# Pearson v. Secretary, Department of Corrections

> District Court, S.D. Florida · January 3, 2023

URL: https://www.frixlaw.com/law-library/cases/10121382

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** January 3, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10121382

## How later opinions describe it (automated extraction)

- rejecting a state habeas petitioner's appearance- of-bias claim for lack of supporting Supreme Court authority; citing circuit decisions suggesting that an appearance of bias is not a due-process violation

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-23812-BLOOM

FRANKLIN PEARSON,

Petitioner,

v.

FLORIDA DEPARTMENT
OF CHILDREN AND FAMILIES,

Respondent.
/
ORDER ON PRO SE SECOND AMENDED PETITION
FOR WRIT OF HABEAS CORPUS

THIS CAUSE is before the Court on Petitioner Franklin Pearson’s pro se Second
Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, ECF No. [7] (“Petition”).
Petitioner raises four claims concerning his October 15, 2019, involuntary civil commitment
probable cause hearing. See generally id.
Respondent Florida Department of Children and Families filed an Amended Response,
ECF No. [18], and an Amended Index to Appendix, ECF No. [19], with attached Exhibits 1–53,
ECF No. [19-1], as well as a Notice of Filing Transcripts, ECF No. [15], with attached transcripts,
ECF Nos. [15-1]–[15-7]. The Court has carefully considered the Petition, all supporting and
opposing submissions, the record in this case, the applicable law, and is otherwise fully advised.
For the reasons set forth below, the Petition is denied.
I. BACKGROUND
Petitioner has been committed under the Involuntary Civil Commitment of Sexually
Violent Predators Act since March 21, 2003. See ECF No. [19-1] at 20–24. Petitioner filed a
Petition for Release on March 19, 2019. See id. at 512–15. A probable cause hearing1 was held on
that petition on October 15, 2019. See ECF No. [15-7] at 59–116. Petitioner was represented by
counsel at the hearing. See id. In support of his petition, Petitioner presented the trial court with a
packet containing reports and addendums from two defense-retained doctors. See id. at 61:4–7. In

opposition, the State of Florida submitted reports from two different doctors. See id. at 61:8–13.
Before hearing argument, the trial judge confirmed having “reviewed all materials that have been
provided to me.” Id. at 61:14–15.
In the hearing, the trial court considered the evidence, heard argument, considered a
statement from Petitioner, and provided the following reasons for denying the petition:
THE COURT: After hearing the evidence and reviewing the reports that
have been provided in [the] evidentiary hearing, the arguments and the
statement from the defendant, at this time the Court has to find that the
defense has failed to show that there is probable cause to believe that Mr.
Pearson’s conduct has so changed that it’s safe for him to return and be
out at large. That if he is released he will not engage in acts of sexual
violence . . . I have pretty much already pointed out the things that I find
deficient in the reports provide[d] by the defense who does have at this
point the burden of proof and the showing of probable cause . . . There is
nothing that shows that there is any specific change or any change
whatsoever other than conclusory. The evidence is overwhelming from
what I read to the opposite. There has been no sufficient change or any
change that I can really see . . . I think at this time it’s very premature to
say there is sufficient change and the petition is denied.

Id. at 114:7–25, 115:1–13 (alterations added). Petitioner appealed, see ECF No. [19-1] at 509, and
his appellate counsel filed a memorandum brief pursuant to Anders v. California, 386 U.S. 738
(1967), see id. at 556. Petitioner filed a pro se initial brief raising two claims of trial court error,
see id. at 517, and the district court per curiam affirmed. Pearson v. State, 2020 WL 4342245 (Fla.
3d DCA July 29, 2020).

1 Section 394.918(3), Florida Statutes, states that following a hearing, “if the court determines that
there is probable cause to believe it is safe to release the person, the court shall set a trial before the
court on the issue.”
Petitioner filed a Petition for Writ of Habeas Corpus with this Court on January 11, 2021.2
This Court ordered Petitioner to amend twice. See ECF Nos. [3], [6]. Thus, Petitioner’s Second
Amended Petition is before the Court. He raises the following claims:
I. WHETHER PETITIONER WAS DENIED THE RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS APPELLATE
COUNSEL FAILED TO RAISE ON APPEAL THAT THE TRIAL
COURT COMMITTED REVERSIBLE ERROR BECAUSE THE
EVIDENCE CLEARLY DEMONSTRATED PROBABLE CAUSE
THAT ENTITLED PETITIONER TO RELEASE OR BENCH TRIAL.

II. WHETHER PETITIONER WAS DENIED THE RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS APPELLATE
COUNSEL FAILED TO RAISE ON APPEAL THAT TRIAL COURT
ABUSED ITS DISCRETION WHEN IT FAILED TO BE FAIR AND
IMPARTIAL DURING PETITIONER’S PROBABLE CAUSE
HEARING.

