Delapena v. Florida Department of Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO: 24-cv-80250-Middlebrooks/Matthewman

DAMION ANTHONY DELAPENA,

Petitioner, FILED BY__SW__D.c.

v.

Feb 3, 2025

DEPARTMENT OF CORRECTIONS,

STATE OF FLORIDA, CLERK U S DIST CT.

5.0. OF FLA. - wes

Respondent.

eee

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

ON PETITIONER’S PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAS

CORPUS BY A PERSON IN STATE CUSTODY [DE 1]

THIS CAUSE 1s before the Court upon Petitioner, Damion Anthony Delapena’s

(“Petitioner”) Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State

Court Custody (“Petition”) [DE 1]. The matter was referred to the undersigned United States

Magistrate Judge by the Honorable Donald M. Middlebrooks, United States District Judge. See

DE 3. Respondent, the Department of Corrections, State of Florida (“Respondent”), has filed an

Amended Response to the Petition [DE 11], an Appendix [DE 7], and transcripts [DE 8; 9; 10].

Petitioner has opted not to file a reply. The Court has reviewed and carefully considered the

Petition, the Response, the exhibits, the transcripts, and all pertinent portions of the underlying

criminal file.

I. BACKGROUND

On March 23, 2018, Petitioner was charged by Amended Information with robbery with a

deadly weapon while wearing a mask, in violation of sections 812.13(1) and (2)(a) and 775.0845,

Florida Statutes, in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach

County, Florida (case number 2018CF001253AMB). [DE 7-1, Ex. 7].

On April 19, 2018, Petitioner was charged a second time by Amended Information with

robbery with a deadly weapon while wearing a mask, in violation of sections 812.13(1) and (2)(a)

and 775.0845, Florida Statutes, in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm

Beach County, Florida (case number 2018CF001303AMB). [DE 7-1, Ex. 1].

On April 19, 2018, Petitioner was charged a third time by Amended Information with

robbery with a deadly weapon while wearing a mask, in violation of sections 812.13(1) and (2)(a)

and 775.0845, Florida Statutes, in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm

Beach County, Florida (case number 2018CF001255AMB). [DE 7-1, Ex. 3].

Then, on April 23, 2018, Petitioner was charged a fourth time by Amended Information

with two counts of robbery with a deadly weapon while wearing a mask, in violation of sections

775.087(2)(a)1, 812.13(1) and (2)(a) and 775.0845, Florida Statutes, and one count of aggravated

assault (deadly weapon) while wearing a mask, in violation of sections 784.021(1)(a) and

775.0845, Florida Statutes, in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm

Beach County, Florida (case number 2018CF002989AMB). [DE 7-1, Ex. 9].

Finally, on May 16, 2018, Petitioner was charged by Information with two counts of

robbery with a firearm, in violation of sections 775.087(2)(a)l, 812.13(1) and (2)(a), Florida

Statutes, in in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County,

Florida (case number 2018CF003976AMB). [DE 7-1, Ex. 5]. All were first-degree felonies, except

for the aggravated assault (deadly weapon) while wearing a mask, which was a second-degree

felony.

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On March 5, 2019, Petitioner pleaded guilty to all charges in all of the cases. [DE 7-1, Ex.

11]. He also initialed and signed the Waiver of Rights Sheet. [DE 7-1, Ex. 11]. On June 7, 2019,

the state court judge sentenced Petitioner to 330 months in prison with 427 days as credit for time

served. [DE 7-1, Ex. 13]. On June 26, 2019, Petitioner filed a Notice of Appeal from Final Order.

[DE 7-1, Ex. 16]. Thereafter, on or about July 2, 2019, Petitioner filed a pro se Motion to Withdraw

Plea After Sentencing. [DE 7-1, Ex. 14]. That motion was denied. [DE 7-1, Ex. 15]. On January

8, 2020, Petitioner voluntarily dismissed his appeal under Florida Rule of Appellant Procedure

9.350(b). [DE 7-1, Ex. 17]. The appeal was thereafter dismissed. [DE 7-1, Ex. 18].

On January 15, 2020, Petitioner filed a Motion for Postconviction Relief, arguing that he

received ineffective assistance of counsel in that his attorney failed to advise him that there were

grounds to file a motion to suppress, advised him that the cell phone records were not beneficial,

and advised him to reject a favorable plea offer and enter an open plea because there were grounds

for a downward departure. [DE 17-1, Ex. 19]. The trial court determined that it was appropriate to

hold an evidentiary hearing on the Motion for Postconviction Relief. [DE 17-2, Ex. 21]. Thereafter,

Petitioner requested leave to amend Ground 3 of the motion, which relief was granted. [DE 17-2,

Ex. 22].

On January 11, 2023, the trial court conducted an evidentiary hearing and then entered a

Final Order Denying Defendant’s Motion for Postconviction Relief After Evidentiary Hearing on

February 21, 2023. [DE 17-2, Ex. 23]. On March 22, 2023, Petitioner appealed the Order to the

Fourth District Court of Appeal. [DE 17-2, Ex. 24]. On November 9, 2023, after the appeal was

fully briefed, the Fourth District Court of Appeal per curiam affirmed the denial of Petitioner’s

motion. [DE 17-3, Ex. 28; Delapena v. State, 373 So. 3d 1152 (Fla. 4th DCA 2023)]. Mandate was

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issued on December 1, 2023. [DE 17-3, Ex. 29].

II. PETITION AND RESPONSE

A. The Petition [DE 1]

In the Petition, Petitioner seeks federal habeas relief on three different grounds: (1) that

defense counsel rendered ineffective assistance of counsel by advising Petitioner that there were

no grounds to file a motion to suppress (“Ground 1); (2) that defense counsel rendered ineffective

assistance of counsel by advising Petitioner that there were grounds for a downward departure

should he enter an open plea (“Ground 2”); and (3) that defense counsel rendered ineffective

assistance of counsel by advising Petitioner that the cell phone records obtained during discovery

were not beneficial to him (“Ground 3”). [DE 1-2].

