“The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.”
How later courts described this case
- “The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.”
- recognizing that “failing to raise or adequately pursue [meritless issues on appeal] cannot constitute ineffective assistance of counsel”
- prejudice results only if “the neglected claim would have a reasonable probability of success on appeal”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ROBERT EARL HAYES,
Petitioner,
v. Case No. 3:21-cv-435-TJC-MCR
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner Robert Earl Hayes, an inmate of the Florida penal system,
initiated this action in the Northern District of Florida by filing a pro se Petition
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. See Doc. 1. The action
was then transferred to this Court. See Doc. 3. Petitioner is proceeding on an
Amended Petition. See Doc. 12. He challenges a state court (Duval County,
Florida) judgment of conviction for three counts of robbery and one count of
possession of ammunition by a convicted felon. Petitioner is serving a life term
of incarceration as a Prison Releasee Reoffender. Respondents filed a Response.
See Doc. 14 (Resp.).1 Petitioner replied. See Doc. 20. This case is ripe for review.2
II. Governing Legal Principles
A. Standard Under AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner’s federal habeas corpus petition. See Ledford v.
Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016), cert. denied, 137 S. Ct. 1432 (2017). “‘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.’” Id.
(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the petitioner’s claims on the merits. See
Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The
1 Attached to the Response are various exhibits. The Court refers to the exhibits
as “Resp. Ex.”
2 “In a habeas corpus proceeding, the burden is on the petitioner to establish
the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299,
1318 (11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060
(11th Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court
must consider whether such a hearing could enable an applicant to prove the petition’s
factual allegations, which, if true, would entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the
record refutes the applicant’s factual allegations or otherwise precludes habeas relief,
a district court is not required to hold an evidentiary hearing.” Id. The Court finds that
“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275
(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.
2
state court need not issue an opinion explaining its rationale for the state court’s
decision to qualify as an adjudication on the merits. See Harrington v. Richter,
562 U.S. 86, 100 (2011). When the state court’s adjudication on the merits is
unaccompanied by an explanation,
the federal court should “look through” the unexplained
decision to the last related state-court decision that
does provide a relevant rationale. It should then
presume that the unexplained decision adopted the
same reasoning. But the State may rebut the
presumption by showing that the unexplained
affirmance relied or most likely did rely on different
grounds than the lower state court’s decision, such as
alternative grounds for affirmance that were briefed or
argued to the state supreme court or obvious in the
record it reviewed.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
When a state court has adjudicated a petitioner’s claims on the merits, a
federal court cannot grant habeas relief unless the state court’s adjudication of
the claim was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States,” or “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)(1),
(2). A state court’s factual findings are “presumed to be correct” unless rebutted
“by clear and convincing evidence.” Id. § 2254(e)(1).
AEDPA “imposes a highly deferential standard for
evaluating state court rulings” and “demands that
3
state-court decisions be given the benefit of the doubt.”
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal
quotation marks omitted). “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). “It bears
repeating that even a strong case for relief does not
mean the state court’s contrary conclusion was
unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,
538 U.S. 63, 75 (2003)). The Supreme Court has
repeatedly instructed lower federal courts that an
unreasonable application of law requires more than
mere error or even clear error. See, e.g., Mitchell v.
Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at
75 (“The gloss of clear error fails to give proper
deference to state courts by conflating error (even clear
error) with unreasonableness.”); Williams v. Taylor,
529 U.S. 362, 410 (2000) (“[A]n unreasonable
application of federal law is different from an incorrect
application of federal law.”).
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal
citations modified).
B. Ineffective Assistance of Trial and Appellate Counsel
“The Sixth Amendment guarantees criminal defendants effective
assistance of counsel. That right is denied when a defense counsel’s
performance falls below an objective standard of reasonableness and thereby
prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)
(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington,
466 U.S. 668, 687 (1984)). To establish ineffective assistance, a person must
4
show: (1) counsel’s performance was outside the wide range of reasonable,
professional assistance; and (2) counsel’s deficient performance prejudiced the
challenger in that there is a reasonable probability that the outcome of the
proceeding would have been different absent counsel’s deficient performance.
Strickland, 466 U.S. at 687.
This two-part Strickland standard also governs a claim of ineffective
assistance of appellate counsel. Overstreet v. Warden, 811 F.3d 1283, 1287
(11th Cir. 2016). When considering deficient performance by appellate counsel,
a court must presume counsel’s performance was
“within the wide range of reasonable professional
assistance.” Id. at 689, 104 S. Ct. 2052. Appellate
counsel has no duty to raise every non-frivolous issue
and may reasonably weed out weaker (albeit
meritorious) arguments. See Philmore v. McNeil, 575
F.3d 1251, 1264 (11th Cir. 2009). “Generally, only
when ignored issues are clearly stronger than those
presented, will the presumption of effective assistance
of counsel be overcome.” Smith v. Robbins, 528 U.S.
259, 288 (2000) (quoting Gray v. Greer, 800 F.2d 644,
646 (7th Cir.1986)); see also Burger v. Kemp, 483 U.S.
776, 784 (1987) (finding no ineffective assistance of
counsel when the failure to raise a particular issue had
“a sound strategic basis”).
Id.; see also Owen v. Sec’y, Dep’t of Corr., 568 F.3d 894, 915 (11th Cir. 2009)
(recognizing that “failing to raise or adequately pursue [meritless issues on
appeal] cannot constitute ineffective assistance of counsel”).
5
To satisfy the prejudice prong of an ineffective assistance of appellate
counsel claim, a petitioner must show a reasonable probability that “but for the
deficient performance, the outcome of the appeal would have been different.”
