opining a petitioner bears the burden of establishing the need for an evidentiary hearing with more than speculative and inconcrete claims of need
How later courts described this case
- opining a petitioner bears the burden of establishing the need for an evidentiary hearing with more than speculative and inconcrete claims of need
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DONALD LAMAR GREEN,
Petitioner,
VS. Case No. 3:18-cv-1327-HES-PDB
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER.
I. STATUS
Petitioner, Donald Lamar Green, is proceeding on a Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody
(Petition) (Doc. 1). He challenges a state court (Duval County, case 16-2010-
CF-4116) conviction for aggravated battery in a detention facility. !
1 Although Petitioner references two convictions, acpravated battery with a deadly weapon
and possession of a concealed weapon by a convicted felon, Petition at 1, he stands convicted
of only one offense in case 16-2010-CF-4116: aggravated battery in a detention facility. The
state nol prossed the possession count, count three, and the First District Court of Appeal □
(1st DCA) reversed the conviction for aggravated battery with a deadly weapon finding the
. dual convictions for aggravated battery with a deadly weapon and aggravated battery in a
detention facility constituted double jeopardy. Green v. State, 84 So. 3d 356, 357 (Fla. Ist
DCA 2012) (per curiam). The Court will liberally construe the Petition as presenting a
challenge to the remaining count for which Petitioner stands convicted: aggravated battery
in a detention facility.
Respondents filed a Response (Response) (Doc. 7). Petitioner filed a Reply to
Respondents’ Response (Reply) (Doc. 15).2
Petitioner raises seven grounds of ineffective assistance of counsel in the
Petition. Respondents calculate the Petition is timely. Response at 9-11.
Petitioner accepts this calculation. Reply at 3. Respondents posit that all of
the claims are exhausted, Response at 11-12, and Petitioner agrees. Reply at
_3. Respondents submit that the arguments set forth in Petitioner’s Rule 3.850
post-conviction motion are more detailed sud consequently Respondents rely
on those arguments and the state court’s order denying post-conviction relief □
addressing Petitioner’s claims. Response at17n.5. Petitioner agrees with
Respondents’ assessment. Reply at 3.
If. EVIDENTIARY HEARING
“In a habeas corpus proceeding, the burden is on the petitioner to
establish the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of
Corr., 834 F.3d 1299, 1318 (11th Cir. 2016) (citations omitted), cert. denied,
137 S. Ct. 2245 (2017). To be entitled to an evidentiary hearing, a petitioner
must allege “facts that, if true, would entitle him to relief.” Martin v. United
Respondents filed an Appendix (Doc. 7). The Court hereinafter refers to the exhibits □
- contained in the Appendix as “Ex.” The Court also references the docket and page numbers
assigned by the electronic filing system.
.
States, 949 F.3d 662, 670 (11th Cir.) (quoting Aron v. United States, 291 F.3d
708, 715 (11th Cir. 2002)) (citation omitted), cert. denied, 141 S. Ct. 357 (2020).
See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011)
(opining a petitioner bears the burden of establishing the need for an
evidentiary hearing with more than speculative and inconcrete claims of need),
cert. denied, 565 U.S. 1120 (2012); Dickson. v. Wainwright, 683 F.2d 348, 351
(11th Cir. 1982) (same).
Of note, “[w]here a petitioner fails to allege sufficient facts to satisfy the
prejudice prong of the Strickland® standard, it is unnecessary to hold an
evidentiary hearing to resolve disputed facts relating to the allegedly deficient
performance of trial counsel.” Barksdale v. Dunn, No. 3:08-CV-327-WKW,
2018 WL 6731175, at *108 (M.D. Ala. Dec. 21, 2018) (not reported in F. Supp.)
(citing Bester v. Warden, 836 F.3d 1331, 1339-40 (1 1th Cir. 2016)), cert. denied,
141 S. Ct. 2523 (2021). Furthermore, if the allegations are contradicted by
the record, patently frivolous, or based upon unsupported generalizations, the
court is not required to conduct an pyidentiany hearing. Martin, 949 F.3d at
670 (quotation and citation omitted).
3 Strickland v. Washington, 466 U.S. 668 (1984). -
. 3
Here, the pertinent facts are fully developed in this record or the record
_ otherwise precludes habeas relief; therefore, this Court can "adequately assess
[Petitioner's] claim[s] without further factual development," Turner v. Crosby,
339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004). Upon
review, Petitioner has not met his burden as the record refutes the asserted
factual allegations or otherwise precludes habeas relief; therefore, the Court
finds Petitioner is not entitled to an evidentiary hearing. Schriro □□□
Landrigan, 550 U.S. 465, 474 (2007).
Il. HABEAS REVIEW
Federal courts are authorized to grant habeas relief to a state prisoner
“only on the ground that he is in custody in violation of the Constitution or
laws or treaties of the United States.” Lee v. GDCP Warden, 987 F.3d 1007,
1017 (11th Cir. 2021) (quoting 28 U.S.C. § 2254), petition for cert. filed, (U.S.
_ Sept. 22, 2021). For issues previously decided by a state court on the merits,
this Court must review the underlying state-court decision under the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In doing so,
a federal district court must employ a very deferential framework. Sealey v.
Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1354 (11th Cir. 2020) (citation |
omitted) (acknowledging the deferential framework of AEDPA for evaluating
issues previously decided in state court), cert. denied, 141 S. Ct. 2469 (2021);
40
Shoop v. Hill, 139 S. Ct. 504, 506 (2019) (per curiam) (recognizing AEDPA
imposes “important limitations on the power of federal courts to overturn the
judgments of state courts in criminal cases").
