Hulcher v. Secretary, Department of Corrections (Polk County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JUDY DOLLAR HULCHER,

Petitioner,

v. Case No. 8:20-cv-552-VMC-SPF

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

/

ORDER

Judy Dollar Hulcher, a Florida prisoner, timely filed a pro se petition for writ of

habeas corpus under 28 U.S.C. § 2254 (Doc. 1) and supporting memorandum (Doc.

2). Respondent filed a response opposing the petition. (Doc. 9.) Hulcher filed a reply.

(Doc. 19.) Upon consideration, the petition is DENIED:

Procedural History

The State of Florida charged Hulcher with one count of grand theft and four

counts of money laundering. (Doc. 12-2, Ex. 1, pp. 97-99.) A state court jury convicted

Hulcher of grand theft but acquitted her of the money laundering counts. (Id., pp. 126-

27.) The state trial court sentenced Hulcher to 15 years in prison followed by 15 years

of probation. (Id., pp. 210-15.) The state appellate court per curiam affirmed the

conviction and sentence. (Doc. 12-3, Ex. 5.) The state appellate court also per curiam

affirmed the state court’s denial of Hulcher’s motion for postconviction relief, filed

under Florida Rule of Criminal Procedure 3.850. (Doc. 12-6, Ex. 17, pp. 742-59; Doc.

12-10, Ex. 17, pp. 1820-21; Doc. 12-13, Ex. 20.)

Facts; Trial Testimony1

Hulcher worked at Payne Air Conditioning (“Payne”). As treasurer, she was

authorized to sign checks from Payne’s checking account. Payne underwent an annual

review by a CPA named Terri Goleno. Frank Lansford, Payne’s owner and president,

read the review and noticed a significantly lower profit than expected. Lansford found

over 200 company checks written by Hulcher. The majority were made payable to

cash, and the remainder were made payable to Hulcher. Neither Lansford nor John

Scott, a vice president at Payne, had authorized these checks. Lansford determined

that Hulcher had taken over $800,000.00 from Payne without authorization. When

Lansford confronted Hulcher, she said she had been borrowing money from Payne to

play the lottery and produced a pad of paper containing a tally of the money. She told

Lansford that she kept track of the money she took because she thought she was

borrowing it and she intended to pay it back. Hulcher similarly told another employee,

Debra Gill, that she cashed checks to buy lottery tickets, and that she was addicted to

gambling. One time, Hulcher paid about $30.00 or $40.00 to Payne.

Payne hired another CPA, David Ramos, to conduct a forensic accounting

report. Ramos determined that the total amount of unauthorized checks written by

Hulcher was $780,158.00 for the period in question, which ranged from 2009 to 2013.

1 This summary is based on the trial transcript and appellate briefs.

Donald Mardis, a special agent for the Florida Lottery, testified that Hulcher won

$615,532.50 in the lottery from 2009 to 2013.

Hulcher testified in her defense. She testified that after January 2010, she could

no longer pay for lottery tickets so she borrowed money from Payne. Hulcher stated

that she cashed company checks and she sometimes took money out of cash deposits

that were supposed to be deposited in the bank. Hulcher testified that she believed she

was merely borrowing money and that she kept track of the money so that she could

pay it back. Hulcher admitted to changing financial statements to hide the fact that she

was taking money because she could not pay it back. Hulcher testified that she did not

pay any of her lottery winnings back to Payne. Hulcher believed she was going to repay

the money when she “hit the big one.” (Doc. 12-3, Ex. 1d, p. 319.)

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 affirmed the denial of postconviction relief without

discussion. This decision warrants 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

Hulcher alleges ineffective assistance of trial counsel. 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.

Hulcher 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, Hulcher 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.

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); see also Burt

v. Titlow, 571 U.S. 12, 15 (2013) (stating that this doubly deferential standard of review

“gives both the state court and the defense attorney the benefit of the doubt”). “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)).

Exhaustion Of State Remedies; Procedural Default

A federal habeas petitioner must exhaust his claims in state court before

presenting them in his federal habeas petition. 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.”). The exhaustion requirement is satisfied if the petitioner fairly

presents his claim in each appropriate state court and alerts that court to the federal

nature of the claim. Picard v. Connor, 404 U.S. 270, 275-76 (1971).

The doctrine of procedural default provides that “[i]f the petitioner has failed to

exhaust state remedies that are no longer available, that failure is a procedural default

which will bar federal habeas relief, unless either the cause and prejudice or the

fundamental miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d

1135, 1138 (11th Cir. 2001). A fundamental miscarriage of justice occurs in an

extraordinary case where a constitutional violation has probably resulted in the

conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327

(1995); Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). To establish cause

for a procedural default, a petitioner “must demonstrate that some objective factor

external to the defense impeded the effort to raise the claim properly in state court.”

Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). A petitioner demonstrates

prejudice by showing that “there is at least a reasonable probability that the result of

the proceeding would have been different” absent the constitutional violation.

Henderson, 353 F.3d at 892.

Discussion

Ground One

Hulcher contends that trial counsel was ineffective for failing to argue to the

jury that she was guilty of “a lesser included offense or lower charge” because Payne

issued her an IRS Form 1099 (“1099”) that set out the amount of money taken. (Doc.

1, p. 7). The state court denied this claim, adopting and incorporating the State’s

response into its order. The state court’s order provides:

In Claim 1, Defendant argues that trial counsel was ineffective for failing

to argue to the jury that the issuance of a 1099 supported a lesser charge.

The State argues that the issue was raised in a pretrial motion to dismiss

and is procedurally barred. Also, the State argues that Defendant was

required to report the embezzled funds as income and that a 1099 was

required to do so. The issuance of the tax document in no way excuses

or legitimizes the money stolen.

(Doc. 12-10, Ex. 17, p. 1820.)

The State’s response states:

Defendant[ ] . . . attacks Trial Counsel for not raising an argument to the

trial jury that Payne Air accounted for the loss accruing from Defendant’s

theft by issuing her with an IRS Form 1099 showing the stolen money as

income to her for tax purposes, thereby essentially ratifying the theft.

Notably, Defendant does not show how providing Defendant with

documentation of the money she took equates to permission to steal.

Defendant claims that Trial Counsel rendered ineffective assistance by

not presenting the argument to the trial jury. That claim is procedurally

barred, and refuted by the law and the Record.

Defendant’s conduct amounts to classic embezzlement at the common

law. See State v. Mischler, 488 So.2d 523, 526 (Fla. 1986) (“Embezzlement

is broadly defined as the fraudulent appropriation of another’s property

by a person to whom it has been entrusted or into whose hands it has

lawfully come.”). Embezzlement has been subsumed into [Florida’s]

omnibus grand theft statute, § 812.014 Fla. Stat. See Crawford v. State, 453

So.2d 1139, 1140 (Fla. 2d DCA 1984). And the proceeds of

embezzlement constitute taxable income of the embezzler under the

federal Internal Revenue Code. See James v. United States, 366 U.S. 213,

219-21 (1961). Defendant therefore was required to report her ill-gotten

gains to the Internal Revenue Service as taxable income, and the form

1099 is required to do that. See generally U.S. Department of the Treasury,

Internal Revenue Service, 2018 General Instructions for Certain

Information Returns (Jul. 20, 2018). Providing that information certainly

is not acquiescence to the theft of more than three quarters of a million

dollars.

Defendant filed a motion to dismiss on this ground prior to trial.

Therefore, any substantive issue relating to this subject was preserved for

appeal and may not be raised on collateral attack in the guise of a claim

of ineffective assistance; this claim therefore is procedurally barred. See

Freeman v. State, 761 So.2d 1055, 1067 (Fla. 2000). And the claim also is

directly refuted by the record. At a hearing on Defendant’s motion to

dismiss, Ms. Goleno [the CPA who prepared Payne’s annual review]

testified that when one has money stolen from them, one still is liable for

the taxes due on that income. There is a specific IRS form, number 4684,

where a victim business can report the loss and receive a deduction from

the taxes due. IRS rules require document matching. The tax deduction

had to be accounted for, requiring an offset of income to the person who

stole the money. The theft for all years is to be reported the year it is

discovered. Frank Lunsford confirmed that the issuance of the 1099 form

was intended to account for the income to Defendant since the loss was

being taken as an expense, and that the money taken was a theft.

The theft statute provides that a theft happens when a person

knowingly obtains or uses, or endeavors to obtain or to use,

the property of another with intent to, either temporarily or

permanently: Deprive the other person of a right to the

property or a benefit from the property [, or to a]ppropriate

the property to his or her own use . . .

§ 812.014(1)(a)-(b), Fla. Stat. (2013). A consistent instruction was

provided to the petit jury in this case. With the testimony of Mr.

Lansford, Ms. Gillis, Mr. Scott, Ms. Goleno, Mr. Ramos, and Special

Agent Mardis, and Defendant’s own statements to Ms. Gillis, Mr.

Lansford, and her trial testimony, no reasonable jury could fail to find

that Defendant at least temporarily intended to appropriate Payne Air’s

money to her own use, to buy $800,000 worth of lottery tickets for

Defendant’s benefit, without the knowledge or consent of the corporate

officers. Adding the 1099 form would have availed nothing, given that

Ms. Goleno accounted for it in her cross-examination testimony, . . .

where she explained how the tax code allows for deductions of loss

through theft.

