Forh v. Secretary Florida Department Of Corrections (St. Johns County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ISAAC SIEH FORH,

Petitioner,

v. Case No. 3:19-cv-498-MMH-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Isaac Sieh Forh, an inmate of the Florida penal system,

initiated this action on April 29, 2019,1 by filing a Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1) and a Memorandum of Law

and Facts (Memorandum; Doc. 2).2 In the Petition, Forh challenges a 2012

state court (St. Johns County, Florida) judgment of conviction for robbery with

a firearm. He raises two claims. See Petition at 4-6; Memorandum at 5-14.

Respondents have submitted a memorandum in opposition to the Petition. See

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

2 For purposes of reference to pleadings and exhibits, the Court will cite the

document page numbers assigned by the Court’s electronic docketing system.

Response (Doc. 8). They also submitted exhibits. See Docs. 9-1 through 9-16.

Forh filed a brief in reply. See Reply (Doc. 10). This action is ripe for review.

II. Relevant Procedural History

On October 12, 2011, the State of Florida charged Forh with robbery with

a firearm in St. Johns County case number 2011-CF-1868. See Doc. 9-1 at 28.

On July 26, 2012, at the conclusion of a trial, the jury found Forh guilty as

charged and also determined that Forh was “in actual possession of a firearm”

during the robbery. Doc. 9-2 at 18, Verdict. On August 22, 2012, the circuit

court sentenced Forh to a thirty-year term of imprisonment with a ten-year

mandatory minimum sentence for “actual possession” of the firearm. Docs. 9-2

at 27-36, Judgment; 9-6 at 161-62, Transcript of Sentencing Hearing.

On direct appeal, Forh, with the benefit of counsel, filed an initial brief,

arguing that the trial court erred when it denied his motion for recusal (ground

one) and refused to hear his motion to suppress eyewitness identification and

consider a special jury instruction related to the eyewitness testimony (ground

two). See Docs. 9-6 at 170-73; 9-7; 9-8 at 1-14. He also asserted that a successor

judge erred when he entered a September 12, 2012 order clarifying the

sentence (ground three). See Doc. 9-8 at 15-21.3 The State filed an answer brief,

see Doc. 9-8 at 23-43, and Forh filed a reply brief, see Docs. 9-8 at 45-53; 9-9 at

3 Doc. 9-3 at 34 (stating “it is the [c]ourt’s intent that the 30 year sentence

imposed upon [Forh] run consecutive[ly] to any active sentence [Forh] was serving”).

1-7. On December 23, 2013, the appellate court (Fifth DCA) affirmed Forh’s

conviction and sentence per curiam without issuing a written opinion, see Doc.

9-9 at 9, and issued the mandate on January 16, 2014, see id. at 10.

Forh filed a pro se motion to correct illegal sentence pursuant to Florida

Rule of Criminal Procedure 3.800 on January 29, 2014. See id. at 12-15. The

circuit court denied the Rule 3.800 motion on March 12, 2014. See id. at 17-19.

On Forh’s appeal, the Fifth DCA affirmed the circuit court’s denial per curiam

on August 19, 2014, see id. at 36, and issued the mandate on September 12,

2014, see id. at 37. He filed a second pro se Rule 3.800 motion on December 15,

2014. See id. at 65-73. The circuit court denied the motion on June 2, 2015. See

id. at 75-76. Forh did not appeal the circuit court’s denial.

During the pendency of the second Rule 3.800 motion, on January 6,

2015, Forh filed a pro se petition for writ of habeas corpus. See id. at 39-47. In

the petition, he asserted that appellate counsel was ineffective because she

failed to raise the following issues on direct appeal: the trial court failed to

conduct a Richardson4 hearing to address the State’s three discovery violations

(failure to provide the audio recording of the victim’s interview and the Adidas

store’s surveillance footage, and failure to disclose the victim’s daughter as an

4 Richardson v. State, 246 So.2d 77 (Fla. 1971).

eyewitness until after the jury was sworn). The State filed a response. See id.

at 49-59. The Fifth DCA denied the petition on July 14, 2015. See id. at 63.

Next, on December 14, 2015, Forh filed a pro se motion for postconviction

relief pursuant to Florida Rule of Criminal Procedure 3.850. See id. at 82-98.

In his Rule 3.850 motion, Forh asserted that his trial counsel was ineffective

because he failed to: timely file a notice of alibi and pursue an alibi defense

(ground one); file a petition for writ of prohibition when the trial judge refused

to disqualify herself (ground two); timely file a motion to suppress eyewitness

identification testimony (ground three); object to the verdict form which

permitted the jury to make a finding that Forh “actually possessed” a firearm

(ground four); and investigate and obtain an expert to testify about trans-racial

misidentification (ground five). See id. at 84-95. He also asserted that counsel’s

cumulative errors denied him a fair trial. See id. at 96. The State responded,

see Docs. 9-9 at 103-08; 9-10 at 1-18, and Forh replied, see Doc. 9-10 at 20-38.

