Massaline v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CLIFTON MASSALINE,

Petitioner,

v. Case No. 3:20-cv-824-MMH-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

___________________________________

ORDER

I. Status

Petitioner Clifton Massaline, an inmate of the Florida penal system,

initiated this action on July 22, 2020, by filing a Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1) with a corresponding

memorandum of law (Supplemental Memorandum; Doc. 2).1 Massaline

challenges a 2009 state court (Duval County, Florida) judgment of conviction

for robbery. See Petition at 1; Doc. 2. Respondents have submitted a

memorandum opposing the Petition. See Response to Petition for Writ of

Habeas Corpus (Response; Doc. 7). They also submitted exhibits. See Response

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

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

Ex. 1−19. Massaline filed a Reply. See Reply to Respondents Response to

Petition for Writ of Habeas Corpus (Reply; Doc. 9). This action is ripe for

review.

II. Relevant Procedural History

On September 15, 2008, the state charged Massaline by Information

with one count of robbery. Response Ex. 1 at 9. Massaline proceeded to trial,

and on February 18, 2009, a jury found him guilty as charged in the

Information. Id. at 16. On March 26, 2009, the trial court adjudicated

Massaline as a habitual felony offender and sentenced him to a thirty-year

term of imprisonment with a fifteen-year minimum mandatory as a prison

releasee reoffender. Id. at 13−14.

On direct appeal, with the assistance of appellate counsel, Massaline

filed an initial brief. Response Ex. 7 at 3−22. He argued the trial court violated

his constitutional rights when it, rather than a jury, made the habitual felony

offender and prison releasee reoffender findings that authorized the imposition

of a greater sentence. Id. The state filed an answer brief. Response Ex. 8 at

3−14. The First District Court of Appeal (First DCA) per curiam affirmed

Massaline’s conviction and sentence without a written opinion on April 9, 2010.

Response Ex. 9 at 4. The court issued the mandate on April 27, 2010. Id. at 3.

Massaline filed a Petition for Writ of Habeas Corpus with the First DCA

on November 9, 2010, in which he raised one claim of ineffective assistance of

appellate counsel. Response Ex. 11 at 3−14. The First DCA denied the Petition

with a written opinion on January 10, 2011. Response Ex. 12 at 3.

On April 4, 2011, Massaline filed a motion for postconviction relief in

state court pursuant to Florida Rule of Criminal Procedure 3.850. Response

Ex. 16 at 7−36. In his Rule 3.850 motion, Massaline raised seven grounds of

ineffective assistance of counsel. Id. Massaline filed a supplemental motion to

his initial Rule 3.850 motion on May 20, 2011, raising two more grounds of

ineffective assistance of counsel. Id. at 54−59. The trial court entered an order

dismissing Massaline’s supplemental motion because of a facial insufficiency

and granted leave to amend on July 21, 2015. Id. at 66−68. Massaline filed a

timely amendment on August 4, 2015. Id. at 69−74.

The trial court then dismissed Massaline’s Rule 3.850 motion and

amended supplemental motion based on legal insufficiencies. Id. at 86−89.

Massaline filed a timely amended motion asserting six grounds for relief. Id.

at 90−109. Specifically, he alleged that trial counsel failed to: file a motion in

limine (ground one); object to hearsay testimony (ground two); suppress and

object to admission of out-of-court testimony from a suggestive show-up

procedure (ground three); suppress evidence of a brush (ground five); and

object to impermissible references by the prosecution (ground six). Id. The trial

court summarily denied relief on all grounds. Id. at 123−42. On March 11,

2020, the First DCA per curiam affirmed the trial court’s denial without a

written opinion. Response Ex. 18 at 3. The mandate issued on April 8, 2020.

Id. at 5.

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 [Massaline’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

Massaline raises one ground in his Petition. He contends that trial

counsel was ineffective for failing to move to suppress the admission of

identification evidence that resulted from an impermissibly suggestive and

unnecessary show-up identification procedure. Supplemental Memorandum at

2. According to Massaline, the police identification procedure was unduly

suggestive and intentionally arranged to guarantee that a witness would

identify him as the perpetrator. Id. at 5. In support of this contention,

Massaline maintains law enforcement presented him to the witness

handcuffed and “flanked by two officers.” Id. Further, Massaline alleges the

state’s identification witness was not present when the crime took place giving

rise to a substantial likelihood of misidentification. Id. at 6−7. Massaline also

argues no reasonable attorney would have proceeded to trial before moving to

suppress this identification evidence because it lacked reliability. Id. at 7.

