Clark v. Secretary, Florida Department of Corrections (Putnam County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

TRACI LYNNE CLARK,

Petitioner,

v. Case No. 3:21-cv-1063-TJC-SJH

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Traci Lynne Clark, 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

(Putnam County, Florida) judgment of conviction for driving under the

influence (DUI) manslaughter. She is serving a 124.95-month term of

incarceration, with a four-year minimum mandatory term, to be followed by a

four-year term of probation. Respondents filed a Response. See Doc. 10 (Resp.).1

The Court provided Petitioner with an opportunity to reply (Docs. 9, 12), but

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

as “Resp. Ex.”

she did not do so. 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

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

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.

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

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. Exhaustion and Procedural Default

There are prerequisites to federal habeas review. Before bringing a § 2254

habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]”

every issue raised in his federal petition to the state’s highest court, either on

direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351

(1989) (emphasis omitted). Thus, to properly exhaust a claim, “state prisoners

must give the state courts one full opportunity to resolve any constitutional

issues by invoking one complete round of the State’s established appellate

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope

v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the

state collateral review process as well as the direct appeal process.”).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘opportunity to pass upon and correct’ alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor, 404

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,” the

prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[3] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[4] supra, at 84–85, 97 S. Ct.

2497. A state court’s invocation of a procedural rule to

deny a prisoner’s claims precludes federal review of the

claims if, among other requisites, the state procedural

rule is a nonfederal ground adequate to support the

judgment and the rule is firmly established and

consistently followed. See, e.g., Walker v. Martin, 562

U.S. --, --, 131 S. Ct. 1120, 1127–1128, 179 L.Ed.2d 62

(2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct. 612,

617–618, 175 L.Ed.2d 417 (2009). The doctrine barring

procedurally defaulted claims from being heard is not

without exceptions. A prisoner may obtain federal

review of a defaulted claim by showing cause for the

default and prejudice from a violation of federal law.

See Coleman, 501 U.S., at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been

procedurally defaulted, a federal court may still consider the claim if a state

habeas petitioner can show either (1) cause for and actual prejudice from the

default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause and

prejudice,

the procedural default “must result from some objective

factor external to the defense that prevented [him] from

3 Coleman v. Thompson, 501 U.S. 722 (1991).

4 Wainwright v. Sykes, 433 U.S. 72 (1977).

raising the claim and which cannot be fairly

attributable to his own conduct.” McCoy v. Newsome,

953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Carrier,

477 U.S. at 488, 106 S. Ct. 2639).[5] Under the prejudice

prong, [a petitioner] must show that “the errors at trial

actually and substantially disadvantaged his defense

so that he was denied fundamental fairness.” Id. at

1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would result.

The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice, there

remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence of

a showing of cause for the procedural default.” Carrier,

477 U.S. at 496, 106 S. Ct. at 2649. “This exception is

exceedingly narrow in scope,” however, and requires

proof of actual innocence, not just legal innocence.

Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it

is more likely than not that no reasonable juror would have convicted him’ of

5 Murray v. Carrier, 477 U.S. 478 (1986).

the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants effective

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

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a

person must show that: (1) counsel’s performance was outside the wide range of

reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

Notably, 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 lack of sufficient prejudice, which we expect will often be so, that

course should be followed.” 466 U.S. at 697.

“The 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).

III. Factual and Procedural Background

On June 7, 2016, the state charged Petitioner with DUI manslaughter

(count one); DUI with damage to property (count 2); and DUI with a blood

alcohol level of .08 or higher (count three). Resp. Ex. A. State officials also issued

Petitioner a citation for driving on an expired driver’s license, which was

consolidated with her felony criminal case as count four. Resp. Exs. B, C. On

April 21, 2017, Petitioner entered a negotiated plea of nolo contendere to count

one in exchange for a four-year term of incarceration (a downward departure

from Petitioner’s scoresheet guidelines) followed by an eleven-year term of drug

offender probation. Resp. Ex. E. Under the plea agreement, the state agreed to

nolle prosequi counts two and three, with Petitioner’s sentence for count four to

be addressed at sentencing. Id.; Resp. Ex. F. During Petitioner’s scheduled

sentencing hearing on June 12, 2017, Petitioner “expressed dissatisfaction”

(Resp. Ex. BB at 3) and presented an ore tenus motion to withdraw her plea

(Resp. Ex. G).6 The trial court granted her request, allowed Petitioner to

withdraw her previously entered plea, and set the case for a pretrial status

6 Respondents do not provide a copy of the June 12, 2017, hearing transcript;

however, in its response to Petitioner’s state postconviction motion, the state

explained Petitioner “expressed dissatisfaction” during that hearing. See Resp. Ex. BB

at 3.

conference. Id.

