Hearns v. Secretary, Department of Corrections (Sarasota)

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDURAT

TAMPA DIVISION

JOSHUA NICHOLAS HEARNS,

Applicant,

v. CASE NO. 8:21-cv-163-SDM-TGW

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

Hearns applies under 28 U.S.C. § 2254 for a writ of habeas corpus (Docs. 1)

and challenges his conviction for conspiracy to traffic oxycodone, for which Hearns

is imprisoned for twenty-five years. Numerous exhibits support the response.

(Doc. 5-2) The respondent admits that the application is timely (Doc. 5 at 7–8) but

asserts that some grounds are procedurally barred. (Doc. 5 at 13–14, 17–18, 28–29)

I. BACKGROUND1

An information charged Hearns with conspiracy to traffic oxycodone, five

counts of trafficking oxycodone, and five counts of obtaining a controlled substance

by fraud. (Doc. 5-2 at 29–33) James Kipp, a co-defendant who pleaded guilty,

testified that Hearns recruited him to obtain oxycodone pills. (Doc. 5-2 at 107)

Hearns drove Kipp both to a residence where a person wrote Kipp a prescription for

1 This summary of the facts derives from the trial transcripts.

oxycodone and to a pharmacy where Kipp filled the prescription. (Doc. 5-2 at 107–

08) Hearns kept two-hundred of the thirty-gram oxycodone pills and gave Kipp forty

pills. (Doc. 5-2 at 109)

Also, Hearns asked Kipp to recruit others to obtain oxycodone. (Doc. 5-2

at 109) Kipp drove John Weiss and Jeffrey Gradert to the residence where Hearns

wrote a prescription for each and gave each money to fill the prescription at the

pharmacy. (Doc. 5-2 at 111–14) Hearns kept two hundred pills from each

prescription, gave Kipp twenty pills from each prescription, and gave Weiss and

Gredert each twenty pills. (Doc. 5-2 at 109, 115) Kipp recruited Lori Moser who

obtained a prescription from Hearns and filled the prescription, and Hearns gave

Kipp twenty pills. (Doc. 5-2 at 121–22) Kipp recruited Brenda Weiss and Jason

Mathis who obtained prescriptions from Hearns and filled the prescriptions, but

Hearns did not give Kipp pills from those prescriptions. (Doc. 5-2 at 116–17, 121,

123) John Weiss, Brenda Weiss, Moser, Gradert, and Mathis admitted that they

received pills after filling the prescriptions written by Hearns. (Doc. 5-2 at 224–34,

245–58, 277–88, 303–12, 327–37)2

A records custodian for the pharmacy testified that John Weiss received

180 pills of thirty-milligram oxycodone, Brenda Weiss received 240 pills, Moser

received 240 pills, Mathis received 240 pills, and Gradert received 180 pills.

(Doc. 5-2 at 169–70, 172–73, 174–75, 176–78) The pharmacy’s records showed that

2 Mathis did not observe Hearns write the prescription but testified that he gave his

identification to a person at the residence and observed Hearns give the person a prescription.

(Doc. 5-2 at 330–31)

Dr. Rothenberg prescribed the pills, and a pharmacy technician testified that she

likely verified with Dr. Rothenberg’s office the authenticity of the prescriptions.

(Doc. 5-2 at 186–87, 217) The pharmacy routinely verified the authenticity of

a prescription for a new customer from Dr. Rothenberg’s office, and John Weiss,

Brenda Weiss, Moser, Mathis, and Gradert were new customers. (Doc. 5-2 at

186–87)

In his own defense Hearns testified that he knew Kipp for about a year and

both John and Brenda Weiss lived with Kipp. (Doc. 5-2 at 472–73, 475–76) Hearns

claimed that he was Dr. Rothenberg’s patient and denied either meeting Gradert,

Moser, and Mathis or writing a prescription for oxycodone. (Doc. 5-2 at 474–78)

The jury found Hearns guilty of conspiracy to traffic oxycodone but acquitted him of

all other counts. (Doc. 5-2 at 721–31)

II. EXHAUSTION AND PROCEDURAL DEFAULT

The respondent argues that ground one, ground two, and two sub-claims in

ground three are procedurally barred from federal review because Hearns failed to

exhaust the claims. (Doc. 5 at 13–14, 17–18, 28–29) “[E]xhaustion of state remedies

requires that petitioners ‘fairly presen[t]’ federal claims to the state courts in order to

give the State the ‘opportunity to pass upon and correct’ alleged violations of its

prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (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.” Baldwin v. Reese, 541 U.S. 27,

29 (2004) (citing Henry, 513 U.S. at 365–66).

Ground One:

Hearns asserts that trial counsel’s representation of Hearns’s uncle, Herbert

Battle, Jr., created an actual conflict of interest that adversely affected trial counsel’s

performance in Hearn’s case. (Doc. 1 at 16–19) Hearns alleges that he told trial

counsel that he wanted to cooperate with law enforcement against Battle, a drug

trafficker, in an effort to secure a waiver of the twenty-five-year mandatory minimum

sentence that he faced. (Doc. 1 at 17) He alleges that trial counsel forbade him to

cooperate against Battle. (Doc. 1 at 17) Hearns asserts that, but for trial counsel’s

conflict of interest, he would have cooperated against Battle, obtained a waiver of the

mandatory minimum sentence, and pleaded guilty. (Doc. 1 at 17–18)

(“Sub-claim A”)

Also, Hearns alleges that trial counsel continued to represent him after his trial

and until May 16, 2016, when the state appellate court granted trial counsel’s motion

to withdraw. (Doc. 1 at 18) Hearns alleges that in 2015 an information charged trial

counsel with driving under the influence. (Doc. 1 at 18) He contends that trial

counsel recruited Battle to traffic heroin and attempted to cooperate with law

enforcement against Battle to obtain mitigation in his criminal case and in

proceedings before The Florida Bar. (Doc. 1 at 18) He contends that an indictment

charged trial counsel and Battle with conspiracy to possess with intent to distribute

heroin, and both pleaded guilty. (Doc. 1 at 18–19) See United States v. Burch,

No. 8:16-cr-465-SCB-SPF (M.D. Fla.). Hearns asserts that trial counsel deficiently

performed and represented him with a conflict of interest on direct appeal by not

pursuing cooperation with law enforcement against Battle on Hearn’s behalf and

instead pursuing cooperation on trial counsel’s own behalf. (Doc. 1 at 19)

(“Sub-claim B”)

Hearns failed to raise sub-claim A in his motion for post-conviction relief

(Doc. 5-2 at 1020–68) and in his brief on appeal. (Doc. 5-2 at 1598–1642) Also, he

failed to raise sub-claim B in his petition alleging ineffective assistance of appellate

counsel. (Doc. 5-2 at 915–44) If Hearns returned to state court to raise the

sub-claims, the post-conviction court would deny both sub-claims as procedurally

defaulted. Fla. R. Crim. P. 3.850(b) and (h). Fla. R. App. P. 9.141(d)(5) and

(d)(6)(C). Consequently, the sub-claims are procedurally defaulted in federal court.

Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (“[W]hen it is obvious that

the unexhausted claims would be procedurally barred in state court due to a state-law

procedural default, we can forego the needless ‘judicial ping-pong’ and just treat

those claims now barred by state law as no basis for federal habeas relief.”).

The sub-claims are barred from federal review absent a showing of either

“actual cause and prejudice” or a “fundamental miscarriage of justice.” Coleman v.

Thompson, 501 U.S. 722, 750 (1991). Hearns asserts that, under Martinez v. Ryan,

566 U.S. 1 (2012), the absence of post-conviction counsel serves as cause to excuse

the procedural default. (Doc. 1 at 5) “To overcome the default, a prisoner must also

demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is

a substantial one, which is to say that the prisoner must demonstrate that the claim

has some merit.” Martinez, 566 U.S. at 14.