On October 26, 2017, the circuit court denied Forh’s Rule 3.850 motion as to a

portion of ground one (related to Forh’s assertions that counsel failed to timely

file a notice of alibi and failed to investigate and present an alibi defense with

respect to Forh’s credit card records), and also denied grounds two, three, and

four. See Docs. 9-10 at 40-47; 9-11 at 1-6. The Court did not address ground

five because Forh voluntarily dismissed the ground. See Docs. 9-10 at 36; 9-11

at 5. On March 16, 2018, the court held an evidentiary hearing (addressing the

portion of ground one related to Forh’s assertions that counsel failed to

investigate and present an alibi defense with respect to the cell phone records),

at which court-appointed counsel represented Forh. See Docs. 9-11 at 71-77; 9-

12 through 9-14. The parties filed written closing arguments. See Docs. 9-14 at

15-20; 9-15. The circuit court denied Forh’s Rule 3.850 motion with respect to

the claim on April 10, 2018. See Doc. 9-16 at 2-9. On appeal, Forh’s counsel

filed an Anders5 brief, see id. at 39-49, and Forh filed a pro se initial brief, see

id. at 51-72. On December 31, 2018, the Fifth DCA affirmed the circuit court’s

denial of Forh’s Rule 3.850 motion per curiam without issuing a written

opinion, see id. at 74, and on January 24, 2019, issued the mandate, see id. at

75.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

5 Anders v. California, 386 U.S. 738 (1967).

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318-19 (11th Cir. 2016). “It follows that if the record refutes the

applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474.

The pertinent facts of this case are fully developed in the record before the

Court. Because the Court can “adequately assess [Forh’s] claim[s] without

further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.

2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

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

governs a state prisoner’s federal petition for habeas corpus. 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) (quotation marks omitted)). As such, federal habeas review of

final state court decisions is “‘greatly circumscribed’ and ‘highly deferential.’”

Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation

marks omitted)).

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

decision, if any, that adjudicated the claim 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 a written opinion explaining its rationale in order for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

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

unaccompanied by an explanation, the United States Supreme Court has

instructed:

[T]he 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). The presumption may be

rebutted by showing that the higher state court’s adjudication most likely

relied on different grounds than the lower state court’s reasoned decision, such

as persuasive alternative grounds that were briefed or argued to the higher

court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars

relitigation of the claim unless the state court’s decision (1) “was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States;” or (2) “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); Richter, 562 U.S. at 97-98.

The Eleventh Circuit describes the limited scope of federal review pursuant to

§ 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),

§ 2254(d)(1) consists of two distinct clauses: a

“contrary to” clause and an “unreasonable application”

clause. The “contrary to” clause allows for relief only

“if the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially

indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523

(plurality opinion). The “unreasonable application”

clause allows for relief only “if the state court identifies

the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “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)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.

Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because the

federal habeas court would have reached a different

conclusion in the first instance.’”[6] Titlow, 571 U.S. at

---, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S.

290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016); see Teasley v.

Warden, Macon State Prison, 978 F.3d 1349, 1356 n.1 (11th Cir. 2020). Also,

deferential review under § 2254(d) generally is limited to the record that was

before the state court that adjudicated the claim on the merits. See Cullen v.

Pinholster, 563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1)

“requires an examination of the state-court decision at the time it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,

134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a

state court blundered in a manner so ‘well understood and comprehended in

existing law’ and ‘was so lacking in justification’ that ‘there is no possibility

fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,

562 U.S. at 102-03). This standard is “meant to be” a “difficult” one to meet.

6 The Eleventh Circuit has described the interaction between § 2254(d)(2) and

§ 2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3

(11th Cir. 2016).

Richter, 562 U.S. at 102. A district court’s obligation is “to train its attention”

on the legal and factual basis for the state court’s ruling, not to “flyspeck the

state court order or grade it.” Meders v. Warden, Ga. Diagnostic Prison, 911

F.3d 1335, 1349 (11th Cir. 2019) (citing Wilson, 138 S. Ct. at 1191-92), cert.

denied, 140 S. Ct. 394 (2019). Thus, to the extent that a petitioner’s claims

were adjudicated on the merits in the state courts, they must be evaluated

under 28 U.S.C. § 2254(d).

B. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

assistance of counsel. That right is denied when a defense attorney’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per

curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 104 S. Ct. 2052.

It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be

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

trial whose result is reliable.” Id., at 687, 104 S. Ct.

2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet the

prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,

1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is

a most deferential one.” Richter, 562 U.S. at ---, 131

S.Ct. at 788. But “[e]stablishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult. The standards created

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

is doubly so.” Id. (citations and quotation marks

omitted). “The 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, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (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 ---, 131 S. Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference — this one to a state court’s decision — when we are

considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such,

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

As ground one, Forh asserts that the trial court erred when it failed to

suppress the State’s eyewitness identification evidence that was obtained as a

result of law enforcement’s overly suggestive procedures. Forh argued this

issue on direct appeal, see Docs. 9-8 at 5-9; 9-9 at 1-4; the State filed an answer

brief, see Doc. 9-8 at 31-39; and the Fifth DCA affirmed Forh’s conviction per

curiam, see Doc. 9-9 at 9.

In its appellate brief, the State addressed the claim on the merits, see

Doc. 9-8 at 31-39, and therefore, the appellate court may have affirmed Forh’s

conviction based on the State’s argument. If the appellate court addressed the

merits of the claim, the state court’s adjudication is entitled to deference under

AEDPA. After a review of the record and the applicable law, the Court

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

clearly established federal law and did not involve an unreasonable application

of clearly established federal law. Nor was the state court’s adjudication based

on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Accordingly, Forh is not entitled to

relief on the basis of this claim.

Even assuming that the state court’s adjudication of the claim is not

entitled to deference, Forh’s claim of trial court error is nevertheless without

merit. The Supreme Court has recognized “a due process check on the

admission of eyewitness identification, applicable when the police have

arranged suggestive circumstances leading the witness to identify a particular

person as the perpetrator of a crime.” Perry v. New Hampshire, 565 U.S. 228,

232 (2012). An out-of-court identification is subject to exclusion if the

identification procedure was unduly suggestive such that it created a

substantial risk of misidentification. Neil v. Biggers, 409 U.S. 188, 199 (1972).