On August 23, 2017, the state filed an Amended Information charging

Petitioner with DUI manslaughter (count one); DUI with damage to property

(count two); and DUI with a blood alcohol level of .15 or higher (count three).

Resp. Ex. H. The state ultimately nolle prossed counts two and three and

Petitioner proceeded to trial on count one. Resp. Ex. I at 5. The evidence

presented at trial is summarized in Petitioner’s initial brief filed on direct

appeal:

[Petitioner] was driving her boyfriend’s vehicle

when it went into the river. [Petitioner] was able to

escape the vehicle before it became submerged but

[Petitioner]’s boyfriend, Bryan Achison, was unable to

get out and died on the scene. Predrag Bulic, chief

medical examiner, performed an autopsy on Bryan

Achison and determined the cause of death to be

drowning.

Robert Baldwin lived nearby Browns Landing, a

boat dock in Palatka. Around 3:15 a.m. on October 4,

2015, Mr. Baldwin was awoken by [Petitioner]

pounding on the front door. Mr. Baldwin drove

[Petitioner] back to the boat dock and called 911 to

report the accident.

Justin Bedenbaugh, trooper with the Florida

Highway Patrol, arrived at the scene of the accident

around 3:30 a.m. and noticed that [Petitioner] had

bloodshot, watery eyes, slurred speech, mood swings,

and a strong odor of alcohol emitting from her. Mr.

Bedenbaugh testified that [Petitioner] consented to a

blood draw at the scene of the accident. Mr.

Bedenbaugh observed beer cans and a bottle of Fireball

whiskey in the rear of the vehicle when it was pulled

out of the river. Richard Newbern, emergency medical

technician, performed the blood draw of [Petitioner] at

the scene of the accident.

Kenson Jean, crime lab analyst, tested the blood

drawn from [Petitioner] and discovered the blood

alcohol concentration was 0.282 plus or minus 0.021

and 0.281 plus or minus 0.021 grams per 100

milliliters. Mr. Jean testified that the blood was

collected at 4:22 a.m.

Amy Caramagna, bartender, testified that

[Petitioner] and Mr. Achison came into the 3D Saloon

on October 3, 2015 around 7:30 p.m. Ms. Caramagna

also testified that [Petitioner] called her in the morning

to discuss tailgating and stated she had already drank

a bloody mary. Ms. Caramagna observed [Petitioner]

and Mr. Achison consume a couple of pitchers of beer

and two shots of Fireball whiskey. At one point in the

night, Ms. Caramagna witnessed Mr. Achison

stumbling around outside so she provided him some

water and started periodically checking on him but did

not see when [Petitioner] and Mr. Achison left the

establishment.

Desiree Dupont testified that [Petitioner] and

Mr. Achison came into Dean’s Still around 1:45 a.m.

and tried to order two shots of Fireball and a beer. Ms.

Dupont served [Petitioner] one Budlight beer. After

[Petitioner] drank several sips of it, Ms. Dupont

removed the bottle from the bar and poured out the

remaining liquid because [Petitioner] displayed

behavior that caused Ms. Dupont to become

uncomfortable serving her. Ms. Dupont testified that

[Petitioner] and Mr. Achison left Dean’s Still before

2:00 a.m.

Sergeant Lance Foureau testified that there

w[ere] no signs of braking near the crash site and the

vehicle was in fourth gear when it was pulled from the

river. Mr. Foureau arrived on the scene around 5:35

a.m. and testified that [Petitioner] was displaying signs

of impairment such as bloodshot, watery eyes, slurred

speech, and mood swings. Mr. Foureau conducted an

interview of [Petitioner] and the State published it to

the jury. During the interview, [Petitioner] stated that

she had four drinks all day.

The State rested. Defense moved for a judgment

of acquittal arguing the State failed to establish a

prima facie case because there was no evidence of

[Petitioner]’s impairment levels at the time the

accident actually occurred. The State argued that

based upon the evidence introduced, the jury can infer

that [Petitioner] did not go from the legal limit or no

alcohol in her system to three times the legal limit in a

matter of two hours. The court denied [Petitioner]’s

motion for judgment of acquittal.

