The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JOSHUA BRIAN NIBBELINK,
Petitioner,
Vv. Case No. 3:20-cv-1273-HES-LLL
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Joshua Brian Nibbelink, an inmate of the Florida penal
system, initiated this action on November 3, 2020, by filing a pro se Petition
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody
(Doc. 1) and a Memorandum of Law in Support (Doc. 5). Petitioner challenges
a 2015 state court (Duval County, Florida) judgment of conviction for first-
degree felony murder, kidnapping, and robbery. See Doc. 1. Respondents filed
an Answer (Doc. 10), with exhibits (Docs. 10-1 to 10-13; Ex). Petitioner was
afforded an opportunity to file a reply, but he did not do so. This case is ripe
for review.!
II. 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.” Jd. (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)).
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 [Petitioner’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.
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. Jd. 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. ---, ---, 1384 S.
Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield
v. Cain, 576 U.S. ---, ---, 185 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 --
-, 18458. Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290,
301, 1380S. 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. Pinholsier,
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 (2018). “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 and Appellate 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, 5389 U.S. 510, 521 (2008), 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.” Jd., at 687, 1048. 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.” Jd., at 694, 1048S. 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
“go 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 1248,
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 ---, 1315S.
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.” Jd. (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, 1298S. 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 ---, 181 S. Ct. at 788.
Hitison v. GDCP Warden, 759 F.8d 1210, 1248 (11th Cir. 2014); Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]Jn 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, 1809 (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).
Claims of ineffective assistance of appellate counsel are governed by the
same standards applied to trial counsel under Strickland. See Tuomi v. Sec’y,
Fla. Dep’t of Corr., 980 F.3d 787, 795 (11th Cir. 2020); Philmore v. McNeil, 575
F.3d 1251, 1264 (11th Cir. 2009). The Eleventh Circuit has instructed:
In assessing an appellate attorney’s performance, we
are mindful that “the Sixth Amendment does not
require appellate advocates to raise every non-
frivolous issue.” Id. at 1130-31.[?] Rather, an effective
attorney will weed out weaker arguments, even
though they may have merit. See id. at 1131. In order
to establish prejudice, we must first review the merits
of the omitted claim. See id. at 1132. Counsel’s
performance will be deemed prejudicial if we find that
“the neglected claim would have a_ reasonable
probability of success on appeal.” Id.
Philmore, 575 F.3d at 1264. Thus, appellate counsel’s performance is
prejudicial if the omitted claim would have a reasonable probability of success
on appeal. Id. at 1265; see Black v. United States, 373 F.3d 1140, 1142 (11th
Cir. 2004) (recognizing that to satisfy the prejudice prong, a petitioner must
2 Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991).
show a reasonable probability that “but for the deficient performance, the
outcome of the appeal would have been different”).
III. Procedural History
The following facts are taken from Petitioner’s initial brief on direct
appeal.
Brian Nibbelink[?] was tried with his twin
brother, Jonathan, in August 2015. The State
theorized that the Nibbelink brothers and accomplice
Gary Shepersky accidentally suffocated drug dealer
Dwight Martin (“Eskimo”) during a robbery at the
Nibbelink apartment on November 18, 2013. Brian
Nibbelink’s defense acknowledged his involvement in
the victim’s death, but disputed his role.
On the day of trial, Jonathan requested to
represent himself and instructed his appointed
attorney not to do anything at trial. The trial court
denied his request to proceed pro se because of the late
timing. Jonathan’s lawyer did not make any opening
or closing argument, cross examine any witnesses, or
participate in the trial proceedings in front of the jury.
Brian’s attorney, Nah-Deh Simmons, was the only
defense attorney to present a defense. The relevant
testimony is as follows:
Stan Kulenok became friends with the
Nibbelink twins in 2013. He could not tell the
difference between the two brothers at trial. He knew
Brian better. In 2013, Mr. Kulenok was taking
painkillers and heroin. He took drugs with each of the
brothers and he also bought drugs from them. He also
talked with each of them about robbing drug dealers.
These conversations took place about two months
3 Throughout the state court record, Petitioner is referred to by his first name
(Joshua) and his middle name (Brian).
before the events in question. Mr. Kulenok did not
know Dwight Martin, but he knew that he went by
“Kskimo” or “E.” Mr. Kulenok’s brother was also
friends with the Nibbelink twins. After ... they had
been charged with murder, Mr. Kulenok contacted the
police to anonymously report his interaction with the
Nibbelinks.
Mr. Kulenok had heard about the murder weeks
after it had happened, but he waited over a year to
contact the police. Brian had asked him to help rob a
drug dealer and it was his understanding that no guns
would be used. He wanted to rob .. . one because [he]
had been robbed by a drug dealer in the past. Jonathan
used a racial epithet to describe African-Americans
and said they were going to “take the city back” from
them. Mr. Kulenok ended up not going through with it
and leaving town.
Alexander Kulenok, Stan’s brother, is currently
in a drug treatment center for heroin addiction. In
2013, he was using heroin and he spent a lot of time
with the Nibbelinks. They had used drugs together
and he sometimes obtained drugs from Brian. He last
saw them just after the incident in question, but by
then they had been through a falling out over drugs
that had been stolen a week earlier. He also knew
Eskimo and he had bought drugs from him in the past.
He talked with the brothers, mainly Jonathan, about
robbing drug dealers, including Eskimo. They had
asked him to help with the robbery, but he wanted
nothing to do with it. Jonathan was angry with
Eskimo because of a past incident where he had tried
to buy heroin at a gas station, but Eskimo acted like
he did not know him. He thinks he heard Brian say
that they were going to “take the city back” from black
drug dealers, but he may have heard it from Jonathan.
After the events in question, Mr. Kulenok and
his girlfriend ended up at the Nibbelink apartment.
There was no electricity, running water, or food. It was
10
a tense atmosphere. Brian immediately asked Mr.