Here, Defendant has failed to set forth evidence to overcome the strong

presumption of effectiveness set out in Strickland. Trial counsel would

have been on notice of the testimony of Ms. Goleno and of Mr. Lansford

in the dismissal hearing, and he himself elicited facts relating to reporting

of the tax deduction in cross examination. By trial, Trial Counsel would

have known that there was a lawful reason for the 1099 form, and it is

not deficient performance to not engage in a fruitless attack. As to

prejudice, Defendant’s motion is legally insufficient to show how

introducing that information would have changed anything. H[er] claim

that introducing the 1099 form would have provided an avenue to a

lesser-included crime is conclusory, and Defendant does not bother to

explain what lesser included crime could have been contemplated.

Defendant has in the past been given an opportunity to amend her

motion, and it remains legally insufficient to show prejudice. Further

amendment would serve no purpose, as the 1099 form would make no

difference given that Ms. Goleno and Mr. Lansford both rendered trial

testimony in every way consistent with their testimony at the dismissal

hearing. Defendant’s first claim should be denied without hearing as

conclusively refuted by the Record.

(Doc. 12-10, Ex. 17, pp. 1832-36) (State’s record citations omitted).

Respondent contends that Hulcher’s ineffective assistance of trial counsel claim

is unexhausted because she did not argue the merits of the claim on postconviction

appeal. Rather, Respondent contends, Hulcher merely argued that the state

postconviction court erred in not conducting an evidentiary hearing on the question of

whether counsel could have “swayed jurors to mitigate the nature of the crime” by

raising a defense based on the 1099. (Doc. 12-13, Ex. 18, pp. 8-10.)

To exhaust a claim, a petitioner must present the claim to every court that is

part of the state’s established appellate review process. See Pruitt v. Jones, 348 F.3d

1355, 1358-59 (11th Cir. 2003) (stating that in order to satisfy the exhaustion

requirement, a petitioner must undertake “one complete round” of the state’s review

process). Upon reviewing Hulcher’s appellate brief, which did address the merits of

the ineffective assistance claim, the Court assumes that Hulcher exhausted the

ineffective assistance claim.

Hulcher does not show that the state court’s denial of her claim was

unreasonable. As addressed by the state court, evidence at trial established that a

business can deduct theft as an expense for tax purposes in the year the theft is

discovered. (Doc. 12-13, Ex. 1c, p. 225.) Hulcher does not show a reasonable

probability of a different outcome had counsel addressed the 1099 that was issued to

account for the theft. Further, because Hulcher does not explain how the subsequent

issuance of the 1099 could have impacted her actions when she took the money, she

does not show how the 1099 evidence supported a conviction for a lesser offense.

Under these circumstances, Hulcher does not show that counsel was ineffective for

failing to argue to the jury that the 1099 reduced Hulcher’s criminal liability such that

she should be found guilty of a lesser offense. Therefore, Hulcher fails to show that the

state court unreasonably determined that counsel provided effective assistance.

As Hulcher does not show that the state court’s decision involved an

unreasonable application of Strickland or was based on an unreasonable factual

determination, she is not entitled to relief on Ground One.

Ground Two

Hulcher argues that trial counsel was ineffective in conceding her guilt to grand

theft without consulting her. The state court denied this claim, again adopting and

incorporating the State’s response. The state court’s order summarized the State’s

argument:

In claim 2, Defendant argues that trial counsel was ineffective for

conceding guilt as to count 1, grand theft. The State responds that counsel

did not concede that the Defendant intended to steal money but that she

intended to repay the amount. Also, the Court held a colloquy with the

Defendant concerning trial counsel’s strategy. Defendant acknowledged

that counsel had discussed the strategy with her and that she had no

objection.

(Doc. 12-10, Ex. 17, p. 1820.)

The State’s response stated, in relevant part:

Trial Counsel conceded, with Defendant’s assent, that Defendant actually

took the money and used it to buy lottery tickets. Trial Counsel did not

concede that Defendant intended to steal, and instead contended that

Defendant intended all along to repay the money.

The trial judge queried Defendant, under oath, about Trial Counsel’s

strategy before the jury came into the room. The exchange between

Defendant and the judge was:

THE COURT: All right. Ms. Hulcher, you heard

everything counsel for the State, myself, and your attorney

. . . were discussing right now regarding his—your

attorney’s trial strategy and potential admissions regarding

some—at least a portion of the grand theft charge or

something along those lines. Do you have any objection to

your attorney’s trial strategy at this point in time?

THE DEFENDANT: No.

