Gendron v. State of Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

ALBERT WILFRED GENDRON,

Petitioner,

v. Case No: 5:18-cv-165-TPB-PRL

SECRETARY, DEPARTMENT OF

CORRECTIONS and FLORIDA

ATTORNEY GENERAL,

Respondents.

___________________________________/

ORDER DENYING THE PETITION AND

DISMISSING CASE WITH PREJUDICE

I. Status

Petitioner, Albert Wilfred Gendron, an inmate of the Florida penal system,

initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ of

Habeas Corpus by a Person in State Custody (Doc. 1). Petitioner challenges a state

court (Citrus County, Florida) judgment of conviction. Respondents filed a Response

(Doc. 20).1 Petitioner replied (Doc. 33) and filed supplemental exhibits to his Reply

(Doc. 38). This case is ripe for review.

II. Procedural History

On February 3, 2015, a jury convicted Petitioner of possession of a firearm by

a convicted felon (count one) (Resp. Ex. A at 166). The next day, another jury found

Petitioner guilty of shooting at or into an occupied vehicle (count two), possession of

1 In support of their Response, Respondents filed several exhibits (Doc. 22). The Court cites the

exhibits as “Resp. Ex.”

cannabis with intent to sell or deliver (count three), and possession of paraphernalia

(count four) (Resp. Ex. A at 205-07). The trial court sentenced Petitioner to a fifteen-

year term of incarceration, with a three-year minimum mandatory, as to count one

and count two; a five-year term as to count three; and time served as to count four

(id. at 226-40). Petitioner appealed and with help from appellate counsel, he filed an

initial brief (Resp. Ex. D) under Anders v. California, 386 U.S. 738 (1967). The Fifth

District Court of Appeal per curiam affirmed Petitioner’s judgment and convictions

without a written opinion (Resp. Ex. J).

Later, Petitioner filed with the trial court a pro se Florida Rule of Criminal

Procedure 3.850 motion for postconviction relief (Resp. Ex. S), raising twenty-five

grounds for relief. The trial court summarily denied the Rule 3.850 motion (Resp.

Ex. R). Petitioner appealed, and the Fifth DCA per curiam affirmed the trial court’s

summary denial without a written opinion (Resp. Ex. V). Petitioner also filed a

petition with the Fifth DCA alleging ineffective assistance of appellate counsel

(Resp. Ex. Z). The Fifth DCA denied the petition on the merits (Resp. Ex. HH).

Petitioner then filed the Petition (Doc. 1) raising three Grounds for relief, with

Ground Two and Ground Three containing multiple Sub-Claims.

III. Governing Legal Principles

A. Standard of Review Under AEDPA

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 for the state court’s decision to

qualify as an adjudication on the merits. See Harrington v. Richter, 562 U.S. 86, 100

(2011). When 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” and

“presume that the unexplained decision adopted the same reasoning.” 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.” Harrington v. Richter, 562 U.S. 86, 101 (2011)

(internal quotation marks omitted). “It bears repeating

that even a strong case for relief does not mean the state

court’s contrary conclusion was unreasonable.” Id. [at 102]

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

Supreme Court has repeatedly instructed lower federal

courts that an unreasonable application of law requires

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

v. Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at 75

(“The gloss of clear error fails to give proper deference to

state courts by conflating error (even clear error) with

unreasonableness.”); Williams v. Taylor, 529 U.S. 362, 410

(2000) (“[A]n unreasonable application of federal law is

different from an incorrect application of federal law.”).

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

citations modified).

B. Exhaustion and Procedural Default

There are prerequisites to federal habeas review. Before bringing a § 2254

habeas action in federal court, a petitioner must exhaust all state court remedies

available for challenging his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To

exhaust state remedies, the petitioner must “fairly present[]” every issue raised in

his federal petition to the state’s highest court, either on direct appeal or on

collateral review. Castille v. Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted).

Thus, to properly exhaust a claim, “state prisoners must give the state courts one

full opportunity to resolve any constitutional issues by invoking one complete round

of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S.

838, 845 (1999); see also Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting

“that Boerckel applies to the state collateral review process as well as the direct

appeal process.”).

