Sagesse v. Dixon (Lee County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

RONES SAGESSE,

Petitioner,

v. Case No.: 2:23-cv-7-SPC-KCD

SECRETARY, DEPARTMENT OF

CORRECTIONS,

Respondent.

/

OPINION AND ORDER

Before the Court is Petitioner Rones Sagesse’s Amended Petition for a

Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 10). Sagesse challenges

a state conviction of aggravated assault on two law enforcement officers.

Background

The State of Florida charged Sagesse with two counts of aggravated

assault on a law enforcement officer. Sagesse pled not guilty. Attorney Brent

Rose of the Office of Regional Counsel represented Sagesse through most of the

trial. After the State announced it had two witnesses left, Sagesse asked the

Court to discharge Rose so Sagesse could continue pro se. After questioning

Sagesse to ensure he was competent to waive counsel, the court granted his

request.

The State established the following facts at trial. On November 16, 2016,

Susan Solt saw her neighbor Brianna sitting outside with her ex-boyfriend,

Sagesse. Brianna appeared scared, and Solt heard Brianna and Sagesse

yelling and arguing. Solt called 911. Deputy Sheriffs Joseph Clark and Jeffrey

Bastedo responded to the call. It was just before nightfall, so there was still a

bit of light. The officers arrived in separate, marked patrol vehicles and parked

about two houses down. As they were walking towards the duplex, they saw

Sagesse hunched over outside the door. Bastedo called out to Sagesse, and

Sagesse jumped up and pointed a handgun at the officers.1 Bastedo, who was

about four feet in front on Clark, fell backwards, pulled his gun, and fired at

Sagesse. Clark also stumbled backwards and pulled his gun but did not fire.

Sagesse fled behind the duplexes.

Detective Jamie Nolen found a patch of blood in a backyard about a block

from the scene. He also saw blood along the fence line and compressed foliage

on top of the fence, as if someone had climbed over it. Nolen followed the blood

trail and found a handgun. Later testing showed that DNA from the blood

matched Sagesse’s DNA.

Deputy James Vanpelt found Sagesse about a quarter mile from the

crime scene—his pants were wet and bloody, and his leg was bleeding from two

1 Bastedo saw a gun in Sagesse’s hand, while Clark saw an object he could not identify.

Sagesse denied he had a gun.

gunshot wounds. Vanpelt put Sagesse in handcuffs and called for EMS, who

took Sagesse to Lee Memorial Hospital. Sergeant Aimee Lusk arrived at the

hospital while Sagesse was receiving treatment. Lusk introduced herself to

Sagesse, and Sagesse said, “I was sad. I didn’t have a gun. I just held my hand

out like this”—Sagesse made what Lusk called a finger pistol—“I pointed it at

him, but I didn’t have a gun at that time.” (Doc. 17-2 at 284). Lusk later

arrested Sagesse.

The jury found Sagesse guilty as charged on both counts, and the court

sentenced him to 25 years in prison. Sagesse appealed, and the Second District

Court of Appeal of Florida (2nd DCA) affirmed without a written opinion.

Sagesse filed a pro se motion for postconviction relief under Florida Rule of

Criminal Procedure 3.850. The postconviction court summarily denied the

Rule 3.850 motion, and the 2nd DCA affirmed without a written opinion.

Sagesse then timely filed the habeas petition currently before this Court.

Applicable Habeas Law

A. AEPDA

The Antiterrorism Effective Death Penalty Act (AEDPA) governs a state

prisoner’s petition for habeas corpus relief. 28 U.S.C. § 2254. Relief may only

be granted on a claim adjudicated on the merits in state court if the

adjudication:

(1) 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

(2) 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.

28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet.

White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A state court’s violation of state

law is not enough to show that a petitioner is in custody in violation of the

“Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a);

Wilson v. Corcoran, 562 U.S. 1, 16 (2010).

“Clearly established federal law” consists of the governing legal

principles set forth in the decisions of the United States Supreme Court when

the state court issued its decision. White, 134 S. Ct. at 1702; Casey v. Musladin,

549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).