Kulenok if he had heard from Eskimo. Mr. Kulenok
explained that he had tried to call him, but his phone
was off. The group did heroin together and eventually
Jonathan took him aside and told him that they had
killed Eskimo. Jonathan said that they had robbed
him and “he could have lived if he kept his mouth
shut.” Mr. Kuleno[Jk had no further contact with
either brother.
A woman reported to police that she saw an
abandoned car on the morning of November 20, 2013,
as she walked to church. It smelled strongly of bleach.
It appeared to an FDLE crime scene technician that
somebody had tried to wipe the car down and the liner
was missing from the trunk. Blood was present. A
rental car contract signed by Eskimo was found inside.
Jennifer Monero was a drug addict in November
2013; she did drugs with both of the Nibbelink
brothers. At some point, she met Gary Shepersky. One
night, she approached Jonathan and Gary because she
needed a ride. The group walked about a mile to a car
they said belonged to Eskimo. Jonathan said they had
done some criminal activity so the car could not be
parked close to where they lived. They talked about
bleaching the car. When they arrived at the area
where the car was supposed to be, it was gone.
Jonathan and Gary panicked that the police had found
the car. Jonathan yelled at Gary about a bleach bottle.
Jonathan threw away the keys to the car.
At the Nibbelinks’ apartment with Mr.
She[lpersky, they told Ms. Monero that Eskimo had
kept talking even after he had been hogtied, cut, and
beaten. Ms. Monero called a friend for a ride, but she
found out that the group was going to attempt to rob
her friend. In the apartment, Ms. Monero heard that
they had robbed Eskimo for his dope and $800.00
before killing him. They had already spent the money
on drugs. Jonathan and Brian had dyed their hair
11
after the murder. She saw splatters of blood on the
wall in the bedroom. At some point, she pretended to
fall asleep on the bedroom floor. She then heard talk
about raping her because they had told her too much.
Mr. Shepersky eventually came into the bedroom and
told her to not be scared because he would not let that
happen. She was able to leave the apartment after she
said she was going downstairs to get drugs. She never
spoke to the group again. The police contacted her one
or two days later.
Two men riding their four-wheelers in the woods
found the skeletal remains of Eskimo, with a detached
skull. A detective obtained his phone records and
found that one of the last numbers he had called was
the Nibbelinks’. Eskimo’s DNA was obtained from
swabs of blood from the apartment. A DNA profile that
could have been from him was matched to blood from
the trunk of the car. The medical examiner could not
determine a cause of death due to the condition of the
remains.
Gary Shepersky entered an open plea to second-
degree murder, kidnapping, and robbery, for a
sentence to be decided by the court after the trial. He
admitted that he participated in the killing of Eskimo
with Brian and Jonathan. He took various drugs with
... them and they had discussed robbing Eskimo for
drugs and money. Mr. Shepersky had never met
Eskimo before the murder. The plan was for two of the
men to hide out and for the third to act as a decoy.
Mr. Shepersky testified that Brian called
Eskimo over to the apartment at night because
Jonathan had problems with Eskimo. Mr. Shepersky
and Jonathan came out of the closet after he walked
into the bedroom and the group attacked him.
Jonathan tried to choke him out, but failed. He and
Brian tied Eskimo up with some rope. He and
Jonathan beat him and Brian put a rag in his mouth.
After Eskimo had been subdued in the living room, the
12
group consumed his heroin. They took his money,
about $700. Eskimo eventually spit the rag out,
screamed, and tried to escape. He put another rag
down his throat. After they got high, they went to the
living room to clean up the blood from Eskimo’s nose.
Brian poured cleaning fluid on Eskimo.
After the group cleaned the living room, they
went back to the bedroom for about ten minutes to do
more drugs. When they came back out, they realized
Eskimo had died. They put his body into a sleeping bag
and moved it into the trunk of his car. They stopped to
buy more drugs before hiding the body in the woods at
Mr. Shepersky’s suggestion. They disposed of the rags
and other things in a dumpster behind the store. They
bought more drugs and a hotel room from Eskimo’s
money.
The next day, the group dyed their hair to
disguise themselves and left Eskimo’s car on a public
street after wiping it down with bleach. They
discussed the police finding the car and threw the keys
away in front of Ms. Monero when they met up with
her. They also discussed the murder back at their
apartment in front of her. Mr. Shepersky admitted
that he told three different stories to the police. At first
he said he did not know anything about what had
happened, then he tried to implicate everybody but
himself, and finally he confessed his involvement.
Ex. G at 4-10.
IV. Analysis
A. Ground One
Petitioner argues that the trial court erred “by allowing the jury to
deliberate with erroneous jury instructions.” Doc. 1 at 3. He explains: “The jury
instructions confused the jury about how it could find the Petitioner guilty,
13
they negated his sole defense, omitted instructions on how to evaluate his
alleged out-of-court statements, and contained the problematic ‘and/or’
conjunction between his name and his brother’s name.” Doc. 5 at 2.
Petitioner, through counsel, raised this claim on direct appeal. Ex. H.
The state filed an answer brief. Ex. I. The First District Court of Appeal per
curiam affirmed Petitioner’s convictions and sentences without issuing a
written opinion. Ex. J.
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. Considering the
jury instructions and the entire record, the Court finds this claim is due to be
denied. Petitioner takes issue with several parts of the jury instructions. First,
he argues that the “multiple counts, multiple defendants” instruction‘ deviated
from the standard jury instruction and confused the jury. He contends that the
modified “language did not clearly instruct the jury that its verdicts for
Jonathan Nibbelink (the Petitioner’s brother) could not be considered as to
Petitioner.” Doc. 5 at 2. He also argues that the “and/or” conjunction used
between his name and his brother’s name in the jury instructions “allowed the
jury to convict the Petitioner based on the actions of his brother.” Id. at 5.
