Pectol v. Secretary, Department of Corrections

United States District Court

for the

Southern District of Florida

Donna Pectol, )

Petitioner )

)

v. ) Civil Action No. 22-61525-Scola

)

Sec’y, Fla. Dep’t of Corr.,

Respondent.

Order on Petition for Writ of Habeas Corpus

Before the Court is Petitioner Donna Pectol’s pro se petition for writ of

habeas corpus under 28 U.S.C. § 2254. (ECF No. 1). The Petitioner challenges

the constitutionality of her state convictions and sentences on charges of first-

degree murder in the Seventeenth Judicial Circuit for Broward County.

The Respondent filed a response (ECF No. 10), with an index to appendix

(ECF No. 10-1) including attached exhibits 1–18 (ECF No. 10-2) and a notice of

filing transcripts (ECF No. 11) with the attached trial transcript (ECF No. 11-1)

and sentencing transcript (ECF No. 11-2). The Court has carefully reviewed the

parties’ written submissions, the record, and applicable law. For the reasons

explained below, the petition is dismissed in part and denied in part.

1. Background

On June 25, 2015, the Petitioner was indicted on one count of first-

degree murder with a deadly weapon. (See ECF No. 10-2 at 2–3). She proceeded

to trial and the jury heard from multiple witnesses that the Petitioner and

victim were neighbors who had been friends but were no longer friends around

the time of the incident. (See ECF No. 11-1 at 781, 812). On the incident day,

several neighbors responded to the victim’s screams. (See id. at 696). Through

a clouded glass window, they could see the victim inside her home being

stabbed by the Petitioner. (See id. at 692–94). The neighbors entered, the

Petitioner retreated, and the victim died shortly thereafter in a pool of her own

blood. (See id. at 696). The Petitioner was discovered hiding in a bedroom

inside the victim’s home. (See id. at 819–20). The Petitioner appeared calm,

alert, and uninjured. (See id. at 819–20). When asked what she had done, the

Petitioner raised her hands and stated “what have I done? What have I done?

She’s going to be just fine. She’s going to be fine.” (Id. at 820:11–12). Three

bloody knifes were discovered in the home. (See id. at 929–33).

On September 28, 2018, the jury found the Petitioner guilty as charged.

(See ECF No. 10-2 at 5). She was adjudicated guilty and sentenced to a

mandatory term of life in prison. (See id. at 7–8).

The Petitioner appealed, and on January 30, 2020, the Fourth District

Court of Appeal per curiam affirmed her conviction without a written opinion.

See Pectol v. State, 289 So. 3d 903 (Fla. 4d DCA 2020). Back at the trial court,

the Petitioner filed a Rule 3.850 motion for postconviction relief which was

denied and affirmed on appeal. See Pectol v. State, 339 So. 3d 352 (Fla. 4d DCA

2022).

The instant petition was docketed on August 2, 2022.

2. Legal Standard

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 U.S. 233, 246 (2007). 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). “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). This standard is “difficult to meet.” White v. Woodall, 572 U.S. 415, 419

(2014).

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). 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).

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) (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).

3. Discussion

a. Timeliness

The Respondent concedes, and the Court confirms, that the petition was

timely filed. (See ECF No. 10 at 10).

b. Exhaustion/Procedural Bars

A federal district court may not grant habeas corpus relief under 28

U.S.C. § 2254 unless “the applicant has exhausted the remedies available in

the courts of the State[.]” 28 U.S.C. § 2254(b)(1)(A). The State must be given

“the opportunity to pass upon and correct alleged violations of its prisoners'

federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up). The

prisoner must "fairly present" his claim in each appropriate state court thereby

alerting that court to the federal nature of the claim. Id. In Florida, exhaustion

is ordinarily accomplished on direct appeal; and if not, it may be accomplished

by the filing of a Rule 3.850 motion, and an appeal from its denial. See Leonard

v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979).

