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

> District Court, M.D. Florida · August 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10642705

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 19, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10642705

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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).

7
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
14
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
15
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:
16
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642705. Public record. Not legal advice.