Petition for Writ of Certiorari — Christopher Seckington, Petitioner v. Mark S. Inch, Secretary, Florida Department of Corrections, et al.

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USCA11 Case: 20-13899

Date Filed: 04/02/2021

Page: 1 of 3

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 20-1389945

CHRISTOPHER SECKINGTON,

Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellees.

Appeal from the United States District Court

for the Middle District of Florida

ORDER:

Christopher Seckington, a Florida prisoner serving a 25-year sentence for amphetamine

trafficking and possession of cannabis, seeks a certificate of appealability (“COA”) and in forma

pauperis (“IFP”) status in order to appeal the district court’s denial of his pro se 28 U.S.C § 2254

petition.1 In order to qbtain a COA, Mr. Seckington must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He satisfies this requirement by

demonstrating that “reasonable jurists would find the district court’s assessment of the

1 Although Mr. Seckington raised 12 claims in his § 2254 petition, his motion for COA

argues only 5 claims. Because he failed to mention the remaining claims, he abandoned them.

See Jones v. Sec >'. Dep 7 of Corn. 607 F.3d 1346, 1353-54 (11th Cir. 2010) (this Court “will not

entertain the possibility of granting a certificate of appealability” where the petitioner “does not

provide facts, legal arguments, or citations of authority that explain why he is entitled to a

certificate...”).

/PPt'W5P< A

USCA11 Case: 20-13899

Date Filed: 04/02/2021

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constitutional claims debatable or wrong,” or that the issues “deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted).

In Claim 1, Mr. Seckington argued that counsel failed to withdraw upon his reappointment,

despite having stated in his motion to withdraw that he had an ethical conflict, and the

attomey/client relationship was irretrievably broken. Reasonable jurists would not debate the

district court’s denial of this claim because Mr. Seckington failed to show that counsel labored

under an actual conflict of interest or had conflicting interests that adversely affected his

performance. See Mickens k Taylor, 535 U.S. 1^2, 170-71 (2002).

To the extent that Mr.

Seckington raised a claim under United States v. Cronic, 466 U.S. 648,659 (1984), it fails because

the record reveals that counsel subjected the state’s case to adversarial testing.

In Claims 5 and 6, Mr. Seckington argued that counsel failed to challenge the quantity of

methamphetamine attributed to him and argue for the application of the rule of lenity related to the

quantity of methamphetamine. Reasonable jurists would not debate the denial of this claim, as

counsel had no basis to challenge the quantity of methamphetamine attributed to Mr. Seckington,

or the methodology by which the forensic chemist weighed the liquids, under the language of Fla.

Stat. § 893.135(l)(f). See Wilder v. State, 194 So. 3d 1050, 1053 (Fla. Dist. Ct. App. 2016)

(concluding that the statute “clearly contemplates the punishment for trafficking of ‘any’ mixture

of methamphetamine and does not set a minimum threshold amount of methamphetamine that

must be part of the mixture.”). Accordingly, counsel had no basis to ask.for the rule of lenity to

be applied in this case.

In Claim 7, Mr. Seckington argued that his 25-year sentence was cruel and unusual.

Reasonable jurists would not debate the denial of this claim. Mr. Seckington was convicted of a

first-degree felony for amphetamine trafficking, for which there is a maximum sentence of 30

;

USCA11 Case: 20-13899

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years in prison and a mandatory minimum term of 15 years in prison.

See Fla. Stat. §§

775.082(3)(b)l and 893.135(l)(f)l .c. This Court previously has stated that “a sentence within the

limits imposed by statute is neither excessive nor cruel and unusual under the Eighth Amendment.”

United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006).

Finally, in Claim 9, Mr. Seckington argued that counsel failed to argue that he did not

violate the “legislative intent” of the trafficking statute, which was to punish those who deal in

large quantities of dangerous illegal drugs. The record reveals that Mr. Seckington did not raise

this claim in his state post-conviction proceedings, and he has neither alleged nor shown either

cause and prejudice or a fundamental miscarriage ofjustice to excuse his procedural default. See

Coleman v. Thompson, 501 U.S. 722, 749-50 (11th Cir. 1991).

Accordingly, Mr. Seckington’s CO Amotion is DENIED, and his IFP motion is DENIED

as moot.

/s/ Jill Pryor_____

UNITED STATES CIRCUIT JUDGE

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 1 of 25 PagelD 2818

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

CHRISTOPHER M. SECKINGTON,

Petitioner,

CASE NO. 6:19-cv-713-Orl-31EJK

SECRETARY, DEPARTMENT

OF CORRECTIONS, et al„

Respondents.

ORDER

This cause is before the Court on a Petition for Writ of Habeas Corpus ("Petition,"

Doc. 1) filed pursuant to 28 U.S.C. § 2254. Respondents filed a Response to the Petition

("Response," Doc. 19) in compliance with this Court's instructions and with the Rules

Governing Section 2254 Cases for the United States District Courts. Petitioner filed a Reply

(Doc. 22). Petitioner alleges twelve claims for relief in the Petition. For the following

reasons, the Petition is denied.

Procedural History

Petitioner was charged in the Eighteenth Judicial Circuit Court in and for Seminole

County, Florida, with trafficking in 200 grams or more of methamphetamine (Count One)

and possession of cannabis (Count Two). (Doc. 21-2 at 7). After a jury trial, Petitioner was

convicted as charged. (Doc. 21-3 at 15). The trial court sentenced Petitioner to a twentyfive-year term of imprisonment with a fifteen-year mandatory minimum term for Count

APPEWDrx B

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 2 of 25 PagelD 2819

One and to time served for Count Two. (Id. at 16). Petitioner appealed, and the Fifth District

Court of Appeal ("Fifth DCA") affirmed per curiam (Id. at 52).

Petitioner filed a motion to correct an illegal sentence pursuant to Rule 3.800(a) of

the Florida Rules of Criminal Procedure. (Id. at 56-83). The trial court denied the motion,

noting that Petitioner's claim was not cognizable in a Rule 3.800(a) motion. (Id. at 85-86).

Petitioner appealed, and the Fifth DCA affirmed per curiam. (Id. at 111).

Petitioner subsequently filed a petition for writ of habeas corpus with the Fifth DCA

in which he alleged four claims of ineffective assistance of appellate counsel. (Id. at 12469). The Fifth DCA denied the petition without discussion. (Doc. 21-4 at 22).

Petitioner then filed a motion for post-conviction relief pursuant to Rule 3.850 of the

Florida Rules of Criminal Procedure. (Id. at 29-80). After filing two amended motions (Doc.

21-5 at 5-53 and Doc. 21-6 at 4-52), the trial court summarily denied relief. (Doc. 21-7 at 210). The Fifth DCA affirmed per curiam. See Seckington v. State, 241 So. 3d 853 (Fla. 5th DCA

2017) (table).

Petitioner filed several motions to disqualify the trial court judge, which were

denied. (Doc. 21-8 at 79-122). Petitioner then filed a petition for writ of prohibition in the

Fifth DCA seeking disqualification of the trial court judge. (Id. at 123-28). The Fifth DCA

denied the petition. (Id. at 133). Petitioner subsequently filed approximately six additional

petitions for writ of prohibition, which were denied. (Doc. Nos. 21-8 at 141-46; Doc. 21-9 at

2-34, 77-84). Petitioner also filed two petitions for writ of mandamus seeking similar relief,

which were denied. (Doc. 21-9 at 41-76). Finally, the Fifth DCA entered an order pursuant

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 3 of 25 PagelD 2820

to State v. Spencer, 751 So. 2d 47 (Fla. 1999), finding Petitioner had abused the judicial

process and should be barred from further pro se filings. (Id. at 97). The Supreme Court of

Florida declined to accept discretionary review of that order. (Id. at 125).

II.

Legal Standards

Standard of Review Under the Antiterrorism Effective Death Penalty Act

("AEDPA")

Pursuant to the Antiterrorism Effective Death Penalty Act ("AEDPA"), a federal

court may not grant federal habeas relief with respect to a claim adjudicated on the merits

in state court unless the adjudication of the claim:

(1)

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

(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). The phrase "clearly established Federal law," encompasses only the

holdings of the United States Supreme Court "as of the time of the relevant state-court

decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).

"[Sjection 2254(d)(1) provides two separate bases for reviewing state court

decisions; the 'contrary to' and 'unreasonable application' clauses articulate independent

considerations a federal court must consider." Maharaj v. Sec'y for Dep't of Corr.,A32 F.3d

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 4 of 25 PagelD 2821

1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh

Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):

Under the "contrary to" clause, a federal court may grant the writ if the

state court arrives at a conclusion opposite to that reached by [the United

States Supreme Court] on a question of law or if the state court decides a

case differently than [the United States Supreme Court] has on a set of

materially indistinguishable facts. Under the "unreasonable application"

clause, a federal habeas court may grant the writ if the state court identifies

the correct governing legal principle from [the United States Supreme

Court's] decisions but unreasonably applies that principle to the facts of the

prisoner's case. Id. (quoting Williams, 529 U.S. at 412-13). Even if the federal

court concludes that the state court applied federal law incorrectly, habeas

relief is appropriate only if that application was "objectively

unreasonable." 1 Id. (quotation omitted).

Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the

state court's decision "was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding." However, the state court's

"determination of a factual issue... shall be presumed correct," and the habeas petitioner

"shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parker, 244 F.3d at 835-36.

Standard for Ineffective Assistance of Counsel

1 In considering the "unreasonable application inquiry," the Court must

determine "whether the state court's application of clearly established federal law was

objectively unreasonable." Williams, 529 U.S. at 409. Whether a state court's decision was

an unreasonable application of law must be assessed in light of the record before the state

court. Holland v. Jackson, 542 U.S. 649, 652 (2004) (per curiam); see also Bell v. Cone, 535 U.S.

685, 697 n.4 (2002) (declining to consider evidence not presented to state court in

determining whether the state court's decision was contrary to federal law).

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 5 of 25 PagelD 2822

‘

In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court

established a two-part test for determining whether a convicted person is entitled to relief

on the ground that his counsel rendered ineffective assistance: (1) whether counsel's

performance was deficient and "fell below an objective standard of reasonableness"; and

(2) whether the deficient performance prejudiced the defense. Id. at 687-88. A court must

adhere to a "strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." Id. at 689-90. "Thus, a court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on

the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690; see

also Gates v. Zant, 863 F.2d 1492,1497 (11th Cir. 1989) ("Strickland teaches that courts must

judge the reasonableness of the challenged conduct on the facts of the particular case,

viewed as of the time of the conduct.").

III.

Analysis

Claim One

Petitioner alleges that the trial court erred by reappointing an attorney to represent

him despite the fact that counsel had a conflict of interest. (Doc. 1 at 6). Petitioner raised

this claim in his Rule 3.850 proceedings, and the trial court denied relief, finding that

Petitioner had failed to allege any specific facts demonstrating that he was entitled to

relief on this claim. (Doc. 21-7 at 8-9). The Fifth DCA affirmed per curiam. See Seckington,

241 So. 3d at 853.

Prior to trial, Petitioner moved to represent himself. (Doc. 21-2 at 20). Additionally,

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 6 of 25 PagelD 2823

defense counsel Justin Hausler ("Hausler") moved to withdraw from representation,

citing Petitioner's dissatisfaction with his representation and noting that the attorneyclient relationship was irrevocably broken. (Id. at 22). The trial court granted the motions

and allowed Petitioner to represent himself. (Id. at 25). However, the Court also directed

Hausler to remain as standby counsel. (Id.). Hausler was reappointed to represent

Petitioner and acted as defense counsel at trial. (Doc. 21-2 at 35, 41).2

The Sixth Amendment requires the State to not only appoint counsel for indigent

defendants, but also gives defendants the right to counsel "unburdened by a conflict of

interest that impedes zealous representation." Dallas v. Warden, 964 F.3d 1285,1302 (11th

Cir. 2020) (citing Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). However, to prevail on a

conflict of interest claim, a petitioner must show that a defense attorney actively

represented conflicting interests in such a way that adversely affected counsels'

}Zl S.CM2T?

performance. Mickens v. Taylor, 535 U.S. 162 (2002). "An 'actual conflict' of interest occurs

when a lawyer has inconsistent interests." Freund v. Butterworth, 165 F.3d 839, 859 (11th

Cir. 1999) (citing Smith v. White, 815 F.2d 1401,1405 (11th Cir. 1987)). A mere possible or

speculative conflict is insufficient. See Cuyler, 446 U.S. at 350. "To prove adverse effect, a

defendant needs to demonstrate: (a) that the defense attorney could have pursued a

r, g.

plausible alternative strategy, (b) that this alternative strategy was reasonable, and (c)

''W'

2 Neither party provided the Court with the trial court's order reappointing

Hausler to represent Petitioner. The Court conducted a review of the online docket in the

Eighteenth Judicial Circuit Court in and for Seminole County, and it appears that a

written order was not entered.

Case 6:19-CV-00713-GAP-EJK Document 39 Filed 09/10/20 Page 7 of 25 PagelD 2824

A that the alternative strategy was not followed because it conflicted with the attorney's

external loyalties." Reynolds v. Chapman, 253 F.3d 1337,1343 (11th Cir. 2001).

Petitioner fails to meet his burden because he has not presented any evidence that

counsel labored under an actual conflict of interest or had conflicting interests that

- vuori^Y -3

impeded his ability to zealously represent Petitioner. Petitioner states that counsel could

or should have followed an alternative strategy at trial. However, on the morning of trial,

Petitioner made no objection to Hausler's representation. A review of the trial transcript

reveals that Petitioner told the trial court that he was satisfied with Hausler's

representation and that there were no other witnesses or evidence that he wished to be

presented. (Doc. 21-2 at 198-99). There is no indication that counsel's failure to pursue an

alternate defense strategy was due to conflicting interests or loyalties. Therefore,

Petitioner is not entitled to relief on this claim.

\ C To the extent Petitioner also contends that counsel's representation amounted to a

Cronic violation, his claim is also unsuccessful. In United States v. Cronic, 466 U.S. 648

(1984), the Supreme Court stated "if counsel entirely fails to subject the prosecution's case

to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights

that make the adversary process itself unreliable." 466 U.S. at 659. Furthermore, in such

situations where counsel fails to subject the State's case to adversarial testing; no showing

of prejudice is required because prejudice is presumed. Id. The Court notes that trial

counsel properly subjected , the. .case to adversarial testing by presenting opening

' i

■

•

arguments at trial, thoroughly cross-examining the State's witnesses,

arguing a motion

•f' f

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for judgment of acquittal, and making closifig arguments. (Doc. 21-2 at 35-281).

The state court's denial of this claim was neither contrary to, nor an unreasonable

application of, clearly established federal law. Accordingly, Claim One is denied

pursuant to § 2254(d).

Claim Two

Petitioner contends that trial counsel was ineffective for failing to make specific

arguments when moving for a judgment of acquittal. (Doc. 1 at 12). In particular,

Petitioner asserts that counsel should have argued that Petitioner was not the exclusive

occupant of the premises and therefore, no independent proof was presented that he

possessed the methamphetamine and cannabis. (Id.). Petitioner raised a similar claim in

his Rule 3.850 proceedings, and the trial court summarily denied relief stating the

following:

The Defendant acknowledges in the claim that he is asserting that the

trial court erred in denying his JOA. Issues of ordinary trial error,

reviewable on appeal, are not cognizable under rule 3.850. Bruno v.

State, 807 So. 2d 55, 63 (Fla. 2001); Straight v. State, 488 So. 2d 530 (Fla.

1986); Childers v. State, 782 So. 2d 946 (Fla. 4th DCA 2001); State v.

Johnson, 651 So. 2d 145 (Fla. 2d DCA 1995). The Defendant cannot

"counter [this] procedural bar" by "couch[ing] his claim ... in terms

of ineffective assistance of counsel in failing to preserve or raise those

claims." Cherry, 659 So. 2d at 1072. Therefore, the Defendant has failed

to demonstrate an entitlement to relief ....

(Doc. 21-7 at 8). The Fifth DCA affirmed per curiam. See Seckington, 241 So. 3d at 853.

