Batson v. Secretary, Florida Department of Corrections (St. Johns County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ROBERT DARREL BATSON,

Petitioner,

v. Case No. 3:20-cv-538-TJC-JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, is proceeding on a pro

se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1), as

supplemented (Docs. 14-1 to 14-29).1 He challenges a 2018 state court (St. Johns

County, Florida) judgment of conviction for possession of a firearm by a

convicted felon. He is serving a 40-year term of imprisonment. Respondents

filed a Response (Doc. 9) with exhibits (Docs. 10-1 to 10-4; Resp. Ex.). Petitioner

filed an Amended Reply (Doc. 26). This case is ripe for review.2

1 Petitioner filed an “amended petition” (Docs. 14-1 to 14-29), in which he did not

change the substance of his claims but simply added citations to the record. See Order

(Doc. 19).

2 “In a habeas corpus proceeding, the burden is on the petitioner to establish the need

for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318

II. Governing Legal Principles

A. Standard of Review

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

governs a state prisoner’s federal habeas corpus petition. 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)).

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

decision, if any, that adjudicated the petitioner’s claims 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 an opinion explaining its rationale for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

(11th Cir. 2016) (citing 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) (citation omitted). “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.” Id. The Court finds that

“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

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

562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is

unaccompanied by an explanation,

the 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. But the 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, such as

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

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

States,” or “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)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Richter, 562 U.S. at 101 (internal quotation

marks omitted). “It bears repeating that even a strong

case for relief does not mean the state court’s contrary

conclusion was unreasonable.” Id. [at 102] (citing

Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The

Supreme Court has repeatedly instructed lower federal

courts that an unreasonable application of law requires

more than mere error or even clear error. See, e.g.,

Mitchell v. Esparza, 540 U.S. 12, 18 (2003); Lockyer,

538 U.S. at 75 (“The gloss of clear error fails to give

proper deference to state courts by conflating error

(even clear error) with unreasonableness.”); Williams v.

Taylor, 529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Exhaustion and Procedural Default

There are prerequisites to federal habeas review. Before bringing a § 2254

habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]”

every issue raised in his federal petition to the state’s highest court, either on

direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351

(1989) (emphasis omitted). Thus, to properly exhaust a claim, “state prisoners

must give the state courts one full opportunity to resolve any constitutional

issues by invoking one complete round of the State’s established appellate

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope

v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the

state collateral review process as well as the direct appeal process.”).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving 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) (per curiam) (quoting

Picard v. Connor, 404 U.S. 270, 275 (1971)). To provide

the State with the necessary “opportunity,” the

prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, 513 U.S. at 365-66; O’Sullivan v. Boerckel, 526

U.S. 838, 845 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal citations modified).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman, 501 U.S. at 747-48;

Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977). A state

court’s invocation of a procedural rule to deny a

prisoner’s claims precludes federal review of the claims

if, among other requisites, the state procedural rule is

a nonfederal ground adequate to support the judgment

and the rule is firmly established and consistently

followed. See, e.g., Walker v. Martin, 131 S. Ct. 1120,

1127-28 (2011); Beard v. Kindler, 130 S. Ct. 612, 617-

18 (2009). The doctrine barring procedurally defaulted

claims from being heard is not without exceptions. A

prisoner may obtain federal review of a defaulted claim

by showing cause for the default and prejudice from a

violation of federal law. See Coleman, 501 U.S. at 750.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012) (internal citations modified). Thus,

procedural defaults may be excused under certain circumstances.

Notwithstanding that a claim has been procedurally defaulted, a federal court

may still consider the claim if a state habeas petitioner can show either (1) cause

for and actual prejudice from the default; or (2) a fundamental miscarriage of

justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). For a petitioner to

establish cause and prejudice,

the procedural default “must result from some objective

factor external to the defense that prevented [him] from

raising the claim and which cannot be fairly

attributable to his own conduct.” McCoy v. Newsome,

953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Murray

v. Carrier, 477 U.S. 478, 488 (1986). Under the

prejudice prong, [a petitioner] must show that “the

errors at trial actually and substantially disadvantaged

his defense so that he was denied fundamental

fairness.” Id. at 1261 (quoting Carrier, 477 U.S. at 494).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999) (internal citations

modified).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would result.

