Opinion

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

Court: District Court, M.D. Florida
Filed: Sep 25, 2023
Cited by: 0 cases
Authority: More cited than 20.0%

stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”

How later courts described this case

stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”
renumbering the “eyewitness identification” instruction as 3.9(c)
“Where the inference from a statement of a mystery witness is that the witness has furnished evidence of the defendant’s guilt, the testimony is hearsay and violates the defendant’s right to confrontation.”
noting in the “[c]omment” that the instruction was adopted in 2013

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DALVIN DENSON,

Petitioner,

v. Case No. 3:20-cv-890-MMH-PDB

SECRETARY OF THE FLORIDA

DEPARTMENT OF CORRECTIONS

and FLORIDA ATTORNEY GENERAL,

Respondents.

_____________________________________

ORDER

I. Status

Petitioner Dalvin Denson, an inmate of the Florida penal system,

initiated this action on August 4, 2020,1 by filing a Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1). Denson challenges a 2012

state court (Duval County, Florida) judgment of conviction for attempted first-

degree felony murder (two counts), attempted robbery, and carrying a

concealed firearm. He asserts four grounds for relief. See generally Petition.

Respondents oppose the Petition (Response; Doc. 8) with exhibits (Docs. 8-1, 8-

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

2, 8-3, 17-1 through 17-14).2 Denson filed a reply (Reply; Doc. 12). This case is

ripe for review.

II. Relevant Factual and Procedural History

In Duval County Case Number 2011-CF-11104, the State of Florida

(State) charged Denson by way of a second amended information with six

crimes: two counts of attempted first-degree felony murder (counts one and

two); one count of attempted armed robbery (count three); two counts of

attempted second-degree murder (counts four and five); and one count of

carrying a concealed firearm (count six). Doc. 8-1 at 76-77. Denson proceeded

to trial on October 11, 2012. Doc. 8-2 at 159. The State’s primary witnesses

were the two victims, Suad Rizvanovic and Meho Pasic, and the lead

investigator, Detective Kevin Munger. Id. at 161.

Evidence adduced at trial showed the victims, Rizvanovic and Pasic,

were teenage (and high school) friends in the “business” of selling small

amounts of marijuana to people they knew. Id. at 204, 232-34. On September

1, 2011, Rizvanovic received a call from a young man identifying himself as

“Darius” and asking to buy a quarter pound of marijuana. Id. at 203-04, 272-

2 Respondents omitted exhibits E through R when they filed their Response.

See Docs. 8-1 through 8-3. At the Court’s direction, see Order (Doc. 16), Respondents

filed the missing exhibits. See Doc. 17. Because the exhibits are not docketed

together, the Court will cite them by document and page number as assigned by the

Court’s electronic docketing system.

73, 301-03. Rizvanovic and Pasic did not typically sell marijuana in such large

amounts, but they decided to do so. Id. at 203-06, 209, 274-75. Rizvanovic and

Pasic agreed to meet “Darius,” who they later learned was Petitioner Dalvin

Denson, near Englewood High School,3 which was close to Rizvanovic’s house.

Id. at 209, 237, 275. The three met at about 11:00 p.m. Id. at 205-06, 275. Pasic

gave Denson a sample of the marijuana, but Rizvanovic and Pasic became wary

of Denson’s intentions when they saw that Denson had only a few crumpled

one-dollar bills. Id. at 211-12, 278, 280-81. Pasic also testified that he noticed

what he thought was a gun tucked under Denson’s shirt, so he thought Denson

was “going to rob [them].” Id. at 280.

When Rizvanovic and Pasic realized Denson did not have nearly enough

money to complete the transaction, they called it off and walked back to

Rizvanovic’s house, which was about forty to fifty yards from the high school.

