Post v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

RUSSELL LLOYD POST,

Petitioner,

v. Case No. 5:19-cv-382-VMC-PRL

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________/

ORDER

Russell Lloyd Post, a Florida prisoner, timely filed a pro se petition for writ of

habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) Having considered the petition, the

response in opposition (Doc. 10), and Post’s reply (Doc. 14) and supplement to the

reply (Doc. 15), the Court denies the petition.

Background

A state court jury convicted Post of six counts of sexual battery on a child twelve

years of age or older but less than 18 years of age by a person in familial or custodial

authority. (Doc. 11-3, Ex. A, pp. 263-68.) The trial court sentenced him to an overall

term of 60 years in prison. (Id., pp. 283-97.) The state appellate court per curiam

affirmed the convictions and sentences. (Doc. 11-4, Ex. I.) The state appellate court

also denied Post’s petition alleging ineffective assistance of trial counsel, filed under

Florida Rule of Appellate Procedure 9.141. (Doc. 11-4, Ex. O; Doc. 11-5, Ex. T.)

Post filed a motion and amended motions for postconviction relief under

Florida Rule of Criminal Procedure 3.850. (Doc. 11-5, Exs. U, V, W.) The state court

denied relief, and the state appellate court per curiam affirmed. (Id., Exs. AA, FF.)

Standards Of Review

The AEDPA

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this

proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief

can only be granted if a petitioner is in custody “in violation of the Constitution or

laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides

that federal habeas relief cannot be granted on a claim adjudicated on the merits in

state court unless the state court’s adjudication:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding.

A decision is “contrary to” clearly established federal law “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.” Williams v. Taylor, 529 U.S. 362, 413 (2000).

A decision involves an “unreasonable application” of clearly established federal law

“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.

The AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that

state-court convictions are given effect to the extent possible under law.” Bell v. Cone,

535 U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s

application of clearly established federal law is objectively unreasonable, and . . . an

unreasonable application is different from an incorrect one.” Id. at 694; see also

Harrington v. Richter, 562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas

corpus from a federal court, a state prisoner must show that the state court’s ruling on

the claim being presented in federal court was so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.”).

The state appellate court denied Post’s petition alleging ineffective assistance of

appellate counsel and affirmed the denial of postconviction relief without discussion.

These decisions warrant deference under § 2254(d)(1) because “the summary nature

of a state court’s decision does not lessen the deference that it is due.” Wright v. Moore,

278 F.3d 1245, 1254 (11th Cir. 2002). When a state appellate court issues a silent

affirmance, “the federal court should ‘look through’ the unexplained decision to the

last related state-court decision that does provide a relevant rationale” and “presume

that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S.Ct.

1188, 1192 (2018).

Ineffective Assistance Of Counsel

Post alleges ineffective assistance of trial counsel and appellate counsel.1

Ineffective assistance of counsel claims are analyzed under the test established in

Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient

performance by counsel and resulting prejudice. Id. at 687. Deficient performance is

established if, “in light of all the circumstances, the identified acts or omissions [of

counsel] were outside the wide range of professionally competent assistance.” Id. at

690. However, “counsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Id.

Post must show that counsel’s alleged error prejudiced the defense because “[a]n

error by counsel, even if professionally unreasonable, does not warrant setting aside

the judgment of a criminal proceeding if the error had no effect on the judgment.” Id.

at 691. To demonstrate prejudice, Post must show “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.

The Strickland standard applies to claims of ineffective assistance of appellate

counsel. See Smith v. Robbins, 528 U.S. 259, 285 (2000); Heath v. Jones, 941 F.2d 1126,

1130 (11th Cir. 1991). To establish a claim of ineffective assistance of appellate

1 Respondent agrees that Post exhausted his claims in state court, as he must prior to seeking

relief under § 2254. See 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842

(1999) (“[T]he state prisoner must give the state courts an opportunity to act on his claims

before he presents those claims to a federal court in a habeas petition.”).

counsel, Post must show that appellate counsel’s performance was objectively

unreasonable, and that there is a reasonable probability that, but for this performance,

he would have prevailed on his appeal. Robbins, 528 U.S. at 285-86.

Obtaining relief on a claim of ineffective assistance of counsel is difficult on

federal habeas review because “[t]he standards created by Strickland and § 2254(d) are

both highly deferential, and when the two apply in tandem, review is doubly so.”

Richter, 562 U.S. at 105 (internal quotation marks and citations omitted). “The

question [on federal habeas review of an ineffective assistance claim] ‘is not whether a

federal court believes the state court’s determination’ under the Strickland standard

‘was incorrect but whether that determination was unreasonable—a substantially

higher threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v.

Landrigan, 550 U.S. 465, 473 (2007)).

