Henry v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KEITH PATRICK HENRY,

Petitioner,

v. Case No. 3:21-cv-891-TJC-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Keith Patrick Henry, an inmate of the Florida penal system,

initiated this action by filing a pro se Petition for Writ of Habeas Corpus

Pursuant to 28 U.S.C. § 2254. See Doc. 1. Petitioner challenges a state court

(Duval County, Florida) judgment and conviction for attempt to possess cocaine,

a lesser included offense (count one); and conspiracy to traffic in controlled

substances (count two). Petitioner is serving a cumulative twenty-year term of

incarceration. Respondents filed a Response. See Doc. 8 (Resp.).1 Petitioner

1 Attached to the Response are various exhibits. The Court refers to the exhibits

as “Resp. Ex.”

replied. See Doc. 13. 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

state court need not issue an opinion explaining its rationale for the state court’s

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

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

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

3

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 the effective

assistance of counsel. That right is denied when a defense attorney’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

show: (1) counsel’s performance was outside the wide range of reasonable,

4

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)

(“failing to raise or adequately pursue [meritless issues on appeal] cannot

constitute ineffective assistance of counsel”).

To satisfy the prejudice prong of an ineffective assistance of appellate

counsel claim, a petitioner must show a reasonable probability that “but for the

5

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.

(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

6

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)

(Jordan, J., concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.

2004).

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III. Factual History

The state proceeded to a jury trial on three counts – attempted trafficking

in cocaine (count one); conspiracy to traffic in cocaine with James Degelmann

named as the coconspirator (count two); and conspiracy to traffic in cocaine with

William Peterson named as the coconspirator (count four).

At trial, Drug Enforcement Administration agent Nathan Koen testified

that he was assigned to handle Petitioner’s drug investigation. Resp. Ex. B at

181. During that time, confidential informant Francisco Gonzalez was working

at the direction of Koen, helping Koen with ongoing drug investigations. Id.

Koen knew Gonzalez because he was a defendant in one of Koen’s prior

investigations. Id. at 182. According to Koen, Gonzalez spoke to Koen about

potentially investigating Petitioner. Id. at 184. After identifying Petitioner,

Koen believed Petitioner to be a viable target and arranged to present Petitioner

with a “surprise flash,” in which a confidential source meets a target of an

investigation and “all of a sudden there are drugs that the [target] can check

out.” Id. at 183-84.

The following factual summary was taken from the state’s answer brief

filed in Petitioner’s direct appeal:

At trial, Francisco Gonzalez testified that he met

[Petitioner] while working at a shop. Gonzalez

explained that he overheard [Petitioner] speaking to

other individuals about the price of cocaine. Gonzalez

8

testified that he conducted “flashes” in this case.

During his testimony, Special Agent Koen had

explained that a flash is when DEA has a confidential

source set up a meeting with the target of the

investigation and “all of a sudden there’s drugs that the

guy can check out.” Prior to the first flash, Gonzalez

testified that he told [Petitioner] that he had

“something come in” that he had to show him. During

the flash, Gonzalez showed [Petitioner] a kilogram of

cocaine and explained to [Petitioner] that “this my

material, this what I got. This is my quantity.”

The next flash was conducted with five kilograms

of cocaine because that i[s] how much he discussed with

[Petitioner] that [Petitioner] would buy. Gonzalez

explained [Petitioner] told him he wanted to purchase

the cocaine. At first they agreed that [Petitioner] would

purchase “around ten bricks in the beginning” and then

[Petitioner] reduced that number to five. Gonzalez

explained that he handed [Petitioner] one of the bricks

to look at and [Petitioner] opened it with a blade. The

conversation, which was video recorded, was published

to the jury. After inspecting the cocaine, [Petitioner]

told Gonzalez that he wanted to purchase everything.

[Petitioner] did not have the money at that time[,]

however[,] later that day he informed Gonzalez that he

was getting money together with other people.

When [Petitioner] was able to get all the money

together, Gonzalez met him at the shop where Gonzalez

worked and Gonzalez drove [Petitioner] to Longhorn’s

and dropped him off. After approximately an hour,

[Petitioner] informed Gonzalez that he had the money

ready and wanted to purchase “two-and-a-half.”

Gonzalez explained that this meant two bricks and a

half which is approximately 200 kilograms of cocaine.

Gonzalez testified that he told [Petitioner] he would sell

him three not two and a half because he does not break

them. [Petitioner] told Gonzalez that he had $72,000 to

pay for the cocaine and Gonzalez went to pick him up

9

at the gas station next to Longhorn’s. Gonzalez testified

that he saw [Petitioner] carrying a bag of money which

he gave to Gonzalez. [Petitioner] was then arrested by

the DEA agents.

James Degelmann testified that he has been

friends with [Petitioner] for a number of years.

Degelmann explained that, the day he was arrested, he

spoke with [Petitioner] about purchasing a kilogram of

cocaine for $32,000 from “some Mexican guy he knew.”

Degelmann testified that on June 17, 2013, he got his

money together and went to meet [Petitioner]. They

were originally supposed to meet at one restaurant[,]

however Degelmann “felt suspicious” about a car in the

parking lot so he changed the location to Longhorn’s.

Degelmann testified that he, [Petitioner] and Peterson

sat at the table having [a] couple [of] drinks and he

became confused because he thought they would make

the exchange and he could “get on about my business.”

By “exchange,” Degelmann explained he would give

[Petitioner] the money and get the cocaine in exchange.

When Degelmann and [Petitioner] left the restaurant,

[Petitioner] told Degelmann to sit in his truck until

[Petitioner] came to get the money, which [Petitioner]

did. The bag of money [Petitioner] took from

Degelmann contained $28,000 which he had made by

working and selling drugs. After [Petitioner] left with

the money, he called Degelmann and told him to go to

the gas station. When Degelmann arrived he was

arrested.

