Opinion

Brooks v. Secretary Florida Department Of Corrections (Duval County)

Court
District Court, M.D. Florida
Filed
Apr 28, 2022
Cited by
0 cases
Authority
More cited than 19.9%

“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”

How later courts described this case

  • “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”
  • “Faretta does not require a trial judge to permit ‘hybrid’ representation . . .”
  • stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CLIFTON MCNEIL BROOKS,

Petitioner,

v. Case No. 3:19-cv-787-MMH-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Clifton Brooks, an inmate of the Florida penal system,

initiated this action on June 18, 2019, by filing a Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1).1 In the Petition, Brooks

challenges a 2013 state court (Duval County, Florida) judgment of conviction

for sexual battery and lewd or lascivious molestation. He raises six grounds for

relief. See Petition at 7-25. Respondents submitted a memorandum in

opposition to the Petition. See Response (Doc. 7). They also submitted exhibits.

See Docs. 7-1 through 7-33. Brooks filed a brief in reply, see Reply (Doc. 8), and

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

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

system.

a supplemental brief in reply, see Supplemental Reply (Doc. 12). This action is

ripe for review.

II. Relevant Procedural History

On July 30, 2012, the State of Florida charged Brooks with sexual

battery (count one), lewd or lascivious molestation (count two), and lewd or

lascivious exhibition (count three). Doc. 7-15 at 28. On February 8, 2013, the

State filed an amended information changing the date of the offenses alleged

in counts one and three. Id. at 128. On February 13, 2013, at the conclusion of

a trial, the jury found Brooks guilty of counts one and two. Id. at 139-40. The

trial court granted a judgment of acquittal as to count three. Id. at 141. On

February 27, 2013, the trial court adjudicated Brooks to be a sexual predator

and sentenced him to concurrent terms of life imprisonment for counts one and

two. Doc. 7-16 at 19-24.

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

and an amended brief, arguing the trial court erred by failing to conduct a

sufficient Faretta2 inquiry (ground one), failing to order a competency

evaluation (ground two), admitting collateral acts of a sexual nature (ground

three), and failing to conduct a Faretta inquiry before imposing the sentences

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

2

(ground four). Docs. 7-24 at 2-57; 7-25 at 2-55. The State filed an answer brief,

Doc. 7-26 at 2-25, and Brooks filed a reply brief, Doc. 7-27 at 2-13.

The First DCA reversed and remanded Brooks’s convictions and

sentences on December 4, 2015. Doc. 7-28 at 2-6. The First DCA remanded for

the trial court to determine Brooks’s competency at the time of his trial. Id. at

4. If the trial court could not make a nunc pro tunc competency determination,

the First DCA ordered the court to hold a new trial. Id. at 4-5. The First DCA

also remanded for the trial court to conduct a new sentencing hearing because

the court had not renewed the offer of counsel before sentencing. Id. The First

DCA issued the mandate on December 30, 2015. Doc. 7-29 at 3. On remand,

the trial court, nunc pro tunc, determined Brooks to be competent. Docs. 7-4 at

3; 7-13 at 19. Brooks was adjudicated to be a sexual predator and sentenced to

concurrent terms of life imprisonment on counts one and two. Doc. 7-5 at 3-9.

On April 15, 2016, Brooks filed a pro se motion for postconviction relief

under Florida Rule of Criminal Procedure 3.850. Doc. 7-10 at 2-73. In his Rule

3.850 Motion, Brooks alleged the State filed a deficient information (ground

one), the trial court erred when it denied Brooks’s right to a speedy trial upon

demand (ground two), counsel was ineffective for failing to adopt Brooks’s

demand for a speedy trial (ground three), the trial court erred when it failed to

3

grant Brooks’s motion to dismiss the information (ground four), counsel was

ineffective for providing the State with evidence of Brooks’s alibi (ground five),

and the State knowingly used false evidence as a basis for the charges in the

information (ground six). Id. at 7-8, 14-28. On December 19, 2017, the

postconviction court summarily denied relief on all grounds. Doc. 7-11 at 2-10.

The First DCA per curiam affirmed the denial of relief without a written

opinion on April 17, 2019, Doc. 7-32 at 2, and issued the mandate on May 15,

2019, Doc. 7-33 at 2.

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

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

4

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 [Brooks’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)).

5

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

6

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),

7

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.’”[3] 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

3 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).

8

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.

