Petition for Writ of Certiorari — Terry Darnell Anderson, Petitioner v. Mark S. Inch, Secretary, Florida Department of Corrections
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USCA11 Case: 20-12451
Date Filed: 03/31/2021
Page: 1 of 1
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 20-12451-G
TERRY DARNELL ANDERSON,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Florida
Before: JORDAN and NEWSOM, Circuit Judges.
BY THE COURT:
Terry Anderson has filed a motion for reconsideration, pursuant to 11th Cir. R. 22-1(c)
and 27-2, of this Court’s February 12, 2021, order denying a certificate of appealability and leave
to proceed in forma pauperism his appeal from the denial of his 28 U.S.C. § 2254 habeas corpus
petition. Upon review, Anderson’s motion for reconsideration is DENIED because he has offered
no new evidence or arguments of merit to warrant relief.
' 20-12451
Page 1 of 3
General Docket
United States Court of Appeals for the Eleventh Circuit
Court of Appeals Docket #: 20-12451
Nature of Suit: 3530 Habeas Corpus
Terry Anderson v. Secretary, Florida Department
Appeal From: Southern District of Florida
Fee Status: Fee Not Paid
Docketed: 06/30/2020
Termed: 02/12/2021
Case Type Information:
1) Private Civil - Prisoner
2) State Habeas Corpus
3)-
Originating Court Information:
District: 113C-2 :2:18-cv-14288-RLR
Civil Proceeding: Robin Lee Rosenberg, U.S. District Judge
Secondary Judge: Lisette Marie Reid, U.S. Magistrate Judge
Date Filed: 07/24/2018
Date NOA Filed:
06/30/2020
Prior Cases:
None
Current Cases:
None
TERRY DARNELL ANDERSON (State Prisoner: 284760)
Petitioner Appellant
Terry Darnell Anderson
[NTC Pro Se]
Marion Cl - Inmate Legal Mail
PO BOX 158
LOWELL, FL 32663-0158
versus
SECRETARY, FLORIDA DEPARTMENT OF
CORRECTIONS
Appellee
Marc Hernandez
Direct: 561-837-5016
Respondent - [COR LD NTC Government]
Attorney General's Office
Firm: 561-837-5000
1515 N FLAGLER DR STE 900
WEST PALM BEACH, FL 33401
Ashley Moody
[NTC Government]
A-ttomey-GeneraTs-Offiee-
https://cal 1 -ecf.sso.dcn/cmecf/servlet/DktRpt?caseNum=20-12451 &dateFrom=&dateTo=... 6/11/2021
Page 2 of 3
"20-12451
Firm: 561-837-5000
1515 N FLAGLER DR STE 900
WEST PALM BEACH, FL 33401
TERRY DARNELL ANDERSON,
Petitioner - Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
03/31/2021 ft] ORDER: Motion for reconsideration of single judge's order filed by Appellant
' Terry Darnell Anderson is DENIED. 19331552-21 AJ and KCN (See attached order
for complete text) [Entered: 03/31/2021 09:42 AM]
03/09/2021 gl] MOTIONfor reconsideration ofsingle judge's order entered on 02/12/2021 filed by
• Appellant Terry Darnell Anderson. Opposition to Motion is Unknown [9331552-1]
[Entered: 03/12/2021 11:31 AM]
02/12/2021 M ORDER: Motion for certificate of appealability construed from the notice of appeal
' filed by Appellant Terry Darnell Anderson is DENIED. f9189560-2]; Motion to
proceed in forma pauperis filed by Appellant Terry Darnell Anderson is DENIED
as MOOT. f9189547-21 AJ (See attached order for complete text) [Entered:
02/12/2021 07:06 PM]
09/21/2020 M Supplemental to Motion for certificate ofappealability construedfrom the notice of
' appeal 19189560-21 filed by Appellant Terry Darnell Anderson. [Entered:
10/02/2020 01:20 PM]
09/16/2020 [I] MOTIONfor certificate ofappealability construedfrom the notice ofappealfiled
' by Appellant Terry Darnell Anderson. Opposition to Motion is Unknown [91895601] [Entered: 09/16/2020 03:11 PM]
09/14/2020 g] MOTION to proceed IFP filed by Appellant Terry Darnell Anderson. Opposition to
• Motion is Unknown [9189547-1] [Entered: 09/16/2020 03:03 PM]
08/21/2020 M USDC order denying IFP as to Appellant Terry Darnell Anderson was filed on
• 08/04/2020. Docket Entry 32. [Entered: 08/21/2020 08:40 PM]
07/31/2020 H] Notice of receipt: Copy of Appellant's CIP as to Appellant Terry Darnell Anderson.
• [Entered: 08/04/2020 09:14 AM]
07/23/2020 [H Certificate of Interested Persons and Corporate Disclosure Statement filed by
‘ Attorney Marc Hernandez for Appellee Secretary, Florida Department of
Corrections. On the same day the CIP is served, the party filing it must also
complete the court's web-based stock ticker symbol certificate at the link here
,
xarlT .uscotirts:gov/web=based=cipTH“on-the-eourtis-websiter-See-14th—
https://call-ecf.sso.dcn/cmecf7servlet/DktRpt?caseNum=20-12451&dateFrom-&dateTo-...