A per curiam affirmance of a trial court's finding of procedural default is a

sufficiently clear and express statement of reliance on an independent and adequate state

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 9 of 25 PagelD 2826

ground to bar consideration by the federal courts. Harmon v. Barton, 894 F.2d 1268,1273

(11th Cir. 1990); see also Ferguson v. Sec'y Dep't ofCorr., 580 F.3d 1183,1218 (11th Cir. 2009).

Therefore, this Court will apply the state procedural bar.

Procedural default may be excused only in two narrow circumstances: if a

petitioner can show (1) cause and prejudice or (2) actual innocence. Murray v. Carrier, 477

U.S. 478,496 (1986); Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). Petitioner has not

demonstrated cause or prejudice, nor has he shown the applicability of the actual

innocence exception. Accordingly, Claim Two is procedurally barred.3

Claim Three

Petitioner alleges that trial counsel was ineffective for failing to advance the

defense theory that he lacked knowledge regarding the illicit nature of the substances

3 Alternatively, if this claim is not procedurally barred it is without merit.

Petitioner has not shown that counsel's failure to argue that there was no independent

proof that he possessed the methamphetamine amounts to deficient performance or that

prejudice resulted. The State presented evidence that although Petitioner shared a home

with his brother, Petitioner's bedroom was locked, and his brother did not have a key.

(Doc. 21-2 at 63-64 and 74). Law enforcement found numerous items in Petitioner's locked

bedroom and bathroom that could be used to manufacture methamphetamine, including

coffee filters, plastic and glass jars, salt, plastic tubing, hydrogen peroxide, alcohol,

propane fuel, a mask with air purifying respirators, and two five-gallon buckets in the

shower containing two plastic bottles holding a clear liquid, a powdery substance, and

lithium strips. (Id. at 94-99 and 116-22). The liquid tested positive for methamphetamine

(Id. at 113 and 188). While law enforcement did not know to whom these items belonged,

after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found that Petitioner exclusively possessed these items and

therefore was guilty of trafficking in methamphetamine. See Jackson v. Virginia, 443 U.S.

307, 319 (1979). Counsel's failure to make an argument regarding joint occupancy and

constructive possession did not result in prejudice. Accordingly, this claim is denied.

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 10 of 25 PagelD 2827

found in his residence. (Doc. 1 at 15). In support of this claim, Petitioner states that

counsel should have questioned investigators and the laboratory technician about

whether a lay person would know that the clear liquid found in two bottles in his

bathroom contained methamphetamine. (Id.). Petition contends that had counsel

properly questioned these witnesses, they would have testified that there was no way for

a lay person to know what was contained in the bottles, and therefore, he would have

been entitled to a jury instruction on lack of knowledge. (Id.).

Petitioner raised this claim in his Rule 3.850 proceedings, and the trial court

summarily denied relief, concluding that because Petitioner told the court during trial

that counsel had not failed to present any evidence or call witnesses, he could not

demonstrate deficient performance. (Doc. 21-7 at 5). The Fifth DCA affirmed per curiam.

See Seckington, 241 So. 3d at 853.

Petitioner is not entitled to relief on this claim. The Court noted supra that

Petitioner told the trial court that he was satisfied with Hausler's representation and that

there were no other witnesses or evidence that he wished to be presented. (Doc. 21-2 at

198-99). When Petitioner made these statements, he was aware that counsel had not

questioned the witnesses regarding whether a lay person would know that the liquid

found was methamphetamine. Therefore, Petitioner waived his claim that counsel acted

deficiently in this regard.

Alternatively, Petitioner has not shown that but for counsel's actions that the result

of the proceeding would have been different. In Florida, lack of knowledge regarding the

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illicit nature of a substance is an affirmative defense to a drug trafficking charge. See

McMillion v. State, 813 So. 2d 56 (Fla. 2002). However, even if counsel had questioned the

witnesses about whether a lay person would know of the illicit nature of the liquid and

requested a jury instruction on lack of knowledge, Petitioner cannot show that he was

prejudiced.

Lawrence Seckington ("Seckington"), Petitioner's brother, testified that they lived

together in a three-bedroom home. (Doc. 21-2 at 63-64). Petitioner lived in the master

bedroom, the door to the room had a lock, and Seckington did not have a key to that door.

(Id. at 74). On cross-examination, Seckington testified that Petitioner had friends come

over at all hours of the day and night and sometimes a friend would stay overnight. (Id.

at 78 and 81). Additionally, a friend of Petitioner's had stayed at their house for two days

during his cancer treatment. (Id. at 79).

Charles Locher ("Officer Locher"), an officer with the Sanford Police Department

who was assigned to the Drug Enforcement Administration ("DEA") task force

investigating the matter, testified that when he searched Petitioner's locked bedroom, he

observed materials that could be used to make methamphetamine, including coffee

filters, containers, glass jars, and two five-gallon buckets in the shower of the master

bathroom containing two plastic bottles holding a clear liquid, a powdery substance, and

lithium strips. (Id. at 94 and 99). Officer Locher identified that buckets and bottles as a

"one-pot" in which ammonium nitrate, fuel, fertilizer, pseudoephedrine, lithium strips,

and water are used to make methamphetamine. (Id. at 94-97). The liquids tested positive

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 12 of 25 PagelD 2829

for methamphetamine. (Id. at 113).

Officer Locher also identified objects found in Petitioner's bedroom that could be

associated with manufacturing methamphetamine, such as salt, plastic tubing, plastic

jars, hydrogen peroxide, alcohol, propane fuel, a mask with air purifying respirators, and

a gas treatment. (Id. at 116-22). On cross-examination Officer Locher stated that he did

not know to whom any of the items belonged. (Id. at 137). On redirect examination,

Officer Locher noted that all of the items collected for evidence were found in Petitioner's

bedroom as opposed to other areas of the home. (Id. at 144).

In light of the evidence presented at trial, the Court concludes Petitioner has not

met his burden of demonstrating that but for counsel's actions, he would not have been

convicted. The standard Florida jury instruction on lack of knowledge also includes the

following language: "You may but are not required to infer that defendant was aware of

the illicit nature of the controlled substance if you find that he possessed the controlled

substance." Fla. Std Jury Instr. (Crim) 25.7(a). The State presented evidence that the

methamphetamine and numerous items employed in the manufacturing of such were

found in Petitioner's locked bedroom and bathroom. Even though other people entered

and exited the bedroom, the jury would have been permitted to infer that Petitioner was

aware of the nature of the substance due to its location in the bedroom over which he had

exclusive control.

The state court's denial of this claim was not contrary to, or an unreasonable

application of, clearly established federal law. Accordingly, Claim Three is denied

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pursuant to § 2254(d).

Claim Four

Petitioner argues that trial counsel was ineffective for failing to hire a fingerprint

expert and forensic chemist to test the items seized in connection with manufacturing

methamphetamine. (Doc. 1 at 17-18). Petitioner asserts that had the jury heard testimony

that his fingerprints were not found on any of the seized items, he would have been

acquitted. (Id. at 18). Furthermore, Petitioner states that a forensic chemist would have

testified that the liquid did not contain a "usable" amount of methamphetamine but

instead was merely urine from a methamphetamine user combined with household

cleaning solutions. (Id.). Petitioner raised this claim in his Rule 3.850 proceedings, and the

trial court denied relief, noting that because Petitioner told the court that counsel had not

failed to present evidence or call witnesses, he could not demonstrate deficient

performance. (Doc. 21-7 at 7). The Fifth DCA affirmed per curiam. See Seckington, 241 So.

3d at 853.

The record reflects that Petitioner told the trial court that he was satisfied with

Hausler's representation and there were no other witnesses or evidence that he wished

to present. (Doc. 21-2 at 198-99). When Petitioner made these statements, he was aware

that counsel had not called any expert witnesses on his behalf. Therefore, Petitioner

waived his claim that counsel acted deficiently in this regard.

Additionally, "evidence about the testimony of a putative witness must generally

be presented in the form of actual testimony by the witness or an affidavit. A defendant

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 14 of 25 PagelD 2831

cannot simply state that the testimony would have been favorable; self-serving

speculation will not sustain an ineffective assistance claim." United States v. Ashimi, 932

F.2d 643, 650 (7th Cir. 1991) (footnotes omitted); Wright v. Sec'y, Dep't ofCorr., No. 6:08cv-618-Orl-35DAB, 2009 WL 5176558, at *3 (M.D. Fla. Dec. 23, 2009). Petitioner has not

made the requisite factual showing with regard to these witnesses, and his self-serving

speculation will not sustain a claim of ineffective assistance of counsel.

The state court's denial of this claim was not contrary to, or an unreasonable

application of, Strickland. Accordingly, Claim Four is denied pursuant to § 2254(d).

Claims Five and Six

Petitioner alleges that trial counsel was ineffective for failing to challenge the

quantity of methamphetamine attributed to him. (Doc. 1 at 21-22). In Claim Six, Petitioner

alleges trial counsel should have argued for the application of the rule of lenity with

regard to how the State measured the quantity or weight of the methamphetamine. (Id.

at 26). Petitioner, raised these claims in his Rule 3.850 proceedings, and the trial court

summarily denied relief, stating that pursuant to Florida law, the quantity of

methamphetamine was properly calculated. (Doc. 21-7 at 4). The Fifth DCA affirmed per

curiam. See Seckington, 241 So. 3d at 853.

Section 893.135(l)(f), Florida Statutes, provides that a person who knowingly sells,

purchases, manufactures, delivers, brings into the state, or who is knowingly in actual or

constructive possession of methamphetamine, "or any mixture containing amphetamine

or methamphetamine ... commits a felony of the first degree...." The statute also states

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that "[f]or the purpose of clarifying legislature intent regarding the weighing of a mixture

containing a controlled substance [,] ... the weight of the controlled substance is the total

weight of the mixture, including the controlled substance and any other substance in the

mixture." § 893.135(6), Fla. Stat. Furthermore, "if there is more than one mixture

containing the same controlled substance, the weight of the controlled substance is

calculated by aggregating the total weight of each mixture." (Id.).

Maria Andreu ("Andreu"), a senior forensic chemist working for the DEA

Southeast Laboratory, testified that the two containers of liquids received from law

enforcement tested positive for methamphetamine and weighed 131.4 grams and 132

grams, respectively, for a total of 263.4 grams. (Doc. 21-2 at 189-91). On crossexamination, defense counsel Hausler questioned Andreu regarding whether it was

possible to calculate how much methamphetamine was contained in the liquid. (Id. at

191). Andreu testified that she only tests for controlled substances and does not test for

common household substances. (Id.).

Pursuant to the unambiguous language of § 893.135(6), Florida Statutes, counsel

had no basis to challenge the quantity of the methamphetamine attributed to Petitioner

or the methodology by which Andreu tested and weighed the liquids. See Wilder v. State,

194 So. 3d 1050,1053 (Fla. 5th DCA 2016) (stating that there is "no ambiguity" in section

893.135, Florida Statutes and concluding the statute "clearly contemplates the

punishment for trafficking of 'any' mixture of methamphetamine and does not set a

minimum threshold amount of methamphetamine that must be part of the mixture...,").

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 16 of 25 PagelD 2833

Nor did counsel have a reason to ask for the rule of lenity to be applied to this matter. See

Salinas v. United States, 522 U.S. 52, 66 (1997) (stating the rule of lenity does not apply

"when a statute is unambiguous or when invoked to engraft an illogical requirement to

DZS.QZSZ

its text.") (citing United States v. Shabani, 513 U.S. 10,17 (1994)).

Florida law allows for a defendant to be convicted of trafficking in

methamphetamine so long as there is some amount, no matter how small, of

methamphetamine in a mixture. Consequently, the total weight of the liquid found in

Petitioner's bathroom, 263.4 grams, was properly attributed to him. Counsel did not act

deficiently with regard to these claims, nor did counsel's actions result in prejudice. The

state court's denial of this claim was not contrary to, or an unreasonable application of,

Strickland. Accordingly, Claim Six is denied pursuant to § 2254(d).

Claim Seven

Petitioner contends that his twenty-five-year sentence amounts to cruel and

unusual punishment. (Doc. 1 at 28). Petitioner arguably raised this claim in his Rule

3.800(a) motion, and the trial court denied relief. (Doc. 21-3 at 77-78 and 85-86). The Fifth

DCA affirmed per curiam. (Id. at 111).

Petitioner was convicted of a first-degree felony for drug trafficking, for which

there is a maximum sentence of thirty years in prison and a mandatory minimum term

of fifteen years in prison. See §§ 893.135(l)(f)(l)(c) and 775.082(b)(1), Fla. Stat. Moreover,

Florida and federal courts have rejected similar Eighth Amendment challenges. See Paey

v. State, 943 So. 2d 919, 925-26 (Fla. 2d DCA 2006) (holding that a twenty-five-year

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 17 of 25 PagelD 2834

mandatory minimum term for trafficking in a controlled substance does not violate the

Eighth Amendment); United States v. Johnson, 451 F.3d 1239,1243 (11th Cir. 2006) (stating

generally, "a sentence within the limits imposed by statute is neither excessive nor cruel

and unusual under the Eighth Amendment.") (citation omitted). Petitioner was

sentenced below the maximum term permitted by statute; therefore, he cannot show that

his sentence amounts to cruel or unusual punishment or that it was imposed in violation

of the Eighth Amendment. Accordingly, Claim Seven is denied pursuant to § 2254(d).

Claim Eight

Petitioner alleges that counsel was ineffective for failing to advise him that he

could preserve for appeal the issue of whether the State properly calculated the weight

of methamphetamine attributed to him after the entry of a plea. (Doc. 1 at 32). In support

of this claim, Petitioner contends that he was offered a negotiated plea for the instant case

and lower court case number 13-2708-CFA, whereby he would receive seven years in

prison for the trafficking charge and six months in jail for the charges in his other case.

(Id.). Petitioner contends that had he known he could preserve the issue regarding the

weight of methamphetamine for appellate review, he would have entered the plea. (Id.).

Petitioner raised this claim in his Rule 3.850 proceedings, and the trial court summarily

denied relief, stating that the issue of the weight of the methamphetamine could not have

been raised on appeal, and therefore, counsel was not deficient for failing to advise

Petitioner in this manner. (Doc. 21-7 at 9-10). The Fifth DCA affirmed per curiam. See

Seckington, 241 So. 3d at 853.

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 18 of 25 PagelD 2835

Pursuant to Florida law, a defendant may appeal from a guilty or nolo contendere

plea if he "expressly reserve[s] the right to appeal a prior dispositive order of the lower

tribunal.. .Fla. R. App. P. 9.140(b)(2)(A)(i). Alternatively, a defendant may appeal (1)

the lower tribunal's lack of subject matter jurisdiction; (2) a violation of the plea

agreement, if preserved by a motion to withdraw plea; (3) an involuntary plea, if

preserved by a motion to withdraw plea; (4) a sentencing error, if preserved, or (5) as

otherwise provided by law. Fla. R. App. P. 9.140(b)(2)(A)(ii).

In order for Petitioner to preserve the issue of the weight of methamphetamine for

appellate review, he had to file a dispositive motion on the subject. No such dispositive

motion was filed in the state court. Therefore, counsel did not incorrectly advise

Petitioner on the matter because the issue was not expressly reserved for appeal.

Petitioner has not demonstrated that counsel acted deficiently, and the state court's denial

of this claim was not contrary to or an unreasonable application of Strickland.

Accordingly, Claim Eight is denied pursuant to § 2254(d).

Claim Nine

Petitioner asserts that trial counsel was ineffective for failing to argue that he did

not violate the "legislative intent" of the trafficking statute, which is to punish those who

deal in large quantities of dangerous illegal drugs. (Doc. 1 at 34). Respondents assert that

this claim is unexhausted.

Federal courts are precluded, absent exceptional circumstances, from granting

habeas relief unless the petitioner has exhausted all means of available relief under state

* *^

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 19 of 25 PagelD 2836

law. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999). In order to

satisfy the exhaustion requirement a "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." Isaac v. Augusta SMP Warden, 470 F. App'x 816, 818 (11th Cir. 2012) (quoting

Castille v. Peoples, 489 U.S. 346, 351 (1989)).