4 The instruction read: “A separate crime is charged in each count of the indictment
and while they have been tried together each crime and the evidence applicable to it
must be considered separately and a separate verdict returned as to each.” Ex. C at
460.
14
Additionally, Petitioner argues “the jury was clearly not instructed that it did
not have to find him guilty of felony murder if it found him guilty of robbery
and that it had to return a separate verdict for each defendant.” Doc. 5 at 3.
He contends that the standard instruction about legally interlocking counts
was not given. Id. He explains that “[t]his negated his defense that his other
accomplices were more culpable and that he was only guilty of manslaughter.”
Id.
Contrary to Petitioner’s argument, the trial court properly instructed the
jury on the elements of each crime charged and the lesser-included offenses.
The trial court repeatedly advised the jury that although the two brothers were
being tried together in one case with one jury, their cases had to be considered
separately. For instance, during voir dire, the judge stated: “[T]he indictment
charges three separate offenses as to each of the two gentlemen. And,
obviously, each case is tried separately, but we’re going to try them all together
with one jury, but your consideration about the case as to each defendant would
be an individual consideration.” Ex. D at 25.
Additionally, in the final jury instructions, the trial judge explained:
One of the ways I’ve tried to simplify these
instructions is to rather than read them twice, once for
each defendant, I will read them once and it will have
each defendants’ name in the instructions, so it will
streamline it a little bit.
15
But a separate crime is charged in each count of
the indictment, and while they have been tried
together, each crime and the evidence applicable to it
must be considered separately and a separate verdict
form is how you'll know to do that, because we've
created it for you. As a general rule, a finding of guilty
or not guilty as to one count or crime must normally
not affect your verdict as to the others.
In this case, however, there is one exception to
this general rule. The exception applies to the crime of
first degree murder charged in Count 1, and the crime
of robbery in Count 3. These crimes are linked because
in order to prove the crime of felony murder, the State
must also prove the defendant committed the robbery
that’s charged in Count 3.
If you find that the State has not proven the
defendant committed a robbery, and find him not
guilty as a result, then you may not find the defendant
guilty of felony murder.
On the other hand, you may find the defendant
guilty of felony murder if you find all of the elements
of felony murder, including the essential elements of
robbery were proven beyond a reasonable doubt.
As far as the verdict forms are considered, there
are three counts as to each defendant. Each
defendants’ case has to be considered separately from
the other. Each count has to be considered separately
from the other.
So, we have two sets of verdict forms for you, one
for Jonathan Nibbelink, the other set is for Joshua
Nibbelink. I’ll just go over one set with you real quickly
.... [B]asically each verdict form is just a one page
document as it relates to each count, so there’s a total
16
of six pages, three for Jonathan Nibbelink, three for
Joshua Nibbelink.
Ex. G at 688, 710-11 (emphasis added).
Considering the instructions as a whole, it is clear that the jury was
instructed to consider each defendant individually as to each crime charged,
and that the jury was properly instructed on the elements of the crimes.
Second, Petitioner argues that the jury was erroneously instructed on
first degree premeditated murder—a crime with which he was not charged.
Doc. 5 at 3. During opening statements, the jury was advised that
premeditated murder was not at issue. See Ex. E at 226 (prosecutor stating,
“And he’s going to tell you it was not an accident. It was a robbery. Now, maybe
the death was an accident.”); 233 (defense counsel stating, “And the facts will
clearly show that there was no premeditated design to cause the death of Mr.
Martin.”). When instructing the jury, the trial court stated: “In order to convict
a defendant of first degree felony murder, it is not necessary for the State to
prove that the defendant had a premeditated design or intent to kill.” Ex. G at
690. Subsequently, the trial judge stated: “Your verdict as to the crime of first
degree — well, there’s not going to be one as to premeditated murder, that really
doesn’t apply.” Id. at 711. The written instructions that the trial judge was
reading from state: “Your verdict as to the crime of first degree premeditated
murder is not affected by this exception to the general rule. As I instructed you
17
before, a finding of guilty or not guilty as to the crime of first degree
premeditated murder as charged in Count I must not affect your verdict on
Count II and Count III and vice versa.” Ex. C at 460. The written instructions
were not corrected and no party made an objection to the instructions as read
by the judge. Jd. at 719-20.
Considering the totality of the instructions along with the evidence and
argument presented at trial, the jury was aware that premeditation was not a
prerequisite to finding Petitioner guilty. The trial judge properly instructed the
jury on the elements of the crimes charged and the jury’s verdict is supported
by the evidence.
Finally, Petitioner contends that the trial court erred by omitting the
standard jury instruction regarding his out-of-court statements introduced
through another witness. Doc. 5 at 4. Defense counsel had multiple
opportunities to voice concerns about the jury instructions, but he did not
request such an instruction be given. Even assuming a constitutional error
occurred, considering the evidence presented, such error did not have a
“substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
Upon thorough review of the record, the Court finds that the state court’s
adjudication of this claim was neither contrary to, nor an unreasonable
application of, clearly established federal law. Nor was the state court's
18
adjudication based on an unreasonable determination of the facts given the
evidence presented in the state court proceedings. As such, Ground One is
denied.
B. Ground Two
Petitioner argues that the trial court erred by allowing the admission of
his co-defendant’s confession implicating Petitioner. Doc. 1 at 4. According to
Petitioner, the trial court violated his Sixth Amendment right to cross-examine
his co-defendant “whose out-of-court statement referencing the Petitioner was
introduced through the testimony of another state witness, Alexander
Kulenok.” Doc. 5 at 6.
Petitioner, through counsel, raised this claim on direct appeal. Ex. H.
The state filed an answer brief. Ex. I. The First DCA per curiam affirmed
Petitioner’s convictions and sentences without issuing a written opinion. Ex. J.