Black v. United States, 373 F.3d 1140, 1142 (11th Cir. 2004); see also Philmore
v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir. 2009) (prejudice results only if “the
neglected claim would have a reasonable probability of success on appeal”).
Also,
[a] reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id., at 694, 104
S. Ct. 2052. It is not enough “to show that the errors
had some conceivable effect on the outcome of the
proceeding.” Id., at 693, 104 S. Ct. 2052. Counsel’s
errors must be “so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id., at
687, 104 S. Ct. 2052.
Richter, 562 U.S. at 104. As such, “[a]ppellate counsel might fail to identify a
mediocre or obscure basis for reversal without being ineffective under
Strickland.” Overstreet, 811 F.3d at 1287 (citation omitted).
For both claims of ineffective assistance of trial counsel and appellate
counsel, there is no “iron-clad rule requiring a court to tackle one prong of the
Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.
2010). Since both prongs of the two-part Strickland test must be satisfied to
show a Sixth Amendment violation, “a court need not address the performance
prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id.
6
(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in
Strickland: “If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so, that course should
be followed.” 466 U.S. at 697.
Further, “[t]he question is not whether a federal court believes the state
court’s determination under the Strickland standard was incorrect but whether
that determination was unreasonable - a substantially higher threshold.”
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If
there is “any reasonable argument that counsel satisfied Strickland’s
deferential standard,” then a federal court may not disturb a state-court
decision denying the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting
Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,
371 (2010). “Reviewing courts apply a ‘strong presumption’ that counsel’s
representation was ‘within the wide range of reasonable professional
assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th
Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this presumption is
combined with § 2254(d), the result is double deference to the state court ruling
on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans
v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc)
7
(Jordan, J., concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.
2004).
III. Factual History
The following facts are taken from Petitioner’s initial brief filed on direct
appeal:
Hayes was charged with three counts of armed
robbery and one count of possession of ammunition by
a convicted felon. [Count 1 alleged that Petitioner took
money from a McDonald’s restaurant;] Count 2 alleged
that he took an Apple I-phone from Andrew Devoe[;]
and Count 3 alleged that he took a Samsung Galaxy
from Michael Simon.
Jones, a shift manager at McDonald’s, was
working along with Briteny Brown and Michael Simon.
The restaurant entrance was closed but one could order
through the drive-through. Andrew Devoe, an
employee who was not working, approached the drive-
through on foot. He was talking on his Apple I-phone.
Jones and Devoe were talking when two men
approached. The short one came through the window
first, they pushed Devoe in and the taller one came in
afterwards. The short one was armed with a black gun
and the taller one had a silver gun. The taller one took
Simon and Devoe to another part of the restaurant
while the shorter one took Jones and Brown to the
office. Brown opened the safe. After the shorter one had
the money, they told Brown to open the back door.
Michael Simon walked out of the crew room at
McDonald’s and saw that it was a robbery. The taller of
the robbers ordered h[im] and Devoe to get on the
ground. The shorter robber went into the office with
Jones and Brown. Simon gave his Samsung Galaxy
phone to the robber because he was afraid of the gun.
8
An Apple I-phone was taken from Devoe.
Without objection, Officer Tirri testified that
Devoe advised that his I-phone had been stolen. He
utilized a tracking application for I-phones and
discovered that the phone was located at the Suburban
Lodge on Phillips Highway.
Officer Thompson was given the name Nix
through investigation. He learned that Nix might be
tied to room 355 of the Suburban Lodge. When he
knocked on the door, Hayes answered. Hayes told him
Nix was in the bathroom and allowed him into the
room. Thompson observed two cell phones on the side
table. One was a I-phone which matched the
description he had been given. He turned on the Galaxy
phone and had the victim phone it. It rang.
Ammunition [was] found in two guns found in a
shoebox with Nix[’s] identification which was found
underneath one of the twin beds in the hotel room.
Nix had pleaded guilty to three counts of armed
robbery, robbing McDonald’s, Devoe, and Simon. He
said he and Hayes robbed the McDonald’s. Exhibit 14
was the handgun Hayes had. Once inside the
McDonald’s, they did not stay together. Hayes went to
where the safe was. Nix watched the two males and
took their cell phones.
Hayes moved for a judgment of acquittal as to the
robbery of the cell phones because there was no
evidence to establish that Hayes was a principal to
Nix’[s] robbery of the phones. The court denied the
motion. Hayes also renewed his motion for judgment of
acquittal for counts 2 and 3, which was denied.
Hayes was found guilty of the three robbery
counts while carrying a deadly weapon. Following a
separate proceeding, he was found guilty of possession
9
of ammunition by a convicted felon.
Hayes was sentenced to life as a PRR on counts
1, 2, and 3 and fifteen years on count 4.
Resp. Ex. C at 2-4 (record citations omitted).
IV. The Amended Petition
a. Ground One
Petitioner alleges his appellate attorney was ineffective for failing to raise
on direct appeal a claim that the trial court erred in overruling trial counsel’s
objection to the state’s use of a peremptory challenge to strike juror #12, a black
female. Doc. 12 at 4-5. According to Petitioner, in response to trial counsel’s
objection, the state explained juror #12, Ms. Tellas, advised that she knew
someone who was robbed at gunpoint and that her uncle was incarcerated for a
robbery conviction. Id. at 5. Petitioner contends the trial court did not properly
conduct the requisite three-step analysis for race-based peremptory challenges
under Batson v. Kentucky, 476 U.S. 79 (1986), and erred in finding that no other
jurors gave comparable answers because jurors #3 and #7, who were both white
females, provided similar statements but were not challenged by the state. Id.
