Disdier v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DAVID DISDIER,

Applicant,

v. CASE NO. 8:15-cv-762-SDM-TGW

SECRETARY, DEPARTMENT OF

CORRECTIONS,

Respondent.

___________________________________/

ORDER

David Disdier applies for the writ of habeas corpus under 28 U.S.C. § 2254

(Doc. 1) and challenges the validity of his state convictions for conspiring to commit

racketeering, trafficking in illegal drugs, and conspiring to traffic heroin, for which

convictions Disdier serves thirty years imprisonment.

Facts1

Disdier lived with Jose Rivera and Rivera’s girlfriend, Shannon Hernandez.

Rivera bought heroin in New York and Colombia, which Disdier and Hernandez

helped him sell in Florida. Disdier had a mobile phone on which buyers would call

to purchase heroin. Police surveillance resulted in the interception and recording of

phone calls between Disdier and various individuals for the purchase of heroin.

1 This factual summary derives from Disdier’s brief on direct appeal and the record.

(Doc. 16, Exs. 7, 11)

Disdier and Rivera met Fredy Ospina, who helped Rivera import heroin. Ospina

arranged for Rivera to pick up heroin in New York. Disdier accompanied Rivera on

the trip. During their return to Tampa, the police stopped their vehicle and a

subsequent search resulted in the discovery of MDMA, methamphetamine, heroin,

and cocaine.

Disdier, Rivera, Ospina, Hernandez, and another co-defendant were arrested.

Disdier was charged with racketeering (count one), RICO conspiracy (count two),

trafficking in illegal drugs (count nine), trafficking in MDMA (count ten), conspiracy

to traffic heroin (count eleven), and conspiracy to traffic MDMA (count twelve).

Disdier and Rivera were tried jointly. A jury convicted Disdier on counts two, nine,

and eleven and acquitted him on counts one, ten, and twelve. He serves three

concurrent sentences of thirty years imprisonment.

Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

governs Carney’s application. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210

(11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a

highly deferential standard for federal court review of a state court adjudication,

states in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim—

(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.

In Williams v. Taylor, 529 U.S. 362, 412–13 (2000), the Supreme Court

interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a

federal habeas court to grant a state prisoner’s application for a

writ of habeas corpus with respect to claims adjudicated on the

merits in state court. Under § 2254(d)(1), the writ may issue

only if one of the following two conditions is satisfied C the

state-court adjudication resulted in a decision that (1) “was

contrary to . . . clearly established Federal Law, as determined

by the Supreme Court of the United States” or (2) “involved an

unreasonable application of . . . clearly established Federal law,

as determined by the Supreme Court of the United States.”

Under the “contrary to” clause, a federal habeas court may

grant the writ if the state court arrives at a conclusion opposite

to that reached by this Court on a question of law or if the state

court decides a case differently than this Court has on a set of

materially indistinguishable facts. Under the “unreasonable

application” clause, a federal habeas court may grant the writ if

the state court identifies the correct governing legal principle

from this Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.

“The focus . . . is on whether the state court’s application of clearly established

federal law is objectively unreasonable, . . . an unreasonable application is different

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “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.” Harrington v. Richter,

562 U.S. 86, 103 (2011). See White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical

point is that relief is available under § 2254(d)(1)’s unreasonable-application clause if,

and only if, it is so obvious that a clearly established rule applies to a given set of

facts that there could be no ‘fairminded disagreement’ on the question . . . .”) (citing

Richter); Woods v. Donald, 575 U.S. 312, 316 (2015) (“And an ‘unreasonable

application of ’ those holdings must be objectively unreasonable, not merely wrong;

even clear error will not suffice.”) (quoting Woodall, 572 U.S. at 419). Accord Brown

v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the objective reasonableness, not

the correctness per se, of the state court decision that we are to decide.”). The phrase

“clearly established Federal law” encompasses only the holdings of the United States

Supreme Court “as of the time of the relevant state-court decision.” Williams v.

Taylor, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. “The [AEDPA]

modified a federal habeas court’s role in reviewing state prisoner applications in

order 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. at 694. A

federal court must afford due deference to a state court’s decision. “AEDPA

prevents defendants—and federal courts—from using federal habeas corpus review

as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett,

559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011)

(“This is a ‘difficult to meet,’ . . . and ‘highly deferential standard for evaluating

state-court rulings, which demands that state-court decisions be given the benefit of

the doubt’ . . . .”) (citations omitted). If the last state court to decide a federal claim

explains its decision in a reasoned opinion, a federal habeas court reviews the

specific reasons as stated in the opinion and defers to those reasons if they are

reasonable. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018) (“[A] federal habeas court

simply reviews the specific reasons given by the state court and defers to those

reasons if they are reasonable.”). When the relevant state-court decision is not

accompanied with reasons for the decision, 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, 138 S. Ct. at 1192. “[T]he State may rebut the presumption by

showing that the unexplained affirmance relied or most likely did rely on different

grounds than the lower state court’s decision . . . .” Wilson, 138 S. Ct. at 1192.

The state court on direct appeal affirmed Disdier’s convictions and sentences.

(Doc. 16, Ex. 13) The state appellate court affirmed the denial of Disdier’s state Rule

3.850 motion for post-conviction relief. (Doc. 16, Ex. 24) A state appellate court’s

per curiam affirmance warrants deference under Section 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.), reh’g and reh’g en banc denied,

278 F.3d 1245 (2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003). See

also Richter, 562 U.S. at 99 (“When a federal claim has been presented to a state court

and the state court has denied relief, it may be presumed that the state court

adjudicated the claim on the merits in the absence of any indication or state-law

procedural principles to the contrary.”), and Bishop v. Warden, 726 F. 3d 1243,

1255–56 (11th Cir. 2013) (describing the difference between an “opinion” or

“analysis” and a “decision” or “ruling” and explaining that deference is accorded the

state court’s “decision” or “ruling” even absent an “opinion” or “analysis”).

As Pinholster, 563 U.S. at 181–82, explains, review of the state court decision is

limited to the record that was before the state court:

We now hold that review under § 2254(d)(1) is limited to the

record that was before the state court that adjudicated the claim

on the merits. Section 2254(d)(1) refers, in the past tense, to a

state-court adjudication that “resulted in” a decision that was

contrary to, or “involved” an unreasonable application of,

established law. This backward-looking language requires an

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

It follows that the record under review is limited to the record

in existence at that same time, i.e., the record before the state

court.

Disdier bears the burden of overcoming by clear and convincing evidence a

state court factual determination. “[A] determination of a factual issue made by a

State court shall be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact

but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836

(11th Cir.), cert. denied, 534 U.S. 1046 (2001).

Ineffective Assistance of Counsel

Disdier claims ineffective assistance of counsel, a difficult claim to sustain.