The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice, there

remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence of

a showing of cause for the procedural default.” Carrier,

477 U.S. at 496. “This exception is exceedingly narrow

in scope,” however, and requires proof of actual

innocence, not just legal innocence. Johnson v.

Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).

Ward, 592 F.3d at 1157 (internal citations modified). “To meet this standard, a

petitioner must ‘show that it is more likely than not that no reasonable juror

would have convicted him’ of the underlying offense.” Johnson v. Alabama, 256

F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v. Delo, 513 U.S. 298, 327

(1995)). Additionally, “‘[t]o be credible,’ a claim of actual innocence must be

based on reliable evidence not presented at trial.” Calderon v. Thompson, 523

U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the rarity of such

evidence, in most cases, allegations of actual innocence are ultimately

summarily rejected. Schlup, 513 U.S. at 324.

C. Ineffective Assistance of 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); Strickland v. Washington,

466 U.S. 668, 687 (1984)). Courts employ a two-part test when reviewing

ineffective assistance of counsel claims. See Strickland, 466 U.S. at 687.

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” 466 U.S. at 688. 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. 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.

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. It is not enough

“to show that the errors had some conceivable effect on

the outcome of the proceeding.” Id. at 693. 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.

Richter, 562 U.S. at 104 (internal citations modified).3

There is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward, 592 F.3d at 1163. Both prongs of the

two-part Strickland test must be satisfied to show a Sixth Amendment

violation; thus, “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)). “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 afforded great

deference.

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

a most deferential one.” Richter, 562 U.S. at 105. But

“[e]stablishing that a state court’s application of

3 This two-part Strickland standard also governs a claim of ineffective assistance of

appellate counsel. Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016).

“Appellate counsel has no duty to raise every non-frivolous issue and may reasonably

weed out weaker (albeit meritorious) arguments. Generally, only when ignored issues

are clearly stronger than those presented, will the presumption of effective assistance

of counsel be overcome.” Id. (internal quotations and citations omitted). To satisfy the

prejudice prong, a petitioner must show a reasonable probability that “but for the

deficient performance, the outcome of the appeal would have been different.” Black v.

United States, 373 F.3d 1140, 1142 (11th Cir. 2004); see also Philmore v. McNeil, 575

F.3d 1251, 1264-65 (11th Cir. 2009) (prejudice results only if “the neglected claim

would have a reasonable probability of success on appeal”).

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 (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 105.

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

citations modified). 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).

III. Analysis

In its answer brief filed during Petitioner’s direct appeal, the state

provided the following summary of the trial court proceedings:

Batson was charged by information and

amended information with one count of possession of

a firearm by a convicted felon, one count of

aggravated assault and one count of driving while

license canceled, suspended or revoked. The offenses

were severed for trial purposes. After Batson was

convicted on the charge of possession of a firearm by

a convicted felon, the State[] nolle prossed the

remaining two charge[s].

. . . .

Prior to the start of trial, Batson filed multiple

motions to discharge his trial counsel. His trial

counsel likewise filed several motions suggesting a

conflict of interest.

Batson withdrew his first motion and the trial

judge found there was no conflict of interest. During

the June 6, 2018, hearing, the trial judge stated that

he attempted to conduct a Nelson hearing, but Batson

would not discuss what trial counsel was not doing

and the trial judge was unable to conduct a full

inquiry. A third Nelson hearing was held on August

15, 2018. After hearing from both Batson and his trial

counsel, the trial judge ruled that trial counsel was

providing effective assistance of counsel and informed

Batson he could continue with trial counsel, hire his

own lawyer or represent himself. Batson stated he

wanted to represent himself. The trial judge

conducted a further inquiry and determined that

Batson waived his right to counsel.

. . . .

The trial judge informed Batson that he was not going

to continue the case and that the jury would be picked

on the following Monday. Batson stated “[a]nd how

are we going to do that when I haven’t had a chance

to procure my evidence and witnesses and everything

I’m going to need?”

