Flowers v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

DEMETRIUS FLOWERS,

Petitioner,

v. Case No: 5:18-cv-315-TPB-PRL

SECRETARY, DEPARTMENT OF

CORRECTIONS and FLORIDA

ATTORNEY GENERAL,

Respondents.

___________________________________/

ORDER DENYING THE PETITION AND

DISMISSING CASE WITH PREJUDICE

I. Status

Petitioner, Demetrius Flowers, 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). Respondents filed a Response

(Doc. 13).1 The Court provided Petitioner with an opportunity to reply (Doc. 17), but

he did not do so. This case is ripe for review.

II. Procedural History

A jury found Petitioner guilty of principal to robbery with a firearm (count

four) and principal to kidnapping (count five) (Resp. Ex. D). The trial court

sentenced Petitioner to concurrent forty-year terms of incarceration as to each count

followed by a twenty-year term of probation (Resp. Ex. I). Petitioner, with help from

1 Attached to the Response are several exhibits. The Court cites the exhibits as “Resp. Ex.”

appellate counsel, sought a direct appeal (Resp. Ex. K), in which he argued four

claims of trial court error. The Fifth District Court of Appeal per curiam affirmed

Petitioner’s judgment and convictions without a written opinion (Resp. Ex. N).

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

Procedure 3.850 motion for postconviction relief (Resp. Ex. Y), raising four claims

for relief. The trial court summarily denied the Rule 3.850 motion (Resp. Ex. BB).

Petitioner appealed and the Fifth DCA per curiam affirmed the summary denial

without a written opinion (Resp. Ex. FF). Petitioner later filed the Petition (Doc. 1)

raising eight grounds for relief.

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.

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

under certain circumstances. 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.”

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

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

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 argues that the trial court erred in instructing the jury that it

could find Petitioner guilty of robbery while carrying a firearm if it found that

Petitioner’s co-defendant and accomplice merely possessed a firearm during the

robbery, and that Petitioner was a principal to that crime (Doc. 1 at 4). According to

Petitioner, the principal theory was not charged in the information (id.), and this

erroneous instruction violated his rights under the Sixth and Fourteenth

Amendments of the United States Constitution (id. at 4). Petitioner raised a similar

claim on direct appeal (Resp. Ex. K). The state filed an answer brief addressing the

claim on the merits (Resp. Ex. L at 7-10), and the Fifth DCA per curiam affirmed

Petitioner’s judgment and conviction without a written opinion (Resp. Ex. N).

Respondents contend that Petitioner failed to fairly present the federal

nature of this claim in state court, and thus it is unexhausted and procedurally

barred (Resp. at 13). This Court agrees. When briefing this issue on direct appeal,

Petitioner did not state or suggest that it was a federal claim about due process or

any other federal constitutional guarantee (Resp. Ex. K at 14-15). Instead,

Petitioner argued, in terms of state law only, that the trial court’s instruction on the

principal theory was analogous to the instruction the Second District Court of

Appeal found erroneous in Deleon v. State, 66 So. 3d 391 (Fla. 2d DCA 2011) (id. at

14). According to Petitioner, the subject “instruction allowed the jury to convict

[Petitioner] as [a] principal to one crime if it found his accomplice guilty of another,

uncharged act” (id. at 15 (citing Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013);

Phillips v. State, 100 So. 3d 249 (Fla. 4th DCA 2012); Sabree v. State, 978 So. 2d 840

(Fla. 4th DCA 2008)). Petitioner failed to articulate and fairly present a federal

constitutional claim in state court. Thus, Ground One is unexhausted and

procedurally defaulted, and Petitioner has failed to show cause for or prejudice from

this procedural bar. He has also failed to show a fundamental miscarriage of justice.

In any event, assuming the federal nature of this claim was exhausted, it is

still without merit. “Unlike state appellate courts, federal courts on habeas review

are constrained to determine only whether the challenged instruction, viewed in the

context of both the entire charge and the trial record, ‘so infected the entire trial

that the resulting conviction violate[d] due process.’” Jamerson v. Sec’y for Dep’t of

Corr., 410 F.3d 682, 688 (11th Cir. 2005). “If there is no basis in the record for the

instruction given, such error may raise a ‘substantial and ineradicable doubt as to

whether the jury was properly guided in its deliberations,’ and reversal may be

required.” Pesaplastic, C.A. v. Cincinnati Milacron Co., 750 F.2d 1516, 1525 (11th

Cir. 1985) (quoting McElroy v. Firestone Tire & Rubber Co., 894 F.2d 1504, 1509

(11th Cir. 1990)).