“[T]he cases in which habeas petitioners can properly prevail on the ground of

ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d

1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th

Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that

Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of

counsel claim:

The law regarding ineffective assistance of counsel claims is

well settled and well documented. In Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the

Supreme Court set forth a two-part test for analyzing ineffective

assistance of counsel claims. According to Strickland, first, the

defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the defendant

must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose

result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

Strickland requires proof of both deficient performance and consequent

prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an

ineffective assistance claim . . . to address both components of the inquiry if the

defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When

applying Strickland, we are free to dispose of ineffectiveness claims on either of its

two grounds.”). “[C]ounsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct

on the facts of the particular case, viewed as of the time of counsel’s conduct.”

466 U.S. at 690. Strickland requires that “in light of all the circumstances, the

identified acts or omissions were outside the wide range of professionally competent

assistance.” 466 U.S. at 690.

Disdier must demonstrate 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.” 466 U.S. at 691. To meet this burden, Disdier 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.” 466 U.S. at 694.

Strickland cautions that “strategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually unchallengeable; and strategic

choices made after less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the limitations on

investigation.” 466 U.S. at 690–91. Disdier cannot meet his burden merely by

showing that the avenue chosen by counsel proved unsuccessful.

The test has nothing to do with what the best lawyers would

have done. Nor is the test even what most good lawyers would

have done. We ask only whether some reasonable lawyer at the

trial could have acted, in the circumstances, as defense counsel

acted at trial . . . . We are not interested in grading lawyers’

performances; we are interested in whether the adversarial

process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992). Accord Chandler v.

United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial

lawyers, in every case, could have done something more or something different. So,

omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent

or appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting

Burger v. Kemp, 483 U.S. 776, 794 (1987)). The required extent of counsel’s

investigation was addressed in Hittson v. GDCP Warden, 759 F.3d 1210, 1267 (11th

Cir. 2014), cert. denied sub nom., Hittson v. Chatman, 135 S. Ct. 2126 (2015):

[W]e have explained that “no absolute duty exists to investigate

particular facts or a certain line of defense.” Chandler, 218 F.3d

at 1317. “[C]ounsel has a duty to make reasonable

investigations or make a reasonable decision that makes

particular investigations unnecessary.” Strickland, 466 U.S. at

691, 104 S. Ct. at 2066 (emphasis added). “[C]ounsel need not

always investigate before pursuing or not pursuing a line of

defense. Investigation (even a nonexhaustive, preliminary

investigation) is not required for counsel reasonably to decline

to investigate a line of defense thoroughly.” Chandler, 218 F.3d

at 1318. “In assessing the reasonableness of an attorney’s

investigation . . . a court must consider not only the quantum of

evidence already known to counsel, but also whether the

known evidence would lead a reasonable attorney to investigate

further.” Wiggins, 539 U.S. at 527, 123 S. Ct. at 2538.

See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (confirming that counsel has

no duty to raise a frivolous claim).

Under 28 U.S.C. § 2254(d) Disdier must prove that the state court’s decision

was “(1) . . . contrary to, or involved an unreasonable application of, clearly

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

(2) . . . based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” Sustaining a claim of ineffective assistance

of counsel is very difficult 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 106. See also Pinholster, 563 U.S. at 202 (An

applicant must overcome this “‘doubly deferential’ standard of Strickland and [the]

AEDPA.”), Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911 (11th Cir. 2011)

(“Double deference is doubly difficult for a petitioner to overcome, and it will be a

rare case in which an ineffective assistance of counsel claim that was denied on the

merits in state court is found to merit relief in a federal habeas proceeding.”), and

Pooler v. Sec’y, Dep’t of Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) (“Because we must

view Pooler’s ineffective counsel claim C which is governed by the deferential

Strickland test C through the lens of AEDPA deference, the resulting standard of

review is ‘doubly deferential.’”), cert. denied, 134 S. Ct. 191 (2013).

I. Trial court error

Ground One

Disdier contends that the trial court violated his rights under the Sixth and

Fourteenth Amendments by providing to the jury an English translation of the

intercepted telephone calls between Rivera and him, which conversations were

originally recorded in Spanish. Disdier claims that Detective Jose Feliciano, who

neither qualified as an interpreter nor personally monitored the original recorded

conversations, translated the Spanish conversation to English and that the English

transcripts were provided to the jury while the prosecutor played the Spanish audio

recordings during the trial. Disdier alleges that the “recorded conversations were

completely unintelligible to the jurors because the conversations were in Spanish and

none of the jurors spoke or understood Spanish.” (Doc. 1, p. 5) As a result, “the

jurors had no choice but to displace the actual tape as the sole evidence upon which

to rely” and “[t]he transcripts were transformed into independent evidence of the

recorded statements.” (Id.)

The respondent opposes this ground as unexhausted and procedurally

defaulted because Disdier argued on direct appeal only a violation of state law.

Disdier in his amended reply recognizes the default but asserts entitlement to federal

review under Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413

(2013). Disdier argues that his appellate counsel failed to assert this ground in the

appellate brief. (Doc. 23 at 3)

An applicant must present each claim to a state court before raising the claim

in federal court. “[E]xhaustion of state remedies requires that petitioners ‘fairly

presen[t]’ federal claims to the state courts in order to give the State the ‘opportunity

to pass upon and correct’ alleged violations of its prisoners’ federal rights.” Duncan v.

Henry, 513 U.S. 364, 365 (1995), Picard v. Connor, 404 U.S. 270, 275 (1971). Accord

Rose v. Lundy, 455 U.S. 509, 518–19 (1982) (“A rigorously enforced total exhaustion

rule will encourage state prisoners to seek full relief first from the state courts, thus

giving those courts the first opportunity to review all claims of constitutional error.”),

and Upshaw v. Singletary, 70 F.3d 576, 578 (11th Cir. 1995) (“[T]he applicant must

have fairly apprised the highest court of his state with the appropriate jurisdiction of

the federal rights which allegedly were violated.”). Also, an applicant must present

to the federal court the same claim presented to the state court. Picard v. Connor, 404

U.S. at 275 (“[W]e have required a state prisoner to present the state courts with the

same claim he urges upon the federal courts.”). “Mere similarity of claims is

insufficient to exhaust.” Henry, 513 U.S. at 366.

As Baldwin v. Reese, 541 U.S. 27, 32 (2004), explains, an applicant must alert

the state court that he is raising a federal claim and not just a state law claim:

A litigant wishing to raise a federal issue can easily indicate the

federal law basis for his claim in a state court petition or brief,

for example, by citing in conjunction with the claim the federal

source of law on which he relies or a case deciding such a claim

on federal grounds, or by simply labeling the claim “federal.”

As a consequence, “[i]t is not enough that all the facts necessary to support the

federal claim were before the state courts, or that a somewhat similar state-law claim

was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982). See also Kelley v. Sec’y for Dep’t

of Corr., 377 F.3d 1271, 1345 (11th Cir. 2004) (“The exhaustion doctrine requires a

habeas applicant to do more than scatter some makeshift needles in the haystack of

the state court record.”) (citations omitted).