The Respondent asserts that Grounds One, Three, Four, Five, and Six

are unexhausted and procedurally barred. Having reviewed the record in full,

the Court agrees with the Respondent. While the Petitioner raised these issues

in her direct appeal, she framed them solely as errors of state law. “[A] mere

error of state law . . . is not a denial of due process.” Rivera v. Illinois, 556 U.S.

148, 158 (2009) (cleaned up); see also 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.”); Smith v. Graham, 2022 WL

3691232, at *11 (W.D.N.Y. July 25, 2022) (claim that trial court erroneously

granted prosecutor’s cause challenge did not implicate any federal

constitutional concerns and was not cognizable on federal habeas review),

report and recommendation adopted, 2022 WL 3684935 (W.D.N.Y. Aug. 25,

2022).

In her initial brief on direct appeal, the Petitioner raised the issues in

Grounds One, Three, Four, Five, and Six as violations of state, and not federal,

law and she cited exclusively to state statutes and cases in support of these

grounds. (See ECF No. 10-2 at 22–72). The Petitioner did not “put the state

court on notice that [she] intended to raise a federal claim.” Preston v. Sec'y,

Florida Dept. of Corr., 785 F.3d 449, 457 (11th Cir. 2015). As such, there is no

state court adjudication of a federal constitutional claim to review; and because

the Petitioner cannot return to state court to exhaust these issues, Grounds

One, Three, Four, Five, and Six are procedurally barred from federal habeas

review.

Equitable Exceptions

The Court additionally finds that the “cause and prejudice” and “actual

innocence” equitable exceptions do not apply. Dretke v. Haley, 541 U.S. 386,

393 (2004). The Petitioner bears the sole burden of proving that either one of

these exceptions apply. See Gordon v. Nagle, 2 F.3d 385, 388 (11th Cir. 1993)

(“A defendant has the burden of establishing cause and prejudice.”); Arthur v.

Allen, 452 F.3d 1234, 1245 (11th Cir. 2006) (“The petitioner must support the

actual innocence claim with new reliable evidence[.]”). The Court concludes

that the Petitioner fails to establish that either of these exceptions excuses her

procedurally barred claims. (See generally ECF No. 1). Accordingly, Grounds

One, Three, Four, Five, and Six are dismissed as procedurally barred.

c. The Merits

The Court proceeds to address the merits of the remaining grounds.

Ground Two

The Petitioner asserts the “[trial] [c]ourt erred in granting [the] State’s

preemptory challenge to juror Preston [a black female].” (ECF No. 1 at 7). As

grounds, she states that “Juror Preston’s daughter had been arrested for

prostitution in Ohio. The defense had pointed out other prospective jurors had

family members who had been arrested but court (sic) allowed preemptory

challenge by State (sic).” (Id.). Under federal law, the following burden-shifting

framework governs:

First, the defendant must make out a prima facie case “by

showing that the totality of the relevant facts give rise to an

inference of discriminatory purpose.” Second, once the

defendant has made out a prima facie case, the “burden

shifts to the State to explain adequately the racial exclusion”

by offering permissible race-neutral justifications for the

strikes. Third, “if a race-neutral explanation is tendered, the

trial court must then decide … whether the opponent of the

strike has proved purposeful racial discrimination.”

Johnson v. California, 545 U.S. 162, 168 (2005) (quoting Batson v. Kentucky,

476 U.S. 79, 93–94 (1986) (first two quotations) and Purkett v. Elem, 514 U.S.

765, 767 (1995) (last quotation)). A legitimate reason for exercising the

challenge is not required to make sense, be persuasive or even plausible; it

need only be one that does not deny equal protection. See Purkett v. Elem, 514

U.S. at 768-69; see also United States v. Walker, 490 F.3d 1282, 1293 (11th

Cir. 2007) (“Under Batson, almost any plausible reason can satisfy the striking

party’s burden, as long as the reason is race or gender neutral. Courts have

upheld reasons deemed to be superstitious, silly, or trivial, as long as they are

race or gender neutral.”) (citation omitted).