In determining whether an identification violates due process, a court

undertakes a two-part analysis. “First, we must determine whether the

original identification procedure was unduly suggestive.... If we conclude that

the identification procedure was suggestive, we must then consider whether,

under the totality of the circumstances, the identification was nonetheless

reliable.” Cikora v. Dugger, 840 F.2d 893, 895 (11th Cir. 1988) (citing Biggers,

409 U.S. at 199). The pertinent question is “whether under the ‘totality of the

circumstances’ the identification was reliable even though the confrontation

procedure was suggestive.” Biggers, 409 U.S. at 199. The Supreme Court has

identified the following five factors to be considered in determining whether

the identification was reliable: (1) the witness’s opportunity to view the suspect

at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy

of the description of the suspect; (4) the level of certainty of the identification;

and (5) the length of time between the crime and the identification. See id.

Notably, in Manson v. Brathwaite, 432 U.S. 98 (1977), the Supreme Court

stated that absent “a very substantial likelihood of irreparable

misidentification,” the identification of a suspect by a witness is evidence for

the jury to weigh. Id. at 116 (citation and internal quotation marks omitted).

We are content to rely upon the good sense and

judgment of American juries, for evidence with some

element of untrustworthiness is customary grist for

the jury mill. Juries are not so susceptible that they

cannot measure intelligently the weight of

identification testimony that has some questionable

feature.

Id.

The following chronology is relevant to the issue. In the instant case,

Forh requested that the court continue the June 18, 2012 trial to seek

additional evidence. See Doc. 9-1 at 70. The trial was rescheduled for Monday,

July 16, 2012, see id. at 81, 96; the jury was selected and sworn that day; and

the judge stated that the trial would start the following week on July 26th. See

Doc. 9-6 at 122-23. Outside the presence of the jury, the prosecutor and defense

counsel discussed the St. Johns County photographic lineup as well as a

photograph of Forh that law enforcement authorities in another county

emailed to the St. Johns County officials,7 and defense counsel notified the

court that he would discuss with Forh any issues related to pretrial

identification. See id. at 127-30. On Wednesday, July 25th, Forh filed a

counseled Motion to Suppress Eyewitness Identification Testimony and

Request for a Hearing in Advance of Trial.8 See Doc. 9-1 at 100-06. In the

7 See Doc. 9-3 at 48.

8 The certificate of service shows that defense counsel furnished a copy of the

motion to the State Attorney on July 23, 2012, at 7:20 p.m. See Doc. 9-1 at 106.

motion, Forh asked that the court suppress the pretrial identifications of Forh

by Douglas Burnett (the victim), Araan Quinney, and their children “as being

the product of an impermissibly suggestive identification procedure in

violation of due process under the Fifth and Fourteenth Amendments.” Id. at

100. As to the underlying facts, Forh stated in pertinent part:

At some time during the investigation of this

case[,] detective David Garns of the St. Johns County

Sher[]iff’s Office received an email of a suspect that

was alleged to be Isaac Forh from another county. This

email was then sent to the victim in this case, Douglas

Burnett. This police procedure made any subsequent

identification of the Defendant unnecessarily

suggestive. Furthermore, considering all the

circumstances, the above procedure gave rise to a

substantial likelihood of irreparable misidentification

of the Defendant.

Further, after emailing the victim a picture of

the Defendant, a photo of the Defendant was then

placed in a photo pack with five other individuals. At

the time the photo pack was put together, the photo of

the Defendant was an old photo when he was heavier,

there was only one person of similar weight [to] the

Defendant, and the other four people in the photo pack

were much lighter than the Defendant in weight, so as

to create a substantial likelihood of irreparable

misidentification of the Defendant.

These are not witnesses with an independent

memory of the perpetrator’s identity. The undersigned

counsel’s understanding is that the wife of the victim

who was standing outside the door when the suspect

left, did not pick the Defendant out of the photo pack,

however, the victim Mr. Burnett did identify the

Defendant from the photo pack. In short, the objective

facts of this case demonstrate that the only thing that

the identification shows is that the investigators

utilized a highly suggestive procedure on the

witnesses.

Id. at 101-02.

Before opening statements on July 26th, the trial court addressed Forh’s

motion to suppress, stating in pertinent part:

This motion is not something that’s new. This

isn’t an issue that’s new. This is identification

testimony, including not only children, but Mr.

Burnett, the alleged victim, and --

. . . .

Well, we’re not going to hear the motion because

the motion was late. The motion to suppress is to be

filed before trial. This motion was not filed before trial.

This jury was sworn last Monday. The trial has

begun. I’m not going -- this motion is -- there’s nothing

new in this motion. The issues regarding the alleged

victim’s identification ha[ve] been known well in

advance. This motion could have been filed well in

advance of this -- of this hearing -- of the trial, and I’m

not going to hear it. It’s untimely.

Doc. 9-3 at 43-44. When defense counsel objected to the court’s ruling, the court

stated:

Okay. Your objection is overruled. You did have

notice. Although you did not have a date certain from

the Court, the Rules of Criminal Procedure say that a

motion to suppress will be filed before trial.

Your Motion to Suppress was filed after the trial

ha[d] begun. This jury was sworn last Monday.

There’s no possibility for us to hear this motion,

which is not a very -- a simple motion. It’s a motion

that will take time to hear. The jury is waiting.

I had all -- to the extent that you could petition

the Court to maybe file this motion late, I doubt that I

would have granted it, but last week I had some time.