When Disdier presented this ground to the state court in his appellate brief he

cited only state cases and did not assert a violation of a federal constitutional right.

(Doc. 16, Ex. 11 at 26–31 ) Disdier neither cited a federal case or a federal

constitutional provision, nor labeled the claim “federal.” Consequently, Disdier did

not “fairly present” this ground to the state court. See Baldwin, 541 U.S. at 27; Lucas

v. Sec’y, Dep’t of Corr., 682 F.3d 1342, 1352 (11th Cir. 2012) (“In other words, ‘to

exhaust state remedies fully the petitioner must make the state court aware that the

claims asserted present federal constitutional issues.’”) (quoting Jimenez v. Fla. Dep’t

of Corr., 481 F.3d 1337, 1342 (11th Cir. 2007)); Preston v. Sec’y, Fla. Dep’t of Corr., 785

F.3d 449, 458 (11th Cir. 2015) (finding that Baldwin and Lucas “stand for the

proposition that an applicant with a claim that could arise under either state or

federal law must clearly indicate to the state courts that he intends to bring a federal

claim”).

Disdier’s failure to present to the state court a federal claim challenging the

admission of the transcripts deprived the state court of a “full and fair opportunity to

resolve any constitutional issues by invoking one complete round of the State’s

established appellate review process.” Boerckel, 526 U.S. at 845. State procedural

rules preclude Disdier from returning to state court to present his federal claim in a

second, untimely direct appeal. See Fla. R. App. P. 9.140(b)(3). Disdier’s failure to

properly present his federal claim in the state court results in a procedural default.

See Shinn v. Ramirez, 142 S. Ct. 1718, 1732 (2022) (noting that if a prisoner failed to

present a federal claim to the state court and the state court would dismiss the claim

based on a procedural failure, the claim is technically exhausted because, in the

habeas context, “state-court remedies are . . . ‘exhausted’ when they are no longer

available, regardless of the reason for their unavailability.”) (quoting Woodford v. Ngo,

548 U.S. 81, 92–93 (2006)).

“If the [applicant] 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 applicable.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To

establish cause for a procedural default, an applicant “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). To show

prejudice, an applicant must demonstrate not only that an error at the trial created

the possibility of prejudice but that the error worked to her actual and substantial

disadvantage and infected the entire trial with error of constitutional dimension.

United States v. Frady, 456 U.S. 152 (1982). In other words, an applicant must show

at least a reasonable probability of a different outcome. Henderson, 353 F.3d at 892.

In his amended reply Disdier acknowledges the default of ground one but

argues entitlement to federal review under Martinez and Trevino based on his

appellate counsel’s failure in the appellate brief to federalize the claim challenging

the use of the transcripts. (Doc. 23 at 2) Disdier’s reliance on Martinez and Trevino

is misplaced. Martinez recognizes a narrow exception to the exhaustion requirement

announced in Coleman v. Thompson, 501 U.S. 722 (1991), for a claim of ineffective

assistance of trial counsel. Martinez holds that, “[w]here, under state law, claims of

ineffective assistance of trial counsel must be raised in an initial review collateral

proceeding, a procedural default will not bar a federal habeas court from hearing a

substantial claim of ineffective assistance at trial if, in the initial review collateral

proceeding, there was no counsel or counsel in that proceeding was ineffective.”2

566 U.S. at 17. “By its own emphatic terms, the Supreme Court’s decision in

Martinez is limited to claims of ineffective assistance of trial counsel that are

otherwise procedurally barred due to the ineffective assistance of post conviction

counsel.” Gore v. Crews, 720 F.3d 811, 816 (11th Cir. 2013). Because Ground One

alleges a federal due process violation and not the ineffective assistance of trial

counsel, Martinez’s narrow holding will not excuse Disdier’s procedural default.

To the extent that Disdier asserts the ineffective assistance of appellate counsel

as cause for the procedural default of a claim of trial court error, Disdier must have

first exhausted the ineffective assistance of appellate counsel claim. See Edwards v.

Carpenter, 529 U.S. 446, 450–51 (2000) (concluding that a federal habeas court is

barred from considering a procedurally defaulted ineffective assistance of counsel

claim as cause for procedural default of another claim); Hill v. Jones, 81 F.3d 1015,

1029–31 (11th Cir. 1996) (noting that the Supreme Court’s jurisprudence on

procedural default dictates that a procedurally defaulted claim of ineffective

assistance of counsel cannot serve as cause to excuse a default of a second claim).

Because Florida procedural rules preclude Disdier from filing an untimely state

habeas petition alleging the ineffective assistance of appellate counsel, that claim is

itself procedurally defaulted. Without independent cause and prejudice showing

why the procedurally defaulted ineffective assistance of appellate counsel claim can

2 Trevino expanded Martinez’s exception to states that effectively prohibit a defendant from

raising an ineffective assistance of counsel claim on direct appeal. Trevino, 569 U.S. at 429.

now be considered, see Edwards, 529 U.S. at 452–53, appellate counsel’s

ineffectiveness cannot excuse the procedural default of Disdier’s trial court error

claim. Accordingly, Disdier fails to establish cause and prejudice to overcome the

procedural default of ground one. He cannot meet the “fundamental miscarriage of

justice” exception because he presents no “new reliable evidence” of actual

innocence. Schlup, 513 U.S. at 327. Because Disdier satisfies neither exception to

procedural default, ground one is procedurally barred from federal review.

II. Ineffective assistance of trial counsel

Ground Five

Disdier contends that his trial counsel rendered ineffective assistance by not

moving to suppress “wiretap evidence.” First, Disdier claims that a “warrant”

authorized a wiretap on telephone number 813-601-4020 for only thirty days between

October 8, 2002, and November 7, 2002. He asserts that “he was recorded on

December 1, 2002, providing incriminating testimony on a wiretap,” and that “[t]his

evidence was very damaging to [him] as it was the only thing directly linking him to

the possibility of having knowledge of the crimes his co defendant was involved in

regarding the trip to New York.” (Doc. 1 at 13) Disdier alleges that his trial counsel

should have discovered this “critical limitation” and moved to suppress all

recordings intercepted between November 8, 2002, and December 3, 2002. Disdier

alleges that suppression of the incriminating statements recorded on December 1,

2002, would have resulted in his acquittal.

Second, Disdier claims that incriminating evidence was derived from a

telephone number not listed in any interception order. He argues that while on their

return trip to Florida from New York, he and Rivera purchased a cellular telephone

in North Carolina with telephone number (813) 220-9118. Disdier contends that no

warrant authorized wiretapping for this telephone number and that the evidence

derived from this phone is “fruit of the poisonous tree which was highly prejudicial

when considering it is where law enforcement obtained information to track [him] all

the way down the coast to where he was finally pulled over and arrested, as well as

incriminating evidence of drugs found in the vehicle.” (Doc. 1 at 13) Disdier asserts

that, absent trial counsel’s alleged error, a reasonable probability exists that the trial

court would have suppressed this evidence, resulting in his acquittal.