Thus, “[uJnder AEDPA, a court cannot grant relief unless the state
court's decision on the merits was ‘contrary to, or involved an unreasonable
application of, Supreme Court precedent, or ‘was based on an unreasonable
. determination of the facts in light of the evidence presented in the State court
proceeding.” McKiver v. Sec’y, Fla. Dep't of Corr., 991 F.3d 1357, 1364 (11th
Cir. 2021) (citing 28 U.S.C. § 2254(d)(1)-(2)), cert. denied, No. 21-5509, 2021 □
WL 5043677 (Nov. 1, 2021). The Eleventh Circuit instructs:
A state court’s decision is “contrary to” clearly
established federal law if the state court either reaches
a conclusion opposite to the Supreme Court of the
United States on a question of law or reaches a
different outcome than the Supreme Court in a case
with “materially indistinguishable facts.” Williams
. v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 146
L.Ed.2d 389 (2000). “Under the ‘unreasonable
application’ clause, a federal habeas court may grant
the writ if the state court identifies the correct
governing legal principle” from Supreme Court
precedents “but unreasonably applies that principle to
the facts of the prisoner's case.” Id. at 413, 1208S. Ct.
1495.
Lee, 987 F.3d at 1017-18. Therefore, habeas relief is limited to those occasions
where the state court’s determinations are unreasonable, that is, if no
fairminded jurist could agree with them. McKiver, 991 F.3d at 1364.
This is a high hurdle, not easily surmounted. If the state court applied
clearly established federal law to reasonably determined facts when
. determining a claim on its merits, “a federal habeas court may not disturb the
state court’s decision unless its error lies ‘beyond any possibility for fairminded
disagreement.” Shinn v. Kayer, 141 S. Ct. 517, 520 (2020) (per curiam)
(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). Also, a state court's
finding of fact, whether a state trial court or appellate court, is entitled to a
presumption of correctness under 28 U.S.C. § 2254(e)(1). “The state court’s
factual determinations are presumed correct, absent clear and convincing
evidence to the contrary.” Sealey, 954 F.3d at 1354 (quoting 28 U.S.C. §
2254(e)(1)). See Hayes v. Sec’y, Fla. Dep’t of Corr., 10 F.4th 1203, 1220 (11th
Cir. 2021) (Newsome, Circuit Judge, concurring) (recognizing the universal
requirement, applicable to all federal habeas proceedings of state prisoners,
set forth in 28 U.S.C. § 2254(e)(1)). This presumption of correctness, however,
- apples only to findings of fact, not mixed determinations of law and fact.
Brannan v. GDCP Warden, 541 F. App'x 901, 903-904 (11th Cir. 2013) (per
curiam) (acknowledging the distinction between a pure question of fact from a
.
mixed question of law and _ fact), cert. denied, 573 U.S. 906 (2014),
Furthermore, the second prong of § 2254(d), requires this Court to “accord the □
state trial court [determination of the facts] substantial deference.” Dallas v.
Warden, 964 F.3d 1285, 1302 (11th Cir. 2020) (quoting Brumfield v. Cain, 576
U.S. 305, 314 (2015)), cert. denied, No. 20-7589, 2021 WL 4507902 (U.S. Oct.
4, 2021). As such, a federal district court may not supersede a state court’s
determination simply because reasonable minds may disagree about the
finding. Id. (quotation and citation omitted).
Finally, where there has been one reasoned state court judgment
rejecting a federal claim followed by an unexplained order upholding that
judgement, federal habeas courts employ a "look through" presumption: "the
_ federal court should ‘look through' the unexplained decision to the last related
state-court decision that does provide a relevant rationale. It should then
presume that the unexplained decision adopted the same reasoning." Wilson
v. Sellers, 138 S. Ct. 1188, 1192 (2018) (Wilson).
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Claims of ineffective assistance of counsel are “governed by the familiar
two-part Strickland standard.” Knight v. Fla. Dep’t of Corr., 958 F.3d 1035,
1038 (11th Cir. 2020), cert. denied, 141 S. Ct. 2471 (2021). Pursuant to this
standard, “a defendant must show that (1) his counsel's performance was
deficient and (2) the deficient performance prejudiced his defense. Strickland,
Washington, 466 U.S. 668, 687, 1048S. Ct. 2052, 80 L.Ed.2d 674 (1984). We
need not address both prongs if a petitioner makes an insufficient showing on
. one prong. Id. at 697, 1045S. Ct. 2052.” Fifield v. Sec’y, Dep’t of Corr., 849 F.
App’x 829, 833 (11th Cir. 2021) (per curiam), petition for cert. filed, (U.S. Oct.
14, 2021) (No. 21-5959).
To prevail, a petitioner must successfully show his counsel “made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed the ©
defendant by the Sixth Amendment” as well as show “the deficient
performance prejudiced the defendant, depriving him of a ‘fair trial, a trial
whose result is reliable.” Raheem v. GDCP Warden, 995 F.3d 895, 908 (11th
Cir. 2021) (quoting Strickland, 466 U.S. at 687), petition for cert. filed, (U.S.
Nov. 23, 2021). Additionally,
because “[t]he standards created by Strickland and §
2254(d) are both ‘highly deferential,’ ... when the two
apply in tandem, review is ‘doubly’ so. Harrington [v.