Resp. Ex. T (record citations omitted). Petitioner did not call any trial witnesses

and following the charge conference, the defense rested. Resp. Ex. I at 265. The

jury then found Petitioner guilty of DUI manslaughter. Resp. Ex. J.

At sentencing, the state asked the trial court to adhere to Petitioner’s

scoresheet guidelines and sentence her to a 124.95-month term of incarceration.

Resp. Ex. L at 28. Defense counsel requested the imposition of a downward

departure sentence between four and five years incarceration, arguing that the

crime was committed in an unsophisticated manner, it was an isolated incident,

[Petitioner] had expressed remorse for her acts, and Mr. Achison was a willing

participant. Id. at 35-37. The trial court rejected trial counsel’s request and

sentenced Petitioner to a 124.95-month term of imprisonment to be followed by

a four-year term of drug offender probation. Id. at 38-39.

On direct appeal, Petitioner, with the benefit of counsel, filed an initial

brief under Anders v. California, 386 U.S. 738 (1967), representing that no good

faith argument of reversible error could be made. Resp. Ex. M. The Fifth

District Court of Appeal then entered an order directing Petitioner’s appellate

counsel to file with the trial court a motion to correct sentencing error under

Florida Rule of Criminal Procedure 3.800(b)(2) and advising the parties that

the action was no longer proceeding as an Anders appeal. Resp. Ex. O.

Petitioner then filed with the trial court a Rule 3.800(b)(2) motion arguing

Petitioner did not qualify for drug offender probation and requesting that the

probationary portion of her sentence be converted to standard probation. Resp.

Ex. P. The trial court held a hearing on the Rule 3.800(b)(2) motion, during

which it granted Petitioner’s request and converted her term of drug offender

probation into regular probation. Resp. Ex. Q. Petitioner, through appellate

counsel, again filed an initial brief under Anders. Resp. Ex. T. The state

declined to file an answer to the Anders brief. Resp. Ex. U. The Fifth DCA then

entered a written order affirming Petitioner’s judgment and conviction but

remanding for correction of a scrivener’s error on Petitioner’s written amended

order of probation. Resp. Ex. V.

IV. The Petition

A. Ground One

Petitioner asserts that the trial court erred in denying her motion for

judgment of acquittal, violating her due process rights. Doc. 1 at 5-6. According

to Petitioner, the state failed to present evidence that she was impaired at the

time of the accident because officers tested her blood-alcohol level hours after

the accident. Id. at 6.

At the close of the state’s case, trial counsel moved for a judgment of

acquittal, arguing as follows:

We would just simply argue that the State has

not established a prima facie case before the jury at this

time because essentially all the evidence that they have

shown is the blood alcohol levels. That would be after a

certain amount of time that has passed, not at the time

of the accident. I believe there was an indication that

the accident and the blood alcohol level draw had been

done at a certain amount of time apart, so, therefore,

it’s not a reflection of what it was at the accident. So,

therefore, not a reflection of what the impairment

levels may have been at the time the accident actually

occurred.

The same goes for any type of impairment issues

or observations by the witnesses as to being thick

tongued, smelling of alcohol, all those things. Those are

all, again, not at the time of the accident and not close

enough in time to the accident to establish a prima facie

case. And, therefore, a reasonable juror would not have

the ability to make that decision on that information.

Resp. Ex. I at 238-39. The state responded:

There’s three elements for DUI manslaughter.

One, Traci Lynn Clark drove or was in actual physical

control of the vehicle. By her own admissions

repeatedly between 911 and Trooper Foureau you hear

that she was the driver.

Two, while driving or in actual physical control of

[the] vehicle Traci Lynn Clark either -- and it comes

down to the blood alcohol level. Your Honor, there’s

testimony that she is three and a half times the legal

limit.

I understand defense’s argument that it is not --

there is a time gap, but that gap is -- that gap is possibly

two hours when you follow all the times of when they

left the -- when they left 3D Saloon -- I’m sorry. When

they left Dean’s Still. When the 911 call comes in, as

well as when Ms. Clark says the accident happens.

Your Honor, at the very least right now in the

case -- in the light most favorable to the State the jury

can infer that she did not get -- she did not go from a

legal limit or no alcohol to three times the legal limit in

a matter of two hours.