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). 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. Exhaustion/Procedural Default

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

2254 habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly

present[]” every issue raised in his federal petition to the state’s highest court,

either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346,

351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state

prisoners must give the state courts one full opportunity to resolve any

9

constitutional issues by invoking one complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘“opportunity to pass upon and correct” alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor, 404

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

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

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

10

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[4] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[5] supra, at 84–85, 97 S.

Ct. 2497. A state court’s invocation of a procedural

rule to deny a prisoner’s claims precludes federal

review of the claims if, among other requisites, the

state procedural rule is a nonfederal ground adequate

to support the judgment and the rule is firmly

established and consistently followed. See, e.g.,

Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–

1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558

U.S. --, --, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417

(2009). The doctrine barring procedurally defaulted

claims from being heard is not without exceptions. A

prisoner may obtain federal review of a defaulted

claim by showing cause for the default and prejudice

from a violation of federal law. See Coleman, 501 U.S.,

at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may

be excused under certain circumstances. Notwithstanding that a claim has

been procedurally defaulted, a federal court may still consider the claim if a

state habeas petitioner can show either (1) cause for and actual prejudice from

the default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,

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

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

11

the procedural default “must result from some

objective factor external to the defense that prevented

[him] from raising the claim and which cannot be

fairly attributable to his own conduct.” McCoy v.

Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992)

(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[6]

Under the prejudice prong, [a petitioner] must show

that “the errors at trial actually and substantially

disadvantaged his defense so that he was denied

fundamental fairness.” Id. at 1261 (quoting Carrier,

477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice,

there remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

6 Murray v. Carrier, 477 U.S. 478 (1986).

12

innocence. Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that

it is more likely than not that no reasonable juror would have convicted him’

of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

C. 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

13

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

14

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

15

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

Brooks alleges the trial court did not have “subject matter jurisdiction”

to convict and sentence him because the State filed a defective information.

Petition at 7. Pursuant to Florida Rule of Criminal Procedure 3.140(g), “[a]n

information charging the commission of a felony shall be signed by the state

attorney, or a designated assistant state attorney. . . .” Brooks claims Assistant

State Attorney Alan Mizrahi did not have the authority to sign the information

on behalf of State Attorney Angela Corey. Id. at 7-8. According to Brooks, a

State Attorney may not contract with an Assistant State Attorney for a period

of employment exceeding three years as set forth in Florida Attorney General

Opinion 079-69. Id. at 8; Reply at 5. Mizrahi renewed his contract with Corey

on January 8, 2009; however, Mizrahi allegedly did not renew his contract after

the expiration of three years. Petition at 8. Brooks contends Mizrahi then did

not have the authority to sign the initial information on July 27, 2012, as a

16

designated assistant state attorney, and the information did not invoke the

trial court’s jurisdiction. Id. at 8-9.

Respondents argue that Brooks’s claim is not cognizable in a federal

petition for writ of habeas corpus because it concerns solely state law. Response

at 20. In his Supplemental Reply, Brooks asserts the defective information

violated his due process rights, and he may raise the claim that the trial court

lacked subject matter jurisdiction at any time. Supplemental Reply at 2-5.

Brooks raised a similar claim in state court as ground one of his Rule

3.850 Motion. Doc. 7-10 at 7, 14-16. In denying relief, the circuit court

explained:

In Ground one of his Motion, Defendant claims

that the information filed in his case is invalid because

the Assistant State Attorney Alan Mizrahi did not

renew his contract with the State Attorney Angela

Corey in a timely manner. Defendant argues that an

Assistant State Attorney must renew their contract

every three years and, if they don’t, any information

they file prior to renewal is invalid and fails to invoke

the Court’s jurisdiction. In support of his claim,

Defendant cites State of Florida Attorney General

Opinion 079-69. Defendant’s claim is meritless

because he has completely misinterpreted the

Attorney General Opinion he cites. Attorney General

Opinion 079-69 addresses an inquiry about whether a

State Attorney can legally contract with an Assistant

State Attorney for a definite period longer than three

years. 1979 Op. Att’y Gen. Fla. 169 (1979). The opinion

answers this inquiry in the negative and it appears

17

Defendant has interpreted this to mean that Assistant

State Attorney must renew a contract every three

years in order to continue performing their duties. Id.

Defendant’s interpretation, however, is incorrect. The

opinion clarifies that Assistant State Attorneys serve

at the will of the State Attorney and cannot enter into

employment contracts that bind the State Attorney to

retain Assistant State Attorney’s for a defined period

of time. Id. Thus, Defendant’s claim is without merit.

Accordingly, Defendant’s claim in Ground One is

denied.