To add context to Petitioner’s claim, the Court summarizes the events
that give rise to this allegation. During jury selection, the following exchange
occurred between the state, Mr. Milo, and prospective juror #3, Ms. Bruton:
MR. MILO: [Ms. Bruton,] [y]ou also mentioned that you
10
knew somebody or had a close friend or family member
that was the victim of a crime?
PROSPECTIVE JUROR: Yes.
MR. MILO: What type of crime?
PROSPECTIVE JUROR: A home invasion.
MR. MILO: Here in Duval County?
PROSPECTIVE JUROR: Yes.
MR. MILO: How long ago?
PROSPECTIVE JUROR: About two years.
MR. MILO: How is that person related to you or how do
you know the person?
PROSPECTIVE JUROR: It was myself.
MR. MILO: Was anyone ever caught or arrested?
PROSPECTIVE JUROR: No, not that I know of.
MR. MILO: Did the Jacksonville Sheriff's Office
investigate that crime?
PROSPECTIVE JUROR: Yes.
MR. MILO: Were you satisfied with their investigation?
PROSPECTIVE JUROR: Yes.
MR. MILO: You also mentioned that you knew
somebody that was arrested or accused of a crime?
PROSPECTIVE JUROR: Yes.
11
MR. MILO: What type of crime?
PROSPECTIVE JUROR: My uncle had a DUI and then
another close relative got in fights.
. . . .
MR. MILO: Okay. From what you know about those
incidents do you feel like they were treated fairly?
PROSPECTIVE JUROR: Yes.
MR. MILO: Anything about those incidents that would
affect your ability to be fair and impartial in this case?
PROSPECTIVE JUROR: No.
MR. MILO: Thank you.
Resp. Ex. B at 88-90.
The following exchange occurred between the state and prospective juror
#7, Ms. Peters:
MR. MILO: You also indicated that you knew somebody
that was a victim of a crime?
PROSPECTIVE JUROR: Uh-huh. My father-in-law.
Their house was broken into when they weren’t there.
A lot of stuff was stolen.
MR. MILO: Here in Duval?
PROSPECTIVE JUROR: Yes.
MR. MILO: How long ago?
PROSPECTIVE JUROR: It was probably about three
years ago.
12
MR. MILO: Were you satisfied with the investigation?
PROSPECTIVE JUROR: Pretty much. And my vehicle
was robbed about three times at my complex.
MR. MILO: Just parked outside?
PROSPECTIVE JUROR: Yeah.
MR. MILO: Anybody ever caught for those car
burglaries?
PROSPECTIVE JUROR: No. I mean, I didn’t hear
anything of it. It was just a report that they made.
MR. MILO: Anything about those burglaries affect your
ability to be fair and impartial in this case?
PROSPECTIVE JUROR: No.
MR. MILO: You also indicated that you have a close
friend and I think a family member that was accused
or arrested for a crime?
PROSPECTIVE JUROR: Well, that friend got kicked
out and I don’t really associate with him anymore. . . .
MR. MILO: All right. Well, let’s talk about the close
friend first, though, if you don’t mind.
PROSPECTIVE JUROR: Was.
MR. MILO: Was former close friend. What type of
crime?
PROSPECTIVE JUROR: I believe it was for him
having drugs on him or something like that. I think he
still has a warrant.
13
MR. MILO: Okay. Do you feel he was treated fairly?
PROSPECTIVE JUROR: Yeah.
MR. MILO: Okay. Anything about that affect your
ability to be fair and impartial?
PROSPECTIVE JUROR: No.
MR. MILO: I got that feeling, but I had to ask. And then
your family member, you said it was your sister?
PROSPECTIVE JUROR: My sister, uh-huh.
MR. MILO: What type of crime?
PROSPECTIVE JUROR: Her and her boyfriend, petty
theft and cashing checks.
MR. MILO: So it was your sister’s boyfriend?
PROSPECTIVE JUROR: She was cashing the checks
and he was part of it. She had (indiscernible).
MR. MILO: Do you feel like she was treated fairly?
PROSPECTIVE JUROR: Yes.
MR. MILO: Okay. Anything about that affect your
ability to be fair and impartial in this case?
PROSPECTIVE JUROR: No.
MR. MILO: Thank you.
Resp. Ex. B at 100-02.
The record shows the state and prospective juror #12, Ms. Tellas, had the
following exchange:
14
MR. MILO: [Y]ou indicated that you knew somebody
that was the victim of a crime?
PROSPECTIVE JUROR: Yeah. He is like a cousin, but
a close friend I guess you could say. He got robbed at
gunpoint while coming from our house.
MR. MILO: So that was obviously here in Duval
County?
PROSPECTIVE JUROR: Yes. And it was, like,
probably six months ago.
MR. MILO: Was the person ever caught?
PROSPECTIVE JUROR: Yes, they were eventually
caught.
MR. MILO: Is that case still pending?
PROSPECTIVE JUROR: No.
MR. MILO: Are you satisfied with the Sheriff's Office
investigation?
PROSPECTIVE JUROR: I suppose he is.
MR. MILO: All right. And from what you know about it
--
PROSPECTIVE JUROR: He’s fine.
MR. MILO: All right. Moving on. You also indicated
that you knew somebody that was accused or arrested
for a crime?
PROSPECTIVE JUROR: Yes. My uncle is serving.
MR. MILO: Your uncle is serving time?
15
PROSPECTIVE JUROR: Yeah.
MR. MILO: For what type of crime?
PROSPECTIVE JUROR: Robbery, I believe.
MR. MILO: Was it committed here in Duval County?
PROSPECTIVE JUROR: Yes.
MR. MILO: How long ago?
PROSPECTIVE JUROR: Maybe 14 -- 16 years ago.