Disdier admits that this ground is unexhausted because he failed to present the

ground to the state court but argues entitlement to a merits review under Martinez.

The respondent argues that Disdier is not entitled to federal review because he fails

to satisfy Martinez.

Disdier fails to show that ground five is a “substantial” claim. First, the

record includes an order entered by a state circuit court judge on November 8, 2002,

extending for thirty days the authorization of interception for phone number

813-601-4020. Consequently, Disdier cannot establish that his trial counsel rendered

ineffective assistance by not moving to suppress the communications intercepted

between November 8, 2002, and December 3, 2002, based on an unauthorized

wiretap.

Second, the record shows that, although no “warrant” authorized a wiretap of

telephone number 813-220-9118, the state obtained an order for “cell site location”

of the cellular telephone with this phone number. In response to an earlier order

(Doc. 33) the respondent submits a copy of an email from the Tampa Police

Department which advises that an order for cell site location was signed by a state

court judge allowing law enforcement to track this cellular phone. (Doc. 35, Ex. 49)3

3 The email states as follows:

On December 2[], 2002; I [sic] call was intercepted to 813-601-4020

. . . from a telephone facility of 813-220-9118. During the call JOSE

RIVERA advised an individual known as “LUIS” that they were still

there but would be back soon. It was apparent from this

communication that RIVERA and DISDIER were in New York and

were utilizing 813-220-9118 to communicate there and back to

Tampa. An order for Cell Site location was drafted by ASA Darrell

Dirks and signed by Judge Robert Foster on December 4[], 2002.

This order allowed us to track RIVERA and DISDIER and the two

female[s] as they traveled from New York to Tampa.

The respondent submits a copy of an investigative report from the Tampa Police Department

that includes the following notation about the tracking of the cellular telephone (Doc. 35, Ex. 42

at 26):

On December 1st 2002 RIVERA called WENDY LEMEN and

advised her that he needed her to do a “big favor” for him. I observed

RIVERA and LEMEN leave 7535 North Armenia Avenue with

RIVERA driving a tan Lexus registered to LEMEN and LEMEN

driving a white Lexus registered to RIVERA. Calls were intercepted

on or around December 1st 2002 in which RIVERA was advised by

“Prieto” that he had “1000 pesos” for him and that he needed

RIVERA to travel to New York to receive it. A call was intercepted

after that between DISDIER and his girlfriend JENNIFER

GONZALEZ in which DISDIER advised her that he needed to

travel to New York because they “had a whole one for them.”

Surveillance was initiated at 7535 Armenia Avenue and Det.

Massucci observed RIVERA and DISDIER leave the shop in a [t]an

Lexus. Calls were intercepted prior to this in which they advised that

they had to “pick up the girls.” RIVERA and DISDIER left the

813-601-4020 phone with “BIG BOY” when they left town, but

another number that they were using, (813) 220-9118, was identified

while they were still in New York City, and cellular site information

on that phone was utilized to track them as they traveled back to

Tampa on December 4th, 2002. They were stopped in WENDY

(continued…)

Disdier neither presents evidence to substantiate his allegation that any evidence

derived from the cellular telephone is “fruit of the poisonous tree” nor establishes a

basis for suppressing the evidence. Consequently, Disdier cannot satisfy Martinez to

overcome the default of his ground of ineffective assistance of counsel because the

ground is not “substantial.” See Hittson, 759 F.3d at 1271 (“Because Hittson has not

alleged any facts to warrant a finding of Strickland prejudice, his . . . claim is not

‘substantial.’”). Disdier cannot meet the fundamental miscarriage of justice

exception because he presents no new reliable evidence of actual innocence. Schlup,

513 U.S. at 327. Because Disdier satisfies neither exception to procedural default,

ground five is procedurally barred from federal review.

Ground Six

Disdier contends that his trial counsel rendered ineffective assistance by

misadvising him about the maximum penalty he faced if convicted at trial, which

advice caused him to reject a favorable plea offer. Disdier alleges that before the trial

his counsel advised him that the State extended a plea offer of fifteen years

imprisonment and that he faced a mandatory minimum sentence of twenty-five years

imprisonment if convicted by a jury. Disdier argues that “counsel’s advice was

misleading where the minimum sentence [he] could receive was a 25 year

minimum-mandatory with a possibility of a 30 year sentence being imposed.”

(Doc. 1 at 14) Following his convictions at trial Disdier was sentenced to thirty years

LEMEN’S tan Lexus as they arrived in Tampa. They were stopped at

N. 30th Street and East Fletcher Avenue and DISDIER was

driving . . . .

imprisonment with a twenty-five-year mandatory minimum. (Doc. 18, Ex. 9)

Disdier claims that absent counsel’s alleged misadvice, he would have accepted the

fifteen-year plea offer.

Disdier admits that this ground is unexhausted because he failed to present the

ground to the state court but argues entitlement to a merits review under Martinez.

The respondent argues that Disdier is not entitled to federal review because he fails

to satisfy Martinez.

The Sixth Amendment right to counsel “extends to the plea-bargaining

process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012). When an applicant alleges that

counsel’s deficient performance caused him to reject a plea offer, he must

demonstrate that, if not for counsel’s deficient performance, a reasonable probability

exists that (1) he would have accepted the plea offer and the State would not have

withdrawn the offer; (2) the court would have accepted the plea; and (3) the

conviction or sentence, or both, under the terms of the plea offer would have been

less severe than that which was imposed. Lafler, 566 U.S. at 163–64.

Disdier fails to satisfy Lafler’s requirements. He submits a letter from his trial

counsel in which counsel advises him about the plea offer and possible minimum

mandatory sentence (Doc. 23, Ex. B):

This is to advise you that [t]he plea offer provided to you in my

letter of July 20, 2004 . . . will be withdrawn on Tuesday,

September 7th, 2004.[4] At that time, the State intends to

proceed to trial. As previously explained to you[,] if you are

convicted as charged, you face a minimum mandatory

twenty-five (25) years in Florida State Prison. You admitted to

the possession of the ecstasy, which carries a maximum

sentence of fifteen (15) years in Florida State Prison. I would

strongly advise you accepting the State’s offer. It does not make

sense to expose yourself to a substantially increased prison term

when the best outcome at trial would still result in exposure up

to fifteen (15) years in Florida State Prison (the same as the

State’s offer).

The letter shows only that counsel advised Disdier of the minimum

mandatory sentence and the sentence he faced on one charge but does not support

Disdier’s contention that his trial counsel misadvised him about the maximum

sentence he faced if convicted of a first-degree felony. He presents no evidence

establishing either that he would have accepted the plea offer or that the State would

not have withdrawn the offer or that the court would have accepted the plea.