6/11/2021
20-12451
Page 3 of 3
Cir. R. 26.1-2(b). [20-12451] (ECF: Marc Hernandez) [Entered: 07/23/2020 11:05
AM]
07/22/2020 g] Paperless USDC order: Extension to File Application for Leave to Proceed in
Forma Pauperis on Appeal is granted and IFP will be due August 13,2020 as to
Appellant Terry Darnell Anderson. Order was filed on 07/20/2020. Docket Entry
29. [Entered: 07/22/2020 03:48 PM]
07/20/2020 H] TRANSCRIPT INFORMATION form filed by Party Terry Darnell Anderson. No
' transcript is required for appeal purposes. [Entered: 07/22/2020 03:50 PM]
07/20/2020 |Sj NO ACTION WILL BE TAKEN The court is in receipt of your Request for leave
' to file a Motion for Certificate of Appealability. Upon receipt of the District
Court’s Order concerning whether this appeal will be allowed to proceed in forma
pauperis, we will advise you regarding further requirements. Notice of receipt:
Request for leave to file motion for Certificate of Appealability as to Appellant
Terry Darnell Anderson. [Entered: 07/22/2020 03:27 PM]
07/20/2020 g] Notice of receipt: Copy of Appellant's motion for an extension of time to file
application for leave to proceed in forma pauperis on appeal as to Appellant Terry
Darnell Anderson. [Entered: 07/22/2020 03:21 PM]
07/20/2020 gj Appellant's Certificate of Interested Persons and Corporate Disclosure Statement
‘ filed by Appellant Terry Darnell Anderson. [Entered: 07/22/2020 03:09 PM]
07/15/2020 §] NOTICE OF CIP FILING DEFICIENCY to Terry Darnell Anderson. You are
receiving this notice because you have not completed the Certificate of Interested
Persons (CIP). Failure to comply with 11th Cir. Rules 26.1 -1 through 26.1 -4 may
result in dismissal of the case or appeal under 11th Cir. R. 42-1(b), return of
deficient documents without action, or other sanctions on counsel, the party, or
both. [Entered: 07/15/2020 06:47 PM]
07/13/2020 |H| APPEARANCE of Counsel Form filed by Marc B. Hernandez for Secretary,
‘ Florida Department of Corrections [20-12451] (ECF: Marc Hernandez) [Entered07/13/2020 09:21 AM]
06/30/2020 || USDC order denying COA as to Appellant Terry Darnell Anderson was filed on
’ 06/05/2020. Docket Entry 24. [Entered: 07/02/2020 09:29 AM]
06/30/2020 m HABEAS APPEAL DOCKETED. Notice of appeal filed by Appellant Terry
' Darnell Anderson on 06/30/2020. Fee Status: Fee Not Paid. No hearings to be
transcribed. [Entered: 07/02/2020 09:27 AM]
https://cal 1 -ecf.sso.dcn/cmecf/servlet/DktRpt?caseNum=20-12451 &dateFrom=&dateTo=...
6/11/2021
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USCA11 Case: 20-12451
Date Filed: 02/12/2021
Page: 1 of 4
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 20-12451-G
TERRY DARNELL ANDERSON,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Florida
ORDER:
Terry Anderson, a Florida prisoner serving a life sentence for cocaine trafficking and
unlawful use of a two-way device, seeks a certificate of appealability (“COA”) and in forma
pauperis (“IFP”) status to appeal the district court’s denial of his pro se 28 U.S.C. § 2254 petition.
To obtain a COA, Anderson 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 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). Anderson has failed to make the requisite showing.
In Claim 1, Anderson argued that the trial court violated his Sixth and Fourteenth
Amendment rights by denying his motion for mistrial, where a state’s witness referred to his prior
uncharged acts, in violation of the court’s ruling to exclude those references. Reasonable jurists
USCA11 Case: 20-12451
Date Filed: 02/12/2021
Page: 2 of 4
would not debate the district court’s determination that this claim is procedurally defaulted. When
Anderson raised this claim in state court, he did not mention the Sixth and Fourteenth
Amendments, and consequently, has not raised his federal constitutional claim to the state court.
See McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005). Anderson cannot now return to
state court and exhaust this claim and has not shown cause and prejudice or actual innocence to
excuse his default. See Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003).
In Claim 2, Anderson argued that counsel failed to seek an expert to dispute the authenticity
of the video recordings of the instant drug transaction. Reasonable jurists would not debate the
state court’s rejection of this claim under Strickland v. Washington, 466 U.S. 668 (1984). The
record is clear that counsel did not seek an expert because he did not believe that the video
recordings had been altered. Moreover, as the state court concluded, this claim is too bare and
conclusoiy to warrant relief, as Anderson failed to articulate what parts of the video were
inaccurate or how he believed that the videos had been altered.
In Claim 3, Anderson argued that counsel failed to impeach the confidential informant with
inconsistent statements from his deposition. But Anderson’s codefendant’s counsel impeached
the confidential informant with several inconsistencies in his deposition testimony, and there was
no need for die jury to hear this testimony for a second time. As a result, reasonable jurists would
not debate the state court’s rejection of this claim under Strickland.
In Claims 4 and 5, Anderson argued that counsel failed to present an entrapment defense
and gave an inadequate closing argument. Reasonable jurists would not debate the state court’s
rejection of this claim. Under Strickland, the state court reasonably concluded that the entrapment
defense likely would have been unsuccessful. To rebut the entrapment defense, the state would
have been able to introduce evidence of Anderson’s prior criminal activities, including his prior
q
USCA11 Case: 20-12451
Date Filed: 02/12/2021
Page: 3 of 4
felony convictions and multiple attempts to set up a drug deal. See Jones v. State, 114 So.3d 1123,
1126 (Fla. Dist. Ct. App. 2013). With this evidence, the state could have shown that Anderson
“readily availed himself of the opportunity to perpetrate the crime.” See id. As to Claim 5, counsel
did not argue an entrapment theory in closing argument, but focused on the confidential
informant’s credibility and motives to he.
In Claim 6, Anderson argued that he received ineffective assistance based on the
cumulative effect of trial and appellate counsels’ errors. “Under the cumulative-error doctrine, a
sufficient agglomeration of otherwise harmless or nonreversible errors can warrant reversal if thenaggregate effect is to deprive the defendant of a fair trial.” Insignares v. Sec ’y, Fla. Dept. ofCorr.,
755 F.3d 1273,1288 (11th Cir. 2014). Because there are no errors to accumulate, Anderson cannot
satisfy the COA standard on his cumulative-error claim. See id.
In Claim 7, Anderson argued that appellate counsel failed to challenge the trial court’s
“principal” instruction, as well as its failure to give an entrapment instruction and instruct the jury
on the mens rea requirement for cocaine trafficking. Reasonable jurists would not debate the
district court’s denial of this claim because: (1) the “principal” instruction was supported by the
evidence; (2) trial counsel did not request the entrapment instruction because it was not supported
by the evidence; and (3) the trial court did, in fact, instruct the jury on the mens rea requirement.
In Claim 8, Anderson argued that appellate counsel failed to argue that he received
ineffective assistance of trial counsel. Reasonable jurists would not debate the district court’s
denial of this claim because Anderson has not shown that trial counsel was ineffective.
In Claim 9, Anderson argued that appellate counsel failed to raise an issue regarding the
use of unauthenticated transcripts as demonstrative aids. Reasonable jurists would not debate the
district court s denial of this claim because the confidential informant vouched for the accuracy of
USCA11 Case: 20-12451
Date Filed: 02/12/2021
Page: 4 of 4
the transcripts based on his personal knowledge of the events depicted in the recordings, and the
trial court: (1) listened to the recordings and compared them to the transcripts; (2) informed the
jury that the recordings, rather than the transcripts, were the evidence that they were to consider;
and (3) retrieved the copies of the transcripts after the playback of the recordings had ended.
