Roberts v. Secretary, Florida Department of Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

CASE NO. 20-60928-CIV-CANNON/HUNT

SAMUEL ROBERTS,

Petitioner,

v.

RICKY D. DIXON, SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.1

/

ORDER ACCEPTING REPORT AND

RECOMMENDATION [ECF No. 27] AND CLOSING CASE

THIS CAUSE comes before the Court on Magistrate Judge Patrick M. Hunt’s Report,

entered on May 3, 2023 (the “Report”) [ECF No. 27]. On May 8, 2020, Petitioner filed a Petition

for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, raising four grounds for relief

[ECF No. 1]. The Court referred Petitioner’s Section 2254 petition to Magistrate Judge Hunt for a

Report and Recommendation [ECF No. 10]. In his Report, Judge Hunt recommends that the

Petition be denied on the merits [ECF No. 27]. Petitioner timely filed Objections to the Report’s

recommendations [ECF No. 30]. Upon full review, and for the reasons stated in the Report, the

Court ACCEPTS Judge Hunt’s Report [ECF No. 27] and DENIES Petitioner’s Section 2254

petition [ECF No. 1] on the merits.

1 The original Respondent in this case, Mark S. Inch, retired as Secretary of the Florida Department

of Corrections on November 19, 2021. Accordingly, pursuant to Rule 25(d) of the Federal Rules

of Civil Procedure, Mr. Inch’s successor, Ricky D. Dixon, shall be substituted as the Respondent.

See Fed. R. Civ. P. 25(d).

LEGAL STANDARD

A district court may accept, reject, or modify a magistrate judge’s report and

recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to

which objections are made are accorded de novo review if those objections “pinpoint the specific

findings that the party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir.

2009); see also Fed. R. Civ. P. 72(b)(3). Any portions of the report and recommendation to which

no specific objections are made are reviewed only for clear error. See Thomas v. Arn, 474 U.S.

140, 150 (1985) (“It does not appear that Congress intended to require district court review of a

magistrate’s factual or legal conclusions, under a de novo or any other standard, when neither party

objects to those findings.”); Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006) (“Most

circuits agree that in the absence of a timely filed objection, a district court need not conduct a de

novo review, but instead must only satisfy itself that there is no clear error on the face of the record

in order to accept the recommendation.”) (internal quotation marks omitted).

BACKGROUND

This order assumes an understanding of the facts as outlined in Judge Hunt’s Report

[ECF No. 27]. An abbreviated version of the facts as relevant to this Order, and as supplemented

herein, is outlined below.

On September 18, 2014, Petitioner was convicted of selling cocaine within 1,000 feet of a

school and was sentenced to fifteen years’ imprisonment [ECF No. 14-1 pp. 46, 58]. Petitioner

timely appealed his conviction, and Florida’s Fourth District Court of Appeal (DCA) affirmed his

conviction in 2016. Roberts v. State, 212 So. 3d 373 (Fla. Dist. Ct. App. 2016). Petitioner

subsequently filed a motion for postconviction relief pursuant to Rule 3.850 of the Florida Rules

of Criminal Procedure, arguing the following: (1) Petitioner was deprived of his fundamental right

to due process and right to a fair trial because the trial court denied an additional continuance and

thus purportedly forced Petitioner to proceed to trial without adequate notice; (2) Petitioner’s trial

counsel was ineffective for failing to move for a mistrial when audio was not muted in a video

played before the jury—in violation of a previous court order—where a confidential informant

told a detective that the confidential informant purchased a “dime” of cocaine from Petitioner;

(3) Petitioner’s trial counsel was ineffective for failing to object to the prosecution’s alleged

bolstering of the confidential informant [ECF No. 14-2 pp. 127–160]; and (4) Petitioner’s failure

to move to mitigate his sentence following the Fourth DCA’s decision affirming his conviction

was not a failure that was made knowingly, intelligently or voluntarily. The trial court denied

Petitioner’s motion [ECF No. 14-2 pp. 195–200], after which the Fourth DCA affirmed in a

summary per curiam opinion [ECF No. 14-2 pp. 274–75]. Petitioner subsequently filed the instant

Petition raising the same four arguments he raised in his Rule 3.850 Petition [ECF No. 1]. Judge

Hunt recommends that the instant Petition be denied on the merits [ECF No. 27].