Discussion

Ground One

Post argues that trial counsel was ineffective for failing to timely file a motion

to disqualify the trial judge. Post contends that if trial counsel had done so, the trial

judge would have been required to grant the motion and there is a reasonable

probability that the outcome of the proceeding would have been different.

Post’s claim involves statements made by the trial judge at a January 3, 2012,

status conference at which Post sought a continuance of trial. The prosecutor stated

that Post had rejected a 30-year plea offer. (Doc. 11-1, Ex. A, p. 80.) Post’s bond was

set at $60,000, and he had bonded out of custody. (Id., pp. 79, 82.) The trial judge

asked about the bond:

THE COURT: What was it initially?

[PROSECUTOR]: It was much higher, Judge. Because the of the change

in the charges, the jail - - and it was the - - it was my fault, but the jail - -

they didn’t correspond the bail amount to what was filed. So it reduced

his bond. He then bonded out. The State has not had a reason yet to file

a motion for the Court to reconsider the bond amount.

THE COURT: Well, I’ve just been noticing today just generically there’s

a lot of people charged with serious crimes walking around without bond

or out on bond. I’m just noticing. It’s just a comment on my interest in

that.

(Id., pp. 82-83.)

The trial judge asked about the case, including Post’s rejection of the plea offer,

and granted in part Post’s request for a continuance of trial:

THE COURT: How old is your client?

[COUNSEL]: 36, sir.

[PROSECUTOR]: Just to put one more thing on the record, Judge, the

State has provided [counsel] with two DVD interviews of the victim; one

is an hour and a half long, the other is I believe similar in length. As far

as what the victim is going to say in that, that was disclosed when the

State initially disclosed discovery. So he should have a pretty fair idea as

far as what the victim is going to testify to.

[COUNSEL]: Counsel does.

THE COURT: I’m just reading the probable cause affidavit. Okay. So

his exposure right now is a minimum[2] of 120 years, I guess?

[PROSECUTOR]: Yes, sir.

2 It appears that the trial judge simply misspoke and that the maximum sentence Post faced

upon conviction, not the minimum sentence, was 120 years.

THE COURT: And you’re what? 30?

THE DEFENDANT: 36.

THE COURT: And your offer is 30, and you’re rejecting that?

THE DEFENDANT: Yes, sir.

[PROSECUTOR]: He has, Judge.

THE COURT: Okay. All right. And your alleged victim is around?

[PROSECUTOR]: Yes, sir. She’s (inaudible). Her parents, like I said

before, are here in the audience, and they will make her available for

deposition anytime this month. If the Court is inclined to continue this

case to February or March, the State would just simply ask the deposition

date of February 23 to change because the victim is not available on that

date.

[COUNSEL]: Judge, we’ve always accommodated the State, as they’ve

accommodated us.

THE COURT: How long is it going to take to try this?

[PROSECUTOR]: Judge, it’s a one day trial as far as the State is

concerned, and at this point, we have not received any reciprocal

discovery from [counsel].

[COUNSEL]: Probably a day. Well, he represents a day. I would assume

no less than a half day and probably, just to be safe, a day. So a two day

trial, Judge.

THE COURT: Does the Defendant have any priors?

[COUNSEL]: No, Your Honor.

THE COURT: So he would be entitled to a [pre-sentence investigation]?

[PROSECUTOR]: Yes, he would, Your Honor.

THE COURT: All right. Has speedy trial been waived, I guess?

[COUNSEL]: Yes, sir.

THE COURT: Okay. Then let’s do it this way here. Let’s get a little

focused. All right. The motion i[s] granted. It’s set for the March 12

docket. You’re first. No other status conferences because there’s no more.

I’m not accepting any. You’re going to trial. Don’t bring anything to me.

It’s going. Let’s save everybody some time and angst here. It’s going to

trial.

You’re looking at 120 years if convicted as charged, an excellent

sentence, consecutive. So cross out the status conference. We’re done

with that. March 12, 2012, number one case. So that means March 12.

That’s all.

(Id., pp. 84-86.)

The accuracy of the transcribed statement “an excellent sentence” was debated.

The transcript of the postconviction evidentiary hearing, at which a recording of the

status conference was played, states that the trial court said “the maximum sentence,”

not “an excellent sentence.” (Doc. 11-5, Ex. Z, p. 81.)

Post contends, however, that the trial judge’s remarks as set out in the transcript

above show the judge was biased against him. Post contends that the comments reveal

that the trial judge thought his bond was low, and was predisposed to rule against him

when resolving his pre-trial motions. Post contends that the trial judge expressed

approval of the 30-year offer, and therefore his eventual sentence of 60 years amounted

to a vindictive sentence imposed for rejecting the 30-year offer. Post also argues that

the alleged “excellent sentence” remark showed the trial judge’s bias against him and

pre-determined intention to sentence him to a lengthy term.