THE COURT: All right. Have you had an opportunity

to discuss trial strategy with him and he—if he’s going to

admit to something, have you had a chance to do that with

him?

THE DEFENDANT: We have.

THE COURT: Okay. And you’re comfortable with

everything [counsel] just said as far as how he’s going to

conduct this trial?

THE DEFENDANT: I trust him to do what we have

talked about.

Defendant now claims to have been confused about this questioning, and

claims that she was not apprised of the strategy before trial. Defendant’s

claim is directly refuted by her contrary testimony under oath before the

trial judge. Defendant plainly swore to the judge that she had discussed

admissions with Trial Counsel and agreed with that strategy. Defendant

is bound by her under-oath assertions. . . . The record conclusively refutes

the idea that Defendant did not assent to Trial Counsel’s strategy or was

confused regarding it.

As Defendant admits in her motion at ¶ 32, this issue is controlled by

Florida v. Nixon, 543 U.S. 175, 182 (2004), where the Justices held that

Strickland controls these questions. [FN]

[FN] McCoy v. Louisiana, 138 S.Ct. 1500 (2018), where the

Justices held that Nixon does not permit a trial counsel to

override her client’s explicit objection to concession as a

strategy, does not apply given Defendant’s assent thereto.

Additionally, the Florida Supreme Court has not . . .

deemed McCoy retroactive to cases final on collateral

review. . . .

Therefore, the questions are whether Trial Counsel rendered deficient

performance in forming the strategy to concede partially, and whether

that influenced the outcome. As noted supra, Defendant admitted to Mr.

Lansford and Ms. Gillis that she embezzled money from Payne Air to

purchase lottery tickets. As Mr. Ramos and Mr. Lansford discovered,

Defendant wrote many checks to cash and to herself. There was

documentary evidence in the form of the checks and ledger, and

Defendant’s admissions that she appropriated the money, without

permission, to buy nearly a million dollars’ worth of lottery tickets. For

Defendant to take the stand and testify, she would have to be prepared to

confront her admissions. Conceding to the reality that Defendant had

openly admitted these things to two reliable witnesses changed nothing;

the State’s case was overwhelming without a concession from Trial

Counsel that this happened, and the testimony of Mr. Lansford and Ms.

Gillis would have carried the day regardless. All Trial Counsel did was

advise Defendant to concede that which she could not reasonably deny.

Defendant has failed to show either deficient performance or prejudice,

and this claim should be denied.

(Doc. 12-10, Ex. 17, pp. 1836-39) (State’s record citations omitted) (emphasis in State’s

response).

Hulcher does not show that the state court unreasonably denied her claim. As

set out above, Hulcher agreed with counsel’s strategy. See, e.g., Hammond v. Hall, 586

F.3d 1289, 1327-28 (11th Cir. 2009) (collecting cases that stand for the proposition that

a strategic decision by defense counsel does not amount to ineffective assistance under

Strickland when the defendant agrees with the decision); Acuna v. United States, 494 F.

App’x 961, 962-63 (11th Cir. 2012) (“This Court has stated that ineffective assistance

does not exist under Strickland where the defendant ultimately concurred in his

counsel’s tactical decision or strategy. . . . Acuna essentially waived his right to contest

his counsel’s ineffectiveness by agreeing with that choice at trial.”). Hulcher’s sworn

statements to the trial court are presumed to be correct. Cf. Blackledge v. Allison, 431

U.S. 63, 73-74 (1977) (stating in the context of a plea colloquy that a defendant’s

representations “constitute a formidable barrier in any subsequent collateral

proceedings. Solemn declarations in open court carry a strong presumption of verity”).

Moreover, as the state court indicated, any defense denying that Hulcher took

the money would have lacked credibility in light of the overwhelming evidence that

she did so. Thus, counsel reasonably chose to focus on Hulcher’s mental state and her

belief that she would repay the money. Under these circumstances, the state court did

not unreasonably conclude that Hulcher failed to show either prong of Strickland.

Because Hulcher does not show that the state court’s decision involved an

unreasonable application of Strickland or was based on an unreasonable factual

determination, she is not entitled to relief on Ground Two.

Ground Three

Hulcher argues that trial counsel was ineffective in waiving a pre-sentence

investigation (“PSI”) before sentencing. She argues that she was entitled to a PSI

because she was a first-time offender. See Fla. R. Crim. P. 3.710(a) (“No sentence or

sentences other than probation or the statutorily required mandatory minimum may

be imposed on any defendant found guilty of a first felony offense . . . until after . . .

investigation [by the Department of Corrections] has first been made and the

recommendations of the Department of Corrections received and considered by the

sentencing judge.”).