Under the principal theory, a defendant is treated as if he committed the acts

done by the other person. See Fla. Std. Jury Instr. 3.5(a). “[P]osession of a firearm

by a codefendant is sufficient to convict a defendant of armed robbery, pursuant to

the principal theory.” Freeny v. State, 621 So. 2d 505, 506 (Fla. 5th DCA 1993).

Here, Petitioner and co-defendant Charles Bess were charged in the same

Information (Resp. Ex. A). Count one of the Information alleged that Bess “actually

carried and possessed a ‘firearm’” while committing the robbery (id. at 5). Before

trial, Bess pled guilty to count one. Count four of the Information charged Petitioner

with principal to robbery with a firearm, alleging that Petitioner carried a firearm,

which was “in the possession of Charles Bess” (id. at 6). The trial court instructed

the jury that if it found that Petitioner carried a firearm while committing the

robbery, it should find him guilty of robbery with a firearm (Resp. Ex. C at 480).

Alternatively, the trial court instructed that if the jury found that the firearm was

in codefendant Bess’ possession and Petitioner acted as a principal to the

commission of the robbery, the jury should find Petitioner guilty of robbery with a

firearm (id. at 480-81). The trial court did not instruct the jury on an uncharged

crime.

Further, the state presented sufficient evidence to support a guilty verdict for

the armed robbery charge. The victim testified that he knew Petitioner and Bess

who were initially at the victim’s home to play video games (Resp. Ex. C at 135-37).

Bess hit the victim with a firearm and Petitioner then hit the victim with a hard,

metal object, which the victim believed was the same firearm (id. at 137). Petitioner

covered the victim with a blanket and ordered him to go into the bedroom. Bess

then tied up the victim, and Bess and Petitioner stole the victim’s personal

belongings (id. at 142-45). Petitioner’s fingerprints were later found on the victim’s

recovered television set. Ground One is denied.

B. Ground Two

Petitioner appears to argue that the trial court erred in denying Petitioner’s

motion for judgment of acquittal as to the kidnapping charge because the evidence

failed to satisfy the first prong of the test in Faison v. State, 426 So. 2d 963 (Fla.

1983) (Doc. 1 at 8). Petitioner contends that “the victim’s hands were left unbound,

he could and soon did remove the fetters from his ankles after the crime ended”; and

thus the evidence showed that “the movement and the confinement which occurred

during the robbery was slight, inconsequential, and incidental to the crime” (id. at

7-8). According to Petitioner, this error violated his rights under Sixth and

Fourteenth Amendments (id.).

Petitioner raised a similar claim on direct appeal (Resp. Ex. K at 16-18). The

state addressed the claim on the merits (Resp. Ex. L at 10-13), and the Fifth DCA

per curiam affirmed Petitioner’s judgment and convictions without a written

opinion (Resp. Ex. N). Respondents again argue, and this Court agrees, that

because Petitioner did not present the federal nature of this claim to the state

appellate court, it is unexhausted and procedurally barred (id.). Petitioner has

failed to show cause for or prejudice from this procedural bar. He has also failed to

show a fundamental miscarriage of justice.

In any event, assuming the federal nature of this claim was exhausted, it is

without merit. When reviewing an insufficiency of the evidence claim in a habeas

petition, a federal court must determine “whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979). The court must assume that the jury resolved any

evidentiary conflicts in favor of the prosecution, and the court must defer to that

resolution. Id. To prove kidnapping, the state had to establish that Petitioner

“forcibly, secretly, or by threat” confined, abducted, or imprisoned the victim against

his will “and without lawful authority, with intent to . . . commit or facilitate the

commission of any felony.” § 787.01(1)(a), Fla. Stat. “[T]o be kidnapping, the

resulting movement or confinement: (a) must not be slight, inconsequential and

merely incidental to the other crime.” Faison, 426 So. 2d at 965; see also Berry v.

State, 668 So. 2d 967, 969 (Fla. 1996) (“We construe this prong to mean that there

can be no kidnapping where the only confinement involved is the sort that, though

not necessary to the underlying felony, is likely to naturally accompany it.”).