Id. at 211-12, 240, 281-82. As they approached the house, they heard “running

footsteps” behind them. Id. at 213, 282-83. Both men turned around. Id. at 214-

15, 283. Rizvanovic saw Denson with a gun, and Pasic heard Denson say, “give

me that shit.” Id. at 214-15, 283-84. Denson shot at them, hitting both more

than once. Id. at 215, 284. Pasic drove the two of them to Memorial Hospital,

3 The school name is misspelled in the record as “Inglewood.”

but Rizvanovic’s injuries were so extensive he had to be transported to Shands

Hospital for surgery. Id. at 216-18, 248, 286, 290, 347.

On the night of the incident, both Rizvanovic and Pasic recognized

Denson from school: Rizvanovic recognized Denson because he (Rizvanovic)

had “dealt with him [Denson] before”; Pasic recognized Denson because they

had gym class together, and Pasic had played basketball with Denson “once or

twice.” Id. at 210, 257, 278-79, 291-92. While Rizvanovic and Pasic both

recognized Denson, they did not know him as anyone other than “Darius” at

the time. Both tried to figure out the assailant’s identity after the incident, and

a friend of Pasic’s told him he believed the person Pasic physically described

was named “Dalvin.” Id. at 256, 292, 325. Pasic’s friend did not know Dalvin’s

last name, though, so Rizvanovic and Pasic searched for a “Dalvin” on

Facebook. Id. at 292-93, 325. They found a picture in which they recognized

Denson’s “body figure,” though the face was blurry. Id. at 225, 326. The name

associated with the picture was “Hilltop Dalvin,” information Rizvanovic and

Pasic shared with Detective Munger on about September 14, 2011. Id. at 226-

27, 294; Doc. 17-1 at 32.

On September 20, 2011, Detective Munger showed Rizvanovic and Pasic

a photospread. Doc. 8-2 at 227-28, 295. Looking at the photospread separately,

neither Rizvanovic nor Pasic identified the assailant. Id. at 228, 295, 354; Doc.

17-1 at 8. Detective Munger prepared a second photospread the same day after

learning another detective was investigating a separate shooting incident

involving a man named Darius. Doc. 8-2 at 228, 295-96, 354-55. Neither Pasic

nor Rizvanovic identified the assailant in the second photospread, which they

again viewed separately. Id. at 228, 295-96, 355; Doc. 17-1 at 8. Detective

Munger did not include Dalvin Denson’s photograph in either the first or

second photospreads.4 Doc. 8-2 at 357. On September 21, 2011, Detective

Munger showed Rizvanovic and Pasic a third photospread, in which he

included Denson’s photo as well as five “filler” photos that were different from

the ones included in the earlier photospreads. Id. at 229, 296; Doc. 17-1 at 6-7.

Viewing the photospread separately, both Rizvanovic and Pasic identified

Denson as the assailant “[a]lmost immediately.” Doc. 8-2 at 229, 297; Doc. 17-

1 at 7.

No DNA evidence connected Denson to Rizvanovic or Pasic on the night

of the incident, but phone records did. Doc. 8-2 at 350-53. After the shooting,

both Rizvanovic and Pasic gave their cells phones to officers and relayed that

a man named “Darius” had called them both multiple times. Id. at 224, 292,

4 Detective Munger intended to include Denson’s photo in the original

photospread, and he thought he had, but the photo he thought was Denson (ID

#1206545) was not. Doc. 8-2 at 358. Detective Munger discovered the mistake when

he accessed Denson’s driver’s license photo. Id.

349. On about October 4, 2011, Detective Munger obtained MetroPCS cell

phone records for the phone number that appeared in both Rizvanovic’s and

Pasic’s phones. Id. at 349-50. See also Doc. 8-1 at 172. That number was

registered to a person named “Hilltop Dalvin.” Doc. 8-2 at 224, 292, 349-50. See

also Doc. 8-1 at 173.

The phone records for the number registered to “Hilltop Dalvin” showed

the following relevant call activity on September 1, 2011, between 8:34 p.m.

and 11:02 p.m.: five outgoing calls to and three incoming calls from

Rizvanovic’s cell phone number; and six outgoing calls to and two incoming

calls from Pasic’s cell phone number. Doc. 8-1 at 173, 179.5 Rizvanovic, Pasic,

and Detective Munger testified that the incident occurred shortly after 11:00

p.m. Doc. 8-2 at 206, 275, 337-38; Doc. 17-1 at 40-41. Through his investigation,

Detective Munger discovered the name “Hilltop Dalvin” was associated with

“Dalvin Lorenzo Denson.” Doc. 8-2 at 352-53.