Post asserts that after the hearing, he asked counsel about moving to disqualify

the trial judge, but that counsel was not certain of what the judge said. Post states that

counsel obtained an audio recording of the hearing but still was not sure what was

said. Counsel then obtained a transcript prepared based on the audio recording, and

the transcript contained the “excellent sentence” comment. At that point, counsel filed

a motion to disqualify the judge under Florida Rule of Judicial Administration 2.330.

(Doc. 11-1, Ex. A, pp. 56-75.) However, the motion was rejected as untimely. (Id., pp.

96-102.) Post alleges that the motion was legally sufficient because it adequately

alleged an objective fear of judicial bias. Therefore, Post claims, if the motion to

disqualify had been timely filed, it would have been granted.

The state court denied Post’s ineffective assistance claim after an evidentiary

hearing. The state court summarized the evidentiary hearing testimony, as well as the

case history:

Testimony at the evidentiary hearing established the following

background. The Defendant was originally charged with four counts of

sexual battery on a child over 12 but under 18 by a person with familial

or custodial authority, each first degree felonies. The State initially

offered the Defendant a plea of 30 years in the Department of

Corrections. At a January 3, 2012 status conference, the Defendant

formally rejected the plea offer. During that status conference, Judge

Lambert made a number of comments the Defendant considered to be

prejudicial, and the Defendant asked his trial counsel . . . if there was a

way to get rid of the judge. [Counsel] stated he would file a motion to

recuse and then requested a tape recording of the in court status

conference, known colloquially as the “blue man.” [Counsel] received

the “blue man” approximately 4 days later. The Defendant reviewed the

“blue man” with [counsel] and it appeared Judge Lambert made the

comment “120 years, excellent sentence, consecutive” when discussing

what the Defendant faced if convicted at trial. However, [counsel] and

the Defendant could not agree as to whether Judge Lambert actually

made this statement. [Counsel] then requested a transcript from a

certified court reporter. The transcripts received by the Defendant

contained the language “120 years, excellent sentence, consecutive,” and

[counsel] thereafter filed a motion to recuse on February 9, 2012.

On February 22, 2012, Judge Lambert denied the motion as legally

insufficient due to untimeliness. In addition, Judge Lambert expressed

concern as to the accuracy of the transcript. . . .

The Defendant filed a second motion to recuse Judge Lambert on

February 29, 2012. In that motion, the Defendant alleged that, because

Judge Lambert appeared to be passing on the legal sufficiency of the facts

in the first order denying the motion to recuse, the Defendant believed

Judge Lambert has taken an adversarial position in the matter. Judge

Lamber denied this motion as legally insufficient. . . .

(Doc. 11-5, Ex. AA, pp. 3-4) (state court’s record citations and footnote omitted). The

postconviction court addressed Post’s claim:

The Florida Supreme Court held in Thompson v. State, 990 So.2d 482, 490

(Fla. 2008), that the failure to timely file a legally sufficient motion to

disqualify a judge qualifies as deficient performance under Strickland. In

order to show Strickland prejudice in such a context, a defendant must

show “the result of the proceeding has been rendered unreliable” and the

court’s confidence in the outcome of a proceeding “has been undermined

by counsel’s deficiency.” Id. at 490.

. . .

The Defendant argues that because the first motion to recuse was legally

sufficient, Judge Lambert would have been required to recuse himself

from the case. The Defendant asserts that Thompson holds that simply

showing Judge Lambert should not or would not have presided over the

Defendant’s sentencing is enough to establish prejudice. This Court

disagrees. The Defendant must show “the result of the proceeding has

been rendered unreliable,” and that confidence in the outcome of a

proceeding “has been undermined by counsel’s deficiency.” Thompson,

990 So.2d at 490.

. . .

In contrast to Thompson, Judge Lambert did not sentence the Defendant

to the allegedly threatened 120 years, but rather sentenced him to a total

of 60 years. According to his scoresheet, the Defendant’s sentence points

totaled 802.8 points, making the lowest permissible sentence 48.425

years. Additionally, because the Defendant scored more than 363 points,

a life sentence could have been imposed. Not only was the Defendant not

sentenced to a life sentence that was within this Court’s discretion to

impose, the Defendant received only half of the allegedly threatened

sentence.

It is important to note that this Court does not suggest the Defendant’s

claim fails solely because he has failed to show that the actual outcome

would have been different. Rather, this Court’s confidence in the

outcome is unaffected. The Defendant’s guilt was determined by a jury

of his peers. . . . Judge Lambert did not follow through with the allegedly

threatened sentence as was the case in Thompson. In short, contrary to the

defendant in Thompson, the Defendant has not shown sufficient evidence

that Judge Lambert had a preconceived and fixed notion of what the

Defendant’s sentence would be if convicted. This Court finds the

Defendant was not actually prejudiced, as is required by Strickland, and

is therefore not entitled to relief. See Thompson, 990 So.2d at 489.