Richter, 562 U.S. 86, 105 (2011)] (internal citations
and quotation omitted). Thus, under § 2254(d), “the
question is not whether counsel’s actions were
reasonable. The question is whether there is any
reasonable argument that counsel _ satisfied
Strickland’s deferential standard.” Id.
Tuomi v. Sec’y, Fla. Dep’t of Corr., 980 F.3d 787, 795 (11th Cir. 2020), cert.
denied, 141 S. Ct. 1721 (2021).
V. GROUND ONE
In ground one, Petitioner raises a claim of ineffective assistance of trial
counsel for failure to object to the state’s introduction of a weapon that had
nothing to do with the charged offense. Petition at 5. Upon review, he raised
_a comparable claim in his post-conviction motion, asserting counsel failed to
object to the introduction of a wooden toilet brush handle, eleven inches long,
that had been fashioned into a shank even though Officer Hixson who observed
incident described the shank as being about seven inches long and made
from what appeared to be a white plastic comb or brush. Ex. 37 (Doc. 7-37 at
10-16).
Applying the Strickland standard, the circuit court denied this claim of
ineffective assistance of trial counsel. Id. at 40-42. Petitioner appealed the
denial of post-conviction relief and the lst DCA affirmed per curiam. Ex. 38
(Doc. 7-38 at 2-3). The mandate issued on October 24, 2018. Ex. 39 (Doc. 7-
39 at 2).
In denying post-conviction relief, the circuit court properly applied the
_ two-pronged Strickland standard of review. Thus, Petitioner cannot satisfy
the “contrary to” test of 28 U.S.C. § 2954(a)(1) as the state court rejected these
claims based on Strickland. Further, Petitioner has not shown the state court
unreasonably applied Strickland or unreasonably determined the facts.
Indeed, upon review, the state court was objectively reasonable in its
. Strickland inquiry. Furthermore, the 1st DCA affirmed.
The circuit court provided a detailed, written decision denying post-
conviction reef. Ex. 37 (Doc. 7-37 at 36-55). Although finding there was no
conclusive evidence to demonstrate that the toilet brush was the weapon used
in the attack, the circuit court found Petitioner’s action of stooping to stuff
something down the drain of the recreation field immediately after the attack,
as evidenced by the videotape, combined with Officer Hixson’s testimony that
_ the item found was consistent with the object he had seen in Petitioner’s hand
during the attack was “sufficient to make the wire twist toilet bowl brush
relevant and admissible.” Id. at 41. Furthermore, the court found
Petitioner's argument “goes to the weight’ and not the admissibility of the
item.” Id. As such, the court found any objection or motion to exclude the
- evidence would have been denied. Id. at 42.
Counsel did not perform deficiently by failing to raise a meritless
objection. See Hollis v. United States, 958 F.3d 1120, 1124 (11th Cir. 2020)
(per curiam) (failure to raise meritless objection not constitutionally
ineffective). The circuit concluded it would be a meritless argument to make:
therefore, counsel did not perform deficiently in failing to make the argument.
Additionally, the court found Petitioner failed to satisfy the prejudice prong of
10
- Strickland based on the fact that Petitioner failed to demonstrate the outcome
of his trial likely would have been different if counsel had sought exclusion of
the toilet brush. Without satisfying the performance and prejudice prongs as
set forth in Strickland, Petitioner cannot prevail on his claim of ineffective
assistance of counsel. .
To the extent Petitioner is also complaining about the introduction of the
red shank that appeared to be fashioned from a toothbrush, Detective Gagnon
_ attested that he gathered that object simply because he could not leave a shank
once it had been discovered on the compound. Ex. 37 (Doc. 7-37 at 42). No
witnesses attested that this shank had been used by Petitioner during the
attack of the victim. Id. Of note, Officer Hixson did not testify that the item
was in any way consistent with the object seen in Petitioner's hands during the
attack. Finding Petitioner failed to satisfy the prejudice prong, the court
decided not to address the performance prong of the two-part test concerning
this object.
As the threshold standard of Strickland has not been met, Petitioner has
failed to demonstrate that his state court proceeding was fundamentally unfair
and his counsel ineffective. Thus, Petitioner has failed to demonstrate a Sixth
Amendment violation under the United States Constitution. The Court
11
concludes Petitioner is not entitled to habeas relief on ground one of the
Petition.
The lst DCA’s decision, although unexplained, is entitled to AEDPA
deference. Ex. 38 (Doc. 7-38). Applying the look through presumption
described in Wilson, the state’s court’s ruling based on a reasonable
determination of the facts and a reasonable application of the law.
The Court finds the state court’s adjudication of this claim is not contrary
to or an unreasonable application of Strickland and its progeny or based on an
unreasonable determination of the facts. Petitioner is not entitled to habeas
relief on ground one.
VI. GROUND TWO □
In ground two of the Petition, Petitioner contends his counsel performed
deficiently because he failed to challenge a defective information which omitted
the essential element of actual possession concerning the charge of aggravated
battery with a deadly weapon. Petition at 7. Petitioner notes this count was
vacated on direct appeal. Id. .