Doc. 7-11 at 4-5. The First DCA per curiam affirmed the denial of relief without

a written opinion. Doc. 7-32 at 2.

To the extent that the First DCA denied this claim on the merits,7 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 this claim was not contrary to clearly established federal law, did not involve

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

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

7 Throughout this Order, 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 1194.

18

presented in the state court proceedings. Therefore, Brooks is not entitled to

relief on the basis of this claim.

Even assuming the appellate court’s adjudication of the claim is not

entitled to deference, Brooks’s claim is without merit. Insofar as Brooks argues

the information did not conform with Florida Rule of Criminal Procedure

3.140(g) based on the Assistant State Attorney’s expired contract, his claim

presents a state law issue that is not cognizable on federal habeas review. See

Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“[I]t is not the province of a federal

habeas court to reexamine state-court determinations on state-law

questions.”). Rather, the Court mut determine on federal habeas review

whether Brooks’s custody violates the United States Constitution or the laws

or treaties of the United States. See 28 U.S.C. § 2254(a); Coleman v. Thompson,

501 U.S. 722, 730 (1991). Brooks does not present such a claim in his Petition.

A defective information claim is cognizable on federal habeas review only

when the charging document is so deficient that it deprives the convicting court

of jurisdiction. DeBenedictis v. Wainwright, 674 F.2d 841, 842 (11th Cir. 1982).

A charging document is legally sufficient “if it: (1) presents the essential

elements of the charged offense, (2) notifies the accused of the charges to be

defended against, and (3) enables the accused to rely upon a judgment under

19

the indictment as a bar against double jeopardy for any subsequent

prosecution for the same offense.” United States v. Jordan, 582 F.3d 1239, 1245

(11th Cir. 2009) (citation and quotations omitted).

Here, the information met the minimum requirements for invoking the

jurisdiction of the trial court. The information included Brooks’s name and

described the times and locations of the offenses. Doc. 7-15 at 28. It stated the

statutory basis for each count and set forth the elements of sexual battery, lewd

or lascivious molestation, and lewd or lascivious exhibition. Id. The trial court

also had subject matter jurisdiction because the information charged Brooks

with sexual battery, lewd or lascivious molestation, and lewd or lascivious

exhibition in violation of Florida Statutes sections 794.011(2)(a), 800.04(5)(b),

and 800.04(7)(c). Id. The information was not so defective that it deprived the

trial court of jurisdiction. See DeBenedictis 674 F.2d at 842. Accordingly,

Brooks is not entitled to federal habeas relief on ground one.

B. Grounds Two and Three

In ground two, Brooks claims the trial court denied his right to a speedy

trial upon demand. Petition at 11. Brooks alleges he attempted to file a demand

for speedy trial on September 21, 2012; however, the trial court would not

accept the filing. Id. According to Brooks, defense counsel, Todd Niemczyk, had

20

withdrawn from the case at the time Brooks filed his demand for speedy trial.

Id. at 12. Therefore, the trial court should have accepted his pro se filing

because he did not have counsel. Id. Brooks contends that by not accepting his

demand, the trial court violated his right to due process pursuant to Article

One, Section Nine of the Florida Constitution and right to a speedy trial

pursuant to the Sixth and Fourteenth Amendments of the United States

Constitution. Id. In ground three, Brooks alleges successor counsel, Darcy

Galnor, was ineffective because she did not adopt his demand for speedy trial.

Id. at 13. According to Brooks, if Galnor had adopted his demand, she could

have filed a notice of expiration of time for a speedy trial and the charges would

have been dismissed. Id. at 14.

Brooks raised similar claims in state court as grounds two and three of

his Rule 3.850 Motion. Doc. 7-10 at 7, 16-19. In denying relief, the circuit court

explained:

In Grounds Two and Three, Defendant alleges

that his right to demand a speedy trial was violated.

In Ground Two, Defendant argues that the Court

erred in not accepting his “Motion for Speedy Trial

Upon Demand,” which Defendant states was filed pro

se on September 21, 2012. Defendant claims that his

motion was not accepted by the Court because

Defendant was represented by counsel at the time.

Defendant alleges that on September 21, 2012 he was

unrepresented and the Court should have accepted his

21

motion as a pro se filing. Alternatively, in Ground

Three, Defendant argues that if he was in fact

represented by counsel on September 21, 2012, then

counsel was ineffective for failing to adopt Defendant’s

pro se “Motion for Speedy Trial Upon Demand.” In

both grounds, Defendant claims he was prejudiced

because it prevented him from filing a notice of

expiration and moving for the charges to be dismissed

as a violation of Rule 3.191.