Lastly, Your Honor, that, as a result of operating

the vehicle, Traci Lynn Clark caused or contributed to

the -- the cause of death of Bryan Achison. You’ve heard

from the medical examiner that he drowned. You heard

from the recorded statement. You heard from 911 -- the

911 call, as well as Mr. Baldwin that Traci Clark was

the driver who drove that vehicle into the water.

Obviously, had she not driven into the water Mr.

Achison cannot drown.

As far as for judgment of acquittal, Your Honor,

we ask that you deny the motion as the State has put

on at least a prima facie case which is the standard at

this point in the hearing -- in the trial.

Resp. Ex. I at 240-41. The trial court then denied Petitioner’s motion (id. at

241), and afterwards denied Petitioner’s renewed motion once the defense

rested its case (id. at 265).

Later, in the Anders brief filed on direct appeal, appellate counsel, on

behalf of Petitioner, presented one potential issue for review – whether the trial

court erred in denying Petitioner’s motion for judgment of acquittal. Resp. Ex.

T. The Fifth DCA found the claim lacked merit and affirmed Petitioner’s

judgment and conviction. Resp. Ex. V; see Jenkins v. Bullard, 210 F. App’x 895,

898 (11th Cir. 2006) (holding that state appellate court’s affirmance of

petitioner’s judgment and sentence reflects that it reviewed issues flagged in

Anders brief and found them meritless).7

Here, Respondents contend that when raising this issue on direct appeal,

Petitioner failed to fairly present the federal nature of this claim to the state

court, and thus it is unexhausted and procedurally defaulted. Doc. 10 at 13.

They also assert the claim is otherwise without merit. See id. at 18-23.

First, the Court agrees that Petitioner did not present the federal nature

of this claim to the state appellate court. In her initial brief filed on direct

appeal, Petitioner did not state or suggest that she was raising a federal due

process claim, nor did she rely on any other federal constitutional guarantee.

Resp. Ex. T. Thus, this claim is unexhausted and procedurally defaulted, and

Petitioner has failed to show cause for or prejudice from this procedural bar.

7 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022);

see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

Likewise, Petitioner has not demonstrated that failure to consider this claim on

the merits will result in a fundamental miscarriage of justice.

In any event, assuming Petitioner exhausted the federal nature of this

claim, and it is otherwise properly presented to the Court, Petitioner is still not

entitled to the relief she seeks because the Fifth DCA’s affirmance is entitled to

deference. When reviewing an insufficiency of the evidence claim in a habeas

petition, a federal court must determine “whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979). The court must assume that the

jury resolved any evidentiary conflicts in favor of the prosecution, and the court

must defer to that resolution. Id.

Here, the evidence presented at trial supported the trial court’s denial of

Petitioner’s motion for judgment of acquittal. As the state noted when

responding to Petitioner’s ore tenus motion for judgment of acquittal, while

officers did not test Petitioner’s blood-alcohol level immediately after the

accident, it is unlikely that Petitioner’s blood-alcohol level would have increased

to three times the legal limit during the two-hour timelapse between the

accident and her blood draw. Indeed, the jury found Petitioner guilty of DUI

manslaughter as charged in the Amended Information. Resp. Ex. J. In doing so,

the jury found that the state proved these three elements beyond a reasonable

doubt:

One: [Petitioner] drove or was in actual physical control

of a vehicle. Two: While driving, or in actual control of

the vehicle, [Petitioner] either, A, was under the

influence of alcoholic beverages to the extent that her

normal faculties were impaired, or, B, had a blood

alcohol level of point 08 or more grams of alcohol per

100 milliliters of blood. And, three: As a result of

operating the vehicle [Petitioner] caused or contributed

to the cause of the death of Bryan Achison.

Resp. Ex. I at 292; see also § 316.193(3)c(3)a, Fla. Stat. Taken in the light most

favorable to the state, the Court finds there was sufficient evidence to permit a

rational trier of fact to find Petitioner guilty of this offense. As such, upon

review of the record, this Court concludes that the state court’s adjudication of

this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Ground One is denied.

