Opinion

George v. Secretary, Department of Corrections (Duval County)

Court: District Court, M.D. Florida
Filed: Mar 22, 2023
Cited by: 0 cases
Authority: More cited than 19.9%

noting that a suspect must knowingly, intelligently, and voluntarily waive his Miranda rights

How later courts described this case

noting that a suspect must knowingly, intelligently, and voluntarily waive his Miranda rights
holding counsel cannot be ineffective for failing to raise a meritless argument
stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ALFRED L. GEORGE,

Petitioner,

v. Case No. 3:20-cv-608-MMH-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Alfred L. George, an inmate of the Florida penal system,

initiated this action in the United States District Court for the Southern

District of Florida on November 13, 2019,1 by filing a Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1).2 The assigned judge

transferred the action to the Middle District of Florida on June 15, 2020. Doc.

7. In the Petition, George challenges a 2013 state court (Duval County,

Florida) judgment of conviction for burglary of an occupied dwelling. He

raises three grounds for relief. See Petition at 5-10. Respondents submitted a

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

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

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

memorandum in opposition to the Petition. See Response (Doc. 17). They also

submitted exhibits. See Doc. 17-1. George filed a brief in reply. See Reply

(Doc. 19). This action is ripe for review.

II. Relevant Procedural History

On March 15, 2013, the State of Florida charged George by information

with burglary of an occupied dwelling (count one). Doc. 17-1 at 23. At the

conclusion of a trial, on October 8, 2013, the jury found George guilty of count

one. Id. at 55, 57. On November 22, 2013, the trial court sentenced George to

a fifteen-year term of imprisonment. Id. at 108-13.

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

brief and an amended initial brief, arguing the trial court erred when it:

denied George’s motion for a judgment of acquittal (ground one); refused to

instruct the jury on the defense of abandonment (ground two); and refused to

instruct the jury on attempted burglary (ground three). Id. at 538-600. The

State filed an answer brief. Id. at 602-40. George filed a reply brief. Id. at

642-51. Florida’s First District Court of Appeal (First DCA) per curiam

affirmed George’s conviction and sentence without a written opinion on April

20, 2015, id. at 653, and issued the mandate on May 6, 2015, id. at 655.

On February 22, 2016, George filed a pro se motion for postconviction

relief pursuant to Florida Rule of Criminal Procedure 3.850. Id. at 692-710.

In his Rule 3.850 Motion, George alleged counsel was ineffective when he

failed to: call Deputy H.R. Brooks as a witness (ground one); file a motion to

exclude George’s confession (ground one-subclaim two); request a jury

instruction on burglary, a lesser included offense (ground one-subclaim

three); and object to the trial court “read[ing] back” to the jury witnesses’

testimony to the jury (ground one-subclaim four). Id. at 695-710. On August

8, 2017, the postconviction court summarily denied relief on all grounds. Id.

at 717-23. The First DCA per curiam affirmed the denial of relief without a

written opinion on June 20, 2019, id. at 787, and issued the mandate on July

19, 2019, id. at 788.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318-19 (11th Cir. 2016). “It follows that if the record refutes the

applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at

474. The pertinent facts of this case are fully developed in the record before

the Court. Because the Court can “adequately assess [George’s] claim[s]

without further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal petition for habeas corpus. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016). “‘The purpose of AEDPA is to ensure that federal habeas relief

functions as a guard against extreme malfunctions in the state criminal

justice systems, and not as a means of error correction.’” Id. (quoting Greene

v. Fisher, 565 U.S. 34, 38 (2011) (quotation marks omitted)). As such, federal

habeas review of final state court decisions is “‘greatly circumscribed’ and

‘highly deferential.’” Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th

Cir. 2011) (quotation marks omitted)).