In Claim 10, Anderson argued that appellate counsel failed to challenge improper
prosecutorial remarks in closing argument and the incorrect verdict form. Reasonable jurists
would not debate the district court’s denial of this claim because the state’s closing remarks were
not improper and have been taken out of context. The verdict form also was not incorrect. The
information charged Anderson with cocaine trafficking of 400 grams or more, which is a firstdegree felony, and he was convicted and sentenced for that crime.
Accordingly, Anderson’s COA motion is DENIED, and his IFP motion is DENIED AS
MOOT.
/s/ Adalberto Jordan
UNITED STATES CIRCUIT JUDGE
<-•
1
/
^Case: 2:18-cv-14288-RLR
Document #: 24 Entered on FLSD Docket: 06/05/2020
Page 1 of 2
/'■
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 2:18-CV-14288-ROSENBERG/REID
TERRY DARNELL ANDERSON,
Petitioner,
v.
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
Respondent.
ORDER ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION, DENYING
PETITION FOR A WRIT OF HABEAS CORPUS. AND CLOSING CASE
This matter is before the Court upon Petitioner’s Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2254. DE 7. The Court previously referred this case to Magistrate Judge Lisette
M. Reid for a ruling on all pre-trial, non-dispositive matters and for a Report and Recommendation
on all dispositive matters.
Judge Reid issued a Report and Recommendation in which she recommended that the
Petition be denied. DE 17. Petitioner subsequently submitted Objections to the Report and
Recommendation. DE22.
The Court has conducted a de novo review of the Report and Recommendation, Petitioner’s
Objections thereto, and the entire record and is otherwise fully advised in the premises. The Court
agrees with the Report and Recommendation and finds Judge Reid’s recommendation to be well
reasoned and correct.
Case: 2:18-cv-14288-RLR
Document #: 24 Entered on FLSD Docket: 06/05/2020
Page 2 ot z
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Petitioner’s Motion [DE 23] for leave to file Objections in excess of the page limitation is
GRANTED. The Court accepts Petitioner’s Objections filed at DE 22.
2. Petitioner’s Objections [DE 22] are OVERRULED.
3. Magistrate Judge Reid’s Report and Recommendation [DE 17] is ADOPTED as the Order
of the Court.
4. Petitioner’s Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 [DE 7] is
DENIED.
5. A Certificate of Appealability SHALL NOT ISSUE.
6. The Clerk of the Court is instructed to CLOSE THIS CASE.
All deadlines are
TERMINATED, all hearings are CANCELLED, and all motions are DENIED AS
MOOT.
DONE AND ORDERED in Chambers, West Palm Beach, Florida, this 5th day of June,
2020.
L
ROBIN L. ROSENBERG
“ UNITED-STATES_DISTRICT JU
Copies furnished to:
Petitioner
Counsel of Record
2
'4
4
rzs:-.*
TERRY DARNELL ANDERSON, Petitioner, v. MARK S. INCH,1 Respondent.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2020 U.S. Dist. LEXIS 48833
CASE NO. 18-CV-14288
March 18, 2020, Decided
March 18, 2020, Entered on Docket
Editorial Information: Prior History
Anderson v. State, 105 So. 3d 536, 2013 Fla. App. LEXIS 537 (Fla. Dist. Ct. App. 4th Dist., Jan. 16, 2013)
Terry Darnell Anderson, Plaintiff, Pro se, Lowell, FL.
For Florida Department of Corrections, Secretary, Defendant: Noticing 2254 SAG Broward and
North,LEAD ATTORNEY; Marc Brandon Hernandez, LEAD ATTORNEY, Florida Office of the Attorney
General, West Palm Beach, FL.
Judges: ROBIN L. ROSENBERG, UNITED STATES MAGISTRATE JUDGE.
Opinion
Opinion by:
ROBIN L. ROSENBERG
REPORT OF MAGISTRATE JUDGE
I. Introduction
The Petitioner, Terry Anderson, has filed this pro se petition for writ of habeas corpus, pursuant to 28
U.S.C. 2254. challenging the constitutionality of his convictions for trafficking in cocaine and unlawful use
of a two-way device, entered following a jury verdict in St. Lucie County Circuit Court, Case No.
562009CF001510A. For the reasons detailed below, the Petitioner is not entitled to habeas corpus relief.
This cause has been referred to the undersigned for consideration and report, pursuant to 28 U.S.C.
636(b)(1)(B), (C); and S.D. Fla. Admin. Order 2019-02. [ECF 2; 16],
For its consideration of the amended petition [ECF 7] and supporting memorandum of law [ECF 8], the
court has the Respondent's response to this Court's order to show cause [ECF 11], along with its
supporting appendix [ECF 12; 13], containing copies of relevant state court pleadings,{2020 U.S. Dist.
LEXIS 2} including hearing and trial transcripts.
II. Claims
Construing the arguments liberally as afforded pro se litigants, pursuant to Haines v. Kerner, 404 U.S.
519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), the Petitioner raises the following grounds for relief:
1. The trial court erred by denying his motion for mistrial. [ECF 7, p. 5],
1
2. He received ineffective assistance of counsel when his lawyer failed to investigate and seek an expert
to authenticate video of the drug transaction. [ECF 7, p. 7],
3. He received ineffective assistance of counsel when his lawyer failed to impeach a state witness during
cross-examination. [ECF 7, p. 8],
4. He received ineffective assistance of counsel when his lawyer failed to present an entrapment defense
during trial. [ECF 7, p. 10].
5. He received ineffective assistance of counsel when his lawyer gave an inadequate closing argument.
[ECF 7, p. 12].
6. He received ineffective assistance of counsel based on the cumulative effect of counsel's errors. [ECF
7, p. 12],
7. He received ineffective assistance of appellate counsel when his lawyer failed to raise an issue of
improper jury instructions on appeal. [ECF 7, p. 12].
8. He received ineffective assistance of appellate counsel when his lawyer failed to argue on direct
appeal that{2020 U.S. Dist. LEXIS 3} he received ineffective assistance of trial counsel. [ECF 7, p. 12],
9. He received ineffective assistance of appellate counsel when his lawyer failed to raise an issue
regarding the use of unauthenticated transcripts. [ECF 7, p. 12],
10. He received ineffective assistance of appellate counsel when his lawyer failed to raise an issue of
prosecutorial misconduct on direct appeal. [ECF 7, p. 12],
III. Procedural History
Petitioner was charged, along with co-defendant Artez Anderson, with trafficking in cocaine (400 grams or
more) (count 1), conspiracy to sell or deliver cocaine (count 2), and unlawful use of a two-way
communications device (count 3). [ECF 12-1, Ex. 1], The State dropped count 2 prior to trial. [Vol. 1, T.