III. PETITIONER WAS DENIED HIS RIGHT TO RELEASE AND/OR
A BENCH TRIAL, WHERE THERE WAS SUFFICIENT EVIDENCE
TO ESTABLISH PROBABLE CAUSE THAT PETITIONER’S
CONDITION HAD CHANGED, AND IT WAS SAFE FOR HIM TO
BE RELEASED.

IV. PETITIONER WAS DENIED HIS RIGHT TO DUE PROCESS
WHEN THE TRIAL JUDGE DEPARTED FROM HER ROLE TO BE
FAIR AND IMPARTIAL DURING THE PETITIONER’S PROBABLE
CAUSE HEARING.

ECF No. [7] at 7, 11, 16, 17.
II. LEGAL STANDARD
A. Deference Under § 2254
A court’s review of a state prisoner’s federal habeas corpus petition is governed by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Abdul–Kabir v. Quarterman, 550

2“Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed on the date it is
delivered to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir.
2009).
U.S. 233, 246 (2007). “The purpose of AEDPA is to ensure that federal habeas relief functions as
a guard against extreme malfunctions in the state criminal justice systems, and not as a means of
error correction.” Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642
(11th Cir. 2016) (internal quotation marks omitted). This standard is “difficult to meet.” White v.

Woodall, 572 U.S. 415, 419 (2014) (internal quotation marks omitted).
According to AEDPA, a federal court may not grant a habeas petitioner relief on any claim
adjudicated on the merits in state court unless the state court’s decision (1) “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States;” or (2) “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see
also Rimmer v. Sec’y, Fla. Dep’t of Corr., 876 F.3d 1039, 1053 (11th Cir. 2017) (citing 28 U.S.C.
§ 2254(d)).
A state court decision is “contrary to” established Supreme Court precedent when it
(1) applies a rule that contradicts the governing law set forth by the Supreme Court; or

(2) confronts a set of facts materially indistinguishable from a decision of the Supreme Court and
nevertheless arrives at a result different from Supreme Court precedent. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable application” of clearly established federal law is
different from an incorrect application of federal law. Id. at 410. Consequently, “[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.” Harrington v. Richter, 562 U.S.
86, 101 (2011) (internal quotation marks omitted). If the last state court to decide a prisoner’s
federal claim provides an explanation for its merits-based decision in a reasoned opinion, “a federal
habeas court simply reviews the specific reasons given by the state court and defers to those

reasons if they are reasonable.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
Even summary rejection of a claim, without explanation, qualifies as an adjudication on
the merits, warranting deference. See Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335,
1351 (11th Cir. 2019). If the state court’s merits determination is unaccompanied by an
explanation, federal courts 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. Furthermore, a decision is still an
adjudication on the merits when it “addresses some but not all of a defendant’s claims.” Johnson
v. Williams, 568 U.S. 289, 298 (2013).
AEDPA “imposes a highly deferential standard for evaluating state-court rulings . . . , and
demands that state-court decisions be given the benefit of the doubt[.]” Renico v. Lett, 559 U.S.
766, 773 (2010) (internal quotation marks and footnote omitted). Deferential review under
§ 2254(d) is generally limited to the record that was before the state court that adjudicated the
claim on the merits. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011).
B. Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution guarantees criminal defendants
the right to assistance of counsel during criminal proceedings. See Strickland v. Washington, 466
U.S. 668, 684-85 (1984). When assessing counsel’s performance under Strickland, the Court
employs a strong presumption that counsel “rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. at 690. “[T]he Sixth
Amendment does not guarantee the right to perfect counsel; it promises only the right to effective
assistance[.]” Burt v. Titlow, 571 U.S. 12, 20 (2013). “Where the highly deferential standards
mandated by Strickland and AEDPA both apply, they combine to produce a doubly deferential
form of review that asks only ‘whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.’” Gissendaner v. Seaboldt, 735 F.3d 1311, 1323 (11th Cir. 2013)
(quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)).
To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate
both (1) that counsel’s performance was deficient; and (2) a reasonable probability that the

deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687-88; see also
Harrington, 562 U.S. at 104.
To establish deficient performance, the petitioner must show that, considering all
circumstances, “counsel’s conduct fell ‘outside the wide range of professionally competent
assistance.’” Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1356 (11th Cir. 2009) (quoting
Strickland, 466 U.S. at 690). Strategic choices made after thorough investigation of the law and
facts relevant to plausible options are virtually unchallengeable. See Strickland, 466 U.S. at 690-
91. The court’s review of counsel’s performance should focus on “not what is possible or ‘what is
prudent or appropriate, but only [on] what is constitutionally compelled.’” Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (footnote omitted; quoting Burger v. Kemp, 483 U.S.