At trial, the victim testified that Bess hit him with a firearm and Petitioner

then instructed the victim to crawl into the other room before putting a blanket over

the victim’s head. Petitioner then instructed Bess to tie up the victim, so Bess

bound the victim’s feet with electrical tape. After Petitioner and Bess left, the victim

waited several minutes, then hopped to a nearby window to confirm if the

assailants were gone. Once confirmed, the victim untied his feet and ran to a

neighbor’s home. This evidence established that the victim was confined by force,

threat, and against his will. The confinement made it easier for Petitioner to

commit the robbery and the confinement did not end until the robbery was

complete. This evidence supports a finding of guilt. Ground Two is denied.

C. Ground Three

Petitioner contends that his Sixth and Fourteenth Amendment rights were

violated when the trial court instructed the jury that it could find Petitioner guilty

of robbery with a firearm if it found that Bess possessed a firearm, even if Petitioner

lacked knowledge of or intent that Bess possess a firearm (Doc. 1 at 10-12).

According to Petitioner, this instruction disregarded the plain language of sections

777.011 and 812.13(2)(A), Florida Statutes, and was used in contravention of

Florida Rule of Criminal Procedure 3.985 (id.). Petitioner also asserts that “this

error foreclosed any opportunity for the jury to find [Petitioner] guilty of simple

robbery even where he lacked the requisite intent to be a principal to the carrying of

a firearm” (id.).

Petitioner raised this claim on direct appeal (Resp. Ex. K at 19-23). The state

filed an answer brief (Resp. Ex. L at 13-17), arguing it was not required to prove

under Florida law that Petitioner knew that Bess carried a firearm and that the

trial court’s instructions were proper. The Fifth DCA affirmed Petitioner’s judgment

and convictions without a written opinion (Resp. Ex. N).

Respondents contend that this claim is not cognizable on federal habeas review

because it is an issue of state law (Resp. at 21). First, if Petitioner urges that the state

court erred under Florida law when it instructed on the standard and special

instructions for robbery with a firearm under the principal theory, this assertion is

not cognizable on federal habeas review. The Eleventh Circuit has explained:

Federal habeas relief is unavailable “for errors of state

law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting

Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). A jury

instruction that “was allegedly incorrect under state law is

not a basis for habeas relief,” id. at 71-72, because federal

habeas review “is limited to deciding whether a conviction

violated the Constitution, laws, or treaties of the United

States.” Id. at 68. Unlike state appellate courts, federal

courts on habeas review are constrained to determine only

whether the challenged instruction, viewed in the context

of both the entire charge and the trial record, “‘so infected

the entire trial that the resulting conviction violate[d] due

process.’” Id. at 72 (quoting Cupp v. Naughten, 414 U.S.

141, 147 (1973)).

Jamerson,410 F.3d at 688 (quoting Estelle, 502 U.S. at 72). The Court notes that in

his initial brief on direct appeal, Petitioner urged the state appellate court to extend

the reasoning in Rosemond v. United States, 134 S. Ct. 1240 (2014), to his case

(Resp. Ex. K at 22). However, Rosemond is distinguishable from Petitioner’s state

case, and merely citing a federal case does not take this claim outside the state law

issue on which it rests.

In Rosemond, the Supreme Court “consider[ed] what the Government must

show when it accuses a defendant of aiding or abetting” a violation of 18 U.S.C. §

924(c), which “prohibits ‘us[ing] or carr[ying]’ a firearm ‘during and in relation to

any crime of violence or drug trafficking crime.’” Rosemond, 134 S. Ct. at 1243

(quoting 18 U.S.C. § 924(c)). The Court held that the jury instruction on aiding and

abetting that the district court gave was inadequate “because it did not explain that

[the defendant] needed advance knowledge of a firearm’s presence” to be found

guilty and therefore made it possible that the jury had convicted without the

defendant having the requisite advance knowledge. Id. at 1251-52. However, the

Supreme Court’s ruling in Rosemond on the adequacy of a § 924(c) jury instruction

is inapplicable to petitioner’s state conviction for principal to a robbery with a

firearm. Notably, as the state explained in its answer brief on direct appeal,

“‘nothing in Rosemond suggests that it’s holding rests on any constitutional

requirement or has any application to state criminal laws on accomplice liability.’”

Resp. Ex. L at 17 (quoting State v. Ward, No. WD 77681, 2015 WL 6918618, at *5

(Mo. Ct. App. Nov. 10, 2015)). See also Hicks v. State, 759 S.E. 2d 509, 514 n.3 (Ga.

2014), cert. denied, 135 S. Ct. 1436 (2015) (explaining that Rosemond “arose under

federal law and thus does not control here”). As such, this claim is not cognizable on

federal habeas review, and the Court must defer to the state court’s adjudication of

state law issues. Ground Three is denied.