Agent Voege testified that after [Petitioner] was

arrested and read his Miranda warnings, [Petitioner]

gave a statement. [Petitioner] told Voege that he had

gone to at least three different vehicles and gotten

money from two individuals in those vehicles.

[Petitioner] stated that there was approximately

$72,000 in the page and that they were paying $34,000

per kilo for cocaine. [Petitioner] explained to Agent

Voege that if he had not been arrested, Gonzalez would

10

have given him the five-kilos of cocaine.

Resp. Ex. E (record citations omitted). Following the evidence, the trial court

granted Petitioner’s motion for judgment of acquittal on count four, conspiracy

to traffic in cocaine with William Peterson named as the coconspirator. Resp.

Ex. B at 442. The jury then found Petitioner guilty of attempt to possess cocaine,

a lesser included offense for count one, and count two, conspiracy to traffic in

controlled substances with James Degelmann as the coconspirator. Resp. Ex. A

at 140. The trial court sentenced Petitioner to a five-year term of incarceration

as to count one and a twenty-year term with a fifteen-year minimum mandatory

as to count two, with count two to run concurrent with the sentence for count

one. Id. at 140-42.

IV. The Petition

a. Ground One

Petitioner argues his trial counsel was ineffective for failing to investigate

and seek dismissal of his case based on police misconduct and misuse of

confidential informant Francisco Gonzalez during a joint task force operation.

Doc. 1 at 6. According to Petitioner, officials’ use of C.I. Gonzalez and police

misconduct to effect his arrest amounted to a due process violation. Id.

Petitioner raised this claim in his Florida Rule of Criminal Procedure

3.850 motion filed with the trial court. Resp. Ex. Q at 2. The trial court

11

summarily denied the claim as follows:

Defendant’s first ground alleges that counsel

rendered ineffective assistance by failing “to

reasonably investigate the available meritorious bases

to seek dismissal of the case on grounds [of] police

conduct and misuse of Confidential Informant (C.I.)

Francisco Gonzalez . . . .” Defendant asserts that the

confidential informant was an “undocumented major

drug trafficker associated with one of the largest

Mexican drug cartels.” Defendant alleges that Gonzalez

acted without police supervision and was desperate,

after working 5 cases unsuccessfully, “to find a citizen

to target for arrest” to reduce the lengthy sentence he

was facing. According to Defendant, Gonzalez was “set

loose in the community” to “target drug traffickers

operating at or above his level which meant kilogram

operations.” Defendant alleges that Gonzalez “was

allowed to create a trafficking offense and offender

where none existed without the assistance of him and

the government[,]” and that the actions of the police

and the confidential informant constituted outrageous

government conduct, depriving Defendant of due

process.

Defendant alleges Gonzalez targeted him for

arrest. The unrebutted evidence at trial was that, while

at his workplace (the same body shop where Defendant

alleges he was working), Gonzalez heard Defendant

and others talking about the high and rising price of a

kilogram of cocaine. Gonzalez joined the conversation,

agreeing about the high prices. When Defendant asked

Gonzalez how he knew that, Gonzalez told him he was

Mexican. Gonzalez testified that he informed law

enforcement about the conversation and was instructed

to keep talking to Defendant. Gonzalez then arranged

and conducted two surprise flashes of cocaine to

Defendant: first of a kilogram, then of five kilograms.

Gonzalez testified that between the two flashes,

Defendant expressed a desire to purchase several

12

kilograms of cocaine from Gonzalez, settling on five

kilograms, hence the size of the second flash. Gonzalez

testified that, later in the day of the second flash,

Defendant was in contact with him about the progress

Defendant was making toward getting sufficient money

together, and that at some point that afternoon, June

17, 2013, Gonzalez dropped Defendant off at a

Longhorn restaurant. Throughout Gonzalez’s

conversations with Defendant leading up to dropping

Defendant off at the restaurant, before Gonzalez made

any decisions, Gonzalez contacted law enforcement and

informed them of Defendant’s conversations. After

about an hour, Gonzalez heard from Defendant that

Defendant wanted to purchase two-and-a-half

kilograms of cocaine. Gonzalez met Defendant at a gas

station next to Longhorn, where Defendant entered the

vehicle Gonzalez was driving and deposited a bag of

money in Gonzalez’s lap. Gonzalez gave a signal, and

DEA agents arrested Defendant and Gonzalez.

To support his assertion that government actions

violated his due process rights, Defendant relies on

cases which are distinguishable from the instant case.

For example, in State v. Glosson, 462 So. 2d 1082 (Fla.

1985), the Florida Supreme Court held that a

contingent fee agreement violated due process where a

confidential informant would receive ten percent of all

civil forfeitures arising out of successful criminal

investigations, opining, “We can imagine few situations

with more potential for abuse of a defendant’s due

process right. The informant here had an enormous

financial incentive not only to make criminal cases, but

also to color his testimony or even commit perjury in

pursuit of the contingent fee.” Glosson, 462 So. 2d at

1085. Glosson has been recognized as “very fact

specific,” and it is distinguishable from the instant

case. State v. Hunter, 586 So. 2d 319, 321 (Fla. 1991).

At trial, Gonzalez, the confidential informant, testified

that he entered a plea to conspiracy to trafficking in

controlled substances, and that the range of sentencing

13

he was facing was based on his “helping [the State]

basically get other drug dealers, working with [the]

D[rug] E[nforcement] Administration].” There was no

evidence that Gonzalez would be paid a contingent fee

based on successful assistance to the State, as in

Glosson.