A state prisoner’s failure to properly exhaust available state remedies leads

to a procedural default which raises a potential bar to federal habeas review. The

United States Supreme Court has explained the doctrine of procedural default as

follows:

Federal habeas courts reviewing the constitutionality of a

state prisoner’s conviction and sentence are guided by rules

designed to ensure that state-court judgments are accorded

the finality and respect necessary to preserve the integrity

of legal proceedings within our system of federalism. These

rules include the doctrine of procedural default, under

which a federal court will not review the merits of claims,

including constitutional claims, that a state court declined

to hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[2] 111 S. Ct. 2546;

Sykes,[3] 97 S. Ct. 2497. A state court’s invocation of a

procedural rule to deny a prisoner’s claims precludes

federal review of the claims if, among other requisites, the

state procedural rule is a nonfederal ground adequate to

support the judgment and the rule is firmly established

and consistently followed. See, e.g., Walker v. Martin, 131

S. Ct. 1120, 1127-1128, (2011); Beard v. Kindler, 130 S. Ct.

612, 617-618 (2009). The doctrine barring procedurally

defaulted claims from being heard is not without

exceptions. A prisoner may obtain federal review of a

defaulted claim by showing cause for the default and

prejudice from a violation of federal law. See Coleman, 111

S. Ct. 2546.

2 Coleman v. Thompson, 501 U.S. 722 (1991).

3 Wainwright v. Sykes, 433 U.S. 72 (1977).

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be excused

in some cases. Even though a claim has been procedurally defaulted, a federal court

may still consider the claim if a state habeas petitioner can show either (1) cause for

and actual prejudice from the default; or (2) a fundamental miscarriage of justice.

Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010).

C. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants effective assistance

of counsel. That right is denied when a defense counsel’s performance falls below an

objective standard of reasonableness and thereby prejudices the defense.”

Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (citing Wiggins v. Smith, 539 U.S. 510,

521 (2003), and Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish

ineffective assistance, a person must show that: (1) counsel’s performance was

outside the wide range of reasonable, professional assistance; and (2) counsel’s

deficient performance prejudiced the challenger in that there is a reasonable

probability that the outcome of the proceeding would have been different absent

counsel’s deficient performance. Strickland, 466 U.S. at 687.

Further, “[t]he question is not whether a federal court believes the state

court’s determination under the Strickland standard was incorrect but whether that

determination was unreasonable - a substantially higher threshold.” Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If there is “any

reasonable argument that counsel satisfied Strickland’s deferential standard,” then

a federal court may not disturb a state-court decision denying the claim. Richter,

562 U.S. at 105. As such, “[s]urmounting Strickland’s high bar is never an easy

task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). “Reviewing courts apply a

‘strong presumption’ that counsel’s representation was ‘within the wide range of

reasonable professional assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d

1248, 1262 (11th Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this

presumption is combined with § 2254(d), the result is double deference to the state

court ruling on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also

Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013); Rutherford v.

Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).

IV. Analysis

A. Ground One

Petitioner asserts that police coerced him into signing a “consent to search”

and also coerced him into “giv[ing] a confession” (Doc. 1 at 5). According to

Petitioner, police handcuffed him, placed him in a police cruiser, turned the heat on

high, and waited three hours until Petitioner agreed to the police search and gave a

confession (id.).

Petitioner contends that he exhausted this claim in state court by raising it

in his Rule 3.850 motion and then appealing the trial court’s subsequent denial to

the Fifth DCA (id. at 6). In his Rule 3.850 motion, Petitioner raised one challenge to

the trial court’s denial of his motion to suppress (Resp. at 7-8). In ground eighteen of

his Rule 3.850 motion, Petitioner asserted that the trial court erred in denying his

motion to suppress because police placed Petitioner in the cruiser with the windows

up and the heater “running on the last calendar day of June. . . . [S]low cooking the

[Petitioner] into confessing” (Resp. Ex. S at 15-16). The trial court summarily

denied the claim, finding the following in relevant part:

In Ground[] Eighteen . . . the Defendant contends he

is entitled to relief due to trial court errors. The Defendant

claims trial counsel erroneously denied his motion to

suppress . . . . However, allegations of trial court error are

not cognizable in a collateral attack on the sentence. See

Smith v. State, 445 So. 2d 323 (Fla. 1983); see also Hodges

v. State, 885 So. 2d 338, 366 (Fla. 2004) (holding that

claims of trial court error should be raised on direct appeal,

not in a rule 3.850 motion). Accordingly, Ground[] Eighteen

. . . [is] without merit as a matter of law.