At trial, Rizvanovic and Pasic testified that, on the night of the incident,

Denson was wearing a “tall T-shirt,” one that “goes down to your knees,” had

long twisted hair, or “little dreads,” and a “distinctive chipped tooth.” Id. at

223-24, 243, 245, 279. It does not appear either Rizvanovic or Pasic gave these

5 The three initially communicated using Rizvanovic’s phone, but when

Rizvanovic’s phone died, they used Pasic’s. Doc. 8-2 at 204-05, 274.

details to police when they were initially interviewed at the hospital or at

Rizvanovic’s house two days after the incident. Doc. 17-1 at 15-16, 19-20.

Detective Munger testified that his initial report included no information about

the assailant’s physical description, such as height, weight, age, hair style or

color, clothing, or distinguishing marks or features. Id. at 17-18. However,

Detective Munger confirmed that, when he interviewed Rizvanovic and Pasic

at Rizvanovic’s house on September 3, 2011, they both told him they went to

school with the assailant. Id. at 43-44. At trial, both Rizvanovic and Pasic

acknowledged that they had smoked marijuana on the day of the incident and

were still feeling some of the effects when they met Denson, but both were

certain that Denson was the one who contacted them, attempted to rob them,

and shot them. Doc. 8-2 at 268-69, 207, 275, 277-78, 333.

After a one-day trial and only about forty minutes of deliberation, the

jury returned a guilty verdict on all counts. Doc. 17-1 at 188-90. See also Doc.

8-3 at 58-66. On November 15, 2012, the trial court imposed a life sentence as

to counts one and two, a twenty-five-year sentence as to count three, and a five-

year sentence as to count six, with consecutive mandatory-minimum terms of

imprisonment for the attempted murder and robbery convictions (counts one

through three). Doc. 8-3 at 67-76. See also Doc. 8-1 at 269-72, 305-07. Denson

filed a motion to correct his sentence on July 12, 2013, Doc. 17-2 at 4, which

the trial court orally granted in part on August 6, 2013, crediting Denson with

407 days of jail time as to count three, id. at 19, 26. The court entered a written

order on the matter on September 4, 2013, id. at 32, 35, and an amended

judgment on November 15, 2013, id. at 19-20.

Denson appealed his conviction to Florida’s First District Court of

Appeal (First DCA) on November 25, 2013, arguing that his convictions for

both first and second-degree attempted murder violated double jeopardy, and

that the trial court had the discretion to run his sentences concurrently. Doc.

17-3 at 2-3, 38. In its answer brief, the State conceded the point as to the double

jeopardy argument, noting that, at the sentencing hearing, the trial court

acknowledged the potential for an “illegal sentence,” and thus, did not sentence

Denson on counts four and five. Doc. 17-4 at 8-9. See also Doc. 8-1 at 296, 307.

But the trial court did not vacate the jury’s verdict as to those counts. Doc. 17-

4 at 8. As such, the First DCA set aside Denson’s verdict “insofar as [the jury]

found him guilty of two counts of attempted second-degree murder,” but

affirmed the amended judgment and sentence as to the remaining counts. Doc.

17-6 at 7, 8.

On September 26, 2014, Denson filed a brief in the Florida Supreme

Court seeking discretionary review of the First DCA’s ruling with respect to

his sentences running consecutively because the cases upon which the First

DCA relied were pending review in the Florida Supreme Court. Doc. 17-8 at 2,

7-9. The State agreed that the Florida Supreme Court should remand the case

for reconsideration. Doc. 17-10 at 3. Accordingly, on May 26, 2017, the Florida

Supreme Court accepted jurisdiction of the case, quashed the First DCA’s

decision, and remanded the case for reconsideration. Doc. 17-11. On remand,

the First DCA “reverse[d] Denson’s consecutive sentences and remand[ed] so

the trial court [could] exercise its discretion in determining whether the

mandatory-minimum terms should be consecutive or concurrent.” Doc. 8-3 at

96-97.