The state trial judge’s genuineness determination is a “pure issue of fact,

subject to review under a deferential standard ... [and] peculiarly within a trial

judge’s province.” McNair v. Campbell, 416 F.3d 1291, 1310 (11th Cir. 2005)

(citation omitted). Here, the record shows that the trial court engaged in a

genuineness analysis and found the State’s reasons to be both race-neutral

and genuine. (See ECF No. 11-1 at 508). Juror Preston’s remark that she was

“wrongly picked up [by the police] for solely being in the wrong area” (id. at

249:3–4), her agreement that her daughter had bad experiences with law

enforcement (see id. at 360:13–15), and her subsequent vacillation that “it

really wasn’t a bad experience” concerning her daughter (see id. at 360–61) was

a reasonable basis for the State striking her from the panel. See McNair, 416

F.3d at 1310. In sum, the Court concludes that the Petitioner fails to

demonstrate that the state courts’ decision rejecting her claim was contrary to

or involved an unreasonable application of clearly established federal law. See

28 U.S.C. § 2254(d). Ground Two is thus denied.

Ground Seven

The Petitioner argues that her trial counsel rendered ineffective

assistance in failing to properly argue a motion for judgment of acquittal on the

issue of premeditation. (See ECF No. 1 at 16). This claim is refuted by the

record as trial counsel did, in fact, make an extensive motion for judgment of

acquittal arguing that the State failed to prove premeditation. (See ECF No. 11-

1 at 1152–53, 1161–73, 1193-99). Although the motion was denied by the trial

court, trial counsel properly argued the motion and preserved the issue of

premeditation for appeal. Therefore, Ground Seven is denied under the

performance and prejudice prongs of Strickland, 466 U.S. at 687–88. See

Jackson v. Sec'y, Florida Dept. of Corr., 456 Fed. Appx. 827, 830 (11th Cir.

2012) (“A counsel’s performance is not deficient simply because the court

overruled his objection.”); Petz v. Sec'y, Dept. of Corr., 2008 WL 5142465, at *13

(M.D. Fla. Dec. 5, 2008) (“Counsel did argue for acquittal on the robbery with a

firearm charge and cannot be faulted because the [trial court] ruled contrary to

his argument.”).

Ground Eight

The Petitioner argues that her counsel was ineffective for failing “to

introduce mitigating factors to the jury during trial.” (ECF No. 1 at 17). She

explains that she “did not have a criminal history prior to this charge, she had

many mental and physical ailments, and those factors should have been

presented to the jury for mitigation purposes.” (Id.). The Petitioner is mistaken

as the rules of evidence precluded her counsel from making these arguments to

the jury. As the Respondent correctly explains:

“[M]itigation” is not a defense to murder. “Mitigation”

typically arises at sentencing. The jury determined whether

Petitioner was guilty or not guilty (T 1355-1370). This was

not a death penalty case and thus the jury did not

participate in sentencing (T 3, 41; ST 1-11). The sentence

was imposed by the trial judge and the mandatory sentence

was life in prison (ST 8; Ex. 3 at 6).

Furthermore, the jury was specifically instructed that

voluntary intoxication resulting from the use of alcohol is

not a defense to any crime (T 1370). “Evidence of a

defendant’s voluntary intoxication may not be taken into

consideration to show that [Petitioner] lacked specific intent

to commit any crime.” (T 1370). Whether Petitioner had

health issues or lacked a criminal history was not relevant

to the issues at trial.

(ECF No. 10 at 53). Accordingly, Ground Eight is denied under the performance

and prejudice prongs of Strickland, 466 U.S. at 687–88.