Sub-claim A:

Hearns asserts that trial counsel deficiently performed before trial by

representing him with a conflict of interest. (Doc. 1 at 16–18) Shinn v. Ramirez,

596 U.S. 366, 371 (2022), narrowed relief under Martinez by prohibiting a federal

court from considering evidence not presented to the post-conviction court unless the

applicant meets his burden under Section 2254(e)(2):

Often, a prisoner with a defaulted claim will ask a federal

habeas court not only to consider his claim but also to permit

him to introduce new evidence to support it. Under the

Antiterrorism and Effective Death Penalty Act of 1996, the

standard to expand the state-court record is a stringent one.

If a prisoner has “failed to develop the factual basis of a claim

in State court proceedings,” a federal court “shall not hold an

evidentiary hearing on the claim” unless the prisoner satisfies

one of two narrow exceptions, see 28 U.S.C. § 2254(e)(2)(A),

and demonstrates that the new evidence will establish his

innocence “by clear and convincing evidence,” § 2254(e)(2)(B).

In all but these extraordinary cases, AEDPA “bars evidentiary

hearings in federal habeas proceedings initiated by state

prisoners.” McQuiggin v. Perkins, 569 U.S. 383, 395 (2013).

The question presented is whether the equitable rule announced

in Martinez permits a federal court to dispense with

§ 2254(e)(2)’s narrow limits because a prisoner’s state

postconviction counsel negligently failed to develop the

state-court record. We conclude that it does not.

Section 2254(e)(2) bars a federal court from holding an evidentiary hearing

unless an applicant carries a heavy burden:

If the applicant has failed to develop the factual basis of a claim

in State court proceedings, the court shall not hold an

evidentiary hearing on the claim unless the applicant shows

that —

(A) the claim relies on —

(i) a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable;

or

(ii) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and

(B) the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for

constitutional error, no reasonable factfinder would have found

the applicant guilty of the underlying offense.

Hearns’s application fails to demonstrate that he meets the burden under

Section 2254(e)(2). (Doc. 1 at 16–19) Because “under § 2254(e)(2), a federal habeas

court may not conduct an evidentiary hearing or otherwise consider evidence beyond

the state-court record based on ineffective assistance of state postconviction counsel,”

Shinn, 596 U.S. at 382, and the post-conviction record fails to demonstrate that trial

counsel represented Hearns with a conflict of interest (Doc. 5-2 at 1019–1582),

Hearns fails to demonstrate prejudice under Martinez.

Sub-claim B:

Hearns asserts that trial counsel deficiently performed by representing him

with a conflict of interest on direct appeal. (Doc. 1 at 18–19) Because Martinez

applies only to an ineffective assistance of trial counsel claim, Martinez provides no

relief for sub-claim B. Davila v. Davis, 582 U.S. 521, 529 (2017) (“Petitioner asks us

to extend Martinez to allow a federal court to hear a substantial, but procedurally

defaulted, claim of ineffective assistance of appellate counsel when a prisoner’s state

postconviction counsel provides ineffective assistance by failing to raise that claim.

We decline to do so.”). Even if Martinez applies, Hearns’s application fails to

demonstrate that he meets his burden under Section 2254(e)(2) (Doc. 1 at 16–19),

and the post-conviction record fails to demonstrate that trial counsel represented

Hearns with a conflict of interest on direct appeal. (Doc. 5-2 at 1019–1582)

Because Hearns fails to demonstrate prejudice under Martinez, sub-claim A

and sub-claim B are procedurally barred from federal review.

Ground Two:

Hearns asserts that trial counsel deficiently performed by failing to advise

Hearns that the prosecutor’s plea offer of fifteen years in prison was not a mandatory

minimum sentence (“sub-claim A”) and by failing to explain the strengths and

weaknesses of the prosecutor’s case (“sub-claim B”). (Doc. 1 at 19)

Hearns failed to raise the sub-claims in his motion for post-conviction relief

(Doc. 5-2 at 1020–68) and in his brief on appeal. (Doc. 5-2 at 1598–1642) If Hearns

returned to state court to raise the sub-claims, the post-conviction court would deny

both sub-claims as procedurally defaulted. Fla. R. Crim. P. 3.850(b), (h).

Consequently, the sub-claims are procedurally defaulted in federal court. Snowden,

135 F.3d at 736. Because the application fails to demonstrate that Hearns meets his

burden under Section 2254(e)(2) (Doc. 1 at 19–20), and the post-conviction court

record does not contain statements between Hearns and trial counsel that

demonstrate that trial counsel deficiently advised Hearns (Doc. 5-2 at 1019–1582),

Hearns fails to demonstrate prejudice under Martinez. Consequently, sub-claim A

and sub-claim B are procedurally barred from federal review.

Ground Three:

Hearns asserts that trial counsel deficiently performed by not presenting at trial

testimony by a handwriting expert (“sub-claim A”) and testimony by a nurse

(“sub-claim B”), by not deposing the prosecutor’s witnesses to prepare for

cross-examination (“sub-claim C”), and by not reviewing with Hearns the discovery

and the terms of the plea offer, by not preparing Hearns to testify at trial, and by not

preparing a defense (“sub-claim D”). (Doc. 1 at 20–21)

Hearns failed to raise sub-claim C and sub-claim D in his motion for

post-conviction relief (Doc. 5-2 at 1020–68) and in his brief on appeal. (Doc. 5-2

at 1598–1642) If Hearns returned to state court to raise the sub-claims, the

post-conviction court would deny both sub-claims as procedurally defaulted.

Fla. R. Crim. P. 3.850(b), (h). Consequently, the sub-claims are procedurally

defaulted in federal court. Snowden, 135 F.3d at 736. Because the application fails to

demonstrate that Hearns meets his burden under Section 2254(e)(2) (Doc. 1

at 20–21), and the post-conviction court record fails to demonstrate that trial counsel

deficiently performed in the manner that Hearns contends (Doc. 5-2 at 1019–1582),

Hearns fails to demonstrate prejudice under Martinez. Consequently, sub-claim C

and sub-claim D are procedurally barred from federal review.

III. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 governs this

proceeding. Wilcox v. Fla. Dep’t Corrs., 158 F.3d 1209, 1210 (11th Cir. 1998). Section

2254(d), which creates a highly deferential standard for federal court review of a state

court adjudication, states:

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

in custody pursuant to the judgment of a State court shall not

be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim —

resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

resulted in a decision that was based on an

unreasonable determination of the facts in light

of the evidence presented in the State court

proceeding.

Williams v. Taylor, 529 U.S. 362, 412–13 (2000), explains this deferential

standard:

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

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

a writ of habeas corpus with respect to claims adjudicated on

the merits in state court. . . . Under the “contrary to” clause,

a federal habeas court may grant the writ if the state court

arrives at a conclusion opposite to that reached by this Court on

a question of law or if the state court decides a case differently

than this Court has on a set of materially indistinguishable

facts. Under the “unreasonable application” clause, a federal

habeas court may grant the writ if the state court identifies the

correct governing legal principle from this Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s

case.

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

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

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “As a condition for

obtaining habeas corpus from a federal court, a state prisoner must show that the

state court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Harrington v. Richter,

562 U.S. 86, 103 (2011). The phrase “clearly established Federal law” encompasses

only the holdings of the United States Supreme Court “as of the time of the relevant

state-court decision.” Williams, 529 U.S. at 412.

“[AEDPA] modified a federal habeas court’s role in reviewing state prisoner

applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court

convictions are given effect to the extent possible under law.” Cone, 535 U.S. at 694.

“AEDPA prevents defendants — and federal courts — from using federal habeas

corpus review as a vehicle to second-guess the reasonable decisions of state courts.”

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

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

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

the doubt’ . . . .”) (citations omitted).

When the last state court to decide a federal claim issues an explanatory and

reasoned opinion, a federal habeas court reviews the specific reasons in the opinion

and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct. 1188,

1192 (2018). When the relevant state-court decision is not accompanied with

reasons for the decision, the federal court “should ‘look through’ the unexplained

decision to the last related state-court decision that does provide a relevant rationale

[and] presume that the unexplained decision adopted the same reasoning.” Wilson,

138 S. Ct. at 1192. A respondent may contest “the presumption by showing that the

unexplained affirmance relied or most likely did rely on different grounds than the

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

In a per curiam decision without a written opinion the state appellate court

affirmed the denial of Hearns’s Rule 3.850 motion for post-conviction relief. Hearns

v. State, 297 So. 3d 538 (Fla. 2d DCA 2020). A state appellate court’s per curiam

decision without a written opinion warrants deference under Section 2254(d)(1).