(Id., pp. 2-3, 5-6) (state court’s record citation omitted). The postconviction court also

addressed the underlying motion to disqualify:

Some discussion on the merits of the motion to disqualify is also

warranted. There is no dispute that the first motion to disqualify was

untimely filed. Therefore, in order to establish Strickland deficiency in the

instant case, the only question is whether the first motion to disqualify

was legally sufficient.

. . .

In order for a motion to disqualify to be legally sufficient, “[a]

determination must be made as to whether the facts alleged would place

a reasonably prudent person in fear of not receiving a fair and impartial

trial.” Livingston v. State, 441 So.2d 1083, 1087 (Fla. 1983); see also

Thompson, 990 So.2d at 490. Judicial comments evincing a determination

to rule a particular way prior to hearing the evidence or argument is a

sufficient ground for disqualification. Benson v. Tharpe, 685 So.2d 1363,

1364 (Fla. 2d DCA 1996); Gonzalez v. Goldstein, 633 So.2d 1183, 1184

(Fla. 4th DCA 1994). However, “[t]he subjective fear of a party seeking

the disqualification is not sufficient.”

The United States Supreme Court has held “expressions of impatience,

dissatisfaction, annoyance, and even anger” do not establish bias or

partiality. Liteky v. United States, 510 U.S. 540, 556 (1994) (holding “[a]

judge’s ordinary efforts at courtroom administration—even a stern and

short-tempered judge’s ordinary efforts at courtroom administration—

remain immune.”). Similarly, the Florida Supreme Court has held that a

judge’s comments referring to a defendant’s motion as “bogus,” a

“sham,” and “nothing but abject whining” did not rise to a level that

required recusal. Ragsdale v. State, 720, So.2d 203, 207 (Fla. 1998). This

Court also notes that defendants are not constitutionally entitled to plea

bargains. Weatherford v. Bursey, 429 U.S. 545, 561 (1977); Noble v. State,

787 So.2d 808, 809 (Fla. 2001). It is within a court’s discretion to refuse

to accept a jointly recommended plea. Santobello v. New York, 404 U.S.

257 (1971). . . .

Unlike a motion to recuse, Strickland is a “mixed question of law and

fact.” See Strickland, 466 U.S. at 698. Although this Court must view trial

counsel’s actions without the benefit of hindsight, such a perspective is

not within a factual vacuum. The alleged “excellent sentence” language

is the sine qua non of the Defendant’s claim for post-conviction relief.

Therefore, it would be impossible for this Court to adequately assess

whether the Defendant was actually prejudiced by the actions of trial

counsel without looking to the facts behind the motion to recuse.

With this background, the Court has reviewed the recording of the

January 3, 2012 status conference as well as the testimony at the

evidentiary hearing. When viewed in the appropriate context, Judge

Lambert’s comments regarding the continuance of the Defendant’s case

and its posture, though perhaps stern, did not rise to a level requiring

recusal. In addition, this Court finds that Defendant’s testimony at the

evidentiary hearing failed to show the Defendant had an objective fear that

Judge Lambert could not be fair and impartial. Thus, the Defendant’s

first motion to disqualify was legally insufficient with respect to these

allegations.

The alleged comment, “you’re looking at 120 years if convicted as

charged, an excellent sentence, consecutive,” warrants further

discussion. This Court listened (and re-listened) to the “blue man”

recording of the January 3, 2012 status conference at the evidentiary

hearing and did not hear “excellent sentence” as claimed by the

Defendant. In addition, the official transcript of the evidentiary hearing

transcribed the pertinent language as “you’re looking at 120 years if

convicted as charged, the maximum sentence, consecutive.” The alleged

claims made by the Defendant at the time of the motion to recuse are not

reflected in either this Court’s hearing of the “blue man” or in the official

transcripts of the evidentiary hearing where the statements were played

aloud. This Court cannot simply ignore this fact. After viewing the

Defendant’s motion and considering the evidence contained both in the

file and presented at the evidentiary hearing, this Court finds the

Defendant’s Motion to be without merit.

(Doc. 11-5, Ex. AA, pp. 7-9) (state court’s record citation omitted).

Post has not established that the state court unreasonably denied his ineffective

assistance of trial counsel claim. The gravamen of Post’s claim is that the untimely

motion to disqualify was legally sufficient because it demonstrated an objective fear of

judicial bias and, therefore, it would have been granted had it been timely filed. Post

contends that the state court unreasonably determined that he failed to show objective

fear and that to reach this conclusion, the postconviction court must have disregarded

his evidentiary hearing testimony.