B. Ground Two

Petitioner argues that her trial counsel was ineffective for advising her to

reject the state’s four-year plea offer and proceed to trial. Doc. 1 at 7. According

to Petitioner, trial counsel guaranteed her that if she went to trial, she would

receive a “more beneficial” sentence or outcome. Id. She contends trial counsel

failed to advise her that her DUI manslaughter charge carried a four-year

minimum mandatory sentence, the state’s plea offer was below her scoresheet

guidelines, and that the plea offer was less than any sentence she would receive

if she was found guilty at trial. Id. She also contends she was unaware that if

she was convicted at trial, the trial court would likely follow her scoresheet

guidelines when imposing her sentence unless it found a downward departure

was appropriate. Id. Petitioner asserts that if trial counsel properly informed

her of the consequences and benefits surrounding the offer, she would have

accepted. Id. at 9. And she argues that the postconviction court erred in failing

to hold an evidentiary hearing on this issue. Id.

Petitioner raised this claim in her Florida Rule of Criminal Procedure

3.850 motion. Resp. Ex. Z. The trial court summarily denied the claim as

follows:

As to Defendant’s claims that her attorneys

misled her because she was unaware of the minimum

possible sentence, the maximum possible sentence, and

the four-year minimum mandatory sentence, these

claims are refuted by the record. On April 21, 2017,

Defendant entered a plea in this case. The Plea

Agreement, which she initialed and signed, clearly

states under the “charges” section that the maximum

imprisonment for her charge was fifteen years and

there was a four-year minimum mandatory. The

handwritten negotiated agreement section on page one

states that the four year offer was a “min/man” and that

“This is a downward departure from the scoresheet.”

The Defendant’s initials, TC, appear at the end of the

handwritten section on page two of the Plea

Agreement. Furthermore, there is a hand written

section where it clearly states the scoresheet minimum

[was] 194.6 points or 124.95 months DOC,

approximately 10.5 years. Defendant initialed

throughout the Plea Agreement that she understood

the possible sentence, agreed upon the sentence, and

that she was satisfied with her Counsel. She signed at

the end of it. The plea was accepted by the Court and

set out for sentencing on June 12, 2017.

On June 12, 2017, Defendant came back to Court

for sentencing. At that time, she expressed

dissatisfaction and was ultimately allowed to withdraw

the plea. The case was set for docket call on August 21,

2017, and jury selection on August 28, 2017. On August

28, 2017, before jury selection commenced, there was a

conversation on the record about the plea negotiations

that occurred in this case. Assistant State Attorney

Janesk placed on the record the maximum penalty of

fifteen years, the four-year minimum mandatory, and

the fact that death points would bring her scoresheet

minimum to around ten and a half years. He also placed

on the record that Defendant did not want either of the

State’s offers and that she wanted a jury trial. Trial

Counsel Hubbard placed on the record that all of this

had been communicated to his client. The Trial Court

asked Defendant if she understood all of the above and

discussed it with her attorneys, and Defendant agreed.

The Trial Court ultimately sent Defendant into the jury

deliberation room to speak to her attorneys for a period

of time to discuss their options. After those discussions,

Defendant stated her decision to go to trial.

In order to prevail on her claim and establish

prejudice, Defendant must allege and show a

reasonable probability sufficient to undermine

confidence in the outcome that 1) she would have

accepted the offer had Counsel advised her correctly, 2)

the Prosecutor would not have withdrawn the offer, 3)

the Court would have accepted the offer, and 4) the

conviction and/or sentence under the offer’s terms

would have been less severe than under the judgment

and sentence that was imposed. Alcorn v. State, 121 So.

3d 419, 430 (Fla. 2013).

A review of the record shows that Defendant

agreed that she had spoken to Trial Counsel before

August 28, 2017, and she was given an opportunity to

speak again to her Counsel that day. After those

opportunities, she did not accept the State’s offer. The

record indicates that Hubbard had reached back out to

the Assistant State Attorney to re-secure the

opportunity for a pre-trial plea offer after it had been

withdrawn by the State. Defendant was given an

opportunity multiple times prior to jury selection to

accept offers that would have constituted downward

departures. Defendant entered a written plea

agreement but decided to withdraw her plea and go to

trial. Defendant has not met her burden on the first

prong of Alcorn.

Nor can she meet her burden on the second prong

of Alcorn, that the Prosecutor would not have

withdrawn the offer. It was clear that after Defendant

rejected the offer and decided to proceed to trial, the

offer was withdrawn. At no time during the proceedings

on August 28, 2017 did the Prosecutor place the offer

back on the table.

The Court finds that the first two prongs of

Alcorn have not been met. Ground One is denied.