Petitioner's claim raised in ground two has no merit. The lst DCA
reversed the conviction for aggravated battery with a deadly weapon. Ex. 7
. (Doc. 7-7). Therefore, Petitioner does not stand convicted of aggravated
12
. battery with a deadly weapon. As such, he is not entitled to habeas relief on
this ground.*
To the extent Petitioner is re-raising the claim he presented to the circuit
court in his Rule 3.850 motion, he is not entitled to relief. The circuit court
summarized Petitioner’s claim:
Defendant claims that counsel was ineffective in
failing to move to dismiss the information because it
failed to allege actual possession of a deadly weapon,
and in failing to object to the verdict form because it
did not include a special interrogatory verdict as to
actual possession. He claims that the deadly weapon
allegation reclassified his offense from a second-degree
felony to a first-degree felony, and if counsel had
moved to dismiss the information, the Court would
have been required “to remove the ‘deadly weapon’
reclassification|.]” (Defendant’s Motion, p. 14-15). He
further alleges that the verdict form’s failure to
contain an interrogatory verdict as to actual
possession, as well as the jury instructions which
failed to require actual possession, constitute
fundamental error.
Ex. 37 (Doc. 7-37 at 43).
As noted by the state court, the reclassification of the offense charged in
count two was based on the offense being committed in a detention facility, not
based on the use of a deadly weapon. Id. However, the Court will decline to
give deference to the state court’s ultimate decision on this ground because the
4 Notably, Petitioner does not present any argument in support of ground two in his Reply
(Doce. 15).
13
circuit court opined: “Defendant’s crime in Count 2 did not require any finding
of use of a deadly weapon[.]” Id. The lst DCA affirmed per curiam. Ex. 38
(Doc. 7-38). Upon review, the jury had to find Petitioner used a deadly weapon
as the jury was instructed that the use of a deadly weapon constituted one of
_ the three elements of the offense of aggravated battery in a detention facility.
However, to the extent a de novo review net be undertaken, Petitioner is not
entitled to habeas relief. An explanation follows.
The information charged both aggravated battery with a deadly weapon
and aggravated battery in a detention facility. Ex. 2 (Doc. 7-2 at 21-22). The
- first count charged Petitioner with knowingly committing a battery upon
James Boyd, by actually and intentionally touching or striking James Boyd
against his will and in committing the battery using a deadly weapon, contrary
to Fla. Stat. § 784.045(1)(a)2. Ex. 2 (Doc. 7-2 at 21). The second count
charged that while being detained in a prison, jail or other detention facility,
Petitioner committed an aggravated battery upon detainee James Boyd,
contrary to the provisions of Fla. Stat. § 784.082(1). Ex. 2 (Doc. 7-2 at 21).
As such, Petitioner certainly had sufficient notice of the crimes for which
he was being charged and tried.’ Of course, the record shows the 1st DCA
. 5 As previously noted, the 1st DCA reversed the conviction for aggravated battery with a
deadly weapon on double jeopardy grounds. As such, Petitioner does not stand convicted of
degree variants of the same offense.
14
reversed the conviction for count one. As far as count two of the information,
aggravated battery in a detention facility, the record shows the trial court
charged three elements:
One, Donald Lamar Green intentionally touched or
struck James Boyd against his will; two, Donald
Lamar Green, in committing the battery, used a
deadly weapon and, three, Donald Lamar Green was □
detained in a facility.
A deadly weapon has been previously defined.
Ex. 3 (Doc. 7-3 at 134-35) (emphasis added). □
Although aggravated battery is a felony of the second degree, if a person
commits the felony in a detention facility upon another detainee, the offense is
_ reclassified as a felony of the first degree. Fla. Stat. § 784.082. As Petitioner
was convicted of committing the crime in a detention facility, his sentence for
committing aggravated battery in a detention facility was justifiably and
lawfully elevated to a felony of the first degree. Ex. 42 (Doc. 7-42 at 82-87).
Furthermore, the court lawfully sentenced him to an extended term, a life
- sentence, as an habitual felony offender. Id. at 85-87.
Notably, the offense in count two was not reclassified based on the use
of a deadly weapon. It was reclassified because the attack occurred in a
detention facility. Therefore, Petitioner's counsel did not perform deficiently
for failure to challenge count two of the information. Additionally, Petitioner
15 □
has not demonstrated he was prejudiced by any failure of counsel to object to
the information. Even assuming count two of the information had been
objected to by defense counsel and then dismissed by the court, the state would
have simply cured any deficiency by filing a new information.
In sum, the record shows the court properly instructed the jury as to the
offense of aggravated battery in a detention facility. A person commits
aggravated battery who, in committing battery, “uses a deadly weapon.” Fla.
Stat. § 784.045 (no contention or argument was over made that Petitioner
intentionally or knowingly caused great bodily harm, permanent disability, or
. permanent disfigurement). As noted by the lst DCA, “[[u]Jnder the clear
language of section 784.082, aggravated battery with a deadly weapon and
aggravated battery with a deadly weapon by one detainee upon another are
degree variants of the same offense, not separate offenses.” Green, 84
So. 3d at 357 (emphasis added).
Finally and alternatively, to the extent this claim presents an issue
purely of state law, asking this Court to interpret Florida law, the claim is not
cognizable on federal habeas review as it is not.a claim of constitutional
dimension that Petitioner is in custody in violation of the Constitution or law
or treaties of the United States. 28 U.S.C. § 2254(a). Of import, the writ of
habeas corpus under 28 U.S.C. § 2254 “was not enacted to enforce State-
□
created rights.” Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir. 2000)
‘(citing Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (per curiam)),
cert. denied, 531 U.S. 1170 (2001).