Wright v. Sec’y, Dep’t Corrs., 278 F.3d 1245, 1254 (11th Cir. 2002). Richter, 562 U.S. at

100 (“When a federal claim has been presented to a state court and the state court

has denied relief, it may be presumed that the state court adjudicated the claim on

the merits in the absence of any indication or state-law procedural principles to the

contrary.”).

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

limited to the state court record:

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

record that was before the state court that adjudicated the claim

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

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

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

established law. This backward-looking language requires an

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

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

court.

“[A] determination of a factual issue made by a State court shall be presumed to be

correct.” 28 U.S.C. § 2254(e)(1). Hearns bears the burden of rebutting that

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The

presumption applies to a finding of fact but not to a mixed determination of law and

fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir. 2001). The state court’s rejection of

Hearns’s claims warrants deference in this federal action. (Doc. 5-2 at 1199–1221,

1458–64)

IV. ISSUES ON POST-CONVICTION

Ground Four:

Hearns asserts that the prosecutor violated Brady v. Maryland, 373 U.S. 83

(1963), by failing to disclose to the defense exculpatory evidence that proved that

Hearns did not write the prescriptions for oxycodone (“sub-claim A”) and violated

Giglio v. United States, 405 U.S. 150 (1972), by presenting false testimony by John

Weiss (“sub-claim B”) and Detective Speth (“sub-claim C”). (Doc. 1 at 21)

Sub-claim A

Hearns asserts that the prosecutor violated Brady by failing to disclose to the

defense exculpatory evidence that proved that Hearns did not write the prescriptions

for oxycodone. (Doc. 1 at 21) The post-conviction court denied the claim as follows

(Doc. 5-2 at 1200–01) (state court record citations and bolding omitted):

Defendant alleges that the judgment against him violated his

due process rights, specifically in violation of Brady v. Maryland,

373 U.S. 83 (1962), which held that “the suppression by the

violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution.” Id. [at] 1196–97. Defendant asserts

that all of the State co-conspirator witnesses who testified that

Defendant had written the prescriptions that were the subject of

this case

had a probable cause affidavit written in

reference to their original arrest. These

documents which are sworn to by [a] law

enforcement officer contain a paragraph

which states:

‘In March 2012 Sarasota County Sheriff’s Office

Pharmaceutical Diversion Unit received

information indicating that multiple individuals

from south Sarasota County area were passing

fraudulent prescriptions from Luxor Industries

Physicians Group of North Fort Myers [1890

N. Tamiami Trail, Unit F, North Fort Myers at

Apple Pharmacy located at North Indiana

Avenue in Englewood] between June and

August, 2011. The fraudulent prescriptions were

written for thirty milligram (240 count) and

fifteen milligram (90 count). The prescriptions

were allegedly handwritten and signed by

Dr. Lawrence Rothenberg. Information from

multiple sources corroborated these facts.’

Defendant asserts that the “multiple sources” referenced in the

probable cause affidavits in question

‘[who] had given favorable information to law

enforcement officers would have negated

defendant’s guilt to the crime,’ and that ‘the

information received from these sources was

ironically consistent with the State’s witness

Pharmacy Tech Ms. Malazio’s testimony that the

prescriptions were verified by the doctor office

and consistent with the defendant’s trial

testimony that he never wrote any prescriptions.

This information furthermore contradicted the

State’s six co-conspirator witnesses’ trial

testimony that the defendant had written the

prescriptions.’

prosecutor “withholds evidence on demand of an accused

which, if made available, would tend to exculpate him or

reduce the penalty . . . .” Id. In the instant case, Defendant

alleges that the information he seeks would have been

exculpatory; this claim is inherently incredible. If Defendant

had demanded the identities of the unnamed “multiple

sources,” such identities would not have been exculpatory.

Defendant ignores the fact that in the probable cause affidavits,

the statement written is that the prescriptions were allegedly

handwritten and signed by Dr. Lawrence Rothenberg — that is

what the “multiple sources” corroborated, not that

Dr. Rothenberg actually did handwrite and sign the

prescriptions. More importantly, however, is another paragraph

present in each probable cause affidavit, in which the officer

noted that the very same Dr. Rothenberg “reviewed the

prescriptions collected” and “signed an affidavit which stated

that he did not authorize the prescription issued . . . .”

Defendant cannot demonstrate, therefore, that having the

identities of the “multiple sources” would have been

exculpatory, and therefore cannot demonstrate a Brady

violation.

“To establish a Brady violation, a defendant must prove three essential

elements: (1) that the evidence was favorable to the defendant, either because it is

exculpatory or impeaching; (2) that the prosecution suppressed the evidence, either

willfully or inadvertently; and (3) that the suppression of the evidence resulted in

prejudice to the defendant.” Rimmer v. Sec’y, Fla. Dep’t Corrs., 876 F.3d 1039, 1054

(11th Cir. 2017). “To establish prejudice, the defendant must show that the

suppressed evidence was material, [or] a reasonable probability that, had the

suppressed evidence been disclosed, the result of the proceeding would have been

different.” Rimmer, 876 F.3d at 1054.

The probable cause affidavit supporting Moser’s arrest states that “[t]he

prescriptions were allegedly handwritten and signed by Dr. Lawrence Rothenberg,”

and “[i]nfomation from multiple sources corroborated these facts.” (Doc. 5-2 at

1148) The affidavits supporting the arrest of the other cooperating witnesses contain

identical language. (Doc. 5-2 at 1153, 1159, 1168, 1174) Because the affidavits

demonstrate that “multiple sources” reported that Dr. Rothenberg “allegedly”

handwrote and signed the prescriptions, and Hearns fails to submit evidence that

demonstrates that the “multiple sources” would state that Dr. Rothenberg actually

handwrote and signed the prescriptions, the claim fails. Wright v. Sec’y, Fla. Dep’t

Corrs., 761 F.3d 1256, 1281 (11th Cir. 2014) (“[A] Brady claim fails when it is only

speculative that the materials at issue would have led to exculpatory information.”).

Also, the affidavit supporting Moser’s arrest states (Doc. 5-2 at 1148):

On July 12, 2012, Dr. Rothenberg reviewed the prescriptions

collected from Apple Pharmacy. Dr. Rothenberg signed an

affidavit which stated that he did not authorize the prescription

issued in [Lori Moser’s] name. . . .

The affidavits supporting the arrest of the other cooperating witnesses contain

identical language. (Doc. 5-2 at 1153, 1159, 1168, 1174) Even if “multiple sources”

reported that Dr. Rothenberg actually handwrote and signed the prescriptions,

Dr. Rothenberg’s testimony would rebut the allegations, and Hearns cannot

demonstrate “a reasonable probability that, had the suppressed evidence been

disclosed, the result of the proceeding would have been different.” Rimmer, 876 F.3d

at 1054. Consequently, the post-conviction court did not unreasonably deny the

claim. Sub-claim A is denied.

Sub-claim B

Hearns asserts that the prosecutor violated Giglio by presenting testimony by

John Weiss. (Doc. 1 at 21) Hearns contends that John Weiss falsely testified that

“[John Weiss] did not receive a benefit for his testimony” and about “the

circumstances of his probation.” (Doc. 1 at 21) The post-conviction court denied the

claim as follows (Doc. 5-2 at 1201–03) (state court record citations omitted):

Defendant asserts that during his trial, the “co-conspirator John

Weiss testified falsely” that he was not compelled to testify at

the trial. Defendant specifically claims that because Mr. Weiss

had been “granted immunity to give a proffer at which time he

[implicated] the defendant,” and as a result “was given a

favorable treatment in exchange for his testimony,” then

Mr. Weiss’s testimony that he was testifying of his own free

will was false. Defendant’s claim, therefore, is that the State

knew that Mr. Weiss was not there of his own free will,

rendering this testimony false, and because that “false

testimony allowed the jury to believe that he had not received

any benefit or proffered treatment in exchange for [his]

testimony,” this is a Giglio violation and therefore Defendant

should be granted a new trial.