D. Ground Four

Petitioner contends that the trial court violated his rights under the Sixth

and Fourteenth Amendments when it considered Petitioner’s lack of remorse in

sentencing him (Doc. 1 at 12-13). Petitioner raised this claim on direct appeal (Resp.

Ex. K at 24-25). The state filed an answer brief addressing the claim on the merits

and arguing that the trial court considered appropriate factors when imposing a

lawful sentence (Resp. Ex. L at 18-22) The Fifth DCA per curiam affirmed

Petitioner’s judgment and convictions without a written opinion (Resp. Ex. N).

Again, Petitioner does not allege a federal constitutional violation, and thus

this claim is not cognizable in a federal habeas proceeding. See Hart v. Sec’y, Dep’t

of Corr., 8:16-cv-770-T-36AAS, 2019 WL 367647, at *2 (M.D. Fla. Jan. 30, 2019)

(finding claim that trial court improperly considered the petitioner’s “lack of

remorse” during state court sentencing not cognizable in § 2254 habeas proceeding).

Further, liberally construing this claim as one involving federal due process, it is

barred from the Court’s review because Petitioner failed to exhaust the federal

nature of the claim with the state appellate court. Instead, on direct appeal,

Petitioner argued in terms of state law only, that the trial court’s alleged

consideration of Petitioner’s lack of remorse was analogous to that found to be

erroneous in Dumas v. State, 134 So. 3d 1048 (Fla. 1st DCA 2013) (Resp. Ex. K at

24-25). Petitioner failed to articulate and fairly present a federal constitutional

claim in state court. Thus, Ground Four is unexhausted and procedurally defaulted,

and Petitioner has failed to show cause for or prejudice from this procedural bar. He

has also failed to show a fundamental miscarriage of justice. Ground Four is denied.

E. Ground Five

Petitioner asserts that his trial counsel was ineffective for failing to challenge

the lack of evidence showing that Petitioner or Bess used a firearm during the

commission of the offense (Doc. 1 at 15-16). According to Petitioner, if trial counsel

made such an argument, there is a reasonable probability that the state would have

“been compelled to either drop the charge or settle for a conviction for a lesser

included offense” (id. at 16).

Petitioner raised this claim in his Rule 3.850 motion (Resp. Ex. Y at 2-4). The

trial court summarily denied the claim:

In the Defendant’s first ground, he alleges his trial counsel

was ineffective for failing to argue that a firearm was never

used by the co-defendant in this case. Specifically, the

Defendant alleges the victim testified at trial he was

uncertain what the co-defendant hit him with, so his trial

counsel should have argued that no proof existed that a

firearm was used. The Defendant also alleges the co-

defendant testified that he did not have a firearm and was

not guilty, but entered a plea to robbery with a firearm to

avoid a life sentence. The Defendant further alleges that

had trial counsel argued no proof existed of the use of a

firearm, the result of the trial would have been different.

At trial, the victim testified as follows:

Q Now, I want to now move ahead to the night

of the beating and robbery.

What was going on shortly before that?

A It was just normally how it would usually

be. Demetrius came over, and we started just

playing 2K like we had talked about earlier.

We had talked about what teams we were

going to play that day, me and him, you know,

beat.

So I was ready for him to come over. And he

came over probably 8:50, just right at the end

of the TV show I was watching. So he came

over. We played for about – started up the

game, about 15 minutes into it, that’s when

Mr. Bess came over. He knocked on the door.

Q Did you open the door?

A Yeah. I looked in the – you know, I always

keep my door locked. But I looked in the

peephole, and it was Bess; and I was, you

know, expecting him to come over. He had

been over every other time. So I opened up the

– you know, I unlocked the door; opened it up.

And when he walked in, I, you know,

proceeded to close the door and, you know,

lock the door just like usual.

Q Did something happen at that moment?

A Yeah. Right whenever I turned around,

Bess was coming at me with just something,

you know, real quick, you know; his fist was

holding something, coming at me. And I’m

about eight inches taller than him. So I was

up well above him. And I saw something

coming at my face. So I just, you know, ducked

in my head just to take the blow to the top of

my head because I didn’t want to get hit in the

face. And he hit me with something really

hard, and it hurt. So I, you know, ducked. And

I kind of, you know, it didn’t knock me down

me down initially.