Massaline raised this claim in his Rule 3.850 Motion. Response Ex. 16 at

96−99. The trial court summarily denied the claim, finding in relevant part:

Defendant has not alleged facts that demonstrate that the out-of-

court identification procedure resulted in a substantial likelihood

of irreparable misidentification. In this case, Defendant simply

argues that the witness was able to view the individual running

through the Home Depot parking lot from a distance of 15 to 20

feet away and could not see the individual’s facial features.

However, as indicated in Ground One, these facts would go to the

weight of the evidence and not to its admissibility. Considering the

totality of the circumstances, it is unlikely that the show-up

procedure resulted in a substantial likelihood of irreparable

misidentification. Mr. Baity was able to view the individual in a lit

parking lot and accurately described the clothing worn by the man

and the items that he was carrying. Mr. Baity also indicated that

he turned to look at the individual, because he heard him running

and indicated that his actions made him suspicious. His

description of the perpetrator’s clothing was identical to the

description that the victim gave and also to the individual that was

eventually detained by law enforcement. The record does not

reflect that Mr. Baity was uncertain about his identification,

although it was based on the individual’s clothing, size and build

rather than facial features. Finally, the show-up procedure was

conducted shortly after police had apprehended Defendant and on

the same evening that Mr. Baity had viewed the individual

running through the parking lot. Defendant has not alleged that

any conduct on the part of law enforcement aggravated the

suggestiveness of the procedure. Rather, he simply complains that

the witness saw him from a short distance and could not identify

him based on his facial features. Nonetheless, based on the totality

of the circumstances, this Court finds that Defendant has failed to

demonstrate that the out-of-court identification testimony was

improperly admitted. As such, Defendant cannot demonstrate that

counsel was ineffective for failing to move to suppress the

identification. Accordingly, Ground Three is due to be denied.

Response Ex. 16 at 133−34. The First DCA per curiam affirmed the trial court’s

summary denial without a written opinion. Response Ex. 18 at 3. To the extent

that the First DCA affirmed the trial court’s denial 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 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. As a result, Massaline is not entitled

to relief on the basis of this claim.

Even if the state court’s adjudication of this claim is not entitled to

deference, Massaline’s claim lacks merit. The Eleventh Circuit Court of

Appeals has instructed that, “[a]lthough show-ups are widely condemned,

immediate confrontations allow identification before the suspect has altered

his appearance and while the witness’ memory is fresh, and permit the quick

release of innocent persons.” Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir.

1987) (internal citation omitted). Nevertheless, the Supreme Court has

recognized “a due process check on the admission of eyewitness identification.”

Perry v. New Hampshire, 565 U.S. 228, 232 (2012). An eyewitness

identification violates due process and is subject to exclusion, if the

“identification procedure used by the police [is] unnecessarily suggestive and

create[s] a substantial risk of misidentification.” Johnson, 817 F.2d at 729

(citing Neil v. Biggers, 409 U.S. 188, 198−99 (1972)).

To determine whether an identification violates due process, a court

undertakes a two-part analysis. “First, we must determine whether the

original identification procedure was unduly suggestive . . . . If we conclude

that the identification procedure was suggestive, we must then consider

whether, under the totality of the circumstances, the identification was

nonetheless reliable.” Cikora v. Dugger, 840 F.2d 893, 895 (11th Cir. 1988)

(citing Biggers, 409 U.S. at 199). Even if the procedure used by law

enforcement is both suggestive and unnecessary, suppression is not an

“inevitable consequence.” Perry, 565 U.S. at 239.

In Biggers, the Supreme Court identified five factors to consider when

determining whether a witness identification was reliable. Those factors are:

the witness’s opportunity to view the suspect at the time of the crime, the

witness’s degree of attention, the accuracy of the description of the suspect, the

level of certainty of the identification, and the length of time between the crime

and the identification. See Biggers, 409 U.S. at 199. Notably, the Supreme

Court has concluded that, absent “a substantial likelihood of irreparable

misidentification,” the identification of a suspect by a witness is evidence for

the jury to weigh. Manson v. Brathwaite, 432 U.S. 98, 116 (1977).