A claim of trial court error cannot be raised in a

rule 3.850 motion. Seibert v. State, 64 So. 3d 67, 77

(Fla. 2010). Therefore, Defendant’s claim that the

Court erred in denying Defendant’s pro se demand for

speedy trial is procedurally barred from being raised

in a rule 3.850 motion. A defendant, however, may use

the underlying facts from a claim of trial court error in

order to make a claim of ineffective assistance of

counsel, which can be raised in a rule 3.850 motion. Id.

A claim of ineffective assistance of counsel based on

counsel failing to assert a defendant’s speedy trial

rights requires the defendant to show that counsel

made an unreasonable decision not to pursue those

rights and defendant was prejudiced by that decision.

Remak v. State, 142 So. 3d 3, 6 (Fla. 2d DCA 2014). To

sufficiently plead prejudice, a defendant must allege

specific facts that demonstrate that the State could not

have brought the movant to trial within the recapture

window or the quality of the State’s evidence would

have been diminished if it were forced to trial. Id.

Defendant’s claim that counsel was ineffective

for failing to adopt Defendant’s demand for speedy

trial is meritless. Defendant is operating under the

belief that had his demand for speedy trial been

adopted by counsel, the time period would have

expired and Defendant would have been able to file a

motion for discharge. Defendant glosses over the fact

22

that when a defendant asserts his speedy trial rights

he is also informing the court that he is ready to

proceed to trial, which the record strongly suggests

was not the case. On September 21, 2012, the day

Defendant alleges was his first attempt to file a

demand for speedy trial, counsel had not yet deposed

Shontrell Harris, a key witness for the charged

offenses, and [R.H.], a William’s[8] Rule witness.

Counsel’s motions to continue demonstrate on the

record that counsel was not ready to proceed to trial

and it is not unreasonable for counsel to not demand a

speedy trial when she has not deposed important

witnesses. Therefore, Defendant’s claims in Grounds

Two and Three are denied.

Doc. 7-11 at 5-6 (record citations omitted). The First DCA per curiam affirmed

the denial of relief without a written opinion. Doc. 7-32 at 2.

1. Ground Two

To the extent that the First DCA denied ground two on the merits, 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 this claim was not contrary to clearly established federal law, did not involve

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

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

8 Williams v. State, 110 So. 2d 654 (Fla. 1959).

23

presented in the state court proceedings. Therefore, Brooks is not entitled to

relief on the basis of this claim.

Assuming the appellate court’s adjudication of the claim is not entitled

to deference, Brooks’s claim is without merit. The Court initially notes that at

the time Brooks filed his demand for a speedy trial, the Public Defender’s Office

represented him. The trial court appointed the Public Defender’s Office to

represent Brooks on July 13, 2012. Doc. 7-15 at 27. The Public Defender’s

Office did not withdraw from representing Brooks until January 7, 2013. Doc.

7-13 at 28, 39. Both Niemczyk and Galnor were assistant public defenders.

Docs. 7-15 at 9-10; 7-17 at 189, 198. The trial court was not obliged to accept

Brooks’s pro se demand for a speedy trial on September 21, 2012, when the

Public Defender’s Office still represented him. See McKaskle v. Wiggins, 465

U.S. 168, 183 (1984) (“Faretta does not require a trial judge to permit ‘hybrid’

representation . . .”).

Nevertheless, the trial court did not violate Brooks’s constitutional right

to a speedy trial. “In all criminal prosecutions, the accused shall enjoy the right

to a speedy . . . trial. . . .” U.S. Const. amend. VI. The Supreme Court has set

forth factors for evaluating whether a speedy trial violation occurred in

contravention of the Sixth Amendment. See Barker v. Wingo, 407 U.S. 514,

24

530-31 (1972). These factors include the length of the delay, the reason for the

delay, the defendant’s assertion of his right, and prejudice to the defendant. Id.

Here, the Jacksonville Sheriff’s Office arrested Brooks on July 12, 2012.

Doc. 7-15 at 20. The State filed the initial information on July 30, 2012. Id. at

28. Brooks proceeded to trial on February 13, 2013, and a jury found Brooks

guilty of counts one and two on that same day. Id. at 139-40. The State charged

Brooks with serious offenses, one of which constituted a capital felony, that

occurred over a span of years. Id. at 28; see § 794.011(2)(a), Fla. Stat. (“A person

18 years of age or older who commits sexual battery upon, or in an attempt to

commit sexual battery injures the sexual organs of, a person less than 12 years

of age commits a capital felony. . .”). Moreover, the case involved the use of

WilliamsRule evidence as well as testimony from multiple underaged

witnesses. Doc. 7-15 at 30, 73-74. A delay of approximately seven months

would not be unreasonable under these circumstances. See Barker, 407 U.S.

at 530-31.