On August 22, 2018, Batson filed a written

motion to continue. During the August 23, 2018,

hearing, Batson mentioned the motion to continue.

Batson stated that his motion to continue was

“pending based on the ability to obtain evidence and

witnesses in my behalf.”[fn] Batson did not bring the

motion up again and did not request that the trial

judge rule on the motion. Batson did not renew his

motion or request a continuance prior to the start of

trial.

fn. The trial judge, after going through each

witness and piece of evidence Batson sought to

introduce at trial, ruled that the evidence and

witnesses were inadmissible.

. . . .

Prior to trial, Batson filed a motion to suppress

seeking to suppress the handgun which fell from his

pants when he was stopped. Batson also filed a

motion to schedule [a] hearing on the motion to

suppress. In the motion, Batson requested the trial

judge to command the presence of Angel Falaney and

Deputy Newman. There is nothing in the record that

Batson attempted to have those witnesses

subpoenaed for the hearing. Prior to the start of the

hearing, Batson stated:

. . .[W]hen I filed the motion for

the request for the hearing on the

motion to suppress, I had asked for

Angel Flaney (phonetic) to be called as a

witness and also Deputy Newman, who

gave a deposition, the only one that I

was supplied with, to be present during

this hearing to testify as to particular

information that was given in the 9-1-1

call and facts that he testified to in his

deposition and the police report itself, so

that’s my whole point, cause she’s

calling Deputy Toth, whose deposition

was taken, but I was never supplied

with, so I have no way of properly

questioning him as to any particular

facts that he may testify to in regards to

the stop, you know. I asked for my sister

to be called here.

According to Batson, his sister was the one who called

911 and gave his description, i.e., the details of the

clothing Batson was wearing. Deputy Newman

conducted the stop. According to the prosecutor,

Deputy Newman was in training and Deputy Toth

was the field training officer.

The trial judge stated that he would consider

the 911 call and that he did not need Batson[’s] sister

to say what was in the 911 call. Batson did not object.

After addressing different issues, Batson stated

he did not have a copy of Deputy Toth’s deposition.

The prosecutor stated she would provide Batson with

a copy and in fact gave him a copy of the deposition

during the hearing on the motion to suppress. Batson

declined the opportunity to go through the deposition

stating “it’s not gonna make probably a whole lot of

difference of my questions.”

At the beginning of [the] hearing on the motion

to suppress, the trial judge stated “[t]his was a

warrantless arrest and warrantless seizure, so the

State has the burden to go forward on this.” The 911

call was played.

Deputy Toth testified that he was the field

training officer and Deputy Newman was driving the

patrol vehicle. Deputy Toth heard a call referencing

an aggravated assault with a deadly weapon at 7:29

pm. According to the dispatch, the person calling in

said Robert Batson pulled a gun and he was a

convicted felon. Deputy Toth pulled Batson up in the

database, saw his picture and that he lived in

Hastings. He then told Deputy Newman to head to

State Road 16 because dispatch said Batson was

taking Lewis Speedway. About 10-15 minutes later,

he observed Batson. Batson was riding a red scooter

and matched the BOLO and the description in the 911

call. Batson matched the picture that Deputy Toth

had pulled up. A traffic stop was initiated. As Batson

got off the scooter, the handgun fell out of his pants.

On cross-examination, Batson questioned

Deputy Toth as to why he went the direction that he

did. He also questioned him about whether Batson

was wearing a black shirt or a multi-colored jacket

when he was stopped.

After hearing argument from both parties, the

trial judge [denied the motion to suppress].

Resp. Ex. 7 at 7-15 (internal record citations omitted).

A. Grounds One and Two

In Ground One, Petitioner argues that his appellate counsel was

ineffective for failing “to challenge on appeal the trial court’s ruling on state’s

motions in limine categorically excluding all of Petitioner’s witness testimony

and evidence.” Doc. 1 at 10 (capitalization and emphasis omitted). In Ground

Two, he contends that his appellate counsel was ineffective for failing “to

challenge trial counsel’s ineffectiveness that was apparent from the face of the

record, where trial counsel failed to pursue a motion to suppress illegally seized

evidence (the gun) used to prosecute the Petitioner.” Id. at 20 (capitalization

and emphasis omitted).