Resp. Ex. R at 10. The Fifth DCA affirmed the trial court’s summary denial without

a written opinion (Resp. Ex. V).

A procedural default may result from non-compliance with state procedural

requirements. See Coleman, 501 U.S. at 729-30. Federal courts are barred from

reaching the merits of a state prisoner’s federal habeas claim where the petitioner

has failed to comply with an independent and adequate state procedural rule.

Wainwright v. Sykes, 433 U.S. 72, 85-86 (1977). The procedural bar imposed in

Petitioner’s case is firmly established and regularly followed in the Florida courts.

See Fla. R. Crim. P. 3.850(7); Teffeteller v. State, 734 So. 2d 1009, 1016 (Fla. 1999)

(holding substantive claims procedurally barred because they could have been

raised on direct appeal); Smith v. State, 445 So. 2d 323, 325 (Fla. 1983) (“Issues

which either were or could have been litigated at trial and upon direct appeal are

not cognizable through collateral attack.”). Because the state court declined to

consider the merits of this claim, finding such claims of trial court error are not

cognizable on collateral review, the claim is now procedurally defaulted and barred

from this Court’s consideration. And Petitioner does not establish cause for and

prejudice from this default,4 nor does he show a fundamental miscarriage of justice.

The Court also finds that the claim is barred from consideration under Stone

v. Powell, 428 U.S. 465 (1976). “[W]hen the State has provided an opportunity for

full and fair litigation of a Fourth Amendment claim, a state prisoner may not be

granted federal habeas corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial.” Id. at 494. To be

entitled to federal habeas review of a Fourth Amendment claim, Petitioner must

show that he “was denied an opportunity for a full and fair litigation of that claim

at trial and on direct review.” Id. at 495 n.37. Florida provides an opportunity for

the full and fair litigation of Fourth Amendment claims, see Fla. R. Crim. P.

3.190(g), and Petitioner availed himself of that opportunity.

The record shows that before trial, the trial court conducted a hearing on the

motion to suppress, during which it heard testimony from Petitioner and the six

police officers involved in Petitioner’s arrest and the taking of his post-arrest

statements (see generally Resp. Ex. C). On the day of the incident, officers

responded to a “shots fired” 911 call at the Bell Villa Hotel (id. at 7-8). Upon arrival,

witnesses pointed officers to a room where they found shell casings nearby and

Petitioner and a woman, Robina Quinn, inside the room (id. at 15-19). As police

removed them from the hotel room, Petitioner cooperated with officers and orally

4 In their Response, Respondents fail to acknowledge the Court’s obligations under AEDPA to defer

to the state court’s adjudication and imposition of an independent state procedural rule.

consented to a search of the room, and when Quinn refused to consent, Petitioner

became aggressive and angry with her, encouraging police to conduct the search

anyway and offering to personally walk officers through the room despite Quinn’s

refusal (id. at 18-20, 58). Police then handcuffed Petitioner and placed him in a

police cruiser while officers sought to get a search warrant due to Quinn’s refusal

(id. at 23-24, 100-01). Officers testified that while Petitioner was in the cruiser, the

vehicle was on, the air conditioning was running, causing condensation on the

windows; Petitioner never complained to the officers about being too hot; and did

not show any signs of distress due to heat (id. at 24-25, 32, 34, 44). In fact, when

officers went to remove Petitioner from the vehicle thirty to forty-five minutes later,

police found him calmly sleeping in the backseat (id. at 109-10). Petitioner then

repeated his earlier statement to police that he had just met Quinn, she had only

been in his room for a few hours, and she had no right to grant or withhold consent

to search (id. at 115).

Petitioner then executed a written consent to search form and gave a

recorded statement after acknowledging his Miranda5 rights (id. at 117, 124-32).