Defendant cites Soohoo v. State, 737 So. 2d 1108

(Fla. 4th DCA 1999)[,] to support his assertion that

“Gonzalez was allowed to create a trafficking offense

and offender where none existed without the assistance

of him and the government.” In Soohoo, a confidential

informant initiated contact with the defendant, who

was known to him to have purchased cocaine in the

past. Soohoo, 737 So. 2d at 1108. The informant called

the defendant from across the country and offered to

sell a certain amount of cocaine, but the defendant did

not agree. Id. As an incentive to move that amount, the

informant offered to come to where the defendant was

and help distribute it. Id. When the defendant declined,

the informant offered a smaller quantity, and an equal

amount on credit. Id. at 1108-09. The appellate court

found the defendant’s due process rights violated,

opining, “Perhaps most egregious and offensive in this

case was [the informant]’s offer to help [defendant]

distribute the product if he were to purchase five kilos

of cocaine and his subsequent offer to give [defendant]

a second kilo on credit if he were to purchase one kilo.”

Id. at 1111.

In this case, there was no offer to help distribute

the drugs, as in Soohoo. Rather, it was Defendant who

first brought up the price of cocaine in conversation; the

government used Gonzalez to gauge Defendant’s

interest in purchasing cocaine and, without pressure,

Defendant agreed to do so. “Cases finding a due process

violation based on outrageous government conduct

have one common thread: affirmative and unacceptable

conduct by law enforcement or its agent. In contrast,

creating nothing more than an opportunity to commit a

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crime is not prohibited.” State v. Harper, 254 So. 3d

479, 484 (Fla. 4th DCA 2018) (citations and internal

quotation marks omitted). The Harper court found no

due process violation where “law enforcement simply

conducted a reverse sting operation providing the

defendant with the means and opportunity to engage in

a burglary, and he agreed to participate.” Harper, 254

So. 3d at 485. So, here, this Court finds no outrageous

government conduct constituting a violation of

Defendant’s due process rights.

Defendant also complains that the first surprise

flash occurred “within 1,000 feet of a church/school,

while school was in attendance of children . . . .” He

describes the flashes as having introduced “dangerous

drugs . . . into the community against the public safety

of the community[,]” citing State v. Williams, 623 So.

2d 462 (Fla. 1993). There, the court found that law

enforcement “acted illegally in manufacturing the

crack cocaine it used in the reverse sting operation

which led to Williams’ arrest.” Williams, 623 So. 2d at

466. Williams is inapposite, and the testimony of DEA

agent Nathan Koen, who supervised the flashes,

provided unrebutted evidence of how the agency

obtained the drugs for the flash, the precautions taken

to prevent the drugs from leaving government custody,

and their safe return to an out-of-county laboratory.

Nothing in the record supports Defendant’s conclusory

allegation that either of the flashes put public safety at

risk.

Defendant asserts that Gonzalez “was allowed to

determine [the] potential mandatory minimum prison

term and fine Mr. Henry would face by selecting the

amount of drugs to be sold. Here, due process is

offended on these facts.” However, where a defendant

argued on appeal that an informant’s agreement with

the government “caused him to intentionally set up [a]

large cocaine purchase by the codefendants even

though the authorities knew of no prior criminal

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activity by them[,]” the court held that “these factors

alone do not amount to a violation of due process.”

Khelifi v. State, 560 So. 2d 333, 334 (Fla. 4th DCA

1990). In fact, Defendant himself here asserts that the

law enforcement officers working with Gonzalez had

thoroughly investigated Defendant and knew of his

three prior drug charges and that he was “working his

probation off” at the body shop where he and Gonzalez

met. Therefore, Defendant was not a person without a

criminal record, as in Khelifi, and even the Khelifi court

found no violation of due process on facts otherwise

similar.

Defendant emphasizes law enforcement’s lack of

supervision of the confidential informant. However,

there was no evidence that Defendant was harassed,

threatened, or tricked into agreeing to buy cocaine, and

Defendant does not allege in his Motion that he was.

Defendant acknowledges his prior drug offenses, and

alleges that law enforcement was aware of them before

approving his “targeting” by Gonzalez. On similar facts,

but in a case where law enforcement had not even

verified the defendant’s prior drug involvement, there

was found to be no violation of due process. Mendel v.

State, 903 So. 2d 1027, 1029 (Fla. 4th DCA 2005).

Similarly, here, this Court finds no due process

violation in the actions of law enforcement and the

confidential informant. Therefore, counsel was not

ineffective for failing to file motions to dismiss, to

suppress, or in limine, or to renew the motion for

judgment of acquittal after the verdict.

Resp. Ex. Q at 192-96 (record citations omitted). Petitioner appealed, and the

First DCA issued a written opinion affirming the trial court’s denial. Resp. Ex.

U. In its written opinion, the First DCA addressed no specific claim, but instead,

stated:

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AFFIRMED. Appellant is warned that any future

filings that this court determines to be frivolous may

result in the imposition of sanctions, including a

prohibition against any further pro se filings in this

court and a referral to the appropriate institution for

disciplinary procedures as provided in section 944.279,

Florida Statutes (2020) (providing that “[a] prisoner

who is found by a court to have brought a frivolous or

malicious suit, action, claim, proceeding, or appeal” is

subject to disciplinary procedures pursuant to the rules

of the Department of Corrections).

Id.

The Court addresses the claim under the deferential standard for federal

court review of state court adjudications. In doing so, the Court defers to the

state court’s finding that the evidence showed Petitioner voluntarily engaged

with Gonzalez to get cocaine and nothing suggests the police engaged in any

form of misconduct to arrest Petitioner. As such, trial counsel did not act

deficiently in failing to file pretrial motions challenging the charges based on

the state’s use of Gonzalez. And 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. Ground One is denied.

b. Ground Two

Petitioner asserts the trial court erred in denying his request for a special

jury instruction that individuals who engage in only a “buy/sell” drug

17

transaction are not guilty of conspiracy, which violated his due process rights

under the Fourteenth Amendment. Doc. 1 at 11-12. Respondents argue that this

claim is unexhausted and procedurally defaulted because when he raised the

issue during his direct appeal, Petitioner did not present the federal nature of

this claim to the state court. Resp. at 22-24. The Court agrees.