Resp. Ex. CC at 3-5 (record citations omitted). Petitioner appealed, and the

Fifth DCA per curiam affirmed the trial court’s denial without a written

opinion. Resp. Ex. GG. The Court addresses this claim in accordance with the

deferential standard for federal court review of state court adjudications.

In doing so, the Court defers to the state court’s conclusion that Petitioner

has failed to satisfy the purviews of Strickland. In the context of a rejected plea

offer, the prejudice prong requires the movant to show “a reasonable probability

that but for counsel’s ineffectiveness: (1) ‘the plea offer would have been

presented to the court (i.e., that the defendant would have accepted the plea

and the prosecution would not have withdrawn it in light of intervening

circumstances)’; (2) ‘the court would have accepted its terms’; and (3) ‘the

conviction or sentence, or both, under the offer’s terms would have been less

severe than under the judgment and sentence that in fact were imposed.’” Osley

v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014) (quoting Lafler v. Cooper,

566 U.S. 156, 164 (2012)). But “after the fact testimony concerning [the

movant’s] desire to plead, without more, is insufficient to establish that but for

counsel’s alleged advice or inaction, [s]he would have accepted the plea offer.”

Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991).

Here, unlike typical claims challenging a trial counsel’s alleged misadvise

regarding a plea offer, the record shows Petitioner at first accepted the state’s

four-year plea offer, but later withdrew that acceptance and advised the trial

court she wished to proceed to trial. That said, even under these circumstances,

Petitioner has not shown a reasonable probability that absent counsel’s alleged

misconduct, Petitioner would have not withdrawn her plea or that the state,

following Petitioner’s withdrawal, would have renewed that offer given

intervening circumstances. Indeed, Petitioner seemingly alleges that she would

not have withdrawn her acceptance if trial counsel advised her (1) the charge

in count one carried a four-year minimum mandatory sentence, (2) the state’s

plea offer was below her scoresheet guidelines, and (3) the plea offer was below

any sentence she would receive if she was found guilty at trial unless the trial

court found a downward departure sentence was appropriate. But, as the trial

court explained, the April 21, 2017, written negotiated plea form clearly stated

that the maximum sentence for count one – DUI manslaughter – was fifteen

years with a four-year minimum mandatory. Resp. Ex. E. It also noted that

Petitioner’s scoresheet guidelines for count one totaled 124.95 months (about

10.5 years) and that, under the plea agreement, the state would concede to the

imposition of a downward departure sentence of four years for count one and

nolle pros the charges in counts two and three. Id. at 1-2. Petitioner signed the

written agreement and certified her understanding of the consequences and

benefits of its terms by initialing each provision within the document. Id.

On June 12, 2017, during what would have been Petitioner’s sentencing

hearing, Petitioner verbally moved to withdraw her plea and the trial court

granted her request.8 Resp. Ex. G. On August 28, 2017, before jury selection,

the trial court, the state attorney (Mr. Janesk), defense counsel (Mr. Hubbard),

and Petitioner had the following discussion about prior plea negotiations:

MR. JANESK: Your Honor, originally the offer was 4

followed by 11 years of probation. Special condition

drug offender probation, with the condition of paying

the restitution for the funeral expenses. That offer at

8 As noted, the record does not contain a copy of the June 12, 2017, transcript.

one point was accepted. And then at sentencing the

defendant requested to withdraw her plea.

Mr. Hubbard got on the case.[9] He resecured that

offer for a limited time. They -- that did not happen. The

last offer that kind of went back and forth was either

straight six -- two options, really: either a DOC range

of four to six years, with the restitution and the

probation on the back end; or just an agreed-upon six,

follow[ed] by the remainder of probation.

It’s my understanding that the defendant doesn’t

want that offer. I just want to get all that on record,

Your Honor.

Essentially what it would be is -- obviously, her

scoresheet --

I’m sorry. Four to eight. I’m sorry. I misspoke,

Your Honor.

It was essentially -- with a scoresheet -- if the

defendant was found guilty, the scoresheet would be

about ten-and-a-half years minimum. So I just wanted

to get all that on the record.

And I understand that the defendant doesn’t

want it. She wants a jury trial.

THE COURT: And I understand the DUI manslaughter

is a second-degree felony, maximum is 15 years.

MR. JANESK: Maximum is 15 years, Your Honor.

There is a four-year minimum mandatory that comes

with it. However, once the -- if found guilty, once the

death points are factored in, the scoresheet minimum

really becomes ten and a half.