On January 4, 2018, Denson filed a motion for reduction of sentence in

accordance with the First DCA’s July 14, 2017 mandate. Doc. 17-12. See also

Doc. 8-3 at 95. The trial court granted Denson’s motion on May 2, 2018. Doc.

17-13. As reflected in the modified amended judgment, Denson is now serving

a twenty-five-year term of incarceration as to count one, a thirty-year term of

incarceration as to count two, a twenty-five-year term of incarceration as to

count three, and a five-year term of incarceration as to count six, all running

concurrently. Doc. 17-14.

On January 7, 2019, Denson filed a motion for postconviction relief

pursuant to Florida Rule of Criminal Procedure 3.850, raising multiple

grounds of ineffective assistance of trial counsel. Doc. 8-3 at 5, 8. The

postconviction court denied relief, and Denson appealed. Id. at 47-57, 515, 518.

The First DCA per curiam affirmed the denial of relief. Id. at 579. Following

the denial of Denson’s motion for rehearing, the First DCA issued its mandate

on April 14, 2020. Id. at 582, 587.

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 [Denson’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), abrogation recognized on other grounds by Smith v. Comm’r, Ala. Dep’t

of Corr., 67 F.4th 1335, 1348 (11th Cir. 2023). “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)). As such,

federal habeas review of final state court decisions is “greatly circumscribed

and highly deferential.” Id. (quotation marks omitted) (quoting Hill v.

Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011)).

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.’”[6] Titlow, 571 U.S. at

6 The Eleventh Circuit has described the interaction between § 2254(d)(2) and

§ 2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3

(11th Cir. 2016).

---, 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 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) (first citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); and then

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

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

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

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

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

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

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 104 S. Ct. 2052.

It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be

“so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Id., at 687, 104 S. Ct.

2052.

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

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

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

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

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

prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,

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

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

expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

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

deference.

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

a most deferential one.” Richter, 562 U.S. at ---, 131 S.

Ct. at 788. But “[e]stablishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult. The standards created

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

is doubly so.” Id. (citations and quotation marks

omitted). “The question is not whether a federal court

believes the state court’s determination under the

Strickland standard was incorrect but whether that

determination was unreasonable — a substantially

higher threshold.” Knowles v. Mirzayance, 556 U.S.

111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)

(quotation marks omitted). If there is “any reasonable

argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not

disturb a state-court decision denying the claim.

Richter, 562 U.S. at ---, 131 S. Ct. at 788.

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

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

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

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

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

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

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

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

VI. Findings of Fact and Conclusions of Law

A. Ground One

As Ground One, Denson argues his trial counsel was deficient for failing

to locate and call as a witness the school friend who told Pasic Denson’s first

name. Petition at 3. See also Reply at 3. Denson contends the “unknown

witness . . . supplied testimonial evidence,” and his attorney’s failure to locate

him or her deprived him of his right to confront the witnesses against him.

Petition at 3-5. According to Denson, the assailant’s identification was a key

issue at trial because: Rizvanovic and Pasic failed to identify Denson through

the first photospread presented by Detective Munger;7 no physical evidence

connected Denson to the shooting; Detective Munger “exercised an

unnecessarily suggestive police procedure” by compiling photospreads after

7 As previously noted, Denson’s photo was not included in the first or second

photospreads. Doc. 8-2 at 357.

Rizvanovic and Pasic told him they learned the name “Dalvin” from a friend;

neither Rizvanovic nor Pasic testified at trial that the voice of the person they

spoke to on the phone matched that of the voice of the person they met near

the high school; and Rizvanovic and Pasic only gave officers a “detailed

description” of the assailant after having received the name “Dalvin” from a

friend. Id. at 4-5, 9-10. See also Reply at 5-6.