You knew because I made counsel fully aware -- when

you were asking me questions about last week when

the courtroom will be available to come and maybe

figure out how to work the electronics in the courtroom

-- that we didn’t have court last week and that I’d be

available last week if anybody needed me, that I would

be out of town on Monday and Tuesday of this week,

that Wednesday of this week I was -- had a full day of

court, and then we had the trial today.

And you filed the motion -- faxed the motion to

the Court Monday night of this week, and I didn’t find

out about it until late Tuesday. No contacting of my

judicial assistant to see if there would be any way that

we could have time to hear this motion before -- before

the -- court today. You weren’t here early today to see

if there was any way we could potentially go over any

of these issues.

Your motion is late. It’s late pursuant to the

Rule of Criminal Procedure. I will not hear the motion.

Id. at 46-47.

At trial, the court instructed the jury in relevant part:

It is up to you to decide what evidence is reliable.

You should use your common sense in deciding which

is the best evidence, and which evidence should not be

relied upon in considering your verdict. You may find

some of the evidence not reliable, or less reliable.

Doc. 9-3 at 63. During the trial, Douglas Nelson Burnett (the victim) testified

about the circumstances surrounding the Sunday afternoon robbery on August

21, 2011. He stated in pertinent part:

As I got this uncomfortable feeling that the one

man hadn’t gone to the restroom and the other man

had gone from the urinal to the stall immediately

behind me, I decided to start leaving. I figured I

needed to get out of there, just to make sure and just

to be cautious.

And as I started to go towards the hand dryers

and the door, I felt a tug on my shorts. I was wearing

a pair of those men’s cargo shorts where it has the side

pocket on the side. And I had taken my wife’s

checkbook wallet and put it in on the right side in that

cargo short. It would barely fit. It was a pretty tight fit

to get it in there. And I felt a tug on -- on my shorts,

and I looked down and saw that someone was grabbing

ahold of that checkbook wallet, trying to get it out of

my pocket.[9]

. . . .

Well, he couldn’t get it out. When he initially

grabbed that and I felt him tugging, he was, like,

working to try and get it out.

And he said to me, “I’m going to take this.” And

when he did -- or as he was saying that, I reached my

hand down and grabbed his wrist. And as I grabbed

his wrist, he was -- he had a motion like he was just

9 At trial, Burnett confidently identified Forh as the robber and stated that

Forh “is considerably thinner today than he was then.” Docs. 9-3 at 80, 102-03; 9-4 at

1 (“I’m absolutely sure that that’s him.”), 7, 40.

going to pull it out of my pocket and walk out the door.

So[,] as he’s passing me and grabbing ahold of it,

pulling it out of my pocket, I reached down and

grabbed his wrist when he said[,] “I’m taking this,” and

I said[,] “No you’re not.” And I grabbed his wrist, and

it stopped him from going towards the door. He then

squared up face-to-face with me.

Id. at 79-81. According to Burnett, he has “better than 20/20 vision,” the

bathroom was “well lit” with fluorescent ceiling lights, and he and the robber

were within “[a] foot” of each other during a brief physical struggle. Id. at 81-

84, 96-97. He described what transpired when the robber pulled out a gun.

As [the robber] brought the gun up, the

immediate thing that came to my mind was to stop

resisting, to stop fighting with him at all. And as he

brought the gun up, he leveled it straight towards my

face. And with his arm extended, the gun was about

this range (indicating). His body would have been

farther. But the gun was, you know, right here at my

face.

When he was doing that with the gun in my face,

I was slowly moving my head side to side so that the

barrel -- I was trying to keep the barrel to where it

wasn’t aligned perfectly at me, that if he started to pull

the trigger I’d be off to the side one way or the other.

He said to me at that point in time –

. . . .

He said, “I’ll f--king kill you.” He said -- and it

was like he stuttered -- he said, “Your family, your kids

are right outside. I’ll f--king kill your kids. Think of

your family.”

And it registered to me very well because it

wasn’t like a -- everything had changed at that point

in time. It wasn’t like a fast pace[d] situation at that

point in time. It was very slow when I wasn’t resisting.

And he let it know -- let me know that he was in

control, obviously, at which time I had started to back

up from him. When he pulled the weapon and started

to talk, I had started to back up to him, and I sort of

put my head down a little bit just to show that I wasn’t

going to resist. I put my arms down.

And when I had thrown him to the side to go out

the door, I had grabbed -- as he was going to the side,

I had grabbed the checkbook wallet and I had it back

in my hand. So[,] at this point in time, when I was

going out the door, I had the checkbook wallet

So[,] when he pulled the gun and said those

things to me, I reached out to hand it to him, because

that’s what he wanted, so I reached out to hand it to

him, and we had a hand-to-hand exchange where I

gave it to him, and he took it. And I just started to back

up farther and farther away, hoping that then he

wouldn’t shoot me, or if he did, it wouldn’t be a very

good shot.

And he told me to stay there, and he turned

around and walked out the door. He didn’t open the

door all the way up. He sort of opened it and turned

sideways as he went out the door.

. . . .

But as I came out of the men’s room, I’m inside

the Food Court, I could look and see that the exterior

door going outside from the Food Court, it’s a glass

door with glass windows on each side, I could see that

door closing, and I could see him looking back directly

at me through the glass as he’s outside starting to run

to the north. And at that point in time[,] I started to

run after him.