The state played the recorded statement for the trial court during the suppression

hearing. During the statement Petitioner admits he met Quinn at a bar, brought

her back to his room, and three other individuals came over to buy marijuana (id. at

130-31). Petitioner stated when the buyers left, he realized that some of his stash

had been stolen, so he got his gun and began shooting at the individuals as they

5 Miranda v. Arizona, 384 U.S. 436 (1966).

drove away (id.). During the statement, Petitioner was coherent, understood the

officer’s questions, and answered each question intelligently with no signs that he

made those statements under coercive conditions. Indeed, he acknowledged that he

was being arrested for his actions and that he would likely receive a prison sentence

for the crimes he committed. Further, when conducting the search of Petitioner’s

person, officers found a plastic baggie containing five individually packaged baggies

of cannabis in Petitioner’s boot, weighing 16 grams (Resp. Ex. A at 3). When officers

searched Petitioner’s room, officers found a loaded .40 caliber semiautomatic pistol

that matched the expended casings; cannabis weighing 494 grams; 114 grams of

“THC wax”; a digital scale with cannabis residue; coolers for storing the marijuana,

containing another 100 grams of cannabis; and, among other things, a wooden

smoking pipe (Resp. Ex. A at 2-3).

After considering the totality of the circumstances surrounding Petitioner’s

statement to police, the trial court found that “[t]he record evidence [was] just

overwhelming, much like a tsunami of evidence showing that this was a freely and

voluntarily made decision on [Petitioner’s] part” (id. at 164). Thus, regardless of the

procedural default, the Court cannot review Petitioner’s Fourth Amendment claim.

Ground One is denied.

B. Ground Two

Petitioner raises six Sub-Claims based on allegations of ineffective assistance

of counsel (Doc. 1 at 7). Respondents make a blanket argument that although

Petitioner raised these claims in his Rule 3.850 motion, Petitioner now presents the

claims in a vague and conclusory manner, thus, the claims must be dismissed (Resp.

at 11-12). Although not a picture of clarity, the Court liberally construes Petitioner’s

pro se allegations in the Petition as the same claims he raised in this Rule 3.850

motion and addresses each sub-claim in turn.

i. Sub-Claim One

Petitioner argues that his trial counsel was ineffective for failing to

“investigate or p[u]rsue charges against the police, for illegal[ly] coercing

confession” (id. at 7).

Petitioner raised a similar claim in ground six of his Rule 3.850 motion (Resp.

Ex. S at 5-6). In ground six, Petitioner alleged that “counsel failed to investigate

police misconduct prior to coercing confession” (id. at 5-6). After correctly

identifying the standard in Strickland, the trial court summarily denied that claim,

finding Petitioner “failed to demonstrate that trial counsel’s acts were outside the

broad range of reasonably competent performance under prevailing professional

standards” (Resp. Ex. R at 6). The Fifth DCA affirmed the trial court’s summary

denial without a written opinion (Resp. Ex. V).

The Court addresses the claim in accordance with the deferential standard

for federal court review of state court adjudications. As discussed, Petitioner was

very willing to provide his statement to police. The transcript of his recorded

statements shows his speech was coherent and articulate, and he understood his

actions and the consequences of providing his statement to police (Resp. Ex. C).

Thus, because no evidence supported his allegation that his confession was coerced,

counsel was not deficient for failing to “pursue charges” against the officers. Upon

thorough review of the record and the applicable law, the Court finds that the state

court’s decision to deny Petitioner’s claim is neither contrary to nor an unreasonable

application of Strickland, and it is not based on an unreasonable determination of

the facts given the evidence presented to the state court. The Court denies Sub-

Claim One.

ii. Sub-Claim Two

Petitioner argues that his trial counsel was ineffective for failing to “allow

[Petitioner] to ex[]ercise his speedy trial rights” (Doc. 1 at 7). Petitioner raised this

claim in his Rule 3.850 motion (Resp. Ex. S at 9). The trial court summarily denied

the claim, finding as follows:

In Ground One of the Defendant’s Motion, he alleges

his trial counsel was ineffective for not seeking speedy

trial. The Defendant claims he did not wish to waive his

right to speedy and that trial counsel failed to seek speedy

trial. A defendant may waive his “right to a speedy trial,

after which the defendant may not assert the statutory

right to be tried within the default period.” See Nelson v.

State, 26 So. 3d 570, 576 (Fla. 2010). A waiver is “presumed

when a defendant is granted a requested continuance

because this action causes a delay in the prosecution that

is attributable to the defendant and demonstrates that the

defendant is not available for trial.” Id. “This waiver is

construed as an ongoing waiver of speedy trial rights as to

all charges which emanate from the same criminal episode,

including any newly filed charges arising out of the

incident.” Id. (citations omitted).