Under Florida law, “[a] party may seek disqualification of the assigned trial

judge when ‘the party reasonably fears that he or she will not receive a fair trial or

hearing because of specifically described prejudice or bias of the judge.’” Dumas v.

State, 331 So.3d 307, 308 (Fla. 5th DCA 2021) (quoting Fla. R. Jud. Admin.

2.330(e)(1)). To be legally sufficient under Rule 2.330, “the motion to disqualify must

establish a ‘well-grounded fear on the part of the movant that he will not receive a fair

hearing,’ and such fear must be objective rather than subjective.” Dumas, 331 So.3d at

308 (quoting Lynch v. State, 2 So.3d 47, 78 (Fla. 2008)).

Whether the motion to disqualify was legally sufficient under Rule 2.330 was a

state law issue. Thus, the state court’s determination that the motion to disqualify was

legally insufficient as to Post’s arguments concerning the continuance and the posture

of the case rests upon an application of Florida law. This Court must defer to that

finding in reviewing the state court’s ruling on Post’s Strickland claim. See Pinkney v.

Secretary, DOC, 876 F.3d 1290, 1295 (11th Cir. 2017) (“[A]lthough ‘the issue of

ineffective assistance—even when based on the failure of counsel to raise a state law

claim—is one of constitutional dimension,’ [a federal court] ‘must defer to the state’s

construction of its own law’ when the validity of the claim that . . . counsel failed to

raise turns on state law.” (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir.

1984))).

Moreover, Post fails to show that the state court unreasonably determined that

he failed to show he was prejudiced by counsel’s performance. Post contends that the

state postconviction court’s decision was unreasonable because the court failed to

address the trial judge’s denial of his pre-trial motions in assessing prejudice. Post

claims that the judge’s comment of “Don’t bring anything to me” indicated an intent

to rule against him and that the postconviction court did not evaluate the alleged

correlation between the judge’s stated intention and the denial of his pre-trial motions.

Taken in context, however, the judge’s comment can be reasonably interpreted

as simply indicating that he expected the case to proceed to trial as scheduled after

granting a two-month continuance, and that he would not entertain further

continuance motions or accept a plea. As the state postconviction court noted, a

criminal defendant has no right to a plea bargain. See Lafler v. Cooper, 566 U.S. 156,

168 (2012) (“It is, of course, true that defendants have no right to be offered a plea . . .

nor a federal right that the judge accept it.”) (internal quotation marks and citation

omitted). Post fails to show that he was prejudiced by counsel’s performance due to

the denial of his pre-trial motions.

Post also contends that the trial court unreasonably found that he failed to show

prejudice in his sentencing proceeding. Post claims that the trial judge vindictively

sentenced him to 60 years in prison for rejecting the plea offer.3 Post asserts that the

trial judge’s remarks indicate that the judge approved of the 30-year plea offer.

However, the trial judge’s comments—inquiring about Post’s age, his sentencing

exposure, and confirming that he had rejected the 30-year offer—are reasonably

construed as an effort merely to ensure that Post understood the terms of the plea offer

and the sentence he faced upon conviction when he decided to reject the offer.

Additionally, a claim of vindictive sentencing after rejection of a plea offer

typically involves the court’s involvement in making the plea offer or otherwise

expressing an opinion about taking the plea, or the court’s connection between the

exercise of the right to go to trial with other consequences:

Judicial participation in plea negotiations followed by a harsher sentence

is one of the circumstances that, along with other factors, should be

considered in determining whether there is a “reasonable likelihood” that

the harsher sentence was imposed in retaliation for the defendant not

pleading guilty and instead exercising his or her right to proceed to trial.

See [Alabama v.] Smith, 490 U.S. [794,] 799, 109 S.Ct. 2201, [(1989)]. The

other facts that should be considered include but are not limited to: (1)

whether the trial judge initiated the plea discussions with the defendant

in violation of [State v.] Warner[, 762 So.2d 507 (Fla. 2000)]; (2) whether

3 Post did not clearly raise the matter of a “vindictive” sentence in his second amended Rule

3.850 motion. (Doc. 11-5, Ex. W, pp. 5-8.) Even if Post’s Rule 3.850 ineffective assistance

claim could be construed as implying that the sentence was vindictive and this aspect of his

argument was therefore properly presented to the state court, Post fails to show entitlement

to relief under Strickland.

the trial judge, through his or her comments on the record, appears to

have departed from his or her role as an impartial arbiter by either urging

the defendant to accept a plea, or by implying or stating that the sentence

imposed would hinge on future procedural choices, such as exercising

the right to trial; (3) the disparity between the plea offer and the ultimate

sentence imposed; and (4) the lack of any facts on the record that explain

the reason for the increased sentence other than that the defendant

exercised his or her right to a trial or hearing.