The Court addresses this claim in accordance with the deferential
standard for federal habeas review. At Petitioner’s trial, Alexander Kulenok
testified that a couple days after the murder, he was with Petitioner and
Petitioner’s brother (Jonathan Nibbelink) when Jonathan pulled him aside and
told him “that he killed - - we killed E.” Ex. E at 269. Kulenok further stated,
“I believe he [(Jonathan)] told me that they had finally robbed him, and that
he could have lived if he kept his mouth shut.” Jd. at 270.
19
Even assuming the trial court erred by allowing the subject testimony,
any such error did not have a “substantial and injurious effect or influence in
determining the jury’s verdict” in light of the evidence presented. Brecht, 507
USS. at 638. Jennifer Monero testified that she overheard “Gary, Jonathan, and
Brian” talking about how “they had hogtied him [(the victim)] and they were
trying to get someone else to rob and take more drugs and more money. They
said they hogtied him, slit his throat and cut him.” Id. at 345-46, 348. She
further stated that “Brian said that when they were growing up he knew that
they would be serial killers.” Id. at 348. Additionally, Gary Shepersky testified
that he, along with Jonathan and Brian Nibbelink, kidnapped, robbed, and
killed the victim. See id. at 537-40, 544-47. Thus, even without Kulenok’s
testimony regarding what Jonathan told him, the evidence supportedthejury’s
verdicts.
Upon thorough review of the record, the Court finds that the state court’s
adjudication of this claim was neither contrary to, nor an unreasonable
application of, clearly established federal law. Nor was the state court’s
adjudication based on an unreasonable determination of the facts given the
evidence presented in the state court proceedings. As such, Ground Two is
denied.
20
C. Ground Three
According to Petitioner, the trial court erred by trying Petitioner and his
brother together. Doc. 1 at 5. He argues that because his brother did not put on
any defense and Petitioner did, it made Petitioner seem more culpable. See Doc.
5 at 7-8.
Petitioner, through counsel, raised this claim on direct appeal. Ex. H.
The state filed an answer brief. Ex. I. The First DCA per curiam affirmed
Petitioner’s convictions and sentences without issuing a written opinion. Ex. J.
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. “The Supreme
Court has held that co-defendants do not suffer prejudice simply because one
co-defendant’s defense directly inculpates another, or it is logically impossible
for a jury to believe both co-defendants’ defenses.” Puiatti v. McNeil, 626 F.3d
1283, 1316 (11th Cir. 2010) (quoting United States v. Blankenship, 382 F.3d
1110, 1125 (11th Cir. 2004)). The testimony and evidence was the same as to
both Petitioner and his brother, as they committed the same crimes together.
But the trial court properly instructed the jury to consider the defendants
separately. Upon thorough review of the record, the Court finds that the state
court’s adjudication of this claim was neither contrary to, nor an unreasonable
application of, clearly established federal law. Nor was the state court’s
adjudication based on an unreasonable determination of the facts given the
21
evidence presented in the state court proceedings. As such, Ground Three is
denied.
D. Ground Four
Petitioner argues that his appellate counsel was ineffective by failing to
argue that Petitioner was deprived of the presence of counsel during critical
stages of his proceeding. Doc. 1 at 6; Doc. 5 at 9. He explains that his trial counsel
“failed to attend several court dates and had other persons appear in his absence
who took actions without Petitioner Nibbelink’s knowledge or approval.” Doc. 5
at 9. Additionally, Petitioner's “appearance was waived and subsequently,
motions for continuances were filed against his request.” Id.
Petitioner raised this claim in a state court amended petition alleging
ineffective assistance of appellate counsel. Ex. M. The First DCA denied the
amended petition “on the merits.” Ex. N.
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. Initially, the
Court notes that Petitioner raised a similar claim in his Florida Rule of Criminal
Procedure 3.850 proceeding, arguing that his trial counsel was ineffective. The
state court recognized that Petitioner’s trial counsel was absent from three pre-
trial hearings. Ex. Q at 36. First, counsel did not appear on December 31, 2013,
for the arraignment because he believed it was scheduled for January 6, 2014.
Id. Petitioner did not enter a plea and his arraignment was rescheduled. Id.
22
Thus, the state court found that Petitioner suffered no prejudice. Second,
Petitioner’s trial counsel did not appear at two pretrial hearings, but both
hearings were rescheduled and counsel appeared at the rescheduled times. Jd.
at 37. The state court found that these two hearings were not “crucial stages” of
the litigation and “counsel’s absence did not prejudice [Petitioner] or otherwise
derogate from his right to a fair trial.” Id.
Next, to the extent Petitioner argues that his counsel allowed others to
appear on Petitioner’s behalf, the state court found that another licensed
attorney stood in for Petitioner’s counsel at two pre-trial hearings and that such
substitution did not prejudice Petitioner. Jd. at 37-38. Finally, the state court
acknowledged that Petitioner’s presence was waived at three pre-trial hearings
and one post-trial hearing, none of which prejudiced Petitioner or impacted the
result of his case. See id. at 38-40. Indeed, only scheduling matters took place at
the hearings. See id.
The Sixth Amendment guarantees the right to counsel at all critical
stages of the criminal process. See, e.g., Missouri v. Frye, 566 U.S. 134, 140
(2012) (citing Montejo v. Louisiana, 556 U.S. 778, 786 (2009)). Additionally, the
Supreme Court has held that “a defendant is guaranteed the right to be present
at any stage of the criminal proceeding that is critical to its outcome if his
presence would contribute to the fairness of the procedure.” Kentucky v.
Stincer, 482 U.S. 730, 745 (1987); see also Morris v. Sec’y, Dep’t of Corr., 677
23
F.3d 1117, 1126 (11th Cir. 2012). Although the “privilege of presence is not
guaranteed when presence would be useless, or the benefit but a shadow, due
process clearly requires that a defendant be allowed to be present to the extent
that a fair and just hearing would be thwarted by his absence.” Stincer, 482
U.S. at 745 Gnternal citations and quotation marks omitted).