9 Assistant Public Defender Tyler Williams represented Petitioner throughout

her case and Assistant Public Defender James Hubbard later joined as William’s

cochair for Petitioner’s trial.

THE COURT: I see. Ms. Clark, do you understand all

that?

THE DEFENDANT: A little bit.

THE COURT: What part do you not understand?

. . .

THE DEFENDANT: I’m just not sure right now. I don’t

-- I don’t know what’s -- I mean, it was four to eight

earlier. Now it’s four to six.

MR. JANESK: And I misspoke. I meant four to eight.

I’m sorry. It was -- four to eight was the range, or a

straight six.

Basically, if -- if there wants to be some wiggle

room where Defense can argue for just the minimum

and I can argue for more, so be it. If they want to just

take a guaranteed six, that’s fine as well. But those are

the two -- I don’t mean to have a door one or two. But

that way the defendant can have a little bit of options.

THE COURT: Okay. So if I understand correctly, the

plea agreement is a downward departure from the

guidelines.

MR. JANESK: It would be, Your Honor.

THE COURT: Okay. And who’s going to be lead counsel

for the --

MR. HUBBARD: I will be, Your Honor.

THE COURT: You’re Mr. Hubbard?

MR. HUBBARD: Yes, sir.

THE COURT: All right. And has -- has all that been

communicated to your client?

MR. HUBBARD: It has, Your Honor.

THE COURT: Okay.

And, Ms. Clark, do you understand that if you’re

convicted as charged, to some extent, the four-year

mandatory minimum would apply. And absent a good

legal reason which is outlined by statute for me to

depart, I would not have the ability to depart from what

appears to be ten-and-a-half years.

Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. Have you discussed that with your

attorneys?

THE DEFENDANT: Yes, sir.

THE COURT: Now, I want you to understand, I don’t

know anything about you. I don’t -- I don’t know

anything about the facts of this case. I learn about what

the facts are the same time the jury does.

So if the route that you-all go, which I call it a

high/low, which is one of -- one of the options between -

-

Was it four and eight?

MR. JANESK: Four and eight, Your Honor. Yes.

THE COURT: Okay. I can tell you, I started as [an]

assistant public defender in 1980. And during the

course of my career I’ve had plea ranges where -- some

judges, they start at the top. And it’s my -- defense

lawyers’ obligation to talk them down. There are some

judges, they start at the bottom. And it’s up to the

prosecutor to work them up. Okay? I don’t take either

approach.

If it’s a range -- I have to rely on the attorneys to

bring evidence and testimony to try to get the

appropriate sentence for your case.

Now, like I said, I don’t know anything about you.

I don’t know if you have any prior record whatsoever.

You’d be entitled -- if you don’t, you’d have -- you’d be

entitled to a presentence investigation, which would

help some.

But once -- once the witnesses start testifying,

control of the case is out of everybody else’s hands, and

it’s up to a jury at that point. And then decisions are

made from then. Okay?

THE DEFENDANT: Yes, sir.

THE COURT: So if you would --

Is she out on bond?

MR. HUBBARD: She is.

THE COURT: Okay. Before we bring the jury up, I’d

like for you and your attorneys to go into the jury room

one last time and -- while I’m taking the plea in this

other case -- and discuss realistically what the options

are.

And sometimes in life -- and I’ve been in Mr.

Hubbard and Mr. Williams’ position as assistant public

defender, and then later in private practice, where your

client has a choice between two distasteful options, and

one of which is the unknown future.

So it’s a distasteful known versus an unknown,

which can be catastrophic. Okay?

So why don’t y’all go into the jury room and talk

one last time, ma’am, while I take care of this other

case.

THE DEFENDANT: Yes sir.

. . . .

THE COURT: Ms. Clark, have you had an opportunity

to discuss the plea negotiations one last time with your

attorneys?

THE DEFENDANT: Yes, sir.

THE COURT: And what has been your decision as to

whether to take the plea agreement or go to trial?

THE DEFENDANT: Trial.

THE COURT: Pardon?

THE DEFENDANT: Trial.

THE COURT: Go to trial. All right.

Resp. Ex. BB at 567-72.

This record evidence shows that when Petitioner withdrew her negotiated

plea to the state’s four-year offer, it was resurrected again but Petitioner did

not accept it. Then, the state declined trial counsel’s later attempt to revive the

terms of that offer and instead presented Petitioner with two other options.