A review of the record reveals that Petitioner did not raise this claim in his Rule

3.850 proceedings. (Doc. 21-7 at 5-51). Although Petitioner alleges that he raised the issue

of "legislative intent" below, it was in the context arguing that the methodology used to

determine whether the weight of methamphetamine was improper. (Id. at 12-23).

Therefore, because Petitioner did not raise the same claim in the state, this claim is

unexhausted. See Ogle v. Johnson, 488 F.3d 1364 (11th Cir. 2007). Moreover, the Court is

precluded from considering this claim because it would be procedurally defaulted upon

return to state court. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir 1998).

Petitioner has neither alleged nor shown either cause or prejudice that would

excuse the procedural default. Wright, 169 F.3d at 703. Likewise, he has not demonstrated

the applicability of the actual innocence exception. Murray, 477 U.S. at 496. A review of

the record reveals that Petitioner is unable to satisfy the exceptions to the procedural

default bar. Accordingly, Claim Nine is denied.4

4 Alternatively, the Court concludes that Petitioner is not entitled to relief on this

claim. As discussed supra, it is clear that the Florida Legislature intended to punish those

who knowingly traffic in controlled substances or mixtures containing those substances.

The Legislature also clearly stated that the weight of the controlled substance to be used

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 21 of 25 PagelD 2838

numerous times. (Id. at 7-8). In submitting these documents, State was attempting to

demonstrate that Petitioner's manufacture of methamphetamine was not a one-time

occurrence. (Id.).

In Williams v. State, 193 So. 3d 1017,1018 (Fla. 1st DCA 2016), the First DCA stated

that while it was not improper to consider prior arrests not resulting in convictions at

sentencing, it is improper for a court to base a defendant's sentence in whole or in part

on uncharged or unsubstantiated allegations of wrongdoing. The record reflects that the

State was not asking the trial court to sentence Petitioner based on prior arrests or

uncharged acts. Instead, the State argued that Petitioner had been manufacturing

methamphetamine for some time. Petitioner's sentence was below the maximum allowed

by law, and there is no indication that the trial court based his sentence on uncharged or

unsubstantiated wrongdoings. Therefore, appellate counsel did not act deficiently, nor

did appellate counsel's failure to raise this claim on appeal result in prejudice. The state

court's denial of this claim was not contrary to or an unreasonable application of clearly

established federal law. Accordingly, this portion of Claim Ten is denied pursuant to §

2254(d).

Claim Eleven

Petitioner contends that the trial court and Fifth DCA erred by failing to grant his

motions to disqualify and petitions for writ of prohibition. (Doc. 1 at 38). Petitioner filed

numerous petitions and motions to disqualify the trial court judge in the state trial and

appellate court. (Doc. Nos. 21-8 at 79-16; 21-9 at 2-34, 77-84). These motions and petitions

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 22 of 25 PagelD 2839

were all denied. (Id.).

Petitioner sought disqualification of Judge Nelson, the judge who presided over

his trial, because he did not believe that he would receive fair rulings on his post

conviction motions. (Doc. 21-8 at 80-81). Petitioner also cited the Judge's denial of post

conviction motions as a basis for her disqualification. (Id.).

"The test a trial court must use in determining 'whether a motion to disqualify is

legally sufficient is whether the facts alleged would place a reasonably prudent person in

fear of not receiving a fair and impartial trial.'" Chamberlain v. State, 881 So. 2d 1087,1097

(Fla. 2004) (quoting Barnhill v. State, 834 So. 2d 836,843 (Fla. 2002)). A motion to disqualify

"must be well-founded and contain facts germane to the judge's undue bias, prejudice,

or sympathy." Id. (quotation omitted). However, a trial judge's adverse rulings against

one party do not constitute a sufficient basis for disqualification. Gilliam v. State, 582 So.

2d 610, 611 (Fla. 1991).

The state courts did not err by denying Petitioner's motion to disqualify or his

petitions for writ of prohibition. The record does not demonstrate that the trial judge was

biased against Petitioner, and the facts alleged by Petitioner were not such that a

reasonable person would be convinced that bias existed. Instead, it appears that

Petitioner merely takes issue with the adverse rulings against him, which alone do

support a basis for disqualification. Consequently, the state court's rejection of this claim

was not contrary to or an unreasonable application of clearly established federal law.

Accordingly, the Court will deny Claim Eleven pursuant to § 2254(d).

r .

.4.

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 23 of 25 PagelD 2840

Claim Twelve

Petitioner alleges that the Fifth DCA erred by barring him from filing any pro se

documents pursuant to State v. Spencer, 751 So. 2d 47 (Fla. 1999). (Doc. 1 at 40). At most,

Petitioner alleges an error or defect in the state post-conviction process. See Quince v.

Crosby, 360 F.3d 1259,1261-62 (11th Cir. 2004) (concluding that " [w]hile habeas relief is

available to address defects in a criminal defendant's conviction and sentence, an alleged

defect in a collateral proceeding does not state a basis for habeas relief"); Carroll v. Sec'y

Dep't ofCorr., 574 F.3d 1354 (11th Cir. 2009). Petitioner's claim is unrelated to the cause of

his detention, and thus habeas relief is not available to address this claim. Id.

Furthermore, there is no constitutional right to file frivolous court cases or abuse

the judicial process. Williams v. Sec'y, Dep't ofCorr., No. 507-CV-97-OC-10GRJ, 2009 WL

1513412, at *3 (M.D. Fla. May 27, 2009). The state court's findings that Petitioner abused

the state court judicial process are determinations that are entitled to deference in this

Court; it is not the province of this Court to "reexamine state-court determinations on

state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Accordingly, Claim

Twelve is denied.

Any of Petitioner's allegations not specifically addressed herein have been found

to be without merit.6

6 To the extent that Petitioner has raised new claims that counsel was ineffective

for failing to file a motion to suppress and for failing to file a motion pursuant to Rule

3.190(c) of the Florida Rules of Criminal Procedure (Doc. 22 at 7 and 16), the Court notes

that they are untimely and do no relate back to the Petition. Fed. R. Civ. P. 15(c); Mayle v.

■

•* /

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 24 of 25 PagelD 2841

IV.

Certificate of Appealability

This Court should grant an application for certificate of appealability only if the

r Petitioner "makes a substantial showing of the denial of a constitutional right." 28 U.S.C.

x\"': §2253(c)(2). To make such a showing "the petitioner must demonstrate that reasonable

jurists would find the district court's assessment of the constitutional claims debatable or

12,D S.C+- \S^S(^Doo)

wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca v. Sec'y Dep't ofCorr.,

568 F.3d 929,934 (11th Cir. 2009). When a district court dismisses a federal habeas petition

on procedural grounds without reaching the underlying constitutional claim, a certificate

of appealability should issue only when a Petitioner shows "that jurists of reason would

find it debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling." Id.-, Lamarca, 568 F.3d at 934. However, a prisoner need

not show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. 322,337 (2003).

The Court concludes that Petitioner has not made the requisite showing in these

circumstances. Petitioner is not entitled to a certificate of appealability.

Accordingly, it is ORDERED AND ADJUDGED as follows:

Felix, 545 U.S. 644 (2005). Therefore, the Court will not address those claims.

Alternatively, these claims are unexhausted because they were not raised in the

Rule 3.850 proceedings. Petitioner fails to demonstrate any cause or prejudice for the

procedural default. Wright, 169 F.3d at 703. Furthermore, he has not shown that he is

actually innocent of the charges. Murray, 477 U.S. at 478. Consequently, these claims are

procedurally barred.

Case 6:19-cv-00713-GAP-EJK Document 39 Filed 09/10/20 Page 25 of 25 PagelD 2842

The Petition for Writ of Habeas Corpus filed by Christopher Seckington

(Doc. 1) is DENIED, and this case is DISMISSED WITH PREJUDICE.

Petitioner is DENIED a certificate of appealability.

The Clerk of the Court is directed to enter judgment and close the case.

DONE AND ORDERED in Orlando, Florida, on September 10, 2020.

UNITED STATES DISTRICT JUDGE

Copies to:

OrlP-3 9/8

Counsel of Record

Unrepresented Party

USCA11 Case: 20-13899

Date Filed: 05/25/2021

Page: 1 of 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 20-13899-E

CHRISTOPHER SECKINGTON,

Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellees.

Appeals from the United States District Court

for the Middle District of Florida

Before: JILL PRYOR and BRASHER, Circuit Judges.

BY THE COURT:

Christopher Seckington has filed a motion for reconsideration of this Court’s April 2,2021,

order denying a certificate of appealability and leave to proceed in forma pauperis, in order to

appeal from the denial of his underlying habeas petition, pursuant to 28 U.S.C. § 2254. Upon

review, Seckington’s motion for reconsideration is DENIED because he has offered no new

evidence or arguments of merit to warrant relief.

APPBopj: c

IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT

IN AND FOR SEMINOLE COUNTY, FLORIDA

STATE OF FLORIDA, >

Plaintiff,

CASE NO.

vs.

13-2709CFA

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CHRISTOPHER MICHAEL SECKINGTON,

Defendant.

03 ps;;;

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ORDER DENYING DEFENDANT’S SECOND AMENDED MOTION FOR

POSTCONVICTION RELIEF

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THIS CAUSE comes before the Court on the Defendant’s pro se “Second Amended

* %*

Motion for Postconviction Relief,” filed pursuant to Fla. R. Crim. P. 3.850 on May 19, 2017.

Having reviewed the motion, the case file and the applicable law, and upon due consideration,

the Court finds as follows:

The record reflects that the Defendant was convicted after a jury trial of trafficking in

methamphetamine (Count 1) and possession of not more than 20 grams of cannabis (Count 2).

•'0n Count^ jwy made the further finding that the quantity of the mixture containing

methamphetamine was 200 grams or more. The Defendant was sentenced on Count 1 to twentyfive years imprisonment with a fifteen minimum mandatory pursuant to Fla. Stat. §

893.135(1 )(f) 1 .c. and time served on Count 2. The Defendant appealed and the Fifth District

Court of Appeal per curiam affirmed. Seckineton v. State. 5D14-4245, 2015 WL 6438153 (Fla.

5th DCA Oct. 20,2015).

In his motion, the Defendant raises several claims of ineffective assistance of counsel. In

order to prevail on a claim of ineffective assistance of counsel, the Defendant has the burden of

demonstrating that (1) counsel’s performance was deficient, and (2) there is a substantial

likelihood that the outcome of fee proceedings would have been differppt Strickland v.

AfPEWDr Q

Washington, 466 U.S. 668 (1984); Williamson v. Dugger. 651 So. 2d 84 (Fla. 1994); Knight v.

State, 394 So. 2d 997 (Fla. 1981). The Court notes that in reviewing claims of ineffective

assistance of counsel, it must apply a strong presumption that counsel’s conduct falls within the

range of reasonable professional assistance and must avoid the distorting effects of hindsight.

The standard is reasonably effective counsel, not perfect or error-free counsel. Coleman v. State.

718 So. 2d 827 (Fla. 4th DCA 1998); Schofield v. State. 681 So. 2d 736 (Fla. 2d DCA 1996).

In Ground 1, the Defendant asserts that trial counsel was ineffective for failing to revisit

his judgment of acquittal (JOA) argument regarding the weight of the mixture at the Defendant’s

sentencing hearing. At the close of the evidence, trial counsel argued for a JOA based, in part,

upon the fact that any unusable

should not be included in the weight of the

controlled substance. (T. 160-67). Relevant portions of the trial transcript are attached hereto as

Exhibit A. The trial court denied the motion but indicated that defense counsel could do

additional research and revisit the issue at sentencing. The Defendant asserts that trial counsel

was ineffective for failing to do additional research and revisit the issue at the Defendant’s

sentencing hearing. In support of this claim, the Defendant cites to numerous federal cases

premises upon the United States Supreme Court case Chapman v. United States. Ill S. Ct. 1919

----- S)

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(1991), which held thaTCongress4dopted a market-oriented approach for determining the weight

of controlled substances for ()urpeses4f-the-s^fttencing guidelines. 111 S. Ct. at 1925. f' f\f~ l

Essentially, the Defendant is asserting that the trial court erred in denying his motion for JOA.

Trial counsel moved for a JOA based upon the legal argument the Defendant is asserting in his

FKi

claim; therefore, this is an issue that could have been raised on appeal. TheDefendant cannot

counter the procedural bar” to raising issues that could or should have been raised on direct

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appeal by “couch[ing] his claim ... in terms of ineffective assistance of counsel in failing to

preserve or raise those claims.” Cherry v. State. 659 So. 2d 1069,1072 (Fla. 1995).

Furthermore, contrary to the Defendant’s assertion, Florida courts are not bound by

United State Supreirie Court cases when interpreting the meaning of state statutes. Florida Ins.

Guar. Ass’n, Inc, v. Olympus Ass’n, Inc.. 34 So. 3d 791, 795 (Fla. 4th DCA 2010) (“state courts

that are construing and interpreting state law are not bound by the decisions of federal courts.”);

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Int'l Ass'n of Bridge, Structural & Ornamental Ironworkers. AFL-CIQ v. Blount Intern.. Ltd..

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519 So, 2d 1009, 1012 (Fla. 2d DCA 1987) (“State courts .T. are not bound by any federal court

regarding the interpretation of state law and only by the United State Supreme Court in regard to

interpretations of the United States Constitution and Acts of Congress!”). As recently noted by

the First District Court of Appeal, the federal statutes interpreted in Chapman differ significantly

from the Florida statutes regarding calculating the weight of controlled substances. Wilder v.

State, 194 So. 3d 1050,1054 n.5 (Fla. 1st DCA 2016). In Wilder, the Court held that “based on

the plain language of sections 893.135(l)(f) 1. and 893.135(6), the jury was properly instructed

on and allowed to consider the liquid by-product in determining” whether the defendant

possessed a trafficking amount of methamphetamine. 194 So. 3d at 1054. In so doing, the Court

rejected the use of the market-oriented approach adopted in Chapman. Wilder. 194 So. 3d at

1054 n.5. Similarly, while not specifically addressing liquid by-product in conjunction with the

amount of methamphetamine, the Fifth District Court of Appeals recognized that when the

Legislature amended sections 893.03(3) and 893.135 in 2001, “it added a definition to provide

that the weight of a controlled substance is the total weight of the mixture, including the

controlled substance and any other substance in the mixture.” Nottebaum v. State. 898 SoTld '

1073,1074 (Fla. 5th DCA 2005). Therefore, the Defendant has failed to demonstrate that

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presenting additional federal case law would have changed the results. Consequently, the

Defendant has failed to demonstrate an entitlement to relief as to Ground 1.

In Ground 2, the Defendant asserts that trial counsel was ineffective for abandoning a

defense based upon the Defendant’s lack of knowledge of the illicit nature of the substance. The

Defendant asserts that trial counsel could have established this defense by asking the

investigators and lab technicians if they could be certain the mixture contained

methamphetamine by just looking at it without testing the substance. The Defendant asserts that

they would have answered that one would not be able to tell the substance contained

methamphetamine without testing it, thereby entitling him to an instruction on the defense. The

Defendant also asserts that he did not consent to counsel’s failure to present evident in support of

this defense.

At the close of the State’s case, the trial court inquired of the Defendant regarding

whether he intended to testify in his own defense, to which he stated that he would not. The trial

court then inquired if there were any witnesses or evidence that Defendant wanted trial counsel

to present that trial counsel had failed to present. The Defendant indicated that there was not, but

that there was additional ease law that he wanted presented regarding his motion for a JOA,

f M3

which was subsequently addressed. (T. 163-65). The Defendant cannot now complain about

fW4

this decision, which he made at the time of trial. Therefore, trial counsel was not ineffective in

this regard. See Gamble v. State. 877 So. 2d 706, 714 (Fla. 2004) (“[I]f the defendant consents

to counsel's strategy, there is no merit to a claim of ineffective assistance of counsel.”). As such,

the Defendant has failed to demonstrate an entitlement to relief on Ground 2.