Because Disdier fails to show that his claim of ineffective assistance of trial counsel

has “some merit,” he cannot establish that the claim is “substantial” under Martinez

to satisfy the cause and prejudice exception to procedural default. See Clark, 988

F.3d at 1331. He cannot meet the “fundamental miscarriage of justice” exception

because he presents no “new reliable evidence” that he is actually innocent. Schlup,

4 The July 20, 2004, letter from counsel states (Doc. 32-1, App’x A):

This is to advise you that because there is a new prosecutor on your

case, the State has made a new offer. Under the terms of the original

agreement, the State is Agreeable to a maximum sentence of fifteen

(15) years Florida State Prison. At the conclusion of all the

Defendant’s cases, the Court would determine your sentence. You

could be sentenced anywhere from probation (very unlikely) to fifteen

(15) years Florida State Prison. Please advise how you want to

proceed as soon as possible.

513 U.S. at 327. Disdier’s failure to establish either exception to procedural default

renders the ground procedurally barred from federal review.

Ground Seven

Disdier contends that his trial counsel rendered ineffective assistance during

closing argument by conceding Disdier’s “guilt to the element of knowledge of

[co-defendant] Rivera’s crimes[,] effectively taking any question out of the jury’s

deliberations, resulting in a finding of guilt on counts two, nine, and eleven.”

(Doc. 1 at 15) Disdier asserts in his amended reply that his “contention is that trial

counsel was ineffective for conceding that Petitioner had knowledge of the drugs in

his co-defendant’s vehicle that stemmed the charge[s] he is now convicted of.”

(Doc. 23 at 18) Disdier cites the following excerpts of trial counsel’s closing

argument to support this ground (Doc. 16, Ex. 7, Vol. IV at 535–37):

And [Rivera] is telling you in this affidavit, what the affidavit is

saying is that David Disdier had no knowledge. I’m not going

to insult your intelligence and tell you that David Disdier, oh

my god, it’s all a surprise. No. He may have been aware of and

may have known about Mr. Rivera’s drug deals, okay, but

that’s not a crime. Knowledge is not a crime.

The Court will instruct you what it takes to do that. I’m not

going to insult your intelligence and lead you to believe that

David Disdier was oblivious to what was going on because

obviously that was not occurring. But simply because he knows

about it doesn’t make him guilty of racketeering, conspiracy to

racketeer in the drug charges.

. . . .

The judge will give you all of the lengthy instructions . . . and

I’m summarizing, okay? I am not reading verbatim and I

submit to you that the only evidence that I’m aware of, the only

evidence whatsoever that could possibly, possibly, we’re not

talking about beyond and to the exclusion of every reasonable

doubt, we’re talking about possibly implicate David Disdier in

a racketeering organization or a conspiracy to racketeer, is a

trip to New York, okay? That’s one incident, two drugs, but

one incident. That’s the only thing.

Disdier claims that these comments were highly prejudicial when considered

with the jury instruction on conspiracy.5 Disdier admits that he did not present this

ground to the state court but argues entitlement to federal review under Martinez.

(Doc. 1 at 16)

To establish that trial counsel provided ineffective assistance by conceding

guilt, an applicant must show that such concession exists and that the concession is

unreasonable under Strickland. Florida v. Nixon, 543 U.S. 175, 189 (2004). Contrary

to Disdier’s contention, trial counsel did not concede Disdier’s guilt of either the

conspiracy charge or any other charged offense. The cited excerpts of counsel’s

closing argument include no concession that Disdier had knowledge of the drugs in

Rivera’s car. Counsel never recommended that the jury find Disdier guilty of any

charged offense. Disdier fails to show that a reasonable probability exists of a

different outcome at trial absent the challenged statements in closing argument.

Nixon, 543 U.S. at 192 (2004) (“[C]ounsel cannot be deemed ineffective for

5 Disdier cites the following excerpt of the conspiracy instruction (Doc. 16, Ex. 7, Vol. IV

at 593):

A person may become a member of a conspiracy without full

knowledge of all of the details of the unlawful scheme or the names

and identities of all of the other alleged conspirators. So if a

defendant has an understanding of the lawful nature of the plan and

knowingly and willfully joins in that plan on one occasion, that is

sufficient to convict him of conspiracy, even though he did not

participate before and even though he played only a minor part.

attempting to impress the jury with his candor and his unwillingness to engage in a

useless charade.”) (citation omitted). He cannot satisfy Martinez to overcome the

default of this ground because the ground is not “substantial.” Disdier cannot meet

the “fundamental miscarriage of justice” exception because he presents no “new

reliable evidence” that he is actually innocent. Schlup, 513 U.S. at 327. Because

Disdier satisfies neither exception to procedural default, ground seven is procedurally

barred from federal review.

Ground Eight

Disdier contends that his trial counsel rendered ineffective assistance by not

objecting to “misleading” jury instructions. Before instructing the jury, the trial

judge advised the jurors (Doc. 16, Ex. 7, Vol. IV at 583–84):

Each defendant in this case has been accused of the crimes of

conduct or participation in an enterprise through a pattern of

racketeering activity. It’s also known as RICO.

. . . .

Now, there are two sets of instructions. One applies to

defendant Rivera and one applies to defendant Disdier, but

they’re identical so I’m just going to read this set and I’m going

to use the word defendant whenever the defendant’s name

appears so it’s generically applicable to both of them.

Disdier alleges “that using the generic term ‘defendant’ in the instructions had the

same effect as using the conjunctive term ‘and/or’ in the instructions, which many

courts have held improper.” (Doc. 1 at 16) He argues that the charges between

himself and Rivera were not “identical” because he was charged with six crimes

while Rivera was charged with eight crimes. Disdier further argues that the jury was

“not properly instructed to consider each count distinctly and separately as to each

co-defendant.” (Id.) Disdier admits that he did not present this ground to the state

court but argues entitlement to federal review under Martinez.6 (Id.)

Disdier fails to show that the jury instructions were either misleading or

confusing. The trial judge instructed the jury that one set of instructions applied to

each defendant. Both Disdier and Rivera were tried on counts one, two, nine, ten,

eleven and twelve. Rivera was also tried on counts six and seven. The jury acquitted

Disdier on count one but convicted Rivera. (Doc. 16, Ex. 7, Vol. IV at 620–23)

Both defendants were convicted on counts two, nine, and eleven and acquitted on

counts ten and twelve. (Id.) Rivera was convicted on counts six and seven, for

which offenses Disdier was not charged. Disdier fails to show that the jury was

confused or mislead by the general term “defendant” in the jury instructions.

Moreover, if a jury instruction correctly states the law, the instruction does not

deprive an applicant of due process. Estelle v. McGuire, 502 U.S. 62, 71–72 (1991). A

federal habeas court must defer to the state court’s interpretation of state law.

Bradshaw v. Richey, 546 U.S. 74, 76 (2005). See also Will v. Sec’y, Dep’t of Corr., 278 F.