Because Mr. Weiss’s purportedly false testimony was known to

Defendant at the time of trial, this issue could have been raised

on direct appeal. Such procedurally defaulted claims have been

treated as barred on post-conviction review. See Moore v. State,

132 So. 3d 718, 724 (Fla. 2013); Owen v. State, 986 So. 2d 534,

549 (Fla. 2008); Jimenez v. State, 997 So. 2d 1056, 1070

(Fla. 2008); Fla. R. Crim. P. 3.850(c). Some courts, however,

have cautioned against summarily precluding a Giglio claim,

even though it could have been raised at an earlier time.

See, e.g., Johnson v. State, 128 So. 3d 155, 156–57 (Fla. 2d DCA

2013); Robinson v. State, 65 So. 3d 75, 76 (Fla. 2d DCA 2011).

Therefore, the Court will examine Defendant’s claim.

Giglio stands for the proposition that a prosecutor “has a duty to

correct testimony he or she knows is false when a witness

conceals bias against the defendant through that false

testimony.” Ventura v. State, 794 So. 2d 553, 562 (Fla. 2001)

(quoting Routly v. State, 590 So. 2d 397, 400 (Fla. 1991))

(internal quotations omitted). “The thrust of Giglio and its

might motivate a witness in giving testimony, and the

prosecutor not fraudulently conceal such facts from the jury.”

Robinson v. State, 707 So. 2d 688, 693 (Fla. 1998) (quoting

Routly, 590 So. 2d at 400). In order to establish a Giglio

violation, a defendant must show that (1) a witness presented

false testimony; (2) the prosecutor knew the testimony was

false; and (3) the statement was material. Guzman v. State,

868 So. 2d 498, 505 (Fla. 2003); Robinson v. State, 65 So. 3d 75,

76 (Fla. 2d DCA 2011). A statement is “material” if “there is

a reasonable probability that the false testimony could have

affected the judgment of the jury.” Guzman, 868 So. 2d at 506

(quoting United States v. Agurs, 427 U.S. 97, 103 (1976)).

Defendant’s claim fails because it does not demonstrate that

Mr. Weiss gave false testimony. While it may be true that

Mr. Weiss made his original proffer in exchange for a

negotiated plea, it is also true that by the time Mr. Weiss

testified at trial, he had already served his entire sentence of

county jail time and probation. Thus, even though Mr. Weiss’s

sentence contained the Court’s directive to testify truthfully,

double jeopardy had already attached — if Mr. Weiss did not

testify consistently with his proffer, the State did not have the

option of prosecuting him for the original crime charged.

Therefore, the Court cannot find that Mr. Weiss was not

testifying of his own free will, and as such, the State could not

have committed a Giglio violation in this regard. Furthermore,

Defendant appears to be attacking the credibility of this witness,

and “matters which go only to the credibility of a particular

witness will not suffice” for post-conviction relief. DeHaven v.

State, 618 So. 2d 337, 339 (Fla. 2d DCA 1993). Finally, “the

fact the testimony was perjured must have been unknown to the

defendant at the time of the trial and not ascertainable through

diligent investigation and preparation.” Id. Clearly, Defendant

was well aware of the negotiated plea at the time of trial.

Indeed, at trial, Mr. Weiss was asked by the State how many

felony convictions he had and whether those convictions were

related to the testimony he was to give at trial, giving the jury

the opportunity to judge for itself Mr. Weiss’s credibility in this

regard.

“‘[I]n order to prevail on a Giglio claim, a petitioner must establish [1] that the

prosecutor knowingly used perjured testimony, or failed to correct what he

subsequently learned was false testimony, and [2] that the falsehood was material.’”

Raleigh v. Sec’y, Fla. Dep’t Corrs., 827 F.3d 938, 949 (11th Cir. 2016) (quoting Ventura

v. Att’y Gen., Fla., 419 F.3d 1269, 1277 (11th Cir. 2005)). “A falsehood is material if

there is ‘any reasonable likelihood’ that it could have affected the result.” Raleigh,

827 F.3d at 949 (quoting Ventura, 419 F.3d at 1278).

At trial John Weiss testified that neither the prosecutor nor a condition of his

probationary sentence compelled his testimony (Doc. 5-2 at 222):

[Prosecutor:] Mr. Weiss, do you know why you are

here today?

[Weiss:] I do.

[Prosecutor:] Okay. Are you a convicted felon?

[Weiss:] I am.

[Prosecutor:] Okay. How many felony convictions do

you have?

[Weiss:] Two.

[Prosecutor:] Are those felony convictions related to

your testimony here today?

[Weiss:] They are.

[Prosecutor:] Are you on probation?

[Weiss:] No.

[Prosecutor:] Are you being forced to testify here today?

[Weiss:] I was subpoenaed, but no, I’m not being

forced.

[Prosecutor:] If you did not testify or did not testify to

the prosecutor’s liking, would that impact

you in any way?

[Weiss:] No, not that I know of.

other than that subpoena that you spoke

about?

[Weiss:] Yeah, other than the subpoena.

During closing trial counsel objected to the prosecutor’s argument that neither

the prosecutor nor a condition of John Weiss’s probationary sentence compelled him

to truthfully testify (Doc. 5-2 at 603–08):

[Prosecutor #1:] Let’s talk about pressure or threats being

used against the witnesses. And these are

all the items that you’re going to look at

when you’re evaluating what you

remember about their testimony. Jason

Mathis did not want to be here. He made

that very clear. He would not have been

here had it not been for his probation

agreement, but he was here.

John. Let’s talk about John. John is the

only one of this bunch that’s not on

probation. His testimony was not

required, not a condition of his release,

nothing was promised to him. He showed

up of his own will.

[Trial counsel:] Objection, Your Honor, may we

approach?

[Court:] You may.

(The following proceedings ensued at the bench.)

[Trial counsel:] Judge, I believe that’s a misstatement of

fact, because John is not on probation.

It was an understanding that as part of his

plea that he would testify. So, the State

could always revoke his plea. So, to say

that he received nothing, he’s here on his

own free will is a misstatement.

[Court:] Okay. I don’t know if it was part of the

plea. Is that accurate?

being a part of this plea, he’s off

probation. He’s completed his probation.

They can’t revoke a plea at that point. He

said that he was here because of the

subpoena, but he’s not here because he

was required to testify and that was the

testimon[ial] evidence.

[Prosecutor #2:] It was part of his plea he should have had

to, but his probation ended.

[Prosecutor #1:] Your Honor, as co-counsel has stated, it

was part of his plea to testify during

probation, but his probation has ended. If

he chose not to testify, he may have had

an issue with the subpoena, but he would

not have had an issue with probation nor

could the State have revoked his plea after

his sentence had been completed.

[Court:] So, he had already completed his sentence

at the time this case came to trial?

[Prosecutor #1:] Yes, Your Honor.

[Trial counsel:] Judge, I specifically remember the plea

offers that were offered in this case and

part of their plea offer — as a matter of

fact, I gave the State a copy of the plea

form and I’m pretty sure the plea form

says that they are required to testify and

they are specifically agreeing that if they

do not testify, as a condition of their plea,

their plea agreement can be withdrawn.

[Court:] I’m at a disadvantage because that didn’t

come out in evidence and I don’t have

that in front of me.

[Prosecutor #1:] Your Honor, I’m arguing what was stated

in evidence and the testimony provided by

the witnesses. Mr. Weiss testified that he

did not have to be here.

[Court:] Okay. I think that’s really all you can do.

That was actually stated in the trial and if

incorrect in the testimony, then I think it

is appropriate argument to be made. So

I’m going to overrule the objection.

[Trial counsel:] Judge, the State can’t make an argument

they know is legally and factually

inaccurate. Whether it came out in

testimony or not, they are the ones that

forbade —

[Court:] But I would think they wouldn’t make an

argument that is contrary to what was

a factual agreement. They’re saying it

isn’t. They’re saying that he only had to

testify during the time he was on

probation. I don’t know. I wasn’t —

[Trial counsel:] Judge, I would certainly [point] out —

[Prosecutor #1:] If I may?