MR. MILO: From what you know about it, do you think
he was treated fairly?
PROSPECTIVE JUROR: Yeah, I guess.
MR. MILO: Yeah, you guess. There was a hesitation.
Why the hesitation and why the “yeah, I guess”?
PROSPECTIVE JUROR: Because the reason is
because he had people to, like, try to reopen his case to
look into it again because he was charged -- he said he
was charged with the 10-20 gun law. So I don’t know. I
was still in school then so I don’t really have a clue as
to what he’s talking about.
MR. MILO: Fair enough. Let me ask you this. Do you
think that you would be able to set that aside and just
listen to the facts and evidence in this case?
PROSPECTIVE JUROR: Sure.
MR. MILO: Okay. Thank you, ma’am.
PROSPECTIVE JUROR: You’re welcome.
Resp. Ex. B at 108-11.
16
After questioning, the trial court gave each party ten peremptory strikes.
Id. at 188. The following exchange then occurred:
MR. MILO: State strikes juror 12, Ms. Tellas.
THE COURT: The State strikes juror number 12, Ms.
Tellas. That takes us to 13, Ms. Weglicki. Defense.
MR. BURTON: Defense would request a race-neutral
reason for striking Ms. Tellas, juror number 12. She’s
an African-American female.
THE COURT: State.
MR. MILO: I believe Ms. Tellas stated that she knew
somebody that was robbed at gunpoint six months ago.
Her uncle is also serving time for a robbery. When I
asked her whether she was satisfied and thought he
was treated fairly she hesitated and stated, yeah, I
guess, sure.
MR. BURTON: Your Honor, she also said that she
could be fair and impartial to both the questioning
regarding the uncle and I did clarify the questioning
about the cousin as well.
THE COURT: You did. And she did. However -- and I
would certainly deny it if it was a challenge for cause.
However, on a peremptory the standard really well,
there’s two standards.
One, is it a racially neutral reason? Is it facially
sufficient? Has the State given an acceptable race
neutral reason? I find that they have in this case.
Secondly, I don’t find to this point of the panel that
there are any other jurors similarly situated of any race
who gave answers similarly to Ms. Tellas that the State
has not struck.
17
So for those reasons I'll deny the defendant’s objection
to the challenge for cause.
So that takes us to -- excuse me -- challenge for
preemptory reason.
Thank you for correcting me.
That takes us to juror number 13, Ms. Weglicki.
Defense, any strikes?
MR. BURTON: Defense would accept the jury, Your
Honor.
THE COURT: State?
MR. MILO: State accepts.
THE COURT: All right. Our panel will be – we’ll select
our alternate in a minute -- will be two, three, seven,
eight, nine and thirteen, correct? Is that right?
MR. BURTON: That’s correct, Your Honor. It’s
accepted subject to our objection.
THE COURT: Understood.
State?
MR. MILO: Yes, sir.
THE COURT: . . . Let’s just go with one alternate,
number 14, Ms. Barton.
State, is she okay?
MR. MILO: State accepts.
18
THE COURT: Defense?
MR. BURTON: Defense accepts, Your Honor.
Resp. Ex. B at 190-92.
Following Petitioner’s convictions and direct appeal, he filed a petition
with the First District Court of Appeal raising this current claim of ineffective
assistance of appellate counsel. Resp. Ex. G at 3. The First DCA denied the
petition “on the merits.” Resp. Ex. H.
Thus, the Court addresses Petitioner’s ineffective assistance of appellate
counsel claim under the deferential standard for federal court review of state
court adjudications. In doing so, the Court gives considerable deference to
appellate counsel’s strategic decision of selecting the issue or issues to raise on
appeal. The danger of raising weaker issues in a “kitchen-sink” approach is that
it detracts from the attention an appellate court can devote to the stronger
issues and reduces appellate counsel’s credibility. See Miller v. Keeney, 882
F.2d 1428, 1434 (9th Cir. 1989); see also McBride v. Sharpe, 25 F.3d 962, 973
(11th Cir. 1994). Thus, effective appellate attorneys “will weed out weaker
arguments, even though they may have merit.” Philmore, 575 F.3d at 1264; see
also Overstreet, 811 F.3d at 1287. Appellate counsel’s failure to raise a meritless
or weaker issue does not constitute deficient performance. See Brown v. United
States, 720 F.3d 1316, 1335 (11th Cir. 2013) (citing Jones v. Barnes, 463 U.S.
19
745, 754 (1983)); Owen, 568 F.3d at 915. Prejudice results only if “the neglected
claim would have a reasonable probability of success on appeal.” Philmore, 575
F.3d at 1264-65.
In Sneed v. Florida Department of Correction, 496 F. App’x 20, 26 (11th
Cir. 2012), the Eleventh Circuit discussed the purviews of a Batson challenge:
Batson requires a court to undertake a three-step
analysis to evaluate equal protection challenges to a
prosecutor’s use of peremptory challenges. 476 U.S. at
96-98; McGahee v. Alabama Dep’t of Corr., 560 F.3d
1252, 1256 (11th Cir. 2009). First, a defendant must
make a prima facie showing of purposeful
discrimination based upon a prohibited ground.
Batson, 476 U.S. at 96-97. A prima facie case is
established where a defendant shows that “he is a
member of a cognizable racial group and that the
relevant circumstances raise an inference that the
prosecution has exercised peremptory challenges to
remove from the venire members of his race.” Bui v.
Haley, 321 F.3d 1304, 1313 (11th Cir. 2003) (quotation
and alterations omitted). Upon such a showing, the
burden of proof shifts to the State to provide a race-
neutral explanation for excluding the jurors. Batson,
476 U.S. at 97. Finally, in light of the parties’
submissions, the trial court has the duty to determine
if the defendant established purposeful discrimination.