Wilson v. State, 845 So.2d 142, 156 (Fla. 2003) (footnotes omitted).

Post has not shown any such involvement by the trial judge in the plea-

bargaining process. Nor does Post establish that the judge imposed a longer sentence

than the one he rejected in response to Post’s exercising his right to go to trial. While

the prosecutor stated at the January 3, 2012, status conference that “the Defendant as

charged scores 550 points, which is just over 32 and a half years,” the charging

document was amended after that status conference to charge Post with two additional

offenses. (Doc. 11-1, Ex. A, pp. 3-6, 80.) Consequently, as the state postconviction

court noted, the minimum permissible sentence under the guidelines at the time of

sentencing was 48.425 years. (Doc. 11-3, Ex. A, pp. 300-02.) These changed

circumstances are relevant to the imposition of a 60-year sentence after Post rejected

the 30-year plea offer.

Finally, Post contends that the state court improperly looked beyond the

circumstances facing counsel at the time of the relevant conduct. See Strickland, 466

U.S. at 689 (“A fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the circumstances

of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.”). However, the postconviction court’s analysis considered

the lack of prejudice resulting from counsel’s decision not to file the motion to

disqualify before receiving the transcript. The prejudice analysis necessarily involves a

broader view because the court must determine whether, as a result of counsel’s

conduct, “there is a reasonable probability that . . . the result of the proceeding would

have been different.” Id. at 694 (emphasis added). Post does not demonstrate that the

state court unreasonably applied Strickland in considering the contents of the recording

as played and transcribed at the postconviction evidentiary hearing in ruling on Post’s

claim. The significant doubt as to whether the judge made the “excellent sentence”

comment attributed to him at the status conference, which was addressed during the

postconviction proceedings, was relevant to determining whether Post was prejudiced

by counsel’s performance.

Post does not show that the state court unreasonably applied Strickland or

unreasonably determined the facts in denying his claim. He is not entitled to relief on

Ground One.

Ground Two

Post argues that appellate counsel was ineffective for not challenging the trial

court’s denial of his motion to suppress his confession. Appellate counsel filed a brief

under Anders v. California, 386 U.S. 738 (1967). Appellate counsel identified the denial

of the motion to suppress as an issue that might support an appeal. See id. at 744 (stating

that when appellate counsel moves to withdraw on the basis that an appeal is wholly

frivolous, counsel must file a brief “referring to anything in the record that might

arguably support the appeal”).

In the suppression motion, Post argued that his confession was not knowing or

voluntary because in obtaining his waiver of rights under Miranda v. Arizona, 384 U.S.

436 (1966), police utilized trickery or cajoling, downplayed the importance of the

Miranda warnings, and delaying in providing the warnings. Post contends that he went

to the police station because he knew Deputy Hammond, who picked him up and

brought him to the station, which “created a false sense of safety.” (Doc. 1, p. 26.) Post

also claims that the interrogating officer, Detective Peavy, “lulled Post into a false

sense of security by asserting that he was not arrested . . . at the time.” (Id.) Post argues

that Detective Peavy “intentionally delayed administering Post’s Miranda warning to

help create this false sense of security.” (Id.) Post states that Detective Peavy spoke

with him for about 12 minutes about farming and stated he was not under arrest before

giving him Miranda warnings and then talked to him about farming for several more

minutes before questioning him about the allegations. (Id., pp. 26-27.)

After conducting an evidentiary hearing on Post’s motion to suppress, the state

trial court entered a written order denying the motion. The state court determined that

under the totality of the circumstances, the State met its burden of proving by a

preponderance of the evidence that Post’s waiver of his Miranda rights was knowing,

intelligent, and voluntary. The state court found that Post was almost 36 years old at

the time of questioning, that the questioning took place in the police station, and that

he was led into the room without any handcuffs or shackles. (Doc. 11-2, Ex. A, p.

191.) The state court noted that Detective Peavy engaged Post in casual conversation

about “peanuts, farming operations, and tractor pulls” for about 12 to 15 minutes and

asked Post for his name, date of birth, address, phone number and employer. (Id.) At

that time, the state court found, Detective Peavy read Post his Miranda rights, “though

Detective Peavy, as a prelude, did indicate to Defendant that ‘this doesn’t mean you

are under arrest.’” (Id.) The state court found that Post executed a written waiver of

his Miranda rights, after which “Detective Peavy and the Defendant spent another 1-2

minutes again talking about casual matters such as farming, etc.” (Id., pp. 191-92.) The

state court found that, “[a]t that point, Detective Peavy began to inquire of the

Defendant as to the substantive grounds for why Defendant was being questioned (i.e.,

the criminal activity) which shortly thereafter led to the Defendant making the

confession(s) which is/are the subject are this motion.” (Id., p. 192.)