25-26]. At trial, the jury found Petitioner guilty of the remaining counts. [ECF 12-1, Ex. 8]. Petitioner was
sentenced as a habitual felony offender to life in prison as to the trafficking conviction, and ten years'
imprisonment as to the unlawful use of a device. [Id., Ex. 11],
Petitioner prosecuted a direct appeal raising one claim: the trial court erred by denying his motion for
mistrial where the state’s confidential informant suggested he engaged in collateral crimes.{2020 U.S.
Dist. LEXIS 4} [ECF 12-1, Ex. 13], After briefing from both parties, the Fourth District Court of Appeal
("Fourth DCA") per curiam affirmed Petitioner’s judgment of conviction without written opinion. [Id., Exs.
14, 15]; see also Anderson v. State, 105 So.3d 536 (Fla. 4th DCA2013). The mandate issued on
February 15, 2013. [Id., Ex. 16],
Shortly after, Petitioner filed a state petition for writ of habeas corpus alleging ineffective assistance of
appellate counsel. [ECF 12-1, Exs. 17; 18]. In his petition, he raised the following claims: (1) appellate
counsel was ineffective for failing to raise an issue regarding improper jury instructions; (2) appellate
counsel was ineffective for failing to raise an issue regarding trial counsel's ineffectiveness; (3) appellate
counsel was ineffective for failing to raise an issue regarding the use of unauthenticated transcripts; and
(4) appellate counsel was ineffective for failing to raise an issue of prosecutorial misconduct; (5) appellate
counsel was ineffective for failing to argue that the officer wearing his uniform in court inflamed the jury;
and, (6) appellate counsel was ineffective for failing to argue that the cumulative effect of these errors
rendered his trial unfair. [Id., Ex. 18], The Fourth DCA denied{2020 U.S. Dist. LEXIS 5} the petition
without comment. [Id., Ex. 20].
2
Petitioner next filed a motion for postconviction relief pursuant to Fla. R. Crim. P. 3.850, where he raised
the following grounds for relief: (1) trial counsel was ineffective for failing to have the video of the drug
transaction analyzed by an expert; (2) counsel was ineffective for failing to impeach the state's
confidential informant; (3) counsel was ineffective for failing to present an entrapment defense; (4)
counsel was ineffective for giving an inadequate closing argument; and (5) the cumulative effect of
counsel’s errors rendered his trial unfair. [ECF 12-1, Ex. 21]. After a response from the state, the trial
court denied the motion in a written, detailed order. [Id., Exs. 24-25], Petitioner appealed, and on June 7,
2018, the Fourth DCA issued its per curiam affirmance of the order denying relief. [Id., Ex. 27]; see also
Anderson v. State, 248 So.3d 105 (Fla. 4th DCA2018) (table). The mandate issued on August 17, 2018.
[ECF 9-1, Ex. 30],
Prior to the issuance of the mandate above, Petitioner came to this Court, filing his initial habeas petition
pursuant to 28 U.S.C. 2254 on July 24, 2018. [ECF 1], Petitioner filed an amended petition pursuant to
the Court's order on August 17, 2018. [ECF 7],
IV. Threshold Issues
A. (2020 U S. Dist. LEXIS 6)Timeliness
Careful review of the procedural history of this case confirms that less than one year of un-tolled time
expired after the Petitioner’s judgment became final and the filing of this federal habeas petition.
Therefore, as the Respondent correctly concedes [ECF 11, p. 6], the petition is timely filed under 28
U.S.C. 2244fdV
B. Exhaustion
Next, the Respondent argues that Petitioner's claim 1, which involves trial court error, is unexhausted and
procedurally defaulted from federal habeas review because it was never presented to the state court in
federal constitutional terms. [ECF 11, p. 8]. In addressing the issue of exhaustion and procedural default,
the Court must determine whether the claims raised here were raised in the state court proceedings, and
whether the state courts were alerted to the federal nature of the claims.
Before bringing a 2254 habeas action in federal court, a petitioner must exhaust all available state court
remedies. See 28 U.S.C. 2254(b). (c). To properly exhaust state remedies, the petitioner must fairly
present every issue raised in his federal petition to the state's highest court, either on direct appeal or on
collateral review. Castille v. Peoples, 489 U S. 346. 351, 109 S. Ct. 1056, 103 L. Ed. 2d 380(19891:
Preston v. Sec'y, Fla. Dep'tof Corn, 785 F.3d 449. 456-59 (11th Cir. 2015).
Exhaustion is not satisfied "merely" if the petitioner presents{2020 U.S. Dist. LEXIS 7} the state court with
"all the facts necessary to support the claim" or even if a "somewhat similar state-law claim was made."
Kelley v. Sec'y for Dept, of Corn, 377 F,3d 1317. 1344-45 (11th Cir. 2004) (citation omitted). A petitioner
must instead "present his claims to the state courts such that they are permitted the 'opportunity to apply
controlling legal principles to the facts bearing upon his constitutional claim.'" Id. For example, "a litigant
wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state court
petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he
relies or a case deciding such a claim on federal grounds, or by simply labeling the claim 'federal.'”
Baldwin, 541 U.S. at 32; McNair v. Campbell, 416 F,3d '1291. 1302-1303 (11th Cir. 2005).
To circumvent the exhaustion requirement, Petitioner must establish that there is an "absence of available
state corrective process" or that "circumstances exist that render such process ineffective to protect [his]
rights." 28 U.S.C. 2254(b)(1)(B): see Duckworth v. Serrano, 454 U.S. 1. 3, 102 S. Ct. 18, 70 L. Ed. 2d
1(1981).
Here, the Respondent asserts that claim 1 of Petitioner's petition is unexhausted because he failed to
raise the federal constitutional terms presented here in state court. [ECF 11, p. 8], Review of the record
reveals that on direct appeal, Petitioner raised claim 1(2020 U.S. Dist. LEXIS 8) only as an issue of state
3
law, supported only by citation to Florida cases and rules. Accordingly, claim 1 is unexhausted. See
Duncan v. Henry, 513 U.S. 364. 366, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (claim of evidentiary error
not exhausted for purposes of federal review where presented to the state courts only as a violation of
state law, and not expressly as a violation of due process guaranteed by the Fourteenth Amendment).
C. Procedural Default
It must next be determined whether Petitioner's failure to exhaust claim 1 results in a procedural default in
federal court. Here, Petitioner's unexhausted claim would now be procedurally barred if raised in the state
forum because he has already completed a direct appeal and his Rule 3.850 motion. Bailey v. Nagle, 172
F.3d 1299. 1302-03 (11th Cir. 1999). In this case, a future attempt to exhaust state remedies would be
futile under the state's procedural default doctrine. Id. at 1303.