Respondent argues that Hulcher did not exhaust her claim on postconviction

appeal. Respondent contends that Hulcher only argued that the state postconviction

court erred in not conducting an evidentiary hearing. After reviewing Hulcher’s

appellate brief, which discussed the merits of the underlying claim, the Court will

assume that Hulcher’s argument was sufficient to exhaust the ineffective assistance of

trial counsel claim.

The state court denied Hulcher’s claim. It addressed the State’s response, which

it adopted and incorporated into the denial order:

In claim 3, Defendant argues that trial counsel was ineffective for failing

to request a pre-sentence investigation. The State argues that the claim is

speculative and conclusory. The Court was able to review letters of

support prior to sentencing and heard testimony regarding the

Defendant’s gambling addiction. Additionally, the Court did not seem

inclined to impose a downward departure sentence.

(Doc. 12-10, Ex. 7, p. 1820.)

The State’s response provides:

The key portions of this allegation are that the PSI would have supported

Defendant’s gambling addiction, that an “independent evaluation,”

presumably by a probation officer, would have shown Defendant

qualified for a prison term of no more than 21 months, and that support

letters existed from other persons. Defendant falsely claims that

sentencing judge did not have the benefit of either of these things . . .

Defendant also claims that Trial Counsel rendered ineffective assistance

by not arguing for a downward departure; the Record refutes any

showing of prejudice as to this because a departure is discretionary and

the presiding judge was not inclined to exercise his discretion.

1. “Independent evaluation.”

As to Defendant’s claim relating to an “independent evaluation,” that

claim is both speculative and conclusory. Defendant presents no facts or

analysis of any kind to back that up. . . .

2. A PSI would change nothing.

As to Defendant’s claim relating to her so-called “addiction,” a PSI

would change nothing. As noted supra, Defendant gave extensive

testimony relating to that. Further, at sentencing Trial Counsel produced

Tracy Hartig, Psy.D., to testify. Dr. Hartig specifically evaluated

Defendant for the sentencing, and diagnosed Defendant with gambling

disorder, major depressive disorder, anxiety disorder, and dependent

personality features. She testified at length about gambling disorder and

its impact on Defendant. On cross-examination, Dr. Hartig emphasized

her recommendation for outpatient treatment and specialized treatment

with respect to gambling. On redirect, Dr. Hartig confirmed that

Defendant’s ability to conform her actions to the law was impaired. This

information was before the trial court judge, and Defendant can show

neither deficient performance of Trial Counsel or prejudice to Defendant

for not duplicating effort with a PSI.

3. Departure sentence/letters

Defendant’s position is that Trial Counsel should have moved for a

departure sentence, and used the letters written by Defendant’s friends to

support that. The Record shows that strategy would have failed.

Trial Counsel’s strategy was to obtain something close to the floor term

of 21 specified in the Criminal Punishment Code. This caught the

prosecutor, who was anticipating arguing against departure, off-guard.

Trial Counsel focused on Defendant’s remorse. He emphasized her

mental health issues. He emphasized that Defendant did not spend the

money she won on things for herself but spent it on more lottery tickets

instead, pointing to her addiction. He spoke of Defendant taking

responsibility for her crime, and criticized the State for both feeding her

addiction[2] and prosecuting her for the result. He asked the presiding

judge to sentence [her] to 30 months. The State sought 20 years.

[ ] Mr. Lansford testified [at the sentencing hearing] that Defendant had

nearly destroyed his business. Payne Air was forced to lay off staff and

was nearly driven into bankruptcy. It was during the national financial

crisis that Defendant stole, and Payne employees were being laid off,

losing their cars, losing their homes. Defendant cared not about that. She

only cared about playing the lottery with someone else’s money; when

Mr. Lansford confronted her, her response was that no money was left

once she paid the taxes and bought things for herself. She made no efforts

to repay any of the stolen money, despite having won over half a million

dollars. She tried to avoid financial liability for her crimes before her

arrest by cashing out her retirement plan and quitclaiming her home to

her husband. She “nearly crippled” a company in business in our

community for 80 years, and harmed 90 families who depended on

Payne Air for their livelihoods. This is powerful aggravation.

Defendant’s gambling addiction does not excuse her conduct, and Trial

Counsel had to argue for a realistic option—Defendant was not going to

avoid prison for what she’d done.

The letters Defendant refers to would change nothing. They were already

in the Court’s record, and available to the presiding judge. . .

At sentencing the judge had access to [a disposition] memorandum and

the file. . . . Here, the trial judge was most moved by the nearly 100 people

who suffered for Defendant’s selfishness. The judge recognized

Defendant’s personal issues. He thought that Trial Counsel had done a

“powerful, wonderful” job of bringing that out. That was outweighed by

Defendant’s position of fiduciary responsibility. Only getting caught

stopped her. Any financial gain she realized went to herself and not to

her victims.