App’x 902, 908 (11th Cir. 2008) (“Although an ineffective assistance of counsel

claim is a federal constitutional claim, which we consider in light of the clearly

established rules of Strickland, when ‘the validity of the claim that [counsel] failed to

6 Disdier argued in his direct appeal that the trial court erred by giving the allegedly

misleading instruction. (Doc. 16, Ex. 11 at 32–34) The state appellate court denied this claim and

affirmed Disdier’s convictions and sentences. (Doc. 16, Ex. 13)

assert is clearly a question of state law, . . . we must defer to the state’s construction

of its own law.”). When Disdier challenged the jury instructions on direct appeal,

the state appellate court found no error. (Doc. 16, Ex. 13) The state appellate court

has resolved the question of what would have happened had counsel objected to the

instructions as Disdier suggests; the objection would have been overruled. See

Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1354–55 (11th Cir. 2005) (“The Florida

Supreme Court already has told us how the issues would have been resolved under

Florida state law had [the applicant’s counsel] done what [the applicant] argues he

should have done. . . .”).

Disdier cannot satisfy Martinez to overcome the default of this ground because

the ground is not “substantial.” Disdier cannot meet the “fundamental miscarriage

of justice” exception because he presents no “new reliable evidence” that he is

actually innocent. Schlup, 513 U.S. at 327. Because Disdier satisfies neither

exception to procedural default, ground eight is procedurally barred from federal

review.

Ground Nine

Disdier contends that his trial counsel rendered ineffective assistance by not

objecting to his convictions for both conspiracy to commit RICO violations (count

two) and conspiracy to traffic in cocaine (count eleven) as violative of the Fifth

Amendment. Disdier argues that, because “[t]he charges were all brought in the

same charging document and were alleged to have occurred during the same period

of time,” his convictions for both crimes result in a double jeopardy violation.

(Doc. 1 at 17) Disdier asserts that only one conspiracy existed in his case and that

the jury could not convict him of both a RICO conspiracy and a drug trafficking

conspiracy. (Doc. 23 at 22) Disdier admits that he did not present this ground to the

state court but argues entitlement to federal review under Martinez. (Id.)

The Double Jeopardy Clause of the Fifth Amendment protects a defendant

from multiple punishments for the same offense. Jones v. Thomas, 491 U.S. 376,

380–381 (1989). Under Blockburger v. United States, 284 U.S. 299 (1932), if a criminal

statute requires proof of a fact that another statute does not, then prosecution for the

same offense does not exist, even if substantial overlap exists in the evidentiary

showing for the two offenses. The “same-elements” test examines whether each

offense contains an element not contained in the other offense. “[I]f each statutory

offense requires proof of an element not contained in the other, the offenses are not

the ‘same’ and double jeopardy is no bar to cumulative punishment.” Williams v.

Singletary, 78 F.3d 1510, 1513 (11th Cir. 1996).

In Disdier’s case the RICO conspiracy and the drug trafficking conspiracy

are different crimes and require proof of different elements. 7 See Fla. Stat.

7 Disdier cites in his amended reply Negron Gil de Rubio v. State, 987 So. 2d 217 (Fla. 2d DCA

2008), to support his argument that the convictions for both the RICO conspiracy and the drug

trafficking conspiracy violate double jeopardy “because there was no evidence to suggest that a first

conspiracy was consummated, abandoned, or otherwise terminated prior to the formation of a

second conspiracy.” (Doc. 23 at 22) In Negron Gil de Rubio the state appellate court concluded under

Florida law that convictions for both conspiracy to commit drug trafficking and conspiracy to

commit racketeering violate double jeopardy principles when the evidence establishes only a single

conspiracy with several objectives. 987 So. 2d at 219. Although the state court cited Blockburger, the

court did not decide the case based on federal law or the Fifth Amendment. Disdier cites no federal

case holding that his state convictions for the two conspiracies violates the Fifth Amendment.

§§ 893.135(1)(c), 895.03(4). See also Doc. 16, Ex. 7, Vol. IV at 586–96.

Consequently, Disdier’s double jeopardy claim fails because the charges are not the

“same offense” under Blockburger. Williams, 78 F.3d at 1513. Disdier cannot satisfy

Martinez to overcome the default of this ground because the ground is not

“substantial.” He cannot meet the “fundamental miscarriage of justice” exception

because he presents no “new reliable evidence” that he is actually innocent. Schlup,

513 U.S. at 327. Because Disdier satisfies neither exception to procedural default,

ground nine is procedurally barred from federal review.

Ground Ten

Disdier contends that his trial counsel rendered ineffective assistance by not

moving to dismiss or moving to suppress evidence of probable tampering with the

heroin. Disdier alleges that Detective Massucci testified that the police confiscated

531 grams of heroin. He argues that FDLE crime laboratory analyst Barbara

Vohlken testified that when she tested the heroin, the wight was only 502.7 grams.

Disdier asserts that “[t]he only reasonable conclusion of the significant weight

differences in this evidence is that is had been tampered with, or possibly even

switched out with someone else’s evidence.” (Doc. 1 at 17) Disdier claims that

counsel should have objected to this “probable tampering.” (Id.) Disdier admits that

he did not present this ground to the state court but argues entitlement to federal

review under Martinez. (Id. at 18)

Disdier’s conclusion that the difference in weights resulted from tampering is

speculative and unsupported by evidence. Vohlken testified that she calculated the

weight of the heroin without its packaging. (Doc. 16, Ex. 7, Vol. III at 416, 419)

Detective Massucci did not testify whether he weighed the heroin with or without

the packaging. (Id. at 316) Accordingly, the presence or absence of the packaging

could account for the discrepancy in weight. Under Florida law, Disdier’s trial

counsel would have borne the initial burden of demonstrating a probability, not a

mere possibility, of tampering. Murray v. State, 838 So. 2d 1073, 1082 (Fla. 2002)

(citing State v. Taplis, 684 So. 2d 214, 215 (Fla. 5th DCA 1996)). Florida courts have

determined that a probability of tampering is shown when there is a “gross”

discrepancy in the drug weights. See Davis v. State, 89 So. 3d 1124, 1125–26 (Fla. 2d

DCA 2012). Because Disdier presents no evidence of tampering, the state trial court

would have denied a motion to suppress.

Disdier cannot satisfy Martinez to overcome the default of this ground because

the ground is not “substantial.” He cannot meet the “fundamental miscarriage of

justice” exception because he presents no “new reliable evidence” that he is actually

innocent. Schlup, 513 U.S. at 327. Because Disdier satisfies neither exception to

procedural default, ground ten is procedurally barred from federal review.

Ground Eleven

Disdier contends that his trial counsel rendered ineffective assistance by

misleading him about the reasons to not testify. In his reply Disdier concedes that he

is not entitled to relief on this ground. (Doc. 23 at 24)

Ground Twelve

Disdier contends that the cumulative effect of trial counsel’s errors results in a

denial of his constitutional rights to the effective assistance of counsel, to due

process, and to a fair trial. “Without harmful errors, there can be no cumulative

effect compelling reversal.” United States v. Barshov, 733 F.2d 842, 852 (11th Cir.