This Court will not reexamine state-court determinations on issues of
state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Asthe Eleventh
Circuit has instructed, “state law is what the state courts say itis.” Pinkney -
Sec’y, DOC, 876 F.3d 1290, 1299 (11th Cir. 2017), cert. denied, 139 S. Ct.
193 (2018). Indeed, “it is not a federal court’s role to examine the propriety of
. a state court’s determination of state law.” Id.
Florida courts are the expositors of the state’s laws. This Court’s role
does not include reexamining state-court determinations on state-law
questions. As such, a federal habeas corpus court will be bound by the Florida
court's interpretation of its own laws unless that interpretation breaches a
federal constitutional mandate. McCoy v. Newsome, 953 F.2d 1252, 1264
(11th Cir. 1992) (per curiam), cert. denied, 504 U.S. 944 (1992). To the extent
_ Petitioner’s claim raised in ground two presents an issue that is not cognizable
in this habeas proceeding, it cannot provide a basis for federal habeas corpus
relief. Furthermore, the Court finds there is no breach of a federal
constitution mandate and Petitioner is not entitled to federal habeas relief.
Therefore, ground two is due to be denied.
17
VII. GROUND THREE
In his third ground for relief, Petitioner claims his counsel was
ineffective for failure to challenge the “state’s identity of victim” as the victim
refused to cooperate, refused to be deposed, and refused to testify in court.
Petition at 8. In his Rule 3.580 motion, Petitioner alleged counsel was □
ineffective for failure to argue in his motions for indgnicnt of acquittal that the
state failed to prove the identity of the victim by failing to offer Boyd’s inmate
. number, driver's license number, or social security number and that simply
offering Officer's Hixson’s testimony was insufficient to establish identity.
Ex. 7 (Doc. 7-37 at 22). Petitioner contends the state’s efforts to prove identity
were insufficient to establish identity of the victim. Id.
The circuit court, in rejecting this claim, concluded that the state is not
"required to prove identity by using physical documentation. Id. at 45. The
court found Hixson’s testimony that he knew Boyd as an inmate at the jail
_where Hixson worked sufficient to satisfy identity of the victim. Id. This is
particularly so since identity of the victim was not a contested issue at trial.
Id,
Indeed, the record demonstrates that the siete presented video evidence
showing the victim being attacked by Petitioner in the recreation yard of the
jail. Ex. 3 (Doc. 7-3 at 27). Officer Hixson attested that while performing his
18
duty as a detention officer, he observed Petitioner stabbing Boyd. Id. at 37.
. Additionally, the state had the videotape of the incident played for the jury.
Id. at 42-43. cross examination, Officer Hixson testified he was aware that
Boyd and Petitioner were housed in the same location of the detention facility
would have been in the same food line for meals. Id. at 47.
The circuit court rejected Petitioner's claim finding neither deficient
. performance nor prejudice. Ex. 37 (Doc. 7-37 at 45). In doing so, the court
found the state presented “sufficient competent evidence of the victim’s
identity” and “any motion for judgment of acquittal by defense counsel. . .
would have been denied.” Id. Based on the trial court’s ruling, it is obvious
that any motion for judgment of acquittal by defense counsel on the ground of
insufficient evidence of the identity of the victim would have proved
unsuccessful in light of the circuit court’s ruling.
Upon review, the state court made its findings, applied the Strickland
standard of review, and denied relief. The court appropriately applied the
Strickland standard. It did not unreasonably determine the facts. The court
found trial counsel performed within the’ bounds of reasonable competent
counsel and Petitioner was not prejudiced by any failure of counsel to raise the
- matter in his motions for judgment of acquittal. The state court’s ruling was
19
_not contrary to and did not involve an unreasonable application of clearly
established federal law.
Petitioner has failed to satisfy the two-pronged Strickland standard of
review and is not entitled to relief on this claim. The 1st DCA’s decision,
although unexplained, is entitled to AEDPA deference. Applying the look
- through presumption described in Wilson, the state court’s ruling is based on
a reasonable determination of the facts and a reasonable application of the law.
In brief, the state court’s adjudication of the claim is not contrary to or an
unreasonable application of Strickland and its progeny or based on an
unreasonable determination of the facts. Therefore, ground three is due to be
denied.
VUI. GROUND FOUR
In his fourth ground, Petitioner claims his counsel was ineffective for
failure to object to the prosecutor’s opening statement that the incident started
over the victim skipping line. Petition at 10. Petitioner contends there was
no testimony supporting this assertion, either by deposition or in testimony at
trial. Id.
This claim has no merit. It was defense counsel, Owen Schmidt, not the
prosecutor, who said in opening statement, “I think the evidence will show that
there was a disagreement about cutting in the chow line in the pod|.]” Ex. 3
20
(Doc. 7-3 at 18). Mr. Schmidt continued, “[t]here was a disagreement about
people cutting in front of other people and what you will see at the close of the
evidence, you will see that this was a disagreement that they took to the
recreation field. You will see that it was a mutual fight[.]” Id. at 18-19.
Alternatively, to the extent Petitioner is contending defense counsel was
ineffective for arguing that the incident on the recreation field was the result
of a disagreement that started earlier in the day when Boyd broke in front of
Petitioner in the chow line, Petitioner is not entitled to habeas relief. He
raised a comparable claim in ground four of his post-conviction motion, Ex. 37
(Doc. 7-37 at 23), the court denied relief, and the lst DCA affirmed.
In denying the Rule 3.850 motion the circuit court noted that defense
_ counsel was faced with the admission of Petitioner’s post-Miranda® statement.