Prior to trial, trial counsel filed a request to include the following special

jury instruction:

A conspiracy requires more than just a buyer-seller

relationship between the defendant and another

person. To establish that a seller knowingly became a

member of a conspiracy with a buyer to traffic in

cocaine, the State must prove there was an agreement

to commit the same criminal act and a seller’s purchase

or possession of cocaine is not the same criminal act as

a buyer’s subsequent purchase or possession of a

portion of that cocaine.

Resp. Ex. A at 91. The trial court denied trial counsel’s request. Resp. Ex. B at

461. On direct appeal, with help from appellate counsel, Petitioner, as his sole

claim for relief, argued the trial court erred in denying his request to include

this jury instruction. Resp. Ex. D.

When briefing this issue in the state appellate court, however, Petitioner

did not state or suggest that it was a federal claim about due process or any

other federal constitutional guarantee. See id. Instead, Petitioner argued, in

terms of state law only, that “[t]he presumptions, inferences, and conflicts in

18

the evidence [were] weighed in favor of giving the instruction” because the facts

were “more akin to the typical buyer-seller arrangement” rather than a

conspiracy. Id. at 10 (citing Schlicher v. State, 13 So. 3d 515 (Fla. 4th DCA

2009); Pallin v. State, 965 So. 2d 1226 (Fla. 1st DCA 2007); Davis v. State, 95

So. 3d 340 (Fla. 5th DCA 2012)). As such, because Petitioner failed to present

the federal nature of this claim in the state court, it is unexhausted and

procedurally defaulted, and Petitioner has failed to show cause for or prejudice

from this procedural bar. And he has identified no fact warranting the

application of the fundamental miscarriage of justice exception. Ground Two is

denied.

c. Ground Three

Petitioner contends his trial counsel was ineffective for failing to argue to

the trial court that the state did not present enough evidence to prove the

elements of count two – conspiracy to traffic in a controlled substance with

coconspirator James Degelmann. Doc. 1 at 14-16. He also alleges trial counsel

did not present to the trial court a federal due process claim based on the

prosecutor’s failure to present enough evidence to support the jury’s guilty

verdict for that crime. Id. at 14.

Petitioner raised these claims in his Rule 3.850 motion. Resp. Ex. Q at 11,

31. The trial court summarily denied the issues:

19

Defendant argues that counsel was ineffective for

failure to move for judgment of acquittal on the basis

that the conduct of the confidential informant and law

enforcement deprived Defendant of due process. As

noted above, the due process defense lacks merit;

therefore, counsel was not ineffective for failure to

present it to the trial Court. Defendant’s assertion of

cumulative error in Ground Five is likewise without

merit, there being no meritorious claims of ineffective

assistance of counsel presented in previous grounds.

. . . .

Defendant asserts that counsel was ineffective

for failing to raise a federal due process claim that the

evidence was insufficient to prove the conspiracy

charged in Count Two. Defendant cites Fiore v. White,

531 U.S. 225 (2001)[,] for support. In Fiore, after the

defendant’s conviction became final, the state supreme

court interpreted the statute for the first time, making

clear that the defendant’s conduct was not within its

scope. Fiore, 531 U.S. at 226. A codefendant, convicted

of the same crime at the same time, obtained relief, but

Fiore was denied relief. Id. at 227. Under those

circumstances, the Supreme Court held that Fiore’s

conviction and continued incarceration violated due

process. Id. at 228. The instant case bears no

resemblance to Fiore. In fact, counsel did move for

judgment of acquittal, arguing that the evidence was

insufficient to prove guilt on Counts Two and Four;

Defendant prevailed on Count Four. Nothing about the

Fiore case appears to provide any further basis for

counsel to have argued sufficiency of the evidence.

Defendant also alleges “Ineffective assistance at

trial” without elaboration, and cryptically includes,

“Kimmelman v. Morrison (claim)[.]” Kimmelman v.

Morrison, 477 U.S. 365 (1986), held that prisoners

could seek federal habeas corpus relief on a claim of

ineffective assistance of counsel based on an attorney’s

20

allegedly incompetent representation with respect to

an issue involving unconstitutional search and seizure.

It has no application to this action. Supplemental

Claim Eleven is without merit.

Resp. Ex. Q at 200, 205. Petitioner appealed, and the First DCA affirmed the

trial court’s denial, issuing the written opinion as quoted in Ground One. Resp.

Ex. U.

The Court addresses the claim under the deferential standard for federal

court review of state court adjudications. As the trial court explained in its

order, trial counsel moved for a judgment of acquittal on counts two and four.

Resp. Ex. B at 402-07. As to count two, trial counsel argued that Degelmann

testified that he knew nothing about Gonzalez’s participation in the

transaction, but instead believed he was only buying cocaine from Petitioner,

which does not show the elements of conspiracy. Id. at 402-04. The trial court

denied trial counsel’s request as to count two, finding that the conduct between

Petitioner and Degelmann showed corroboration to carry out the purchase of

cocaine from Gonzalez. Id. at 441. The evidence supported the trial court’s

ruling and nothing suggests trial counsel should have done anything more to

challenge the sufficiency of the evidence supporting count two, and Petitioner’s

due process claim is otherwise without merit.

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

21

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. Ground Three is denied.

d. Ground Four

Petitioner alleges his trial counsel was ineffective for failing to file a

motion to suppress the cocaine; the $71,590; and the testimony of Agent Voege,

C.I. Gonzalez, and James Degelmann, because “the targeting of [Petitioner] was

not supported by reasonable articulable suspicion of probable cause.” Doc. 1 at

19.

Petitioner raised this claim in ground two of his Rule 3.850 motion. Resp.