776, 794 (1987)). Counsel is not ineffective for failing to raise non-meritorious issues, see
Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001); nor is counsel required to present every
non-frivolous argument, see Dell v. United States, 710 F.3d 1267, 1282 (11th Cir. 2013).
Regarding the prejudice component, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. A court need not address both prongs of Strickland
if the defendant makes an insufficient showing on one of the prongs. See id. at 697; Brown v.
United States, 720 F.3d 1316, 1326 (11th Cir. 2013).
III. DISCUSSION
A. Timeliness
Respondent concedes, and the Court finds, that the Petition was timely filed. See ECF No.
[18] at 28.
B. Exhaustion/Procedural Default

Respondent asserts that Grounds Three and Four are procedurally defaulted. See id. at 39–
42. The Court, however, has the authority to “skip over the procedural default analysis” for a state
prisoner’s federal claim if it is easier to deny those claims on the merits. Dallas v. Warden, 964
F.3d 1285, 1307 (11th Cir. 2020) (“[A] federal court may skip over the procedural default analysis
if a claim would fail on the merits in any event.”); see also 28 U.S.C. § 2254(b)(2) (“An application
for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant
to exhaust the remedies available in the courts of the State.”). Here, it is easier to deny Grounds
Three and Four on the merits and so the Court will “skip over the procedural default analysis.”
Dallas, 964 F.3d at 1307.

C. Grounds One and Three
i. Ground One
In Ground One, Petitioner alleges that his appellate counsel was ineffective for failing “to
raise on appeal that the trial court committed reversible error, because the evidence clearly
demonstrated probable cause that entitled Petitioner to release or [a] bench trial.” ECF No. [7] at
7. Petitioner raised the same claim as trial court error in his pro se initial brief in Pearson v. State,
2020 WL 4342245 (Fla. 3d DCA July 29, 2020). See ECF No. [19-1] at 533. Respondent states
that Petitioner’s trial court error claim, “couched in an ineffective assistance of counsel claim . . .
is not cognizable on federal habeas review.” ECF No. [18] at 32 (citing Estelle v. McGuire, 502
U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.”)). The Court agrees.3
Although labeled an ineffective assistance claim, Petitioner is actually challenging the state
trial court’s probable cause determination under Fla. Stat. § 394.918(3) (“If the court determines

that there is probable cause to believe it is safe to release the person, the court shall set a trial before
the court on the issue.”). In other words, Petitioner asks the Court to reexamine a state-court
determination on state-law questions. See Estelle, 502 U.S. at 67–68. The Court must therefore
limit inquiry to whether the state court violated Petitioner’s federal constitutional rights. See id.
As previously discussed, having reviewed the doctors’ reports, hearing argument, and
considering Petitioner’s statement, the state trial court found that there was insufficient probable
cause and stated its reasoning on the record. After conducting a complete review of the record, the
Court finds the probable cause determination to be reasonable. See Wilson, 138 S. Ct. at 1192
(requiring a federal court sitting in habeas to defer to “reasonable” reasons given by the state court
in rejecting a claim for relief). None of the alleged errors rise to the level of a due process violation.

See Estelle, 502 U.S. at 67. As such, the state court did not violate Petitioner’s federal
constitutional rights. Ground One is thus denied.
ii. Ground Three
In Ground Three, Petitioner asserts that he was “denied his right to release and/or a bench
trial, where there was sufficient evidence to establish probable cause that Petitioner’s condition
had changed, and it was safe for him to be released.” ECF No. [7] at 16. This ground is effectively
identical to Ground One. Thus, Ground Three is denied for the reasons explained above.

3The Court nevertheless notes that appellate counsel cannot be ineffective for filing an Anders brief
in lieu of raising meritless claims on appeal. See Brown v. United States, 720 F.3d 1316, 1335 (11th
Cir. 2013) (“It is also crystal clear that there can be no showing of actual prejudice from an appellate
attorney's failure to raise a meritless claim.”).
D. Grounds Two and Four
i. Ground Four
In Ground Four, Petitioner asserts he “was denied his right to due process when the trial
judge departed from her role to be fair and impartial during the Petitioner’s probable cause

hearing.” ECF No. [7] at 17. He alleges that the judge was biased because she called his attorney’s
presentation of the case “misleading” and “suggested that Petitioner’s counsel should present
favorable evidence which supports the State’s case.” Id. Petitioner refers to the instance when his
attorney read portions of Dr. Swan’s report4 during his probable cause hearing. Petitioner’s
attorney, Ms. Kim, noted that, “Dr. Swan typically gets the majority of her work by working on
behalf of the State . . .” and yet the doctor “acknowledge[d] that Mr. Pearson has not had a
disciplinary report for inappropriate sexual behavior in 9 years.” ECF No. [15-7] at 77:22–24, 78:1–
3. Ms. Kim proceeded to highlight the positive remarks made by Dr. Swan, and the trial judge
asked:
THE COURT: Aren’t you skipping certain sentences in that?