As to Ground 1, Petitioner argues the postconviction court “unreasonably applied clearly

established Federal law by finding Delapena’s ineffective assistance of counsel claim failed

because the search warrant did contain probable cause to search Delapena’s residence, and defense

counsel cannot be found ineffective for failing to file a meritless motion to suppress.” [DE 1-2 at

10]. He claims that he did, in fact, “establish that a motion to suppress would have been granted

had it been filed” because the affidavit “failed to establish probable cause that Delapenas were

involved in the robberies.” Id. at 11. Petitioner additionally asserts that “law enforcement lacked

probable cause to believe evidence would be at the residence of the Delapenas.” Id. at 13. He

argues that, “law enforcement at most established that they had reasonable suspicion to believe the

vehicle may have been used in the robberies. This did not form a basis to search the Delapenas’

residence.” Id. at 14.

As to Ground 2, Petitioner argues that the postconviction court’s “denial resulted in a

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decision that was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” Id. at 19. This is because the postconviction court’s

first point about the claim failing because Delapena made a decision to enter an

open plea without defense counsel’s advice is contrary to the clear and convincing

evidence presented in the State Court proceedings. Defense counsel testified at the

evidentiary hearing that Delapena advised him of his interest to enter an open plea

just prior to the start of trial. Prior to Delapena entering the open plea, defense

counsel provided Delapena advice about downward departure sentencing. Since the

evidence demonstrates that defense counsel’s advice preceded Delapena[’s] entry

of the open plea, the postconviction court could not conclude that Delapena’s

decision to enter an open plea was made without regard to defense counsel’s advice.

Id. Next, he claims that the postconviction court’s “second reason for denying relief does not

address Delapena’s claim” in that “Delapena never asserted that he was unaware of the trial court’s

discretion to afford a downward departure sentence or of the sentencing exposure. The evidence

demonstrates that Delapena never asserted that he was promised a certain sentence[.]” Id. at 20.

According to Petitioner, “[d]efense counsel provided misadvice regarding the availability [of a]

downward departure sentence because he advised Delapena of and argued grounds that were not

and could not legally form a basis for a trial court to enter downward departure sentence.” Id.

Finally, as to Ground 3, Petitioner argues that his brother Dewayne’s cell phone records

show that Dewayne was never in the area of any of the robberies at issue and Petitioner’s cell

phone records show that he was nearly two hours away when the January 28th robbery occurred.

Id. at 23. He claims that the postconviction court’s “denial resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence presented in the State court

proceeding. Contrary to the postconviction court’s conclusion, defense counsel’s advice about the

cell phone records not being beneficial was unreasonable.” Id. at 25. Petitioner further asserts that,

at the 3.850 proceeding” he “demonstrated that defense counsel performed deficiently by

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incorrectly advising him that the cell phone records were not beneficial to his defense” and also

“demonstrated that he was prejudiced by defense counsel’s deficient performance because he

would not have entered the open plea had he realized the phone records were beneficial to his

defense.” Id. at 26.

B. The Response [DE 11]

The State first argues that Petitioner’s claims in Grounds 1 and 3 have been waived and

procedurally barred as a matter of law because Petitioner plead guilty to all charges without

reserving the right to appeal and waived his right to a trial, to call witnesses, and to challenge how

the evidence against him was obtained. [DE 11 at 40–44].

Next, as to Ground 1, the State contends that “Petitioner has failed to show either how the

state court’s application of Strickland was unreasonable, or that the state court made an

unreasonable determination of the facts in light of the evidence presented in the state court

proceedings.” Id. at 47. The State argues that “[u]nder the totality of the circumstances outlined in

the supporting affidavit in the case at bar, it is clear that probable cause existed and, therefore, the

judge did not err in issuing the search warrant.” Id. at 48. Thus, “Petitioner would not have been

successful in getting the evidence seized from the residence suppressed.” Id. It also asserts that,

“[e]ven assuming, arguendo, that the affidavit in support of the search warrant was insufficient,

Petitioner did not assert anything to overcome the ‘good faith’ exception to the exclusionary rule.”

Id. at 52.

As to Ground 2, the State again contends that “Petitioner has failed to show either how the

state court’s application of Strickland was unreasonable, or that the state court made an

unreasonable determination of the facts in light of the evidence presented in the state court

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proceedings.” Id. at 57. More specifically, the State maintains that, “[i]n order to make his

argument, Petitioner by necessity ignores that Mair testified that Petitioner was never interested in

a plea prior to the day of trial and that the switch to making an open plea of guilt to the court was

made by Petitioner at the last minute.” Id. In other words, it “was Petitioner’s idea to plead hoping

that the judge would give him a lenient sentence and Petitioner’s trial counsel even testified that

‘he never advised Petitioner they could file a motion for downward departure in order to get

Petitioner to enter an open plea.’” Id. Instead, “the suggestion only came about after Petitioner had

already made his decision to enter the plea.” Id. The State also argues that Petitioner cannot

establish prejudice since the “credible evidence adduced at the hearing showed that Petitioner

arrived at court that morning and had decided to enter an open plea” and “[a]ny testimony from

Petitioner on this issue should be completely disregarded where the record is clear that Petitioner

lied about an alleged 7-year offer from the State in order to get a hearing.” Id. at 58.

Finally, as to Ground 3, the State points out that it “did not allege that Petitioner and his

brother committed the robberies together” and, “Petitioner has nothing to support this assertion

other than his own self-serving testimony at the hearing that Dewayne never let anyone else drive

his car (EH. 40), which the trial court justifiably did not find credible.” [DE 61]. The State also

clarifies the time stamp evidence and points out that hearing testimony shows that the “phone

records don’t conclusively show that Petitioner was not in an area.” Id. at 61–62. The States argues

that the “record does not support Petitioner’s claim that the cell records would have support

something akin to an alibi defense and trial counsel was not ineffective for advising Petitioner that

the cell records were ‘not particularly helpful.’” Id. at 62.