At issue here is a show-up procedure that occurred shortly after the

robbery. Evidence adduced at trial shows that on August 24, 2008, a male

robbed a Hardee’s restaurant in Jacksonville, Florida. Around 11 p.m. that

evening, three store employees were working the closing shift: Bridget

Gilmore, shift manager; Santini Macon, cook; and Shirley Mosley, crew

member. Response Ex. 4 at 30−31; 58−59. A man walked into the restaurant,

came up to the counter, and began to choke Gilmore by her shirt. Id. at 31, 62.

Gilmore testified the perpetrator was dark skinned, slender but with a

muscular build, about six feet tall, wearing a black t-shirt, dark shorts, and

black-and-white tennis shoes. Id. 31−32. Mosley testified the perpetrator was

a black male, about six feet tall, wearing a black shirt, black shorts, and black

shoes with white bottoms. Id. at 60−61.

Gilmore opened the safe and cash registers and put their contents

including rolled coins into a Hardee’s bag; she also gave the man a money bag

that was already in the safe. Id. at 33−34. Gilmore testified that after collecting

the money, the perpetrator exited the store, which shared a parking lot with a

Home Depot and Applebee’s. Id. at 52. During the robbery, Macon was able to

slip into the office and call 911. Id. at 39, 49, 62. Once the perpetrator left the

Hardee’s, Gilmore called 911 and gave the last known direction of where he

had fled. Id. at 50.

At the nearby Home Depot, Richard Baity, an employee of the Home

Depot, was checking locks on trailers in the parking lot after the store had

closed. Id. at 71, 73. Around 11 p.m., Baity heard an individual running

through the lit, mostly empty, parking lot of the Home Depot. Id. at 74, 77−78,

85. It rained earlier that day and there were puddles in the parking lot. Id. at

116. Baity described the individual as an African American male, about 6 feet

2 inches tall, of medium build. Id. at 74. The man wore a dark shirt with a

white shirt underneath, dark shorts, and black sneakers with white soles. Id.

at 75. The man tripped over a rock on the ground and Baity witnessed cash

and rolled coins come out of the bag. Id. at 76. According to Baity, the

perpetrator continued to run, but then turned back to collect the dropped

money from the ground. Id. at 77. The perpetrator started to run off again but

turned back a second time to retrieve more money, only running away for good

when he heard police sirens. Id. at 77. When the police arrived, Baity alerted

them to the dropped money, Hardee’s bag, and a hairbrush on the ground. Id.

at 79−82. Baity also told police the direction in which the perpetrator ran. Id.

at 78.

Officer William Katsacos responded to the robbery call and pursued the

perpetrator in his patrol vehicle. Id. at 92, 94. Officer Katsacos encountered

Massaline who was the only individual in the general area and matched the

description of the perpetrator from the 911 call. Id. at 95−100, 113−14. Officer

Katascos testified Massaline was over six feet tall, sweaty, breathing heavily,

and had soaking wet shoes. Id. at 98. When Officer Katsacos searched

Massaline, he found a large amount of crumpled up money in his pocket. Id. at

98. Massaline was wearing a white undershirt, black shorts, and black shoes

with a white sole on the bottom, while carrying a black shirt. Id.

Soon after, police took Baity to a nearby parking lot where they had

detained Massaline. Id. at 82. Massaline was handcuffed with an officer next

to him. Id. at 87, 111. Baity identified Massaline as the person he saw running

through the parking lot based on his size, build, and clothing, but could not

identify any facial features. Id. at 82, 87. In the courtroom, Baity identified the

shoes taken from Massaline as similar to those he saw on the perpetrator. Id.

at 83−84.

Initially, the Court finds the show-up procedure executed by law

enforcement on the evening of August 24, 2008, was not unduly suggestive as

Massaline contends. A defendant being handcuffed or accompanied by law

enforcement during a show-up does not automatically equate to an unduly

suggestive procedure. See United States v. Winfrey, 403 F. App’x 432, 436

(11th Cir. 2010) (concluding show-up was not unduly suggestive when officers

escorted defendant out of patrol car so the victim could see him);2 United States

v. Walker, 201 F. App’x 737, 741 (11th Cir. 2006) (holding show-up was not

unduly suggestive where the defendant was presented for identification singly,

in handcuffs, and surrounded by police officers).

Even if the Court assumes the show-up identification procedure used

here was suggestive, it was nonetheless reliable under the totality of the

circumstances. Before turning to the Biggers factors, the Court addresses

Massaline’s argument that Baity was not a “witness” to the crime.