DISCUSSION

Upon review, and considering Petitioner’s generalized objections to the Report rehashing

and reincorporating the same arguments raised in the Section 2254 Petition and Reply

[ECF Nos. 1, 24, 30], the Court agrees with Judge Hunt’s conclusions and addresses each of

Petitioner’s grounds for relief below.

I. Petitioner’s Objections to Ground 1

As relates to Ground 1, Petitioner objects to Judge Hunt’s finding that Petitioner received

adequate notice before proceeding to trial. Petitioner argues that when the parties appeared before

the trial court on September 15, 2014, for a status hearing, defense counsel was unaware that the

case would proceed to trial that day and therefore was unprepared, necessitating a continuance to

allow defense counsel to prepare for trial. The Court agrees with Judge Hunt’s finding that

Petitioner was not, as he claims, deprived of adequate notice before proceeding to trial [ECF No.

27 p. 10 (“Petitioner’s claims that he was forced to trial without any notice is unsupported by the

record.”)].

It is well-settled law that “broad discretion must be granted trial courts on matters of

continuances; only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a

justifiable request for delay’ violates the [constitutional] right to the assistance of counsel.” Morris

v. Slappy, 461 U.S. 1, 11–12 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). “A

motion for continuance is addressed to the sound discretion of the trial court and will not be

disturbed . . . unless there is a showing that there has been an abuse of that discretion. . . . When

a denial of a continuance forms a basis of a petition for writ of habeas corpus, not only must there

have been an abuse of discretion, but it must have been so arbitrarily and fundamentally unfair that

it violates constitutional principles of due process. . . .” Hicks v. Wainwright, 633 F.2d 1146, 1148

(5th Cir. 1981) (internal citations omitted). Relatedly, according to the Eleventh Circuit, the right

to counsel of choice “is ‘not absolute’ but ‘must bend before countervailing interests involving

effective administration of the courts.’” United States v. Jimenez-Antunez, 820 F.3d 1267, 1270

(11th Cir. 2016) (quoting Birt v. Montgomery, 725 F.2d 587, 593 (11th Cir. 1984) (en banc)).

“There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to

violate due process.” Ungar, 376 U.S. at 589. “The answer must be found in the circumstances

present in every case, particularly in the reasons presented to the trial court at the time the request

is denied.” Id.

The state court record reveals no abuse of discretion on the part of the trial court in

proceeding to trial on September 18, 2014, much less any arbitrary or fundamentally unfair

deprivation of notice sufficient to warrant relief under 28 U.S.C. § 2254(d)(1). Petitioner knew as

early as May 29, 2014, that the trial court had scheduled his trial for August 7, 2014 [ECF No. 14-1

p. 17]. Starting on May 14, 2014, Petitioner was represented by Court appointed-counsel,

Mr. Conway [ECF No. 14-1 pp. 12–15]. Petitioner and Mr. Conway were present at calendar call

on August 7, 2014, during which the court notified them that they should expect trial to commence

during the trial period beginning August 18, 2014 [ECF No. 14-1 pp. 18–19]. On August 20, 2014,

Petitioner and Mr. Conway appeared before the trial court and were notified that trial was reset to

August 25, 2014 [ECF No. 14-1 pp. 20–21]. At 5:00 P.M on August 22, 2014—the Friday before

trial was set to commence—Mr. Lopez filed a notice of appearance on behalf of Petitioner and

moved for a continuance to a later date so that he would have time to prepare for trial [ECF No. 14-

1 pp. 29–31]. On August 25, 2014, Petitioner and Mr. Conway appeared for trial, and Mr. Lopez

appeared via a telephonic conference [ECF No. 15-1 pp. 2–3]. Mr. Lopez requested that the Court

delay trial until the morning of August 26, 2014, which the trial court denied [ECF No. 15-1 pp.