1984), cert. denied, 469 U.S. 1158 (1985). See also Conklin v. Schofield, 366 F.3d 1191,

1210 (11th Cir. 2004) (“[T]he court must consider the cumulative effect of [the

alleged errors] and determine whether, viewing the trial as a whole, [petitioner]

received a fair trial as is [his] due under our Constitution.”). Because each of

Disdier’s claims of ineffective assistance of counsel lacks merit, no cumulative

prejudicial effect results. See Spears v. Mullin, 343 F.3d 1215, 1251 (10th Cir. 2003)

(“Because the sum of various zeroes remains zero, the claimed prejudicial effect

of [counsel’s] cumulative errors does not warrant habeas relief.”); Lorraine v. Coyle,

291 F.3d 416, 447 (6th Cir.) (“The Supreme Court has not held that distinct

constitutional claims can be cumulated to grant habeas relief.”), amended on other

grounds, 307 F.3d 459 (6th Cir. 2002), cert. denied, 538 U.S. 947 (2003). Ground

twelve warrants no relief.

III. Ineffective assistance of appellate counsel

In grounds two, three, and four of his application Disdier alleges that his

appellate counsel rendered ineffective assistance. Strickland applies to a claim of

ineffective assistance of appellate counsel. Heath v. Jones, 941 F.2d 1126, 1130 (11th

Cir. 1991), cert. denied, 502 U.S. 1077 (1992). To demonstrate deficient performance,

Disdier must show that appellate counsel’s failure to discover a non-frivolous issue

and file a merits brief raising that issue fell outside the range of professionally

acceptable performance. Smith v. Robbins, 528 U.S. 259, 285–86 (2000). To

demonstrate prejudice, Disdier must show that a reasonable probability exists that,

but for appellate counsel’s unreasonable failure to file a merits brief, he would have

prevailed on appeal. Smith, 528 U.S. at 285–86.

Ground Two

Disdier contends that his appellate counsel rendered ineffective assistance by

not challenging on appeal the trial court’s denial of his motion for severance. Disdier

alleges that both he and Rivera moved for severance because Disdier planned to

defend himself by arguing that Rivera admitted guilt and committed the crimes on

his own. Disdier alleges that the denial of the motion prevented his calling Rivera to

testify that Disdier “was just riding along, unknowingly being used as a decoy . . . .”

(Doc. 1 at 7) Disdier claims that he suffered prejudice because he could not establish

his defense without Rivera’s testimony. He further claims that law enforcement

officers testified at trial to statements by Rivera about “damaged drugs” and

Disdier’s alleged role as a “business partner.” (Id.) Disdier contends that this

testimony resulted in a violation of Bruton v. United States, 391 U.S. 123 (1968),8

8 Bruton holds that the introduction at a joint trial of a co-defendant’s confession that

incriminates a defendant by name deprives that defendant of his rights under the Confrontation

Clause of the Sixth Amendment, even if the jury is instructed to consider the confession against only

the confessing co-defendant. 391 U.S at 126.

because he could not cross-examine Rivera about his statements to the police. The

state appellate court denied this ground in Disdier’s state habeas petition.

Before the trial Rivera moved to sever his trial from Disdier. Rivera argued

that Disdier’s intention to use Rivera’s allegedly exculpatory affidavit as part of his

defense at trial warranted severance. Disdier’s trial counsel adopted Rivera’s

motion. (Doc. 16, Ex. 5 at 3–5) The judge initially granted the motion. 9 However,

at a subsequent pretrial hearing, Rivera’s counsel argued that Rivera and Disdier had

antagonistic defenses and that Disdier had subpoenaed Rivera to testify. (Doc. 16,

Ex. 6 at 4) Disdier’s trial counsel advised that he had not filed a motion for

severance but had joined in Rivera’s motion. (Id.) Disdier’s counsel further advised

that Rivera’s affidavit “basically says that the—the drugs subject to charges against

Mr. Disdier were his drugs and his drugs alone.” (Id. at 5) The prosecutor argued

that the affidavit provided no basis for severance. (Id. at 6) Disdier’s counsel argued

9 Rivera’s counsel argued (Doc. 16, Ex. 5 at 3–4):

The basis of the motion, Judge, is the fact that at the last court date I

was provided with some additional discovery by the codefendant that

the codefendants tend to—or have intentions of using an affidavit

that purports to be an affidavit executed by my client whereby, in

effect, he’s incriminating himself and exculpating Mr. Disdier.

It would be my position, Judge, that it would be unfair for me to not

only have to defend against the State’s allegations, but also the

allegations of the defense of the codefendant. It’s obvious from that

affidavit that, in effect, the defense of Mr. Disdier is that he was

present, merely present, but had no guilty knowledge, where, in fact,

he's pointing the finger at, at Mr. Rivera. So what I’m asking the

Court to do is, for trial purposes, to sever the trials of the two

codefendants.

[PROSECUTOR]: I have no objection.

THE COURT: Grant the motion.

the affidavit was “substantially exculpatory” and that “it’s imperative that that

testimony or that affidavit be elicited at trial, which obviously would be

incriminating to . . . Mr. Rivera and we would join in the motion [for severance] . . .

in light of that.” (Id. at 7) The judge denied the motion for severance.

During the trial Disdier’s counsel advised the judge that he subpoenaed Rivera

as a witness. (Doc. 16, Ex. 7, Vol. IV at 462) Rivera’s counsel advised that Rivera

would assert his Fifth Amendment privilege if called to testify and renewed his

argument for severance. (Id. at 464–66) Over Rivera’s objection, his affidavit was

admitted into evidence, and Didier’s counsel read the affidavit to the jury.10 (Id.

at 476–77)

Disdier presents no evidence to substantiate his allegation that the trial judge

would have granted severance if trial counsel had moved separately on Disdier’s

behalf rather than joining in Rivera’s motion. Even if trial counsel had moved to

sever the trial, the trial court would have denied the motion, as it denied Rivera’s

motion, because the motion would have been based on the same argument––that the

defendants had antagonistic defenses. Disdier’s assertion that Rivera would have

10 Disdier’s counsel read the following to the jury (Doc. 16, Ex. 7, Vol. IV at 476):

To whom this my [sic] concern. I understand my rights and my word

is the truth. So I’m sworn to tell the truth and I hereby say, listing the

case number, 02-19806/02, that on December 4, 2002, I, Jose M.

Rivera, was illegally transporting drugs in the trunk of the car. We all

came from vacation. The passengers[,] Mr. David Disdier and Mrs.

Tiffany Almadavar and Mrs. Marie Rodriguez of the vehicle were

not aware that I was using them as a decoy. Therefore, I am taking

full responsibility.

testified on his behalf at a separate trial is speculative and conclusory. Disdier fails to

demonstrate that appellate counsel’s failure to raise this ground on appeal was

objectively unreasonable, or that there was a reasonable probability of success on

appeal had counsel presented the argument. Accordingly, Disdier fails to show that

the state court’s rejection of this ground of ineffective assistance of appellate counsel

claim was contrary to, or an unreasonable application of, clearly established federal

law. See 28 U.S.C. § 2254(d)(1), (d)(2).