Denson raised this claim as ground one of his Rule 3.850 Motion. Doc. 8-

3 at 10. In denying relief, the postconviction court stated:

When “the inescapable inference from . . .

testimony is that a non-testifying witness has

furnished the police with evidence of the defendant’s

guilt, the testimony is hearsay, and the defendant’s

right of confrontation is defeated, notwithstanding

that the actual statements made by the non-testifying

witness are not repeated.” Postell v. State, 398 So. 2d

851, 854 (Fla. 3d DCA 1981); accord Walker v. State,

77 So. 3d 890, 894 (Fla. 2d DCA 2012) (“Where the

inference from a statement of a mystery witness is

that the witness has furnished evidence of the

defendant’s guilt, the testimony is hearsay and

violates the defendant’s right to confrontation.”).

In Defendant’s case, he is not entitled to relief

because no witnesses implied that non-testifying

witnesses had furnished evidence of his guilt. Both

victims testified at trial. One victim testified that he

“came across a name soPasicw.” (Ex. K at 228).

Nothing about his statement was objectionable, so

counsel was not deficient for failing to object. See

Hitchcock v. State, 991 So. 2d 337, 361 (Fla. 2008)

(citing Melendez v. State, 612 So. 2d 1366, 1369 (Fla.

1992)). The other victim testified as follows:

[The State]: Okay. Subsequent to

Detective Munger leaving this first time, did

you try and find out who shot you?

[Witness]: Yes.

[The State]: How did you go about

doing that?

[Witness]: Well, I recognized him from

Inglewood [sic], like you said,[8] and like I said.

Um, I got ahold of a few friends and explained

the -- described this person, Mr. Dalvin

Denson, and I didn’t get a name at first, and

later on I had a friend call me and he said,

“Hey, you know, I know who you’re talking

about.” And I’m like, “Yea, do you know his

name?” He tells me, “Yes, his name is Dalvin.”

And I’m like, “Yeah, that’s who. Do you know

his last name?” He didn’t know his last name.

[The State]: Okay. That name that

you got of Dalvin?

[Witness]: Yes.

(Ex. K at 296-97). Even if this Court were to find this

is objectionable hearsay, it is not prejudicial evidence.

Both victims knew Defendant from school and could

recognize him if they saw him. (Ex. K at 206, 283).

They knew details about him such as his chipped tooth

and short dreads. (Ex. K at 228, 283). They had his

phone number and talked with him just before the

shooting. (Ex. K at 207, 276). The only piece of

information relayed by a non-testifying witness was

the name “Dalvin,” and this name was given in

8 Just prior to this exchange at trial, the prosecutor asked Pasic, “[T]he person

that you identified, or that you saw, this defendant, you recognized him from school[,]

right?” Doc. 8-2 at 291.

response to a description provided by testifying

victims. (Ex. K at 296-97). There is no reasonable

probability the admission of this evidence contributed

to the ultimate outcome of Defendant’s trial. See State

v. Dickson, 89 So. 3d 277, 279-80 (Fla. 1st DCA 2012).

Additionally, because the non-testifying witness has

no direct knowledge of the shooting, there is no

reasonable probability that the ultimate outcome of

Defendant’s trial would have been different had

counsel located the witness. Accordingly, Defendant is

not entitled to relief on Ground One.

Id. at 50-52. The First DCA affirmed the denial of relief without a written

opinion. Doc. 8-3 at 579.

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

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

court review of state court adjudications.9 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

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

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

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

One and Two of his Petition, Denson argues the state court did not adjudicate his

ineffective assistance of counsel claims “on the merits” because the postconviction

court addressed only the “prejudice” prong of the Strickland test, not the “deficient

performance prong.” See Petition at 7, 13-14. This argument is without merit. The

postconviction court properly set forth the Strickland test, emphasizing that a

defendant “must demonstrate both ineffectiveness and prejudice.” Doc. 8-3 at 49-50

(emphasis in original). If a defendant cannot demonstrate one prong, a court need not

address both. See Strickland, 466 U.S. at 697. In fact, in Strickland, the Supreme

Court advised that courts should “dispose of an ineffectiveness claim on the ground

of lack of sufficient prejudice” when that course is easier. Id.

unreasonable application of clearly established federal law, and was not based

on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Thus, Denson is not entitled to relief

on Ground One.