Moreover, there were significant reasons for the delay. The trial court

granted defense counsel’s motion for a continuance on December 6, 2012, so an

expert could evaluate Brooks’s competency and counsel could depose an

eyewitness and a Williams Rule witness. Docs. 7-15 at 92-93; 7-17 at 183. The

25

witnesses had not appeared for their scheduled depositions. Doc. 7-15 at 93. At

that time, the trial court even set a tentative date of February 11, 2013, for

jury selection in order to preserve Brooks’s right to proceed with a trial as soon

as possible. Doc. 7-17 at 184.

The delay did not greatly prejudice Brooks. If Brooks had proceeded to

trial before December 6, 2012, he would have done so without the depositions

of key witnesses. Doc. 7-15 at 92-93. Further, Brooks has “failed to identify any

potential witnesses or items of evidence that were lost as a result of the delay.”

Castillo v. Florida, 630 F. App'x 1001, 1007 (11th Cir. 2015). As such, his

constitutional right to a speedy trial was not violated. Accordingly, Brooks is

not entitled to federal habeas relief on ground two.

2. Ground Three

To the extent that the First DCA denied ground three on the merits, 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 this claim was not contrary to clearly established federal law, did not involve

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

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

26

presented in the state court proceedings. Therefore, Brooks is not entitled to

relief on the basis of this claim.

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

not entitled to deference, Brooks’s claim is without merit. Counsel was not

deficient for failing to adopt Brooks’s demand for a speedy trial. The record

shows as early as November 27, 2012, counsel had not deposed certain

witnesses because they failed to appear at scheduled depositions. Doc. 7-17 at

166. Counsel maintained that she wanted to complete all depositions in the

case because if a jury found Brooks guilty, he would receive a mandatory term

of life imprisonment. Id. at 168-69. On December 6, 2012, counsel filed a motion

for a continuance citing additional concerns about Brooks’s competency and

the failure of an eyewitness and a Williams Rule witness to appear at

depositions scheduled for October 31, 2012. Docs. 7-15 at 92-93; 7-17 at 177-

85.

Based on the record, counsel made a considered, reasonable decision to

not assert Brooks’s right to a speedy trial. Given the nature of the charges,

which largely relied on witness testimony, and the severity of the potential

penalties, it was reasonable for counsel to prioritize completing depositions and

not to adopt Brooks’s demand for a speedy trial. Counsel was not deficient for

27

failing to demand a speedy trial when the defense would not have been

prepared for a trial. Therefore, relief on ground three is due to be denied.

C. Ground Four

Brooks claims the trial court erred when it denied his motion to dismiss

the information. Petition at 16. He alleges the State did not obtain testimony

under oath from a material witness as required by Florida Rule of Criminal

Procedure 3.140(g) because the prosecutor did not provide him with the

testimony during arraignment. Id. at 15-16. Respondents argue that Brooks’s

claim is not cognizable in a federal petition for writ of habeas corpus because

it concerns solely state law. Response at 24. In his Reply, Brooks asserts the

trial court violated his Fourteenth Amendment right to due process. Reply at

8.

Brooks raised a similar claim in state court as ground four of his Rule

3.850 Motion. Doc. 7-10 at 8, 19-21. In denying relief, the circuit court

explained:

In Ground Four, Defendant alleges that the

Court erred when it denied Defendant’s Motion to

Dismiss based on the State’s alleged failure to obtain

sworn statements from material witnesses prior to the

filing of the Information and amended Information in

Defendant’s case. Defendant’s contention that the

State failed to obtain sworn statements from the

material witnesses is based on the fact that he was not

28

given transcripts of the sworn statements at the time

of his arraignment. The record, however, demonstrate

that the Informations filed in Defendant’s case

includes a sworn statement by the Assistant State

Attorney that the facts set forth in the information are

based on sworn testimony from the material witnesses

for the offenses. Just because Defendant was not

handed transcripts of the sworn statements does not

mean that they did not occur. See Solorio v. State, 194

So. 3d 465, 468-69 (Fla. 3d DCA 2016). Additionally,

claims of trial court error are not cognizable in a

collateral postconviction motion. Johnson v. State, 985

So. 2d 1215, 1216 (Fla 1st DCA 2008). Therefore,

Defendant’s claim in Ground Four is denied.