Respondents assert that because Petitioner chose to represent himself at

trial and on appeal, he cannot challenge the effectiveness of counsel. Doc. 9 at

9-10. Indeed, they argue that “when a defendant waives his right to the

assistance of counsel, whether it is trial or appellate counsel, the defendant

waives his right to raise a Strickland claim.” Id. at 10.

Petitioner raised these claims in a pro se petition for writ of habeas corpus

alleging ineffective assistance of appellate counsel. Resp. Ex. 11. The Fifth

District Court of Appeal denied the petition. Resp. Ex. 12 (“[T]he Petition for

Ineffective Assistance of Counsel, filed March 17, 2020, is denied.”).

The Court addresses these claims in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record, this Court concludes that the state court’s adjudication of

these claims 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. Therefore, Grounds One and Two are due to be denied.

Even assuming the state court’s decision is not entitled to deference, these

claims have no merit. On direct appeal, Petitioner was initially represented by

counsel, and counsel filed an initial brief arguing that the trial court erred by

denying Petitioner’s request for a continuance and Petitioner was precluded

from presenting his necessity defense. See Batson v. State of Florida, No. 5D18-

2971 (Fla. 5th DCA Mar. 11, 2019); see also Resp. Ex. 11 (brief marked as

exhibit A attached to Petitioner’s pro se petition alleging ineffective assistance

of appellate counsel). Thereafter, Petitioner filed a pro se motion to discharge

counsel, in which he listed claims that appellate counsel refused to raise, and

he requested leave to file an initial brief. Resp. Ex. 4. The Fifth DCA treated

Petitioner’s pro se motion “as a motion to discharge counsel without cause” and

granted his request. Resp. Ex. 5. The Fifth DCA also struck Petitioner’s

counseled brief and directed him to file an initial brief within 30 days. Id.

Petitioner filed a pro se brief, which included a claim that the trial court erred

by granting the state’s motions in limine precluding presentation of Petitioner’s

evidence and witnesses. Resp. Ex. 6. The state filed an answer brief, Resp. Ex.

7, and Petitioner filed a pro se reply, Resp. Ex. 8. The Fifth DCA per curiam

affirmed Petitioner’s conviction and sentence without issuing a written opinion.

Resp. Ex. 9.

Petitioner cannot claim that his appellate counsel was ineffective when

he chose to proceed pro se on appeal. See Faretta v. California, 422 U.S. 806,

834 n.46 (1975) (“[A] defendant who elects to represent himself cannot

thereafter complain that the quality of his own defense amounted to a denial of

effective assistance of counsel.”); see also United States v. Roggio, 863 F.2d 41,

43 (11th Cir. 1989) (“The appellant clearly had a right to represent himself, but

in exercising that right he cannot now complain that he received ineffective

assistance of counsel at trial.”). Petitioner argues in his Amended Reply that

his decision to proceed pro se on direct appeal “was not based on self desire or

personal preference, but was directly premised upon claims of Ineffective

Assistance of Appellate Counsel that forced him into a pro se status to have his

Constitutional Claims heard when Appellate Counsel failed to raise them in his

brief.” Doc. 26 at 3. Petitioner, however, filed a pro se brief, in which he raised,

inter alia, a trial court error claim regarding the state’s motions in limine

(related to Ground One of the instant Petition). Thus, he raised one of the claims

he asserts appellate counsel was ineffective for failing to raise and the Fifth

DCA adjudicated his claim; thus, Petitioner suffered no prejudice from

appellate counsel’s alleged failure to raise the same claim. As to his other claim

(related to Ground Two of the instant Petition), ineffective assistance of trial

counsel claims are generally not raised on direct appeal; instead, they are raised

in post-conviction proceedings.4 Although Petitioner was not precluded from

including such claim in his pro se initial brief, he did not do so. Regardless, the