Id. at 98.
Sneed, 496 F. App’x at 26. Here, the record shows that following trial counsel’s
objection, the state and the trial court complied with the requirements of
Batson, and thus appellant counsel cannot be deficient for failing to make a
meritless argument on direct appeal. Also, and likely of more import, Petitioner
20
has neither shown that had appellate counsel made this argument, the outcome
of his appeal would have been different, nor has he shown a reasonable
probability that had Ms. Tellas served on his jury, the outcome of his trial would
have been different. See, e.g., Price, 548 F. App’x at 576 (holding that the
petitioner was not prejudiced by trial counsel’s failure to make Batson objection,
because “‘there is no evidence that an African American juror would have seen
the evidence any differently than the white jurors seated on the jury.’ . . . As the
district court noted, race was not the central theme of this case, and did not play
a significant role.”); Sneed, 496 F. App’x at 27 (holding that the petitioner failed
to demonstrate prejudice under Strickland because he “has not shown that, had
counsel objected, his challenge would have been successful, nor is it clear that
the second prospective black juror being on the jury would have carried a
reasonable probability of changing the outcome of the trial.”) (citation omitted).
As such, upon thorough review of the record and the applicable law, the
Court finds that the state court’s decision to deny Petitioner’s claim was neither
contrary to nor an unreasonable application of Strickland, and it was not based
on an unreasonable determination of the facts given the evidence presented to
the state court. See 28 U.S.C. § 2254(d). Ground One is denied.
b. Ground Two
Petitioner alleges his appellate counsel was ineffective for failing to raise
21
a claim on direct appeal challenging the trial court’s denial of his motion to
suppress evidence obtained during an unlawful search of his hotel room. Doc.
12 at 6.
For context, the Court summarizes the relevant record evidence. Before
trial, trial counsel moved to suppress all evidence seized under a search warrant
and evidence of all observations derived from the illegal entry into Petitioner’s
hotel room without a warrant. Resp. Ex. A at 36. The trial court conducted a
hearing on the motion, during which it heard testimony from Officer Kyle
Thompson; Detective J.J. Hopely, Jr.;3 and Petitioner. Id. at 280-345. Officer
Thompson testified that on September 29, 2014, he responded to a call to go to
the Suburban Lodge which was the possible location of the cellphones of one
victim of the robbery. Id. at 282. After receiving more information, Officer
Thompson learned the room number of co-defendant Nix. Id. at 282-83.
Thompson knocked on the door and Petitioner answered and advised him that
Nix was also an occupant of the room. Id. at 283. According to Thompson,
Petitioner then let Thompson come into the hotel room to speak with Nix but
later denied Thompson consent to conduct a search. Id. at 284. Thompson
testified that he then began to exit the hotel room when he noticed two
3 The transcript of the hearing on the motion to suppress refers to this witness
has “J.J. Copely, Jr.,” but the trial transcript clarifies that this witness’s name is “J.J.
Hopely, Jr.” Resp. Ex. B at 325.
22
cellphones sitting on the coffee table in plain view. Id. at 285. When Thompson
asked about the phones, Petitioner denied ownership of the phones and advised
that he had never seen the cellphones before. Id. Thompson then radioed
another officer to call one cellphone, and after Thompson turned the phone on,
it rang. Id. Thompson then exited the hotel room. Id.
Detective Hopely testified at the hearing that he arrived at the hotel to
obtain information for a search warrant. Id. at 291. While officers remained
outside the hotel room and kept it under surveillance, Hopely got a warrant and
participated in the search of the hotel room. Id. at 292-95. During the search,
officers recovered, inter alia, a firearm. Id. at 294. Trial evidence later revealed
that officers also recovered clothing matching the clothing Petitioner wore
during the robbery, two Bank of America zipper deposit bags taken from
McDonald’s safe, and two cellphones taken from the victims of the robbery.
Resp. Ex. B at 334-35.
Petitioner testified at the hearing that when Thompson knocked on his
hotel room door, he opened it and Thompson asked if anyone else was inside.
Id. at 300. Petitioner testified that he had a female friend with him and advised
Thompson that his roommate, Nix, was in the restroom. Id. at 310. Petitioner
stated that when Nix walked out of the restroom, Nix and Thompson went
outside to speak. Id. According to Petitioner, he then sat on his bed, began
23
playing on his phone, and a few minutes later, Thompson stepped inside the
hotel room and Petitioner advised him he could not enter without a warrant. Id.
at 310. Petitioner admitted, however, that once Thompson was inside the room,
the cellphones were within his plain view. Id. at 310-11. The trial court also let
Petitioner present an excerpt from the deposition testimony of Meredith
Alexander, the female occupant of the hotel room, in which she stated Petitioner
did not give Thompson permission to enter the hotel room. Id. at 305.
After considering argument from the parties, the trial court denied the
motion on the record, finding:
THE COURT: Okay. Interesting issue. I am going to
deny the defendant’s motion to suppress. I do think --
really on two -- two grounds. One, and in no particular
order, one is a credibility issue. I do find the testimony
of the officer to be credible on the issue of whether or
not he was given -- initially given permission to enter
the room. There doesn’t seem to be much point for him
to not tell the truth about being denied permission to
search, but yet say that he was given permission to
enter. It seems that if he was going to be untruthful
about one he would be untruthful about the other, and
after comparing the testimony of Mr. Hayes and the
officer and the witness in the deposition, I do find the
officer’s credibility or testimony to be more credible on
that issue.
The -- and having been given permission to enter the
room, it is the testimony that he observed the phones,
the items in question, in plain view, and then basically
at that point the room was secured shortly thereafter
while the warrant was obtained.