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III. WHETHER PETITIONER IS ENTITLED TO AN EVIDENTIARY

HEARING

As a preliminary matter, the Court finds that an evidentiary hearing is not required in this

case. “Because this habeas petition can be resolved by reference to the state court record there is

no need for an evidentiary hearing.” Josey v. Inch, No. 19-62510-CV, 2020 WL 2497884, at *3

(S.D. Fla. Apr. 22, 2020), report and recommendation adopted, No. 19-CV-62510, 2020 WL

2494642 (S.D. Fla. May 14, 2020) (citing 28 U.S.C. § 2254(e)(2)); Schriro v. Landrigan, 550 U.S.

465, 474 (2007)) (holding that, if the record refutes the factual allegations in the petition or

otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing).

Here, Petitioner has failed to demonstrate the existence of any factual disputes that warrant a

federal evidentiary hearing. Furthermore, his claim does not rely on a “new rule of constitutional

law” or a “factual predicate that could not have been previously discovered through the exercise

of due diligence,” and the facts of the underlying claim do not establish by clear and convincing

evidence that “but for constitutional error, no reasonable factfinder would have found [Petitioner]

guilty of the underlying offense.” See 28 U.S.C. § 2254(e). Therefore, Petitioner is not entitled to

an evidentiary hearing and no evidentiary hearing shall be scheduled.

Further, the Court finds and RECOMMENDS that Petitioner’s Petition be DENIED in its

entirety, as discussed in detail below.

IV. RELEVANT LAW

Pursuant to 28 U.S.C. § 2254(d), an individual in state custody is entitled to federal habeas

corpus relief only on the ground that he is in custody in violation of the United States Constitution

or laws or treaties of the United States. To obtain habeas corpus relief from a federal court, a

prisoner must demonstrate that the state court’s ruling on the claim: 1) resulted in a decision that

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was contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or 2) resulted in a decision that 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); see also Williams v. Taylor, 529 U.S. 362, 405–06 (2000);

Fugate v. Head, 261 F.3d 1206, 1215–16 (11th Cir. 2001).

“A state-court decision is contrary to this Court’s clearly established precedents if it applies

a rule that contradicts the governing law set forth in this Court’s cases, or if it confronts a set of

facts that is materially indistinguishable from a decision of this Court but reaches a different

result.” Brown v. Payton, 544 U.S. 133, 141 (2005); Williams, 529 U.S. at 405–06. “A state-court

decision involves an unreasonable application of this Court’s clearly established precedents if the

state court applies such precedents to the facts in an objectively unreasonable manner.” Id. In the

context of habeas petitions, “clearly established Federal law” refers to the holdings of the Supreme

Court’s decisions as of the time of the relevant state court decision. Hall v. Head, 310 F.3d 683,

690 (11th Cir. 2002) (citing Williams, 529 U.S. at 412). Federal courts are required to presume the

correctness of the state court’s factual findings unless the petitioner overcomes them by clear and

convincing evidence. See 28 U.S.C. § 2254(e)(1); Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.

2001).

The Supreme Court repeatedly has held that “[t]he petitioner carries the burden of proof”

and that the § 2254(d)(1) standard is a high hurdle to overcome. See Bobby v. Dixon, 565 U.S. 23,

24 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 102–03 (2011)); Cullen v. Pinholster, 563

U.S. 170, 180 (2011). State court decisions must be given a strong presumption of deference even

when the state court adjudicates a petitioner’s claim summarily. See Richter, 560 U.S. at 96–100;

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Gill v. Mecusker, 633 F.3d 1272, 1288 (11th Cir. 2011).

V. ANALYSIS

There is no dispute that Petitioner is in custody or that the Petition is timely under 28 U.S.C.

§ 2244(d)(1). See DE 11 at 28. Furthermore, as the same sub-issues raised in the Petition were

raised in the postconviction motion and the appeal of the denial of the postconviction motion, the

issues are therefore exhausted. Therefore, the Court can proceed directly to the merits of the

Petition.

The AEPDA, however, rather strictly limits the Court’s review of “any claim that was

adjudicated on the merits in State court proceedings[.]” 28 U.S.C. § 2254(d). This Court must

determine only whether the state court’s decision “involved an unreasonable application of[ ]

clearly established federal law” or “was based on an unreasonable determination of the facts[.]”

Id. Here, the last state court to adjudicate Petitioner’s claims on the merits was the Fourth District

Court of Appeal, which issued an unwritten opinion summarily affirming the state court. The Court

is therefore required to perform a “‘look-through’ [of] the unexplained decision to the last related

state-court decision that does provide a relevant rationale.” Wilson v. Sellers, 138 S. Ct. 1188, 1192

(2018). In this case, this Court must therefore review the reasonableness of the state court’s order.

See Cardona v. Dixon, No. 19-81567-CIV, 2022 WL 2158715, at *6 (S.D. Fla. June 14, 2022)

(“Since the [Fourth DCA] affirmed without a written decision, we ‘look through’ to the next

reasoned decision (i.e., the trial court’s Order Denying Post Conviction Relief, which incorporated

the State’s Response) as the presumptive reasoning of the Fourth DCA.”).

All of Petitioner’s claims are based on his allegations that his counsel performed

deficiently. “In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court

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established a two-prong test for evaluating claims of ineffective assistance of counsel. Under the

‘performance’ prong, the defendant must show that counsel’s performance ‘fell below an objective

standard of reasonableness.’” King v. U.S., 250 F. App'x. 930, 932 (11th Cir. 2007) (citing

Strickland, 466 U.S. at 688). “Under the ‘prejudice’ prong, the defendant must show that counsel’s

deficient performance actually prejudiced the defendant and that, “but for the attorney’s error, the

outcome of the proceeding would have been different.” Id. (citing Strickland, 466 U.S. at 694).

The burden of persuasion is on a petitioner to prove, by a preponderance of competent evidence,

that counsel’s performance was unreasonable. See Strickland, 466 U.S. at 688. The petitioner must

establish that particular and identified acts or omissions of counsel “were outside the wide range

of professionally competent assistance.” Chandler v. United States, 218 F.3d 1305, 1313, 1314

(11th Cir. 2000) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987); see also Strickland, 466 U.S.

at 686 (stating that petitioner must show “counsel’s representation fell below an objective standard

of reasonableness”, which means that counsel’s performance was unreasonable “under prevailing

professional norms. . . considering all of the circumstances”).