4 Petitioner’s appellate counsel advised him that claims of ineffective assistance of trial

counsel are generally raised in a postconviction motion under Florida Rule of Criminal

Procedure 3.850. See Resp. Ex. 11 (letter attached as exhibit C). The trial court’s

docket does not reflect that Petitioner ever filed a Rule 3.850 motion. See State of

Florida v. Batson, No. CF17-1599 (Fla. 7th Cir. Ct.); see also McDowell Bey v. Vega,

588 F. App’x 923, 927 (11th Cir. 2014) (holding that district court did not err in taking

judicial notice of the plaintiff’s state court docket when dismissing § 1983 action);

Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (“[D]ocket sheets are public

records of which the court could take judicial notice.”).

underlying claim – ineffective assistance of trial counsel for failing to file a

motion to suppress the firearm – is meritless, and appellate counsel cannot be

ineffective for failing to raise a meritless issue. Before his trial, Petitioner filed

a pro se motion to suppress the firearm, and the trial court denied the motion

after conducting an evidentiary hearing.5 Even assuming appellate counsel

should have raised this claim on direct appeal, Petitioner suffered no prejudice.

As such, Grounds One and Two are denied.

B. Ground Three

According to Petitioner, the “trial court deprived [him] of his Fourteenth

Amendment rights to due process of law in his suppression hearing by

acquiescing to the State’s discovery violation and depriving Petitioner of his

evidence and witnesses in support of his motion to suppress evidence and by

applying the wrong standard of test as to who has the burden of proof in such

[a] proceeding.” Doc. 1 at 28 (some capitalization and emphasis omitted). He

complains that the trial court denied his request to have two witnesses

(Petitioner’s sister and Deputy Newman) testify at the suppression hearing and

he did not receive a copy of Deputy Toth’s deposition. Id. at 28-32.

5 Appellate counsel’s letter to Petitioner mentioned that the record on appeal did not

contain a pro se motion to suppress or transcript of an evidentiary hearing, but counsel

was mistaken. The transcript was part of the record on direct appeal and the parties

cited to it in their briefs.

Respondents argue that this claim is procedurally defaulted, as Petitioner

failed to object during the trial court proceeding and he “made none of the

arguments he makes now and that he made on direct appeal.” Doc. 9 at 8.

Alternatively, Respondents contend the state court’s adjudication of this claim

is entitled to deference. Id. at 14-21.

Before trial, Petitioner filed a pro se motion to suppress the firearm. The

trial court conducted a hearing on several then-pending motions, including

Petitioner’s motion to suppress. Before addressing the motion to suppress,

Petitioner advised the trial court that he filed a request to have two witnesses

(his sister and Deputy Newman) present to testify at the suppression hearing.

See Resp. Ex. 1 at 1180-81. After considering Petitioner’s reasons for requesting

the testimony of these two witnesses, the trial judge stated: “We don’t need your

sister to say what’s on the 9-1-1 call, because the 9-1-1 call itself says what’s on

the 9-1-1 call under the Best Evidence Rule.” Id. at 1183. As to Deputy Newman,

the state explained that “Deputy Toth was the field training officer directing

Deputy Newman where to go, which is why we’re going to call Deputy Toth.” Id.

at 1182.

At the beginning of the suppression hearing, the trial judge recognized

that “the State has the burden to go forward on this.” Id. at 1197. The state

played the 911 call that Petitioner’s sister made, in which she identified

Petitioner, by name and description, as the suspect. See id. at 1197-98, 1202.

The state also called Deputy Toth, one of the officers who initiated the traffic

stop, and Petitioner cross-examined him. See id. at 1198-1225. During his cross-

examination, Petitioner commented that he had never seen Deputy Toth’s

deposition transcript. Id. at 1205. The trial judge interjected and asked

Petitioner whether he “want[ed] to take a minute” to review it. Id. The state

then provided Petitioner a copy of the deposition transcript, and the trial court

again asked Petitioner whether he wanted time to review it prior to continuing.

Id. Petitioner declined stating, “Well, it’s not gonna make probably a whole lot

of difference of my questions.” Id.