So I looked back up, and I was like he hit me

with something; and I saw he had a gun in his

hand. It wasn’t pointing it at me, he was just

holding it – after he hit me, he was holding it

to the side, telling me to get on the ground. So

I saw he had a gun in his hand holding it, you

know, like he, you know, was ready to shoot

me.

So then I immediately fell to the ground and

just put my hands over my face just to not get

hit in the face.

Q And go ahead and describe to the jury the

gun that you saw in Mr. Bess’ hand.

A It – let me see. It looked like just a regular

pistol, just a black pistol, barrel, I mean,

probably like five or six inches. And then at

the end there was a like a – what I thought

was a silencer because it was even longer than

just a regular pistol you would see, it was kind

of – like actually three inches on top of the

gun. So I, you know, was really worried

because it had a silencer on the gun; and I had

never seen that, you know, never seen a gun

let alone a silencer.

So I, you know, immediately just covered my

face. And that’s all I did see of the gun. But he

was holding – it like he was – you know, would

shoot me. So I just covered my face because I

– I didn’t want to get beat more, so I was going

to cover my face.

The victim specifically clarified on cross-examination that

he saw the gun for a few seconds, and that what he saw

was definitely a gun.

In addition, the Defendant’s trial counsel argued during his

closing argument that (1) the victim’s testimony that he

saw a gun did not comport with the other evidence

presented at trial, specifically the testimony of the co-

defendant, (2) the victim’s testimony is not enough proof

that a gun was actually used, and (3) the victim was

actually struck with a cell phone rather than a gun. The

record is thus clear that the Defendant’s trial counsel did,

in fact, argue that a gun was never used by the co-

defendant in the instant case. The Defendant’s claim is

therefore refuted by the record. Moreover, the victim’s

testimony at trial was direct evidence that a gun was used

during the commission of the crimes. Trial counsel

therefore was not ineffective for failing to prevail in the

argument alleged by the Defendant. See Teffeteller v.

Dugger, 734 So. 2d 1009, 1020 (Fla. 1999). The Defendant’s

first ground is without merit.

Resp. Ex. BB at 2-4 (record citations omitted). Petitioner appealed, and the Fifth

DCA per curiam affirmed the trial court’s denial without a written opinion (Resp.

Ex. FF).

The Court addresses the claim in accordance with the deferential standard

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

that the trial court adequately summarized the evidence adduced at trial and trial

counsel’s attempts to discredit the victim’s testimony. 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. Ground Five is denied.

F. Ground Six

Petitioner contends that his trial counsel was ineffective for failing to “object

to the lack of evidence” (Doc. 1 at 16-17). According to Petitioner, the evidence could

not support his conviction for kidnapping (id. at 17). Instead, he asserts that the

evidence presented only supported the lesser included offense of false imprisonment

and thus counsel should have challenged Petitioner’s kidnapping conviction.

Petitioner raised this claim in his Rule 3.850 motion (Resp. Ex. Y at 4-6). The

trial court denied the claim, finding the following:

The Defendant alleges the evidence presented at

trial did not support a guilty verdict for kidnapping,

specifically because “(l) victim was only moved from the

front door to the couch where Flowers (defendant) was

located; the movement of the victim remained slight; (2)

was inconsequential and inherent in the nature of robbery;

and, (3) victim was able to report the crime to law

enforcement as soon as the crime ended.” Thus, the

Defendant alleges but for trial counsel’s failure to object to

the lack of evidence, the Defendant would not have been

found guilty of kidnapping.

The record shows that at the conclusion of the

State’s case-in-chief, the Defendant’s trial counsel made a

motion for judgment of acquittal on the following grounds:

MR. BISHOP: Judge, at this time the Defense

would make a motion for a judgment of

acquittal. And I’ll start with – well, let me just

say the Defense is alleging the State has

failed to make a prima facie case as to – and

that’s looking at the, evidence in a light most

favorable to the State.

As to the robbery, my argument is there’s –

the State has not presented competent

substantial evidence to support a conviction

for armed robbery with a firearm. The only

evidence of any firearm being used is the

testimony of Joshua Campbell.

THE COURT: Yeah, the victim.

MR. BISHOP: The victim. He said that he saw

a gun. But his testimony was, you know, he

saw this in a period of less than ten seconds.

There’s no other evidence. As a matter of fact,

the co-defendant, Mr. Bess testified there was

no gun. In fact he hit – hit –

THE COURT: I concur about it, I think it’s a

jury question.