[Trial counsel:] — if he specifically agrees, you absolutely

cannot have it done before.

[Court:] Yes, I would agree that a lot of deals are

made that you go back to square one and

you could even face the original charges

that you were facing.

[Prosecutor #2:] While they’re on probation, Your Honor.

[Prosecutor #1:] I will stick with what was said in

evidence. That’s what my statement will

be.

[Court:] Okay. I think that if there is any issue at

all [whether] it is accurate, you should

simply stay away from it, but I will agree

that you are entitled to argue what was

stated in the courtroom.

[Prosecutor #1:] Thank you.

[Trial counsel:] Judge, before we leave this, it is my full

intention to get a copy of the plea

agreement. If the plea agreement says

then she is knowingly misrepresenting —

her co-counsel is knowingly allowing her

to misrepresent the factual truthfulness of

his plea offer. And I think Mr. Pica knows

exactly what the conditions of that plea

agreement were because I looked at

another plea agreement from another

defendant and that was a condition.

[Prosecutor #2:] It’s in discovery. I can probably hand it to

you right now. Would you like to see it?

[Court:] I would prefer that you simply stay away

from the area if it’s at issue. I’ll leave it up

to you.

[Prosecutor #2:] It’s only his issue.

[Prosecutor #1:] I’ll move on.

[Court:] It could be yours if he is accurate that you

are intentionally misrepresenting what

actually happened. I don’t know. I don’t

have it in front of me.

[Prosecutor #2:] Would you like me to grab the plea?

[Court:] If you’d like.

[Prosecutor #2:] This is it.

[Trial counsel:] It doesn’t say anything about probation. It

says “testify truthfully.”

[Prosecutor #2:] That’s the entire language.

[Court:] Well, it doesn’t say while on probation.

I understand what you’re saying. I would

have to read the colloquy. It really

depends on the colloquy and what was

said with regard to his failure to testify

truthfully and what the ramifications

would be. That’s generally handled in the

colloquy. I don’t know the answer to that.

[Prosecutor #1:] Your Honor, if I may?

[Court:] Okay.

[Prosecutor #1:] There’s nothing in that statement that

indicates that the State has the ability to

revoke his plea agreement had he not

shown up to testify. The State does not

possess the ability to vacate a plea

agreement for any such reason. Reasons

are specifically set out by statute and by

rule. This plea agreement does not

provide a provision to do that. It is totally

proper for the State to argue the evidence

that was introduced in this court. If

defense counsel believed something else

was different, he had an opportunity to

impeach the witness at that time and

could have done so.

[Court:] Okay. Well, as I say, I can only go by

what did happen here in the trial and

I don’t have the colloquy in front of me,

so I will overrule the objection.

Rule 3.170(g), Florida Rules of Criminal Procedure, authorizes a prosecutor to

move to vacate a plea if a defendant fails to substantially comply with a term of the

agreement. John Weiss’s plea agreement required that he “testify truthfully [in

accordance with] his previous proffer.” (Doc. 5-2 at 1193) However, John Weiss

testified that he completed his probationary sentence (Doc. 5-2 at 222), and if

a defendant completes his sentence, the trial court lacks subject matter jurisdiction to

grant a Rule 3.190(g) motion and vacate an expired sentence. McClintock v. State,

995 So. 2d 1147, 1148 (Fla. 5th DCA 2008) (“[O]nce an individual has served his or

her complete sentence, the trial court loses jurisdiction to enter any further orders in

the matter.”); Maybin v. State, 884 So. 2d 1174, 1175 (Fla. 2d DCA 2004) (“Once

a sentence has already been served, even if it is an illegal sentence or an invalid

sentence, the trial court loses jurisdiction and violates the Double Jeopardy Clause

by reasserting jurisdiction and resentencing the defendant to an increased

sentence.”). Consequently, John Weiss did not falsely testify that he did not face any

consequence if the prosecutor determined that his testimony was unsatisfactory.

Maharaj v. Sec’y, Dep’t Corrs., 432 F.3d 1292, 1313 (11th Cir. 2005) (“In the Giglio

context, the suggestion that a statement may have been false is simply insufficient;

the defendant must conclusively show that the statement was actually false.”).

Also, “Giglio error is a species of Brady error that occurs when ‘the undisclosed

evidence demonstrates that the prosecution’s case included perjured testimony and

that the prosecution knew, or should have known, of the perjury.’” Ventura,

419 F.3d at 1276–77 (quoting United States v. Agurs, 427 U.S. 97, 103 (1976)).

Because the record demonstrates the prosecutor disclosed John Weiss’s plea

agreement before trial (Doc. 5-2 at 606), and John Weiss testified at trial that he

completed his probationary sentence (Doc. 5-2 at 222), the post-conviction court did

not unreasonably deny the Giglio claim. Sub-claim B is denied. See Grayson v. King,

460 F.3d 1328, 1337 (11th Cir. 2006) (“Brady concerned the suppression of

evidence prior to and during trial that was material to the proceedings and denied

the defendant a fair trial. Here, Grayson makes no argument that the biological

evidence was suppressed at trial, denying him a fair trial; rather, it was presented at

trial, and it is beyond peradventure that Grayson received a fair trial.”).

Sub-claim C

Hearns asserts that the prosecutor violated Giglio by presenting false testimony

by Detective Speth. (Doc. 1 at 21) He contends that Detective Speth falsely testified

that the lineup presented to Brenda Weiss contained six photographs and that he

presented a lineup to Jason Mathis. (Doc. 1 at 21)

Brenda Weiss

Hearns asserts that the prosecutor violated Giglio by presenting false testimony

by Detective Speth. (Doc. 1 at 21) He contends that the lineup presented to Brenda

Weiss contained only two photographs and that Detective Speth falsely testified that

the lineup contained six photographs. (Doc. 1 at 21) The post-conviction court

denied the claim as follows (Doc. 5-2 at 1204–05) (state court record citations

omitted):

Defendant asserts that a detective who testified gave

“false testimony as to his issuance of a six-picture photo pack to

co-conspirator Brenda Weiss and the facts surround[ing] the

identification of Defendant.” Defendant specifically claims that

Detective Speth basically testified that State’s

Exhibit 8 was the photo array he issued to

Brenda Weiss. This photo array contained a

six-picture photo pack. This photo array is the

same photo array located in the discovery. This

photo array has a cover page. Although this

cover [and] instruction page does have Detective

Speth as the administ[rator] of the photo array,

this instruction page purports Ms. Weiss’s photo

array that Detective Speth administered on June

5, 2013, only contained a two-picture photo pack.

Therefore, State’s Exhibit 8, the six-picture photo

pack, was not the photo pack that Detective

Speth administered to Brenda Weiss on June 5,

2013. Furthermore, the origins of State’s

Exhibit 8 were unknown as it is clearly not the

[were] referring to. Based on these facts stipulated

above Detective Speth’s trial testimony regarding

Ms. Weiss’s pre-trial out-of-court photo array

was false for the following reason. Detective

Speth administered a two-picture photo array

instead of a six-picture photo array.

It appears that Defendant is claiming that because the cover

sheet that accompanies the “six-pack” of photos to which

Detective Speth testified shows “two” in the blank space on the

cover sheet, Detective Speth necessarily testified falsely about

the photo pack that was presented to Brenda Weiss. Defendant

asserts that such testimony “affected jury judgment” because

“the case might have been decided on false testimony and

misleading evidence presented. This photo array was critical as

co-defendant [and] co-conspirator James Kipp stated he did not

accompany co-conspirator Brenda Weiss, therefore she was the

only individual who could identify the defendant as the supplier

and writer of the fraudulent prescription on that day.”

Defendant claims that Detective Speth’s purported false

testimony “prevented the jury from knowing that

co-conspirator Brenda Weiss was shown a two-picture photo

pack which amounted to a suggestive lineup,” and that this

“false testimony prevented the jury from knowing the

circumstances that the defendant was identified in a two-picture

photo pack with a fifty-percent chance of error [. . .] and

allowed the jury to believe she was shown a six-picture photo

pack.”