“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting

for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is

all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude

that a particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689. When

assessing a lawyer’s performance, “[c]ourts must indulge the strong presumption that counsel’s

performance was reasonable and that counsel made all significant decisions in the exercise of

reasonable professional judgment.” Chandler, 218 F.3d at 1314 (11th Cir. 2000). When assessing

ineffective assistance of counsel claims, the court’s role is not to “grade a lawyer’s performance;

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instead, [the court] determine[s] only whether a lawyer’s performance was within the wide range

of professionally competent assistance.” Van Poyck v. Fla. Dep’t of Corr., 290 F.3d 1318, 1322

(11th Cir. 2002) (quoting Strickland, 466 U.S. at 690) (internal quotation marks omitted).

“Intensive scrutiny and second-guessing of attorney performance are not permitted.” Spaziano v.

Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994).

If a petitioner’s claim of ineffectiveness turns on whether counsel should have raised issues

of state law, § 2254(d) requires that the federal court defer to the state court’s decision regarding

its own laws. See Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984) (superseded by

statute on other grounds). It is “a fundamental principle [that] state courts are the final arbiters of

state law, and federal habeas courts should not second-guess them on such matters.” See Herring

v. Sec’y, Dept. of Corr., 397 F.3d 1338, 1354–55 (11th Cir. 2005) (quoting Agan v. Vaughn, 119

F.3d 1538, 1549 (11th Cir. 1997)).

A. Whether Defense Counsel Rendered Ineffective Assistance of Counsel by

Advising Petitioner that There Were No Grounds to File a Motion to Suppress

[Ground 1]

Petitioner asserts counsel was ineffective because counsel failed to file a motion to suppress

all physical evidence recovered from his house. [DE 1 at 5]. Specifically, Petitioner claims that

counsel’s advice that there were no grounds for a motion to suppress was unreasonable. [DE 1-2

at 9]. The State argues that Petitioner’s claim as to the Motion to Suppress is procedurally barred

because he pled guilty and therefore agreed to waive or put up a defense. [DE 11 at 42]. The Court

disagrees with the State’s assessment that the claim is procedurally barred because the law is clear

that, in the context of plea agreements, “[a] trial attorney’s failure to investigate a factual defense

or a defense relying on the suppression of evidence, which results in the entry of an ill-advised

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plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction.”

Williams v. State, 717 So. 2d 1066, 1067 (Fla. 2d DCA 1998); see also Zakrzewski v. State, 866

So. 2d 688, 694 (Fla. 1994). However, for the reasons stated below, the Court denies Ground 1 on

the merits.

When a petitioner “faults his lawyer for failing to pursue a motion to suppress prior to

entering a plea, both the deficient performance and prejudice prongs of Strickland turn on the

viability of the motion to suppress.” Arvelo v. Sec'y, Fla. Dep't of Corr., 788 F.3d 1345, 1348 (11th

Cir. 2015)). “This is because a lawyer’s performance only falls outside the range of competence

demanded of counsel if she did not pursue a motion to suppress that would have affected the

outcome of the case had the defendant rejected the plea and proceeded to trial.” Id. (citing Premo

v. Moore, 562 U.S. 115, 124, 131 S.Ct. 733, 741, 178 L.Ed.2d 649 (2011) (addressing Strickland's

performance prong and stating that the relevant question was whether “no competent attorney

would think a motion to suppress would have failed”).

Under Franks v. Delaware, 438 U.S. 154 (1978), a search warrant violates the Fourth

Amendment “if the affidavit supporting the warrant contains statements that are deliberately false

or made with reckless disregard for the truth and such statements are necessary to a finding of

probable cause.” Sorrow v. City of Atlanta, No. 20-14723, 2022 WL 2784603, at *3 (11th Cir. July

15, 2022). The rule in Franks also extends to omissions “made intentionally or with a reckless

disregard for the accuracy of the affidavit” if the inclusion of such omissions “would have

prevented a finding of probable cause.” Id. (citing Madiwale v. Savaiko, 117 F.3d 1321, 1326–27

(11th Cir. 1997) (quotation marks omitted). If the allegedly false material is set aside, and “there

remains sufficient content in the warrant affidavit to support a finding of probable cause,” the

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warrant is valid. Sorrow, 2022 at WL 2784603, at *3 (citing Madiwale, 117 F.3d 1321 at 1326).

To establish the requisite probable cause for a search warrant, the affidavit submitted in

support of the warrant must set forth facts establishing two elements: (1) the commission element

and (2) the nexus element (that evidence relevant to the probable criminality will likely be found

on the place to be searched). State v. McGill, 125 So. 3d 343, 348 (Fla. 5th DCA 2013) (citing

State v. Felix, 942 So. 2d 5, 9 (Fla. 5th DCA 2006)). Further, the standard of probable cause for a

search warrant does not require prima facie showing of criminal activity, just “probable”

criminality. State v. Rabb, 920 So. 2d 1175, 1181 (Fla. 4th DCA 2006) (quoting United States v.

Syphers, 426 F.3d 461, 464 (1st Cir. 2005)).

Here, the postconviction court found in relevant part, after holding an evidentiary hearing:

Defendant raises three (3) claims of ineffective assistance of his trial counsel,

Kenneth Mair. In Ground 1, Defendant contends that Mr. Mair provided ineffective

assistance of counsel by advising that a motion to suppress would be meritless and

for failing to file the motion. For an ineffective-assistance-of-counsel claim that

alleges a failure to file a motion to suppress, the defendant must establish a

reasonable probability that the motion would have been successful, resulting in

exclusion of the evidence. Jefferson v. State, 351 So. 3d 266, 271 (Fla. 2d DCA

2022) (citing Kormondy v. State, 983 So. 2d 418, 430 (Fla. 2007)).