The first task of the federal habeas court is to identify the last state

court decision, if any, that adjudicated the claim on the merits. See Marshall

v. Sec’y, Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state

court need not issue a written opinion explaining its rationale in order for the

state court’s decision to qualify as an adjudication on the merits. See

Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s

adjudication on the merits is unaccompanied by an explanation, the United

States Supreme Court has instructed:

[T]he federal court should “look through” the

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be

rebutted by showing that the higher state court’s adjudication most likely

relied on different grounds than the lower state court’s reasoned decision,

such as persuasive alternative grounds that were briefed or argued to the

higher court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d)

bars relitigation of the claim unless the state court’s decision (1) “was

contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States;” or

(2) “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d);

Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited scope

of federal review pursuant to § 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v.

Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d

389 (2000), § 2254(d)(1) consists of two distinct

clauses: a “contrary to” clause and an “unreasonable

application” clause. The “contrary to” clause allows

for relief only “if the state court arrives at a

conclusion opposite to that reached by [the Supreme]

Court on a question of law or if the state court

decides a case differently than [the Supreme] Court

has on a set of materially indistinguishable facts.” Id.

at 413, 120 S. Ct. at 1523 (plurality opinion). The

“unreasonable application” clause allows for relief

only “if the state court identifies the correct

governing legal principle from [the Supreme] Court's

decisions but unreasonably applies that principle to

the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield

v. Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because

the federal habeas court would have reached a

different conclusion in the first instance.’” Titlow, 571

U.S. at ---, 134 S. Ct. at 15 (quoting Wood v. Allen,

558 U.S. 290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d

738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016). Also, deferential

review under § 2254(d) generally is limited to the record that was before the

state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an

examination of the state-court decision at the time it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,

134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a

state court blundered in a manner so ‘well understood and comprehended in

existing law’ and ‘was so lacking in justification’ that ‘there is no possibility

fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting

Richter, 562 U.S. at 102-03). This standard is “meant to be” a “difficult” one

to meet. Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s

claims were adjudicated on the merits in the state courts, they must be

evaluated under 28 U.S.C. § 2254(d).

B. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

assistance of counsel. That right is denied when a defense attorney’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per

curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct.

2052.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 104 S. Ct.

2052. It is not enough “to show that the errors had

some conceivable effect on the outcome of the

proceeding.” Id., at 693, 104 S. Ct. 2052. Counsel’s

errors must be “so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Id., at

687, 104 S. Ct. 2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet

the prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d

1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient prejudice, which

we expect will often be so, that course should be followed.” Strickland, 466

U.S. at 697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation

is a most deferential one.” Richter, 562 U.S. at ---,

131 S. Ct. at 788. But “[e]stablishing that a state

court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult. The

standards created by Strickland and § 2254(d) are

both highly deferential, and when the two apply in

tandem, review is doubly so.” Id. (citations and

quotation marks omitted). “The question is not

whether a federal court believes the state court’s

determination under the Strickland standard was

incorrect but whether that determination was

unreasonable — a substantially higher threshold.”

Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S. Ct.

1411, 1420, 173 L.Ed.2d 251 (2009) (quotation marks

omitted). If there is “any reasonable argument that

counsel satisfied Strickland’s deferential standard,”

then a federal court may not disturb a state-court

decision denying the claim. Richter, 562 U.S. at ---,

131 S. Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference — this one to a state court’s decision — when we

are considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As

such, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

As Ground One, George alleges counsel was ineffective when he failed

to depose and call Deputy H.R. Brooks as a witness. Petition at 5. He states

that both Deputy Brooks and Officer Donald Crews responded to the crime

scene, which resulted in conflicting reports of the incident. Id. George raised

a substantially similar claim as ground one of his Rule 3.850 Motion. Id. at

695-97. In denying relief on ground one, the postconviction court stated in

pertinent part:

This allegation is in regard to Deputy H.R.

Brooks of the Jacksonville Sheriff’s Office. The

Defendant outlines the testimony that the Detective

would have given as summarized in the police

reports. The Defendant claims in his allegation that

Detective Brooks was listed in the State’s discovery

exhibit. The Defendant did not attach such [an]

exhibit to this Motion. The court record shows that

there are only two State’s discovery exhibits and one

Defense discovery exhibit. Detective Brooks is not

listed on any of those discovery exhibits.