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

deference, Denson’s ineffectiveness claim is without merit. The Confrontation

Clause does not bar the admission of a statement from an absent witness if the

statement is not testimonial in nature. Crawford v. Washington, 541 U.S. 36,

51 (2004). “Statements made in the course of an out-of-court conversation are

testimonial if in light of all the circumstances, viewed objectively, the primary

purpose of the conversation was to create an out-of-court substitute for trial

testimony.” United States v. Hano, 922 F.3d 1272, 1287 (11th Cir. 2019)

(internal quotation marks omitted) (quoting Ohio v. Clark, 576 U.S. 237, 135

S. Ct. 2173, 2180 (2015)). For instance, “[a]n accuser who makes a formal

statement to [a] government officer[] bears testimony in a sense that a person

who makes a casual remark to an acquaintance does not.” Crawford, 541 U.S.

at 51.

In Hano, the Eleventh Circuit held that statements made by the

defendant’s accomplice to an acquaintance were not testimonial because they

were made during an informal conversation and before the defendant or the

accomplice had become suspects. 922 F.3d at 1287. The court reasoned, “What

transpired between [the accomplice and the acquaintance/witness] was a

friendly and informal exchange in which [the accomplice] happened to reveal

evidence that would ultimately be critical to the government’s case” against

the defendant. Id. See also United States v. Brown, 441 F.3d 1330, 1360 (11th

Cir. 2006) (holding a phone conversation between the defendant and his

mother was not testimonial and could be relayed at trial by the person who

overheard the mother’s end of the conversation, because the phone

conversation “was not made under examination, was not transcribed in a

formal document, and was not made under circumstances leading an objective

person to reasonably believe the statement would be available for use at a later

trial”).

As in both Hano and Brown, the out-of-court conversation here was “a

friendly and informal exchange in which [a friend] happened to reveal evidence

that would ultimately be critical to the government’s case.” See Hano, 922 F.3d

at 1287; Brown, 441 F.3d at 1360. The conversation between Pasic and his

friend occurred before Denson became a suspect, the conversation “was not

made under examination, was not transcribed in a formal document, and was

not made under circumstances leading an objective person to reasonably

believe the statement would be available for use at a later trial.” See Brown,

441 F.3d at 1360. Indeed, Detective Munger explained at trial that Rizvanovic

and Pasic learned the name Dalvin and found a photo of him through their own

efforts, with no assistance from or involvement by the sheriff’s office. Doc. 17-

1 at 31. In considering the circumstances of the conversation, the statement

Pasic shared at trial was not testimonial.

Moreover, it does not appear the statement was offered as evidence of

the truth of the matter asserted—that Dalvin was the assailant—but rather to

demonstrate the effect it had on the listener (Pasic). In other words, the

statement explained why Rizvanovic and Pasic searched the name “Dalvin” on

Facebook, leading them to a picture in which they recognized Denson’s body.

Because the statement was not testimonial and was not offered for the truth

of the matter asserted, Denson’s attorney cannot have been ineffective for

failing to call the Pasic’s friend as a witness at trial.

However, even assuming arguendo deficient performance by counsel,

Denson has not shown any resulting prejudice. Independent of having heard

the name “Hilltop Dalvin” from Rizvanovic and Pasic, Detective Munger came

across that same name through his own investigation. Using Rizvanovic’s and

Pasic’s phones, which officers took the night they were shot—and before Pasic

learned the name “Dalvin” from a friend—Detective Munger obtained the

phone number “Darius” used to communicate with Rizvanovic and Pasic on the

night of the incident. Phone records for that number showed it was registered

to “Hilltop Dalvin” and further showed multiple incoming and outgoing calls

to both Rizvanovic’s and Pasic’s phones in the hours and minutes before the

incident. Detective Munger traced the name “Hilltop Dalvin” to “Dalvin

Lorenzo Denson” and discovered that Denson lived at the address associated

with the phone account registered to “Hilltop Dalvin.” Doc. 8-2 at 351-53.