Defendant argues that the search warrant affidavit and application for his residence,

which resulted in the recovery of incriminating evidence upon execution, failed to

establish the requisite probable cause and lacked sufficient information to

alternatively support the good faith exception. A determination of probable cause

encompasses a practical, common-sense examination of the “four corners” of the

affidavit. Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002) (citations omitted). The

affidavit must indicate that a particular person committed a crime and that the

relevant evidence or contraband will likely be located in the place subject to the

search. State v. Abbey, 28 So. 3d 208, 211 (Fla. 4th DCA 2010) (citations omitted).

At the evidentiary hearing on January 11, 2023, Mr. Mair testified that, upon receipt

from the State through discovery, he reviewed the search warrant affidavit and

application. Mr. Mair believed he had no grounds to file a motion to suppress and

advised Defendant of the same. Defendant testified that Mr. Mair initially stated

that he would file the motion and then later advised that he lacked any basis to do

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so. Luisa Berti, who is currently an Assistant United States Attorney, testified that

she prosecuted Defendant’s cases as an Assistant State Attorney. Ms. Berti had

reviewed the application and affidavit as well. She stated that she had no concerns

about the warrant that would potentially lead to suppression of the evidence and

that, if she had, she would have researched the issues. The Court finds that Mr. Mair

and Ms. Berti provided credible testimony.

The probable cause standard for a search warrant centers on a probability, rather

than a prima facie showing, of criminal activity under the totality of the

circumstances. Abbey, 28 So. 3d at 211 (citations omitted); see also State v. Chen,

1 So. 3d 1257, 1263 (Fla. 2d DCA 2009) (citations omitted). Defendant had been

suspected of the crimes due to his physical appearance, occupancy of the vehicle

identified in a “BOLO” alert, and interview with law enforcement. The search

warrant affidavit and application outlined the facts and circumstances of the

robberies, including the dates, times, and descriptions of the vehicle and suspect.

The affidavit also included Defendant’s identification of the vehicle from the

surveillance video, along with his subsequent retraction, as his brother’s vehicle.

Defendant had denied owning a firearm when officers had yet to disclose the type

of weapon used during commission of the robberies, which had been recited in the

affidavit as well. The Court finds that the search warrant affidavit contained

sufficient information to form a reasonable conclusion that a fair probability existed

that Defendant had been involved in the crimes.

With respect to the nexus component, issuance of a valid search warrant omits any

requirement for direct proof that the evidence will be recovered from the particular

place. State v. Felix, 942 So. 2d 5, 12 (Fla. 5th DCA 2006) (citation omitted). In

the current cases, the search warrant affidavit depicted a sufficient nexus between

the evidence and Defendant’s residence due to the items being of the nature that

would likely be found in a residence and Defendant had confirmed the address to

law enforcement as his residence. See e.g., State v. Weil, 877 So. 2d 803, 805–06

(Fla. 5th DCA 2004); United States v. Kapordelis, 569 F.3d 1291, 1310–12 (11th

Cir. 2009) (citations omitted); United States v. Hamda, 647 Fed. Appx. 1004, 1009–

10 (11th Cir. 2016). Even with the warrant being issued days after the crimes, the

robberies cannot be said to be from “the distant past” to render the affidavit stale.

See State v. Sabourin, 39 So. 3d 376, 382– 83 (Fla. 1st DCA 2010).

The First District Court of Appeal in Sabourin explained that “‘[s]earches pursuant

to a warrant will rarely require any deep inquiry into reasonableness’”. Id. at 384

(citing United States v. Leon, 468 U.S. 897, 922 (1984)). Furthermore, suppression

of evidence acts as a remedy for an invalid warrant only when the affidavit lacks

any indicia of probable cause. Id. While the search warrant affidavit established the

requisite probable cause, this Court also finds that the affidavit failed to consist

solely of conclusory statements or omissions to be considered “bare bones” or

“fail[ing] to provide a colorable argument for probable cause”, which would bar

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application of the good faith exception to the exclusionary rule. See Wingate v.

State, 289 So. 3d 566, 569–70 (Fla. 1st DCA 2020), cause dismissed, SC20-871,

2020 WL 3265112 (Fla. June 17, 2020). As a result, counsel cannot be considered

ineffective for failing to file a motion to suppress given the sufficient support as to

the legality of the search and seizure, in conjunction with counsel’ reasonable

opinion that he lacked a valid basis to file the motion. See Branch v. State, 952 So.

2d 470, 475– 76 (Fla. 2006). The Court therefore denies Ground 1.

[DE 7-2, Ex. 23 at 1–4].

In the instant case, Petitioner argues the affidavit for the warrant lacked probable cause.

[DE 1-2 at 11]. However, Petitioner has not demonstrated that the state court’s ruling resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly established

federal law, as determined by the Supreme Court of the United States or resulted in a decision that

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

State court proceeding. Nor has Petitioner demonstrated the deficient performance or the prejudice

prongs of Strickland as a motion to suppress would not have been viable.

After reviewing the application and affidavit in support of the search warrant, the Court

notes that the affidavit detailed an investigation in which Petitioner was suspected of multiple

robberies. [DE 1-3 at 832–837]. The individual was described as “black male approximately 30

y[ea]rs of age wearing a red in color hooded sweatshirt, blue jean shorts, and black shoes” who

was wearing a “camo type face mask leaving his eyes exposed, and having a dark spot on the front

mouth area.” Id. at 834. Later, the affidavit described the individual as a “black male, about 5’7”

tall, thin build.” Id. It also stated that the suspect had a ring on the middle finger of his left hand.

Id. The vehicle involved in the robberies had a distinct horizontal mark from the front to the back

passenger door. Id. The vehicle Petitioner was seated in when first approached by the Palm Beach

County Sheriff’s office “matched identically to the same vehicle in the surveillance video from

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my surveillance.” Id. at 836. The affidavit also included information about how Petitioner initially

identified the vehicle involved in the robberies from a photo shown by the investigator to be his

cousin’s vehicle and the vehicle he was just a passenger in. Id. “Damion even confirmed on more

than one occasion that the vehicle in the picture was his brother’s car.” Id. The affidavit described

Petitioner’s police interview in detail and explained that “this warrant is being sought to search the

residence of Damion and Dwayne Delapen[ ]a for the above described evidence. Based on my

education and experience, I have found that individuals that commit crimes with firearms keep

said firearms on or near their persons, or vehicles, or residents [sic].” Id. at 837.The Court is

satisfied that all of the information listed in the search warrant affidavit was sufficient to establish

the commission element.