First, Defendant’s assertion that a “two-pack” with a “fifty

percent chance of error” was somehow more damaging than

a “six-pack,” which would have come with an even greater

chance of error, defies logic. More importantly, Defendant[ ]

claim[s] that because the cover sheet appears to show that it

was a “two-pack” rather than a “six-pack,” Detective Speth’s

testimony is necessarily false. This assertion is completely

speculative. There could be any number of reasons why the

number “two” is written in the cover sheet, not the least of

which is that Ms. Weiss selected photo number two as “Big

Mike.” Finally, Defendant fails to mention in this [claim] that

four other witnesses were presented with photo arrays, and all

[four] of these witnesses identified Defendant from their

respective photo arrays. In light of all of the above, Defendant

does not demonstrate that Detective Speth’s testimony is false

and cannot, therefore, demonstrate a Giglio violation by the

State. [The claim], therefore, is denied.

At trial Detective Speth testified that he presented a photographic lineup to

Brenda Weiss, and the trial court admitted into evidence as State’s Exhibit 8 the

photographic lineup that the detective showed Brenda Weiss (Doc. 5-2 at 403–04):

[Prosecutor:] We talked about Mrs. Brenda Weiss.

[Detective:] Yes.

[Prosecutor:] We did not talk about her photo lineup

identification.

[Detective:] Correct.

[Prosecutor:] Did you administer a photo lineup to her?

[Detective:] Yes.

[Prosecutor:] Where did this occur?

[Detective:] During the proffer.

[Prosecutor:] During the proffer. So, the circumstances

surrounding her photo lineup were

different than the others?

[Detective:] Yes.

[Prosecutor:] Were there any promises that were made

to her?

[Detective:] No.

[Prosecutor:] Did she receive prosecutorial immunity

for her statement that day?

[Detective:] Yes.

[Prosecutor:] Your Honor, permission to approach.

[Court:] You may.

[Prosecutor:] I’m showing you State’s 8 in evidence. If

you will take a look at that. Is that the

Ms. Weiss?

[Detective:] It is.

[Prosecutor:] Did you threaten her, tell her she had to

pick somebody, coerce her?

[Detective:] No.

[Prosecutor:] Did she pick somebody?

[Detective:] She did.

[Prosecutor:] Permission to publish.

[Court:] You may.

A form that Brenda Weiss signed after the detective showed her the

photographic lineup states (Doc. 5-2 at 1163):

Complete AFTER the photo array: The photo array I was

shown consisted of 2 photos.

Choose:

( ) I am unable to select any photo as being the person who

__________________________________________________.

(X) I have selected # 2 as the person who “Big Mike”

.

Brenda Weiss handwrote the number “2” and “Big Mike” on the form. (Doc. 5-2 at

1163) Attached to the form are six photographs on a single page, and Brenda Weiss

circled and initialed the second photograph and wrote the date. (Doc. 5-2 at 1163)

Also, at trial, Brenda Weiss identified State’s Exhibit 8 as the lineup that the

detective showed her and confirmed that she identified Hearns in the lineup.

(Doc. 5-2 at 257–58) Consequently, the post-conviction court did not unreasonably

determine that Brenda Weiss mistakenly wrote on the form that the detective showed

her two photographs. Because the detective did not falsely testify, the Giglio claim

fails. Maharaj, 432 F.3d at 1313.

Also, John Weiss, Lori Moser, Jeffrey Gradert, and Jason Mathis, the other

cooperating witnesses, identified Hearns in a photographic lineup. (Doc. 5-2 at

232–33, 286–87, 310–11, 336–37) Detective Speth confirmed that he showed the

lineup to each witness. (Doc. 5-2 at 397–403) Even if Detective Speth falsely

testified about the lineup that he presented to Brenda Weiss, four additional

cooperating witnesses identified Hearns, and Hearns cannot demonstrate “‘any

reasonable likelihood’ that [the false testimony] could have affected the result.”

Raleigh, 827 F.3d at 949. Consequently, the post-conviction court did not

unreasonably deny the claim.

Jason Mathis

Hearns asserts that the prosecutor violated Giglio by presenting false testimony

by Detective Speth who testified that he presented to Mathis a photographic lineup.

(Doc. 1 at 21) He contends that a different detective presented the lineup. (Doc. 1

at 21) The post-conviction court denied the claim as follows (Doc. 5-2 at 1205–06)

(state court record citations omitted):

Defendant once again asserts that Detective Speth gave false

testimony, and that the State was aware of it. In this ground,

Defendant asserts that the following testimony was false:

[Prosecutor:] Did you administer Mr. Mathis a photo

lineup?

[Detective:] I did. Again, that’s at the initial interview

which was done in his house.

Exhibit 20 in evidence. The same question for

Mr. Mathis’s lineup. Did you suggest to him

a picture on that page?

[Detective:] No.

[Prosecutor:] Did you tell him he had to circle somebody?

[Detective:] No.

[Prosecutor:] Thank you. And is this [the] line up that you

administered to Mr. Mathis[?]

[Detective:] It is.

Defendant asserts that State’s Exhibit 20, which was shown to

Detective Speth during his above testimony, was “not the

eyewitness out-of-court photo array Detective Speth

administered to Mr. Mathis.” Defendant’s specific claim is that

Exhibit 20 is a photo array with an instruction sheet, and that

instruction sheet appears to indicate that the photo array was

administered by Detective Miguel Torres on June 24, 2014, and

not by Detective Speth in his October 23, 2012, interview with

Mr. Mathis. Thus, claims Defendant, the testimony of

Detective Speth — that Exhibit 20 was the photo array he

presented to Mr. Mathis — is false testimony, the State knew it

was false because Exhibit 20 was part of the State’s discovery

provided to Defendant, and therefore the State committed a

Giglio violation. However, Mr. Mathis himself testified at trial

that he identified Defendant in the photo lineup introduced as

State’s Exhibit 20. Furthermore, Detective Speth testified that

he spoke with Mr. Mathis twice, first in Mr. Mathis’s home and

again while Mr. Mathis was in custody. As a result, Defendant

cannot demonstrate prejudice, and therefore, [the claim] is

denied.

Attached to Hearns’s motion for post-conviction relief are a photographic

lineup and a form both signed by Mathis and Detective Miguel Torres and dated

June 24, 2014. (Doc. 5-2 at 1155) The prosecutor introduced into evidence, as

State’s Exhibit 20, a second lineup and a second form both signed by Mathis and

Detective Speth and dated September 6, 2012. (Doc. 5-2 at 536–37) At trial Mathis

testified that, on September 6, 2012, he identified Hearns in the photographic lineup

admitted into evidence as State’s Exhibit 20 (Doc. 5-2 at 336–37, 350), and Detective

Speth testified that he showed to Mathis that lineup. (Doc. 5-2 at 399–400) Because

Detective Speth did not falsely testify, the post-conviction court did not unreasonably

deny the claim. Maharaj, 432 F.3d at 1313. Sub-claim C and ground four are

denied.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

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

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

ineffective assistance of counsel are few and far between.” Waters v. Thomas,

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

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

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

counsel claim:

The law regarding ineffective assistance of counsel claims is

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

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

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

assistance of counsel claims. According to Strickland,

First, the defendant must show that counsel’s

performance was deficient. This requires showing

that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient

performance prejudiced the defense. This

requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

“There is no reason for a court deciding an ineffective assistance claim . . .

to address both components of the inquiry if the defendant makes an insufficient

showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly presumed to

have rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment.” 466 U.S. at 690. “[A] court deciding an

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

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

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

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

competent assistance.” 466 U.S. at 690.

Hearns must demonstrate that counsel’s alleged error prejudiced the defense

because “[a]n error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” Strickland, 466 U.S. at 691. To meet this burden, Hearns must show

“a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” 466 U.S. at 694.

Hearns cannot meet his burden by showing that the avenue chosen by counsel

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

Strickland cautions that “strategic choices made after thorough investigation of law

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

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

extent that reasonable professional judgments support the limitations on

investigation.” Strickland, 466 U.S. at 690–91. Sustaining a claim of ineffective

assistance of counsel under Section 2254(d) is very difficult because “[t]he standards

created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two

apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105.