Notably, the state explained that Petitioner could enter a plea in exchange for

either a sentence within a four-to-eight-year range, or a six-year term of

incarceration. Thus, Petitioner has failed to show that despite intervening

circumstances, the state was willing to revive its four-year offer.

The record also shows that Petitioner was unwilling to accept the state’s

four-year offer or any of the state’s other proposed plea terms. Indeed, Petitioner

maintained her refusal to plea despite being fully aware of the maximum

sentence she faced if she went to trial, including the four-year minimum

mandatory, and despite knowing that the proposed sentences under the offers

were downward departures from her sentencing guidelines. After Petitioner

advised the trial court, under oath, that she knew the benefits of these plea

offers, the trial court afforded her additional time to reconsider her rejection.

But notwithstanding that additional consideration, Petitioner upheld her

decision to proceed to trial. “Given [Petitioner’s] awareness of the plea offer[s],

[her] after the fact testimony concerning [her] desire to plead, without more, is

insufficient to establish that but for counsel’s alleged advice or inaction, [s]he

would have accepted the plea offer[s].” Diaz, 930 F.2d at 835. Petitioner was

steadfast in her decision to reject all plea offers. 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 is not based on an unreasonable determination

of the facts in light of the evidence presented to the state court.

Also, to the extent that Petitioner claims the postconviction court erred

in failing to hold an evidentiary hearing on this claim, that allegation is an issue

of state law and includes no federal constitutional infirmity. Such claims that

do not present a constitutional challenge to the validity of Petitioner’s judgment

and sentence are not cognizable on federal habeas review. See Anderson v. Sec’y

for Dep’t of Corr., 462 F.3d 1319, 1330 (11th Cir. 2006)) (“We have held the state

court’s failure to hold an evidentiary hearing on a petitioner’s 3.850 motion is

not a basis for federal habeas relief.”). As such, Ground Two is denied.

C. Ground Three

Petitioner argues that the trial court erred in granting the state’s motion

for destruction of evidence, violating her rights under the Fourth Amendment

and Due Process Clause. Doc. 1 at 10. According to Petitioner, when she filed

her Rule 3.850 motion with the state court on May 16, 2019, the clerk

reclassified her trial court case to “REOPEN status.” Id. As such, according to

Petitioner, the trial court’s December 11, 2019, order granting the state’s

motion for destruction of evidence was improper because “as long as the instant

case remained open, in any capacity,” the trial court is prohibited from

permitting the destruction of any evidence. Id.

Respondents argue that this claim is unexhausted and procedurally

defaulted. Resp. at 14-16. The Court agrees.

On December 11, 2019, about a year after the Fifth DCA affirmed

Petitioner’s judgment and conviction and while Petitioner’s Rule 3.850 motion

was pending, the state filed with the trial court an “In re” motion for destruction

of evidence under § 893.12, Florida Statutes, seeking an order to permit the

destruction of “certain controlled substances and confiscated property items.”

Resp. Ex. II. That same day, the trial court entered an “In re” order granting

the state’s request. Resp. Ex. JJ. Petitioner did not appeal the trial court’s order

or otherwise seek review of the trial court’s decision in state court even though

she had the ability to do so. Indeed, claims challenging the destruction of

evidence are cognizable under Rule 3.850. See McDonald v. State, 2 So. 3d 1018,

1019 (Fla. 3d DCA 2008) (noting that the appellant’s claim that the prosecution

destroyed evidence in bad faith is cognizable in a Rule 3.850 motion).

Here, Petitioner alleges she learned about the trial court’s order granting

the state’s motion for destruction of property seven months after the trial court

issued its order – on or around July 12, 2020. See Doc. 1 at 10. The trial court

did not issue its order denying Petitioner’s Rule 3.850 motion until December

8, 2020. Resp. Ex. CC. And thus, Petitioner had more than four months to

amend her pending Rule 3.850 motion to raise this claim and exhaust it for

purposes of federal habeas review. However, she did not do so. As a result, this

claim is unexhausted and procedurally defaulted, and Petitioner has failed to

show cause for or prejudice from this procedural bar. Likewise, Petitioner has

failed to demonstrate that failure to consider this claim on the merits will result

in a fundamental miscarriage of justice. Ground Three 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.

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 29t day of

January, 2025.

& Cimotbeg g. Corrig on

Wy. TIMOTHY J. CORRIGAN

Senior United States District Judge

10 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.

33

Jax-7

C: Traci Lynne Clark, V53270

Counsel of record