7–9]. The trial court instructed Petitioner that they would proceed with jury selection that day,

and that Petitioner could opt to have Mr. Conway continue to represent him or he could proceed

pro se [ECF No. 15-1 pp. 9–10]. Petitioner stated that he had fired Mr. Conway and that Mr. Lopez

was his attorney, but Mr. Conway participated in jury selection [ECF No. 15-1 pp. 10–15]. Then,

still during jury selection that day (August 25, 2014), Petitioner suffered a heart attack, requiring

the trial court to continue the trial again—setting the case for a status on September 15, 2014

[ECF No. 16-1 p. 2]. Fast forward to the morning of September 15, 2014, Mr. Lopez appeared on

behalf of Petitioner and was surprised by the trial court’s intention to proceed with trial that

afternoon[ECF No. 16-1 pp. 3–6]. Trial counsel protested and moved for an unspecified

continuance, which the trial court denied [ECF No. 16-1 pp. 6–14]. Despite this denial, trial did

not commence until three days later, on September 18, 2014 [ECF No. 17-1], giving Petitioner’s

trial counsel (Mr. Lopez) more time to prepare.

Based on the procedural history reflected above, Petitioner fails to establish that the trial

court’s denial of Petitioner’s motion to continue on September 15, 2014, “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.” 28 U.S.C. § 2254(d)(1). Distilled

down, Petitioner was represented by counsel for months and on the eve of trial decided to change

counsel; although the Court denied new counsel’s request for a continuance and commenced jury

selection, the case did not proceed to trial for another three-and-a-half weeks (August 25 –

September 18, 2014), giving Petitioner’s new counsel sufficient opportunity to prepare for the one-

day trial that ultimately resulted. Petitioner has not shown that the trial court’s denial of any further

continuance was contrary to or an unreasonable application of federal law. 28 U.S.C. § 2254(d)(1).

Therefore, over Petitioner’s objections, the Court adopts Judge Hunt’s recommendation to

deny the Petition on the merits with respect to Ground 1.

II. Petitioner’s Objections to Ground 2

In Ground 2, Petitioner objects to Judge Hunt’s conclusion that Petitioner’s trial counsel

was not ineffective when he did not move for a mistrial after the State played an inadmissible

hearsay portion of audio evidence for the jury. The audio in question was a statement from a

confidential informant that the informant purchased a “dime” of cocaine from Petitioner

[ECF No. 17-1 p. 83 (“But I got a dime from [Petitioner].”)]. Rather than move for a mistrial, Mr.

Lopez stated he wanted a curative instruction [ECF No. 17-1 pp. 84–85]. Petitioner argues that

the presentation of the inadmissible portion of the audio recording was so damaging that it

invalidated the whole trial, characterizing the trial court’s curative instruction as insufficient to

correct the State’s error [ECF No. 30 pp. 3–4].

The Court agrees with Judge Hunt’s conclusion that the State’s inadvertent presentation of

the inadmissible hearsay portion of the audio “was not so egregious as to invalidate the entire trial”

[ECF No. 27 p. 12]. Whether a particular event creates grounds for a mistrial is governed by

Florida law, and the Florida Supreme Court has long held that a motion for mistrial should be

granted only when an error is so prejudicial that it vitiates the entire trial. Salazar v. State,

991 So. 2d 364, 372 (Fla. 2008).2 Contrary to Petitioner’s assertions, the mistake at issue in this

ground for relief was not so prejudicial as to vitiate the entire trial. After the State played the

inadmissible portion of the audio for the jury, the trial court instructed the jury to disregard that

segment of the audio [ECF No. 17-1 p. 85 (The Court: “Ladies and gentlemen of the jury, please

ignore the portion of the audio on the tape tape where the person is heard saying, I got a dime from

[Petitioner]. Does everyone understand? Yes. Raise your hand if you do not. I am not seeing

any hands.”)]. See, e.g., Richardson v. Marsh, 481 U.S. 200, 211 (1987) (explaining that jurors

are generally presumed to follow the court’s instructions). Nothing from the record makes the

Court doubt that the jury failed to follow the trial court’s curative instruction.