The second warrant element requires a nexus—“that evidence relevant to the probable

criminality is likely to be located at the place searched.” State v. Exantus, 59 So. 3d 359, 361 (Fla.

2d DCA 2011). “[A] warrant must contain a specific time when the illegal activity that forms the

basis for issue of the warrant was observed.” State v. Jenkins, 910 So. 2d 934, 937 (Fla. 2d DCA

2005) (citing Dixon v. State, 511 So. 2d 1094 (Fla. 2d DCA 1987)). The shorter the time between

the alleged crimes and the search, the higher the probability that the items will still be found at the

described location. Haworth v. State, 637 So. 2d 267, 267 (Fla. 2d DCA 1994) (quoting Smith v.

State, 438 So. 2d 896, 898 (Fla. 2d DCA 1983)).

In this case, Petitioner confirmed that he resided with Dewayne Delapena, who was the

owner of the vehicle suspected to have been used in the robberies, at the address listed in the search

warrant affidavit. [DE 1-3 at 836]. Investigator Dipolito submitted the warrant application and

affidavit of February 8, 2018—the day after the police stopped Petitioner inside the vehicle and

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within days of the last alleged robbery—thus making it extremely likely that the items Investigator

Dipolito sought would be in Petitioner’s residence. Id. at 838.

Here, there is no basis to find that the search warrant violated Petitioner’s Fourth

Amendment rights. Moreover, the affidavit established the requisite probable cause, as explained

above. Based on the foregoing, Petitioner has not established that his lawyer’s performance fell

outside the range of competence demanded of counsel as any motion to suppress would not have

affected the outcome of the case had the defendant rejected the plea and proceeded to trial. And,

the postconviction trial court properly ruled as such.

B. Whether Defense Counsel Rendered Ineffective Assistance of Counsel by Advising

Petitioner that There Were Grounds for a Downward Departure Should He Enter an

Open Plea [Ground 2]

Kenneth Mair testified at the evidentiary hearing on Petitioner’s motion for postconviction

relief in state court that the “switch to pleading on the case was made at the last moment by Mr.

Delapena.” [DE 10-1 at 13: 9–10]. He later explained that the open plea that Petitioner entered in

all five cases was completed on the day trial was actually set to begin and that it was a surprise to

Mr. Mair when Petitioner stated that he wished to enter a guilty plea. Id. at 18: 21-25; 19: 1–3.

According to Mr. Mair, as he was preparing Petitioner for trial in the courthouse cell, Defendant

stated that he had a “change of plan” and wanted to plea “hoping that the Judge [would] give him

a lenient sentence.” Id. at 19: 6–12. Mr. Mair also testified that he would have told Petitioner about

the statutory requirements that permit a court to impose a downward departure sentence before

Petitioner entered his open plea. Id. at 15: 25–25; 16: 1–14; 17: 2–5. However, he testified that he

never suggested that Petitioner enter an open plea or suggested that, if Petitioner did enter an open

plea, Mr. Mair could file a motion for downward departure. Id. at 23: 10–23. In other words,

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counsel clearly stated that he did not say anything about trying to get Petitioner’s sentence lowered

in anticipation of Petitioner making an open plea. Id. at 25: 6–13.

The postconviction court found in relevant part, after holding an evidentiary

hearing, as follows:

In Ground 3, Defendant claims that Mr. Mair rendered ineffective assistance of

counsel by advising him to reject a plea offer of seven (7) years offered by the State.

Defendant contends that counsel advised him to reject the offer and enter an open,

guilty plea due to the fact that he could receive a sentence less than the plea offer

upon a downward departure. Defendant alleges that Mr. Mair’s advice had been

patently unreasonable since no valid grounds for a downward departure existed. To

prove prejudice pertaining to a plea offer, the Florida Supreme Court established a

four-prong test: (1) the defendant would have accepted the plea offer if properly

advised by counsel, (2) the prosecutor would not have withdrawn the offer, (3) the

court would have accepted the offer, and (4) the sentence under the offer’s terms

would have been less severe than the sentence imposed. Alcorn v. State, 121 So. 3d

419, 430 (Fla. 2013).

Mr. Mair testified at the evidentiary hearing that he had never been aware of a

seven-year offer and the State never extended a plea to be conveyed to Defendant.

Likewise, Ms. Berti unequivocally testified that she never extended a seven-year

plea, or any offer. Even as amended, the basis of Ground 3 stems from the State

offering a seven-year plea, which Mr. Mair then misadvised Defendant to reject.

Since no offer had been presented, according to the credible testimony of Mr. Mair

and Ms. Berti, Defendant cannot obtain postconviction relief. See Jefferson, 351

So. 3d at 270 (citing Forbes v. State, 269 So. 3d 677, 680 (Fla. 2d DCA 2019)).

Even if the Court focuses solely on whether counsel provided ineffective assistance

with respect to the consequences of an open plea and a downward departure, the

claim still fails. Mr. Mair testified that the case strategy to proceed to trial had been

based upon his discussions with Defendant. He had been surprised by Defendant’s

decision to enter an open plea on the day that trial had been set to begin since

Defendant never previously indicated an interest in a guilty plea. Mr. Mair testified

that he never suggested an open plea to Defendant and that he advised Defendant

as to the possibility of a downward departure only after Defendant decided to forego

trial. While Defendant states that he elected to enter an open plea upon Mr. Mair’s

advice that a downward departure would be possible, the Court finds Mr. Mair’s

testimony to be credible. Since the decision to waive his right to a trial had already

been reached at the time that Mr. Mair offered the alleged erroneous advice,

Defendant cannot establish that but for counsel’s actions he would have moved

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forward with the trial, in other words the requisite prejudice that would be needed

in conjunction with a showing of deficient conduct. See Long, 118 So. 3d at 803

(citations omitted).

