# Post v. Secretary, Department of Corrections

> District Court, M.D. Florida · September 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10111054

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10111054

## How later opinions describe it (automated extraction)

- 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”
- holding “[a] judge’s ordinary efforts at courtroom administration—even a stern and short-tempered judge’s ordinary efforts at courtroom administration— remain immune.”

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10111054. Public record. Not legal advice.