MR. BISHOP: – the victim on the head.

THE COURT: He said there was. The other

said there wasn’t. It’s up to the jury to

determine whether or not there was.

MR. BISHOP: Well, I understand it’s a

question of fact.

THE COURT: And he did –

MR. BISHOP: I’m just arguing –

THE COURT: – he –

MR. BISHOP: – I’m just arguing that –

THE COURT: – yeah, he was – Bess pled

guilty to a charge involving a firearm.

MR. BISHOP: Right. Not withstanding [sic]

the fact that he claims there was no firearm.

THE COURT: I understand. I understand.

Best interest plea.

MR. BISHOP: So I would ask you to knock the

armed robbery with a firearm down to a

robbery.

THE COURT: Your motion is noted and

denied.

MR. BISHOP: Okay. As to the kidnapping

count, Mr. McCourt has provided some case

law. I don’t know – did you give it to the

Judge?

MR. MCCOURT: No, sir.

MR. BISHOP: He gave me the case of

Germaine Berry vs. State. I just wanted to

make reference to that because it has the

standard from the – from the Supreme Court

of Florida in 1996. This deals with the

standard for kidnapping. And basically in the

top, in the headnote, the Supreme Court,

Justice Grimes held that one, confinement of

the victim was not slight and inconsequential

and merely incidental in the case they were

deciding.

THB COURT: Yeah.

MR. BISHOP: My argument would be in this

case the evidence that Mr. Campbell’s feet

were alleged to have been tied up with

electrical tape after, you know – and I

understand that the State will probably argue

the robbery was still ongoing at the time but

they had already hid –

THE COURT: That’s true but they did cover

him up with a blanket.

MR. BISHOP: Well, they put it up – the

allegation is a blanket was put over his head.

THE COURT: Right. And they moved him

into a room.

MR. BISHOP: Well, I think the victim

testified he crawled –

THE COURT: Right.

MR. BISHOP: – into the room.

THE COURT: But they were – I think it was

at their, you know, orders.

MR. BISHOP: So I’m focusing on the

confinement of his feet being tied together

and not his hands. Obviously he got out of the

tape very –

THE COURT: Yeah. I understand. And I

think it’s sufficient at this time to, you know,

proceed.

MR. BISHOP: There were a couple of other

elements in the case that – if you’re

interested? But that’s my argument –

THE COURT: Okay.

MR. BISHOP: – for the kidnapping. I don’t

think the State has made a prima facie case –

THE COURT: Well –

MR. BISHOP: – with competent substantial

evidence to support a kidnapping charge. So I

would ask Your Honor to –

THE COURT: I understand, I, you know, I’m

not the trier of fact but I’m going to deny the

motion.

Trial counsel also renewed his motion for judgment of

acquittal and filed a timely motion for new trial. Both

motions pertained to the argument that the evidence

produced at trial supporting charged kidnapping was

insufficient. It is unclear what more the Defendant’s trial

counsel could have done to present the argument the

Defendant now alleges he failed to raise.

Furthermore, the Defendant’s argument that the evidence

presented at trial did not support a guilty verdict for

kidnapping is itself without merit. The Florida Supreme

Court in Faison v. State adopted the following test for

kidnapping under Fla. Stat. 787.0l(l)(a)(2):

[I]f a taking or confinement is alleged to have

been done to facilitate the commission of

another crime, to be kidnapping the resulting

movement or confinement:

(a) Must not be slight, inconsequential and

merely incidental to the other crime;

(b) Must not be of the kind inherent in the

nature of the other crime; and

(c) Must have some significance independent

of the other crime in that it makes the other

crime substantially easier of commission or

substantially lessens the risk of detection.

Faison v. Slate, 426 So. 2d 963, 965 (Fla. 1983) (quoting

State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976)). At

trial, the victim provided a detailed account of [the] day of

the robbery and kidnapping. In particular, the victim

testified as follows:

. . . So Flowers is standing up, he’s saying to

Bess, just go ahead and tie him up. And he

tells me then to put my hands behind my

back. So I put my hands behind my back. And

that’s when Bess starts tying up my feet. And

they didn’t tie my hands for some reason, they

might have been in a rush; but Bess tied up

my feet, you know, pretty tight; it was, you

know, hurt my ankles.

Q What did he tie them up with?

A It was I guess electrical tape. I didn’t have

any in my house, but it must have been

something that they brought, but it was

electrical tape. When I took it off, that’s what

it seemed like it was, electrical tape. And they

had tied it on pretty tight, so my ankles were

hurting. They didn’t tie up my hands, they

told me just keep my hands behind my back.