At the hearing, Mr. Mair further testified that he had informed Defendant of a

downward departure as a possibility but that the judge would have discretion over

the sentence following entry of an open plea. Defendant testified that counsel

advised that he might be eligible for a downward departure. He then stated that Mr.

Mair advised he could possibly receive a sentence less than the seven-year offer.

However, Defendant explained he believed that he would in fact receive a sentence

less than seven (7) years. Mr. Mair testified that he advised Defendant of the lowest

permissible sentence, which must be imposed unless a reason to depart has been

shown. Mr. Mair stated that he advised Defendant of the sentencing range as well.

The Court finds that Mr. Mair testified credibly. In addition, the transcript of the

plea conference reflects that the presiding judge thoroughly explained the

consequences and sentencing exposure to Defendant prior to entry of the plea and

Defendant confirmed his understanding. (Plea Conference at 5:9–6:7, 8:5–12:12,

21:15–22:2). Defendant has never claimed that counsel promised that a specific

sentence would be imposed and he cannot have reasonably relied upon any

misrepresentation that he would receive a sentence less than the alleged plea offer

extended by the State given the judge’s statements and inquiry during the colloquy.

See generally Alfred v. State, 998 So. 2d 1197, 1200 (Fla. 4th DCA 2009); Briggs

v. State, 337 So. 3d 4, 5 (Fla. 4th DCA 2022); Etienne v. State, 171 So. 3d 183, 184

(Fla. 4th DCA 2015). The sentencing judge ultimately expressed that, even if he

determined that grounds existed to depart, he would decline to do so. (State Resp.,

Ex. “I” Sentencing Hrg. 32:19–33:7). This Court finds that Defendant has failed to

satisfy his burden for postconviction relief and denies Ground 3.

[DE 7-2, Ex. 23 at 7–9].

In order for Petitioner to prevail on this issue, he must have demonstrated here or in the

state court, that but for any purported error by counsel, he would not have pleaded guilty and would

have gone to trial. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985). In this case, a reasonable probability

does not exist that Defendant would have insisted on going to trial instead of entering an open plea

had he known that there were no grounds for a downward departure. The evidence clearly shows

that the plea was Petitioner’s idea. Defense counsel may have advised Petitioner AFTER he

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decided to enter an open plea that there may be grounds for a downward departure, but Petitioner

still cannot establish any prejudice since he already intended to enter an open plea. The

postconviction court properly summarized and analyzed Mr. Mair’s testimony, contrary to what

Petitioner argues in his papers. In conclusion, the state court’s decision did not involve an

unreasonable application of clearly established federal law, nor was it based on an unreasonable

determination of the facts.

C. Whether Defense Counsel Rendered Ineffective Assistance of Counsel by Advising

Petitioner that the Cell Phone Records Obtained During Discovery Were Not Beneficial to

Him [Ground 3]

The postconviction court found in relevant part, after holding an evidentiary hearing, as

follows,

Defendant alleges in Ground 2 that his cell phone records would have been

beneficial to his defense and Mr. Mair rendered ineffective assistance of counsel

by informing him otherwise. In the context of a guilty plea, the prejudice prong of

an ineffective-assistance-of-counsel claim turns on a demonstration of a reasonable

probability that, but for counsel’s deficiencies, the defendant would have instead

insisted on proceeding to trial. Long v. State, 118 So. 3d 798, 803 (Fla. 2013)

(citations omitted). The totality of the circumstances surrounding the plea should

be a part of that analysis. Grosvenor v. State, 874 So. 2d 1176, 1181–82 (Fla.

2004)).

At the evidentiary hearing, Mr. Mair testified that he received cell phone records

for Defendant and his brother, Dewayne Delapena (hereinafter “Dewayne”). Mr.

Mair testified that he reviewed and discussed the records with Defendant. Mr. Mair

advised Defendant that the documents would not be “particularly helpful”.

Dewayne’s phone had been outside of the area during all of the crimes while

Defendant’s phone had been in close proximity to the location of a January 12,

2018 robbery at the time of commission, as confirmed by the testimony of Mr. Mair

and Ms. Berti. Mr. Mair further testified that he informed Defendant that the data

revealed his phone to be over two (2) hours away with respect to the robbery on

January 28, 2018. In contrast, Defendant testified that he had been under the

impression that the records showed his phone in the area of every robbery. He stated

that Mr. Mair had never shown the cell phone records to him.

Cell phones generate a time-stamped record by cell sites when a signal connects to

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the network during usage or activity. Tracey v. State, 152 So. 3d 504, 507 n.1 (Fla.

2014); State v. Martin, 287 So. 3d 645, 646 (Fla. 4th DCA 2019) (citation omitted).

The data may then be introduced to place an individual at a certain location, such

as at the scene of the crime at the time of occurrence. See e.g., Petit v. State, 321

So. 3d 286, 290 (Fla. 4th DCA 2021), review denied, SC21-1244, 2021 WL

5149953 (Fla. Nov. 5, 2021). Defendant testified that his brother’s cell phone

records would have aided in his defense since if Dewayne had been outside of the

area then his vehicle would have been as well. However, as mentioned above,

Defendant had identified the vehicle used in the robberies as his brother’s vehicle,

although he retracted that statement later in the interview with law enforcement.

Moreover, while the records for Defendant placed his phone away from the vicinity

of a robbery, his cell phone pinged in very close proximity to the location and time

of a robbery on January 12, 2018. (D.E. #9, Probable Cause Affidavit Narrative).

Ms. Berti testified at the hearing that additional evidence, including the suspect’s

physical characteristics, clothing, and vehicle, then connected subsequent

robberies.

Ms. Berti also testified that the records placing Defendant’s cell phone outside of

the area would be able to indicate that the phone had been left in a separate location

or that Defendant had refrained from using his phone during those periods of time.