At the conclusion of the hearing, the trial judge denied the motion, finding

as follows:

Okay. There clearly was reasonable suspicion to

justify the stop. There was reasonable, articulate,

well-founded suspicion based upon the facts that were

set forth.

There was an identified caller, not an

anonymous caller, but an identified caller, who

reported an aggravated assault to the sheriff’s office.

The call was put out on the southwest district radio

first.

The officer, in addition to the BOLO that went

out, not only had the BOLO, it’s much more than we

typically see, went and ran the defendant’s name

through the computer system, so had a picture of the

defendant on his computer, and then as they’re

driving down State Road 16, they see a unique

vehicle, that being a scooter, red and black in color,

that meets the description, a white male, meets the

age, meets the haircut description, met all

descriptions. There may have been a little

discrepancy with regards to clothing, but a slight

discrepancy doesn’t negate the reasonable suspicion.

Once they justifiably and lawfully stopped the

vehicle, that being the scooter, the defendant stepped

off the scooter and the gun dropped out of his person

or dropped off of his person, so there was no search,

there wasn’t even a protective pat-down that would

have been justified under those circumstances, but

that didn’t even take place, so I’m gonna deny the

motion to suppress the firearm.

Id. at 1230-31.

On direct appeal, Petitioner raised a similar claim in his pro se brief. See

Resp. Ex. 6. The state argued that Petitioner’s “arguments have not been

preserved for appellate review, as they were not made [in the trial court

proceeding].” Resp. Ex. 7 at 34. The state further argued that the trial court

properly denied the motion to suppress. Id. Petitioner filed a pro se reply brief.

Resp. Ex. 8. The Fifth DCA per curiam affirmed Petitioner’s conviction and

sentence without issuing a written opinion. Resp. Ex. 9.

Insofar as Petitioner is raising a Fourth Amendment claim, the Court

finds that Stone v. Powell, 428 U.S. 465 (1976), bars such claim on federal

habeas review.

Stone instructs that where the state has

provided an opportunity for full and fair litigation of

a Fourth Amendment claim, a state prisoner may not

be granted federal habeas corpus relief on the ground

that evidence obtained in an unconstitutional search

or seizure was introduced at his trial. In this context

the contribution of the exclusionary rule, if any, to the

effectuation of the Fourth Amendment is minimal,

and the substantial societal costs of application of the

rule persist with special force.

For a claim to be fully and fairly considered by

the state courts, where there are facts in dispute, full

and fair consideration requires consideration by the

fact-finding court, and at least the availability of

meaningful appellate review by a higher state court.

Mincey v. Head, 206 F.3d 1106, 1125-26 (11th Cir. 2000) (internal quotations,

citations, and footnote omitted; formatting modified). Here, Petitioner was

afforded full and fair litigation of his suppression claim. The trial court

addressed each witness and evidence that Petitioner sought to present and

explained its reasoning for denying Petitioner’s motion. Petitioner also

presented his claim to the Fifth DCA, which affirmed his conviction and

sentence. Thus, Stone bars federal habeas review.

To the extent Stone does not bar Petitioner’s claim and the Fifth DCA

adjudicated the claim on the merits, the Court addresses the claim in

accordance with the deferential standard for federal court review of state court

adjudications. Upon thorough review of the record, this 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. Therefore, Ground Three is due

to be denied.

In light of the foregoing, it is

ORDERED:

1. The Petition (Doc. 1), as supplemented (Doc. 14), is DENIED, and

this case is DISMISSED WITH PREJUDICE.

2. Petitioner’s Motion to Appoint Magistrate Judge (Doc. 34) is

DENIED as moot.

3. Petitioner’s Motion for Leave to Expand Record (Doc. 35) is

DENIED.

4. If Petitioner appeals, 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.6

6 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, Petitioner “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)). Here, after consideration

of the record as a whole, the Court will deny a certificate of appealability.

5. The Clerk shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 21*t day of

September, 2023.

. Cimetbeg g. Corrig on

Ww. TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 9/15

C:

Robert Darrel Batson, #708431

Counsel of Record

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