Moreover, Detective Munger showed Rizvanovic and Pasic three photospreads,

only the third of which included Denson’s photo, and both Rizvanovic and

Pasic, viewing the photos separately, almost immediately selected the photo of

Denson in the third photospread. Doc. 17-1 at 6-8.

Denson argues Rizvanovic’s and Pasic’s separate identifications of him

are not “worth anything” because Rizvanovic and Pasic had time to speak with

one another beforehand and after they found a photo of “Dalvin” on Facebook.

Petition at 4-5. See also Reply at 5. He points to the following exchange

between his attorney and Detective Munger at trial:

Q . . . with the photospread you went over

the actual photo instructions[,] right?

A Yes.

Q And those are given to everybody that

does a photospread, especially these two individuals?

A Rizvanovic and Pasic?

Q Yes.

A Yes, sir.

. . .

Q And, obviously, [one] part of the

instruction is that you can’t give any assistance, but

really no one should give any assistance in picking out

a photo[,] right?

A Right.

Q Whether it’s an officer, a witness, or

anything[,] right?

A It wouldn’t be worth anything if they did.

Doc. 17-1 at 33-34. Contrary to Denson’s interpretation of this exchange,

Detective Munger did not testify that a photospread identification is worthless

when two victims of the same crime separately choose the same photo even

though they had time to talk to one another beforehand. Regardless, both

Rizvanovic and Pasic testified at trial that they recognized Denson from school

when they met him on September 1, 2011, and they were certain when

testifying that Denson was the person who tried to rob them and shot them.

Doc. 8-2 at 269-70, 277-78, 333. Moreover, Detective Munger confirmed that

both Rizvanovic and Pasic viewed all three photospreads separately, and there

was no evidence that anyone assisted either in picking the photo of Denson.

Doc. 17-1 at 8.

Denson has not shown a reasonable probability exists that the outcome

of the case would have been different if counsel had called Pasic’s friend as a

witness. His ineffectiveness claim is without merit because he has shown

neither deficient performance nor resulting prejudice. Accordingly, Denson is

not entitled to federal habeas relief on the claim raised in Ground One.

B. Ground Two

As Ground Two, Denson argues counsel was ineffective for failing to

object to “inadmissible hearsay.” Petition at 11. See also Reply at 7. He

contends his counsel should have objected when Pasic testified that he learned

the name “Dalvin” from an “unidentified third party.” Petition at 11-13.

Denson raised this claim as ground two of his Rule 3.850 Motion. Doc. 8-3 at

19. Acknowledging grounds one and two of Denson’s Rule 3.850 Motion were

“intertwined,” the postconviction court denied relief, finding the “testimony did

not prejudice Defendant.” Id. at 52. The First DCA per curiam affirmed the

denial of relief without a written opinion. Doc. 8-3 at 579.

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

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

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

applicable law, the Court concludes that the state court’s adjudication of this

claim was not contrary to clearly established federal law, did not involve an

unreasonable application of clearly established federal law, and was not based

on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Thus, Denson is not entitled to relief

on the basis of this ineffectiveness claim. Even if the appellate court’s

adjudication of the claim were not entitled to deference, Denson’s

ineffectiveness claim is without merit for the reasons stated in Ground One.

See supra pp. 21-25. Accordingly, Denson is not entitled to federal habeas relief

on Ground Two.

C. Ground Three

As Ground Three, Denson argues counsel was ineffective for failing to

request “the standard jury instruction for misidentification.” Petition at 15.

See also Reply at 11. He contends, “[t]here was no evidence [tying him] to the

crime other than a highly questionable identification made by both victims,”

and, therefore, his counsel should have requested the court give Florida’s

Standard Jury Instruction 3.9(c), formerly 3.9(f). Petition at 15-16, 16 n.3. He

says the failure to request the instruction was prejudicial because, in

consideration of the factors listed in that instruction, a jury could have

concluded Rizvanovic’s and Pasic’s identification of Denson lacked credibility.