Additionally, Petitioner offers no evidence of prejudice and only speculates that the jury

was affected by the inadmissible portion of the audio.3 “Strickland places the burden on the

2 The standard is similar under federal law. United States v. Newsome, 475 F.3d 1221, 1227 (11th

Cir. 2007) (“A mistrial should be granted if the defendant’s substantial rights are prejudicially

affected. This occurs when there is a reasonable probability that, but for the remarks, the outcome

of the trial would have been different.”).

3 It is likely that some jurors did not hear the inadmissible portion of the audio. The jury inquiry

form shows a request to review the “video/audio again” while “stand[ing] closer to [the] speakers”

because “some jurors could[ not] hear [the recording] clearly” [ECF No. 14-1 p. 44].

defendant, not the State, to show a ‘reasonable probability’ that the result would have been

different” had counsel performed as Petitioner now argues he should have. Wong v. Belmontes,

558 U.S. 15, 27 (2009) (quoting Strickland, 466 U.S. at 694). Petitioner fails to meet this burden

not only because he offers speculative claims of prejudice, see Hill v. Lockhart, 474 U.S. 52, 60

(1985) (explaining that conclusory allegations of ineffective assistance of counsel are insufficient

to prove Strickland prejudice), but also because of other highly probative evidence offered by the

prosecution at trial establishing Petitioner’s guilt. Such evidence included: (i) Detective Santiago’s

testimony that he saw Petitioner at the time of the drug transaction [ECF No. 17-1 pp. 34, 38, 82];

(ii) Detective Santiago’s ability to make an in-court identification of Petitioner as the person who

conducted the drug transaction with the confidential informant [ECF No. 17-1 p. 38]; (iii) the

confidential informant’s identification of Petitioner on the admissible portion of the audio

[ECF No. 17-1 pp. 71, 74]; and (iv) lab results showing that the substance Petitioner gave to the

confidential informant was cocaine [ECF No. 17-1 pp. 103, 116]. Petitioner needed to make more

than speculative claims of juror impropriety in disregarding the curative instruction to show that

there was a reasonable probability that the verdict would have been different had the audio not

been played. Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (“To justify a post-trial

hearing involving the trial’s jurors, the defendant must do more than speculate; he must show clear,

strong, substantial and incontrovertible evidence . . . that a specific, non-speculative impropriety

has occurred.” (internal quotation marks omitted)).

Therefore, over Petitioner’s objections, the Court adopts Judge Hunt’s recommendation to

deny the Petition on the merits as relates to Ground 2.

III. Petitioner’s Objections to Ground 3

As relates to Ground 3, Petitioner objects to Judge Hunt’s conclusion that the State’s

questioning during redirect of Detective Santiago and the State’s comments during closing

argument did not amount to improper bolstering of the confidential informant. Other than stating

that he “objects to the magistrate’s findings and conclusions,” Petitioner does not present an

argument to support his objection here [ECF No. 30 pp. 4–5].