In Ground 3, the Defendant asserts that trial counsel was ineffective for failing to move

for a JOA because there was no jury finding that the Defendant possessed the mixture of

methamphetamines in conjunction with other chemicals and equipment for the manufacture of

methamphetamines. The Defendant asserts that the information charged him with possession in

conjunction with other chemicals and equipment but that the jury was neither instructed on this

element nor made any specific finding in that regard. This claim appears to be based upon a

mistaken understanding of the trafficking statute and the Defendant’s charge in this case.

^Pursuant to Fla. Stat. § 893.135(l)(f)l, trafficking in methamphetamine can be committed by

^ \(^^^Possessing 14 grams or more of: ^ methamphetamin^j^ any mixture containing

^ methamphetamin^jorY^phenylacetone, phenylacetic acid, pseudophedri

ne or ephedrine in

ft ip* conjunction with other chemicals and equipment utilized in the manufacture of amphetamine or

methamphetamine. It is only possession of phenylacetone, phenylacetic acid, pseudophedrine or

ephedrine that must be possessed in conjunction with other chemicals and equipment to

constitute trafficking, not a mixture containing methamphetamine. “The general rule is where an

offense may be committed in various ways, the evidence must establish it to have been

committed in the manner charged in the indictment.” Long v. State. 92 So. 2d 259, 260 (Fla.

1957). When a statute criminalizes acts in the disjunctive, the information can allege those acts

in the disjunctive and proof of any one of the acts is sufficient to sustain a conviction. See Id.

The State charged the Defendant with three different ways to commit the offense of

trafficking in methamphetamines. A copy of the amended information is attached to the

Defendant’s motion as Exhibit A. As stated in the Defendant’s statement of the case and facts,

there was no evidence presented that the Defendant possessed phenylacetone, phenylacetic acid,

pseudophedrine or ephedrine; therefore, there was no reason to instruct the jury on that method

of committing the offense. See Defense Motion pg. 6. Furthermore, as the information charged

the Defendant with multiple ways of committing trafficking, proof of possession of any mixture

' n

of methamphetamine was sufficient to sustain a conviction without the jury being instructed on

possession in conjunction with other chemicals and equipment. The Defendant acknowledged in

his statement of the case and facts that there was evidence presented that the jugs contained

methamphetamine and their total weight was over 14 grams. See Defense Motion pg. 5-6.

rl^ Therefore, any motion for a JOA or objection to the jury instructions would have been futile. pA/c^

Trial counsel cannot be deemed deficient for failing to raise a nonmeritorious legal theory.” See

Bradley v. State, 33 So. 3d 664, 682 (Fla. 2010), as revised on denial of reh'g (Apr. 22, 2010)

(quoting Thompson v. State, 759 So.2d 650, 665 (Fla.2000)). Consequently, the Defendant has

failed to demonstrate an entitlement to relief as to Ground 3.

In Ground 4, the Defendant asserts that trial counsel was ineffective for failing to retain

and call at trial a fingerprint expert and a forensic chemist.^As discussed above, at the close of

the State s case, the trial court inquired of the Defendant if there were any witnesses or evidence

that Defendant wanted trial counsel to present that trial counsel had failed to present. The

Defendant indicated that there was not, but that there was additional case law that he wanted

presented regarding his motion for a JOA, which was subsequently addressed. (T. 163-65). The

Defendant cannot now complain about this decision, which he made at the time of

trial. Therefore, trial counsel was not ineffective in this regard. See Gamble. 877 So. 2d at 714

(“[I]f the defendant consents to counsel's strategy, there is no merit to a claim of ineffective

assistance of counsel.”). As such, the Defendant has failed to demonstrate an entitlement to

relief on Ground 4.

In Ground 5, the Defendant asserts that trial counsel was ineffective for failing to argue

that the trial court erred in denying his motion for JOA regarding the Defendant being the sole

occupant of the premises where the drugs were located. While initially phrasing this as a claim

fli

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°f ineffective assistance of counsel, the Defendant acknowledges in the claim that he is asserting

^at

tr^a^court erred in denying his JOA. Issues of ordinary trial error, reviewable on appeal,

PbJ t

are not cognizable under rule 3.850. ‘Bruno v. State. 807 So. 2d 55, 63 (Fla. 2001); Straight v.

State, 488 So. 2d 530 (Fla. 1986); Childers v. State. 782 So. 2d 946 (Fla. 4th DCA 2001); State

y. Johnson? 651 So. 2d 145 (Fla. 2d DCA 1995). The Defendant cannot “counter [this]

procedural bar” by “couch[ing] his claim ... in terms of ineffective assistance of counsel in

failing to preserve or raise those claims.” Cherry, 659 So. 2d at 1072. Therefore, the Defendant

has failed to demonstrate an entitlement to relief as to Ground 5.

In Ground 6, the Defendant asserts that trial counsel was ineffective for failing to object

to the trial court instructing the jury on the lesser included offense of manufacturing

methamphetamine because it is not a lesser included offense of trafficking in methamphetamine.

Given that the Defendant was convicted as charged of trafficking, the Defendant cannot

demonstrate that he was prejudiced by the inclusion of the instruction on the lesser included

offense of manufacturing. Therefore, the Defendant has failed to demonstrate an entitlement to

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relief as to Ground 6. j „

In Ground 7, the Defendant asserts that trial counsel was ineffective for failing to

withdraw from representing the Defendant based upon a conflict of interest. This claim was

previously dismissed twice for failure to allege any specific facts^which demonstrate an

entitlement to relief, and the Defendant was given leave to file an amended motion pursuant to

Spera v. State, 971 So. 2d 754, 761-62 (Fla. 2007). A copy of the original motion without

attachments is attached hereto as Exhibit B. A copy of the Court ’s February 28, 2017 order is

attached hereto as Exhibit C. A copy of the amended motion Without attachments is attached

hereto as Exhibit D. A copy of this Court’s April 20,2017 order is attached he&to as Exhibit E.

x he Defendant was unable to “cure the deficiency.” and this Court is not required to give him

another opportunity to amend. Nelson v. State. 977 So. 2d 710, 711 (Fla. 1st DCA 2008).

Therefore, the Defendant has failed to demonstrate an entitlement to relief as to Ground 7.

In Ground 8, the Defendant asserts that trial counsel was ineffective for failing to advise

the Defendant that he could appeal the issue regarding the calculation of the weight of the

mixture containing methamphetamine if the Defendant had accepted the State’s plea offer. The

Defendant’s claim is premised on the assertion that he would have accepted the plea offer if he

had known that he could appeal the issue of how the weight of the mixture should be calculated;

however, Fla. R. App. P. 9.140(b)(2)(A)(i) provides that a defendant cannot appeal from a guilty

or no contest plea except when the defendant “expressly reserve[s] the right to appeal a prior

dispositive order of the lower tribunal, identifying with particularity the point of law being

reserved.” (emphasis added). At the time of the plea offer, August 12, 2014, there had been no

ruling by the trial court on the issue of the proper calculation of the weight of the mixture

containing methamphetamine. [in fact, there had been no motion filed by the defense raising said

issuej The only potentially dispositive motion filed was a motion to dismiss based upon

bt&erSrt. couns«4. sWULKovewfiMt “tprileo.

entrapment filed on May 28, 2014.^ copy of the clerk’s docket screen^tec®%Sreto aff'€

Exhibit F. A copy of the motion to dismiss is attached hereto as Exhibit G. The record does

reflect that the issue was raised in a pro se motion to dismiss filed by the Defendant after he was

permitted to represent himself. A copy of the motion is attached hereto as Exhibit H. However,

the Defendant withdrew the motion without the trial court ever ruling on it at the trial scheduling

conference held on October 2, 2014. A copy of the court minutes is attached hereto as Exhibit I.

Therefore, there was no prior dispositive order for the Defendant to appeal if he had entered a

plea, and any advice by trial counsel to the Defendant that he could appeal the issue if he entered

the plea would have been incorrect. As a result, the Defendant has failed to demonstrate that

trial counsel was ineffective. Consequently, the Defendant has failed to demonstrate an

entitlement to relief as to Ground 8.

In Ground 9, the Defendant claims that the cumulative errors by his counsel constitute

ineffective assistance of counsel. As the Court has found the individual claims of error to be

without merit, the Defendant has failed to demonstrate that he is entitled to relief based on the

tr, ex.

hacL/»esi't ffifa qteodL °t A*6£

cumulative errors of his counseirSee Ferrell v. State. 29 So. 3d 959, 976 (Fla. 2010), reh'g

denied (Mar. 1,2010). Therefore, the Defendant has failed to demonstrate an entitlement to

relief as to Ground 9.

Accordingly, it is

ORDERED AND ADJUDGED that Defendant’s motion is DENIED.

Defendant may file a notice of appeal within thirty days of the date this order is rendered.

DONE AND ORDERED in chambers at Sanford, Seminole County, Florida, this /

day of July, 2017.

DEBRA S. NELSON, Circuit Judge

I hereby certify that copies of the foregoing have been furnished by mail this / 6 m

vJiukl

2017 to:

Christopher Seckington, # 081034

Hamilton Correctional Institution - Annex

11419 SE County Rd. 249

Jasper, FL 32052

Office of the State Attorney

101 EslingerWay

Sanford, FL 32773

GRANT MALOY, Clerk of Courts

By:

)

day of

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■

Filing # 17024186 Electronically Filed 08/12/2014 10:33:48 PM

EXHIBIT C

. *

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT

IN AND FOR SEMINOLE COUNTY, FLORIDA

CASE NO. 59-2013-CF-002709-A

STATE OF FLORIDA

Plaintiff,

CHRISTOPHER SECKINGTON,

Defendant.

MOTION TO WITHDRAW AS COUNSEL OF RECORD

COMES NOW, Justin G. Hausler, Esq., Counsel of Record for the Defendant,

CHRISTOPHER SECKINGTON, and files this Motion to Withdraw as Counsel of

Record and as grounds therefore states:

That the Undersigned Counsel was appointed to represent the Defendant on the

above-referenced case numbers on June 18 , 2014 by the Judge Jessica Recksiedler. The

Defendant was represented by the Public Defender, Office of Regional Conflict and

private counsel. The Undersigned Attorney was appointed to the case after private

counsel withdrew and without an order of conflict being entered on behalf of the Office

of Regional Conflict.

That against the advice of the Undersigned Attorney, the Defendant,

CHRISTOPHER SECKING, has decided to address the court personally and has written

two letters to express his dissatisfaction with the Undersigned Attorney representing him.

3. That due to continued issues that remain protected by confidentiality the

Undersigned Attorney must request to withdraw from the Defendant’s case due to ethical _

conflict

That the Defendant has requested the ability to represent himself in the last letter he

wrote to this Court.

That pursuant to the Defendant’s voiced dissatisfaction and additional exchanges

between the. Defendant and the Undersigned Attorney, the Attomey/Client Relationship .

is irrevocably broken.

That the Undersigned Attorney would move to withdraw from representation of the

Defendant and believes that any further representation will cause additional delay and

potential 3.850 issues on the Defendant’s case.

WHEREFORE, the Undersigned Counsel respectfully requests that this

Honorable Court enter an Order granting leave to Withdraw as counsel for the Defendant

and do all else in the interest of justice.

RfeCOrd PIN Appwl

.JJ

*** E-FILED: MARY ANNE MORSE, CLERK OF CIRCUIT COURT SEMINOLE COUNTY, FL ****

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished by EService Delivery to the Office of the State Attorney, Seminole County FL

and CHRISTOPHER SECKINGTON by US Mail at the John E. Polk Correctional

Facility, FL 32124 on this 12th day of August, 2014.

/S/ Tustin “

HausCer

JUSTIN G. HAUSLER, ESQUIRE

The Law Offices of

Justin G. Hausler, P.A.

274 Wilshire Blvd;, Ste. 245

Casselberry, FL 32707

Tel. (407) 617-1064

jghausler@gmail.com

Florida Bar #0031071

Attorney for the Defendant

98 .

EXHIBIT D

IN THE CIRCUIT COURT OF THE 18TH JUDICIAL CIRCUIT, IN AND .FOR SEMINOLE COUNTY FLORIDA

Page: 1

.Case # 2013CF002709A

08/27/2014 2:04 PM

OBTS # 5901133078

STATE OF FLORIDA vs SECKINGTON, CHRISTOPHER MICHAEL

Agency: ASMU

DOCKET SOUNDING Opened At 01:33 PM on 08/27/2014 'in Courtroom Jl, With the Following:

■

.Deputy Clerk: PATRICIA TABOR

Circuit Judge: DEBRA S NELSON

State Attorney: B. BYNUM/M. MCCARTHY/S Defense Attorney: HAUSLER, JUSTIN GARY

Deputy Sheriff/Bailiff: T. DEMPS

Public Defender: S. BRYSON/D.. MEGARO

Court Reporter: DIGITAL

Charge(s):

Bondsman

Citation

Bond

Description

TRAFFICKING IN AMPHETAMINE OR METHAMPHET,

MANUFACTURE METHAMPHETAMINE

POSSESSION OF NOT MORE THAN 20 GRAMS OF

USE OR POSSESSION OF DRUG PARAPHERNALIA

Defendant Was: Present for DOCKET SOUNDING, In Custody, Sworn

State Attorney B. BYNUM/M. MCCARTHY/S. STONE Was Present

Defense Attorney HAUSLER, JUSTIN GARY Was Present

(

For All Charges:

Defendant returned to custody

The Court granted defense motion to continue

(Docket Sounding continued to 09/24/2014 at 09:00 AM in Courtroom 5D, at the Criminal

|justice Building, 101 Bush Blvd, Sanford, FL 32773 before Judge DEBRA S NELSON

(COURT INQUIRED OF DEFENDANT AS TO FERRETTA HEARING.

•COURT FINDS DEFENDANT COMPETENT TO PROCEED ON HIS OWN BEHALF.

.DEFENSE MOTION TO WITHDRAW WAS GRANTED. COURT ANNOUNCED JUSTIN HAUSLER WILL BE STAND BY COUNSEL.

Judge:

(RECEIPT OF DEFENDANT:

’I hereby acknowledge receipt'of the foregoing •

Defendant's Signature

’ Address (include City, State •& Zip)

Phone Number

If you are a person with a disability who needs any accommodation in order to participate in

this proceeding, you are entitled, at no cost to you, to the provision of certain assistance.

|Please contact the ADA Coordinator, Court Administration, 301 North Park Avenue, Sanford,

FL 32771, telephone number (407) 665-4227 at least, 7 days before your scheduled court

appearance, or immediately upon receiving this notification if tHeTtime before the scheduled

appearance is less than 7 days; if you are hearing or voice impaired, call 711.

(

Record On

[QX •

EXHIBIT E

Chris

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update. my reffax.em&M Attorney- ^rKw/tk.----2pjkp-ecffivM y 'Sukrvuifefrf ii^l^ tf'rkrbcv~s '<&

fS^T.^ivVfer, XOlwT^

_____ ._\. .

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fifiraYffL Oft ApfWeJ posy

M3.

——_

Hausler failed to obtain certified copies of Petitioner's occupational licenses to do 24 hour

emergency repairs and remodeling for the past 23 years using his residence as a place of business.

Hausler failed to do items a-m on page 6 of Petitioner's § 2254 Motion (See Appendix G page

6).

Hausler failed to state sufficient facts to show that Defense Counsel may very well have

prevailed on a more artfully presented motion for judgment of acquittal based upon the evidence he

iiour

alleges was presented against Petitioner at trial. (See Appendix G page 10).

Hausler failed to advance the Lack of Knowledge of the Illicit Nature of the Cdiitrolled

Substance” theory at trial. (See Appendix G page 13).

Hausler failed to hire an expert witness whose testimony would have been exculpatory at trial

■ave

(See Appendix G page 15).

Hausler failed to investigate and challenge the constitutionality of ANY MIXTURE (i.e. pddl

water, toilet water, liquid waste, or dog crap) in Florida Statute § 893.135 (l)(f) (See Appendix G page

Pkroiicd

24).

Hausler failed to file a motion to dismiss under Florida Statute § 3.190 (c)(4) where Petitioner

would have taken the 7 year plea offer had the 3.190 (c)(4) motion been denied. (See Appendix G

30).

Hausler failed to investigate the legislative intent in Florida Statute § 893.135 (7) (Sed

Appendix G page 32).