Id. at 84-86, 89. He described the robber to law enforcement as a large forty-

year-old African-American man with darker skin, “sort of puffy cheeks,” and

“really big lips” who was “approximately 6 feet tall . . . 250 pounds” wearing a

red athletic-wicking Polo-type shirt. Id. at 79, 92, 99. He affirmed that the

robber’s face was burned in his memory. See id. at 103. He stated that he was

able to confidently identify the robber from a photographic lineup that

Detective Garns showed him on September 22, 2011 (within one month of the

August 21, 2011 robbery).10 See id. at 101. He stated:

This was the photo lineup that Detective Garns

showed me, and I looked at it. When I saw the picture,

I immediately knew who -- what I was looking at and

the seriousness of what I was looking at, and identified

him. I took a minute to think about his mannerisms

and his face that -- the images that I have from

remembering the incident of his face, and that’s

absolutely him, it was him, and so I circled it and

signed it, and then left it with Detective Garns.

Id. at 101-02. Burnett affirmed that it was difficult to identify the person in

the pixelated surveillance photograph that Detective Garns had emailed him

before the photographic lineup, but he noticed features similar to the robber.

See Doc. 9-4 at 38-39.

10 Detective Garns testified that he included Forh’s driver’s license photograph

in the photographic lineup. See Doc. 9-4 at 93, 167-68.

Next, Araan Elizabeth Burnett (the victim’s wife) testified that she saw

the robber exit the men’s bathroom. She stated in pertinent part:

And I remember my attention went to the door

immediately, so I was focused on the bathroom door.

And it looked to me like -- if I was to describe it, it

looked like somebody was struggling as almost as if

their shoe or something was stuck under the door. It

reminded [me] of, like -- like, you could pull it over

your foot[,] and you push it back and you try it again

and you push it back.

And all of a sudden there was this big slam and

it shut back. But I saw physically -- like, I saw my

husband, he had on a turquoise linen shirt. So[,] I

didn’t really see him. I saw the shirt. And it looked like

he was going backward.

And I just kind of froze. Like, I -- I realized at

that time there was something wrong, so my attention

was fully on the door, but didn’t have any idea what

was going on at that moment.

. . . .

It wasn’t -- like, I can’t exactly put a time frame

on it. It was all happening at the same time.

But shortly after I heard the big slam, and then

my attention is focused on the door, this very tall

African-American, like, is shimmying out of the door

and looks directly at me. And I don’t know exactly

what he said, but it was focused at me, and it was

either “thank you,” or a profanity, “. . . you.” And as he

was shimmying out of the door, he was shoving a gun

into his waistband, which was, like, tucking his shirt

into his pants.

And, at that point -- I mean, it was happening so

quickly. I didn’t realize that it had happened to my

husband. So[,] I’m literally frozen.

But I was staring right at him, so I -- you know,

I could measure him -- I knew exactly -- he was almost

the height of the door frame and the width, and he was

a bigger guy -- like, I saw everything.

And he immediately fled on foot out the door. He

kind of walked towards the door. And then I saw him,

you know, take off towards -- I guess you would

consider it the north. He went towards Adidas and the

Nike store.

My -- within seconds of him coming out of the

bathroom, my husband comes out, and I could see

immediately on his face, it’s like his eyes were flushing

to black. And he was kind of disoriented at the -- like

not disoriented that he didn’t know what he was doing,

but he’s, like, “Where did he go? Where did he go?” and

I’m, like, “Where did who go?” and he said, “The man

that just came out of the bathroom.” And I said, “he

went that way.” And I pointed, like, towards the door.

Doc. 9-4 at 67-69. According to Ms. Burnett, she was in a well-lit area and was

within “[t]wo arms’ lengths” of the robber when he exited the bathroom. Id. at

70. She testified that she “was looking right at him,” and recalled his “wider

jaw” and “extremely large” lips. Id. at 74-75. At trial, she identified Forh as the

robber and stated that “[h]e’s considerably thinner” than he was when he

exited the bathroom that day. Id. at 70-71, 77, 79-80. Additionally, Detective

Garns testified that Forh had “lost a considerable amount of weight” since

October 11, 2011, when the St. Johns County Sheriff’s Office took custody of

him. Docs. 9-4 at 95; 9-1 at 18, St. Johns County Sheriff’s Office, Booking

Information, dated October 11, 2011.

Next, M.E.Q. (Ms. Burnett’s daughter) testified about what she saw that

afternoon. She stated in pertinent part:

Well, two men followed [Doug Burnett, her

stepfather] in, a guy wearing a red shirt, an African-

American in jeans, and another man in a blue shirt

and jeans. And after that, maybe 20 seconds later, the

guy wearing the blue shirt and jeans walked out. And

then the door started rattling very violently.

. . . .

It was, like, going -- opening and shutting very

hard and violently and loud. And I saw my step dad’s

flip-flop and shirt in the door.

. . . .

I wasn’t quite sure. I thought at first the door,

like, was stuck or something or something was wrong

with it. And then it started to concern me when he kept

trying to get it open.

. . . .

Mom -- my mom walked out of the bathroom

with my two younger sisters, and I showed -- I pointed

to my mom to show her the door, and it started

rattling. And there was maybe one more time that it

opened very wide and shut very hard. And after that,

a very tall African-American wearing a red shirt and

jeans walked out and in his waistband was a gun.

Doc. 9-4 at 113-14. She identified Forh in the courtroom as the man who

walked out of the bathroom with a gun in his waistband. See id. at 115.

According to M.E.Q., she looked at Forh’s face as he exited the bathroom within

five to six feet of her. See id. She remembered his “[v]ery large lips” and “wide

face” and “almost cone shaped a little bit” head. Id. at 116-17. She stated that

he was skinnier and had longer hair at trial. See id. at 117.