However, a procedurally defaulted claim may still be considered if the federal petitioner can demonstrate:
(1) objective cause for the failure to properly present the claim and actual prejudice from the alleged
constitutional violation; or, (2) a fundamental miscarriage of justice. See Wainwright v. Sykes, 433 U.S.
72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594(19771: Tharpe v. Warden, 898 F.3d 1342. 1344-47 (11th Cir.
2018). The Petitioner can show cause by alleging that some objective factor, external to the defense,
impeded his effort to raise the claim properly{2020 U.S. Dist. LEXIS 9} in the state court. See Murray v.
Carrier, 477 U.S. 478. 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397. (1986); Wright v. Hopper, 169 F.3d 695.
703 (11th Cir. 1999). To show prejudice, a petitioner must demonstrate that the the errors at trial actually
and substantially disadvantaged his defense so that he was denied fundamental fairness." See McCoy v.
Newsome, 953 F.2d 1252. 1261 (11th Cir. 1992) (quoting Murray, 477 U.S. at 494). The allegations of
cause and prejudice must be factually specific, not conclusory. Harris v. Comm'r, Ala. Dep't of Corn, 874
RM682, 691 (11th Cir. 2017).
Here, Petitioner fails to make any showing of cause and prejudice to excuse the procedural default of
claim 1 in this habeas petition, nor does he make any showing of actual innocence. To the extent that
Petitioner suggests, in objections or otherwise, that he is entitled to excuse the procedural default of his
claim on the basis of the Supreme Court's decision in Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309, 182
L. Ed. 2d 272 (20121 such a claim is without merit because Martinez applies to collateral review
proceedings, and not to direct appeal claims. See Lambrix v. Sec'y, Fla. Dep't of Corn, 756 F.3d 1246.
1261, n.31 (11th Cir. 2014).
Likewise, if Petitioner means to excuse the procedural default of these claims by asserting that appellate
counsel was ineffective because they failed to raise the federal constitutional issue associated with this
claim on direct appeal, that claim is also without merit. Claims of ineffective assistance of appellate
counsel must be raised by petition for writ of habeas corpus in the appropriate{2020 U.S. Dist. LEXIS
10} district court of appeal. See State v. Dist. Ct. of Appeal, First Dist., 569 So. 2d. 439, 442 n.1 (Fla.
1990) (superseded on other grounds by Baker v. State, 878 So.2d 1236 (Fla. 2004). There is no record of
Petitioner raising such a claim of ineffective assistance of appellate counsel in the Fourth DCA.
Accordingly, Petitioner's claim 1 is defaulted from federal habeas review and should not be considered on
the merits. However, the Respondent concedes that claims 2 through 10 are exhausted and ripe for
habeas review. [ECF 11, p. 8],
V. Statement of Facts2
Joshua Peto from the Port St. Lucie Police Department testified that he worked as a narcotics detective in
May 2009 [Vol. 2, T. 243-44], Detective Peto explained that he used a confidential informant named
Kenneth Pyle ("Cl") to investigate Petitioner and his co-defendant. [Id., T. 249-50, 252-53]. Beginning in
April 2009, Detective Peto recorded phone calls between the Cl, Petitioner, and his co-defendant. [Id., T.
252-53], Although Detective Peto was not able to record every phone call between the Cl and the
defendants, he did record four calls, which were admitted into evidence. [Id., T. 254-56],
4
Detective Peto explained that the drug transaction in this case occurred in a parking lot on May 7, 2009.
[Id., T. 256, 269], Before the transaction, Detective{2020 U.S. Dist. LEXIS 11} Peto made sure that the Cl
did not have any drugs or money on his person or car. [Id., T. 257-58, 270-71], Detective Peto explained
that he provided the Cl with one kilogram of cocaine for purposes of the transaction. [Id., T. 258], The
cocaine was packaged in a brown paper bag and placed into the glove box of the Cl's car. [Id., T. 25859]. After the transaction was completed, Detective Peto recovered the same package of cocaine and
placed it into evidence. [Id., T. 263], The same package of cocaine was shown to the jury in open court.
[Id., T. 263-64],
Detective Peto testified that the transaction between the Cl and the defendants was recorded by two
cameras in the Cl's car. [Id., T. 264], The video from the cameras was introduced without objection. [Id.,
T. 265]. In addition to using the video recording to corroborate what happened after the fact, a listening
device was placed in the Cl's car so Detective Peto could monitor what was being said in real time. [Id., T.
272]. Detective Peto also followed the Cl in an unmarked car and maintained a constant visual. [Id., T.
270-71],
From his vantage point, Detective Peto saw Petitioner and the co-defendant pull up to the Cl's car in
their{2020 U.S. Dist. LEXIS 12} own car. [Id., T. 273], Both Petitioner and the co-defendant got out of their
car and entered the Cl's car. [Id.]. The co-defendant, who had been wearing a white-collared shirt,
entered the Cl's car first and entered the back seat. [Id., T. 273-74], Detective Peto noted that the co
defendant had a black backpack with him. [Id., T. 275]. Petitioner, who had been wearing a blue-collared
shirt, entered the front passenger seat of the Cl’s car. [Id., T. 273-74],
Detective Peto could not see any hand-to-hand exchange inside the Cl's car, so he relied on the video,
which showed the Cl removing the cocaine from the glove box and handing the cocaine to Petitioner, who
then handed the cocaine to his co-defendant. [Id., T. 314-16]. When Detective Peto and other officers
finally moved in on the Cl's car, the detective saw the co-defendant holding the package of cocaine. [Id.,
T. 276-78], Petitioner did not have anything in his hands. [Id., T. 277],
Detective Peto explained that he arrested both men and searched the Cl's car. [Id., T. 277-78]. In addition
to seizing the cocaine and the black backpack, Detective Peto found a shoebox filed with $23,480 in
cash. [Id., T. 279, 282, 285-86, 301], Detective{2020 U.S. Dist. LEXIS 13} Peto also searched both
defendants and recovered three cell phones. [Id., T. 293-94, 296-98], No "boat motors" were recovered.
[Id., T. 305],
The Cl, Kenneth Pyle, testified that he used to work as an informant for the Port St. Lucie Police
Department with Detective Peto. [Id., T. 320-21], The Cl explained that he was paid for his work; he was
not working off any charges. [Id., T. 321], However, the Cl did acknowledge that he had two prior felony
convictions and one conviction for a crime of dishonesty. [Id., T. 320].