The Defendant does not allege how the

testimony would have affected the outcome of the

trial. The Detective’s testimony as listed by the

Defendant in his allegation, if taken as true, actually

supports the verdict of guilty in that the Detective’s

summation is consistent with the evidence at trial.

The Defendant cannot show how the failure to depose

and call this witness proves that Counsel was

deficient. Assuming arguendo, that Counsel’s

performance was deficient, this Defendant cannot

show prejudice. Two minor children testified that the

Defendant rang the bell, broke their front door, and

stepped into the residence. The Defendant made

statements to detectives that he broke into the home

to steal a gaming system to sell on the street for a

little money. The failure to depose and call Detective

Brooks does not create a probability sufficient to

undermine confidence in the reliability of the verdict.

Consequently, the Defendant is not entitled to relief.

Id. at 720 (record citations and emphasis omitted). The First DCA per curiam

affirmed the denial of relief without a written opinion. Id. at 787.

To the extent that the First DCA decided the claim on the merits,3 the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s

adjudication of this claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of

3 Throughout this Order, in looking through the appellate court’s per curiam

affirmance to the circuit court’s “relevant rationale,” the Court presumes that the

appellate court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.

the evidence presented in the state court proceedings. Thus, George is not

entitled to relief on the basis of this claim.

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

not entitled to deference, George’s ineffectiveness claim is without merit. To

prove the offense of burglary of an occupied dwelling, the State had to

demonstrate George entered a structure owned by the victim, and, at the

time of entering the structure, George had the intent to commit a theft in

that structure. Doc. 17-1 at 65; Fla. Std. Jury. Instr. (Crim.) 13.1.

Additionally, the State was required to show “there was another human

being in the structure, at the time [George] entered or remained in the

structure.” Id. at 67. In his Rule 3.850 Motion, George alleged Deputy Brooks

would have testified that George “kicked in [the victim’s] front door while she

was at work; that her two minor children were in the house during the

incident and confronted [George]; that [George] fixed the front door and fled

the scene; that [George] did not touch anything but the front door of the

home.”4 Doc. 17-1 at 695. Therefore, the alleged testimony from Deputy

Brooks would have supported a finding that George committed elements of

4 The Court further notes that Deputy Brooks’s alleged testimony does not

materially conflict with Officer Crews’s trial testimony or report. Doc. 17-1 at 16,

389-90.

the offense. As such, counsel was not deficient when he failed to call Brooks

as a witness.

Even assuming arguendo deficient performance by counsel, George has

not shown any resulting prejudice. Other witnesses at trial provided

testimony similar to the proposed testimony of Deputy Brooks. The victim’s

sons testified that George broke the front door and entered the house while

they were inside it. Id. at 341-44, 357, 359 Detective Vincent Agresano and

Officer Donald Crews confirmed that George confessed to breaking the front

door and entering the house with the intent to steal electronics and video

games. Id. at 389, 402, 406-407. Therefore, Deputy Brooks would only have

provided cumulative testimony. George has not shown a reasonable

probability exists that the outcome of the case would have been different if

counsel had called Deputy Brooks as a witness. His ineffectiveness claim is

without merit because he has shown neither deficient performance nor

resulting prejudice. Accordingly, George is not entitled to federal habeas

relief on the claim in Ground One.

B. Ground Two

In Ground Two, George contends that counsel was ineffective when he

failed to file a motion to suppress George’s confession. Petition at 7.

According to George, law enforcement officers never advised him of his

Miranda5 rights when they arrested him at his mother’s house. Id. George

therefore argues “any claimed confession at his home [is] void absen[t] being

Mirandized at the jail.” Id.