2 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022);

see generally Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

Unfortunately for Massaline, his understanding of what or who may constitute

a witness is mistaken. Law enforcement is not restricted to using a show-up

procedure only for victims. A person who views a crime itself or views the

immediate aftermath of a crime−as in this case by watching Massaline flee

from the scene−is a witness who can appropriately provide an identification of

the perpetrator. See generally Johnson, 817 F.2d at 729 (Show-up

identification with witness who viewed defendants before committing crime);

Cassidy v. McNeil, 621 F. Supp. 2d 1222, 1239 (M.D. Fla. 2008) (Show-up

identification with witness who viewed defendant fleeing from the robbery

scene in a parking lot). Indeed, show-up procedures can be used with both

victims and witnesses alike.

The mere fact that Baity, the witness at issue here, was not present

inside the Hardee’s when the crime occurred does not taint his identification

with an inherent likelihood of misidentification. Instead, Baity’s view of the

perpetrator fleeing the scene with the money and Hardee’s bag makes him a

witness to the ongoing crime or its aftermath and an appropriate witness for

identification purposes. The Court finds Massaline’s contention that Baity is

somehow ineligible to give an identification through a show-up procedure to be

unavailing.

With that said, considering the totality of the circumstances, Massaline

has failed to make a showing that the identification was unreliable. Applying

the five Biggers factors: (1) Baity viewed the perpetrator flee the crime scene

in a lit parking lot; (2) Baity was able to describe the clothing and build of the

perpetrator and his actions in tripping and dropping some of the money, which

shows his degree of attention; (3) Baity’s description of the perpetrator’s

clothing was identical to the description that the victims gave and matched the

clothing Massaline wore when he was detained by law enforcement and Baity

described the perpetrator as having dropped cash and rolled coins which is

consistent with what Gilmore stated she put in the Hardee’s bag; (4) nothing

in the record suggests that Baity was uncertain about this identification; and

(5) Baity made his identification within a short time of the incident while his

memory was still fresh. Under these circumstances, Baity’s identification was

not unreliable even if the Court assumes it was impermissibly suggestive.

On this record, trial counsel was not deficient for failing to put forth the

meritless argument Massaline raises here as, for the reasons explained above,

there is not a substantial likelihood of irreparable misidentification. See

Freeman v. Att’y Gen., 536 F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer cannot

be deficient for failing to raise a meritless claim. . . .”). The identification of

Baity was evidence properly put before the jury to weigh. See Biggers, 409 U.S.

at 199; Manson, 432 at 116.

Even if trial counsel was deficient, Massaline has not shown any

resulting prejudice. Together with the evidence detailed above, law

enforcement collected evidence from the Home Depot parking lot, including

money, a hairbrush, and a brown Hardee’s bag. Response Ex. 4 at 123. Despite

rain earlier that day, the hairbrush was not wet. Id. at 124. When comparing

known samples of DNA from Massaline to the hairbrush found with the money

stolen from the Hardee’s, the Florida Department of Law Enforcement

laboratory found a match. Id. at 176, 179. Considering the evidence presented

at trial, Massaline has not shown that a reasonable probability exists that the

outcome would have been different if trial counsel had successfully moved to

suppress the show-up procedure used by law enforcement. Because he has

shown neither deficient performance nor resulting prejudice, the

ineffectiveness claim is baseless. Relief on this claim is due to be denied.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Massaline seeks issuance of a certificate of appealability, the

undersigned opines that a certificate of appealability is not warranted. The

Court should issue a certificate of appealability only if the petitioner makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this substantial showing, Massaline “must demonstrate

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274,

282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the

issues presented were ‘adequate to deserve encouragement to proceed

further,’” Miller-El v. Cockrell, 537 U.S. 322, 335−36 (2003) (quoting Barefoot

v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Where a district court has rejected a petitioner’s constitutional claims on

the merits, the petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.

See Slack, 529 U.S. at 484. However, when the district court has rejected a

claim on procedural grounds, the petitioner must show that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record as a whole, the Court will deny a certificate of

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED

WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Petition

and dismissing this case with prejudice.

3. If Massaline appeals the denial of the Petition, the Court denies a

certificate of appealability. Because the Court has determined that a certificate

of appealability is not warranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.

4, The Clerk of the Court is directed to close this case and terminate

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 1st day of

September, 20238.

MARCIA MORALES HOWARD

United States District Judge

C: Clifton Massaline # J20694

Counsel of record

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