The Court agrees with Judge Hunt’s conclusion that Petitioner’s trial counsel was not

deficient as alleged in this ground. The Court also agrees with Judge Hunt that the State’s

questioning of Detective Santiago and comments during closing argument did not amount to

improper bolstering of the confidential informant [ECF No. 27 pp. 16–17]. In Florida, “[w]ide

latitude is permitted in arguing to a jury. Logical inferences may be drawn, and counsel is allowed

to advance all legitimate arguments.” Breedlove v. State, 413 So. 2d 1, 8 (Fla. 1982) (internal

citations omitted). Florida’s rule is essentially the same as the federal due process standard. “[A]

prosecutor may argue both facts in evidence and reasonable inferences from those facts.” Tucker

v. Kemp, 762 F.2d 1496, 1506 (11th Cir. 1985) (citing Alvarez v. Estelle, 531 F.2d 1319, 1325 (5th

Cir. 1976) cert. denied, 429 U.S. 1044 (1977)). “When the prosecutor voices a personal opinion

but indicates this belief is based on evidence in the record,” the comment is not improper. United

States v. Granville, 716 F.2d 819, 822 (11th Cir. 1983). A prosecutor improperly bolsters his

witness when “the government places its prestige behind the witness, or when the government

suggests that information not presented to the jury actually supports the witness’s credibility.”

United States v. Reeves, 742 F.3d 487, 502 (11th Cir. 2014).

Petitioner’s argument fails on the merits for two reasons. First, the purported improper

bolstering in the State’s closing argument was not an example of the State “plac[ing] its prestige

behind the witness” id.; rather, the statement was part of the State’s summary of the evidence that

had already been presented to the jury. Indeed, the prosecution merely discussed the testimony

that an officer provided during the trial [ECF No. 17-1 pp. 166–67 (“This is where you as jurors

come together and use your common sense. You didn’t hear from an informant because the

informant is confidential. And the reason they are confidential is so they can continue to remain

confidential. So what did the government do? Well, they gave you an officer who said, I searched

her. I gave her $10. She has been proven to be reliable. She went, came back. End of story.”)

Further, the trial transcript shows that when Detective Santiago characterized the confidential

informant’s statement as being “completely consistent with what took place,” trial counsel did

object to Detective Santiago’s statement as improper bolstering—an objection the trial court

overruled [ECF No. 17-1 p. 104]. Because trial counsel had already unsuccessfully made this

objection during the prosecution’s case in chief, he was not ineffective for not renewing the

objection during closing if he did not think it would be successful. Brewster v. Hetzel, 913 F.3d

1042, 1056 (11th Cir. 2019) (“Defense counsel . . . need not make meritless motions or lodge futile

objections.”). Even if Petitioner had not previously objected to the characterization on which the

State based its summary of the evidence, Petitioner’s trial counsel focused much of his closing

argument on the confidential informant’s credibility—or lack thereof [ECF No. 17-1 p. 174]. So,

any improper bolstering that may or may not have occurred during the State’s closing argument

was adequately mitigated by trial counsel’s closing argument.

Second, even if an error did occur concerning this ground for relief, it was harmless in light

of the overwhelming evidence of Petitioner’s guilt previously mentioned herein. For a federal

court to grant habeas relief, it must satisfy the prejudicial effect tests from both Brecht v.

Abrahamson, 507 U.S. 619 (U.S. 2006) and the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA). Brown v. Davenport, 142 S. Ct. 1510 (2022). Here, Petitioner fails to satisfy the

Brecht prejudicial effect standard because there is not “more than a reasonable possibility that the

error contributed to the conviction or sentence.” Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301,

1313 (11th Cir. 2012) (citing Mason v. Allen, 605 F.3d 1114, 1123 (11th Cir. 2010)). In other

words, even if improper bolstering occurred, this error did not have a “substantial and injurious

effect or influence” on the jury’s verdict because there was “overwhelming” evidence supporting

Petitioner’s conviction. Mansfield, 679 F.3d at 1313.4

Therefore, the Court adopts Judge Hunt’s recommendation to deny the Petition as relates

to Ground 3 on the merits over Petitioner’s objections.

