently, and voluntarily waived

his right to counsel. See United States v. Wilson, 979 F.3d 889, 912 (11th Cir.

2020) (“A defendant’s waiver of his right to counsel is valid so long as his choice

was knowing, intelligent, and voluntary.”). The court also repeatedly inquired

of Petitioner whether he wanted to continue proceeding pro se. At the final

pretrial hearing, which was held only 7 days prior to the jury selection,

Petitioner specifically advised the trial court that he wanted to continue

proceeding pro se even if his stand-by counsel could not be present on the date

the trial was scheduled to begin—a date that was selected to accommodate

Petitioner’s speedy trial demand. It was not until the morning of jury selection

that Petitioner sought to have counsel reappointed to represent him.

Petitioner’s demand for a speedy trial and his decision to proceed pro se

until the day of jury selection suggest deliberate manipulation of the process.

He cannot complain that his objective was frustrated by the circumstances he

created. Cf. Horton v. Dugger, 895 F.2d 714, 716 (11th Cir. 1990) (“The

functional right of a defendant to withdraw his request to represent himself and

reassert the right to counsel at any time immediately before, or perhaps even

during trial, is, absent deliberate manipulation, virtually assured.”

(emphasis added)).

Additionally, Petitioner argued in the state court proceedings that despite

the trial court’s multiple warnings, he did not fully understand and he believed

his stand-by counsel would be present at trial. He also argued that contrary to

what the state represented, he did not flip-flop between representing himself

and requesting counsel in the attempted murder case. The state court’s

adjudication of this claim, however, reflects that his arguments were not

persuasive.

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

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

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

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

determination of the facts in light of the evidence presented.7 Therefore,

Petitioner is not entitled to federal habeas relief on Ground One.

b. Ground Two

Petitioner claims that he was denied his Sixth Amendment right to

counsel “by being forced to proceed upon [his demand for a] speedy trial.” Doc.

1 at 4. He asserts that he showed “good cause to withdraw his demand for

speedy trial” so that his standby counsel could “properly investigate the case

[and] complete discovery,” but the trial court denied it.

Petitioner, with the help of appellate counsel, raised this claim on direct

appeal. He argued that good cause was shown for the following reasons: “as all

7 See Moody v. Comm’r, Alabama Dep’t of Corr., 682 F. App’x 802, 809 (11th Cir.

2017) (recognizing that the Supreme Court in Marshall v. Rodgers, 569 U.S. 58,

63-64 (2013), “has already determined that there is no clearly established

federal law with regard to how a court is to treat a request for counsel made

after a valid Faretta waiver”).

parties were aware, the sole reason for moving to withdraw the demand was

because [Petitioner] wanted counsel appointed.” Doc. 1-1 at 47. He continued,

“The trial court’s error in sustaining the State’s objection to the withdrawal of

the demand for speedy trial and objection to alternative counsel being

appointed, required [Petitioner] to proceed to trial denied of his right to

counsel.” Id. at 48.

In its answer brief, the state first argued that Petitioner “failed to

preserve any argument that good cause existed to withdraw his demand for

speedy trial.” Id. at 84. Second, on the merits, the state argued that Petitioner’s

“only cause for withdrawing his demand [for speedy trial] was his

unpreparedness for trial, and that cannot constitute good cause.” Id. at 86.

According to the state, Petitioner “used his demand for a speedy trial to

manipulate the court’s docket without any bona fide desire for a speedy trial,

and he cannot complain when such impermissible efforts backfired on him.” Id.

In support of its position, the state asserted that Petitioner’s actions were an

attempt to delay his proceedings, “based on his consistent pattern of demanding

speedy trial and then withdrawing the demand immediately before trial in his

other two pending cases.” Id. at 87. Finally, the state contended that Petitioner’s

request for counsel was merely a relabeling of “unpreparedness,” which cannot

constitute good cause to withdraw a speedy trial demand. Id. at 88.

In his counseled reply brief on appeal, Petitioner asserted that his claim

was properly preserved, and that the state’s argument about Petitioner abusing

the judicial process relied on facts from Petitioner’s other cases which are not

relevant to this case. Id. at 119-20.

The First DCA affirmed Petitioner’s convictions without comment. Doc.

9-9 at 2-3. Insofar as Petitioner argues that the trial court erred when it failed

to find good cause to withdraw his demand for speedy trial under Florida Rule

of Criminal Procedure 3.191(g), that assertion is wholly a matter of state law

that is not cognizable on federal habeas review. Indeed, the purpose of a federal

habeas proceeding is to review the lawfulness of Petitioner’s custody to

determine whether that custody is in violation of the Constitution or laws or

treaties of the United States. See Coleman v. Thompson, 501 U.S. 722 (1991).

Only in cases of federal constitutional error will a federal writ of habeas corpus

be available. See, e.g., Jones v. Goodwin, 982 F.2d 464, 471 (11th Cir. 1993).

Indeed, “it is not the province of [this Court] to reexamine state-court

determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68

(1991).

Nevertheless, to the extent he argues that as a result of that denial, he

was denied his constitutional right to counsel, this Court concludes that the

state court’s adjudication was not contrary to clearly established federal law,

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

and was not based on an unreasonable determination of the facts in light of the

evidence presented. Therefore, Petitioner is not entitled to federal habeas relief

as to Ground Two.

Accordingly, it is

ORDERED:

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

WITH PREJUDICE.

2. The Clerk shall enter judgment dismissing this case with

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

3. If Petitioner appeals the denial of the Petition, the Court denies a

certificate of appealability. Because the Court has determined that a certificate

of appealability is not warranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.®

DONE AND ORDERED at Jacksonville, Florida, this 20% day of

August, 2021.

Ww. TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 7/28

C:

Ricky T. Oliver, #102311

Counsel of Record

8 The Court should issue a certificate of appealability only if the Petitioner

makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To make this substantial showing, Petitioner “must demonstrate

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282

(2004) (quoting Slack v. McDaniel, 529 U.S. 478, 484 (2000)), or that “the issues

presented were ‘adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 5837 U.S. 322, 335-36 (2008) (quoting Barefoot v. Estelle,

463 U.S. 880, 893 n.4 (1983)). Here, after consideration of the record as a whole,

the Court will deny a certificate of appealability.

36