Regarding this case, the Cl testified that he had recorded phone conversations with Petitioner and his co
defendant about selling them a kilogram of cocaine; these conversations began in April 2009. [Id., T.
321], The Cl explained that Petitioner initiated the drug deal with him. [Id., T. 321-22], The Cl had known
Petitioner for about two years. [Id., T. 321-22]. The Cl did not know Petitioner's co-defendant initially, and
the Cl thought the co-defendant's name was Hank. [Id., T. 322], Because the Cl came to know both
Petitioner and his co-defendant, the Cl could distinguish between their voices on the recorded calls. [Id.,
T. 324, 357, 367], In total, four phone calls{2020 U.S. Dist. LEXIS 14} were admitted into evidence and
played for the jury.
The first phone call, which occurred on April 23, 2009, was a conversation between the Cl and Petitioner
only. [Id., T. 367-72], On the call, both men exchange pleasantries until the Cl asks Petitioner if he has
"21 thousand cash on you?" [Id., T. 370], Petitioner responds by saying "Yeah," and adds, "I told him 24."
[Id.]. At that point, the Cl says he wants "21 for me [and] I don't care about your 3." [Id., T. 371], The call
ends after the Cl tells Petitioner to let him know when he has the "21 grand." [Id.].
5
The second phone call, which occurred four days later on April 27, 2009, was a conversation between the
Cl and Petitioner's co-defendant. [Id., T. 372-81]. On the call, the Cl asks the co-defendant when he
wants to meet because "I just picked up some motors down here, actual engines, not, ya' know not boat
motors that we talk about, but engines." [Id., T. 376-77]. The Cl goes on to say that he understands the
co-defendant "wanted to only go with the one engine for now because you wanna check things out and
make sure everything righteous." [Id., T. 377], The Cl says he will get a "high performance motor" for the
co-defendant{2020 U.S. Dist. LEXIS 15} if he has $23,500 "like we agreed." [Id., T. 378]. The Cl offers to
provide two more motors if the co-defendant checks out the first motor and finds that it "runs good." [Id.].
The co-defendant answers by saying he "definitely [is] gonna get that one motor" and will see how "this
turn[s] out." [Id., T. 379]. The conversation ends after the Cl asks the co-defendant to give him 24 hours'
notice of the meeting time. [Id., T. 380-81].
When the playback of this call concluded, the Cl explained to the jury that "[b]oat motors" was a code
term they used to refer to a kilogram of cocaine. [Id., T. 381-82],
The third phone call, which also occurred on April 27, 2009, was a conversation between the Cl and
Petitioner. [Id., T. 383-89]. On this call, the Cl tells Petitioner that he just got off the phone with "Hank,"
and that Hank was "coming to pick up a boat motor for 23 thousand, 5 hundred, a high performance
engine." [Id., T. 385-86]. Because Petitioner was his "friend," the Cl says that he will give Petitioner a
$2500 "commission on the deal for the engine." [Id., T. 386]. The Cl also says that he wants Petitioner
there during the transaction, and Petitioner agrees. [Id., T. 386-87], Petitioner{2020 U.S. Dist. LEXIS
16} also tells the Cl that "Hank" is not his co-defendant's real name. [Id., T. 388].
After the playback of this call ended, the Cl explained to the jury that he offered to pay Petitioner a
commission because Petitioner had brokered the drug transaction between him and the co-defendant.
[Id., T. 390]. The Cl further explained that he met the co-defendant in person a few days after the April 27
phone call. [Id., T. 391]. The Cl testified that no drug transaction took place at this meeting, but the co
defendant did show the Cl that he had money. [Id.].
The fourth phone call, which occurred on May 6, 2009 (the day before the drug deal), was a conversation
between the Cl and the co-defendant. [Id., T. 392-99]. The Cl tells the co-defendant that "business will be
taken care of tomorrow" if he brings $23,500. [Id., T. 395], The co-defendant agrees and says he may be
interested in another set of boat motors if he likes the performance of the first. [Id.]. After the Cl and the
co-defendant agree on a time to meet, the call ends. [Id., T. 396-98],
Once his testimony resumed, the Cl explained what happened next. He testified that he met with
Detective Peto early the next day, and the detective provided{2020 U.S. Dist. LEXIS 17} him with a
kilogram of cocaine. [Id., T. 399]. The Cl then drove a rental car to a location where the detective told him
to park it. [Id., T. 400]. The Cl explained that Petitioner and the co-defendant eventually met him in the
parking lot. [Vol. 3, T. 401-02], The Cl said that the co-defendant got into the back seat of his car and that
Petitioner got into the front seat. [Id., T. 402], The Cl identified Petitioner in open court. [Id., T. 402-03].
Two videos were taken from different angles inside the Cl's car, and both videos were admitted into
evidence. [Id., T. 433-41], The videos did not show the actual hand-to-hand transaction, but they did
capture both defendants talking with the Cl during the transaction. [Vol. 1, T. 18-19; T. Vol. 3, T. 436-41],
In addition, the Cl testified as to what transpired in the car.
The Cl explained that the co-defendant had the money in a shoebox. [Vol. 3, T. 403]. The Cl handed the
package of cocaine to Petitioner who then passed the cocaine to the co-defendant. [Id., T. 403-06]. The
co-defendant opened the package of cocaine and looked inside. [Id., T. 404], Soon after this exchange,
police officers swarmed the Cl's car and arrested everyone, including{2020 U.S. Dist. LEXIS 18} the Cl in
order to preserve his cover. [Id., T. 404-05], Although the Cl admitted that he made a living working on
boat and boat motors, the Cl made clear that he was not trying to sell an actual boat motor to Petitioner
and his co-defendant. [Id., T. 406, 409]. He used the term boat motors to refer to cocaine. [Vol. 2, T. 381 82],
6
The State's last witness was Babu Thomas, an analyst at the Indian River Crime Lab. [Vol. 3, T. 446-47],
Mr. Thomas testified that he analyzed the brown package seized from the Cl's car. [Id., T. 451-52], Based
on his testing, Mr. Thomas determined that the substance in the package was cocaine. [Id., T. 453]. The
weight of the cocaine, excluding the packaging material, was 1007.1 grams or just over one kilogram. [Id.,
T. 455],
Petitioner did not testify, and he rested without calling any witnesses. [Id., T. 460, 464].
VI. Governing Legal Principles
A. Standard of Review
The court's review of a state prisoner's federal habeas corpus petition is governed by the Antiterrorism
and Effective Death Penalty Act ("AEDPA"). See Abdul-Kabir v. Quarterman, 550 U.S. 233, 246, 127 S.