And when they did that, you know, they were

about to leave –

. . .

Q So after you’re tied – they begin to leave

after you’re taped up?

A Yes. Bess and Flowers both begin to leave

once I’m tied up.

Q Now, let me ask you about – you said that

the tape was pretty tight on your legs.

A Uh-huh.

Q Was it such that you would be able to get

up and walk or step out of it?

A No. No way. It was actually like hurting my

ankles.

Q Well, did it restrict your movement at all?

A Yeah. Once they did leave and, you know,

they – Mr. Bess and Flowers were, you know

– I could hear the, you know, the car being

loaded and the car door being opened, the

front door being opened. So that’s when the

stuff was being loaded, I mean, you know, into

my car.

And after about a minute of that, then I hear

them shut the door. And I don’t hear any more

noise. I hear the car door shut. And I’m just,

you know, waiting to kind of hear, you know,

what, you know, what’s happening and are

they leaving.

And I hear my car, they try to start my car;

and it has like a ten second key alarm in it

where if you don’t – you have to unlock the car

door. If you don’t start the car within ten

seconds, you’re going to get a loud siren noise

when you try to start the car.

So I heard the loud siren noise. And I was, you

know, pretty scared at that point because

they’re going to be pissed off, the loud siren

just went off. And they’re going to come back

in really mad at me. And they tried it again

like five seconds later, and it makes the noise

again.

So I’m, you know, just waiting for them to run

through the door and then I say there’s an

alarm on the car, you going to have to put it –

I’m just waiting for them to open the door so I

can yell it real quick.

And maybe about ten seconds later I hear

them – I hear beep, beep. So I’m like, you

know, thank God they figured out that needs

to be – there needs to be the, you know, put it

in the car alarm with a key.

So they do that. And then I hear the car start

up. I don’t hear it drive off. I just, you know,

they must have gone real slow. I thought

they’d be, you know, going real fast. I didn’t

hear it drive off.

So I’m waiting just for a, you know, couple

minutes there. Once I haven’t heard anything

for a couple minutes, I kind of like hop over

like on my knees and, you know, hands over

to the window. And I see they’re gone. That’s

when I take the tape off and just, you know,

throw it down. And as I’m walking out, I can

see myself in the mirror, I stop real quick for

a minute, you know – not a minute, like a

couple seconds, just to look. Everything is – I

look okay, you know, covered in blood but I’m

going to survive.

The instant case is very similar in facts to that of Berry v.

State, 668 So. 2d 967 (Fla. 1996). In Berry, the Florida

Supreme Court held that the act of tying up a victim during

the course of a robbery and leaving the victim tied up after

the robbery was completed was not a slight,

inconsequential, or incidental confinement under Faison.

Id. at 969. The Court also held that tying up the victims in

Berry was not a necessary act to complete the robbery, and

the only logical reason for it was to aid in making a clean

getaway. Id. at 969-70. The Court concluded that the

confinement in Berry met the Faison test. Id. at 970.

In the instant case, it is clear the confinement of the victim

was not slight, inconsequential, or incidental to the

robbery, nor was the confinement necessary to complete

the robbery. As in Berry, the victim was left bound after the

Defendant and the co-defendant left the victim’s house, and

the robbery had been committed independent of the victim

being tied up. It is also clear that the purpose of tying up

the victim was to aid in the getaway. That the victim was

able to free himself relatively quickly does not diminish

this fact. See Ferguson v. State, 533 So. 2d 763, 764 (Fla.

1988) (“[T]he determination of whether the confinement

makes the other crime substantially easier of commission

or substantially lessens the risk of detection does not

depend upon the accomplishment of its purpose.”). Thus,

the argument as to the State’s alleged failure to meet

prongs of Faison was meritless. Trial counsel therefore was

not ineffective in this regard. See Teffeteller, 134 So. 2d at

1020. The Defendant’s second ground is without merit.

Resp. Ex. BB at 4-8 (record citations omitted). Petitioner appealed, and the Fifth

DCA per curiam affirmed the trial court’s denial without a written opinion (Resp.

Ex. FF).

The Court addresses the claim in accordance with the deferential standard

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

that the trial court adequately summarized the evidence adduced at trial. The

Court also made a reasonable conclusion that any challenge to the kidnapping

charge under the Faison test would have been meritless. 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. Ground Six is denied.