Ex. Q at 26-28. The trial court denied the claim:

Defendant’s second ground alleges that counsel

was ineffective for failure to file a pretrial motion to

suppress the cocaine, the $71,590.00 seized from the

confidential informant’s car, and the testimony of

several witnesses. Such a motion to suppress would

have been grounded on the targeting of Defendant in

the reverse sting, which Defendant alleges (in a

conclusory fashion) constituted an unreasonable

seizure in violation of the Fourth Amendment to the

United States Constitution and Article I, Section 9 of

the Florida Constitution. However, Defendant fails to

provide explanation or authority, and this Court is

aware of none, by which actions of law enforcement in

this case, short of arrest, or those of the confidential

informant, would constitute a search or seizure.

Defendant’s cases, Florida v. J.R., 529 U.S. 266, 271

(2000), and Reid v. Georgia, 448 U.S. 438, 441 (1980),

are to no avail. J.R. held an anonymous tip of

22

insufficient reliability to justify a Terry stop; Reid

involved seizure of cocaine in an airport from a person

who fit a “drug courier profile.” Both are inapposite.

Defendant’s general attacks on the investigation as

violative of his due process rights are without merit, as

[stated] in Ground One

As to the money seized, Defendant argues it was

due to be suppressed because each person arrested

signed a disclaimer of the money. James Degelmann,

Defendant’s co-conspirator in Count Two, testified that

Defendant retrieved a bag containing $28,000 from

Degelmann’s back seat on the day of arrest. In any

event, the seizure of the money was lawful because it

was incident to an arrest, which is an exception to the

requirement of a search warrant. Allgood v. State, 403

So. 2d 586, 587 (Fla. 1st DCA 1981).

At trial, Degelmann testified that he had seen

Defendant “in the club a couple of months before [the

day of the arrest] and he told me I needed to get in

contact with him . . . .” Based on that, Degelmann

contacted Defendant on the day of arrest to purchase a

kilogram of cocaine. Defendant urges that Degelmann’s

testimony should have been suppressed because it was

evidence of a conspiracy outside the scope of that

charged in this case, and because it was evidence of

collateral crimes from which the jury could have

inferred that Defendant was involved in ongoing

criminal activity. “Evidence of other crimes, wrongs, or

bad acts is admissible if it is relevant and probative of

a material issue and not used for the purpose of

demonstrating bad character or propensity.” Holmes v.

State, 91 So. 3d 859, 862 (Fla. 1st DCA 2012).

Typically, there are three reasons for

admitting inextricably intertwined

collateral crime evidence: (1) it is necessary

to establish the entire context out of which

the charged crimes arose; (2) it is necessary

23

to provide an intelligent account of the

crimes charged; and (3) it is necessary to

adequately describe the events leading up

to the crimes.

Id. Here, Degelmann’s testimony of seeing Defendant

at a club some time prior to the day of arrest was

relevant to, and probative of, the conspiracy, and

necessary to explain why Degelmann contacted

Defendant to purchase cocaine from Defendant. In fact,

it was Degelmann’s interpretation of Defendant’s

request that Degelmann contact him which provided

the relevant context; there is nothing criminal about

what Defendant is purported to have said to

Degelmann. On these facts, Degelmann’s testimony

was not inadmissible evidence of collateral crimes; nor

was it evidence of an uncharged conspiracy, but was

necessary to describe the formation of the charged

conspiracy from Degelmann’s perspective. Counsel was

not ineffective for failing to move to suppress it.

Defendant next argues that Degelmann’s guilty

“plea to conspiracy to purchase or possess cocaine [. . .]

implicitly amended Ct. (2) of the information by

removing Degelmann as a conspirator, and it removed

the necessary trafficking amount . . . from Ct. (2).”

Defendant’s assertion that a negotiated disposition of a

co-conspirator’s charges in another case amended the

information in this case is without support and [is]

meritless.

Defendant urges the suppression of the

testimony of Robert Voege, a special agent with the

DEA, because he “had nothing to do with the conspiracy

in Ct. (2) . . . .” Defendant asserts more broadly that

“none of the evidence about the investigation that led

to Defendant’s arrest was relevant, admissible, or

material in Ct. (2), and served only to prejudice the jury

and deny [Defendant] a fair trial.” Agent Voege

testified he was the arresting officer and that his

24

involvement on the day of arrest also included

surveillance. Evidence about the investigation leading

to arrest was relevant to establish Defendant’s

agreement to purchase cocaine from the confidential

informant and Degelmann’s understanding that he was

purchasing a kilogram of cocaine from Defendant.

Counsel was not ineffective for failing to move to

suppress, or object to, that evidence.

Resp. Ex. Q at 196-99 (record citations omitted). Petitioner appealed, and the

First DCA affirmed the denial. Resp. Ex. U.

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, 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 appellate counsel was ineffective for failing to raise

on direct appeal a claim that the trial court erred in denying Petitioner’s motion

for judgment of acquittal on count two – conspiracy to traffic in controlled

substances with coconspirator Degelmann – where the evidence could not

sustain the conviction. Doc. 1 at 24-25.

The testimony and evidence adduced at trial is set out in the initial brief

25

and the answer brief in the direct appeal. Resp. Exs. D at 4-5; E at 2-4. At trial,

after the state rested, trial counsel moved for a judgment of acquittal on the

conspiracy counts because the evidence presented was not legally or factually

sufficient to sustain a finding of guilt where Degelmann testified that he

thought he would buy cocaine from Petitioner and he had no understanding

there was any third party that would be involved. Resp. Ex. B at 393-414. The

prosecutor argued that the jury instructions provide it is unnecessary that the

agreement, conspiracy, combination, or confederation to commit trafficking in

cocaine be expressed in any particular words or that words even pass between

conspirators, and the defendant need not do any act in furtherance of the offense

conspired. Id. at 395-96. The trial judge asked trial counsel: “Seller would be

Gonzalez, and would not your client be working in concert or confederacy with

Degelmann in the purchase of an amount of drugs the legislature has declared

to be trafficking?” Id. at 402. Trial counsel responded: “I would not agree with

that for the following reason: That the – that it’s not factually supported by the

evidence, that what Mr. Degelmann was clear that he was doing was buying

cocaine from [Petitioner] and that [Petitioner] he believed had it in his

possession and was going to transfer it to him in exchange for that $28,000 in

cash.” Id. at 402. Trial counsel also argued that Degelmann expressly denied

any knowledge of the involvement of any third party, and that he understood

26

that Petitioner was getting it from somebody else but not that he would be

purchasing or dealing with that individual on any level. Id. at 402. Notably,

trial counsel argued that Petitioner was the seller and Degelmann was the

buyer. Id. at 403.