Upon thorough review of the record, it is clear that appellate counsel was
not ineffective for failing to raise these issues, nor has Petitioner shown a
reasonable probability that the outcome of his appeal would have been
different had appellate counsel done so. As such, the Court finds that the state
court’s adjudication of this claim was neither contrary to, nor an unreasonable
application of, clearly established federal law. Nor was the state court’s
adjudication based on an unreasonable determination of the facts given the
evidence presented in the state court proceedings. As such, Ground Four is
denied.
E. Ground Five
Petitioner contends that his appellate counsel was ineffective for failing
to argue that Petitioner’s appearance was waived without a written consent
form, nor was it knowingly or voluntarily waived. Doc. 1 at 7; Doc. 5 at 9-10. He
argues that he “was not included in several court proceedings and therefore, he
was denied his right to participate in his own defense and decision making
process.” Doc. 5 at 9. He asserts that his “counsel took actions without ever
24
consulting the Petitioner and filed motions for continuances when the Petitioner
specifically requested they exercise his speedy trial options.” Jd. at 9-10.
Petitioner raised this claim in a state court amended petition alleging
ineffective assistance of appellate counsel. Ex. M. The First DCA denied the
amended petition “on the merits.” Ex. N.
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. Under Florida
law, “an attorney may waive speedy trial [and seek continuances] without
consulting the client and even against the client’s wishes.” McKenzie v. State,
153 So. 3d 867, 875 (Fla. 2014), on reh’g (Dec. 11, 2014) (citing McKenzie v.
State, 29 So. 3d 272, 282 (Fla. 2010)). Upon thorough review of the record, the
Court finds that the state court’s adjudication of this claim was neither
contrary to, nor an unreasonable application of, clearly established federal law.
Nor was the state court’s adjudication based on an unreasonable determination
of the facts given the evidence presented in the state court proceedings. As
such, Ground Five is denied.
F. Ground Six
Petitioner argues that his appellate counsel was ineffective for failing to
obtain all transcripts for his direct appeal. Doc. 1 at 8. He asserts “that the
pretrial transcripts unequivocally demonstrate the conflict between trial
counsel and himself and that appellate counsel’s failure to obtain them to show
25
prejudice constitutes ineffective assistance.” Doc. 5 at 10. Specifically, he states
that the transcripts would have shown that he requested counsel file a motion
to suppress, and counsel did not “request the entire pretrial and speedy trial
transcripts or the Nelson|5] hearing transcripts.” Id.
Petitioner raised this claim in a state court amended petition alleging
ineffective assistance of appellate counsel. Ex. M. The First DCA denied the
amended petition “on the merits.” Ex. N.
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. The record
reflects that Petitioner’s trial counsel requested transcripts for the direct
appeal of the hearings conducted on August 24-27, 2015, and September 2,
2015, which included the jury selection, trial, motions hearings, and
sentencing. Ex. A at 518-19. The record further shows that Petitioner’s trial
counsel did file motions to suppress that the trial court denied or found moot.
Id. at 75-88, 104, 146; Ex. C at 523-52.
Although not all transcripts were included in the record on direct appeal,
Petitioner fails to show that his appellate counsel was ineffective. Regardless,
even assuming appellate counsel was ineffective in the manner Petitioner
suggests, Petitioner has not shown prejudice. He fails to show that a
5 Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).
26
reasonable probability exists that the outcome of his direct appeal would have
been different had his appellate counsel ensured all transcripts were included
in the record on appeal. Upon thorough review of the record, the Court finds
that the state court’s adjudication of this claim was neither contrary to, nor an
unreasonable application of, clearly established federal law. Nor was the state
court’s adjudication based on an unreasonable determination of the facts given
the evidence presented in the state court proceedings. As such, Ground Six is
denied.
G. Ground Seven
Petitioner contends that his appellate counsel was ineffective for failing
to argue that the trial court never held an adequate Nelson hearing. Doc. 1 at 9.
He argues that he requested a Nelson hearing because his lawyer had been
withholding evidence and refusing to assist in the preparation of Petitioner's
defense. Doc. 5 at 11. Petitioner asserts that “[t]he trial judge and counsel both
attempted to dissuade the Petitioner from following through with the Nelson
hearing and as such, petitioner Nibbelink was never afforded the opportunity to
be heard in open court regarding his difficulties with counsel.” Jd.
Petitioner raised this claim in a state court amended petition alleging
ineffective assistance of appellate counsel. Ex. M. The First DCA denied the
amended petition “on the merits.” Ex. N.
27
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. The state court
docket reflects that on June 25, 2015, Petitioner was present at a hearing
where he withdrew his request for a Nelson hearing. Doc. 10-1 at 15. Petitioner
has shown neither deficient performance nor resulting prejudice.
Upon thorough review of the record, the Court finds that the state court’s
adjudication of this claim was neither contrary to, nor an unreasonable
application of, clearly established federal law. Nor was the state court's
adjudication based on an unreasonable determination of the facts given the
evidence presented in the state court proceedings. As such, Ground Seven is
denied.
H. Ground Eight
According to Petitioner, his appellate counsel was ineffective for failing to
argue several instances of prosecutorial and police misconduct. Doc. 1 at 10. He
contends that the prosecutor committed a Giglio® violation by offering the
perjured testimony of Gary Shepersky. Doc. 5 at 12. He alleges that the
prosecutor and lead detective “coerced the perjured testimony ... by threats and
intimidation to obtain a guilty verdict against the Petitioner.” Id.
6 Giglio v. United States, 405 U.S. 150 (1972).
28
Petitioner raised this claim in a state court amended petition alleging
ineffective assistance of appellate counsel. Ex. M. The First DCA denied the
amended petition “on the merits.” Ex. N.