In denying Hearns’s Rule 3.850 motion for post-conviction relief, the state

court recognized that Strickland governs a claim of ineffective assistance of counsel.

(Doc. 5-2 at 1207–08, 1459) Because the state court rejected the grounds based on

Strickland, Hearns cannot meet the “contrary to” test in Section 2254(d)(1). Hearns

instead must show that the state court either unreasonably applied Strickland or

unreasonably determined a fact. In determining “reasonableness,” Section 2254(d)

authorizes determining only “whether the state habeas court was objectively

reasonable in its Strickland inquiry” and not independently assessing whether

counsel’s actions were reasonable. Putman v. Head, 268 F.3d 1223, 1244 n.17

(11th Cir. 2001). The presumption of correctness and the highly deferential standard

of review require that the analysis of each ground begin with the state court’s

analysis.

A. Grounds of IAC Before and During Trial

Ground Three:

Hearns asserts that trial counsel deficiently performed by not presenting

testimony by a handwriting expert (“sub-claim A”) and testimony by a nurse

(“sub-claim B”).

Sub-claim A:

Hearns asserts that trial counsel deficiently performed by not presenting

testimony by a handwriting expert. (Doc. 1 at 20) Hearns contends that an expert

would testify that Hearns did not write the prescriptions for oxycodone. (Doc. 1

at 20) The post-conviction court denied the claim as follows (Doc. 5-2 at 1459–61)

(state court record citations omitted):

Defendant alleges that his counsel was ineffective for failing

“to obtain an expert in handwriting to analyze the handwriting

on the prescriptions prior to trial and testify at trial that the

handwriting was not Defendant’s.” Specifically, Defendant

asserts that he

[A]dvised defense counsel that he had not written

any of the prescriptions he was accused of

writing. He also asked defense counsel to obtain

an expert who could analyze the writing on the

prescriptions. Furthermore, there was

information received from multiple sources that

corroborated that the allegedly fraudulent

prescriptions were handwritten and signed by the

doctor. There was no audio, video, photographs,

or fingerprints available in the instant case.

Therefore, counsel’s failure to obtain

a handwriting expert to analyze the prescriptions

and testify at trial that the handwriting [did] not

belong[ ] to defendant constitutes ineffective

assistance.

Defendant goes on to state that his counsel, during closing

arguments, asked the jury to compare the handwriting on the

prescriptions, that is, to look at the prescriptions and compare

them to each other, and that pursuant to Redmond v. State,

731 So. 2d 77 (Fla. 2d DCA 1999), allowing a jury to “assume

the role of expert” is impermissible.

In its response, the State argues that the discovery in this case

included five prescriptions, which Defendant attached to his

motion. The State asserts that the jury, which was shown all of

the prescriptions, could clearly see that the prescriptions

contained varied styles of handwriting, and did not require an

248, 252 (Fla. 1st DCA 1975). Moreover, the State argues,

Defendant’s claim that a handwriting expert would have

testified that the handwriting did not belong to Defendant is

entirely speculative; such an expert might also have found that

Defendant did write the prescriptions.

Given the great differences between the handwriting styles on

the prescriptions, the assertion that a handwriting expert would

have determined that Defendant did not write those

prescriptions is, indeed, speculative. To the extent that

Defendant is arguing, pursuant to Redmond, that the jury may

have “assumed the role of expert,” this claim is conclusory.

Moreover, an examination of counsel’s closing argument shows

that, even if counsel was attempting to have the jury “assume

the role of expert,” he was doing so in a manner which appears

to have been favorable to Defendant. Defendant’s claim in this

regard does not overcome a presumption that such a closing

argument could be considered sound trial strategy. Simmons,

[105 So. 3d at 487]. Finally, six witnesses testified that

Defendant wrote the prescriptions. In light of that testimony

and the speculative nature of the claim, Defendant cannot

demonstrate with any reasonable certainty that hiring

a handwriting expert would have changed the outcome of the

proceedings. Thus, this ground fails to demonstrate prejudice as

required by Strickland.

Because Hearns did not support his claim with an affidavit or testimony by a

handwriting expert to demonstrate that the expert would testify in the manner that he

contended, the post-conviction court did not unreasonably determine that the claim

was speculative. McKiver v. Sec’y, Fla. Dep’t Corrs., 991 F.3d 1357, 1365 (11th Cir.

2021) (“[T]his [prejudice] burden is particularly ‘heavy where the petitioner alleges

ineffective assistance in failing to call a witness because often allegations of what a

witness would have testified to are largely speculative.’”) (quoting Sullivan v.

DeLoach, 459 F.3d 1097, 1109 (11th Cir. 2006)).

Also, during closing, trial counsel argued that the handwriting of the

cooperating witnesses and the handwriting on the prescriptions contained similarities

(Doc. 5-2 at 646–47):

[Trial counsel:] The other part, which is where I was

going right before break, each one of these

— and you’ll only get the opportunity to

look at them — the prescriptions are

written in medical fashion. Now, there’s

no evidence presented to you whatsoever

that Mr. Hearns has any special training

and would know how to write these types

of prescriptions. Mr. Wilferth testified that

some of them were written PRN, take as

needed. Ask Mr. Hearns, do you know

what PRN is? He has no idea.

Mr. Hearn’s education is — he’s a high

school graduate and went to the Culinary

Arts Academy. Didn’t graduate from that.

No indication that he would know how to

write prescriptions like these. The only

indication is from those individuals that

he did. But take a look at the

prescriptions. Actually, take a look at the

prescriptions and compare the

handwriting.

Here’s John Weiss and here’s Brenda

Weiss. Look at the handwriting and see

for yourself if that looks like the same

handwriting. You’re able to do that. Look

at all these prescriptions. Because under

the State’s theory and the State’s

witnesses, Mr. Hearns filled out all these.

So the writing should be consistent. Look

at the T’s in Mathis and Gradert. Look at

the A’s. Ladies and gentleman, you’re the

trier of fact. Examining the evidence is

what you do. Look at it. The State’s

theory, the State’s evidence, their story, he

wrote all of these. So unless he’s a master

manipulator with handwriting and has

specialized medical knowledge to write

prescriptions that would not only fool a

pharmacist, the State’s expert, but would

office because of how it’s written. That’s

what you have to believe, to believe that

he did it. You have the physical evidence

to look at. Ladies and gentleman, it

doesn’t make sense.

Because Hearns fails to demonstrate that no competent counsel would forgo

presenting testimony by a handwriting expert and instead argue in closing

similarities between the handwriting of the cooperating witnesses and the

handwriting on the prescriptions, his Strickland claim fails. Strickland, 466 U.S.

at 690 (“[C]ounsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional

judgment.”); Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000)

(“[B]ecause counsel’s conduct is presumed reasonable, for a petitioner to show that

the conduct was unreasonable, a petitioner must establish that no competent

counsel would have taken the action that his counsel did take.”).

Lastly, James Kipp, John Weiss, Brenda Weiss, Lori Moser, and Jeffrey

Gradert testified that they observed Hearns write the prescriptions. (Doc. 5-2 at

114, 234, 248–49, 252, 281–82, 307) Even if a handwriting expert opined that

Hearns’s handwriting was inconsistent with the handwriting on the prescriptions,

Hearns cannot demonstrate a reasonable probability that the outcome at trial

would change. Strickland, 466 U.S. at 694; Sullivan, 459 F.3d at 1109–11.

Consequently, the post-conviction court did not unreasonably deny the claim.

Sub-claim A is denied.

Sub-claim B:

Hearns asserts trial counsel deficiently performed by not presenting testimony

by a nurse who would testify that Dr. Rothenberg prescribed oxycodone to Jeffrey

Gradert, one of the cooperating witnesses. (Doc. 1 at 20) The post-conviction court

denied the claim as follows (Doc. 5-2 at 1461–62) (state court record citations

omitted):

Defendant alleges that his counsel was ineffective for failing

“to call Matthew Flores as an impeachment witness who was

an employee at the doctor’s office that was willing, ready, and

available to testify that co-conspirator Jeffrey Gradert’s

prescription[ ] Defendant was accused of writing was a

legitimate prescription that was verified.” Defendant’s specific

claim is that there was

a prescription located in the discovery. This

document has co-conspirator Jeffery Gradert’s

name on it with attention Matt written on the

bottom of it and a purported fax date of January

26, 2012, which was months before the

prescription was discovered to be fraudulent at

Apple Pharmacy on June 8, 2012. This indicated

that the prescription had quite possibly been

verified by some employee at the doctor’s office

months before it was believed to be fraudulent.