The trial court later denied the motion as to count two:

THE COURT: So there is no motion, JOA motion for

count one, there is nothing to be addressed in count one.

The motion for judgment of acquittal is denied as to

count two. The Court finds that the conduct between

Degelmann and [Petitioner] in corroboration with each

other to effectuate the purchase of cocaine from a seller,

Mr. Gonzalez, who testified, is sufficient conduct acting

in concert with each other and confederating together

to create a conspiracy to traffic in cocaine as the Florida

Legislature has defined that amount.

Furthermore, even if it were to be determined that

[Petitioner] was to be the seller, there is still sufficient

evidence established for a conspiracy as both are

expressly engaged in conduct that is the same criminal

conduct as defined by the Florida Legislature, and that

is the transacting of the amount of cocaine, one

kilogram, five kilograms, that expressly has been

declared by the Legislature to constitute trafficking, so

there is the intent to commit the same criminal offense.

So for those reasons, count two, the motion for

judgment of acquittal is denied as to count two.

Count four, however, this Court intends to grant a

judgment of acquittal as to count four. . . .

Resp. Ex. B at 441-43. The jury then found Petitioner guilty of attempted

possession of cocaine, a lesser included offense of attempted trafficking in

27

cocaine (count one); and conspiracy to traffic in controlled substances, with

Degelmann as the coconspirator (count two). Petitioner, with help from

appellate counsel, sought a direct appeal, challenging the trial court’s failure to

permit Petitioner’s request for a special jury instruction. Resp. Ex. D. The First

DCA per curiam affirmed his judgment and sentences without a written opinion

Resp. Ex. G.

Petitioner filed with the First DCA a petition alleging his appellate

counsel was ineffective for failing to raise on direct appeal a claim that the trial

court erred in denying Petitioner’s judgment of acquittal on count two. Resp.

Ex. K at 7. The First DCA denied the petition “on the merits.” Resp. Ex. L.

Thus, the Court addresses this 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

28

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. 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.

Here, the record supports the trial court’s denial of Petitioner’s judgment

of acquittal as to count two; and thus appellate counsel cannot be deficient for

failing to pursue a meritless argument on direct appeal. Petitioner has also

failed to show a reasonable probability exists that the outcome of his appeal

would have been different had appellate counsel made this argument. 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 Five is denied.

f. Ground Six

Petitioner contends his trial counsel was ineffective for failing to renew

his motion for judgment of acquittal on count two – the conspiracy to traffic in

a controlled substance with coconspirator Degelmann – after the jury’s verdict.

Doc. 1 at 27-28.

29

Petitioner raised a similar claim in his Rule 3.850 motion. Resp. Ex. Q at

12-19. The trial court summarily denied the claim:

Supplemental Claim Thirteen raises the inconsistent-

verdict issue, which this Court has found meritless.

While there may be a factual inconsistency between

acquittal of attempt to traffic and conviction of

conspiracy to traffic, where the only amount of drugs

involved that day was sufficient to exceed the

trafficking threshold, there is no legal inconsistency

because it is possible to conspire to traffic in cocaine

without possessing, or attempting to possess, a

trafficking amount. See State v. Connelly, 748 So. 2d

248, 252 (Fla. 1999) (recognizing factual inconsistency,

but finding no legal inconsistency, between conviction

for introducing contraband into a jail and acquittal of

possession of cannabis, where the cannabis was the

only possible contraband).

Defendant claims that the evidence at trial was

insufficient to prove conspiracy with Degelmann, citing

Degelmann’s lack of knowledge whether Defendant

would show up with a kilo of cocaine on June 17, 2013.

Of course, such lack of knowledge would not keep

Degelmann from being a conspirator. Further, as noted

above in the analysis of Supplemental Claim Eleven,

defense counsel did move for judgment of acquittal

based on insufficiency of the evidence to prove the

conspiracy with Degelmann. Defendant alleges no

additional facts in Supplemental Claim Thirteen to

make the claim meritorious.

Resp. Ex. Q at 206-07. Petitioner appealed, and the First DCA affirmed the

denial, issuing the written opinion as quoted in Ground One. Resp. Ex. U.

The Court addresses Petitioner’s claim in accordance with the deferential

standard for federal court review of state court adjudications. And upon

30

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.

g. Ground Seven

Petitioner asserts his trial counsel was ineffective for failing to seek a

directed verdict of acquittal on count two, conspiracy to traffic in controlled

substances 400 grams but less than 150 kilograms with coconspirator

Degelmann, once the jury found Petitioner guilty of count one’s lesser included

offense of attempting to possess less than the trafficking amount of the same

controlled substance in count two. Doc. 1 at 30-31. According to Petitioner, his

conviction for count two constituted fundamental error and an inconsistent

verdict.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. Q at 10.