In the instant case, the Defendant did waive speedy

trial. See attached hereto Arraignment Hearing Transcript

pp. 5-6. Upon review of the audio recording of the hearing

at the Arraignment Hearing the Public Defender was

appointed and the Court inquired about waiving speedy

and the attorney announced waiver. Id. At no time did

Defendant object to the waiver. Id. The Defendant

subsequently stated he would seek speedy. See attached

hereto Status Hearing Transcript pp. 3-4. However, the

Court considered it waived based on his prior waiver.

Moreover, the Defendant seeking speedy trial is

disingenuous. The Defendant demands speedy at the same

time he requests his counsel to perform depositions and

investigate the case. See Bryant v. State, 723 So. 2d 878

(Fla. 5th DCA 1998) (finding that counsel is not ineffective

if he/she would have been required to seek speedy trial

knowing he/she was unprepared for trial). Therefore,

Ground One is without merit.

Resp. Ex. R at 4. The Fifth DCA affirmed the trial court’s summary denial without a

written opinion (Resp. Ex. V).

The Court addresses the claim in accordance with the deferential standard

for federal court review of state court adjudications. In doing so, the Court finds

that Petitioner has failed to show that even if trial counsel was deficient for failing

to invoke Petitioner’s Sixth Amendment right to a speedy trial, the outcome of his

proceedings would not have been different. See, e.g., Sanders v. McDonough, No.

4:07cv206/RH/WCS, 2008 WL 4382802, at *13 (N.D. Fla. Sept. 24, 2008) (finding

that the petitioner failed to show prejudice regarding counsel’s failure to assert

speedy trial right where prosecution could have gone to trial if speedy trial rights

had been asserted, since evidence sufficient to convict was available to prosecution

soon after petitioner’s arrest). Within hours of Petitioner’s arrest, Petitioner waived

his Miranda rights and provided a sworn recorded statement to police confessing to

the crimes and admitting to being in possession of the items found in his hotel room.

Thus, upon thorough review of the record and the applicable law, the Court finds

that the state court’s decision to deny Petitioner’s claim is neither contrary to nor

an unreasonable application of Strickland, and it is not based on an unreasonable

determination of the facts given the evidence presented to the state court. This Sub-

Claim is denied.

iii. Sub-Claims Three, Four, and Five

In these Sub-Claims, Petitioner challenges trial counsel’s actions regarding

the state’s “eyewitness” (Doc. 1 at 7). In Sub-Claim Three, he argues “counsel failed

to investigate state[’]s only eyewitness (wanted felon)” (id.). In Sub-Claim Four,

Petitioner asserts that “counsel failed to impeach eyewitness, via perjured

testimony” (id.). And in Sub-Claim Five, Petitioner contends that “counsel failed to

investigate state made a deal with eyewitness” (id.). Upon review of Petitioner’s

Reply (Doc. 33 at 6) and his Rule 3.850 motion (Resp. Ex. S), the “eyewitness”

Petitioner is referencing is Robert Tessier.

Petitioner raised Sub-Claim Three in grounds two and ten of his Rule 3.850

motion (id. at 2-3, 19-10); he raised Sub-Claim Four in ground three (id. at 3); and

he raised Sub-Claim Five in ground ten (id. at 9-10) The trial court summarily

denied these claims, finding as follows:

In Grounds Two and Three, the Defendant alleges

his trial counsel failed to subpoena witness Robert Tessier

to be present at the suppression hearing for impeachment

purposes. The Defendant claims Mr. Tessier observed the

Defendant under the influence of alcohol therefore his

statements were coerced. These claims are without merit.

The purpose of a motion to suppress is to suppress evidence

gained improperly or illegally. See Fla. R. Crim. P. 3.190(g)

(2013). Mr. Tessier in his statement to law enforcement

stated that he had a few beers with the Defendant [and]

his girlfriend. See attached hereto Transcript Interview of

Robert Tessier June 30, 2014·pp. 3-4. Meanwhile, during

his deposition Mr. Tessier stated he had met the Defendant

and his girlfriend at a bar where he had drinks with them

and returned to the hotel. See attached hereto Transcript

of Deposition of Robert Tessier, pp. 4-7. There is no

indication that Mr. Tessier witnessed the Defendant make

statements to law enforcement. Therefore, these

observations would not serve to impeach law enforcement

testimony regarding the Defendant’s voluntary statements

to law enforcement or his consent to search. Accordingly,

Defendant’s Grounds Two and Three are conclusively

refuted by the record.

. . . .