Habeas relief is appropriate only if the state court decision was “contrary to, or

an unreasonable application of,” that federal law. 28 U.S.C. § 2254(d)(1). A

decision is “contrary to” clearly established federal law if the state court either:

(1) applied a rule that contradicts the governing law set forth by Supreme

Court case law; or (2) reached a different result from the Supreme Court when

faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144,

1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

A state court decision involves an “unreasonable application” of Supreme

Court precedent if the state court correctly identifies the governing legal

principle, but applies it to the facts of the petitioner’s case in an objectively

unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.

Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court either

unreasonably extends a legal principle from [Supreme Court] precedent to a

new context where it should not apply or unreasonably refuses to extend that

principle to a new context where it should apply.” Bottoson, 234 F.3d at 531

(quoting Williams, 529 U.S. at 406).

When reviewing a claim under 28 U.S.C. § 2254(d), a federal court must

remember that any “determination of a factual issue made by a State court

shall be presumed to be correct[,]” and the petitioner bears “the burden of

rebutting the presumption of correctness by clear and convincing evidence.” 28

U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A] state-court

factual determination is not unreasonable merely because the federal habeas

court would have reached a different conclusion in the first instance.”). “A

state court’s determination that a claim lacks merit precludes federal habeas

relief so long as fair-minded jurists could disagree on the correctness of the

state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011). “[T]his

standard is difficult to meet because it was meant to be.” Sexton v.

Beaudreaux, 138 S. Ct. 2555, 2558 (2018).

B. Exhaustion and Procedural Default

AEDPA precludes federal courts, absent exceptional circumstances, from

granting habeas relief unless a petitioner has exhausted all means of relief

available under state law. Failure to exhaust occurs “when a petitioner has

not ‘fairly presented’ every issue raised in his federal petition to the state’s

highest court, either on direct appeal or on collateral review.” Pope v. Sec’y for

Dep’t. of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (quoting Mason v. Allen,

605 F.3d 1114, 1119 (11th Cir. 2010)). The petitioner must apprise the state

court of the federal constitutional issue, not just the underlying facts of the

claim or a similar state law claim. Snowden v. Singletary, 135 F.3d 732, 735

(11th Cir. 1998).

Procedural defaults generally arise in two ways:

(1) where the state court correctly applies a procedural default

principle of state law to arrive at the conclusion that the

petitioner’s federal claims are barred; or (2) where the

petitioner never raised the claim in state court, and it is obvious

that the state court would hold it to be procedurally barred if it

were raised now.

Cortes v. Gladish, 216 F. App’x 897, 899 (11th Cir. 2007). A federal habeas

court may consider a procedurally barred claim if (1) petitioner shows

“adequate cause and actual prejudice,” or (2) if “the failure to consider the claim

would result in a fundamental miscarriage of justice.” Id. (citing Coleman v.

Thompson, 501 U.S. 722, 749-50 (1991)).

Another gateway through a procedural bar exists for claims of ineffective

assistance of trial counsel. If the state court did not appoint counsel in the

collateral proceeding, or if collateral-review counsel was ineffective, a

petitioner may overcome procedural default by “demonstrat[ing] 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 v. Ryan, 566 U.S. 1, 13 (2012).

C. Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established a two-part

test for determining whether a convicted person may have relief for ineffective

assistance of counsel. 466 U.S. 668, 687-88 (1984). A petitioner must establish:

(1) counsel’s performance was deficient and fell below an objective standard of

reasonableness; and (2) the deficient performance prejudiced the defense. Id.

When considering the first prong, “courts must ‘indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.’” Sealey v. Warden, 954 F.3d 1338, 1354 (11th Cir.

2020) (quoting Strickland, 466 U.S. at 689). And “[a] state court’s

determination that a claim lacks merit precludes federal habeas relief so long

as ‘fairminded jurists could disagree’ on the correctness of the state court’s

decision.” Franks v. GDCP Warden, 975 F.3d 1165, 1176 (11th Cir. 2020)

(quoting Richter, 562 U.S. at 101). Thus, a habeas petitioner must “show that

no reasonable jurist could find that his counsel’s performance fell within the

wide range of reasonable professional conduct.” Id. This is a “doubly

deferential” standard of review that gives both the state court and the

petitioner’s attorney the benefit of the doubt. Burt, 134 S. Ct. at 13 (citing

Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)).

The second prong requires the petitioner to “show that there is a

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

of the proceeding would have been different.” Sealey, 954 F.3d at 1355 (quoting

Strickand, 466 U.S. at 694). “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. The critical question

on federal habeas review is not whether this Court can see a substantial

likelihood of a different result had defense counsel taken a different approach.