Upon review, the trial court did not err when it decided not to hold a

pretrial hearing on the untimely motion to suppress. See Powell v. State, 717

So.2d 1050, 1052 (Fla. 5th DCA 1998) (“Such [suppression] motions should be

heard and disposed of in advance of the trial date for many reasons, if at all

possible. It avoids the delay and confusion at trial mentioned by Savioe.[11] It

also enables each party to plan the orderly presentation of their case[s],

knowing what evidence or testimony will or will not be admissible.”); see also

Fla. R. Crim. P. 3.190. Notably, in his Rule 3.850 motion, Forh asserted that

counsel was ineffective because he failed to timely file the motion to suppress.

See Docs. 9-9 at 89-91; 9-10 at 31-35. In denying the Rule 3.850 motion as to

the ineffectiveness claim, the postconviction court stated in pertinent part:

In ground three, Defendant claims that trial

counsel was ineffective for failing to timely file a

motion to suppress eyewitness identification

testimony. Defendant asserts that the testimony from

the victim, Detective Garns, as well as the testimony

of the victim’s fiancé and her children, demonstrated

that there were problems with the identification of

Defendant as the robber in the instant case.

Specifically, Defendant contends the procedure

11 Savioe v. State, 422 So.2d 308 (Fla. 1982).

whereby the victim identified Defendant was

impermissibly suggestive. The record reflects that

counsel attempted to file a motion to suppress raising

the same concerns as Defendant argues in his motion

just prior to trial. (Motion to Suppress Eyewitness

Identification Testimony, Jul. 23, 2012, attached

hereto as Appendix H.) Defendant contends that due

to the untimeliness of the motion, Judge Berger

declined to address the motion on its merits prior to

trial. (Tr. of Proceedings, Jul. 26, 2012, Vol. I, pp. 6-8,

attached hereto as Appendix I.) However, the record

reflects that Judge Berger in fact did address the

motion on its merits subsequent to hearing the

eyewitness testimony at trial:

THE COURT: The alleged victim in this

case, Mr. Burnett, has identified Mr. Forh

as the person who robbed him. It will be

up to the jury to weigh the credibility

based on all the other evidence, in this

case. And I believe, having looked at the

evidence, it’s sufficient evidence to have

the matter go to the jury. And for that

reason, I’m going to deny the motion to –

for judgment of acquittal.

I will revisit now, just for the record, the –

y’all can have a seat – revisit, for the

record, the Motion to Suppress, the

eyewitness identification testimony and

request for a hearing in advance of trial

that I had said I was not going to hear

today.

Having reviewed the motion, having had

the opportunity to sit and listen to the

evidence and hear all the evidence in court

today, to view the photo lineup of the six

individuals, I’m viewing it, the photo

lineup to me does not appear to be unduly

suggestive in any way. The individuals in

the photo lineup all resemble one another,

although some are of varying weight. They

are all very similar in nature. Specifically,

I mean four of them very, very similar of

the six in nature.

I’ve listened to the testimony of all the

witnesses. And on the merits of the

motion, having heard everything, I would

deny it at this time. So[,] I just wanted to

go ahead and put that on the record as

well.

(Tr. of Proceedings, Jul. 26, 2012, Vol. II, pp. 264-265,

attached hereto as Appendix J.)[12] Thus, the record

clearly reflects that had counsel filed a timely motion

to suppress, Judge Berger would have denied that

motion after hearing the proffered testimony of the

witnesses and reviewing the lineup. Accordingly,

Defendant cannot establish any prejudice from

counsel’s failure to present the motion in a more timely

fashion. Because the Court finds that Defendant has

failed to establish prejudice, the performance

component of this claim will not be addressed.

Kennedy, 547 So.2d, at 914.[13] Consequently, ground

three will be denied.

Doc. 9-11 at 2-3 (emphasis deleted). The Fifth DCA affirmed the postconviction

court’s denial of Forh’s Rule 3.850 motion per curiam without issuing a written

opinion. See Doc. 9-16 at 74.

On this record, even assuming that the photographic lineup was

suggestive, the identification of Forh by the victim was reliable under the

12 Doc. 9-5 at 1-2.

13 Kennedy v. State, 547 So.2d 912 (Fla. 1989).

factors identified in Neil v. Biggers. Additionally, Ms. Burnett’s and M.E.Q.’s

in-court identifications of Forh were reliable. The trial court did not err when

it ultimately denied Forh’s motion to suppress, and no due process violation

occurred. Thus, Forh is not entitled to federal habeas relief on ground one.

B. Ground Two

As ground two, Forh asserts that counsel (Raymond Hill, Florida Bar

#032709) was ineffective because he failed to investigate and develop an alibi

defense based on cell phone records that placed Forh in Jacksonville at the

time of the St. Augustine robbery. See Petition at 6. He raised the

ineffectiveness claim in his Rule 3.850 motion. See Doc. 9-9 at 84-87. After an

evidentiary hearing, the postconviction court ultimately denied the Rule 3.850

motion with respect to the claim, stating in pertinent part:

THIS CAUSE is before this Court on

Defendant’s Motion for Post-Conviction Relief, filed

pursuant to Rule 3.850, Fla. R. Crim. P. The Court has

considered the Defendant’s motion, the State’s

response, the Defendant’s reply to the State’s

response, testimony received during the March 16,

2018 evidentiary hearing, and the written closing

arguments of counsel. Being fully advised in the

premises, the Court finds as follows:

The Defendant was found guilty by jury verdict

of robbery with a firearm and was subsequently

sentenced to serve 30 years in prison. The Defendant

filed the instant motion for post-conviction relief

asserting five claims of ineffective assistance of

counsel. On October 26, 2017, this Court entered an

interim Order on the Defendant’s motion summarily

denying portions of ground one, as well as all of

grounds two, three, and four. The Court scheduled an

evidentiary hearing on that portion of ground one

wherein the Defendant asserted his trial counsel was

ineffective by not pursuing an alibi defense by utilizing

cell phone records obtained by police showing at the

time of the robbery the Defendant’s phone was not

near the robbery scene. The Court conducted the

evidentiary hearing on March 16, 2018. The

Defendant was represented by court-appointed

counsel at the evidentiary hearing. At the evidentiary

hearing, the Court received testimony from St. Johns

County Sheriff’s Deputy Sgt. David Garns, the

Defendant, and the Defendant’s trial counsel attorney

Raymond Hill.

