“[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