. -O t:;

page

.'•■i-volle.i

Hausler did not prepare at all for the sentencing hearing. There were lots of mitigating evidence.

uier

(See Appendix G page 34).

;'’'itvL

Had Hausler discussed the case with Petitioner prior to the trial Defense Counsel would Have

been able to use the following valuable information at trial.

----------- A-bout-^-O-da-ys^r-ior-to-the-ex-ecution-of-the-sear-ch-Avarr-ant^-RQbert-Murr-^-whQ-had-terminM-L.

\.;r-

APPENDIX “F”

p;;gc

;■rtvlird

:"'vT/-ce.

vV:

pancreatic cancer, obtained permission to live with Petitioner from brother, tenant, Lawrence

Seckington and owner Ruth Seckington until an opening became available at the hospice on or aboilt

August 28lh, 2013. About August 29th, 2013, Robert arranged for the Hospice Nurse Practitionef to

come to the house and through the Medical Doctor on the phone prescribed Robert Murry 15 doses of

intravenous hydromorphone (pain medication) per day for 30 days, and they had a wheel cMi’r

delivered the next day. A search warrant was signed by a County Judge on or about September 7th,

2013. About September 8th, 2013, Robert Murry started to leave tablespoons with left over crusty white

:V:

residue and used syringes from the cold process of preparing his intravenous injectibffs!a8f‘

■■

•

hydromorphone in plain view which was about once per hour. When Petitioner observed the spo'pft^

and syringes in plain view he collected them and put them in the cabinet where Robert's new syringes

were in Petitioner's cabinet above one of the office's desks. Petitioner was using the premiss asunis

office and shop for his kitchen and bathroom remodeling business. On or about September 11* , 2013

Robert Murry began to pass out after every intravenous injection of hydromorphone. On Septertifer

? '•

17th, 2013 Robert Murry had his 7 year old son over for a possible last visit. Robert Murry's son vi&s M

■'-t-'jv

Riddelin or Adderal, a child behavioral medication made of methamphetamine. Robert Murry parsed

out in the master bathroom with the door shut and locked. His son had to urinate so he did so in tw$3'2

ounce plastic bottles with some household cleaner and waste already in them. Petitioner was una'Cvife

of this. When Robert Murry came to he placed the 32 ounce plastic bottles in the closed shower stall

that contained a

few 5 gallon paint buckets and other household cleaning supplies. Petitioner life

unaware of the urine until January of 2015 when inmate John Williams, at Apalachicola CorfedtBhM

Institution informed him of the story told to him by a prisoner in Citrus County explaining the ev'eful

that occurred in Altamonte Springs where a Defendant was sentenced to in essence life for a couple of

soda bottles of urine from a kid on Adderal or Riddelin.

At an unknown time in the afternoon of September_l 7th. 2013 Petitioner was pulled over on his

way to his bank and arrested. In the late afternoon prior to the search of the premiss Robert Murry lid

it't11

returned with two adults, one male one female. They had parked in the park behind the residence afid;

used the keys petitioner had provided him with on August 28th, 2013, to gain entry. At an unknown'

time in the evening of September 17th, 2013, the search warrant of Petitioner's residence/office uricf

shop was executed.

When the police called Lawrence Seckington and notified him to come and open the front dodr

: ;*

. i f'

Lawrence informed Robert Murry and his two comrades and they hastily fled out of the back door.

Petitioner was informed of this by letter from Lawrence in March of 2015. Lawrence Seckington vl&

never deposed or questioned by Defense Counsel. During the search Law Enforcement recovered>$§B’

'<1 A. i f ‘

32 ounce plastic bottles and extracted samples of unknown liquid from each. The unknown liquid WSs

SLi

sent to the DEA Lab, who five months later claimed that the unknown liquid tested positive for trace

amounts of methamphetamine and weighted over 14 grams. Defense Counsel never had the unkn<$yft

liquid retested to determine the amount of usable methamphetamine it contained as Petitioner had

requested numerous times (See Appendix E Exhibit E). At trial the DEA Agent, Charles Lo<$f|f

testified that “to make methamphetamine in this instance with the one-pot, amonium nifriil

fertilizer....Coleman Fuel...pseudoephedrine....starting fluid....lithium strips, you’re adding water

to«a

of this, so it just makes a very very explosive container.” (TT 62-63). Locher testified that his “traihffig

and experience” led him to believe that they were one-pots but provided no scientific proof of thit 'St

trial. Agent Locher then testified (TT 82-115) “In these two pictures, were you able to see items tfiaf

your training and experience tells you could be used towards the manufacture or ingestiofr pf

methamphetamine?” The State showed a picture of an empty 16.9 ounce mountain dew botlev'ff

Defense Counsel had asked an expert witness about the mountain dew bottle he would have discov&^l

that a 16.9 ounce bottle was way to small to be used for the manufacturing of methamphetamiiiel

Defense Counsel should have motioned for the exclusion of the mountain dew bottle as the State fdil^

‘S

to prove relevance, finger print evidence,. testing_of the prior contents.

■'f C.T £

evidence. The State then presented a picture of a “Gatorade bottle has some kind of liquid in it. I wasfi’t

trie. /:•

ISi

sure exactly what that was until we did testing on it.” Defense Counsel never discussed the “Gatorqde

bottle” in question with the Petitioner. He never objected to the inclusion of the Gatorade bottle or tried

to determine the results of the testing done on it yet it was allowed to be State's exhibit eleven when i^

was completely irrelevant. The State then presented the picture of an empty container of table salt and

stated “which is used in the end stages of the manufacturing methamphetamine.” Defense Counsel

l'::

falieo

- •:

never discussed the picture of the empty table salt container with Petitioner or motioned for The

exclusion of the empty table salt container as the State failed to prove the empty table salt container

■ &i\

that was to be used in the final stage of the manufacturing process was going to be used. The Sthte

failed to prove relevance, produce fingerprint evidence, failed to test the prior contents or collect the

container itself as evidence as such the Florida and Federal rules of evidence require the exclusiotfdf

prejudicial and irrelevant evidence. The DEA Agent Charles Locher then testified that “you haye.%$ih|

plastic tubing there.” inferring that plastic tubing is used in the one-pot manufacturing process. HhB

Defense Counsel done the appropriate research and consulted an expert in the one-pot manufacturing

process he would have discovered that plastic tubing is not used in the one-pot manufacturing process

therefore, the picture of the plastic tubing is irrelevant prejudicial and against the rules of evidence aiid

Defense Counsel should have motioned for the exclusion of the picture of the plastic tubing, fi&d

Defense Counsel discussed the picture with Petitioner he would have informed Defense Counsel"i||t'ft

was a picture of a broken computer cable that needed replacing. Next Locher testified “and then 'll

rubbing alcohol can also be used.” had Defense Counsel questioned an expert in the process ;o:f

manufacturing by the one-pot method he would have discovered that rubbing alcohol contains-d

minimum of 9% water and would have caused an immediate explosion if combined with the required

chemicals necessary to manufacture methamphetamine. Defense Counsel should have motioned fofltfil

...

exclusion of the picture of the empty bottle of rubbing alcohol. The State failed to prove reie^Mbiproduce fingerprint evidence, failed to test the prior contents or collect the c.ontainerjLtsclflasjeyider^e:

Had Defense Counsel discussed the picture of the empty container of rubbing alcohol with PetitibiM

he would have found out it was put there to remind him to buy more for his first aid kit. Locher then'

testified about State's exhibit Fourteen stating “You see the gas treatment behind, that’s used in ®

process, the initial process of manufacturing methamphetamine, not the end process.” Had Defense

Counsel consulted an expert in the one-pot manufacturing process he would have discovered that the

(■'tne

cost of gas treatment is prohibitive, costing three dollars or more for eight ounces while a more

desirable and more commonly used charcoal lighter fluid costs less as most organic solvents cost fifty

,■

cents for eight ounces, the use of gas treatment is unheard of in the one-pot method of manufacturing

. :Y '

fAj.

methamphetamine. The State failed to prove that anyone was seen using the gas treatment^

manufacture methamphetamine as such the State failed to prove relevance, produce fingerprint

evidence, failed to test the prior contents or collect the empty container itself as evidence. This requites

the exclusion of prejudicial and irrelevant evidence. Had Defense Counsel discussed the picture df'tji'e

empty bottle of gas treatment with Petitioner he would have been informed that for Petition!®

company vans he fills the empty gas treatment bottles with transmission fluid and stores them in the

• S' jrV *\

engine compartment, as 8 fluid ounces is usually the perfect amount to add and the bottles neck is ver^

narrow and fits nicely into the filler tube resulting in minimal spillage. Locher then testified about

.i,te

state's exhibit 12 stating “The propane fuel is used for initial manufacturing” had Defense Court®

discussed propane with an expert in the one-pot manufacturing process he would have discov£re®liit

'' ''j'-ii-'V

propane is not used and cannot be used in the manufacturing process. Defense Counsel should Havd

motioned for exclusion of the picture of propane fuel and in failing to do so provided ineffective

assistance of counsel. Locher testified about exhibit 15 stating “the plastic jars” that’s a “pro^Sfe

thing”... “But the plastic jars right here is another jar with liquid in it, unknown liquid.” The Stltd

failed to prove any of the items in exhibit 15 were used or were going to be used in the manufactufih^

process. Had Defense Counsel discussed exhibit 15 with petitioner he would have informed birfi If®

State's exhibit 20 shows a bag of butterscotch candy which Petitioner intendedJoJillJhe^iasticjur-Wtii

and place it on the top shelf in exhibit 15 along with the 11 other jars of candy. Defense Council's

OWU

failure to try to have exhibit 15 excluded because Florida and Federal law requires irrelevant and

X. A. C.

■4M-

prejudicial evidence to be excluded, resulted in ineffective assistance of counsel. Defense Courisel

%;v.;

failed to object or motion for exclusion of exhibit 19 “that area where you were talking about .the

p. -

plastic jars?” Which was irrelevant and prejudicial to the charge of trafficking in amphetamine. Locher

■ f V* fd

testified about State's exhibit 20 next stating “yes” to the question that the “propane thing” was, a

: -• ; 'i bui

propane lighter and “that with various plastic bottles that are used to manufacture that one-pot method.”

Had Defense Counsel consulted Petitioner about the “propane thing” he would have informed Defetisfe

Counsel that it was a broken soldering torch on his construction desk for repair and the plastic bottles

were empty spring water bottles used to combat thirst. Next Locher testified about the State's 16 which

shows a picture of a medicine cabinet/first aid kit which contained among other medicine and first kici

supplies “Hydrogen peroxide up front”...’’rubbing alcohol”...’’Cotton swabs” Had Defense Cd|iti|e|

consulted with a one-pot expert he would have found out that hydrogen peroxide, rubbing alcohol fed

cotton swabs are not used to make methamphetamine and should have motioned for exclusion$c|f

■ u.fcd

exhibit 16. Next Locher testified about State's 17 stating “you got the needles for one thing...cotton

swabs...your spoons have a white substance in it...syringes...butane lighters” Had Defense Counsel

consulted Petitioner on exhibit 17 Petitioner would have informed him that the white substance on |M

- .a

m..

spoons was hydromorphone from Petitioner's room mate, Robert Murry, who was dying of panBfbatfl

cancer and self administering intervinious injections of pain medication on an hourly basis using a

syringe each time. No lab report was ever done on the spoons; However Detective Weber testified, n^

used 5 methamphetamine test kits on the 5 spoons which all showed positive results. Weber 'fen

testified that he used 5 methamphetamine test kits on the 5 cotton swabs which all showed positfe

results. Weber then testified he found 8 vials of suspected powder methamphetamine weighing'i'0

grams total and used one methamphetamine test kit on one vial, which showed positive result^^Tf

134-135). Had Defense CounseLconsulted. with-Eetitioner. about-the..8_vials prior-to-the-triaUie wO^l'd

have been informed that the 8 vials were dietary salt substitute. No lab report was ever presented ta tiie

. .

Defense or to the Jury which was led to believe that all 8 vials field tested positive for a total of :10

grams of methamphetamine and was extremely damaging State's evidence against Petitioh|&

Competent counsel would have had the 8 vials lab tested and excluded as evidence at trial. State's

exhibit 21 shows about 10 used carpet razorblades, a pill bottle and a pipe with “burning.” Competent

counsel would have pointed out there was no field test or lab report or finger print test on any of the

items in exhibit 21 and moved for exclusion. State's 23 shows a picture of “green leafy substance, yeah

possibly marijuana....little baggie...white powered in it possibly methamphetamine” No lab report li'i

finger print test was ever presented to the Defense or Jury. However, Defense Counsel never objected

to or motioned for State's 23 to be excluded. Competent counsel would have. Counsel provided

ineffective assistance of counsel. State's 24 shows a picture of over $750.00 of small construction tools

which contained a “mask...with the two air purifying respirators...used in the manufacturiri|1(bf

methamphetamine.” No field test, no lab report or finger print test were presented to the Jury. Hdb

.ill

Defense Counsel consulted Petitioner he would have been aware that the respirator was for painting 'i:n

Petitioner's kitchen and bathroom construction company whose official shop was the residencfe-^f

alleged scene of the crime. State's 26 and 27 are pictures of a tool box containing over $l,000.00!6f

specialty tools for plumbing. Locher testified that the calculator, a copper fitting and BB's “a lotSf

times...there for the cook.” Had Defense Counsel consulted a one-pot expert he would have re^iizM

that Locher was no expert and entirely reaching beyond speculation and motioned for exclusion wShid

have been recommended and required by Florida and Federal law. In State's 30 Locher testified that

“And see all the colors and different colors here,” when the picture plainly showed that on top was '&

layer of clear liquid and on the bottom appeared to be what looked like wet kitty litter or floor dry^there

were “no colors”. Locher testified “That’s your ammonia nitrate” when in fact if ammonia nitrate y/as

used it would have been mixed in the sludge on the bottom. Locher then stated “your pseudd Jfi^

here. They could have used white pseudo also.” Wh

•. yiMi

mixture it would have dissolved right away and been suspended in the clear liquid. Locher then state's;

.ai'i

“And then you see your lithium strips, the little black spots is lithium strips,” when in fact lithium strips

are not used, the lithium must be small clumps and dissolve in the sludge. Locher then state's; “arid

•ji.; -,. i

then see the copper? That could be some copper from what he had in there earlier.” Had Defense

Counsel consulted a one-pot expert he would have been aware that copper is never used in the one-ppt

*va.>

process and moved for exclusion of the conclusion that these pictures were scientifically proof of

“one-pots”. State's PP is a syringe with a “little bit of liquid like its possibly been used or set to be

used...would that be relevant to the manufacture or possession of methamphetamine?..The use!5’

Defense Counsel provided ineffective assistance of counsel. By not objecting to the fact that there wds

f-Y

no lab report on the contents of the syringe as Petitioner claims it would have been likqljy

hydromorphone and should have been excluded. Defense Counsel should have discussed the syririgd

■ if

evidence with Petitioner and had a lab test done on the syringe prior to trial. State QQ was 3 pipeSfhit

were never field tested or lab tested. Allowing the State's testimony that “one is defiriitel^

v,-

methamphetamine and one is marijuana.” go unchallenged shows how trial preparation is non-existent

which is I.A.C. State's RR was 2 butane lighters (Bic brand), Allowing 2 common lighters to be usedl^

evidence without challenging their admissibility was ineffective assistance of counsel. State's SS

testimony was “its the spoons containing the white powdery substance.” This testimony alone was afr it

took for the State to have admitted into evidence 5 spoons that detective Weber testified he field ,tested

" -r y-tiitv

all the spoons for methamphetamine when in fact Petitioner knows they were used for prepaftrig

hydromorphone. State's VV were “several funnels” Defense Counsel was I.A.C. Because it is frrit

unusual for a construction company to have funnels in the storage closet in there office. State's XX

were “Coffee Filters” no evidence was presented that the coffee filters were used by Petitioner- or

jfu-

anyone else to manufacture methamphetamine. It it not unusual for a construction company to ba\te

coffee filters in the office pantry full of coffee^ cream and sugar. Defense Counsel provided ineffScrtl^'e

assistance of counsel by not objecting and motioning for the coffee filters exclusion. Had Defence

■S. ■ 1

’

Counsel discussed State's UU with Petitioner and an expert in the one-pot method he would h&e

•V'-y

AY?