The state court noted that before Detective Peavy obtained Post’s written

waiver, “nothing substantive pertaining to the charges at issue had been discussed

between the detective and the Defendant, i.e., no confession or inculpatory

statements.” (Id., p. 191.) The state court found that Detective Peavy “made no threats,

promises of leniency or statements calculated to delude the Defendant” and did not

“exert any type of undue influence or make any direct or implied promises of benefits

to the Defendant.” (Id., p. 192.) The state court further found that “the interrogation

was not lengthy nor was the tone of the interrogation confrontational, coercive, [or]

cajoling nor was any type of trickery utilized.” (Id.) Thus, the state court found that

Post’s statements and confessions were knowing, free, and voluntary. (Id.) The state

court’s finding was “based on the totality of the circumstances (including any

argument of ‘downplaying’ Miranda).” (Id.)

Post has not shown that the state appellate court unreasonably denied his

ineffective assistance of appellate counsel claim. In Florida, an appellate court

“review[s] a trial court’s ruling on a motion to suppress with a mixed standard of

review.” Lowery v. State, 201 So.3d 791, 793 (Fla. 4th DCA 2016). “The appellate court

defers to the trial court’s findings regarding the facts and uses the de novo standard of

review for legal conclusions.” Id. (quoting Luna v. State, 154 So.3d 1181, 1183 (Fla.

4th DCA 2015)). “However, ‘[a] trial court’s ruling on a motion to suppress is

presumed correct, and on appeal, the evidence from the suppression hearing must be

interpreted in a manner most favorable to sustaining the court’s ruling.’” Lowery, 201

So.3d at 793 (quoting Dixon v. State, 72 So.3d 171, 174 (Fla. 4th DCA 2011)).

Post does not establish that, in light of this standard of review, the state trial

court’s order, and the record, appellate counsel made an unreasonable choice not to

challenge the denial of the motion to suppress. Nor does he show that he was

prejudiced by appellate counsel’s decision by showing a reasonable probability he

would have prevailed on appeal had the claim been raised.

Post does not show that any alleged delay in providing the Miranda warnings

provided a basis for suppression. He cites Missouri v Seibert, 542 U.S. 600 (2004) in

support of his claim. Seibert holds that if police deliberately withhold Miranda warnings

during custodial interrogation and elicit a confession, then provide Miranda and again

obtain a confession, the second, post-Miranda confession will be inadmissible. Id. at

604. Here, however, Post does not allege that any interrogation about the criminal

allegations took place prior to the Miranda warnings. He does not challenge the state

trial court’s finding that there was no substantive discussion of the criminal allegations

before warnings were given.

Post also relies on Ross v. State, 45 So.3d 403 (Fla. 2010) to support his assertion

that the waiver was involuntary due to a delay in providing the warnings. In Ross, the

suspect’s waiver was found to be involuntary when police interrogated him “over a

period of several hours of custodial interrogation, deliberately delayed administration

of warnings required by Miranda . . . , obtained inculpatory admissions,” and did not

provide warnings until “midstream” during the interrogation. Id. at 407. Again, in

Post’s case, there was no interrogation before the administration of Miranda warnings.

Post fails to show that the discussion about farming amounted to an interrogation

because there is no indication that it was likely to lead to his making incriminating

statements. See, e.g., Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (stating that “[a]

practice that the police should know is reasonably likely to evoke an incriminating

response from a suspect . . . amounts to interrogation”).

Post similarly fails to show that his confession was rendered involuntary due to

police trickery, instilling a false sense of security, or minimizing the importance of

Miranda. In determining the voluntariness of a suspect’s statements, the focus is on

government coercion. “The sole concern of the Fifth Amendment, on which Miranda

was based, is governmental coercion.” Colorado v. Connelly, 479 U.S. 157, 170 (1986).

Thus, “[t]he Fifth Amendment privilege is not concerned ‘with moral and

psychological pressures to confess emanating from sources other than official

coercion.’” Id. (quoting Oregon v. Elstad, 470 U.S. 298, 305 (1985)). The voluntariness

of a Miranda waiver “has always depended on the absence of police overreaching, not

on ‘free choice’ in any broader sense of the word.” Id. Accordingly, “Miranda protects

defendants against government coercion leading them to surrender rights protected by

the Fifth Amendment; it goes no further than that.” Id.

Post claims that the involvement of Deputy Hammond, whom Post knew

socially, gave him a false sense of security. But Deputy Hammond testified that Post

agreed to come to the station when he told Post that detectives at the Sheriff’s Office

needed to talk to Post and that Post needed to come with Deputy Hammond. (Doc.