Doc. 7-11 at 6-7 (record citations omitted). The First DCA per curiam affirmed

the denial of relief without a written opinion. Doc. 7-32 at 2.

To the extent that the First DCA denied ground four on the merits, 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 this claim was not contrary to clearly established federal law, did not involve

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

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

presented in the state court proceedings. Therefore, Brooks is not entitled to

relief on the basis of this claim.

29

Assuming the appellate court’s adjudication of the claim is not entitled

to deference, Brooks’s claim does not have merit. His allegation that the trial

court should have dismissed the information for failing to comply with Florida

Rule of Criminal Procedure 3.190(g) involves a question of state law. Therefore,

it is not cognizable on federal habeas review. See Estelle, 502 U.S. at 67 (1991).

A defective information claim is cognizable on federal habeas review only

when “the indictment or information is so deficient that the convicting court is

deprived of jurisdiction.” DeBenedictis, 674 F.2d at 842. As determined in

ground one of this Order, the information was not so defective that it deprived

the trial court of jurisdiction. Accordingly, Brooks is not entitled to habeas

relief on ground four.

D. Ground Five

Brooks claims counsel, Darcy Galnor, was ineffective when she provided

the State with evidence of Brooks’s alibi. Petition at 19. Brooks notified counsel

that he had been on active-duty deployment between January 3, 2003, to

January 2, 2004, the period during which count one occurred as alleged in the

initial information. Id. On October 17, 2012, he provided counsel with

documentation that he had been on active-duty deployment during that time

period. Id. at 19-20. On October 31, 2012, during the deposition of the victim,

30

J.M., counsel prompted J.M. to change her age at the time of the incident from

seven to eight. Id. at 20. The State subsequently filed an amended information

alleging count one occurred between January 3, 2003, to January 2, 2005. Id.

According to Brooks, if counsel had not disclosed evidence of his active-duty

deployment to the State, the jury would not have convicted him. Id.

Brooks raised a substantially similar claim in state court as ground five

of his Rule 3.850 Motion. Doc. 7-10 at 8, 21-22. In denying relief, the circuit

court explained:

In Ground Five, Defendant alleges that counsel

was ineffective for undermining Defendant’s alibi

defense. Defendant specifically alleges he told counsel

that he was in the military and stationed outside the

United States of America during the time the offense

was alleged to have occurred. Defendant claims that

counsel revealed this information to the State and

coerced the victim to change her age when the offense

was alleged to occur from seven to eight. Defendant

claims this information was revealed during an

October 31, 2012, deposition of J.M. Defendant alleges

that these actions prompted the State to amend the

Information to enlarge the window of time that Count

One was alleged to have occurred, going from a period

of one year (January 2003 to January 2004) to a period

of two years (January 2003 to January 2005).

Defendant argues he was prejudiced by the State

amending the Information because it subverted his

efforts to file a Motion to Dismiss the charges.

Defendant’s claim that counsel revealed

information or coerced J.M. to change her age is

31

without merit. Defendant alleges he told counsel on

October 2, 2012, that he was out of the country during

the alleged incident and that this prompted her to tell

the State to change J.M.’s age at the time of the offense

from seven years old to eight years old. A plain reading

of the October 31, 2012 deposition transcript

demonstrates that counsel did not tell J.M. any

specific age and that J.M. volunteered that she was

eight years old when Defendant first touched her

inappropriately. Later J.M. confirms that the first

touching happened when she was eight years old.

Further, the record is clear, that the State was aware

that the offense had occurred when J.M. was eight

years old based on a Jacksonville Sherriff’s Office

Supplemental Report prepared on July 20, 2012. Thus,

the State was already aware that the allegations were

based on actions taken when J.M. was eight years old

and any discussion by counsel of J.M.’s age at the

deposition had zero impact on any discrepancy in

J.M.’s testimony about her age. Therefore, Defendant’s

claim in Ground Five is denied.

Doc. 7-11 at 7-8 (record citations omitted). The First DCA per curiam affirmed

the denial of relief without a written opinion. Doc. 7-32 at 2.

To the extent that the First DCA denied ground five on the merits, 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 this claim was not contrary to clearly established federal law, did not involve

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

32

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

presented in the state court proceedings. Therefore, Brooks is not entitled to

relief on the basis of this claim.

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

not entitled to deference, Brooks’s ineffectiveness claim is without merit

because the record supports the postconviction court’s conclusion. During the

deposition, J.M. stated she was 8 years old when Brooks committed the offense

detailed in count one. Doc. 7-23 at 43. Counsel did not compel J.M. to change

her age during the deposition. As such, Brooks cannot demonstrate counsel

was ineffective, and relief on ground five is due to be denied.