In Grounds Six, Nine, Ten, and Thirteen the

Defendant alleges his trial counsel was ineffective for

failing to investigate police misconduct, exculpatory

evidence, background of a State’s witness, and fingerprint

evidence. The Defendant again claims trial counsel failed

to investigate statements made by Mr. Tessier . . . . These

claims are conclusively refuted by the record through pre-

trial deposition, See attached hereto Transcript Interview

of Robert Tessier June 30, 2014 and Deposition of Robert

Tessier October 14, 2014. The Defendant’s assertions that

Mr. Tessier “made a deal” with the State in exchange for

his testimony is without support. Moreover, the fingerprint

evidence is not relevant to the instant case. Accordingly,

the Defendant has failed to demonstrate that tria[l]

counsel’s acts were outside the broad range of reasonably

competent performance under prevailing professional

standards.

Resp. Ex. R at 5-6. The Fifth DCA affirmed the trial court’s summary denial

without a written opinion (Resp. Ex. V).

The Court addresses these Sub-Claims in accordance with the deferential

standard for federal court review of state court adjudications. Initially, if Petitioner

argues that trial counsel was ineffective for failing to call Tessier as a witness

during the suppression hearing and impeach the officers’ testimony using Tessier’s

statements that Petitioner was intoxicated on the night of the shooting, such

evidence would have been irrelevant to Petitioner’s argument for suppression.

Petitioner’s motion to suppress stemmed from claims that his confession was

involuntary because officers engaged in illegal coercive tactics to induce the

statement, not that Petitioner was too intoxicated to understand his statements and

regardless, Tessier was not privy to the statements Petitioner made to police.

Further, if Petitioner claims that Tessier’s prior sworn statements would have

supported his claim that his confession was coerced because Tessier stated he had

been drinking with Petitioner before the shooting, the trial court conducted a

thorough evidentiary hearing on Petitioner’s motion to suppress and found his

statements to police were voluntarily and competently made. Indeed, the transcript

of Petitioner’s confession shows that his statement was audible, coherent, and

voluntary, with no sign that he was so inebriated as to not understand the nature or

consequences of his confession.

Further, at trial, Tessier testified that he was also staying at the Bell Villa

Hotel at the time of the incident (Resp. Ex. B at 306-07). He stated on the night of

the shooting, he had been drinking in his room with Quinn, who he thought was

Petitioner’s girlfriend, and after she left, he heard people arguing in Petitioner’s

room (id. at 308-12). When Tessier walked out to smoke, he saw Petitioner and

Quinn yelling at a small group of people (id. at 309-12). He explained that when the

group of individuals got into their truck to drive away, Petitioner pulled out a gun

and began shooting at the truck (id. at 311-16).

During his trial testimony, Tessier acknowledged he was a four-time

convicted felon (id. at 316). And before calling him as a witness, the parties advised

the trial court that Tessier was previously deemed a sex offender, and that the

parties had agreed that defense counsel would not elicit the nature of Tessier’s

offenses unless he denied the number of convictions at trial (Resp. Ex. B at 16).

Trial counsel then tried to impeach Tessier’s trial testimony using Tessier’s prior

deposition testimony, in which Tessier testified that when Petitioner was shooting,

Tessier thought Petitioner might have been aiming the gun at the ground (id. at

319-20). The state also played Tessier’s 911 call for the jury (id. at 283- 305). Thus,

during deliberations, the jury considered Tessier’s prior statements made during

that 911 call and portions of his deposition testimony for which he was impeached.

As such, Petitioner’s allegation that trial counsel acted deficiently in failing to

impeach Tessier or for failing to elicit testimony about his criminal record are

refuted by the record.

Also, contrary to Petitioner’s current claim, there is no evidence that the

state made a deal with Tessier for his trial testimony. Yet even assuming trial

counsel was ineffective for failing to adequately challenge Tessier’s trial testimony

or seek to exclude Tessier as a trial witness, Petitioner cannot show that the

outcome of his proceedings would have been different had Tessier not testified at

trial. Indeed, Petitioner made a sworn statement to police that he shot at the

individuals while trying to sell marijuana and upon a search of his room, officers

found direct evidence supporting Petitioner’s confession. Thus, upon thorough

review of the record and the applicable law, the Court finds that the state court’s

decision to deny Petitioner’s claim is neither contrary to nor an unreasonable

application of Strickland, and it is not based on an unreasonable determination of

the facts given the evidence presented to the state court. These Sub-Claims are

denied.