Ex. 37 (Doc. 7-37 at 46). See Ex. 2 (Doe. 7-2 at 31) (‘The suspect was
mirand|[i]zed and the suspect advised me that the victim broke line in front of
him at chow today.”). As far as the assertion that defense counsel failed to
establish that Boyd and Petitioner lived in the same dorm or wing of the jail,
- based on the transcript of the trial, defense counsel, on cross-examination of
6 Miranda v. Arizona, 384 U.S. 436 (1966).
21
Officer Hixson, readily established that Petitioner and Boyd were housed in
the same location. Ex. 3 (Doc. 7-3 at 47). |
To the extent Petitioner is contending defense counsel was ineffective for
failure to follow through and present any evidence to support the comments
made in the opening statement, the record demonstrates that there was
_ sufficient evidence of the dispute presented at trial. The circuit court found
since the evidence was presented in the state’s case, there was no need for
defense counsel to present additional evidence of the earlier dispute. Id. at
:
Indeed, the record shows the state called Officer Jeremy Moran. Id. at
66. Officer Moran testified he gave Petitioner his Miranda warnings and
thereafter, Petitioner told him “the victim broke in line at chow today and that
they were in the recreation field and he walked up behind the victim and hit
him in the back of the head, struck him in the back of his head with his fists[.|”
Id. at 70-71. On cross-examination, defense counsel asked Officer Moran if.
Petitioner told him he never stabbed the victim with a sharp object. Id. at 74.
Officer Moran responded affirmatively. Id.
In this case, there were considerable obstacles facing defense counsel in
putting on a convincing defense. As noted by the circuit court, the crime was
captured on video, the identity of the participants was not an issue, there was
22
an eyewitness to the attack, and the court had denied the motion to suppress
Petitioner’s statement. Ex. 2 (Doc. 7-2 at 65). As such, defense counsel
_attempted “to convince the jury that there was a legal justification for
Defendant’s actions[.]” Ex. 37 (Doc. 7-37 at 47).
Finally, “Defendant is unable to demonstrate that if he had taken the
stand and testified that he and Boyd had engaged in mutual combat on the
recreation field, the outcome of his trial likely would have been different.” Id.
at 49. Petitioner had six prior felony convictions, meaning if he had elected to
take the stand, the jury would have heard about Petitioner's extensive criminal
record. Id. Thus, it was not unreasonable for counsel to advise Petitioner not
to take the stand. Id. Also, based on Petitioner’s statement to the
authorities, the videotape evidence, and the testimony of the state’s eyewitness
to the attack, even if Petitioner had taken the stand to state he had engaged
in mutual combat, the outcome of his trial would likely not be different.
Faced with the above, “counsel’s pursuance of a mutual combat defense
was reasonable given the State’s evidence.” Id. at 47. Under these
_ circumstances, counsel’s performance was well within the bounds of
reasonable professional assistance. Petitioner could not prevail on his claim
of ineffective assistance of counsel as he did not satisfy the performance prong
of Strickland nor did he satisfy the prejudice prong. Id. at 49. The record
23
supports the state courts’ conclusions as counsel's performance was well within
the broad range of reasonable assistance under prevailing professional norms
and Petitioner failed to satisfy the prejudice prong as well.
The Court finds the state court’s determination is consistent with federal
precedent. Ex. 38 (Doc. 7-38). As such, AEDPA deference is due. In
applying the look-through presumption described in Wilson, the Court finds
state court’s ruling is based on a reasonable determination of the facts and
a reasonable application of the law. Thus, the lst DCA’s adjudication of the
_ claim is not contrary to or an unreasonable application of clearly established
federal law or based on an unreasonable determination of the facts.
Petitioner has not satisfied the two-pronged Strickland standard. As
the threshold standard has not been met, Petitioner has failed to demonstrate
that his counsel was ineffective. Thus, he has failed to demonstrate a Sixth
‘Amendment violation under the United States Constitution. Therefore,
ground four is due to be denied.
IX. GROUND FIVE |
In his fifth ground, Petitioner contends his counsel was ineffective for
failure to object to the introduction of the videotape on the basis that the state
failed to establish authenticity, originality, clarity, or chain of custody.
Petition at 12. Petitioner raised a comparable claim in his Rule 3.850 motion,
24 .
_and the circuit court denied post-conviction relief finding Petitioner neither
alleged nor showed probable tampering with the video. Ex. 37 (Doc. 7-37 at
60).
In its decision, the court rejected Petitioner's contention that the state
failed to establish authenticity, noting that Sergeant Ephron Banks provided
"testimony about the jail’s video surveillance system how the videos are
produced and kept in the normal course of business, and the fact the video
- played at trial was the same one downloaded from the jail’s system. Id. As
such, the circuit court concluded that even if counsel had sought to suppress
the video based on lack of authenticity, the motion would have been
unsupported as the authenticity of the videotape “was well established.” Id.
Upon review of the transcript of the proceedings, Sergeant Banks
provided testimony supporting authenticity of the videotape: Ex. 3 (Doc. 7-3
at 25-27. Therefore, even if counsel had objected to the admission of the
_ videotape, such an objection would have been unsuecessful.
As for clarity, the circuit court found that issue goes to weight, not
_ admissibility. Ex. 37 (Doc. 7-37 at 50-51). Consequently, if counsel had
objected on the basis of poor quality, the objection would have been overruled.