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. Upon thorough
review of the record, the Court finds that the state court’s adjudication of this
claim was neither contrary to, nor an unreasonable application of, clearly
established federal law. Nor was the state court’s adjudication based on an
unreasonable determination of the facts given the evidence presented in the
state court proceedings. As such, Ground Eight is denied.
I. Ground Nine
Petitioner argues that the postconviction court erred by denying his
motion based on newly discovered evidence. Doc. 1 at 11. He contends that Gary
Shepersky recanted his trial testimony, and the reason he lied at the trial was
“because he was allowed to believe he would be receiving a sentence of what he
thought would be five to ten years.” Doc. 5 at 13.
Petitioner raised this claim in his postconviction motion filed pursuant to
Florida Rule of Criminal Procedure 3.850. The state court held an evidentiary
hearing on this ground, at which Petitioner appeared pro se. Petitioner called
Gary Shepersky, former Detective Donnie Slayton, and former Assistant State
Attorney Jeffrey Moody as witnesses. The State called investigator John
29
Sheppard as its witness. After the evidentiary hearing, the state court denied
the claim:
Defendant alleges newly discovered evidence in
the form of recantation of trial testimony by witness,
Gary Shepersky. In support of this allegation,
Defendant attaches an affidavit from Shepersky,
stating Defendant was not involved with or present
when the victim, Mr. Martin, was killed and that
Shepersky only testified Defendant was involved in
order to avoid the death penalty or life in prison.
Shepersky also stated he was coerced, scared, tired, and
provided a false confession. Defendant maintains that
as Shepersky was the only testifying eyewitness to the
murder, his recantation would probably result in
Defendant’s acquittal upon a retrial.
In order for a conviction to be set aside on the
basis of newly discovered evidence, two requirements
must be met: (1) “the evidence must have been
unknown by the trial court, by the party, or by counsel
at the time of trial, and it must appear that defendant
or his counsel could not have known [of it] by the use of
diligence” and (2) “the newly discovered evidence must
be of such nature that it would probably produce an
acquittal on retrial.” Jones v. State, 709 So. 2d 512, 521
(Fla. 1998) (citations omitted). “[R]ecanted testimony
that is alleged to constitute newly discovered evidence
will mandate a new trial only if (1) the court is satisfied
that the recantation is true, and (2) the recanted
testimony would probably render a different outcome in
the proceeding.” Davis v. State, 26 So. 3d 519, 526 (Fla.
2009) (citing Armstrong v. State, 642 So. 2d 730, 735
(Fla. 1994)). Because “recanting testimony is
exceedingly unreliable . . . it is the duty of the court to
deny a new trial where it is not satisfied that such
testimony is true. Especially is this true where the
recantation involves a _ confession of perjury.”
Armstrong, 642 So. 2d at 735 (quoting Bell v. State, 90
So. 2d 704 (Fla. 1956)).
30
As to the due diligence requirement, the Court
notes “recanted testimony cannot be ‘discovered’ until
the witness chooses to recant.” Davis, 26 So. 3d at 528
(citing Burns v. State, 858 So. 2d 1229, 1230 (Fla. 1st
DCA 2003)). Thus, even without the benefit of
Defendant's trial counsel’s testimony at the evidentiary
hearing, the Court presumes Shepersky’s recanted
testimony could not have been discovered by counsel
prior to trial.
The record establishes that Shepersky provided
several different versions of what occurred during Mr.
Martin’s kidnapping and murder before fully
confessing to police. In Shepersky’s third or fourth
version, he admitted he, Defendant, and Defendant's
brother planned to rob Mr. Martin, together they
attacked and tied up Mr. Martin, and after Mr. Martin
died, they dumped his body in the woods. This version
was substantially similar to the testimony he provided
at trial.
At the evidentiary hearing, Shepersky testified
his confession to detectives was a lie he fabricated
based on what he thought they wanted to hear and
which he believed would result in leniency for him.
Shepersky stated he was led to believe he would be
sentenced to ten-to-fifteen years[] imprisonment and,
because of his cooperation, would not be charged with
murder. After acknowledging his understanding of
what perjury means, he admitted committing perjury
during the trial. Ultimately, were a new trial to be held,
Shepersky stated he would testify that no robbery or
kidnapping ever took place, and that he fabricated the
whole thing.
The Court is not satisfied that Shepersky’s
recantation testimony is true. Evidence tends to show
Shepersky was coerced into recanting. At the
evidentiary hearing, Shepersky testified he had
received a letter from Defendant’s father that included
31
case law about recantation evidence. Shepersky also
admitted he was housed in the same prison as
Defendant at the time he wrote one of the affidavits and
was transferred to a different prison because he told
prison officials he was afraid of Defendant. Further, it
is clear that Shepersky was upset that the trial court
sentenced him to twenty-five years[] imprisonment,
instead of the ten-to-fifteen he believed he would
receive, despite the risk he took in testifying against
Defendant.
Moreover, Defendant’s current version of events,
i.e. that no robbery or kidnapping ever took place and
that Shepersky fabricated the whole thing, is
contradicted by the evidence adduced at trial. Witness,
Jennifer Monero, corroborated key facts to which
Shepersky had testified including that: Shepersky and
the Nibbelink brothers had cleaned out Mr. Martin’s
car; after they realized the car was missing,
Defendant’s brother threw part of Mr. Martin’s car keys
into the river and another part into a portable toilet or
dumpster; Mr. Martin was hogtied and his blood had
spattered the apartment during the attack; and
Shepersky and the Nibbelink brothers took several
hundred dollars and drugs from Mr. Martin after the
attack. Notably, Shepersky told detectives he and the
Nibbelink brothers dumped Mr. Martin’s body in the
woods in Putnam County, which was where Mr.
Martin’s body was eventually found.
The Court further finds Shepersky’s new
testimony would not likely result in a different verdict,
especially in light of the entirety of the evidence
adduced at trial. The State presented evidence that Mr.