11-4, Ex. E, p. 12.) Deputy Hammond testified that Post stated he understood and, as

another deputy was also present, asked which car to get into. (Id., pp. 12-14.) Deputy

Hammond, who was wearing his uniform and was in his marked patrol car, patted

down Post and put him in the backseat of the patrol car. (Id., pp. 12, 14-15.) Deputy

Hammond patted down Post again when they arrived at the station. (Id., p. 19.)

Therefore, even though Post knew Deputy Hammond, the record indicates that

purpose of Deputy Hammond’s interaction with Post was clear. Before providing the

Miranda warnings, Detective Peavy stated, “I understand you know why you’re here

at the sheriff’s office, but I’ve got to read you something, okay?” (Id., p. 45.) Post made

no indication that he did not understand the situation or why he was brought to the

station. (Id.).

Post also claims that Detective Peavy minimized the importance of Miranda

warnings by providing them within a more casual conversation about farming topics

and telling Post prior to providing the warnings that “It doesn’t mean you’re under

arrest. It doesn’t mean you’re gonna get arrested.” (Id.) Post claims that this alleged

minimization of Miranda improperly tricked or cajoled him into making incriminating

statements.

Post relies on Ross in support of his claim. In that decision, the Florida Supreme

Court considered, in determining whether police downplayed Miranda, the fact that

prior to the warnings, “the detective lulled Ross into a false sense of security by

asserting that he was not arresting him at that time.” 45 So.3d at 428. However, Ross

considered this matter in the context of Miranda warnings that were belatedly provided

in the midst of an interrogation. See id. (stating that the “minimizing and

downplaying” of Miranda warnings is important to consider “to ensure that a suspect

who is provided with a tardy administration of the Miranda warnings truly understands

the importance and the effect of the Miranda warnings in light of the problems faced

when warnings are delivered midstream.” Id. As addressed above, Post fails to that his

Miranda warnings were delayed. The warnings were given before interrogation and

after a 12-to-15 minute discussion with Detective Peavy. The warnings were not given

“in the midst of a coordinated and continuing interrogation.” Id.

Post does not show that giving the warnings near the end of a casual

conversation prior to the interrogation rendered his waiver involuntary. Post does not

challenge the sufficiency of the Miranda warnings given to him or claim that he did not

understand the warnings. Nor does Post show that the statement “It doesn’t mean

you’re under arrest. It doesn’t mean you’re gonna get arrested” amounted to coercion

or was otherwise so improper as to warrant suppression. Although Post contends that

police were ready to arrest him and that the state trial court determined he was “in

custody” for purposes of requiring Miranda warnings, an actual, formal arrest is not a

prerequisite to being “in custody” for Miranda purposes. See, e.g., United States v. Street,

472 F.3d 1298, 1309 (11th Cir. 2006) (“A defendant is in custody for the purposes of

Miranda when there has been ‘a formal arrest or restraint on freedom of movement of

the degree associated with a formal arrest.’” (quoting United States v. Brown, 441 F.3d

1330, 1347 (11th Cir. 2006))). Moreover, Post fails to show that the state court

unreasonably determined that Detective Peavy’s interview involved “no threats,

promises of leniency or statements calculated to delude” Post. (Doc. 11-2, Ex. A, p.

192.)

In light of the state court record, the factual findings and legal conclusions of

the trial court, and the standard of review applicable on appeal, Post fails to show that

appellate counsel unreasonably decided not to challenge the denial of his motion to

suppress or that there was a reasonable probability he would have prevailed had

appellate counsel raised the claim. Post has not shown that the state appellate court’s

rejection of his ineffective assistance of appellate counsel claim was contrary to or

involved an unreasonable application of clearly established federal law, or was based

on an unreasonable factual determination. Consequently, he is not entitled to relief on

Ground Two.

It is therefore ORDERED that Post’s petition (Doc. 1) is DENIED. The

CLERK is directed to enter judgment against Post and to CLOSE this case.

Certificate Of Appealability

And Leave To Appeal In Forma Pauperis Denied

It is further ORDERED that Post is not entitled to a certificate of appealability

(“COA”). A prisoner seeking a writ of habeas corpus has no absolute entitlement to

appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a COA

must first issue. Id. “A [COA] may issue .. . only if the applicant has made a substantial

showing of the denial of a constitutional right.” Jd. at § 2253(c)(2). To obtain a COA,

Post must show that reasonable jurists would find debatable both (1) the merits of the

underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C.

§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Post has not made the

requisite showing. Finally, because Post ts not entitled to a COA, he ts not entitled to

appeal in forma pauperis.

ORDERED in Ocala, Florida, on September 22, 2022.

bia decay oo.

UNITED STATES DISTRICT JUDGE

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