Mays v. Hines, 141 S. Ct. 1145, 1149 (2021). All that matters is whether the

state court, “notwithstanding its substantial ‘latitude to reasonably determine

that a defendant has not [shown prejudice],’ still managed to blunder so badly

that every fairminded jurist would disagree.” Id. (quoting Knowles v.

Mirazayance, 556 U.S. 111, 123 (2009)).

“An ineffective-assistance claim can be decided on either the deficiency

or prejudice prong.” Sealey, 954 F.3d at 1355. And “[w]hile the Strickland

standard is itself hard to meet, ‘establishing that a state court’s application of

Strickland was unreasonable under § 2254(d) is all the more difficult.’” Id.

(quoting Richter, 562 U.S. at 105).

Analysis

A. Grounds 1 and 4: The State failed to prove every element of

the charged crimes

In Ground 1, Sagesse states that Clark and Bastedo testified they did

not identify themselves as law enforcement officers when they confronted

Sagesse, and he notes they were dressed in black and parked about two houses

down. In Ground 4, Sagesse argues the State did not prove that he knew Clark

and Bastedo were law enforcement officers. The Court liberally construes

Grounds 1 and 4 as claims that Sagesse’s convictions are not supported by

constitutionally sufficient evidence, in violation of the Fourteenth

Amendment’s Due Process Clause.2 See Jackson v. Virginia, 443 U.S. 307

(1979). But Sagesse did not challenge the sufficiency of the evidence in state

court, either at trial or on appeal. Thus, Ground 1 is unexhausted and

procedurally barred.

B. Ground 2: Trial counsel failed to cross-examine witness

Chamelle Mott

At trial, Chamelle Mott—Sagesse’s roommate at the time—testified she

saw Sagesse in possession of a firearm on November 16, 2016. (Doc. 17-2 at

2 If Sagesse is attacking the sufficiency of the evidence under Florida law, that claim is not

cognizable on federal habeas review. See Wilson, 562 U.S. at 5.

240). That was the full extent of her testimony. Rose did not cross-examine

Mott. Sagesse argues Rose was constitutionally ineffective because Mott was

the only witness to “place [him] with a firearm.” (Doc. 10 at 6).

Sagesse raised this ground in his Rule 3.850 motion. The state

postconviction court denied it:

9…Defendant alleges that counsel was ineffective by failing to

cross-examine witness Chamelle Mott "in order to figure out what

was the exact time and location of the Defendant when she saw

him with a firearm and whether he was inside or outside the house

when he had this firearm..." Specifically, he claims that this was

important because Ms. Mott later "decided to write a sworn

affidavit stating that the Defendant had left the firearm inside the

house while he was outside the house..." and asserting that she

claimed to own the gun when the officers arrived to perform the

search. Defendant also alleges that Ms. Mott "was the only one

that could've placed the Defendant with a firearm." He also relates

in his motion that this was information that was known to

sentencing counsel or defendant at the time just after the trial. In

his Reply, Defendant argues that the testimony of the FDLE lab

analyst that the pool of blood located a foot and a half from the gun

contained his DNA would not have proven that he had handled the

firearm, especially as there had been trial testimony that he had

been shot and was bleeding copiously as he went from one area of

the neighborhood to another.

10. Trial testimony reflects that when the deputies approached

Defendant, he suddenly jumped up from where had been sitting in

the yard and aimed his hand at them. This startled the deputies,

causing them to believe that Defendant was shooting at them;

Deputy Basteda [sic] testified that he actually saw Defendant

holding a gun and brass cartridges fall from the gun. Further

testimony demonstrated that the gun had held at least one live

cartridge when it was found by police, and that it had been found

next to a pool of Defendant's blood. Thus, as Ms. Mott's testimony

was not the only evidence that Defendant had had a gun,

Defendant cannot demonstrate prejudice. Defendant has failed to

demonstrate any entitlement to relief. Ground 3, therefore, is

DENIED.

(Doc. 17-2 at 666-67).