MS. KIM: I moved onto different pages or sections. I’m sure the State
will argue those facts of her report.

THE COURT: You are reading it word for word, but then you are
skipping sentences such as his participation in alcoholics anonymous and
narcotics anonymous. It says he has been inconsistent and it’s reported
he earned two hours for December, no hours for January, and 4 hours for
February . . . I want to be honest if we are reading what’s in the report
let’s read the whole section[.]

MS. KIM: I understand Your Honor, however my doctors represent Mr.
Pearson, so I’m highlighting the parts of the report [from] Doctor Swan
I believe are positive for Mr. Pearson.

THE COURT: If you are going to summarize it for me, summarize it.
But if you are going to read it word for word, let’s read it word for

4Dr. Swan’s report was prepared on behalf of the State. See ECF No. [15-7] at 77:13–25.
word because it seems like you are trying to mislead me. If I hadn’t
read that particular [paragraph] previously myself, I might have missed
some important issues. Go ahead.

MS. KIM: I understand, but I believe [the prosecutor] will be more than
happy to highlight all those things for, Your Honor…

Id. at 79:24–25, 80:1–25, 81:1–5 (emphasis and alterations added). For a due process violation,
Petitioner must show that the judge displayed a “deep-seated favoritism or antagonism that would
make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994). The record
indicates that the trial judge did not want Petitioner’s counsel to skip parts of the report because
she did not want to miss important issues. The trial judge allowed counsel to summarize the
positive factors for her client but did not want a selective reading of the report. “A judge's ordinary
efforts at courtroom administration—even a stern and short-tempered judge's ordinary efforts at
courtroom administration” do not constitute a constitutional violation. Id. at 556; see also Davis v.
Jones, 506 F.3d 1325, 1333–37 (11th Cir. 2007) (rejecting a state habeas petitioner's appearance-
of-bias claim for lack of supporting Supreme Court authority; citing circuit decisions suggesting
that an appearance of bias is not a due-process violation). In sum, the state court’s decision does
not conflict with clearly established federal law, nor was it based on an unreasonable determination
of the facts. See 28 U.S.C. § 2254(d). Ground Four is thus denied.
ii. Ground Two
In Ground Two, Petitioner alleges his appellate counsel was ineffective for failing “to raise
on appeal that [the] trial court abused its discretion when it failed to be fair and impartial during
Petitioner’s probable cause hearing.” No. [7] at 11. As explained above, this claim is meritless.
Therefore, counsel cannot be ineffective for failing to raise it on appeal. See Brown, 720 F.3d at
1335. Ground Two is thus denied.
IV. EVIDENTIARY HEARING
In a habeas corpus proceeding, the burden is on the petitioner to establish the need for an
evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir.
2011). “[I]f the record refutes the applicant’s factual allegations or otherwise precludes habeas

relief, a district court is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550
U.S. 465, 474 (2007); see also Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318-19 (11th
Cir. 2016). Here, the issues presented can be resolved based on the record before the Court.
Because the Court can “adequately assess [Petitioner’s] claim[s] without further factual
development[,]” he is not entitled to an evidentiary hearing. Turner v. Crosby, 339 F.3d 1247,
1275 (11th Cir. 2003).
V. CERTIFICATE OF APPEALABILITY
A prisoner seeking to appeal a district court’s final order denying his or her petition for
writ of habeas corpus has no absolute entitlement to appeal; rather, in order to do so, he must obtain
a certificate of appealability. See 28 U.S.C. § 2253(c)(1); see also Harbison v. Bell, 556 U.S. 180,

183 (2009). This Court should issue a certificate of appealability only if Petitioner makes “a
substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). Where the
district court rejects a petitioner’s constitutional claims on the merits, the petitioner must
demonstrate that reasonable jurists “would find the district court’s assessment of the constitutional
claims debatable or wrong.” See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Upon consideration
of the record, the Court denies a certificate of appealability on all grounds.
VI. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Petitioner Franklin Pearson’s Second Amended Petition for Writ of Habeas Corpus

under 28 U.S.C. § 2254, ECF No. [7], is DENIED.
Case No. 22-cv-23812-BLOOM

2. Acertificate of appealability is DENIED. Because there are no issues with arguable
merit, an appeal would not be taken in good faith, and Petitioner is not entitled to
appeal in forma pauperis.
3. To the extent not otherwise disposed of, any pending motions are DENIED AS
MOOT and all deadlines are TERMINATED.
4. The Clerk of Court is directed to CLOSE this case.
DONE AND ORDERED in Chambers at Miami, Florida, on December 30, 2022.

BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
Franklin Pearson
990618
Florida Civil Commitment Center (FCCC)
13619 SE Highway 70
Arcadia, FL 34266
PRO SE

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10121382. Public record. Not legal advice.