iv. Sub-Claim Six

Petitioner argues that trial counsel was ineffective for “trial severance

violations using trial 2 evidence in trial one” (Doc. 1 at 7). In grounds twenty-three,

twenty-four, and twenty-five of his Rule 3.850 motion, Petitioner argued that trial

counsel was ineffective for failing to challenge the state’s use of evidence in both his

first trial on his possession of a firearm by a convicted felon charge and the second

trial on his other charges (Resp. Ex. S at 5-7). The trial court denied the claims,

finding the following:

Finally, Grounds Twenty-three, Twenty-four and

Twenty-five of the motion contain[] allegations that the

Defendant’s trial counsel was ineffective for failing to

object to irrelevant and inflammatory evidence at trial, and

the State impaneling two juries. The Defendant alleges the

State introduced evidence that made it appear as if he was

not being charged with some crimes. He also claims the

playing of 911 recording was inflammatory. Moreover, he

claims it was prejudicial for him to have two separate

juries. The case was severed based on the defense’s request

due to potential for prejudice. See attached hereto Trial

Transcript February 2, 2015, Vol. I, pp. 6-8. Therefore, trial

counsel had no basis to object to the use of two separate

juries.

(Resp. Ex. R at 10-11). The Fifth DCA affirmed the trial court’s summary denial

without a written opinion (Resp. Ex. V).

The Court addresses this Sub-Claim in accordance with the deferential

standard for federal court review of state court adjudications. Trial counsel

requested to sever the count of possession of a firearm by a convicted felon to

prevent Petitioner from experiencing the potential prejudice of trying all charges

together (Resp. Ex. B at 6-8). The state did not object to trial counsel’s request and

advised the trial court that for the possession of a firearm by a convicted felon

charge, he intended on introducing evidence that Petitioner had marijuana in the

room, some individuals stole the marijuana, and that prompted him to grab his gun

(Resp. Ex. B at 16-17). According to the state, this evidence was relevant and

inextricably intertwined with all evidence of the offenses (id. at 17). The state also

explained, however, that it did not intend to introduce any actual evidence of the

marijuana and that it removed from the recorded statement Petitioner’s statements

about the sale or delivery of drugs, and it would not present evidence about officers

collecting the drugs or paraphernalia (id.). Rather, the state explained that the only

mention of other crimes or the marijuana would be de minimis and simply used to

add context as to why Petitioner decided to get his firearm (id. at 18). Trial counsel

objected to the state’s proffer, but the trial court overruled the objection and advised

the state that it may reference marijuana only in the de minimis situation discussed

(id. at 19). Contrary to Petitioner’s allegations here, trial counsel did try to

challenge the evidence used during Petitioner’s first trial and the state ultimately

agreed to refer to any other illicit evidence in a de minimis capacity. Petitioner

cannot show that counsel acted deficiently.

Further, even assuming counsel was deficient, Petitioner cannot show that

but for trial counsel’s alleged failure, the outcome of his proceedings would have

been different. Indeed, the evidence supporting each conviction was overwhelming.

Thus, upon thorough review of the record and the applicable law, the Court finds

that the state court’s decision to deny Petitioner’s claim is neither contrary to nor

an unreasonable application of Strickland, and it is not based on an unreasonable

determination of the facts given the evidence presented to the state court. This Sub-

Claim is denied.

C. Ground Three

Petitioner raises five Sub-Claims based on allegations of prosecutorial

misconduct (Doc. 1 at 8). In Sub-Claim One, Petitioner argues that the “prosecutor

allowed police to change their testimony from reports” (id.). In Sub-Claim Two,

Petitioner asserts that “eyewitness allowed to change his testimony from police

report, depos, trial” (id.). In Sub-Claim Three, Petitioner contends that “state made

deal w[ith] eyewitness failed to disclose to defense (on a felony)” (id.). In Sub-Claim

Four, he argues that “state severed charges then violated by using evidence from

trial 2 in trial 1” (id.). And in Sub-Claim Five, Petitioner asserts that “state has

misrepresented [gun shot residue]6 to not be presumptive when it was” (id.).