Ground Three

Disdier contends that his appellate counsel rendered ineffective assistance by

not challenging on direct appeal the denial of his motion to suppress both the

contents of the intercepted wire, oral, or electronic communications and the evidence

derived from those communications. To support this ground, Disdier simply recites

the text of the motion to suppress as follows (Doc. 1 at 8):

Prior to trial Petitioner filed a motion to suppress the foregoing

evidence on (1) communications being unlawfully intercepted,

(2) authorization order being insufficient on its face,

(3) interception not made in conformity with said order,

(4) intercept application fails to provide a full and complete

statement of facts and circumstances relied upon to justify

issuance of intercept order, (5) application fails to provide

sufficient details regarding particular offense in question,

(6) application fails to state sufficient facts demonstrating that

the persons identified are involved in criminal conduct,

(7) application is devoid of factual assertions sufficient to

establish probable cause regarding alleged violations of Florida

Statute 893.135, (8) affidavit in support of application contains:

unsupported conclusion; boilerplate language regarding drug

trafficking methods; state information; information provided by

drug confidential informants devoid of establishment of

reliability, veracity, or credibility thereof; information readily

ascertainable and equally indicative of innocent conduct;

unsubstantiated assertions of alleged factual occurrences absent

date and time periods, (9) application fails to state in detail

what normal investigations have been tried and have failed or

reasonably appear unlikely to succeed if tried, and

(10) allegations supporting issuance of intercept order were so

conclusory as to violate relevant constitutional standards.

The state appellate court denied this ground of ineffective assistance of appellate

counsel in Disdier’s state habeas petition. (Doc. 16, Ex. 15)

Florida law governs whether a state law enforcement officer’s affidavit

establishes probable cause to issue a wire intercept order. United States v. Carrazana,

921 F. 2d 1557, 1562–63 (11th Cir.), cert. denied, 502 U.S. 865 (1991). “[F]ederal

courts must defer to state law on the question of the validity of wiretap orders

obtained by state law enforcement officers in state courts.” United States v. Glinton,

154 F.3d 1245, 1252–53 (11th Cir. 1998). “An order authorizing the interception of

wire, oral, or electronic communication requires a judicial finding of probable cause

for belief that an individual is committing, has committed, or is about to commit an

offense listed in section 934.07, probable cause for belief that communications about

the offense will be obtained through the interception, and a determination that

normal investigative procedures have failed, or reasonably appear to be unlikely to

succeed if tried or to be too dangerous.” State v. Jackson, 650 So. 2d 24, 27 (1995).

See Fla. Stat. § 934.09(3)(a)–(c). Cf. 18 U.S.C. § 2518(3)(a)–(c) (1998).

Rodriguez v. State, 297 So. 2d 15, 19 (Fla. 1974), explains that, under the

requirements of section 934.09(3), Florida Statutes, probable cause “may be stated as

reasonable grounds for belief that the party whose communications are to be

intercepted is committing or is about to commit one of the offenses enumerated in

[section] 934.07; that particular communications concerning that offense will be

obtained through such interception; and that the facilities or place involved in being

used or about to be used in connection with the offense.” Probable cause is based

upon the “totality of the circumstances.” Carrazana, 921 F.2d at 1563. See also

Illinois v. Gates, 462 U.S. 213, 228 (1983) (stating that probable cause is based on

whether, “given all the circumstances set forth in the affidavit . . . , there is a fair

probability that contraband or evidence of a crime will be found in a particular

place.”).

At a pretrial suppression hearing both Detective James Ford and Officer

Fernando Enriquez—the affiant and co-affiant for the wiretap application—testified

about the investigative techniques used before requesting the wiretap, including

interviews with confidential informants, physical surveillance, and pen registers.

(Doc. 16, Ex. 5 at 6–39, 53–64) The sworn application for the wiretap also described

the investigative techniques used and explained why other techniques were

impractical, unsuccessful, or too dangerous if employed. (Doc. 16, Ex. 32) Disdier

fails to establish any error in the denial of the motion to suppress. Consequently, he

fails to establish that his appellate counsel performed deficiently or that he was

prejudiced by appellate counsel’s decision to not challenge on appeal the denial of

the motion to suppress. Accordingly, Disdier fails to show that the state court’s

rejection of this ground of ineffective assistance of appellate counsel claim was

contrary to, or an unreasonable application of, clearly established federal law. See

28 U.S.C. § 2254(d)(1), (d)(2).

Ground Four

Disdier contends that his appellate counsel rendered ineffective assistance by

not challenging on direct appeal the denial of his motion to suppress his statements

to the police. Disdier claims that when the police officer read him his Miranda rights,

he was under the influence of ecstasy, which rendered him unable to knowingly and

voluntarily waive those rights. Disdier further claims that “[u]nder the totality of

circumstances of this case, including the fact that [he] was under the influence of

drugs and confused by the English language, there is a reasonable probability that

had a trained advocate . . . researched, prepared, and presented this reversible error

on appeal, a new trial would have been granted.” (Doc. 1 at 10) The state appellate

court denied this ground of ineffective assistance of appellate counsel in Disdier=s

state habeas petition. (Doc. 16, Ex. 15) Disdier concedes in his amended reply that

he is not entitled to relief on this ground. (Doc. 23 at 8) Ground four is denied.11

Accordingly, Disdier’s application for the writ of habeas corpus (Doc. 1) is

DENIED. The clerk must enter a judgment against Disdier and CLOSE this case.

11 Even absent the concession, Disdier is entitled to no relief on the merits. Detective Ford

testified at the suppression hearing that, when Disdier was advised of his Miranda rights, Disdier

expressed both an understanding of his rights and a willingness give a statement to the police.

(Doc. 16, Ex. 5 at 11, 21) He further testified that Disdier did not appear under the influence of

drugs when he agreed to speak to the police. Detective Fernando Enriquez testified that he advised

Disdier of his rights in both English and Spanish. (Id. at 36–37) Accordingly, Disdier fails to show

that the state appellate court either unreasonably applied Strickland or unreasonably determined

the facts. 28 U.S.C. § 2254(d)(1), (d)(2).

DENIAL OF BOTH

A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Disdier 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 application. 28 U.S.C. § 2253(c)(1). Rather, a district court

must first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.” To

merit a COA, Disdier must show that reasonable jurists would find debatable both

the merits of the underlying claims and the procedural issues he seeks to raise. See

28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan,

279 F.3d 926, 935 (11th Cir 2001). Because he fails to show that reasonable jurists

would debate either the merits of the claims or the procedural issues, Disdier is

entitled to neither a COA nor leave to appeal in forma pauperis.

Accordingly, a certificate of appealability is DENIED. Leave to appeal in

forma pauperis is DENIED. Disdier must obtain permission from the circuit court to

appeal in forma pauperis.

ORDERED in Tampa, Florida, on August 15, 2023.

Adonai

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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