24
And then, secondly, I think that’s an inevitably issue.
An inevitable discovery issue is probably the more
proper way to phrase it. When the officers arrived at
the location they had, as I understand the evidence in
this case, the testimony in this case, they had already
tracked the victims’ phones to that location, the
location of the Lodge. They furthermore had
information that the codefendant was associated with
the particular room in question.
And so really we don’t even need to reach the Court’s
hypothetical as to whether or not, even if permission to
enter the room had been denied, that they could have
simply called the phones and heard them ring and that
would have certainly given them further probable
cause because I think, based on the testimony without
that, there was ample probable cause to obtain a search
warrant which they did. For those reasons the Court
will deny the defendant’s motion to suppress.
Resp. Ex. A at 326-27.
Following trial, Petitioner filed a petition with the First DCA arguing that
appellate counsel was ineffective for failing to raise a claim on direct appeal
challenging the trial court’s denial of his motion to suppress. Resp. Ex. G at 6.
The First DCA denied the petition “on the merits.” Resp. Ex. H.
Thus, the Court addresses Petitioner’s ineffective assistance of appellate
counsel claim under the deferential standard for federal court review of state
court adjudications. In doing so, the Court again gives considerable deference
to appellate counsel’s strategic decision of selecting the issue or issues to raise
on appeal. Here, the record shows the trial court conducted a thorough hearing
25
and made a credibility determination when it found the cell phones were within
Officer Thompson’s plain view, which ultimately provided enough probable
cause to obtain a search warrant. Nothing in the record suggests a factual or
legal basis on which appellate counsel could have challenged the trial court’s
ruling on direct appeal. Thus, upon thorough review of the record and the
applicable law, the Court finds that the state court’s decision to deny
Petitioner’s claim was neither contrary to nor an unreasonable application of
Strickland, and it was not based on an unreasonable determination of the facts
given the evidence presented to the state court. See 28 U.S.C. § 2254(d). Ground
Two is denied.
c. Ground Three
Petitioner argues that his trial counsel was ineffective for failing to object
to hearsay testimony elicited during Officer Nicholas Tirri’s trial testimony.
Doc. 12 at 8.
Petitioner raised this claim in his amended Florida Rule of Criminal
Procedure 3.850 motion. Resp. Ex. I at 101. The trial court summarily denied
the claim, finding:
Defendant’s second ground in his Amended Motion
alleges counsel rendered ineffective assistance by
failing to object, and move for a mistrial, based on the
Court’s alleged abuse of discretion in admitting
testimony of out-of-court statements made by
unavailable witness Andrew Devoe that Mr. Devoe’s
26
iPhone was taken during the robbery. The testimony
referred to is that of Officer Nicholas Tirri, who
responded to the robbery at the McDonald’s restaurant.
Officer Tirri, when asked whether he spoke to anyone
after arriving at the McDonald’s, testified that he
“talked to one of the victims, Mr. Devoe.” Officer Tirri
testified that “Mr. Devoe advised me that his cell phone
was stolen[,]” and went on to describe using the “find
my iPhone” app to determine the location of Mr.
Devoe’s phone. Defendant argues that the hearsay
testimony that Mr. Devoe’s phone was stolen was the
foundation of the State’s identification of Defendant;
his argument depends upon his assertion that the
powering up of the iPhone was illegal because it was
done without consent to search and without a warrant.
As noted above, when police spoke with Defendant in
the premises of the hotel room, Defendant disavowed
any ownership of both cell phones on the table, and
claimed he had not seen them before. Therefore,
Defendant lacked standing to challenge the legality of
any search or seizure of those phones.
Hearsay is an out-of-court statement “offered in
evidence to prove the truth of the matter asserted.” §
90.801(l)(c), Fla. Stat. (2019). Officer Tirri’s testimony
that Mr. Devoe told Officer Tirri his cell phone was
taken during the robbery was not offered to prove that
Mr. Devoe’s phone was stolen; it was offered to explain
the police investigation. Moreover, any error in
admitting Officer Tirri’s testimony that Mr. Devoe told
him his cell phone was stolen was harmless in light of
the testimony of Detective J. J. Hopely, Jr., that, after
arriving at the McDonald’s, he spoke with all four
employees who had been present during the robbery
and that one of the employees, Mr. Devoe, had an
iPhone stolen during the robbery. Defendant makes no
claim related to Detective Hopely’s testimony. At the
hotel room, police found at least two Bank of America
zipper deposit bags taken from the McDonald’s safe,
the two cell phones (which Defendant claimed he did
27
not own and had never seen before), a bag of clothing
matching clothing worn by the robbers as seen in
surveillance video, and two handguns. Even if Officer
Tirri’s testimony of Mr. Devoe’s statement was offered
to prove that Mr. Devoe’s phone was stolen during the
robbery, admission of that testimony was harmless in
light of other evidence that Mr. Devoe’s cell phone was
stolen during the robbery. Therefore, even if counsel
were deficient for not objecting (which this Court does
not find), Defendant can show no prejudice.
Defendant’s second ground in his Amended Motion is
without merit.
Resp. Ex. I at 112-13 (record citations omitted). Petitioner appealed, and the
First DCA per curiam affirmed the denial without a written opinion. Resp. Ex.
L.
The Court addresses Petitioner’s claim in accordance with the deferential
standard for federal court review of state court adjudications. In doing so, the
Court defers to the state court’s finding that Petitioner fails to show prejudice.