IV. Petitioner’s Objections to Ground 4

In Ground 4, Petitioner objects to Judge Hunt’s conclusion that Petitioner’s unknowing

failure to file a timely Rule 3.800(c) motion to mitigate sentence does not amount to a violation or

a contradiction of federal law [ECF No. 27 pp. 17–18]. Petitioner’s argument on this point is that

he would have filed such a motion had his counsel informed him of his ability to do so and the

trial court might have granted it [ECF No. 1 pp. 40–44]. The Court agrees with Judge Hunt’s

determination that this ground for relief is meritless.

Florida Rule of Criminal Procedure 3.800(c) states:

A court may reduce or modify . . . a legal sentence imposed by it, sua sponte, or

upon motion filed, within 60 days after the imposition. . . . If review is upon motion,

the trial court shall have 90 days from the date the motion is filed or such time as

agreed by the parties or as extended by the trial court to enter an order ruling on the

motion. This subdivision shall not be applicable to those cases . . . in which the

trial judge has imposed the minimum mandatory sentence or has no sentencing

discretion.

Fla. R. Crim. P. 3.800(c).

4 In light of the Court’s determination that Petitioner fails to satisfy Brecht, the Court need not go

further and explore prejudice under AEDPA.

The Eleventh Circuit has acknowledged that a Florida prisoner generally cannot appeal the

denial of a Rule 3.800(c) motion, and that “no legal standard exists governing the outcome of a

Rule 3.800(c) motion.” Rogers v. Sec’y, Dep’t of Corr., 855 F.3d 1274, 1278 (11th Cir. 2017).

Unlike Rule 3.800(a) motions, which directly challenge the legality of a sentence, Rule 3.800(c)

motions are requests for leniency. Baker v. McNeil, 439 F. App’x 786, 789 (11th Cir. 2011)

(“Florida law delineates clearly its motions in separate rules—Rule 3.800(a) seeks relief directed

to the legality of the sentence and Rule 3.800(c) requests only pleas for mercy”); see also Childers

v. State, 972 So. 2d 307, 309 (Fla. Dist. Ct. App. 2008) (“A rule 3.800(c) motion is directed to a

circuit court’s absolute discretion, and the court’s ruling cannot be appealed.”). Against this

backdrop, Rule 3.800(c) motions appear to be an extraordinary remedy entirely dependent on a

judge’s discretion. Furthermore, contrary to Petitioner’s assertions, the mere fact that Petitioner’s

trial counsel could have filed a Rule 3.800(c) motion does not mean that Petitioner was entitled to

a proceeding on such a motion.

Therefore, the Court adopts Judge Hunt’s recommendation to deny the Petition on the

merits with respect to Ground 4.

V. Petitioner’s Request for a Certificate of Appealability

Petitioner’s request for a Certificate of Appealability is denied. A prisoner seeking to

appeal a district court’s final order denying his petition for writ of habeas corpus has no absolute

entitlement to appeal but must obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1);

Harbison v. Bell, 556 U.S. 180 (2009). District courts 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. § 2253(c)(2). “Where a district court has rejected a petitioner’s constitutional claims on

the merits,” “the petitioner must demonstrate that reasonable jurists would find the district court’s

CASE NO. 20-60928-CIV-CANNON/HUNT

assessment of the constitutional claims debatable or wrong.” See Slack v. McDaniel, 529 U.S.

473, 484 (2000). Reasonable jurists would not find Judge Hunt’s rulings debatable. The Court,

thus, declines to issue a certificate of appealability.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED as follows:

1. Magistrate Judge Hunt’s Report and Recommendation [ECF No. 27] is ACCEPTED.

2. Petitioner’s Section 2254 Petition [ECF No. 1] 1s DENIED on the merits. No certificate

of appealability shall issue.

3. The Clerk is directed to CLOSE this case.

4. Final Judgment will follow in a separate order.

DONE AND ORDERED in chambers at Fort Pierce, Florida, this 14h day of June 2023.

UNITED STATES DISTRICT JUDGE

ce: Counsel of record

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