Ct. 1654, 167 L. Ed. 2d 585 (2007); Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d
600. 642 (11th Cir. 2016), cert, den'd, 137 S. Ct. 1432. 197 L. Ed. 2d 650f2017V AEDPA ensures that
federal habeas corpus relief works to "guard against extreme malfunctions in the state criminal
justice{2020 U.S. Dist. LEXIS 19} systems, and not as a means of error correction." See Greene v.
Fisher, 565 U.S. 34, 38, 132 S. Ct. 38, 181 L. Ed. 2d 336 (2011). This standard is both mandatory and
difficult to meet. White v. Woodall, 572 U.S. 415, 420, 134 S. Ct. 1697. 188 L. Ed. 2d 698 (2014).
Deferential review under 2254(d) is generally limited to the record that was before the state court that
adjudicated the claim on the merits. See Cullen v. Pinholster, 563 U.S. 170, 182, 131 S. Ct. 1388, 179 L.
Ed. 2d 557 (2011): Gill v. Mecusker, 633 F.3d 1272. 1288 (11th Cir. 2011). To review a federal habeas
corpus claim, the district court must first identify the last state court decision, if any, that adjudicated the
merits of the claim. See Marshall v. Sec'y, Fla. Dep't of Corn, 828 F.3d 1277. 1285 (11th Cir. 2016). The
state court is not required to issue an opinion explaining its rationale, because even the summary
rejection of a claim, without explanation, qualifies as an adjudication on the merits that warrants
deference. See Harrington v. Richter, 562 U.S. 86, 100, 131 S. Ct. 770, 178 L. Ed. 2d 624(20111:
Ferguson v. Culliver, 527 F.3d 1144. 1146 (11th Cir. 2008). Where the state court's adjudication on the
merits is unaccompanied by an explanation, federal courts must "look through the unexplained decision to
the last related state-court decision that does provide a rationale" and, "then presume that the
unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S. Ct. 1188. 1192, 200 L. Ed.
2d 530 (2018). Thus, if the relevant state-court decision on the merits is not accompanied by a reasoned
opinion, because it was summarily affirmed or denied, a federal court should 'look through' the
unexplained decision to the last state-court decision that does provide{2020 U.S. Dist. LEXIS 20} a
relevant rationale." Id.
Where the claim was adjudicated on the merits," in the state forum, 2254(d) prohibits re-litigation of the
claim unless the state court's decision was (1) contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States; or, (2) 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): Harrington v. Richter, 562 U.S. at 97-98.
A state court decision is "contrary to" established Supreme Court precedent when it (1) applies a rule that
contradicts the governing law set forth by the Supreme Court; or (2) confronts a set of facts that are
materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result
different from Supreme Court precedent. Williams v. Taylor, 529 U.S. 362. 405-06, 120 S. Ct. 1495, 146
L. Ed. 2d 389 (2000). An "unreasonable application" of clearly established federal law is different from an
incorrect application of federal law. Williams v. Taylor, 529 U.S. at 410. Consequently, "[a] state court's
determination that a claim lacks merit precludes federal habeas corpus relief so long as fair-minded jurists
could disagree on the correctness of the state court's decision." Mitchell v. Esparza, 540 U.S. 12. 16, 124
S. Ct. 7, 157 L. Ed. 2d 263 (2003); Tharpe v. Warden, 834 F.3d 1323. 1337 (11th Cir. 2016), cert, den'd,
137 S. Ct. 2298. 198 L. Ed. 2d 732 (20171 (accord). In other words, if the last{2020 U.S. Dist. LEXIS
•94-}-Rtatp-fio<4rt-te-da(~:idfi-a-pnisQner!sJed&ral-claim_pr.nv.idftR an explanation for its merits-based decision in
7
a reasoned opinion, a federal habeas court simply reviews the specific reasons given by the state court
and defers to those reasons if they are reasonable." Wilson v. Sellers, 138
Ct. at 1192. As applied
here, to the extent Petitioner's claims were adjudicated on the merits in the state courts, they must be
evaluated under 2254(d).
B. Ineffective Assistance of Counsel Standard
Here, Petitioner raises multiple claims challenging counsel's effectiveness. The Sixth Amendment to the
United States Constitution guarantees criminal defendants the right to the assistance of counsel during
criminal proceedings against them. Strickland v. Washington, 466 U S. 668. 684-85, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). When assessing counsel's performance under Strickland, the court employs a
strong presumption that counsel "rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment." Id. at 690. A 2254 Petitioner must provide factual support
for his contentions regarding counsel's performance. Smith v. White, 815 F.2d 1401. 1406-7 (11th Cir.
1987). Bare, conclusory allegations of ineffective assistance are insufficient to satisfy the Strickland test.
See Boyd v. Comm'r, Ala. Dep't of Corn, 697 F.3d 1320. 1333-34 (11th Cir. 2012).
"[T]he Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to
effective assistance." Burt v. Titlow, 571 U.S. 12, 20, 134 S. Ct. 10. 187 L. Ed. 2d 348 (2013V "Where the
highly{2020 U.S. Dist. LEXIS 22} deferential standards mandated by Strickland and the AEDPA both
apply, they combine to produce a doubly deferential form of review that asks only 'whether there is any
reasonable argument that counsel satisfied Strickland's deferential standard.'" Gissendaner v. Seaboldt,
735 F.3d 1311. 1323 (11th Cir. 2013).
To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate that: (1) his
counsel's performance was deficient, falling below an objective standard of reasonableness; and, (2) he
suffered prejudice resulting from that deficiency. Strickland, 466 U.S. at 687-88. Strategic choices made
after thorough investigation of the law and facts relevant to plausible options are virtually
unchallengeable. Strickland at 690-91. To uphold a lawyer's strategy, a court need not attempt to divine
the lawyer's mental processes underlying the strategy, because there are "countless ways to provide
effective assistance in any given case." Strickland, 466 U.S. at 689.
To establish deficient performance, the movant must show that, in light of all circumstances, counsel's
performance was outside the wide range of professional competence. Strickland, supra. See also
Cummings v. Sec'y for Dep't of Corn, 588 F.3d 1331. 1356 (11th Cir. 2009). The Court's review of
counsel's performance should focus on "not what is ppssible or what is prudent or appropriate but only
[on] what is constitutionally compelled."{2020 U.S. Dist. LEXIS 23} Chandler v. United States, 218 F.3d at
1313: Burger v. Kemp, 483 U.S. 776. 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987). Counsel is not ineffective
for failing to raise non-meritorious issues. Chandler v. Moore, 240 F.3d 907. 917 (11th Cir. 2001).