Indeed, even assuming trial counsel objected, and this alleged hearsay
testimony was excluded, Petitioner fails to demonstrate a reasonable
probability exists that the outcome of his trial would have been different
considering the totality of the evidence presented at trial. Upon thorough review
of the record and the applicable law, the Court concludes that the state court’s
decision to deny Petitioner’s claim was neither contrary to nor an unreasonable
application of Strickland, and it was not based on an unreasonable
determination of the facts in light of the evidence presented to the state court.
28
See 28 U.S.C. § 2254(d). Ground Three is denied.
d. Ground Four
Petitioner contends his trial counsel was ineffective for failing to advise
him of the “independent act defense” and request an “independent act” jury
instruction. Doc. 12 at 9. According to Petitioner, co-defendant Nix’s “taking of
the phones” was not part of the common plan as Petitioner was in another room
getting money from the safe when Nix stole the cellphones. Id. at 9-10.
Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. I at 3. The
trial court summarily denied the claim:
In Ground One, Defendant alleges counsel rendered
ineffective assistance by failing to request an
independent-act jury instruction on Counts 2 and 3,
and to advise Defendant of the availability of that
defense. Had he been made aware of the independent-
act defense to principal liability, Defendant avers that
he would have testified at trial in support of the theory
that his codefendant, Nix, robbed the victims in Counts
2 and 3 of their cell phones without there having been
any common design or plan between Defendant and Nix
to do so. Defendant posits:
The facts of this case are undisputed that
when co-felon Nix robbed Andrew Devoe
and Michael Simon of their cell phones, he
exceeded the scope of the original plan. The
evidence, when viewed in a light most
favorable to the State, evinces that Hayes
and Nix planned to rob McDonald’s of its
money. The evidence showed that Hayes
entered the McDonald’s and forced
McDonald’s employee Britney Brown to
29
give him money from the safe at gunpoint.
Meanwhile, co-felon Nix took it upon
himself to take the cell phones of Devoe and
Simon.
Defendant fails to explain how he might have so
testified at trial without admitting, first, that he was
present at the crime scene and, second, that he did in
fact enter the McDonald’s pursuant to a plan to rob the
McDonald’s with Mr. Nix. Contrary to Defendant’s
assertion that the strategy was “nonsensical,” it makes
perfect sense to argue before the jury, as counsel did,
that Defendant was not involved in any of the
robberies, and then, after jury verdicts of guilt on all
counts, to argue a motion for judgment of acquittal to
the Court based on the State’s failure to prove that
Defendant was a principal to the cell phone robberies.
To introduce the independent act theory to the jury
would have necessitated an admission of guilt on Count
1, which would still have exposed Defendant to a life
sentence as a PR[R]. Defendant’s first ground is
without merit.
Resp. Ex. I. at 108-09 (record citations omitted). Petitioner appealed, and the
First DCA per curiam affirmed the denial without a written opinion. Resp. Ex.
L.
The Court addresses Petitioner’s claim in accordance with the deferential
standard for federal court review of state court adjudications. In doing so, the
Court defers to the state court’s finding that trial counsel was not deficient for
failing to assert a defense that would have compelled Petitioner to admit to
committing one of the three charged robberies. Thus, upon thorough review of
the record and the applicable law, the Court concludes that the state court’s
30
decision to deny Petitioner’s claim was neither contrary to nor an unreasonable
application of Strickland, and it was not based on an unreasonable
determination of the facts, given the evidence presented to the state court. See
28 U.S.C. § 2254(d). Ground Four is denied.
e. Ground Five
Petitioner alleges his trial counsel was ineffective for failing to file a
motion in limine or object to the state referring to a BB gun, which Petitioner
was allegedly carrying, as a 40 caliber Smith and Wesson firearm. Doc. 12 at
11.
In his Rule 3.850 motion, Petitioner raised two claims challenging his
alleged possession of a BB gun during the robberies. Resp. Ex. I at 22, 111. The
trial court denied the claims:
Defendant’s third ground alleges counsel rendered
ineffective assistance by failing to move to dismiss all
four Counts and failing to object to the verdict forms,
which resulted in Defendant being convicted of an
offense not charged. Defendant contends that the
Amended Information charged him with armed robbery
with a firearm in Counts 1, 2, and 3, but that he
actually possessed only a BB gun that looked like a
firearm. He also argues that a BB is not “ammunition”
to support a conviction on Count 4. Defendant does not
contend that his co-felon, Mr. Nix, did not possess an
actual firearm with actual ammunition. “[P]ossession
of a Firearm by a codefendant is sufficient to convict a
defendant of armed robbery, pursuant to the principal
theory. . . .” Freeny v. State, 621 So. 2d 505, 506 (Fla.
5th DCA 1993). However, principal liability for
31
possession is not sufficient to support imposition of a
mandatory minimum sentence pursuant to section
775.087, Florida Statutes; for that statute to apply, a
defendant must have actual, physical possession of a
firearm. Id. In the instant case, this Court did not
impose a mandatory minimum under section 775.087.
Therefore, there was no meritorious objection to be
made to the Amended Information or verdict form
regarding Counts 1, 2, and 3, and counsel’s
performance was not deficient for failing to move to
dismiss those counts or to object to the verdict form.
As to Count 4, Defendant also asserts that the
Amended Information charged a violation of section
790.23(l)(a), Florida Statutes, which reads, “It is
unlawful for any person to [possess ammunition] if that
person has been: (a) Convicted of a felony in the courts
of this state . . . .” Defendant contends that his
underlying prior conviction was in Glynn County,
Georgia, subjecting Count 4 to dismissal. Defendant
also argues that the statute criminalizes possession of
a firearm, not ammunition. On that point, Defendant is
simply mistaken; the statute makes it a crime to
possess a firearm or ammunition. § 790.23(1), Fla. Stat.