On August 21, 2011, Douglas Burnett, a St.

Augustine attorney, was robbed at gunpoint in the

bathroom at the St. Augustine Outlet Mall. (Tr. 42-

50)[.] Mr. Burnett identified the Defendant as the

armed robber prior to trial in a photospread (Tr. 63-

65) as well as in court (Tr. 44). While Mr. Burnett was

using the bathroom and was subsequently robbed, his

wife and step-daughter were outside the bathroom

waiting on him. Mr. Burnett’s wife Araan observed the

Defendant walk out of the bathroom while sticking a

gun in his waistband. (Tr. 137-138) Mrs. Burnett

likewise identified the Defendant as the person she

saw exiting the bathroom putting a gun in his

waistband. (Tr. 139-140, 146) Mr. Burnett’s step-

daughter also identified the Defendant as the person

exiting the bathroom with a gun in his waistband. (Tr.

182-184) The Defendant was subsequently arrested by

police for the armed robbery for which he was tried and

convicted.

During the course of the investigation, the police

obtained the records for the cell phone number

identified as belonging to the Defendant. Those

records showed that based on cell tower activity the

cell phone was in Jacksonville around the time of the

robbery. The Defendant’s trial counsel chose to not

utilize the phone records during the trial. The

Defendant contends his lawyer provided ineffective

assistance of counsel by not using the cell phone

records to establish an alibi for him.

The Defendant was represented at trial by

attorney Raymond Hill, who the Defendant had

privately retained.[14] Mr. Hill testified at the

evidentiary hearing that he was aware of the existence

of the phone records before trial, having received them

in discovery, and discussed them with the

Defendant.[15] Mr. Hill testified he met with the

Defendant at least six times prior to trial and asked

him if he had any recollection of his whereabouts at

the time of the crime, or if anyone could establish his

whereabouts, in order to attempt to corroborate the

cell phone records.[16] Mr. Hill further testified he also

met with the Defendant’s wife at least two times before

trial to see if she could provide any information on the

Defendant’s whereabouts at the time of the

robbery.[17] Mr. Hill testified that neither the

Defendant nor his wife ever provided any information

on the Defendant’s whereabouts at the time of the

crime. Mr. Hill further testified he made the strategic

decision to not introduce the phone records at trial

because those records merely show where the phone

was located at that time — not where the Defendant

was located, and neither the Defendant nor his wife

could give him any indication where the Defendant

was at that time.[18] Mr. Hill further testified that he

discussed with the Defendant his decision not to use

14 See Doc. 9-13 at 14-15.

15 See Doc. 9-13 at 15, 23.

16 See Doc. 9-13 at 16-17.

17 See Doc. 9-13 at 17-18.

18 See Doc. 9-13 at 20.

the cell phone records and the Defendant responded[,]

“you’re the lawyer, I’ll follow your lead.”[19] The

Defendant did not testify at trial.

The Defendant acknowledged during the

evidentiary hearing that he and his lawyer discussed

the phone records before trial.[20] The Defendant

testified at the evidentiary hearing that on the day of

the robbery he now recalls he had gone to the

Jacksonville Landing shopping center to purchase

some frames and then to some garage sales in

Jacksonville.[21] However, the Defendant

acknowledged he never gave this information to his

lawyer.[22] The Court finds the Defendant’s

testimony at the evidentiary hearing was not

credible. It defies logic that now, for the first time at

the evidentiary hearing, the Defendant recalled being

in Jacksonville and what he was doing on the specific

date of the robbery, nearly seven years earlier.

Further, it makes no sense that the Defendant now

knows of his whereabouts at the time of the robbery;

however, when his lawyer asked him at least six times

before trial if he could account for his whereabouts, the

Defendant never mentioned it to his lawyer.

Mr. Hill further testified at the evidentiary

hearing that had the Defendant told him before trial

that he had been at the Jacksonville Landing on the

date of the robbery, he would have immediately gone

to the Jacksonville Landing in an attempt to secure

video surveillance footage that may have shown the

Defendant.[23]

19 See Docs. 9-13 at 21; 9-14 at 7-8.

20 See Doc. 9-12 at 10.

21 See Doc. 9-12 at 16, 20-21.

22 See Doc. 9-12 at 16-17.

23 See Doc. 9-13 at 20-21.

Sgt. Garns testified at the evidentiary hearing

that on October 3, 2011, he went to the Defendant’s

residence and spoke with him.[24] The Defendant told

him at that time that he had been to the St. Augustine

Outlet Mall approximately one month prior, but could

provide no further detail as to the specific date.[25] The

robbery in this case took place approximately one and

one-half months prior to the date the Defendant spoke

with [] Sgt. Garns. (Tr. 163-164)

. . . .