Martin was missing when his bleached-down car was
found by police, and his phone records showed one of
the last calls he made was to one of the Nibbelink
brothers. Blood discovered in the trunk of Mr. Martin’s
car and on the walls of the Nibbelinks’s apartment
matched Mr. Martin’s deduced DNA profile.
Surveillance photos from a hotel in St. Augustine show
32
Shepersky and the Nibbelink brothers checking [in] the
night that Mr. Martin went missing. And, in addition
to Ms. Monero’s testimony, witness, Alexander
Kulenok, testified Defendant’s brother bragged to him
that they robbed and murdered Mr. Martin. Moreover,
were Shepersky to testify at a new trial, he would be
impeached with his prior inconsistent statements and
felony convictions.
For the foregoing reasons, the Court denies
Defendant’s request for a new trial based on
Shepersky’s recantation testimony.
Ex. Q at 27-30 (internal record citations omitted). Petitioner appealed, filing an
initial brief, Ex. S, and the state filed an answer brief, Ex. T. Petitioner filed a
reply. Ex. U. The First DCA per curiam affirmed the denial of his postconviction
motion without issuing a written opinion. Ex. V.
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. Upon thorough
review of the record, the Court finds that the state court’s adjudication of this
claim was neither contrary to, nor an unreasonable application of, clearly
established federal law. Nor was the state court’s adjudication based on an
unreasonable determination of the facts given the evidence presented in the
state court proceedings. As such, Ground Nine is denied.
J. Ground Ten
Petitioner complains that the postconviction court erred by denying his
ineffective assistance of trial counsel claim regarding his counsel’s failure to
33
object when the trial court restricted counsel’s cross-examination of Detective
Slayton. Doc. 1 at 12.7 He explains that the trial court restricted counsel’s ability
to question Detective Slayton on “the interrogation tactics of co-defendant Gary
Shepersky that ultimately led to his coerced and fabricated confession.” Doc. 5
at 15-16.
Petitioner raised this claim in his Rule 3.850 proceeding. The
postconviction court summarily denied the claim:
Defendant alleges counsel was ineffective for
failing to object when the trial court restricted his cross-
examination of Detective Slayton, specifically,
regarding the circumstances surrounding the conduct
of the Jacksonville Sheriffs Office (“JSO”) in obtaining
Shepersky’s confession.
This claim is refuted by the record. On June 27,
2015, counsel filed a motion to suppress the police
interview and testimony of Shepersky, among other
evidence. On August 25, 2015, the Court heard
argument of counsel on said motion. The Court denied
the motion to suppress as to Shepersky’s testimony, but
indicated there was no need to address Shepersky’s
interview because there was no intention by the State
to use the interview at trial. During counsel’s cross-
examination of Detective Slayton at trial, the State
requested a sidebar due to a concern that counsel might
be opening the door to testimony regarding Shepersky’s
interview, which would be contrary to the Court’s
ruling on the motion to suppress. Counsel argued his
intention was to question Detective Slayton regarding
the procedure he used in interviewing Defendant, his
7 To the extent Petitioner argues that the postconviction court violated his due process
rights by denying his request to file a second amended Rule 3.850 motion, such claim
is insufficiently pled and due to be denied.
34
co-defendant, and Shepersky. However, the Court
restricted counsel’s cross-examination of Detective
Slayton in order to prevent counsel from inadvertently
opening the door to evidence he was entitled to keep out
and to protect Defendant’s right to appeal the
suppression issues. Although not stated as an objection
to the Court’s ruling, counsel did argue his position for
being able to question Detective Slayton on this issue.
Accordingly, counsel was not deficient.
Notably, Defendant cannot demonstrate
prejudice as counsel did in fact question Detective
Slayton regarding his conduct in obtaining Shepersky’s
confession when the Detective was re-called to testify
the following day.
Defendant is not entitled to relief on Ground
Two.
Ex. Q at 31-32 (internal record citations omitted). Petitioner appealed, filing an
initial brief, Ex. S, and the state filed an answer brief, Ex. T. Petitioner filed a
reply. Ex. U. The First DCA per curiam affirmed the denial of his postconviction
motion without issuing a written opinion. Ex. V.
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. Upon thorough
review of the record, the Court finds that the state court’s adjudication of this
claim was neither contrary to, nor an unreasonable application of, clearly
established federal law. Nor was the state court’s adjudication based on an
unreasonable determination of the facts given the evidence presented in the
state court proceedings. As such, Ground Ten is denied.
35
K. Ground Eleven
According to Petitioner, the postconviction court erred by denying his
claim that trial counsel was ineffective for failing to move to exclude the
testimony of state witness Jennifer Monero. Doc. 1 at 18. Petitioner argues that
counsel should have moved to exclude her testimony “because she was not
properly deposed.” Doc. 5 at 17. “More importantly, because she was not deposed
until just six days prior to the Petitioner’s trial, counsel had little or no time to
investigate this witness and the candor of her deposition testimony.” Id.
Petitioner raised this claim in his Rule 3.850 proceeding. The
postconviction court summarily denied the claim:
Defendant alleges counsel was ineffective for
failing to move to exclude the testimony of witness,
Jennifer Monero. Defendant contends Ms. Monero
should not have been permitted to testify at trial
because she was not sworn prior to being deposed and
had ignored subpoenas.
A discovery deposition taken pursuant to Florida
Rule of Criminal Procedure 3.220(h) is “only admissible
[at trial] for purposes of impeachment.” Blanton uv.
State, 978 So. 2d 149, 155 (Fla. 2008). Similarly, a
witness’s unsworn telephonic statement “may be used
for impeachment at trial as a prior inconsistent
statement pursuant to the Florida Evidence Code.” Fla.