To the extent Petitioner complains about a deficient showing of chain of
custody, the record shows Sergeant Banks explained that the jail has a system,
25
his duty is to monitor that system, the videos are kept and saved in the course
of the Sheriff's business, Sergeant Banks downloaded the video and marked it
with his initials on the tag, he confirmed those were his initials on the tag, and
finally, he viewed the videotape the day before trial and confirmed that it is a
true and accurate depiction in the format -he downloaded from the Sheriff's
surveillance video system. Ex. 3.(Doc. 7-3 at 25-27). Therefore, “there was
_ no basis for counsel to object to the admission of the videotape[.]” Ex. 37 (Doc.
7-37 at 51).
The lst DCA affirmed the decision of the circuit court denying post-
conviction relief on ground five of the Rule 3.850 motion. Ex. 38 (Doc. 7-38).
Therefore, there is a qualifying state court decision. In this case, AEDPA
deference is due.
Here, the state court properly applied the two-pronged Strickland
_ standard of review; therefore, Petitioner cannot satisfy the “contrary to” test of
28 U.S.C. § 2254 (d) (a). After reviewing all of Petitioner’s contentions, the
Court finds Petitioner has failed to show that the state court unreasonably
applied Strickland or made an unreasonable determination of the facts. The
state court was objectively reasonable in its inquiry and the 1st DCA’s
_ adjudication of the claim raised in ground five is not contrary to or an
unreasonable application of Strickland and its progeny or based on an
26
unreasonable determination of the facts. Therefore, ground five is due to be
denied.
X. GROUND SIX
In ground six, Petitioner raises a claim that comnsels failure to object to
Nurse Valerie Thompson’s hearsay remarks concerning what Mr. Boyd said to
_her during medical treatment as to the cause of: his injuries amounted to
deficient performance of counsel in violation of the Sixth Amendment.
Petition at 12. Petitioner included this contention in his Rule 3.850 motion.
The circuit court denied this ground and the lst DCA affirmed the circuit
court’s decision.
The record shows Ms. Thompson testified she is a nurse at the Pretrial
Detention Facility. Ex. 3 (Doc. 7-3 at 60). She treated Mr. Boyd for his
injuries on April 15, 2010. Id. at 61. Upon inquiry as to the cause of his
injuries, Ms. Thompson testified that Mr. Boyd told her, “I was shanked.” Id.
Defense counsel objected, and the prosecutor told the court the statement falls
within the medical diagnosis exception. Id. The court overruled defense
counsel's objection. Id. at 62.
In his Rule 3.850 motion, Petitioner complained that his counsel did not
offer up a proper objection by failing to object on the basis that the nurse’s
comments were made in violation of the Confrontation Clause. Ex. 37 (Doc.
27
7-37 at 30). He submits that had counsel done so, a motion for mistrial would
have been granted or the issue preserved for appellate review. 31. The
court denied this claim finding the rationale underlying the hearsay rule is
that hearsay statements violate the Confrontation Clause unless the
comments fall under an exception to the hearsay rule. Id. at 51-52.
Of import,
The Sixth Amendment's Confrontation Clause
provides that, “[iJn all criminal prosecutions, the
accused shall enjoy the right ... to be confronted with
the witnesses against him.” We have held that this
bedrock procedural guarantee applies to both federal
and state prosecutions. Pointer v. Texas, 380 U.S. 400,
406, 85 S. Ct. 1065, 13 L.Ed.2d 923 (1965). As noted
above, Roberts’? says that an unavailable witness's
out-of-court statement may be admitted so long as it
has adequate indicia of reliability—i.e., falls within a
“firmly rooted hearsay exception” or bears
“particularized guarantees of trustworthiness.” 448
U.S., at 66, 100 S. Ct. 2531.
- Crawford v. Washington, 541 U.S. 36, 42 (2004).
The circuit court found Boyd’s statement made to Nurse Thompson and
Thompson's testimony concerning the statement was admissible under the
hearsay exception for statements made for purposes of medical diagnosis or
treatment. Ex. 37 (Doc. 7-37 at 52). As such, the court found, “defense
7 Ohio v. Roberts, 448 U.S. 56 (1980), abrogated by Crawford.
28
- counsel was not ineffective in failing to make any further argument when he
objected to Thompson’s testimony.” Id.
In Florida, there is an exception to the hearsay rule concerning
statements for purposes of medical diagnosis or treatment as there is an
assumption that a person seeking medical help has a strong motivation to be
truthful based on the desire for effective treatment. Williams v. State, 865
So. 2d 17, 19 (Fla. 4th DCA 2003). See Fla. Stat. § 90.803(4). The circuit
_ court found Nurse Thompson’s testimony was admissible under this exception.
Therefore, counsel was not ineffective for failure to make a further objection or
argument or seek a mistrial. Counsel's original hearsay objection was based
on confrontation rights; therefore, he did not need to expand or change his
argument since the objection encompassed a claim that Thompson’s testimony
about Boyd’s statement violated the Confrontation Clause. Of importance,
the trial court overruled the objection, finding the testimony admissible under
the stated exception.
The 1st DCA affirmed the decision of the circuit court denying post-
conviction relief on ground six of the Rule 3.850 motion. Therefore, there is a
qualifying state court decision. In this case, AEDPA deference is due.