Ground Nine

The Petitioner asserts that her trial counsel was ineffective for advising

her not to testify on her own behalf. (See ECF No. 1 at 17). This claim was

rejected by the state postconviction and appellate courts. See Pectol v. State,

339 So. 3d 352 (Fla. 4d DCA 2022). Having reviewed the record in full, the

Court finds nothing unreasonable with the state courts’ rejection of this claim.

See 28 U.S.C. § 2254(d). On two occasions during trial the Petitioner

represented to the court that it was her decision not to testify:

THE COURT: I’m going to ask you few questions and see if

your attorney wants to ask you anything. Did you have

enough time to decide whether you want to testify?

THE DEFENDANT: Yes.

THE COURT: And would you like to testify?

THE DEFENDANT: No.

THE COURT: Are you doing it on (sic) own free will?

THE DEFENDANT: Yes.

THE COURT: Would you like to have more time to think

about it tonight?

THE DEFENDANT: No.

THE COURT: Has anybody forced you not to testify?

THE DEFENDANT: No.

THE COURT: You had sufficient time to talk to your

attorneys about it, correct?

THE DEFENDANT: Yes.

THE COURT: Anything else you want me to advise her of,

Mr. Halperin?

MR. HALPERIN: Well, I like to, when I advise her, I told her

she has every right to disregard my advice and testify. Even

though my advice to her is not to testify. But she goes along

with it. I also like to explain, which I did to Donna, if she

chooses not to testify, which is my advice, you will read an

instruction to the jury that basically says the jury cannot

hold it against her. If she decides to testify against my

advice, the jury would be told that they have to treat her

testimony the same as they would any other witnesses. And

of course, she will be subject to cross examination. And if

she is a convicted felon, the State can bring up the fact that

she is a convicted felon and how many times, without

getting into the nature of the priors.

THE COURT: Okay. So Miss Pectol, hearing all that from

Mr. Halperin and listening to me, would you like to testify?

THE DEFENDANT: No. Thank you.

THE COURT: Thank you. You will let me know tomorrow if

you change your mind?

THE DEFENDANT: Yes.

(ECF No. 11-1 at 1174-75). The next day the trial court engaged in a second

colloquy with the Petitioner:

THE COURT: You remember we had a discussion yesterday

about whether or not you wanted to testify?

THE DEFENDANT: Yes.

THE COURT: You have every right to testify. And do you feel

you would like to testify today?

THE DEFENDANT: No, ma'am.

THE COURT: And you had a chance to talk to your

attorney?

THE DEFENDANT: Yes.

THE COURT: Mr. Halperin made a record yesterday. And

you have every right, even though he said that he didn't

think you should, you have every right to go forward and

testify. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Anything else, Mr. Halperin?

MR. HALPERIN: No, ma'am.

THE COURT: Thank you so much, Miss Pectol.

(ECF 11-1 at 1185-86) (emphasis added). “Solemn declarations in open court

carry a strong presumption of verity. The subsequent presentation of

conclusory allegations unsupported by specifics is subject to summary

dismissal, as are contentions that in the face of the record are wholly

incredible.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). The Court finds the

Petitioner’s solemn declarations veritable and her contentions in Ground Nine

wholly incredible in the face of the record. See id. Ground Nine is thus denied.

Ground Ten

The Petitioner claims her trial counsel was ineffective for failing to have

her “evaluated by a psychological expert.” (ECF No. 1 at 18). The Petitioner

explains that “[c]ounsel relied on circumstantial evidence to demonstrate

innocence of the [Petitioner]. It would have been reasonable for counsel to call

on psychological experts to evaluate the [Petitioner] as the burden of

premeditation was on the State.” (Id.). This claim was rejected by the state

postconviction and appellate courts. See Pectol v. State, 339 So. 3d 352 (Fla. 4d

DCA 2022). Having reviewed the record in full, the Court finds nothing

unreasonable with the state courts’ rejection of this claim. See 28 U.S.C. §

2254(d). This claim is a variation of the Petitioner’s argument in Ground Eight

and so the Court denies relief for the reasons explained above.