C* 1

■l

;

discovered that the “notes or recipes” were not for manufacturing methamphetamine by the one-pot

method and had them excluded. State's 00 or exhibit 40 was 2 grams of suspected cannabis which waS

never field tested or lab tested. Had Defense Counsel discussed the suspected cannabis with Petitioner

'I;:

he would have discovered there was a high probability that it was not cannabis but a form of legal

•.i: .'

smoke and Petitioner would have insisted on it being lab tested. Defense Counsel’s allowing-it to be:put

into evidence without objection, scientific proof, or a motion to sever amounted to ineffective

assistance of counsel, and severely prejudiced Petitioner at trial. State's NN or exhibit 41 were thB'’8

"iT'l

vials of white powdery substance of which only one was field tested and Detective Weber stated hadM

positive for methamphetamine result. Had Hausler discussed the contents of the 8 vials prior to triaffie

would have been informed that they contained Petitioner's dietary salt and should have been lab tesj^d

and excluded instead, it was allowed in as State's evidence as proven 10 grams of methamphetamiitei'

All this questionable evidence that could have and should have been excluded by objectiofi dr

motion or both was a deciding factor in the jury verdict. By Defense Counsel not objecting to and

motioning for exclusion of the questionable evidence was a classic case of I.A.C. By Hausler nd^ef

>• 'U

objecting to any of the State's exhibits, by not properly investigating them, having them tested by hii

independent lab^by not calling upon an expert in the field he had no knowledge of, all proved he Wa3

operating under the “Ethical Conflict” and did not have Mr. Seckington's view or interest iti-'his

innocence.

>...n

Hausler did not operate at a level that other attorney's would have.

if,!

Mil

-•Kn —• ..i !.

GROUND ONE:

The Trial Judge reversibly erred by knowingly reappointing counsel that was not

conflict - free and Defense Counsel was ineffective for failure to withdraw from

representing the Petitioner after filing a “Motion to withdraw as Counsel of

Record” that cited an “ethical conflict of interest” and an “irrevocable broken

attorney/client relationship” that was granted by the Trial Judge, thus violating

Petitioner’s 14th and 6th Amendment rights to the U.S. Constitution.

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

1. This ground was presented to the Trial Court and to the 5th DCA as ground seven of Petitioner’s

3.850 (See Appendix E page 43-46), Ground Seven of his 2nd Amended 3.850 (See Appendix D

page 41-42a) and Ground Seven of his Initial Brief on appeal of his 3.850 (See Appendix F page

40-44).

2. Defense Counsel, Justin Hausler was appointed counsel of record in June of 2014 and Petitioner

immediately instructed Hausler to:

(a) Investigate and become familiar with the relevant law on “unusable/unmarketable”

mixtures and challenge the quantity of methamphetamine attributed to Petitioner for

Count One trafficking in over 200 grams of a mixture containing methamphetamine

(b) Have the approximately 10 grams of white powdery substance in eight unmarked vials

suspected of being methamphetamine tested by an independent laboratory because it was

“my” (Petitioner’s) “No Salt” or “Dietaiy Salt” which is gravamen to defending the

constructive possession aspect of Count One.

Petitioner’s rational assumption that no usable methamphetamine can be extracted from

the unknown clear liquid mixture and determine it had no “Street value” and/or “Street

weight” which is gravamen to the lack of knowledge of the illicit nature of the contraband

claim that Petitioner will be pursuing at trial.

(d) Obtain a fingerprint expert to testify that Petitioner’s fingerprints were not on the two 32

ounce plastic bottles that contained the unknown clear liquid mixture with more than zero

/4fPI5M0rx e

Page 6 of 43

grams of invisible methamphetamine because I (Petitioner) suspect that the State is

withholding the negative results of the fingerprint analysis.

(e) Locate and depose Confidential Informant Robert Murry, to establish that he was living

with Petitioner on his side of the residence to prove joint occupancy which requires the

State to prove by independent or direct evidence constructive possession.

(f) Obtain certified copies of jail records to prove Petitioner was already in jail when the

search warrant was executed which will make it more difficult for the State to prove

constructive possession with only property ownership as evidence of possession.

(g) Locate and depose Mike Fortune, Shawn Duffy and his girlfriend Balinda to establish

their presence the day of the search warrant’s execution.

(h) Have an expert certify that the suspected recipe for manufacturing methamphetamine by

the one-pot method was for something else and file a motion to suppress the recipe.

(i) Try to negotiate a plea bargain with the State to drop the trafficking charge because they

Florida

have no usable drug as required by § 893.135(7) and sentence Petitioner to six month in

jail, the standard sentence for manufacturing by the one-pot method in Seminole County

since Petitioner already has served nine months.

(j) File a motion for bond reduction since the State has no evidence to support the charge of

trafficking according to legislative intent as stated by Florida Statute § 893.135(7) quoting

State v. Haves. Chapman and Rolande-Gabriel.

r------- V

^ Qcyf* CQ&& C iflZS

(k) Bring the depositions to this case to jail for Petitioner to hear or read.

(l) Bring Petitioner pictures of the tangible evidence.

(m) Deliver a copy of the discovery information to the Petitioner to keep.

Prior to trial Counsel never performed any of the instructions in items a-m above.

3. On August 12, 2014, Counsel filed a “Motion to withdraw as Counsel of Record” that cited an

ethical conflict of interest and an irrevocable broken attomey/client relationship (R-97) (See

Appendix D Exhibit F).

Page 7 of 43

4. On August 27, 2014, the Trial Judge granted Counsel’s Motion to withdraw as Counsel of Record

(R-102) (See Appendix D Exhibit I).

5. On August 27, 2014, Petitioner requested conflict-free counsel to assist him in preparing for trial

by doing the things requested in supporting facts paragraph number two a-m above.

6. On August 27, 2014, instead of the trial judge appointing conflict-free counsel to assist Petitioner

in preparing for trial she made Petitioner represent himself and appointed Hausler who was

moments ago granted his “Motion to Withdraw as counsel of record” because of an ethical

jco*

conflict of interest reappointing Hausler stand-by counsel against Petitioner’s multiple objections.

7. On September 8, 2014, Petitioner filed a motion for a “Nelson Hearing” because Hausler was

refusing to cooperate in Petitioner’s case (R^M4) (see Appendix G).

8. On October 9, 2014, Petitioner requester^ in court,for a continuance to prepare for trial and for the

trial judge to appoint conflict-free counsel to assist him in obtaining subpoenas for witness, obtain

expert witnesses and getting lab reports done. The trial Judge denied the request for a continuance

to prepare for trial and reappointed Hausler who still had done nothing to prepare for trial and still

had the unresolved ethical conflict of interest back to represent Petitioner at trial which she

ordered to start the very next day.

9. Jury selection was the next day and Hausler still had done nothing to prepare for trial.

10. Petitioner proceeded to trial the following day with Hausler or in essence with no lawyer after

objecting to Hausler’s representing him multiple times, where Hausler committed the serious and

fatal errors Petitioner alleges in his 3.850 and 9.141(d) motions. Thus, Petitioner was denied his

14th and 6th Amendment rights as the drafter’s of the U.S. Constitution had envisioned.

11. Deficient performance was the trial court and defense counsel failed to ensure Petitioner had

conflict-free counsel to put the States evidence through adversarial testing.

12. Prejudice is4had Petitioner had conflict-free counsel he would have been acquitted or received

lesser sentence.

(b) If you did not exhaust your state remedies on Ground One, explain why: N/A

Page 8 of 43

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(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies,

etc.) that you have used to exhaust your state remedies on Ground One: N/A

GROUND TWO:

Defense Counsel, Justin Hausler provided ineffective assistance for failing to

argue during the J.O.A. hearing that the trial court erred when it ruled that the

Petitioner was the exclusive occupant of the premises where the contraband was

found when the evidence at trial overwhelmingly proved the premises was jointly

occupied whereby the State failed to present independent proof or direct

evidence of constructive possession of the invisible methamphetamine or the

suspected two grams of cannabis, thus violating Petitioner’s 14th and 6th

Amendment Rights to the U.S. Constitution.

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

1. This ground two was presented to the 5th DCA as Ground Two of Petitioner’s 9.141(d) Motion

and to the Trial court and 5th DCA as Ground Five of Petitioner’s 3.850 Motion and as Ground

Five of his Initial Brief ©n appeal (See Appendix C, page 31B-39B and Appendix D page 32-37

and Appendix F page 29).

2. State’s first witness, Petitioner’s brother, Lawrence Seckington testified that he has suffered from

schizophrenia for 25 years and has accessed Petitioner’s construction office using a butter knife,

which caused permanent damage to the wood surrounding the door knob’s locking mechanism

allowing easy access to the Petitioner’s side of the residence by anyone desiring to enter them.

(TT. 43) Lawrence also testified that Robert Muny was staying on Petitioner’s side of the

premises while he was suffering from terminal pancreatic cancer, and that the hospice nurse

practitioner visited Robert Muny at the premises and had the hospice doctor prescribe him 15

intravenous injections of hydromorphone per day for 30 days (TT. 45-46) which was the source of

the five spoons with white crusty residue, the syringes and Q-tips that were tested by the F.D.L.E.

and the results withheld from the defense while the jury was told they field tested positive for

methamphetamine. (See Appendix I page 43-47)

3. Prior to the search of Petitioner’s construction office and residence he was already arrested at his

bank and was in the county jail when the search was executed. Police confiscated from Petitioner

Page 10 of 43

a smart phone, keys to his office and $ 275 in cash none of which was illegal yet none of these

items were ever returned to Petitioner or his family.

4. Lawrence testified that Petitioner had employees and visitors over to the house everyday and at all

hours of the day and night (TT. 44-45). Lawrence did not know what items the Petitioner’s

employees and visitors brought to the house or took with them when they left (TT. 47).

Approximately one out of three days, Petitioner’s employees and visitors would stay overnight

(TT. 47). Many people had access to Petitioner’s construction office prior to the police search

(See Appendix I). It should be further noted that on the day of the search, Detective Weber’s

surveillance was not ongoing all day nor was he watching the sides or rear entrances to the home,

just the front. Other individuals other than the three individuals that police specifically witnessed

entering and leaving the home may indeed have existed.

5. None of the “contraband” was in plain sight or plain view.

6. No independent proof or direct evidence was ever presented by the State at trial to disprove the

Petitioner’s defense theory that the two 32 oz. plastic bottles that contained the unknown clear

liquid mixture that contained more than zero grams of invisible methamphetamine, the four plastic

containers that contained two grams of suspected cannabis, eight unmarked vials that police

suspected contained 10 grams of methamphetamine and other suspected contraband belonged to

joint occupant Robert Murry or Lawrence Seckington or one of the many employees or visitors.

The State inferred through the Petitioners ownership of the construction office on his side of the

residence that the contraband was owned and possessed by the Petitioner.

7. Had Defense Counsel presented the supporting facts listed above to the trial Judge during the

J.O.A. hearing, the trial court would have granted the judgment of acquittal on each of the two

drug charges.

8. The deficient performance was counsel failed to argue that the premises was jointly occupied.

Cfb The prejudice was the J.O.A. was denied without it.

(b) If you did not exhaust your state remedies on Ground Two, explain why: N/A

Page 11 of 43

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies,

etc.) that you have used to exhaust your state remedies on Ground Two : Raised as Ground two in

Petitioner’s 9.141(d) which was summarily denied bv the Fla. 5th DCA (See Appendix C. p. 31B-39BJ

GROUND THREE:

Defense counsel was ineffective for failure to advance the Petitioner’s affirmative

defense theory at trial concerning his “lack of knowledge of the illicit nature of

the controlled substance” violating hi£l4th and 6th Amendment right under the

U.S. Constitution

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

1. This ground was presented to the trial court and 5th DCA as Ground Two of Petitioner’s 3.850

(See Appendix D, page 19-24 and his Initial Brief on Appeal Appendix F, p. 18)

2. Petitioner claims that the unknown clear liquid mixture that contained more than zero grams of

invisible methamphetamine was produced and/or hidden by someone else in a pile of cleaning

buckets in the closed shower stall.

3. Petitioner advised Defense Counsel that his employees and visitors would often pile cleaning

supplies and construction materials in the empty shower stall and it was reasonable for Petitioner

or any lay person to not know that the buckets contained enough controlled substance of an illicit

nature (over 400 grams) to be charged with capital importation or manufacture of

methamphetamine which carries a mandatory minimum life sentence and $250,000 fine.

4. Counsel agreed to present this defense theory to the jury then failed to present either the theory

itself or any evidence to support the theory at trial. Evidence was readily available that no

reasonable person would have know that the unknown clear liquid mixture inside the two 32 oz

plastic bottles contained detectable amounts of invisible contraband just by looking at it. Hausler

merely had to ask the investigators and the laboratory technician at trial if they could have been

certain that the mixture contained detectable trace amounts of invisible methamphetamine by

^V€

____

Hot

Page 13 of 43

With this evidence, Petitioner would have been entitled to the jury instruction on his defense

theory “Lack of knowledge of the illicit nature of the controlled substance” That includes:

“If you have a reasonable doubt on the question of whether

Christopher Seckington knew of the illicit nature of the controlled

substance you should find him not guilty.”

5. When the judge asked counsel if he agreed with the deletion of this crucial jury instruction,

Hausler stated “ Not applicable, Your Honor” and allowed the court to strike it. (T-175, L 1-6; See

Appendix D, Exhibit B)

6. The Trial court gave Hausler a final chance to argue for inclusion of this crucial jury instruction

by reminding the parties that the “Lack of knowledge” paragraph had been deleted. When asked if

he had any final fcdjection to this deletion, Defense Counsel stated “ No, Your Honor”.

7. The deficient performance was Hausler failed to present any evidence to support the theory of

“Lack of knowledge of the illicit nature of the controlled substance” and agreed to delete the jury

instruction on “Lack of knowledge of the illicit nature of the controlled substance”.

8. The prejudice was that but for Hausler’s error the outcome of Petitioner’s trial would have been

different, an acquittal would have resulted.

(b) If you did not exhaust your state remedies on Ground Three, explain why: N/A___________________

(1) If you appealed from the judgment of conviction, did you raise this issue?

□ Yes

0 No

(2) If you did not raise this issue in your direct appeal, explain why: It is an ICA claim whioh is

more appropriate for a 3.850 motion.

(d) Post-Conviction Proceedings:

(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a

state trial court?

0 Yes □ No

(2) If your answer to Question (d)(1) is "Yes," state:

Type of motion or petition: 3.850

Name and location of the court where the motion or petition was filed:

18th Judicial Circuit Court. Seminole County Florida

Page 14 of 43

Docket or case number (if you know): 13-2709 CFA

Date of the court's decision: July 18. 2017

Result (attach a copy of the court's opinion or order, if available):

(See Appendix) Order Ground Two Order Denying Defendant’s Second Amended 3.850 Motion

(3) Did you receive a hearing on your motion or petition?

□ Yes

0 No

(4) Did you appeal from the denial of your motion or petition?

0 Yes

□ No

(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal?

0 Yes DNo

(6) If your answer to Question (d)(4) is "Yes," state:

Name and location of the court where the appeal was filed:

5th DCA Florida. 300 South Beach St.. Davtona Beach. Florida

Docket or case number (if you know): 5D17-2623

Date of the court's decision: March 19. 2018

Result (attach a copy of the court's opinion or order, if available):

Dp.lrJ-h Iasf/Wffe

Per Curiam Affirmed (See Appendix ft. -f&to

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise

this issue: N/A

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies,

etc.) that you have used to exhaust your state remedies on Ground Three : N/A__________________

GROUND FOUR:

Defense Counsel was ineffective for failure to hire expert witnesses whose testimony

would have been exculpatory at trial resulting in acquittals for the Petitioner which is a

violation of Petitioner’s 14th and 6th Amendment rights under the U.S. Constitution.

Page 15 of 43

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

1. This Ground Four was presented to the Trial Court and 5th DCA as Ground Four of Petitioner’s

3.850 and his Initial Brief on appeal of his 3.850 (See Appendix D, page 28 and Appendix F page

26).