Trial counsel’s performance was well within the broad range of
_ reasonable assistance under prevailing professional norms. He objected to
29
the hearsay statement and the trial court overruled counsel’s objection based
on an exception to the hearsay rule. In rejecting the claim of ineffective
assistance of counsel, the trial court applied the two-pronged Strickland
standard of review. As such, Petitioner cannot satisfy the “contrary to” test of
—-28:;U.S.C. § 2254(d)(1) as the state court rejected Petitioner's claim based on
Strickland. .
In applying the look-through presumption of Wilson, the Court finds the
state court’s ruling is based on a reasonable determination of the facts and a
reasonable application of the law. Indeed, the state court’s adjudication of —
this claim is not contrary to or an unreasonable application of Strickland and
its progeny or based on an unreasonable determination of the facts.
In short, Petitioner has failed to demonstrate a Sixth Amendment
violation under the United States Constitution. Therefore, he is not entitled
_ to federal habeas relief on ground six of the Petition,
XI. GROUND SEVEN
In his seventh and final ground, Petitioner raises a claim of ineffective
assistance of counsel for failure to raise all of the claims raised in the Petition
in a motion for new trial. Petition at 13. The circuit court in addressing
. Petitioner’s post-conviction contention that defense counsel performed
30
deficiently by failing to raise certain grounds in a motion for new trial, repeated
the grounds Petitioner claims should have been raised:
1) the trial court erred in allowing unrelated weapons
into evidence; 2) the information and verdict forms
were defective because they failed to require a finding
of actual possession of a deadly weapon; 3) the State
failed to present sufficient evidence of the identity of
the victim; 4) the video of the crime was introduced
without establishing chain of custody or authenticity:
5) the denial of the hearsay objection to Thompson’s
testimony about Boyd’s statement that he was
shanked; and 6) the improper introduction of
Defendant’s statement to police.
Ex. 37 (Doc. 7-37 at 53).
In denying Petitioner’s seventh ground, the circuit court held:
As for the sixth point that Defendant claims
counsel should have included in the motion for new
trial, the Court notes that counsel did indeed allege in
his motion for new trial that the Court had erred in
denying the motion to suppress Defendant’s statement
(Exhibit H). As for the remaining five points that
Defendant argues counsel should have included in his
motion for new trial, Defendant has raised all of those
claims in his postconviction motion, and the Court has
found all of them to be without merit. Therefore,
Defendant is unable to demonstrate either the
prejudice or the performance prongs of the Strickland
test, and he is not entitled to relief.
The record demonstrates defense counsel did file a motion for new trial
seeking a new trial based on the following grounds: (1) the court erred in
31
denying defendant’s motion for judgment of acquittal made at the close of the
state’s case; (2) the court erred in denying defendant’s motion for judgment of
acquittal made at the close of all the evidence: (3) the verdict is contrary to the
weight of the evidence; (4) the verdict is contrary to the law; and (5) the court
erred in denying defendant’s objection to the admissibility of
defendant’s statements to Officer Moran. Ex. 2 (Doc. 7-2 at 102-103)
(emphasis added). The trial court denied the motion for new trial. Id. at 115;
4 (Doc. 7-4 at 14).
The circuit court on post-conviction review was correct in finding that
- counsel did contend in the motion for new trial that the trial court had erred
in denying the motion to suppress Defendant’s statement. See above.
Therefore, counsel cannot be ineffective for failure to pursue a claim that he
actually raised in the motion for new trial.
Of import, the circuit court addressed all of the claims raised in
Petitioner's post-conviction motion and denied relief. Apparently, Petitioner
is attempting to re-raise these underlying claims under the guise of a claim of
_ failure to raise the same claims in a motion for new trial. As noted by the
32
circuit court, “the Court has found all of them to be without merit.”8 Ex. 37
(Doc. 7-37 at 53).
The circuit court found neither the performance nor prejudice prongs of
. Strickland were met in this instance. Id. The lst DCA affirmed. Ex. 38
(Doc. 7-38). In essence the state court found counsel's performance did not fall
below an objective standard of reasonableness and determined there is no
reasonable probability that, but for counsel’s actions or omissions in the motion
for new trial, the result would have been different.
The 1st DCA’s adjudication of this claim is not contrary to or an
unreasonable application of Strickland or based on an unreasonable
_ determination of the facts. Therefore, ground seven is due to be denied.
Accordingly, it is now
ORDERED AND ADJUDGED:
1. The Petition for Writ of Habeas’ Corpus (Doc. 1) is DENIED.
2, This action is DISMISSED WITH PREJUDICE.
3. The Clerk shall enter judgment accordingly and close this case.
8 The Eleventh Circuit has opined, “to the extent that [a] claim of cumulative error
_ was based on his claims of ineffective assistance of counsel, this claim fails because, as
discussed above, counsel did not render ineffective assistance, and, therefore, there can be no
cumulative error.” Pierre v. United States, No. 18-12038-A, 2019 WL 5967873, at *2 (11th
Cir. May 30, 2019) (citing United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 201 1) Gf no
error or only a single error, there can be no cumulative error)).
33 □
4, If Petitioner appeals the denial of his Petition (Doc. 1), the Court
denies a certificate of appealability.’ Because this 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.
44
DONE AND ORDERED at Jacksonville, Florida, this bs day of |
December, 2021.
Ay
UNI STATE “RICT J GE
&
sa 12/1
Cc:
Donald Lamar Green
Counsel of Record
® This Court should issue a certificate of appealability only if a petitioner makes "a
substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To □□□□
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-K] v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880,
893 n.4 (1983)). Upon due consideration, this Court will deny a certificate of appealability.
34