Importantly, the judge explicitly held that the CPC floor term of 21

months was wholly unreasonable. . . . He looked at the facts and

circumstances in totality, and felt that the State’s request for a 20 year

prison term was equally unreasonable. He also gelt that the 30 months

Trial Counsel sought was patently unreasonable. The judge relied on the

company nearly being bankrupted, almost 100 employees greatly

2 The State appears to refer to counsel’s argument that the State of Florida’s expansion

and promotion of the Florida Lottery affected Hulcher’s gambling addiction. (Doc.

12-10, Ex. 17, pp. 1711-14.)

suffering, and Defendant’s failure to return any of the money over many

years’ time. The judge especially was disturbed that this took place over

four years. Fifteen years in prison, followed by probation, was

reasonable.

Here, the Record is replete with evidence that the trial judge was not

disposed to exercise his discretion and depart below the CPC floor score.

An attempt by Trial Counsel to argue for downward departure, based on

the letters attached to his disposition memorandum, would have been

utterly fruitless; the trial judge thought that even the 21 month CPC floor

was too lenient under the circumstances. Even if it can be said that Trial

Counsel rendered deficient performance for not making the attempt,

Defendant cannot show that the trial judge would have changed his mind

with that information brought to the fore. That information does

absolutely nothing to mitigate the enormous damage that Defendant, a

responsible corporate officer, did to an 80-year old company and nearly

100 of its employees and their families, over four years’ time.

(Doc. 12-10, Ex. 17, pp. 1839-46) (State’s record citations omitted).

Hulcher does not show that the state court’s decision was unreasonable.

Initially, as the state court noted, Hulcher’s assertion that any additional information

or argument by counsel would have resulted in a different sentence is speculative. The

state trial court held a sentencing hearing and considered the evidence presented by

both the State and the defense. The state trial court took into account evidence about

Hulcher’s gambling addiction and her lack of a criminal record, but also considered

the damage she caused to Payne and its employees, as well as her failure to repay

money even when she obtained lottery winnings. (Doc. 12-10, Ex. 17, pp. 1715-18.)

Hulcher does not clearly explain what new or different information would have been

included in an independent evaluation or a PSI that would have changed the outcome.

In addition, the state trial court was aware of the 21-month minimum calculated

on the sentencing scoresheet, and determined that neither the prison sentence sought

by the defense (30 months) nor the prison sentence sought by the State (20 years) was

appropriate given the facts and circumstances, including those brought out by Hulcher.

(Id., pp. 1718-21.) In light of the evidence that the state court heard and considered,

any allegation that a lesser sentence would have been imposed had a PSI been

conducted or had counsel argued for a downward departure is speculative. Speculation

is not enough to demonstrate ineffective assistance. Tejada v. Dugger, 941 F.2d 1551,

1559 (11th Cir. 1991) (stating that a petitioner’s “unsupported allegations” that are

“conclusory in nature and lacking factual substantiation” cannot sustain an ineffective

assistance claim). The state court did not unreasonably conclude that counsel afforded

Hulcher effective representation at sentencing, or that Hulcher failed to show prejudice

as a result of counsel’s performance.

Hulcher does not show that the state court’s ruling involved an unreasonable

determination of Strickland or was based on an unreasonable factual determination.

She is not entitled to relief on Ground Three.

Ground Four

Hulcher contends that trial counsel was ineffective in failing to move for a

judgment of acquittal (“JOA”) on the basis that the State failed to prove “felonious

intent.” (Doc. 1, p. 13). The state court denied Hulcher’s ineffective assistance of

counsel claim. It summarized the State’s response, which it adopted and incorporated

into the order of denial:

In claim 4, Defendant argues that trial counsel was ineffective for failing

to argue lack of felonious intent in a Motion for Judgment of Acquittal.

The State argues that even a temporary taking of another’s property

constitutes theft. Also, the Defendant made no attempt to repay the

amount stolen. Defendant has failed to establish deficient performance

or prejudice.

(Doc. 12-10, Ex. 7 pp. 1820-21.)

The State’s response provides:

Simply put, as noted supra, the crime of theft is complete when a person

knowingly obtains or uses, or endeavors to obtain or to use,

the property of another with intent to, either temporarily or

permanently: Deprive the other person of a right to the

property or a benefit from the property [, or to a]ppropriate

the property to his or her own use . . .

§ 812.014(1)(a)-(b), Fla. Stat. (2013) (emphasis added). . . .