E. Ground Six

Brooks alleges his conviction violates the Fifth Amendment prohibition

against double jeopardy. Petition at 22. He claims Shantell Harris,9 the victim

of a battery resulting in Brooks’s 2006 conviction, made false statements about

the incidents with the victim, J.M. as alleged in counts one and two of the

information. Id. at 22-25. The prosecutor then engaged in misconduct by using

Harris’s false statements as the basis for filing the information and failing to

9 Although the postconviction court referred to Harris as Shontrell

Harris, Doc. 7-11 at 6, 8-9, the Court will refer to her as Shantell Harris in

conformance with the trial transcript, Doc. 7-19 at 5, 86-87.

33

disclose that J.M.’s statements did not provide the basis for counts one and

two. Id. at 22, 25. According to Brooks, prosecutors coerced J.M. into changing

certain details of her statements, such as her age and clothing at the time of

the offenses, to corroborate Harris’s statements about counts one and two. Id.

at 23-24. Brooks contends the prosecutor’s use of false statements from the

victim of the 2006 offense to provide the basis for his 2013 conviction violates

double jeopardy. Id. at 22.

Respondents contend that Brooks failed to properly exhaust his double

jeopardy claim. Response at 26. According to Respondents, Brooks raised the

claim here as violating the Fifth Amendment prohibition against double

jeopardy, but he did not assert it as such in ground six of his Rule 3.850 Motion.

Id. Brooks counters that he exhausted the claim as evidenced by the

postconviction court’s order denying ground six of his Rule 3.850 Motion.

Supplemental Reply at 11.

The record reflects that in his Rule 3.850 Motion, Brooks asserted the

prosecutor engaged in misconduct “to . . . circumvent the double jeopardy

clause.” Doc. 7-10 at 8. He did not allege his convictions violated double

jeopardy. Id. Moreover, Brooks did not cite to the Fifth Amendment or any

federal law concerning double jeopardy. Id. at 8, 22-28, 39-41. The “exhaustion

34

doctrine requires a habeas applicant to do more than scatter some makeshift

needles in the haystack of the state court record.” McNair v. Campbell, 416

F.3d 1291, 303 (11th Cir. 2005) (citation and quotations omitted). Therefore, to

the extent Brooks raises a double jeopardy challenge, the Court finds he failed

to fairly present the claim to the state court, which deprived the state court of

a meaningful opportunity to review the claim. See Baldwin, 541 U.S. at 29.

Nevertheless, even if his double jeopardy claim was properly exhausted,

it does not have merit. The Double Jeopardy Clause prohibits successive

prosecutions and multiple punishments for the same offense. United States v.

Dixon, 509 U.S. 688, 696 (1993). Here, the offenses do not even arise from the

same transaction or involve the same act. The 2006 battery occurred when

Brooks “pistol-whipped” Harris in Brooks’s car during a dispute over a “passion

mark” on his neck. Petition at 24-25; Doc. 7-23 at 94-97. The sexual battery

and molestation occurred between 2003 and 2005 when Brooks committed sex

acts on his niece, J.M. Docs. 7-15 at 28, 128; 7-19 at 77-84, 88-91. Brooks’s

convictions did not violate double jeopardy. Therefore, he is not entitled to

federal habeas relief.

35

To the extent Brooks raises a Giglio10 violation in the instant Petition,

the Court finds he raised a substantially similar claim in state court as ground

six of his Rule 3.850 Motion. Doc. 7-10 at 9, 22-28. In denying relief, the circuit

court explained:

In Ground Six, Defendant alleges that the State

knowingly used false testimony as a basis for the

charges filed in the Information in violation of Giglio.

Defendant claims the State falsified the Information

in his case by stating that the factual basis was

provided by the victim. Defendant argues that

Shontrell, not the victim, provided the factual basis for

the offenses. Defendant also argues the State knew

Shontrell Harris lied when she stated that she

witnessed the incident because the victim testified

that the only other person, besides Defendant, at the

home when the offense was alleged to have occurred

was her brother.

“To establish a Giglio violation, it must be shown

that (1) the testimony given was false; (2) the

prosecutor knew the testimony was false; (3) the

statement was material.[”] Ferrell v. State, 29 So. 3d

959, 976 (Fla. 2010). A defendant cannot establish a

Giglio violation by merely demonstrating that the

State put on witnesses whose testimony conflicted

with another person’s version of events, especially if

no evidence is alleged to prove one version of events is

false and the other true. Id. at 978.