George raised a substantially similar claim as ground one-subclaim two

of his Rule 3.850 Motion. Doc. 17-1 at 697-700. In denying relief, the

postconviction court stated in pertinent part:

The Defendant alleges that Counsel should

have objected to the admission of his statements to

the Detective and that Counsel should have argued in

the Motion for Judgment of Acquittal that the State

failed to prove an element of burglary independent of

the Defendant’s statement. The argument is without

merit. There was evidence at trial from the minor

witnesses that the Defendant broke the door and

stepped into the residence. See Campbell v. State,

139 So. 3d 490, 498 (Fla. 2d DCA 2014). Therefore,

the Defendant is not entitled to relief.

Id. at 721. The First DCA per curiam affirmed the denial of relief without a

written opinion. Id. at 787.

To the extent that the First DCA decided the claim on the merits, the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

5 Miranda v. Arizona, 384 U.S. 436 (1966).

and the applicable law, the Court concludes that the state court’s

adjudication of this claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, George is not

entitled to relief on the basis of this claim.

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

not entitled to deference, George’s ineffectiveness claim is without merit. The

record reflects that Officer Crews apprehended George at his mother’s house

and advised him of his Miranda rights, including the right to remain silent

and to retain an attorney. Doc. 17-1 at 387-88. Officer Crews noted that

George agreed to speak with him. Id. at 389. George admitted to Officer

Crews that he intended to steal video games and a video game system from

the victim, so he forced open the door to her house. Id. at 389. Officer Crews

then arrested George. Id. at 390. Following George’s transfer to the police

station, Detective Agresano interviewed him. Id. at 401. Detective Agresano

testified that because George could not read or write, he read each Miranda

right to George and asked him if he understood it, after which George

initialed the line on the form. Id. Detective Agresano asked George “if he had

any questions about the entire rights.” Id. He testified George did not have

any questions and signed the form, after which George agreed to speak with

him. Id. at 401-02.

Based on the above, counsel had no basis to file a motion to suppress

the confession. Law enforcement officers advised George of his Miranda

rights on two occasions, and George provided a knowing, intelligent, and

voluntary waiver of those rights. See Ramirez v. State, 739 So. 2d 568, 575

(Fla. 1999) (noting that a suspect must knowingly, intelligently, and

voluntarily waive his Miranda rights). Counsel is not deficient for failing to

raise a meritless argument. See Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d

1136, 1142 (11th Cir. 2005) (holding counsel cannot be ineffective for failing

to raise a meritless argument). As such, George has failed to carry his burden

of showing that his counsel’s representation fell outside that range of

reasonably professional assistance.

Even assuming arguendo deficient performance by counsel, George has

not shown any resulting prejudice. He has not shown that a reasonable

probability exists that the outcome of the case would have been different if

counsel had acted as George claims he should have. His ineffectiveness claim

is without merit because he has shown neither deficient performance nor

resulting prejudice. Therefore, George is not entitled to federal habeas relief

on the claim in Ground Two.

C. Ground Three

Lastly, George argues counsel was ineffective when he failed to request

a jury instruction on abandonment. Petition at 8. He maintains that he left

the victim’s house without taking anything; therefore, he abandoned any

“intent to ‘take’ from within the dwelling.” Id. George raised a similar claim

as ground one-subclaim three of his Rule 3.850 Motion. Doc. 17-1 at 700-03.

In denying relief, the postconviction court stated in pertinent part:

The Defendant’s allegation is without merit.

The undisputed facts of the case show that the home

in question was occupied by two minor children at the

time of the incident. The dispute in the case was

whether Defendant’s actions of breaking the door

were accidental and/or whether he abandoned the

intent. Trial Counsel in this case requested the lesser

included offenses of Attempted Burglary, Criminal

Mischief and a special instruction on Abandonment.

The Defendant cannot show that Counsel’s

performance was deficient or that he was prejudiced.

These requests were supported by the evidence,

covered the theory of defense, was a correct

statement of the law, and was not misleading or

confusing to the jury. Therefore, the Defendant is not

entitled to relief.

Id. at 721-22 (record citation omitted). The First DCA per curiam affirmed

the denial of relief without a written opinion. Id. at 787.