Id. at 15-16.

Denson raised this claim as ground five of his Rule 3.850 Motion. Doc. 8-

3 at 36. In denying relief, the postconviction court stated:

As a preliminary matter, Florida Standard Jury

Instruction 3.9(c) was not approved by the Florida

Supreme Court until after Defendant’s trial. In Re

Standard Jury Instructions in Criminal Cases—

Report No. 2011-05, 141 So. 3d 132 (Fla. 2013). The

Court “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.” Diaz v.

State, 810 S. 2d 1023, 1025 (Fla. 2d DCA 2002)

(emphasis added). As such, counsel cannot be deemed

ineffective for failing to anticipate changes in the law

or in the standard jury instructions. Id. Thus, Counsel

[sic] cannot be ineffective for failing to request a

standard jury instruction that did not exist.

However, even if this Court were to find that

counsel should have requested the instruction or

crafted a similar special instruction, Defendant is still

not entitled to relief. See Grandison v. State, No.

1D17-4266, 2019 WL 942975, at *1-2 (Fla. 1st DCA

Feb. 27, 2019). In Grandison, appellant argued that

trial counsel failed to address the wife’s eyewitness

identification appropriately; he did not investigate and

challenge it at trial, call an expert, discuss it during

voir dire, request the standard jury instruction, or

argue it during closing. However, the court ruled that

Appellant [sic] failed to show either deficiency or

prejudice. The Court held:

Florida has a special instruction for

eyewitness testimony. It instructs jurors to

consider the typical witness factors and then

informs them they may also consider other

enumerated factors as to eyewitnesses: length

of time of the observation, timing of the

observation, suggestiveness, inconsistent

identifications, failure to identify, familiarity

with the person, time between the incident and

identification, and similarity of race or

ethnicity. Fla. Std. Jury Instr. (Crim.) 3.9(c).

Here, counsel did not request the

instruction. But he spoke to the jury about the

wife’s eyewitness identification and used the

components from the instruction in that

discussion.

. . .

Thus, the jury could easily make its own

determination on identification, and counsel

requested the jury critically evaluate the wife’s

identification. The lack of the detailed

eyewitness instruction and counsel’s decision

not to call an expert are not deficient—a

decision outside the “wide range of reasonable

professional assistance.” Appellant failed to

show deficiency.

Moreover, in light of the same facts, the

lack of instruction and counsel’s performance

surrounding the wife’s identification did not

prejudice Appellant. First, counsel challenged

the wife’s identification through cross-

examination, and he highlighted his challenge

in closing. Second, he used the instruction—

whether it was officially given to the jury or

not. Third, there was evidence independent of

the wife’s identification; this case did not hinge

on her identification. Fourth, the jury could

make its own determination about that

independent evidence. It could review the video

and still photos of the robbery, look at the

barely disguised man, and compare that to

Appellant—all without factoring any

eyewitness identification. Appellant therefore

failed to show any deficiency undermined

confidence in the trial’s outcome or that he was

deprived of that, a fair trial with a reliable

result. Therefore, he not was prejudiced.

Grandison v. State, No. 1D17-4266, 2019 WL

942975, at *1-2 (Fla. 1st DCA Feb. 27, 2019).

Likewise, in this matter, counsel relied upon the

evidence presented at trial and argued the

misidentification of the Defendant. Counsel attacked

the victims’ identifications of Defendant as unreliable,

utilizing some of the factors outlined above. (Ex. K at

477-83). Because of this, counsel was not deficient in

failing to request a special instruction on

misidentification. Moreover, there is no reasonable

probability that the ultimate outcome of the

Defendant’s case would have been different had the

jury received an instruction on misidentification.

Accordingly, Defendant is not entitled to relief on

Ground Five.

Id. at 54-56. The First DCA per curiam affirmed the denial of relief without a

written opinion. Id. at 579.