Defendant essentially claims that her failing to return the money is not

evidence of felonious intent, and that her intent was to return the money,

so there could be no intent to steal. That ignores the statutory proscription

against taking property and converting it to one’s own use, even

temporarily. A temporary theft is still a theft. In State v. Dunmann, 427

So.2d 166, 166-69 (Fla. 1983), the high court considered a claim that in

the charging information for a theft the State had not alleged an intent to

deprive the victim of her property permanently. The high court held that

not to be required under [Florida’s] omnibus theft statute; rather, the

specific intent to deprive at all is what the Legislature intended to

criminalize. See id. at 169. And in O’Brien v. State, 327 So.3d 237, 238-39

(Fla. 1st DCA 1976), decided under the law pre-dating the omnibus theft

statute, an embezzler who, when his theft was discovered four months

after the fact, signed an agreement to repay embezzled funds and then

did not, was held to have shown intent to commit theft by his failure to

follow through with the repayment agreement. Even under the law

predating the omnibus theft statute, Defendant’s position is a non-starter;

unlike Mr. O’Brien, she never made any effort whatsoever to repay what

she stole, though that now is not required to show intent.

To obtain a judgment of acquittal, Defendant would have to show that if

one takes every fact and every inference from those facts in the light most

favorable to the State, a rational trier of fact could not find the existence

of the intent element of grand theft. See, e.g. Pagan v. State, 830 So.2d 792,

802 (Fla. 2002) (discussing the standard for a judgment of acquittal).

Here, the evidence . . . makes plain that Defendant intended to, at least

temporarily, deprive Payne Air of its money, appropriating it to her own

purpose of splurging on $800,000 worth of lottery tickets. Defendant

herself admitted it to two different people. Whether Defendant had a

subjective intent to repay the money or not is of no moment; even were

that still the law, O’Brien shows her position would fail. No rational judge

would grant a directed verdict on this evidence.

(Doc. 12-10, Ex. 17, pp. 1847-49) (State’s record citations omitted) (emphasis in State’s

response).

Hulcher does not show entitlement to relief. In ruling on a motion for JOA, a

state trial court must consider the evidence in the light most favorable to the State. See

Boyd v. State, 910 So.2d 167, 180 (Fla. 2005) (“A trial court should not grant a motion

for judgment of acquittal ‘unless the evidence is such that no view which the jury may

lawfully take of it favorable to the opposite party can be sustained under the law.’”

(quoting Lynch v. State, 293 So.2d 44, 45 (Fla. 1974))). The underlying question of

whether the State presented evidence of felonious intent sufficient to survive a motion

for JOA involves an application of Florida’s JOA standard, as well as Florida law

interpreting the elements of grand theft. And as the state court pointed out, the State

presented significant evidence that Hulcher took money from Payne. The state court

determined that the evidence of guilt was sufficient under state law to defeat a motion

for judgment of acquittal on the grand theft charge.

This Court must defer to the state court’s application of state law. 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))); Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) (“[T]he Alabama

Court of Criminal Appeals has already answered the question of what would have

happened had [petitioner’s counsel] objected to the introduction of [petitioner’s]

statements based on [state law] – the objection would have been overruled. . . .

Therefore, [petitioner’s counsel] was not ineffective for failing to make that

objection.”). Hulcher does not show that the state court unreasonably determined that

trial counsel was not ineffective in his presentation of the JOA motion.

Hulcher has not established that the state court unreasonably applied Strickland

or based its decision on an unreasonable factual determination. She is not entitled to

relief on Ground Four.

Ground Five

Hulcher argues that her sentence was vindictive “based on her position of

authority or status as a Corporate Officer, not taking serious consideration of her

gambling addiction, prejudice that she had no restitution to offer, and exercised her

right to a jury trial.” (Doc. 1, p. 15). Hulcher claims that her sentence was “at the very

top of the applicable guidelines; as a result, there is a presumption of vindictiveness as

she had never been convicted of any previous crime.” (Id.) Citing North Carolina v.

Pearce, 395 U.S. 711 (1969), Hulcher appears to allege a violation of her federal right

to due process.

The state court denied Hulcher’s claim, summarizing the State’s response:

In Claim 5, Defendant argues that her sentence was vindictive. The State

argues that the claim is procedurally barred as the claim should have been

raised on direct appeal. The State goes on to point out that the Defendant

was facing a thirty year sentence and that it rejected the State’s request

for a twenty year sentence. The sentencing transcript refutes the

Defendant’s claim and shows that the Trial Court considered all facts and

circumstances prior to imposing Defendant’s sentence.

(Doc. 12-10, Ex. 17, p. 1821.)