2. Defense Counsel failed to hire a fingerprint expert to gather and test fingerprint evidence taken

from the two 32 oz plastic bottles of unknown clear liquid mixture that contained more than zero

grams of invisible methamphetamine as well as the 27 items suspected to contain controlled

substance residue which were sent to the FDLE yet the results from the FDLE testing were

withheld from the defense leading Petitioner to conclude the FDLE test results where exculpatory

and definitely not incriminating or the state would have used them.

3. Petitioner argues that such fingerprint experts were readily available for trial, had Counsel

requested same.

4. At a minimum, a jury hearing that fingerprints found on the buckets, bottles and other suspected

illegal items did not match the Petitioner, or they matched other individual would have produced a

different trial outcome, (i.e., acquittal).

5. Defense Counsel failed to hire a forensic chemist to re-test the unknown clear liquid mixture that

contained more than zero grams of invisible methamphetamine, as well as the 27 items sent to the

FDLE for drug testing.

6. Petitioner argues that the independent forensic expert would have confirmed Petitioner’s rational

belief that the unknown clear mixture was not a volatile “active cook” in progress, but urine from

a methamphetamine user mixed with household cleaning supplies that contained a detectable

amount of invisible methamphetamine so minute that no usable amount of methamphetamine

could be extracted from the unknown mixture.

7. Whether or not the unknown liquid mixture contained a usable amount of invisible

methamphetamine was an important distinction for the jury to understand.

Page 16 of 43

8. The independent forensic chemist should have also testified if the suspected cannabis was illegal

or just one of the many thousands of legal green leafy substances available at local smoke shops

that will get a person high, relieve anxiety or was for other purposes.

9. The independent expert should have also testified if the five spoons, three pipes, one syringe and

eight vials contained methamphetamine, hydromorphone or anything else illegal since Robert

Murry was an avid user of intravenous injections of hydromorphone for his terminal pancreatic

cancer.

10. If the independent expert chemist would have established what kind of substance the suspected

illegal items contained it would have raised reasonable doubt with the jury that the Petitioner was

responsible for it. fssW*//y $ ihceftse.

of faille SaJtwcLS presented +o

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11. The deficient performance was Hausler failed to hire fingerprint and forensic chemist expert

witnesses that would have provided exculpatory evidence at trial.

12. The prejudice was the exculpatory evidence would have produced a different trial outcome, (i.e.,

acquittal).

(b) If you did not exhaust your state remedies on Ground Four, explain why: N/A

(1) If you appealed from the judgment of conviction, did you raise this issue?

□ Yes

0 No

(2) If you did not raise this issue in your direct appeal, explain why:

It is an ICA claim which is more appropriate for a 3.850 motion.

(d) Post-Conviction Proceedings:

(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a

state trial court?

0 Yes □ No

(2) If your answer to Question (d)(1) is "Yes," state:

Type of motion or petition: 3.850

Name and location of the court where the motion or petition was filed:

18th Judicial Circuit Court. Seminole County. Florida

Docket or case number (if you know): 13-2709 CFA

Page 17 of 43

-- -

Date of the court's decision: July 18. 2017

Result (attach a copy of the court's opinion or order, if available):

(See Appendix. H p 6) Order Denying Defendant’s Second Amended 3.850 Motion

(3) Did you receive a hearing on your motion or petition?

□ Yes

0 No

(4) Did you appeal from the denial of your motion or petition?

0 Yes

□ No

(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal?

0 Yes □ No

(6) If your answer to Question (d)(4) is "Yes," state:

Name and location of the court where the appeal was filed:

5th DCA Florida. 300 South Beach St.. Daytona Beach. Florida

Docket or case number (if you know): 5D17-2623

Date of the court's decision: March 19. 2018

Result (attach a copy of the court's opinion or order, if available):

Per Curiam Affirmed (See Appendix D. p. 2nd to last page)

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise

this issue: N/A

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies,

etc.) that you have used to exhaust your state remedies on Ground Four: N/A

GROUND FIVE:

Defense counsel, Hausler, provided ineffective assistance by failing to challenge

the quantity of methamphetamine attributed to Petitioner for a 15 year

mandatory minimum and a 30 year maximum sentence for trafficking in

amphetamine during trial and at sentencing by failing to argue the trial judge

used an unconstitutional interpretation and/or statutory construction and

application of Florida’s “trafficking in amphetamine ” statute, i rt VIOI aFlOA

W'k

/VfyifiKctlvtdn-f|4o ftc

RuWfePage 18 of 43

u. s,

*'■,

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

1. This ground was raised to-the Trial Court and the 5th DCA in Petitioner’s 3.800(b), 3.800(a),

direct appeal and as ground one of his 9.141(d) and 3.850 Motions and in his Initial Brief on

appeal of his 3.850 (See Appendixes J, B, A, D and F.)

2. Petitioner claims that the unknown clear liquid mixture that contained more than zero grams of

invisible methamphetamine used to convict him is urine from a methamphetamine user mixed

with household cleaning supplies.

3. The DEA chemist in the instant case claims she has no idea what the unknown clear liquid

mixture consists of because she was only told to weigh it and test it to see if the unknown mixture

contained more than zero grams of invisible methamphetamine or any other controlled substance.

Her conclusion is that the gross weight is 263.4 grams of unknown liquid and the net weight is

more than zero grams of methamphetamine. (T 158, see Appendix K)\

4. Over 100 inmates that have manufactured methamphetamine which Petitioner surveyed during his

5 Vx

fwe-years of incarceration on this trafficking case who read the transcripts and saw the pictures of

the evidence all claim that the unknown mixture is unusable waste byproduct left over from the

methamphetamine manufacturing process and no usable methamphetamine could be extracted

from the byproduct.

5. The DEA Agent that seized the unknown clear liquid mixture claims that it looked like an “active

cook” or methamphetamine in the process of being made but has no scientific proof of that,

however it field tested to be flammable, highly acidic and tested positive for methamphetamine.

6. The State claims the unknown clear liquid mixture is “a mixture that weighs more than 200 grams

and tests positive for methamphetamine” and even though it may only be urine, pool water, toilet

water or waste materials since it tested positive for methamphetamine it is a “mixture containing

methamphetamine” and that is all that the trafficking statute requires to convict.

7. The Trial Judge during the J.O.A. hearing at trial claimed the evidence at trial was the unknown

clear liquid mixture was usable liquid methamphetamine and was sent to the DEA for testing.

“none of the waste was sent”. (See Appendixes C, Exhibit A p. 167)

Page 19 of 43

8. Upon Denying the Petitioner’s 3.850 the Trial Judge changed her mind and claimed the unknown

clear liquid mixture was waste by-product of the manufacturing process in order to be able to

deny Petitioner’s Ground One of his 3.850 because the 1st DCA made a “First Impression” ruling til

in Wilder v. State. 194 So.3d 1050 (Fla. 1st DCA 2016), that liquid by-product can be used to

determine the threshold weight for trafficking, and to hell with the Supreme Court of the United

States’ ruling in Chapman v. United States. Ill S.Ct. 1919 (1991) which held that congress

adopted the “market oriented approach” to punishing drug trafficking, whereby the “street weight”^ tyhech 15

dU S'^'fihtstzcl v is to be used to determine the threshold weight for trafficking. (See Appendix H, p. 2, Trial

Judge’s order dismissing Defendant’s 3.850).

9. There is no scientific proof the unknown clear liquid mixture is “liquid by-product” of the

methamphetamine manufacturing process. Therefore, Wilder is not controlling, Chapman is.

10. The State never alleges or proves that the unknown clear liquid mixture does not contain

unusable, toxic and unmarketable materials that must be removed before the invisible

methamphetamine can be consumed as required by legislative intent of Fla. Stat.§ 893.135(7)

quoting Chapman stated another way the State never proved the predicate 14 grams of a usable

mixture containing methamphetamine required for “trafficking in methamphetamine” required by

Fla. Stat. § 893.135(7)lwhich is legislative intent.

11. By denying the Petitioner’s motion for J.O.A., the State used an unconstitutional interpretation

and/or Statutory construction and application of State Statute. State Court’s have decided this case

differently than the U.S. Supreme Court on a set of materially indistinguishable facts. This issue is

thoroughly discussed in Petitioner’s Ground One of his Second Amended Motion for

Postconviction Relief, (See Appendix D, p. 11) See Tracey v. State. 152 So.3d 504, 505 (Fla.

2014) “Any United States Supreme Court pronouncement factually and legally on point with the

present case will automatically modify the State’s law to the extent of any inconsistency.” In

Chapman v. United States. Ill S.Ct. 1919 (1991) the U.S. Supreme Court held “Congress*

“market oriented” approach to punishing drug trafficking under which the total amount of what is

distributed” is used.. As such, the total weight of the alleged waste product should not have been

Page 20 of 43

used to convict the Petitioner of “trafficking in amphetamine” because the conviction is not

consistent with the “marketing approach” adopted by the U:S. Supreme Court in Chapman SeeSee Griffith v. U.S.. 871 F.3d 1321 (11th Cir, 2017) (also see Appendix D, p. 11, Ground One of

Petitioner’s Second Amended Motion for Postconviction relief)

Also see Griffis v. State. SG5 So.2d 297 (Fla. 1978) “The express intent of the Legislature

was that the Florida trafficking statute be in uniformity with its Federal counter part.”

We base our conclusion on the expressed intent of National Conference of

Commissioners on Uniform State Laws in proposing the Uniform Controlled Substance Act, the

act after which Ch. 73-331, § 12, Laws of Florida, was modeled. In their prefatory notes to the

Uniform Controlled Substance Act, the Commissioners stated: C

“This Uniform Act was drafted to achieve uniformity between the laws

of the several States and those of the Federal government. It has been designed

to complement the new Federal narcotic and dangerous drug legislation and

provide an inter locking trellis of Federal and State law to enable government at

all levels to control more effectively the drug abuse problem.” Griffis at 301

*1 We must also conclude that it was not the legislative intent in enacting

laws of Florida to authorize trafficking as an instrument to punish citizens for

mere possession of a controlled substance in a residence. *1

Although this construction may conflict with a literal reading of Fla.

Stat. § 893.135 an interpretation allowing a conviction of trafficking and

subsequent lengthy or life sentence for mere possession of an unknown or

unusable liquid that test positive “does violence” to the expressed intent of the

legislature.

12. During the J.O.A. at trial, Defense Counsel stated that there would have to be a determination

made whether all the liquid in the two 32 oz plastic bottles was usable. The Trial Judge then

Denied the J.O.A. motion and advised Defense Counsel to do more research and revisit the issue

Page 21 of 43

at sentencing. Hausler did not do more research and revisit the issue at sentencing as the Trial

Judge advised(T4 67, see Appendix C, Exhibit A)

13. Defense Counsel’s deficient performance was that since before the time of Petitioner’s arrest the

law of the United States Supreme Court and in particular the 11th Circuit even more importantly

(\S% FVSupp. Z4 IttH C m. 0. Fkx.OjOiV

the Middle District of Florida in U.S. v. Long^has been that it apply the “marketable” or “usable”

approach to determine the weight of a “mixture or substance”. Given that law and accepting as

true the facts alleged by Seckington, his counsel’s failure to challenge the weight calculations

amounted to deficient performance, particularly because the drug quantities were the basis for

Seckington’s mandatory minimum 15 year sentence and State’s ridiculous plea bargain of 15

years prison followed by 5 years probation that will actually be house arrest or community control

and if violated even once even after 4 years and 364 days you will be given an additional 15 years

in prison with no credit for time served for a total of 35 years incarceration. An Attorney’s

ignorance of a point of law that is fundamental to his case combined with his failure to perform

research on that point of law is a quintessential example of unreasonable performance under

Strickland when there is no conceivable strategic basis for counsel’s failure to object and pursue

the issue^See Griffith v. U.S.. 871 F.3d 1321 (11th Cir, 2017).

14. Petitioner was prejudiced by counsel’s deficient performance because:

Seckington contends that had Hausler effectively argued that the liquids in his case were not a

usable “mixture or substance”, there is a reasonable probability that he would have received a

conviction on a lower degree of a felony and a lesser sentence. And there is no indication in the

record that the Trial Court would have sentenced Seckington the same if the drug weight had

been lower. Petitioner argues there is a reasonable probability that the Trial Judge would have

imposed a different sentence had it known that a lower mixture weight applied.

If Seckington proves the factual allegations he has made, he will have shown that Hausler’s

failure to render reasonable effective assistance not only resulted in an erroneously higher

mixture weight but it also caused the Trial Judge to apply an inapplicable statutory mandatory

minimum 15 years sentence for count one. There is nothing in the record to indicate that the

Page 22 of 43

combined force of both those errors did not affect Seckington’s sentence. As a result Petitioner

has alleged facts that, if true show that his counsel’s deficient performance prejudiced him. Had

Defense counsel presented the Trial Court with “binding authority” about what constitutes a

“mixture or substance”, he would have received a lower level of felony and a lesser sentence.

(b) If you did not exhaust your state remedies on Ground Five, explain why: N/A

(1) If you appealed from the judgment of conviction, did you raise this issue?

El Yes □ No

(2) If you did not raise this issue in your direct appeal, explain why: N/A

(d) Post-Conviction Proceedings:

(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a

state trial court?

0 Yes □ No

(2) If your answer to Question (d)(1) is "Yes," state:

Type of motion or petition: 3.850

Name and location of the court where the motion or petition was filed:

18th Judicial Circuit Court. Seminole County Florida

Docket or case number (if you know): 13-2709 CFA

Date of the court's decision: July 18. 2017

Result (attach a copy of the court's opinion or order, if available):

(See Appendix//, p

1 Order Denying Defendant’s Second Amended 3.850 Motion .

(3) Did you receive a hearing on your motion or petition?

□ Yes

0 No

(4) Did you appeal from the denial of your motion or petition?

0 Yes

□ No

(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal?

0 Yes □ No

(6) If your answer to Question (d)(4) is "Yes," state:

Name and location of the court where the appeal was filed:

5th DCA Florida. 300 South Beach St.. Daytona Beach. Florida

Page 23 of 43

Docket or case number (if you know): 5D17-2623

Date of the court's decision: March 19. 2018

Result (attach a copy of the court's opinion or order, if available):

Per Curiam Affirmed (See Appendix D. p. 2nd to last page)

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise

this issue: N/A

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies,

etc.) that you have used to exhaust your state remedies on Ground Five : Raised this ground in 9.141(d) as

ground one which was summarily denied by the 5th DCA (See Appendix C . p 15-31)

GROUND SIX:

Defense counsel was ineffective for failing to argue that reasonable people could

interpret the Fla. Stat. § 893.135(l)(f) in various ways thus forcing the Trial

Judge to construe the statute most favorable to the Defendant rather than

construing the “trafficking in amphetamine” statute most favorably to the State

as the Trial Court did. This error was a violation of Petitioner’s 14th and 6th

Amendment rights to the U.S Constitution.

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

1. This ground was raised to the Trial Court and the 5th DCA as Ground three of Petitioner’s 3.850

and Initial Brief on the appeal of his 3.850 (See Appendix D, p. 24 and Appendix F, p. 23-26).

2. Petitioner proved in his 3.850 and Initial Brief on the appeal of his 3.850 that the “trafficking in

amphetamine” statute is vague and can be interpreted differently by different people thus

requiring it to be construed most favorable to the defendant.

3. Therefore, the term “any mixture” must be construed in accordance with Fla. Stat. § 893.135(7)

which requires the “mixture” to be usable and the mixture in Seckington’s case was deemed by

the State to be made from Coleman Fuel, starter fluid and fertilizer thus the State has failed to

prove the 14 grams for “trafficking in amphetamine” which must now go away.

4. The deficient performance was Defense counsel failed to argue that the “trafficking in

'it in various ways; thus, under

Page 24 of 43

“rules of construction” the statute must be construed most favorable to the defendant. In the

instant case that would be that the term “any mixture” would mean any “usable mixture” not any

“unusable mixture” such as urine, toilet water or liquid from the illicit manufacturing process as

the State admitted doing.