Ms. Berti opined that that the absence of cell phone data corresponding to the later

crimes still provided supporting evidence. She explained that the records revealed

activity or usage followed by a lack thereof at the time of the crime and then

continued activity afterwards. The Eleventh Circuit Court of Appeals previously

addressed the same matter when discussing that, depending on the network, cell

phones may only generate data during a connected call and the absence of data may

indicate that no calls had been made or accepted at the time of the crime. United

States v. Bowers, 811 F.3d 412, 427 (11th Cir. 2016). Additionally, Ms. Berti

testified that she employed a mapping program to chart Defendant’s location in

accordance with the cell phone data from the records. Data prior to and subsequent

to a crime may be utilized to infer that a defendant had been in transit to and from

the crime scene. Id.

The Court considers the strength of the State’s case in evaluating Defendant’s

assertion that he would have insisted upon proceeding to trial to establish prejudice.

See Griffin v. State, 114 So. 3d 890, 899 (Fla. 2013) (citing Grosvenor, 874 So. 2d

at 1181). Ms. Berti testified as to the evidence, including a recorded conversation

between Defendant and his brother, and exhibits she prepared for trial. She

discussed the details of the crimes at the plea conference on March 5, 2019, as well,

which encompassed a witness’s identification of a distinctive scar on the suspect

that matched a scar on Defendant’s face, when reciting the factual basis for the plea.

(D.E. #248, State Resp., Ex. “E” Plea Conference 16:8–10). In light of the above,

the Court denies Ground 2.

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[DE 7-2, Ex. 23 at 4–6].

Having reviewed the hearing testimony from the 3.850 hearing, the Court finds that the

postconviction court properly summarized and analyzed the witness testimony. Petitioner cannot

meet the Strickland test here as he cannot establish that his counsel’s performance fell below an

objective standard of reasonableness. Petitioner’s counsel testified as the postconviction hearing

that he discussed all of the phone records with Petitioner and explained that they would not have

been particularly helpful, especially since Petitioner’s phone had been in close proximity of the

January 12, 2018 robbery. Such performance was not deficient.

Next, Petitioner cannot establish prejudice. The testimony at the postconviction hearing

showed that various other evidence established probable cause for the search warrant. Petitioner

also cannot establish the prejudice prong because he has not shown that he would not have entered

the open plea had he realized the phone records were beneficial to his defense. It is well-established

that “a voluntary and intelligent guilty plea must stand unless induced by misrepresentations made

to the accused by the court, prosecutor, or his own counsel.” Haile v. United States, No. 17-CR-

20633, 2021 WL 11702298, at *3 (S.D. Fla. May 7, 2021), report and recommendation adopted,

No. 1:19-22161-CV, 2021 WL 11702297 (S.D. Fla. Aug. 3, 2021), aff'd, No. 21-12955, 2022 WL

2251710 (11th Cir. June 22, 2022) (citing Brady v. United States, 397 U.S. 742, 748 (1970)).

“[W]hen a defendant makes statements under oath at a plea colloquy, he bears a heavy burden to

show his statements were false.” United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). In

the case at hand, the colloquy between Petitioner and the trial court at the time of the change of

plea hearing establishes that he was satisfied with his counsel’s services, that Petitioner knowingly,

intelligently and voluntarily entered the guilty plea, and that Petitioner entered into the plea

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agreement of his own free will. See DE 8. Petitioner also initialed and signed the Waiver of Rights

Sheet. [DE 7-1, Ex. 11]. Furthermore, in order for Petitioner to prevail on this issue, he must have

demonstrated here or in the state court, that but for any purported error by counsel, he would not

have pleaded guilty and would have gone to trial. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985).

Petitioner simply cannot establish prejudice in this case.

In conclusion, the court’s decision did not involve an unreasonable application of clearly

established federal law, nor was it based on an unreasonable determination of the facts. Petitioner

entered a knowing and voluntary plea in state court to numerous crimes, and his Petition filed in

this Court is wholly meritless.

VI. CERTIFICATE OF APPEALABILITY

As amended effective December 1, 2009, § 2254 Rule 11(a) provides that “[t]he district

court must issue or deny a certificate of appealability when it enters a final order adverse to the

applicant,” and if a certificate is issued “the court must state the specific issue or issues that satisfy

the showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be filed,

even if the court issues a certificate of appealability. Rule 11(b) to the Rules Governing § 2254

Proceedings.

After a careful review of the record, the Court finds that Petitioner is not entitled to a

certificate of appealability. “A certificate of appealability may [be] issued[d] . . . only if the

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To merit a certificate of appealability, Petitioner must show that reasonable jurists

would find debatable both (1) the merits of the underlying claims and (2) the procedural issues she

seeks to raise. Slack v. McDaniel, 529 U.S. 473, 478 (2000); see also Eagle v. Linahan, 279 F.3d

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926, 935 (11th Cir. 2001). Because the claims raised in the Petition are clearly without merit,

Petitioner cannot satisfy the Slack test. Upon consideration of the record as a whole, the District

Judge should deny a certificate of appealability.

VII. RECOMMENDATION TO THE DISTRICT JUDGE

A very careful review of the entire record establishes that Petitioner’s claims are meritless

and due to be denied for the reasons stated above. No evidentiary hearing is necessary. The Petition

fails to establish any grounds for relief. Accordingly, the undersigned United States Magistrate

Judge recommends that the United States District Judge DENY Petitioner’s Petition [DE 1] and

DENY a Certificate of Appealability.

NOTICE OF RIGHT TO OBJECT

The parties shall have fourteen (14) days from the date of being served with a copy of this

Report and Recommendation within which to file written objections, if any, with United States

District Judge Donald M. Middlebrooks. Failure to file objections timely shall bar the parties from

a de novo determination by the District Judge of an issue covered in the Report and

Recommendation and shall bar the parties from attacking on appeal unobjected-to factual and legal

conclusions contained in this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v.

Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir.

R. 3-1 (2016).

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RESPECTFULLY SUBMITTED in Chambers at West Palm Beach in the Southern

District of Florida, this 3rd day of February 2025.

WILLIAM THEWMAN

United States Magistrate Judge

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