R. Crim. P. 3.220(h)(8).
State’s witness, Jennifer Monero, was
telephonically deposed on behalf of Defendant, on
August 20, 2015. Defendant is correct that Ms. Monero
was not sworn prior to being deposed. However, the
State stipulated to proceeding with the deposition
36
despite Ms. Monero being unsworn. During trial,
Defendant’s counsel attempted to impeach Ms. Monero
with statements she made during her telephonic
deposition. Thus, Defendant cannot demonstrate
prejudice as the fact that Ms. Monero’s deposition was
unsworn had no bearing on its use at trial.
Further, “[a] witness who refuses to obey a duly
served subpoena may be adjudged in contempt of the
court from which the subpoena issued.” Fla. R. Crim. P.
3.220(h)(1). “The exclusion of a witness is justified only
after some lesser sanction, such as contempt or a writ
of bodily attachment, has been attempted without
success in making the witness attend a deposition.”
State v. Gonzalez, 695 So. 2d 1290, 1292 (Fla. 4th DCA
1997).
In its Response, the State concedes Ms. Monero
failed to appear for a deposition scheduled in co-
defendant, Jonathan Nibbelink’s case, on January 28,
2015. Regardless, she did appear for deposition in this
case on August 20, 2015. The Court would have denied
a defense motion to exclude Ms. Monero as a witness
for her failure to appear because no lesser sanction had
been sought or attempted to compel her appearance
and because she did ultimately appear for deposition.
Counsel cannot be deemed ineffective for failing to
make a meritless argument. See Teffeteller, 734 So. 2d
at 1023.
Defendant is not entitled to relief on Ground
Three.
Ex. Q at 32-33 (internal record citations omitted). Petitioner appealed, filing an
initial brief, Ex. S, and the state filed an answer brief, Ex. T. Petitioner filed a
reply. Ex. U. The First DCA per curiam affirmed the denial of his postconviction
motion without issuing a written opinion. Ex. V.
37
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. Upon thorough
review of the record, the Court finds that the state court’s adjudication of this
claim was neither contrary to, nor an unreasonable application of, clearly
established federal law. Nor was the state court’s adjudication based on an
unreasonable determination of the facts given the evidence presented in the
state court proceedings. As such, Ground Eleven is denied.
L. Ground Twelve
Petitioner contends that the postconviction court erred by denying his
claim that his trial counsel was ineffective for failing to impeach Alexander
Kulenok’s trial testimony with his prior inconsistent statements. Doc. 1 at 15.
He claims “that counsel had recorded statements previously offered by Mr.
Kulenok and could have refreshed the witness’s memory by showing him the
documents.” Doc. 5 at 18. Petitioner acknowledges that “[u]nexplainably,
Counsel Simmons made a strategic decision not to impeach the witness with
this evidence.” fd.
Petitioner raised this claim in his Rule 3.850 proceeding. The
postconviction court summarily denied the claim:
Defendant alleges counsel was ineffective for
failing to impeach witness, Alexander Kulenok, with a
prior inconsistent statement. Specifically, Defendant
claims Mr. Kulenok testified at trial that Defendant
discussed robbing the victim prior to the victim’s death,
38
but that during a police interview, Mr. Kulenok stated
he did not hear Defendant discussing same. Defendant
further claims that had counsel impeached Mr.
Kulenok with this inconsistency, another witness, Stan
Kulenok, also would have been impeached.
During Mr. Kulenok’s direct examination, he
testified he had conversations with Defendant about
robbing drug dealers and that the victim’s name was
specifically mentioned. During cross-examination,
defense counsel questioned Mr. Kulenok about his
previous conversation with the police:
Q: Now, do you recall speaking to the police back
in March or April of this year, correct?
A: Yes.
Q: Okay. And do you recall telling the police that
you never heard Brian say anything about robbing,
correct?
A: I don’t -- I don’t recall that.
Q: So, if the police made a report and stated that
when asked about talking about robbery and you said
you never heard Brian talk about robbery, that would
be incorrect?
A: I cannot remember, sir.
Q: Okay. Were you on drugs then as well?
A: Yes.
Thus, the record shows that counsel did, in fact,
bring to the jury’s attention that Mr. Kulenok made
prior inconsistent statements and impeached him with
his drug use. Notably, an attempt to impeach Mr.
Kulenok with his prior inconsistent statement when he
stated he had no recollection of making the statement
39
would have been improper. See James v. State, 765 So.
2d 763, 766 (Fla. 1st DCA 2000) (citation omitted) (“[I]t
was error to allow the impeachment because Jones’
trial testimony that he had no recollection was not truly
inconsistent with his previous statement.”).
Accordingly, the Court finds trial counsel was not
deficient as it relates to this claim.
Defendant is not entitled to relief on Ground
Four.
Ex. Q at 34-35 (internal record citations omitted). Petitioner appealed, filing an
initial brief, Ex. S, and the state filed an answer brief, Ex. T. Petitioner filed a
reply. Ex. U. The First DCA per curiam affirmed the denial of his postconviction
motion without issuing a written opinion. Ex. V.
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. Upon thorough
review of the record, the Court finds that the state court’s adjudication of this
claim was neither contrary to, nor an unreasonable application of, clearly
established federal law. Nor was the state court’s adjudication based on an
unreasonable determination of the facts given the evidence presented in the
state court proceedings. As such, Ground Twelve is denied.
Accordingly, it is
ORDERED:
1. The Order to Show Cause (Doc. 14) is DISCHARGED. See
Petitioner's Response (Doc. 15).
40
2. The Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254
(Doc. 1) is DENIED, and this case is DISMISSED WITH PREJUDICE.
23; The Clerk of Court shall enter judgment accordingly, terminate
any pending motions, and close this case.
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.®
DONE AND ORDERED at Jacksonville, Florida, this Ori day of
March, 2024.
U Sy S CT JUDGE
JAX-3 3/6 □
Joshua Nibbelink, #L98289
Counsel of record
8 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.
41