The State’s response, adopted and incorporated by the state court, provides:

First, Defendant attacks the sentence of the Court, not the performance

of Trial Counsel. Claims of trial court error are to be raised on direct

appeal, and are not cognizable in a motion for postconviction relief. See

Bruno v. State, 807 So.2d 55, 63 (Fla. 2001); see also Sampson v. State, 845

So.2d 271, 272 (Fla. 2d DCA 2003). Defendant’s claim is procedurally

barred.

Second, the Record refutes a claim that the trial judge’s sentence was in

any way vindictive. As noted supra . . . the trial judge explicitly rejected

the State’s request for a 20 year prison term as inappropriate. Defendant

faced a potential prison sentence of 30 years. See §§ 775.082(3)(b);

812.014(2)(a) Fla. Stat. (2013). The trial judge carefully weighed all the

facts and all the circumstances in determining the appropriate sentence

. . . . The trial judge considered Defendant’s lack of criminal history, and

her gambling addiction, and determined that the severity of her conduct

outweighed these factors.

Defendant wrongly relies upon North Carolina v. Pearce, 395 U.S. 711

(1969), for the idea that a presumption of vindictiveness arises when a

defendant is harshly sentenced despite the lack of a criminal record. But

that is not the law. Pearce is a postconviction case, arising only in the case

of a remanded sentence where a defendant receives a harsher sentence

on resentencing See Wemett v. State, 567 So.2d 882, 884-85. Each of the

cases Defendant cites in support of her claim to vindictiveness are cases

in postconviction, remanded for resentencing. This is not such a case.

(Doc. 12-10, Ex. 17, pp. 1850-51) (State’s record citations omitted) (emphasis in State’s

response)

Initially, Respondent contends that the federal claim is procedurally barred

because the state court denied it on an independent and adequate state procedural

ground. A petitioner’s failure to comply with state procedural rules governing the

proper presentation of a claim generally bars federal review of that claim in a

subsequent federal habeas proceeding. See Coleman v. Thompson, 501 U.S. 722, 729

(1991) (“This Court will not review a question of federal law decided by a state court

if the decision . . . rests on a state law ground that is independent of the federal question

and adequate to support the judgment.”). The state court’s order, in which it “agreed

with” and adopted and incorporated the State’s arguments on both the procedural

issues and the merits, did not clearly state whether its ruling relied on a procedural bar,

and whether the merits review was therefore merely in the alternative. Assuming that

the state court’s decision relied on the merits, Hulcher does not show that the state

court’s ruling was unreasonable.

Due process prohibits a court from increasing a defendant’s sentence because

the defendant exercised a constitutional right. See Pearce, 395 U.S. at 725. Pearce

established a presumption of judicial vindictiveness that arises “whenever a judge

imposes a more severe sentence upon a defendant after a new trial” unless the reasons

for the increased sentence are apparent on the record. Id. at 726. The presumption only

applies in circumstances showing a “reasonable likelihood” of vindictiveness by the

sentencing court. See Alabama v. Smith, 490 U.S. 794, 799 (1989).

Here, Hulcher does not establish any constitutional violation. Initially, as the

state court noted, unlike Pearce, Hulcher’s case did not involve resentencing.

Furthermore, there is no indication from the record of the sentencing hearing that the

court imposed the sentence because of Hulcher’s exercise of any constitutional right.

As addressed in Ground Three, the trial court considered the arguments and evidence

presented by Hulcher, including evidence of her gambling addiction. Hulcher’s claim

that the trial court did not “serious[ly]” consider this information is speculative and is

unsupported by the sentencing hearing record. There is no indication that the sentence

was “vindictive” so as to violate due process based on Hulcher’s status as an officer of

the company and the fact that she did not repay the money. Hulcher does not show

that the trial court improperly considered these factors in imposing her sentence. Nor

does Hulcher support her conclusory allegation that the trial court’s sentence was

vindictively imposed because she chose to go to trial. Hulcher fails to establish that the

state trial court imposed a vindictive sentence in violation of her federal constitutional

rights.

Hulcher does not show that the state court’s decision was contrary to or

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

on an unreasonable factual determination. She is not entitled to relief on Ground Five.

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

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

Certificate Of Appealability

And Leave To Appeal In Forma Pauperis Denied

It is further ORDERED that Hulcher 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 her petition. 28 U.S.C. § 2253(c)(1).

Rather, a COA must first issue. Jd. “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 certificate of appealability, Hulcher must show that reasonable jurists

would find debatable both (1) the merits of the underlying claims and (2) the

procedural issues she seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529

U.S. 473, 484 (2000). Hulcher has not made the requisite showing. Finally, because

Hulcher is not entitled to a COA, she is not entitled to appeal in forma pauperis.

ORDERED in Tampa, Florida, on January 23, 2023.

bia decay oo.

UNITED STATES DISTRICT JUDGE

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