G. Ground Seven

Petitioner argues that the cumulative effect of trial counsel’s errors, as

alleged in “the foregoing claims of ineffective assistance of counsel,” deprived him of

his rights under the Fifth, Sixth and Fourteenth Amendments (Doc. 1 at 17-18).

Petitioner raised this claim in his Rule 3.850 motion (Resp. Ex. Y at 7-8). The trial

court summarily denied that claim, finding the following:

The Court finds that each of the Defendant’s claims is

insufficient or unsupported by the evidence and therefore

the Defendant has suffered no cumulative effect that

rendered his representation by trial counsel ineffective. See

Hurst v. State, l8 So. 3d 975, 1015 (Fla. 2009). The

Defendant’s third ground for relief is without merit.

Resp. Ex. BB at 9-10. Petitioner appealed, and the Fifth DCA per curiam affirmed

the trial court’s denial without a written opinion (Resp. Ex. FF). The Fifth DCA’s

adjudication is entitled to deference.

“The cumulative error doctrine provides that an aggregation of non-reversible

errors (i.e., plain errors failing to necessitate reversal and harmless errors) can yield

a denial of the constitutional right to a fair trial, which calls for reversal.” United

States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (internal quotation marks

omitted). The Eleventh Circuit addresses “claims of cumulative error by first

considering the validity of each claim individually, and then examining any errors

that [it] find[s] in the aggregate and in light of the trial as a whole to determine

whether the appellant was afforded a fundamentally fair trial.” Morris v. Sec’y, Dep’t

of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). Because the Court has determined that

none of Petitioner’s individual claims of error or prejudice have merit, Petitioner’s

cumulative error claim cannot stand. See United States v. Taylor, 417 F.3d 1176, 1182

(11th Cir. 2005) (“[There being] no error in any of the district court’s rulings, the

argument that cumulative trial error requires that this Court reverse [the

defendant’s] convictions is without merit.”). The Court thus finds 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 given the evidence

presented in the state court proceedings. Ground Seven is denied.

H. Ground Eight

Petitioner contends that the trial court lacked jurisdiction to adjudicate him

guilty and sentence him for the principal to kidnapping charge (Doc. 1 at 18).

Petitioner raised this claim in his Rule 3.850 motion (Resp. Ex. Y at 8-10). The trial

court summarily denied the claim, finding in pertinent part:

In the Defendant’s fourth ground, he alleges this Court

lacked jurisdiction to adjudicate and sentence the

Defendant for kidnapping. The Defendant alleges he was

“never formally arrested, booked, or arraigned on the

charge,” and thus this Court lacked jurisdiction as to that

charge. The Defendant also alleges he never waived

arraignment in the instant case.

The Defendant’s claim is refuted by the record. On August

26, 2014, the State filed an Information in the instant case,

charging the Defendant with principal to robbery with a

firearm (Count IV) and principal to kidnapping (Count V).

Because of the filing of this Information, pursuant to Art.

I, § 15(a) Fla. Const., this Court had jurisdiction. Cf. Sadler

v. State, 949 So. 2d 303, 305 (Fla. 5th DCA 2007) (“A court’s

jurisdiction to try an accused defendant is not invoked and

does not exist unless the State files an information or

indictment.[”]). Moreover, on September 4, 2014, the

Defendant’s trial counsel filed, inter alia, a waiver of

arraignment. The record thus clearly and wholly refutes

the Defendant’s fourth ground.

Resp. Ex. BB at 10 (record citations omitted). Petitioner appealed, and the Fifth

DCA per curiam affirmed the trial court’s denial without a written opinion (Resp.

Ex. FF).

Initially, “[a] state court’s jurisdiction to enter a judgment and sentence a

defendant is a matter of state law that is not cognizable on federal collateral

review.” Estrada v. Sec’y, Dep’t of Corr., No. 8:12-cv-758-T-30EAJ, 2012 WL

1231990, at *1 (M.D. Fla. Apr. 12, 2012). Still, even if this claim were cognizable,

the Fifth DCA’s adjudication is entitled to deference. In applying such deference,

the Court finds 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 given the evidence presented in the state court

proceedings. Ground Eight 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.4

DONE AND ORDERED at Tampa, Florida, this 13th day of September,

2021.

oe j f / ‘

/ / Wem

—| i / ‘ f

TOM BARBER

UNITED STATES DISTRICT JUDGE

Jax-7

C: Demetrius Flowers, #U53741

Counsel of record

4 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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