(2013). As to the state where the prior conviction was
obtained, section 790.23(1)(e) reads, “Found guilty of an
offense that is a felony in another state, territory, or
country . . . .” However, the Amended Information
identifies the prior conviction as, “Burglary, in the
Superior Court of Glynn County, Georgia, on May 16,
2003 . . . .” Therefore, Defendant was on notice of the
crime charged in Count 4, and was not misled about
[the] identity of the prior conviction underlying the
charge. Technical defects in a charging instrument are
not fatal where the information charges every element
of an offense and does not mislead the defendant.
McMillan v. State, 832 So. 2d 946, 948 (Fla. 5th DCA
2002). Because Count 4 of the Amended Information
was not subject to dismissal, counsel was not ineffective
for failing to move to dismiss. Defendant’s third ground
32
is without merit.
Defendant’s fourth ground alleges that counsel
rendered ineffective assistance by failing to file a
motion in limine or to object to the State’s repeated
reference to the BB gun carried by Defendant as a
“firearm.” Because, as noted above in the analysis of
Ground Three, Defendant could be found guilty of
armed robbery as a principal, and Defendant does not
allege that his co-defendant, Mr. Nix, carried anything
other than an actual firearm, there was nothing for
counsel to object to, and no prejudice; even had the jury
never heard a BB gun referred to as a firearm, that does
not undermine confidence in the outcome of the guilty
verdicts, where the jury could have found Defendant
guilty of armed robbery and possession of ammunition
by a convicted felon as a principal. Defendant’s fourth
ground is without merit.
Resp. Ex. I at 110-11 (record citations omitted). Petitioner appealed, and the
First DCA per curiam affirmed the trial court’s denial without a written
opinion. Resp. Ex. L.
The Court addresses Petitioner’s claim in accordance with the deferential
standard for federal court review of state court adjudications. And upon
thorough review of the record and the applicable law, the Court concludes that
the state court’s decision to deny Petitioner’s claims was neither contrary to nor
an unreasonable application of Strickland, and it was not based on an
unreasonable determination of the facts in light of the evidence presented to
the state court. See 28 U.S.C. § 2254(d). Ground Five is denied.
33
f. Ground Six
Petitioner alleges his trial counsel was ineffective for failing to reasonably
investigate the facts of his case and adequately argue that the police had no
legal standing to search his hotel room. Doc. 12 at 13.
Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. I at 15.
The trial court summarily denied the claim:
After hearing evidence and argument on April 14, 2016,
this Court denied Defendant’s Motion to Suppress.
Defendant’s second ground attributes that denial to
counsel’s deficient performance in arguing the motion.
At the hearing, this Court weighed the testimony and
found the responding officer, Kyle Thompson, more
credible than Defendant and the deposition testimony
of another occupant of the hotel room where the subject
search and seizure occurred. This Court made a finding
on the record that Officer Thompson had Defendant’s
permission to be in the hotel room. Once lawfully in the
room, Officer Thompson was authorized to search the
cell phones in plain view. See State v. Johnson, 208 So.
3d 843, 846 (Fla. 1st DCA 2017). Moreover, Officer
Thompson testified that Defendant denied any
knowledge of ownership of the cell phones, and said he
had never seen them before. Therefore, there is
evidentiary support for the State’s assertion that
Defendant lacked standing to challenge Officer
Thompson’s handling the phones and investigating
their ownership. “A defendant who voluntarily
abandons property or disclaims ownership lacks
standing to challenge its search and seizure.” State v.
Fosmire, 135 So. 3d 1153, 1156 (Fla. 1st DCA 2014).
Defendant may maintain that his testimony, not
Officer Thompson’s, was true, and may point out that
the cell phones were not visible from the threshold of
the room, but his disagreement with this Court’s ruling
34
does not constitute ineffective assistance of counsel.
The record of the hearing shows that counsel argued
the salient points competently; in the instant Motion,
Defendant simply takes a different view of the evidence
adduced at the hearing and disagrees with this Court’s
findings. Defendant’s second ground is without merit.
Resp. Ex. I at 109 (record citations omitted). Petitioner appealed, and the First
DCA per curiam affirmed the trial court’s denial without a written opinion.
Resp. Ex. L.
The Court addresses Petitioner’s claim in accordance with the deferential
standard for federal court review of state court adjudications. And upon
thorough review of the record and the applicable law, the Court concludes that
the state court’s decision to deny Petitioner’s claim was neither contrary to nor
an unreasonable application of Strickland, and it was not based on an
unreasonable determination of the facts in light of the evidence presented to
the state court. See 28 U.S.C. § 2254(d). Ground Six is denied.
Accordingly, it is
ORDERED AND ADJUDGED:
1. The Amended Petition (Doc. 12) is DENIED and this case is
DISMISSED WITH PREJUDICE.
2. The Clerk shall enter judgment dismissing this case with
prejudice, terminate any pending motions, and close the file.
3. If Petitioner appeals this denial, the Court denies a certificate of
35
appealability. Because this Court has determined that a certificate of
appealability is not warranted, the Clerk shall terminate from the pending
motions report any motion to proceed on appeal as a pauper that may be filed
in this case. Such termination shall serve as a denial of the motion.
DONE AND ORDERED at Jacksonville, Florida, this 6th day of August,
2024.
□ Cirmotheg Corrig oN
W TIMOTHY J. CORRIGAN
United States District Judge
Jax-7
C: Robert Earl Hayes, #J58159
Counsel of record
4 The Court should issue a certificate of appealability only if the Petitioner
makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this substantial showing, 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. 473, 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 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Here, after consideration of the record as a whole, the Court will deny a certificate of
appealability.
36