Moreover, “complaints about uncalled witnesses are not favored, because

the presentation of testimony involves trial strategy and allegations of what a

witness would have testified are largely speculative.” Shaw v. United States,

729 F. App’x 757, 759 (11th Cir. 2018) (cleaned up). In assessing a claim of

ineffective assistance of counsel, “which witnesses, if any, to call, and when to

call them, is the epitome of a strategic decision, and it is one that the court will

seldom, if ever, second-guess.” Rhode v. Hall, 582 F.3d 1273, 1284 (11th Cir.

2009) (cleaned up). It was thus reasonable for the state courts to reject

Petitioner’s speculative claim of prejudice concerning the testimony of uncalled

witnesses, and Ground Ten is denied under the performance and prejudice

prongs of Strickland, 466 U.S. at 687–88.

Ground Eleven

The Petitioner claims her trial counsel was ineffective for allowing

inconsistent testimony by Patricia Clappison to bias the jury against the

Petitioner. (See ECF No. 1 at 19). This claim was rejected by the state

postconviction and appellate courts. See Pectol v. State, 339 So. 3d 352 (Fla. 4d

DCA 2022). Having reviewed the record in full, the Court finds nothing

unreasonable with the state courts’ rejection of this claim. See 28 U.S.C. §

2254(d).

First, the record shows that trial counsel impeached Ms. Clappison with

inconsistencies in her initial police statement and trial testimony. (See ECF No.

11-1 at 768-69, 771-72, 773-74, 777, 780-81, 785-86). Trial counsel also

attacked Ms. Clappison’s testimony in closing argument. (See id. at 1305-07).

Second, “[t]he decision as to whether to cross-examine a witness is “a tactical

one well within the discretion of a defense attorney. Absent a showing of a

single specific instance where cross-examination arguably could have affected

the outcome of either the guilt or sentencing phase of the trial, the petitioner is

unable to show prejudice necessary to satisfy the second prong of Strickland.”

Fugate v. Head, 261 F.3d 1206, 1219 (11 Cir. 2001) (cleaned up). The

Petitioner fails to make such a showing. (See ECF No. 1 at 19). It was thus

reasonable for the state courts to reject Petitioner’s claim, and Ground Eleven

is denied under the performance and prejudice prongs of Strickland, 466 U.S.

at 687–88.

Ground Twelve

The Petitioner asserts her trial counsel rendered ineffective assistance in

allowing testimony by Lisa Wisher, a witness who had motive to testify against

the Petitioner in a negative manner. (See ECF No. 1 at 19). The Petitioner

explains that Ms. Wisher had a previous felony conviction and “[s]he and the

[Petitioner] did not get along[.]” (Id.). This claim was rejected by the state

postconviction and appellate courts. See Pectol v. State, 339 So. 3d 352 (Fla. 4d

DCA 2022). Having reviewed the record in full, the Court finds nothing

unreasonable with the state courts’ rejection of this claim. See 28 U.S.C. §

2254(d).

The record shows that Ms. Wisher was a key eyewitness for the State.

(See ECF No. 11-1 at 813–22). Ms. Wisher’s testimony was relevant, material,

and there were no grounds for counsel to keep the witness from testifying.

Thus, counsel cannot be deemed ineffective for failing to make a meritless

objection. See Chandler, 240 F.3d at 917. Moreover, the record shows that the

Petitioner’s counsel impeached Ms. Wisher with her felony conviction on cross

examination. (See ECF No. 11-1 at 858). In sum, the Petitioner’s claims are

meritless and refuted by the record. Ground Twelve is thus denied under the

performance and prejudice prongs of Strickland, 466 U.S. at 687–88.