The defendant also informed defense counsel that

the reference to Matt on the prescription copy

was an employee by the name Matthew Flores

who was the office manager or nurse at the

doctor’s office. The defendant knew this

information because he was a patient at the

doctor’s office. However, trial counsel did not

attempt to locate or call Matthew Flores as a

witness for Defendant. Furthermore, during trial,

Pharmacy Technician Michelle Malazio testified

that she had faxed the same prescription that

Defendant informed defense counsel of prior to

trial to an employee by the name of Matt and

that the doctor’s office did verify that

co-conspirator Gradert’s prescription was

legit[imate].

According to Defendant,

If Mr. Gradert[’s] prescription was legit[imate]

that means he had indeed traveled to the

doctor[’s] office which was inconsistent with his

trial testimony that he had not. . . . This would

have allowed the jury to infer that Mr.

Gradert[’s] prescription was written by the

doctor, which means the defendant in fact had

not written Jeffrey Gradert[’s] prescription which

was inconsistent with Mr. Gradert[’s] testimony

that the Defendant did and this would have been

inconsistent with Mr. Kipp[’s] testimony that the

Defendant wrote Mr. Gradert[’s] prescription.

Also, John Weiss[’s] testimony that he was with

Mr. Kipp and Jeffery Gradert when this

happened would have been impeached because

according to Mr. Flores[’s] testimony,

Mr. Gradert[’s] prescription was legit[imate] . . . .

Finally, Defendant asserts, he was prejudiced by counsel failing

to call Matthew Flores “who was ready, available, and willing

to testify to the status of Jeffrey Gradert[’s] prescription being

legit[imate;] this testimony would’ve put the State’s entire case

on the ropes.”

The State argues that “Gradert’s trial testimony demonstrates

that [Defendant’s] claim is conclusively refuted by the record,”

because Mr. Gradert testified that he once had a legal

prescription for oxycodone, but that his prescribing physician

was in Tampa, not Fort Myers, that he had never obtained any

pain pills from Fort Myers, had “never heard of Luxor

Industries,” and that Dr. Rothenberg, the physician whose

name was on the prescriptions, was not his prescribing

physician. This argument is not persuasive. Certainly, if

Mr. Flores had been called as a witness, he could have testified

differently than Mr. Gradert, and the jury would have been in

a position to determine the credibility of each witness.

The State is correct, however, that Defendant cannot meet the

prejudice prong of Strickland in this ground. Even if Mr. Flores

had given testimony that successfully contradicted

Mr. Gradert’s testimony, there remained four other “forged

Rothenberg prescriptions” in evidence, as well as the testimony

of the other co-conspirators, all of which overwhelmingly

supported a finding of guilt on the conspiracy charge.

that the outcome of his trial would have been different if

Mr. Flores had testified, as required by Strickland.

Attached to Hearns’s motion for post-conviction relief is a prescription for

oxycodone dated August 13, 2011, for Jeffrey Gradert. (Doc. 5-2 at 1169) At the

bottom of the prescription is a handwritten note that states “1/26/12 — Fax —

239-599-8259,” the fax number for Dr. Rothenberg’s office, and “Att: Matt.”

(Doc. 5-2 at 1169) At trial a pharmacy technician testified that she verified Gradert’s

prescription with a nurse who worked for Dr. Rothenberg (Doc. 5-2 at 177–78):

[Prosecutor:] I’m showing you State’s 13.

[Technician:] Okay.

[Prosecutor:] Could you indicate the name of the

patient on the prescription?

[Technician:] Jeffrey Gradert.

[Prosecutor:] And what was Mr. Gradert trying to

receive?

[Technician:] Oxycodone, thirty milligrams, 180.

[Prosecutor:] Okay. And do you recall Mr. Gradert in

particular?

[Technician:] Yes, I do.

[Prosecutor:] And why is that?

[Technician:] He tried to come back the next day and

said — he came in, dropped the script and

tried to say somebody stole his

[identification], his driver’s license, and

tried to fill a script under his driver’s

license. And it was him, the same person.

Have I checked for you? It’s you. You

know.

you the person that actually took the

prescription from Mr. Gradert?

[Technician:] Yes, I was.

[Prosecutor:] What about this particular driver’s license

with prescription copy would indicate to

you that you were the person that took the

prescription?

[Technician:] Two Ps, and I went and faxed the doctor’s

office and put it to the attention of Matt,

who was the nurse at the doctor’s office.

Wrote to the doctor just to fax over to

make sure it was written and it was

Jeffrey, you know, which I knew it was.

[Prosecutor:] So you attempted to verify the

prescription.

[Technician:] Yes, I did verify the prescription. Yes.

[Prosecutor:] Again, how would you know that this

prescription was actually filled?

[Technician:] How do I know it was filled?

[Prosecutor:] I’ll show you State’s Exhibit 15.

[Technician:] Yeah, that would show me. It was

dispensed right here, Jeffrey Gradert on

8/16. It was filled for 180, Mallinckrodt

manufacturer.

Hearns asserts that trial counsel deficiently performed for not calling the nurse

to testify that the doctor prescribed the oxycodone to Gradert. (Doc. 1 at 20) Hearns

contends that the nurse’s testimony would impeach Gradert, who testified that he did

not obtain the prescription from the doctor’s office. (Doc. 1 at 20) He further asserts

that the nurse’s testimony would impeach Gradert, James Kipp and John Weiss,

who testified that they observed Hearns write the prescription. (Doc. 1 at 20)

Because the pharmacy technician testified that, before dispensing the oxycodone to

Gradert, she confirmed with the nurse that Dr. Rothenberg prescribed the narcotic,

the nurse’s testimony would duplicate the pharmacy technician’s testimony.

Consequently, Hearns failed to demonstrate prejudice under Strickland. Reaves v.

Sec’y, Fla. Dep’t Corrs., 872 F.3d 1137, 1157 (11th Cir. 2017) (“We have [ ] held that

counsel’s failure to present cumulative evidence is not ineffective assistance.”).

Holsey v. Warden, Ga. Diag. Prison, 694 F.3d 1230, 1260–61 (11th Cir. 2012) (“[T]he

United States Supreme Court, this Court, and other circuit courts of appeals

generally hold that evidence presented in postconviction proceedings is ‘cumulative’

or ‘largely cumulative’ to or ‘duplicative’ of that presented at trial when it tells a

more detailed version of the same story told at trial or provides more or better

examples or amplifies the themes presented to the jury.”).

Also, the jury found Hearns guilty of conspiracy to traffic oxycodone.

(Doc. 5-2 at 721) Even if the jury accepted the nurse’s testimony and determined

that the doctor lawfully prescribed to Gradert the oxycodone, evidence at trial

proved that Hearns unlawfully wrote prescriptions for James Kipp, John Weiss,

Brenda Weiss, and Lori Moser. (Doc. 5-2 at 114, 234, 248–49, 252, 281–82)

Consequently, Hearns cannot demonstrate a reasonable probability that the outcome

at trial would change. Sub-claim B and ground three are denied. Strickland, 466 U.S.

at 694; Sullivan, 459 F.3d at 1110–11.

VI. CONCLUSION

Hearns’s application for the writ of habeas corpus (Doc. 1) is DENIED. The

clerk must enter a judgment against Hearns and CLOSE this case.

DENIAL OF CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL JIN FORMA PAUPERIS

Because Hearns fails to demonstrate either a substantial showing of the denial

of a constitutional right or that reasonable jurists would debate either the merits of

the grounds or the procedural issues, a certificate of appealability and leave to appeal

in forma pauperis ace DENIED. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.

473, 478 (2000). Hearns must obtain permission from the court of appeals to appeal

in forma pauperis.

ORDERED in Tampa, Florida, on March 21, 2024.

Mis Wiwryelucy

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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