5. The prejudice is had the “trafficking in amphetamine” statute been construed most favorable to

the defendant Count One, trafficking in amphetamine would have been dismissed because the

State failed to produce “scientific evidence” of any “usable” methamphetamine at trial.

(b) If you did not exhaust your state remedies on Ground Six, explain why; N/A

(1) If you appealed from the judgment of conviction, did you raise this issue?

□ Yes

0 No

(2) If you did not raise this issue in your direct appeal, explain why:

It is an ICA claim which is more appropriate for a 3.850 motion.

(d) Post-Conviction Proceedings:

(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a

state trial court?

0 Yes □ No

(2) If your answer to Question (d)(1) is "Yes," state:

Type of motion or petition: 3.850

Name and location of the court where the motion or petition was filed:

18th Judicial Circuit Court. Seminole County. Florida

Docket or case number (if you know): 13-2709 CFA

Date of the court's decision: July 18. 2017

Result (attach a copy of the court's opinion or order, if available):

(See Appendix H . p V) Order Denying Defendant’s Second Amended 3.850 Motion

(3) Did you receive a hearing on your motion or petition?

□ Yes

0 No

(4) Did you appeal from the denial of your motion or petition?

0 Yes

□ No

('54jf-VQur-answer-to.QuestionidIt41-is_?Yes." did you raise this issue in the appeal?--------0 Yes □ No

Page 25 of 43

(6) If your answer to Question (d)(4) is "Yes," state:

Name and location of the court where the appeal was filed:

5th DCA Florida. 300 South Beach St.. Daytona Beach. Florida

Docket or case number (if you know): 5D17-2623

Date of the court's decision: March 19. 2018

Result (attach a copy of the court's opinion or order, if available): Per Curiam Affirmed (See

Appendix D. p. 2nd to last page)

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise

this issue: N/A

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies,

etc.) that you have used to exhaust your state remedies on Ground Six : N/A

GROUND SEVEN:

Petitioner averres that the 25 year sentence he received for allegedly attempting

to make a couple Of grams of methamphetamine is cruel and unusual punishment

which violates his 8th Amendment right to the U.S. Constitution.

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

1. This ground was raised to the Trial Court and the 5th DCA in Petitioner’s 3.800(a).

(See Appendix B, page 22)

2. At Trial the State accused the Petitioner of attempting to make a couple of grams of

methamphetamine by the one-pot method.

3. The State’s charging information accuses the Petitioner of possessing or manufacturing a mixture

containing 200 grams or more of methamphetamine simply because the unusable/unmarketable

toxic manufacturing chemicals to make a couple of grams of methamphetamine typically weighs

more than 400 grams when combined for manufacturing but not discarded prior to being seized by

police. Basically the State could have charged the Petitioner with “Capital Importation or

Manufacturing of amphetamine” which carries a mandatory minimum life sentence. But the State

choose to only charge the lesser included trafficking in amphetamine charge because the required

Page 26 of 43

experience of the court appointed counsel costs less and 30 years is in essence a life sentence for

Petitioner and the community would more easily accept a sentence of years rather than life for

merely Manufacturing a one day supply of methamphetamine for one person.

4. The Trial Court regularly sentences defendants to a six month term of incarceration for

manufacturing methamphetamine by the one-pot method in Seminole County even if it is there

second conviction for the offense. Inmates in Seminole County typically do three months and one

week on a six month sentence with gain time and good time.

5. Petitioner’s 25 year sentence for allegedly attempting to manufacture a one day supply of

methamphetamine for one person simply because he was allegedly caught in the process is grossly

disproportionate to those who committed the same crime but were able to discard the

manufacturing chemicals prior to being caught. Since Petitioner is not qualified for early release

he will do the equivalent of 98 three month and one week sentences before he is released from

prison in 2040. That is grossly disproportionate to those accused of the same misconduct and

constitutes Cruel and Unusual Punishment.

6. The “rule of lenity” described in Chapman and Rolande-Gabriel should apply. See Hart v. Coiner.

483 F.2d 136 (4th Cir. 1973) quoting Furman v. Georgia. 408 U.S. 238, 273, 33 L.Ed.2d 346, 92

S.Ct. 2726 (1972) “That punishment is not severe” in the abstract “is irrelevant, even one day in

prison would be cruel and unusual punishment for the” crime “of having a common cold”.

“The idea of disproportionality as old as the Magna Carta: A free man shall not be amerced for a

trivial offence, and for a serious offence he shall be amerced according to its gravity.”

“Life imprisonment is a “penultimate punishment” Tradition, custom, and common sense reserve

it for those violent persons who are dangerous to others. It is not a practical solution to petty

crimes in America.”

None of these exacerbating circumstances which have led legislatures to allow very long

sentences are present in this case.

.S.eejrjb.acker_v.Garrison. 445 F. Supp. 376 (4th Cir. 1978) In examing the length of a sentence, it is

not enough merely to look at how the crime is “usually committed” or to examine the elements of

Page 27 of 43

the crime. The facts and circumstances of a particular case must be considered. It is especially

important to consider the amount of violence or threat of danger to people. The reason for

allowing an unusually long sentence for possession of and unknown liquid do not in Seckington’s

case apply.

'lAlso see Davis v. Zahradnick, 432 F. Supp. 444 (4th Cir. 1977) quoting Weems v. U.S., 217 U.S.

at 368 “a term of imprisonment” might be so disproportional to the offense as to constitute a cruel

and unusual punishment. Moreover, two Circuit Courts of appeal have accepted the same

proposition. Erratic, freakish, and unusual infliction of punishment raises problems of the Eighth

Amendment proportions. Courts should not shirk their responsibility to examine the propriety of

applications of the law which work exceptional hardships on the sanctity and dignity of the

individual. Moreover, when such examination reveals objective facts which establish the arbitary

nature and total irrationality of the application as to particular individual, the courts must make the

appropriate response.''

After examining the nature of Seckington’s offense, the legislative purpose behind the

punishment, the punishment in Florida for other offenses, and the punishment actually imposed

for the same or similar offenses in Florida, the Public concludes the sentence and fine is so grossly

out of proportion to the severity of the crimes as to constitute cruel and unusual punishment in

violation to the 8th Amendment to the U.S. Constitution.

7. Counsel’s deficient performance was he failed to prove that the “trafficking in methamphetamine”

statute is vague thus requiring the term “any mixture” to be construed in favor of the defendant,

meaning the “mixture” must be usable.

8. The prejudice was had counsel obtained a favorable construction of the term “any mixture” the

“trafficking in methamphetamine” Count One would have been dismissed or Petitioner would

have been found innocent because the State failed to prove any usable methamphetamine, much

less, the 200 grams of usable drug the legislators intended.

.(b-)Jf.vou-did-not-exhaust-v.our-State-remedies_onjGround Seven, explain whv: N/A

Page 28 of 43

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies,

etc.) that you have used to exhaust your state remedies on Ground Seven : N/A__________________

GROUND EIGHT:

Defense counsel was ineffective for failing to advise Petitioner that the plea

bargain in Judge Alv

ourt included six months time served on all counts for

a concurrent seven '(7) DOC sentence for the “trafficking in amphetamine”

charge that would have included .the right to anneal the “unusable mixture” <

issue} in v/olariVn to Perm oner l^rh ana. b™JwiemthtM

RightsUS. OnSbWlon*

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

1. This ground was raised to the Trial Court and the 5th DCA in Petitioner’s 3.850 and his Initial

Brief on appeal as Ground Eight. (See Appendix D, p. 41-43 and Appendix F, p. 45-47).

2. Between July and August of 2014, in Judge Alva’s Courtroom on case No. 13-2708-CFA, the

State offered a plea bargain of 180 days time served on all counts in both cases except for a

concurrent seven (7) year DOC sentence for the charge of “trafficking in amphetamine” Petitioner

had 300 plus days time served at this point.

3. Had. Defense Counsel asked Judge Alva if the issue of “unusable mixtures” could be reserved for

appeal, Judge Alva would have agreed because she has never denied a defendant taking a plea

bargain offer from the State the right to appeal an issue of first impression in the State of Florida

before in her life.

4. The issue of “unusable mixtures” being used to establish the threshold weight for trafficking in the

State of Florida was a case of first impression in August of 2014.

5. Defense Counsel’s performance was deficient where he failed to inform Petitioner that the issue

of “unusable mixtures” not being allowed to be used to calculate the threshold weight for

trafficking was dispositive had counsel filed a Fla.R.Crim.P. § 3.190(c)(4) motion to dismiss.

Which meant Defense Counsel’s performance was deficient where he failed to prepare and file the

§ 3.190(c)(4) motion prior to advising Petitioner to reject the State’s offer.

6. Petitioner would have accepted the offer had he been advised properly by conflict free counsel.

The prosecutor would not have withdrawn the offer where it was the originator of the plea offer.

Page 30 of 43

The Court would have accepted the offer because both the prosecutor and defense made the

contract during the pre-trial conference in open court. The seven (7) years DOC sentence would

have been less than the 25 years he received due to the “Trial Penalty” he received for exercising

his right to Trial by Jury on the issue of unknown, unusable and unmarketable mixtures such as

urine, toilet water Or liquid from the illicit manufacturing process being used to calculate the

threshold weight for trafficking.

7. The prejudiced was Petitioner would have accepted plea bargain offer had Counsel advised him

intwvt f.'led ffe § 3,190 (c3CW ^ Mohfo fo dUs/n/ss

correctly and the Fifth District Court of Appeal would have issued a written opinion in early 2015

and Petitioner at worst would have one year left for allegedly manufacturing less than a one day

supply for one person.

(b) If you did not exhaust your state remedies on Ground Eight, explain why: N/A

(1) If you appealed from the judgment of conviction, did you raise this issue?

□ Yes

0 No

(2) If you did not raise this issue in your direct appeal, explain why:

It is an ICA claim which is more appropriate for a 3.850 motion.

(d) Post-Conviction Proceedings:

(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a

state trial court?

0 Yes □ No

(2) If your answer to Question (d)(1) is "Yes," state:

Type of motion or petition: 3.850

Name and location of the court where the motion or petition was filed:

18th Judicial Circuit Court. Seminole County. Florida

Docket or case number (if you know): 13-2709 CFA

Date of the court's decision: July 18. 2017

Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion or petition?

Page 31 of 43

□ Yes

0 No

(4) Did you appeal from the denial of your motion or petition?

0 Yes

□ No

(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal?

0 Yes □ No

(6) If your answer to Question (d)(4) is "Yes," state:

Name and location of the court where the appeal was filed:

5th DCA Florida. 300 South Beach St.. Daytona Beach. Florida

Docket or case number (if you know): 5D17-2623

Date of the court's decision: March 19. 2018

Result (attach a copy of the court's opinion or order, if available):

Per Curiam Affirmed (See Appendix D. p. 2nd to last page!

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise

this issue: N/A

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies,

etc.) that you have used to exhaust your state remedies on Ground Eight: N/A

_____________

GROUND NINE:

Defense counsel provided ineffective assistance by fading to argue that the State

never alleged or proved that Petitioner violated the legislative intent of the

trafficking statute which is to severely punish those who deal in “large

quantities” of dangerous illegal drugs.. Xr» vToIolH OYY Orp

l>»4. Cdtostltvr'o/i*

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

1. This ground was raised to the Trial Court and the 5th DCA in Petitioner’s 3.800(b), 3.800(a),

direct appeal and as Ground One of Petitioner’s 3.850 and 9.141(d). (See Appendixes J, B, A, D

and C).

2. The State never alleged Petitioner possessed or manufactured 14 grams of usable

methamphetamine,

ftfyrir&£ by §

3. The State never proved Petitioner possessed or manufactured 14 grams of usable

methamphetamine, OA

Page 32 of 43

•V.

4. Defense Counsel never investigated or became familiar with the legislative intent of the Florida

trafficking Statute and argued that Petitioner is not even accused of violating the legislative intent

of the trafficking Statute and Count One “trafficking in amphetamine” should be dismissed for

lack of evidence.

5. Deficient performance was Counsel’s failure to argue Petitioner never violated legislative intent

of the trafficking Statute.

6. Prejudice was had Counsel argued Petitioner did not violate legislative intent of the trafficking in

amphetamine the sentence would have been less)

Oinci/tdbfiJf’C'C. crP

wod&u Wave-ijefiA te.5s_

(b) If you did not exhaust your state remedies on Ground Nine, explain why: N/A

(1) If you appealed from the judgment of conviction, did you raise this issue?

0 Yes □ No

(2) If you did not raise this issue in your direct appeal, explain why: N/A

(d) Post-Conviction Proceedings:

(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a

state trial court?

0 Yes □ No

(2) If your answer to Question (d)(1) is "Yes," state:

Type of motion or petition: 3.850

Name and location of the court where the motion or petition was filed:

18th Judicial Circuit Court. Seminole County. Florida

Docket or case number (if you know): 13-2709 CFA

Date of the court's decision: July 18. 2017

Result (attach a copy of the court's opinion or order, if available):

(See Appendix H ) Order Denying Defendant’s Second Amended 3.850Motion.

(3) Did you receive a hearing on your motion or petition?

□ Yes

0 No

Page 33 of 43

(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal?

0 Yes □ No

(6) If your answer to Question (d)(4) is "Yes," state:

Name and location of the court where the appeal was filed:

5th DCA Florida. 300 South Beach St.. Davtona Beach. Florida

Docket or case number (if you know): 5D17-2623

Date of the court's decision: March 19. 2018

Result (attach a copy of the court's opinion or order, if available):

Per Curiam Affirmed (See Appendix D. p. 2nd to last page)

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise

this issue: N/A

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies.

etc.) that you have used to exhaust your state remedies on Ground Nine :

In Petitioner’s 3.800(a) (see Appendix B)

GROUND TEN:

Defense counsel and Appellate Counsel were ineffective for failing to argue the

Trial Court fundamentally erred when it used improper sentencing factors when

imposing a 25 year prison sentence with a 15 year mandatory minimum in

violation of Petitioner’s 14th and 6,h Amendment rights.^) t'kfc(L0hST»

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

1. This ground was presented to the State court as Ground Three of Petitioner’s 9.141(d) which was

denied without opinion (See Appendix C Ground Three of Petitioner’s 9.141(d).)

2. At sentencing the State introduced a document that was prepared by Detective Weber highlighting

all of the instances where Law Enforcement officers had responded to Petitioner’s residence and

requested the sentencing Judge to take judicial notice of the document “within the Court file” and

recommended a 25 year sentence and the sentencing Judge complied

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3. By the sentencing Judge taking judicial notice of the document prepared by Weber which

highlighted police responses to Petitioner’s residence that only included unsubstantiated

allegations of misconduct and prior charges that did not result in convictions at the request of the

State which was the only “outside evidence” at sentencing while the State does not deny it failed

to produce even one dollar of usable Methamphetamine at trial constituted reversible error

warranting a new sentencing in front of a different Judge.

4. The deficient performance was Defense counsel and Appellate Counsel failed to argue that the

sentencing court fundamentally erred by using improper sentencing factors to enhance Petitioner’s

sentence by 10 years beyond the mandatory minimum sentence required by statute.

5. The prejudice is had counsels pointed out the sentencing court had used improper sentencing

factors submitted by the, State the Trial Court would have imposed a lesser sentence.

(b) If you did not exhaust your state remedies on Ground Ten, explain why: N/A

(1) If you appealed from the judgment of conviction, did you raise this issue?

□ Yes

0 No

(2) If you did not raise this issue in your direct appeal, explain why:

Appellate Attorney did not raise it.

(d) Post-Conviction Proceedings:

(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a

state trial court?

0 Yes □ No

(2) If your answer to Question (d)(1) is "Yes," state:

Type of motion or petition: 9.141(d~)

Name and location of the court where the motion or petition was filed:

5th DCA Florida. 300 South Beach St.. Daytona Beach. Florida

Docket or case number (if you know): 5D16-3987

Date of the court's decision: January 25. 2017

■Result-(att-aeh-a-eopy-of-the-eourt's-opinion-or-erder—i-f-available):-----Motion was denied without opinion (See Appendix C. 2nd to last page)

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.