Ground Thirteen

The Petitioner claims that her counsel was ineffective for failing “to

disqualify juror Sharon Marcus and [u]tilize [an] alternate juror.” (ECF No. 1 at

20). The Petitioner claims that this juror wrote a letter to the Court explaining

that the trial was interfering with her personal and professional life, including

“a conference she was to attend in Washington, DC. Her attitude and demeanor

of a frustrated juror is likely to have been transferred to other jurors, and

caused a quick verdict.” (Id.). This claim was rejected by the state

postconviction and appellate courts. See Pectol v. State, 339 So. 3d 352 (Fla. 4d

DCA 2022). Having reviewed the record in full, the Court finds nothing

unreasonable with the state courts’ rejection of this claim. See 28 U.S.C. §

2254(d). As the Respondent explains:

Petitioner’s allegations are contradicted by the record. Ms.

Marcus’s note to the trial judge stated:

Judge McCarthy,

I have passed a note for your attention yesterday, I am

uncertain if you have seen it or not. But as we enter the 2nd

day of deliberation, if the trial does not conclude today, I

must inform you that I am unable to continue as a juror. I

will be unavailable on Monday August 24th. Please find

attached documents evidencing my commitment to a

professional conference.

Sincerely,

Sharon Marcus

In her note, Ms. Marcus did not ask to be removed from the

jury because she felt “taken advantage of” or a “lack of

consideration for her personal or professional life” (Ex. 13

at 532). Ms. Marcus did not express frustration. She simply

advised the trial court of her prior commitment and that she

would not be able to deliberate if deliberations continued

into the next week.

The trial court and counsel discussed the note (T 1269-

1271). Defense counsel did not ask the trial court to take

any action based on the note (T 1270). The trial court

ultimately filed Ms. Marcus’s letter and took no action (T

1271).

Ms. Marcus’s note did not provide any credible basis to have

her removed. Consequently, trial counsel cannot be deemed

ineffective for failing to raise a meritless argument. See Diaz

v. Sec'y for Dep't of Corr., 402 F.3d 1136, 1142 (11th Cir.

2005) (failure to raise meritless arguments will not render

counsel’s performance ineffective).

(ECF No. 10 at 63). Because the Petitioner’s claims are refuted by the record,

Ground Thirteen is denied under the performance and prejudice prongs of

Strickland, 466 U.S. at 687–88.

d. 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 record refutes the Petitioner’s factual

allegations and precludes habeas relief. See id. Because the Court can

“adequately assess [the Petitioner’s] claim[s] without further factual

development[,]” she is not entitled to an evidentiary hearing. Turner v. Crosby,

339 F.3d 1247, 1275 (11th Cir. 2003).

e. 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, she 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). The

Court should issue a certificate of appealability only if the petitioner makes “a

substantial showing of the denial of a constitutional right.” See 28 U.S.C. §

(c)(2). To make such a showing, the petitioner must demonstrate that

“reasonable jurists” would find the correctness of the district court’s rulings

“debatable.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Petitioner does

not satisfy this burden, so the Court will not issue a certificate of appealability.

4. Conclusion

For the foregoing reasons, Petitioner Donna Pectol’s petition for writ of

habeas corpus under 28 U.S.C. § 2254 (ECF No. 1) is dismissed in part and

denied in part. Grounds One, Three, Four, Five, and Six are dismissed as

procedurally barred. Grounds Two, Seven, Eight, Nine, Ten, Eleven, Twelve,

and Thirteen are denied. A certificate of appealability is also denied. Because

there are no issues with arguable merit, an appeal would not be taken in good

faith, and thus, the Petitioner is not entitled to appeal in forma pauperis. The

Clerk is directed to close the case.

Done and ordered, in chambers, in Miami, Florida, on May 3, □□

Robert N. Scola, Jr.

United States District Judge

Copies, via U.S. Mail, to

Donna Pectol

D36965

Lowell Correctional Institution

Inmate Mail/Parcels

11120 NW Gainesville Road

Ocala, FL 34482

PRO SE