Considering that neither the Defendant nor his

wife were able to account for his whereabouts at the

time of the offense, the Defendant didn’t testify at

trial, and that cell phone records do not establish

where a person is located, only where the cell phone is

located, the Court cannot conclude that Mr. Hill’s

decision to not use the phone records was

unreasonable. Thus, the Defendant has not

established his trial counsel acted outside the wide

range of reasonably competent performance under

prevailing professional standards by not utilizing the

cell phone records. See also Reed v[.] State, 875 So.2d

415, 429-30 (Fla. 2004) (ineffective assistance claim

based on failure to present alibi defense properly

rejected when counsel investigated and made a

strategic decision to not present defense)[.]

Moreover, assuming arguendo that trial

counsel’s failure to utilize the phone records at trial

fell below the standard of reasonably competent

representation, this Court cannot conclude there is a

reasonable probability that the result of the trial

would have been different had the cell phone records

24 See Doc. 9-12 at 2-3.

25 See Doc. 9-12 at 3.

been introduced at trial. As discussed above, cell

phone records only reveal where a phone is located, not

a person. Here, the Defendant was not only positively

identified by the victim in a pretrial photospread, but

also in court. The Defendant was also positively

identified by the victim’s wife and step-daughter. Even

had the defense introduced the phone records without

more at trial, the State easily could have argued to the

jury that someone else had possession of the phone at

that time, or the Defendant had left the phone in

Jacksonville. There is no reasonable probability the

outcome of the case would have been different had the

cell phone records been used at trial.

Doc. 9-16 at 2-9 (emphasis added and footnote omitted). The Fifth DCA

affirmed the postconviction court’s denial of relief. See id. at 74.

To the extent that the appellate court decided the claim on the merits,26

the Court will address the claim in accordance with the deferential standard

for federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of the claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Thus, Forh is not entitled to relief on

the basis of this ineffectiveness claim.

26 In looking through the appellate court’s per curiam affirmance to the circuit

court’s “relevant rationale,” the Court presumes that the appellate court “adopted the

same reasoning.” Wilson, 138 S. Ct. at 1192.

Nevertheless, even if the appellate court’s adjudication of the claim is

not entitled to deference, Forh’s ineffectiveness claim is still without merit. The

record supports the postconviction court’s conclusion. After the evidentiary

hearing in state court concerning this issue, the court resolved the credibility

issue in favor of believing counsel’s testimony over that of Forh. The Court

notes that credibility determinations are questions of fact. See Martin v. Kemp,

760 F.2d 1244, 1247 (1985) (per curiam) (finding that factual issues include

basic, primary, or historical facts, such as external events and credibility

determinations). In federal habeas review, a state court’s factual

determination is presumed correct unless the petitioner can rebut the

presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Here,

Forh has not rebutted the trial court’s credibility finding by clear and

convincing evidence. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). As

such, the state court’s factual findings which are presumed correct refute the

claim regarding counsel’s alleged deficiencies in investigating and putting

forward an alibi defense based on the cell phone records. Given the trial court’s

credibility determination, Forh’s claim is wholly unsupported, and therefore

fails.

There is a strong presumption in favor of competence when evaluating

the performance prong of the Strickland ineffectiveness inquiry. See Anderson

v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 881, 904 (11th Cir. 2014). The inquiry is

“whether, in light of all the circumstances, the identified acts or omissions were

outside the wide range of professionally competent assistance.” Strickland, 466

U.S. at 690. “[H]indsight is discounted by pegging adequacy to ‘counsel’s

perspective at the time’ . . . and by giving a ‘heavy measure of deference to

counsel’s judgments.’” Rompilla v. Beard, 545 U.S. 374, 381 (2005). Thus, Forh

must establish that no competent attorney would have taken the action that

his counsel chose.

Notably, the test for ineffectiveness is neither whether counsel could

have done more nor whether the best criminal defense attorneys might have

done more; in retrospect, one may always identify shortcomings. Waters v.

Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995) (stating that “perfection is not the

standard of effective assistance”) (quotations omitted). Instead, the test is

whether what counsel did was within the wide range of reasonable professional

assistance. Ward, 592 F.3d at 1164 (quotations and citation omitted); Dingle v.

Sec’y for Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007) (“The question is

whether some reasonable lawyer at the trial could have acted as defense

counsel acted in the trial at issue and not what ‘most good lawyers’ would have

done.”) (citation omitted).

On this record, Forh has failed to carry his burden of showing that his

counsel’s representation fell outside that range of reasonable professional

assistance. Even assuming arguendo deficient performance by defense counsel,

Forh has not shown any resulting prejudice. He has not shown that a

reasonable probability exists that the outcome of the case would have been

different if counsel had acted as Forh claims he should have. His

ineffectiveness claim is without merit since he has shown neither deficient

performance nor resulting prejudice. Accordingly, Forh is not entitled to

federal habeas relief on his ineffectiveness claim in ground two.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Forh seeks issuance of a certificate of appealability, the undersigned

opines that a certificate of appealability is not warranted. The Court should

issue a certificate of appealability only if the petitioner makes “a substantial

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

this substantial showing, Forh “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, 537 U.S.

at 335-36 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Where a district court has rejected a petitioner’s constitutional claims on

the merits, the petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.

See Slack, 529 U.S. at 484. However, when the district court has rejected a

claim on procedural grounds, the petitioner must show that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record as a whole, the Court will deny a certificate of

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

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

WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Petition

and dismissing this case with prejudice.

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

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

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

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

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

4. The Clerk of the Court is directed to close this case and terminate

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 3rd day of

January, 2022.

MARCIA MORALES HOWARD

United States District Judge

Jax-1 1/8

C:

Isaac Sieh Forh, FDOC #345908

Counsel of Record

39