The state court’s rejection of this claim was a reasonable application of

federal law. As the Court noted, the record conclusively refutes Sagesse’s claim

that Mott’s testimony was the only evidence connecting him with a gun. Even

assuming cross-examination could have damaged Mott’s credibility, the State

used DNA evidence and Bastedo’s eyewitness testimony to show that Sagesse

had a gun and pointed it at the officers. The state court reasonably concluded

that the lack of cross-examination did not prejudice Sagesse. Thus, denial of

this ground is appropriate under Strickland. Ground 2 is denied.

C. Ground 3: Trial counsel failed to move to suppress Sagesse’s

statement to police

Sagesse next argues Rose should have moved to suppress the statement

he made to Sergeant Lusk on the basis that he was “under the influence of

several medications.” (Doc. 10 at 6). Sagesse raised a similar ineffective-

assistance claim in his state postconviction motion but with a different factual

basis. Sagesse argued in Ground 5 of his Rule 3.850 motion that Rose should

have moved to suppress the statement because Sagesse was not informed of

his Miranda rights. The state court rejected that argument because, according

to Lusk’s unrefuted testimony, the statement was spontaneous, so a motion to

suppress would not have succeeded. The state court thus reasonably denied

Sagesse’s Strickland claim because counsel cannot be deemed ineffective for

failing to raise a meritless motion, and Sagesse was not prejudiced by its

omission.

The state court did not consider Sagesse’s medication-based argument

because he did not assert it. To satisfy the AEDPA’s exhaustion requirement,

petitioners must “present their claims to the state courts such that the

reasonable reader would understand each claim’s particular legal basis and

specific factual foundation.” Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317,

1344-45 (11th Cir. 2004). Sagesse did not exhaust the particular claim he

raises here because he did not raise the particular factual basis in state court.

The state post-conviction court’s rejection of Sagesse’s related claim, as

presented in his Rule 3.850 motion, was a reasonable application of Strickland.

Sagesse cannot circumvent the procedural bar. He does not attempt to

show cause or prejudice, and he fails to show this ground is a “substantial one”

under Martinez—i.e., that it “has some merit.” Martinez, 566 U.S. at 14. The

Constitution does not require exclusion of a defendant’s out-of-court statement

merely because the defendant was under the influence of drugs or alcohol.

“[W]hile mental condition is surely relevant to an individual’s susceptibility to

police coercion, mere examination of the confessant’s state of mind can never

conclude the due process inquiry.” Colorado v. Connelly, 479 U.S. 157, 165

(1986). Sagesse does not accuse Lusk of coercing him or otherwise taking

advantage of his drugged state. Thus, Sagesse has not identified a

constitutional ground for suppression of the statement. Nor does he identify

any basis for suppression under Florida law. Ground 4 is thus unexhausted

and procedurally barred.

D. Ground 5: Trial counsel failed to retain an expert witness

Finally, Sagesse argues Rose should have hired a DNA expert to testify

that no DNA was found on the recovered firearm, that no gunshot residue was

found on Sagesse, and that Sagesse was shot from behind while running away.

Sagesse did not raise this claim in state court, so it is unexhausted and

procedurally barred. Sagesse makes no attempt to show cause and prejudice,

and he cannot use Martinez to circumvent the procedural bar because this

ground is not substantial. Sagesse merely speculates what an expert witness

might say. Even if Sagesse could identify a witness who would have given the

desired testimony, there is no reasonable probability it would have changed

the outcome. A lack of DNA evidence on the recovered gun would not likely

have overcome Bastedo’s eye-witness testimony and the discovery of Sagesse’s

blood near the gun, a lack of gunshot residue is irrelevant because Sagesse was

not accused of firing the gun, and testimony that Sagesse was shot while

running away would not refute any element of the offense. Ground 5 is denied.

DENIAL OF CERTIFICATE OF APPEALABILITY

A prisoner seeking a writ of habeas corpus has no absolute entitlement

to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather,

a district court must first issue a certificate of appealability (COA). “A [COA]

may issue...only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a

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. 478,

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 (2008) (citations omitted). Sagesse has not made the requisite showing here

and may not have a certificate of appealability on his petition.

Accordingly, it is now ORDERED:

Rones Sagesse’s Amended Petition for a Writ of Habeas Corpus Under

28 U.S.C. § 2254 (Doc. □□□ □□ DENIED. The Clerk is DIRECTED to terminate

any pending motions and deadlines, enter judgment, and close this case.

DONE and ORDERED in Fort Myers, Florida on April 17, 2024.

UNITED STATES DISTRICT JUDGE

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