Respondents contend that Petitioner failed to raise these claims in state

court, and thus these allegations are unexhausted and procedurally defaulted

(Resp. at 9). This Court agrees. In his Petition, Petitioner alleged that these claims

are exhausted because he raised them in his Rule 3.850 motion and appealed the

trial court’s summary denial (Doc. 1 at 9). That said, a review of Petitioner’s Rule

3.850 motion shows that the only allegations of prosecutorial misconduct were

raised as claims of ineffective assistance of trial counsel (Resp. Ex. S at 6-7).

Therefore the substantive prosecutorial misconduct claims before the Court were

not raised in Petitioner’s Rule 3.850 proceedings.7 Thus, the substantive allegations

of prosecutorial misconduct that Petitioner now raises are unexhausted and

procedurally defaulted.

In his Reply, Petitioner does not allege facts demonstrating cause for and

prejudice from this procedural default, nor does he establish a fundamental

6 In his Petition, Petitioner alleges that the state “misrepresented G.S.P. to not be presumptive when

it was” (Doc. 1 at 8). A review of the trial transcript shows that the parties and the trial court

regularly refer to “gun shot residue” as “GSR” (Resp. Ex. B at 3-6) and discuss a “presumptive test”

related to the GSR (id. at 4-5). Thus, the Court infers that when Petitioner references “G.S.P.” he

intends “GSR” or gunshot residue here.

7 The Court also notes that in Florida, substantive claims of prosecutorial misconduct must be raised

on direct appeal and are not cognizable on collateral review. See Spencer v. State, 842 So.2d 52, 60

(Fla. 2003) (finding substantive prosecutorial misconduct claim raised in a rule 3.850 motion were

procedurally barred because they were not raised on direct appeal). As a result, had Petitioner raised

these substantive claims of prosecutorial misconduct in his Rule 3.850 motion as he alleges, it is

likely that the state court would have found those allegations procedurally barred based on an

independent state procedural rule.

miscarriage of justice (Doc. 33).8 In any event, even if these claims were properly

exhausted, they lack merit. In his Reply, Petitioner appears to argue that these

allegations of prosecutorial misconduct fall under the principles of Brady v.

Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), (id.

at 4). To prove a Brady violation, Petitioner must prove that (1) the government

possessed evidence favorable to the defense; (2) Petitioner did not possess the

evidence and could not have obtained it with any reasonable diligence; (3) the

government suppressed the favorable evidence; and (4) the evidence was material in

that a reasonable probability exists that the outcome of the proceeding would have

been different had the evidence been disclosed to the defense. United States v.

Neufeld, 154 F. App’x 813, 818 (11th Cir. 2005). “To establish a Giglio claim, a

habeas petitioner must prove: (1) the prosecutor knowingly used perjured testimony

or failed to correct what he subsequently learned was false testimony; and (2) such

use was material, i.e., that there is any reasonable likelihood that the false

testimony could have affected the judgment.” Guzman v. Sec’y, Dep’t of Corr., 663

F.3d 1336, 1348 (11th Cir. 2011).

Petitioner fails to demonstrate that any of the alleged actions amounted to a

Brady violation. Petitioner does not claim that his trial counsel did not have

possession of this evidence or that it could not have been obtained with any

reasonable diligence. Further, and of more import, Petitioner cannot establish that

8 Petitioner’s pro se allegations in his Reply might be construed as a for-cause argument that the

Court should overlook the procedural default here because his appellate counsel was ineffective for

failing to raise these claims during his direct appeal (see generally Doc. 33). Even so, the Court need

not consider this construed argument because it finds that these claims are ultimately meritless.

any of this evidence was material considering Petitioner’s recorded confession

played for the jury. Likewise, Petitioner has failed to show a Giglio violation.

Indeed, absent Tessier’s trial testimony or conflicts between the officers’ reports and

their trial testimony, Petitioner confessed to committing the crimes. And his

confession was recorded and played for the jury. As such, Ground Three is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

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

prejudice.

2. The Clerk of Court shall enter judgment accordingly, terminate any

pending motions, and close this case.

3. If Petitioner appeals this Order, 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 Tampa, Florida, this 9** day of September, 2021.

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TOM BARBER

UNITED STATES DISTRICT JUDGE

Jax-7

C: Albert Gendron, #C09673

Counsel of record

9 The Court should issue a certificate of appealability only if Petitioner makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(¢)(2). To make this substantial

showing, Petitioner “must demonstrate that reasonable jurists would find the district court’s

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

(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were

‘adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 335-36

(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.

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