The trial court summarily denied the claim:

Defendant alleges counsel was ineffective for

failing to seek a directed verdict of acquittal on Count

Two, “where the jury found Defendant guilty of

Conspiracy to Traffic in Controlled Substances 400

grams but less than 150 kilograms, but found him

guilty on Ct. (1) of Attempting to Possess less than the

trafficking amount of the same controlled substance in

Ct. (2).” He argues that the two verdicts are truly

31

inconsistent. “As a general rule, inconsistent verdicts

are permitted in this state. However, an exception

exists where a true inconsistency, that is, where an

acquittal on one count negates an element necessary for

conviction on another, exists. . . .” Mantilla v. State, 38

So. 3d 196, 199 (Fla. 3d DCA 2010). “Inconsistent

verdicts are allowed because jury verdicts can be the

result of lenity and therefore do not always speak to the

guilt or innocence of the defendant.” Id. (quoting Brown

v. State, 959 So. 2d 218, 220-21 (Fla. 2007) (citation

omitted). Thus, a jury finding of not guilty of possession

of drugs is truly inconsistent with a jury’s finding the

same defendant guilty of trafficking based on

possession of those drugs. Id. However, “[s]imple

possession is not a necessarily lesser included offense

of trafficking by delivery, or sale, or any alternate

accusation besides possession.” McCluster v. State, 681

So. 2d 716, 717 (Fla. 2d DCA 1996). It follows, then,

that attempt to possess is not a necessarily lesser

included offense of trafficking, nor of conspiracy to

traffic.

A “true” inconsistent verdict is one “in which an

acquittal on one count negates a necessary element for

conviction on another count.” Fayson v. State, 698 So.

2d 825, 827 (Fla. 1997) (citations and internal

quotation marks omitted). In this case, Defendant was

charged with conspiring with James Degelmann “to

knowingly sell, purchase, manufacture, deliver, bring

into the State, or to be knowingly in actual or

constructive possession of 28 grams or more of Cocaine

. . . .” He was found guilty of attempted possession of

cocaine as a lesser included offense of attempt to traffic

in cocaine, and guilty of conspiracy to traffic in cocaine.

The jury was instructed on the elements of the crimes

charged, and of the lesser included offenses. Acquittal

of attempt to traffic in cocaine did not negate a

necessary element of conspiracy to traffic in cocaine,

according to the jury instructions. Therefore, the

verdicts in this case are not truly inconsistent, and

32

Defendant’s Supplemental Claim Ten is without merit.

Resp. Ex. Q at 203-04 (record citations omitted). Petitioner appealed, and the

First DCA affirmed the trial court’s denial, issuing the written opinion as

quoted in Ground One. Resp. Ex. U.

The Court addresses the claim under 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 Seven is denied.

h. Ground Eight

Petitioner argues his trial counsel was ineffective for refusing to file a

motion for new trial based on his own failure to object to inadmissible and

prejudicial evidence introduced at trial. Doc. 1 at 33.

Petitioner raised this claim in ground seven of his Rule 3.850 motion.

Resp. Ex. Q at 36-39. The trial court summarily denied the claim:

Defendant’s seventh ground alleges counsel’s

failure to raise several issues in a motion for new trial.

As to [the] alleged violation of Defendant’s right to due

process by actions of the confidential informant and law

enforcement officers, this Court has found no merit in

the claim. Likewise the claimed error regarding

33

Defendant’s Motion to Discharge Counsel. Next,

Defendant claims counsel failed to object to the State’s

evidence on grounds of its insufficiency. Insufficiency of

evidence is not a ground for objection to its admission;

furthermore, claims of insufficiency of the evidence

cannot be raised in a rule 3.850 motion. Jackson v.

State, 640 So. 2d 1173, 1174 (Fla. 2d DCA 1994).

Neither may Defendant save the claim by couching it

in terms of ineffective assistance of counsel. Arbelaez v.

State, 775 So. 2d 909, 915 (Fla. 2000). Defendant

alleges that Degelmann’s testimony that he was

charged with the same crime of conspiracy to traffic as

Defendant, but pled to a lesser charge, caused “a fatal

variance between allegation and the proof at trial[,]”

and constituted “an implicit amendment of the

information on Ct. (2), because [sic] pleading

Degelmann out of the conspiracy in Ct. (2), and

reducing the trafficking amount.” As in Ground Two,

Defendant’s assertion that a negotiated disposition of a

co-conspirator’s charges in another case affected the

charges or proof against Defendant in this case is

without support and meritless.

Defendant’s assertion that Degelmann’s

testimony was inadmissible due to [an] alleged due

process violation by law enforcement and the

confidential informant is without merit, as noted above.

Defendant also asserts that counsel was ineffective for

failing to object to admission of Defendant’s statements

to Agent Voege, because the State did not establish the

corpus delicti of conspiracy without those statements.

However, this Court finds abundant, unrebutted

evidence of the conspiracy in the record, without

depending on Defendant’s statements to Agent Voege.

Ground Seven is without merit.

Resp. Ex. Q at 201-02 (record citations omitted). Petitioner appealed, and the

First DCA affirmed the trial court’s denial, issuing the written opinion as

34

quoted in Ground One. Resp. Ex. U.

The Court addresses the claim under 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 Eight is denied.

i. Ground Nine

Petitioner alleges his trial counsel was ineffective for failing to challenge

Special Agent Voege’s illegal interrogation, which violated his right to counsel.

Doc. 1 at 35. Petitioner raised a similar claim in his Rule 3.850 motion. Resp.

Ex. Q at 10. Specifically, he stated:

Whether Counsel was ineffective for failing to

challenge the violation of Mr. Henry’s right to counsel

by Agt. Voege, “intentionally creating a situation likely

to induce Henry to make incriminating statements” to

Voege, “My guys would have come and got the work and

started selling it.” See Ayers v. Hudson, 623 F.3d 301

(6th Cir. 2010). Voege failed to honor Defendant’s right

to remain silent in securing statements. See Withrow

v. Williams, 507 U.S. 680 (1993). Counsel failed to seek

suppression of this testimony from use at trial, and/or

failed to move in limine to prohibit the State or its

witness, Agt. Voege, from mentioning this statement at

trial. An Evidentiary Hearing is required on whether

Counsel’s failure to challenge this violation of Mr.