Defendant’s claim that the State knowingly used

false testimony in the Information is meritless.

Defendant’s first allegation that the State falsified the

10 Giglio v. United States, 405 U.S. 150 (1972).

36

Information is clearly refuted by the record. Nowhere

in any of the informations filed in Defendant’s case is

there a specific mention of who supplied the factual

basis for the offenses. Thus, the State could not have

falsified the source of the factual basis as Shontrell

Harris because it did not specify that any particular

person was the source. Additionally, the record shows

that the victim spoke to the police about the alleged

offenses prior to the filing of the initial Information,

further discrediting Defendant’s claims that the State

did not use the victim’s testimony as a basis for the

offenses.

Defendant’s claim that the State presented false

testimony via Shontrell Harris is also meritless.

Defendant relies on the fact that Shontrell Harris’

testimony about who was in the home during one of

the alleged incidences differed from the victim’s as

proof that the testimony is false. Differing testimony

cannot be relied on as proof of false testimony and even

if it could be, the detail Defendant relies on is not

material to whether the offense occurred. Additionally

considering the traumatic nature of the alleged

offense, the age of the victim at the time of the offense,

and the amount of time that passed before the victim

testified at Defendant’s trial, it is not surprising that

the victim misremembered some minor details. To the

extent that Defendant suggests he was prejudiced by

the differing accounts of the events by the victim and

Shontrell Harris, Defendant had an opportunity to

highlight these differences to the jury and any

prejudice resulting from not doing that was caused by

Defendant’s self-representation. Therefore, Defendants

claims in Ground Six are denied.

Doc. 7-11 at 8-9 (record citations omitted). The First DCA per curiam affirmed

the denial of relief without a written opinion. Doc. 7-32 at 2.

37

To the extent that the First DCA denied ground six on the merits, 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 this claim was not contrary to clearly established federal law, did not involve

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

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

presented in the state court proceedings. Therefore, Brooks is not entitled to

relief on the basis of this claim.

To demonstrate a Giglio violation, Brooks “must prove: (1) the prosecutor

knowingly used perjured testimony or failed to correct what he subsequently

learned was false testimony; and (2) such use was material, i.e., that there is

any reasonable likelihood that the false testimony could have affected the

judgment.” Guzman v. Sec'y, Dep't of Corr., 663 F.3d 1336, 1348 (11th Cir.

2011) (quotation marks and ellipsis omitted). Mere inconsistency in testimony

is insufficient to establish a Giglio claim. United States v. Stein, 846 F.3d 1135,

1149 (11th Cir. 2017).

Here, the prosecutor never represented that J.M.’s statements provided

the basis for counts one and two of the information. The arrest and booking

38

report indicates law enforcement received statements from both J.M. and

Harris. Doc. 7-9 at 4-5. The prosecutor disclosed the arrest and booking report

to the defense. Doc. 7-15 at 30. Further, Harris never stated to law enforcement

or testified during trial that she witnessed the sexual battery as alleged in

count one. Docs. 7-9 at 5; 7-19 at 88-91. The prosecutor instead relied on her

testimony to prove the lewd and lascivious molestation as alleged in count two.

Docs. 7-19 at 88-91; 7-20 at 8-11.

Additionally, Brooks has failed to demonstrate either that J.M.’s and

Harris’s statements were false or that the prosecutor knew they were false. At

trial, Harris testified consistently with her deposition testimony about the

molestation alleged in count two. Docs. 7-19 at 88-115; 7-23 at 93-136. J.M.’s

trial testimony also was consistent with her deposition testimony about the

sexual battery alleged in count one. Docs. 7-19 at 75-85; 7-23 at 39-70. Any

mere inconsistencies in the statements of Harris and J.M. does not render their

statements false or provide proof of prosecutorial misconduct. See Stein, 846

F.3d at 1149. Brooks has not provided any additional facts to support his claim;

therefore, he has failed to establish a Giglio violation. For all of the foregoing

reasons, relief on the claim in ground six is due to be denied.

39

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Brooks 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, Brooks “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims

debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting

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

‘adequate to deserve encouragement to proceed further,’” Miller-El v. Cockrell,

537 U.S. 322, 335-36 (2003) (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

40

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 Brooks 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.

41

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

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 28th day of

April, 2022.

MARCIA MORALES HOWARD

United States District Judge

Jax-9

C: Clifton McNeil Brooks #135510

Counsel of record

42

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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