35

Henry’s rights resulted from reasonable trial strategy.

See Strickland, supra.

Resp. Ex. Q at 10. The trial court summarily denied the claim as follows:

In his Memorandum of Law and Facts in Support of

Post-Conviction Relief, Defendant raises five additional

claims. The ninth claim alleges that counsel was

ineffective for failing to move to suppress Agent Voege’s

testimony that Defendant made the incriminating

statement, “My guys would have come and got the work

and started selling it.” Defendant alleges that Agent

Voege “intentionally created a situation likely to induce

[Defendant] to make incriminating statements[,]” and

“failed to honor Defendant’s right to remain silent in

securing statements.” Defendant fails to allege facts to

support these conclusory allegations. At trial, Agent

Voege’s testimony was unrebutted; he testified that,

after arresting Defendant, he read Defendant his rights

from a plastic card. Agent Voege testified that

Defendant acknowledged that he understood his rights,

and agreed to speak with Agent Voege. On those facts,

there was no basis to move to suppress, and Defendant

does not allege that his counsel was aware of any

contrary facts. Supplemental Claim Nine is without

merit.

Resp. Ex. Q at 203 (record citations omitted). Petitioner appealed, and the First

DCA affirmed the denial, issuing the written opinion as quoted in Ground One.

Resp. Ex. U.

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

36

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 Nine is denied.

j. Ground Ten

Petitioner contends his trial counsel was ineffective for failing to file a

motion in limine to prohibit the state or its witnesses from mentioning at trial

evidence of the investigation that led to Petitioner’s arrest, including evidence

that Petitioner and Gonzalez discussed cocaine at work because that evidence

was irrelevant and inadmissible. Doc. 1 at 37.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. Q at 6-7.

The trial court summarily denied the claim:

Defendant’s third ground argues that counsel

was ineffective for failing to file a motion in limine to

prohibit mention or evidence of the investigation that

led to Defendant’s arrest, on the ground that evidence

of the investigation was irrelevant to any issue before

the jury. As noted above, evidence of the circumstances

leading up to Defendant’s arrest was relevant and

material to conspiracy. This case is distinguishable

from Perez v. State, 79 So. 3d 140 (Fla. 3d DCA 2012).

In Perez, a state trooper performed a traffic stop for a

broken taillight. Perez, 79 So. 3d at 141. A consensual

search of the vehicle produced drugs. Id. It was error to

allow testimony that the Florida Highway Patrol was

in the area, or following the defendant, for a narcotics

investigation. Id. at 142. Here, in contrast, evidence of

how the confidential informant was used, and what

people were doing before arrest, was relevant to the

conspiracy charges.

37

Defendant also argues that he was prejudiced by

introduction of the term “work,” and the inference “that

people in the ‘drug game’ commonly use these phrases

or word[s] to reference drugs.” The argument is without

merit. Here, the term “work,” and its slang meaning,

were attributed to Defendant himself; no inference was

necessary, because Defendant provided the definition.

In Ground Three, Defendant takes issue with some of

the evidence introduced at trial. Defendant’s

arguments provide no basis for a meritorious objection

to any of that evidence, but go to the weight to be

accorded the evidence rather than its admissibility, or

constitute attacks on the sufficiency of the evidence.

None of the arguments state a meritorious basis to find

that counsel was ineffective.

Defendant argues further that, by finding

Defendant not guilty of attempt to traffic in cocaine in

Count One, the jury “believed a complete and

voluntarily [sic] renunciation or abandonment by

Defendant of his criminal purpose to commit the

Trafficking offense. . . .” Defendant’s interpretation is

not necessarily true. In any event, Degelmann’s

testimony that he intended to purchase a kilogram of

cocaine from Defendant remains unrebutted.

Defendant’s last argument on Ground Three is

that counsel was ineffective for failing to seek a

statement of particulars. Defendant fails to show, in

light of [the] evidence at trial, how that omission by

counsel prejudiced him.

Resp. Ex. Q at 199-200 (record citations omitted). Petitioner appealed, and the

First DCA affirmed the denial, issuing the written opinion as quoted in Ground

One. Resp. Ex. U.

The Court addresses Petitioner’s claims in accordance with the

38

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 Ten is denied.

k. Ground Eleven3

Petitioner asserts his trial counsel was ineffective for failing ask the state

for a statement of particulars alleging the specific act that constituted the

trafficking offense. Doc. 1 at 39.

Petitioner raised this issue as a sub-claim to ground three of his Rule

3.850 motion. Resp. Ex. Q at 31. As mentioned, the trial court denied the sub-

claim as follows:

Defendant’s last argument on Ground Three is

that counsel was ineffective for failing to seek a

statement of particulars. Defendant fails to show, in

light of [the] evidence at trial, how that omission by

counsel prejudiced him.

Resp. Ex. Q at 199-200 (record citations omitted). Petitioner appealed, and the

First DCA affirmed the denial, issuing the written opinion as quoted in Ground

One. Resp. Ex. U.

3 Petitioner duplicates the labeling of his grounds and refers to this Ground as

“Ground Ten.” Doc. 1 at 39. The Court will refer to this claim as “Ground Eleven.”

39

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 notes that a motion for statement of particulars may be filed when the

information fails to inform a defendant of the particulars of the offense

sufficient to enable him to prepare his defense. Fla. R. Crim. P. 3.140(n). Here,

there was no ambiguity in the information, and Petitioner has failed to establish

that he was prejudiced by any alleged ambiguity or that the information failed

to place him on notice sufficient to enable trial counsel to prepare a defense.

Trial counsel was fully aware of the charges and was sufficiently able to prepare

a defense. Thus, 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 Eleven is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) 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.

40

3. If Petitioner appeals this denial, the Court denies a certificate of

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 19th day of

August, 2024.

Ww Timothy fp. Corrigan

TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Keith Patrick Henry, #J43414

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.

Al