Counsel is also not required to present every non-frivolous argument. Dell v. United States, 710 F.3d
1267. 1282 (11th Cir. 2013).
Regarding the prejudice component, the Supreme Court has explained "[t]he defendant must show that
there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, 466 U.S. at 694. A reasonable probability is "a probability sufficient
to undermine confidence in the outcome." Strickland, 466 U.S. at 694. A court need not address both
prongs of Strickland if the defendant makes an insufficient showing on one of the prongs. Strickland, 466
U.S. at 697. See also Brown v. United States, 720 F.3d 1316. 1326 (11th Cir. 2013).
VII. Discussion
In claim 2, Petitioner argues he received ineffective assistance of counsel when his lawyer failed to seek
an expert to dispute the authenticity of the video of the drug transaction. [ECF 7, p. 7], He claims that
after seeing the video for the first time, he immediately told his lawyer that the tape had been altered, but
his lawyer refused to investigate the issue further. [Id.]. When Petitioner raised this claim in his Rule
-3.650,-the-trial-court-noted-the-following:______________________________________________
8
The Defendant claims that Trial Counsel was ineffective for failing to have recorded video authenticated
prior{2020 U.S. Dist. LEXIS 24} to trial. The Defendant alleges that he believes that the video recording
had been tampered with and does not show the true events within the car during the alleged cocaine
transaction. The Defendant claims that he never had possession of the cocaine as reflected in the video
recording.
First, this claim is insufficiently pled. The Defendant does not state what the video would have reflected or
specifically how he believes that it was tampered with. Further, the Defendant fails to specially assert how
the suppression of the video recording would have resulted in a different outcome.
Second, this Court agrees with the State that there is sufficient record evidence to refute the Defendant's
claim. (See State response attached as A). The issue of the Defendant's request to have the video
recording authenticated was raised prior trial. (See transcript pages 15-24 attached as part of Ex. A).1
During this time, Trial Counsel advised the Court that he did not believe that there was any evidence or
reason to believe that the video had been tampered with. (See transcript page 18 attached as part of Ex.
A).
Even if the video recording was to be suppressed, there was sufficient evidence presented{2020 U.S.
Dist. LEXIS 25} by the State at trial that the outcome of the trial would not have been different. The State
presented several recorded phone conversations between the Defendant or co-Defendant and the
confidential informant (Cl) attempting to set up the transaction. (See transcript pages 369-372; 376-381;
385-389; and 394-399 attached as part of Ex. A). Further, the testimony of Officer Joshua Peto and the Cl
Kenneth Pyle demonstrate that the outcome would not be different. (See transcript pages 243-260; 263275; 282; 301; 305-324; and 367-410 attached as part of Ex. A). As part of his testimony, Mr. Pyle
testified that he opened his glove compartment retrieved the kilo of cocaine and handed it to the
Defendant who then handed to his co-Defendant in the back seat. (See transcript pages 402-404
attached as part of Ex. A). As pointed out above, there was sufficient evidence presented by the State
that even had the video recording not been played for the jury, the outcome of the Defendant's trial would
not have been different. The Defendant's claim is refuted by the record.[ECF 12-1, Ex. 25, pp. 260-61],
Effective assistance of counsel, of course, embraces adequate pretrial investigation. See Strickland, 466
U.S. at 691 (1984). The correct{2020 U.S. Dist. LEXIS 26} approach toward investigation, however,
"reflects the reality that lawyers do not enjoy the benefit of endless time, energy or financial resources."
Rogers v. Zant, 13 F,3d 384. 387 (11th Cir. 1994). To be effective, an attorney is not required to "pursue
every path until it bears fruit or until all hope withers." Williams v. Head, 185 F.3d 1223. 1237 (11th Cir.
1999) (citation omitted). "The question is whether...ending an investigation short of exhaustion, was a
reasonable tactical decision. If counsel's actions were reasonable, tactical decisions, such a choice must
be given a strong presumption of correctness, and the inquiry is generally at an end." Mills v. Singletary,
63 F.3d 999. 1024 (11th Cir. 1995) (citation omitted).
As an initial matter, Petitioner fails to allege what portions of the video were altered, nor does he allege
any facts to demonstrate how the video inaccurately depicted what occurred on the date of the crime.
Such bare and conclusory allegations are insufficient to satisfy the Strickland test. See Boyd, 697 F.3d at
1333-34.
Moreover, Petitioner fails to allege any facts to suggest that the state court's resolution of this claim was
an unreasonable determination of the facts or an unreasonable application of federal law. Rather, the
record shows that counsel failed to investigate the authenticity of the videotape because he believed
that{2020 U.S. Dist. LEXIS 27} there was nothing to suggest that the video had been tampered with or
altered in any way. [Vol. 1, p. 19], This was a reasonable, tactical decision that counsel made after
reviewing the video and discussing it with Petitioner. Accordingly, counsel's failure to investigate the
videotape does not amount to deficient performance under the first prong of Strickland. The state court's
resolution of this claim is, therefore, entitled to deference under 2254(d). Claim 2 should be denied.
9
In claim 3, Petitioner alleges that trial counsel was ineffective for failing to impeach the Cl with
inconsistent statements from his deposition. [ECF 7, p. 8]. In his memorandum, he further explains that
contrary to his testimony at trial, the Cl stated in deposition that the cocaine was not placed in the glove
box, but in the backseat of the car. [ECF 8, p. 7]. He claims that if counsel had properly impeached the
Cl, "it would have shown the jury that [he] did not possess any cocaine and that he was not involved with
the drug transaction." [Id.].
When Petitioner raised this claim in his Rule 3.850 Motion, the trial court stated the following:
The Defendant alleges that Trial Counsel was ineffective for failing to impeach Kenneth{2020 U.S. Dist.
LEXIS 28} Pyle regarding inconsistent statements that he made.
This Court agrees and adopts the well-reasoned response put forth by the State. (See State response
attached as Ex. A). As the State points out, the Defendant admits that co-Defendant's attorney
impeached Mr. Pyle with these inconsistent statements. However, the Defendant incorrectly asserts that
this impeachment could not be used in his case. The jury heard the impeachment of Mr. Pyle. There was
no need for Trial Counsel to impeach Mr. Pyle for a second time. As the State points out, this would have
allowed Mr. Pyle to again provide an explanation for the inconsistent statements. The Defendant has not
demonstrated that Trial Counsel was ineffective. The Defendant's claim is refuted by the record and
without merit.[ECF 12-1, Ex. 25, p. 261-62],
The decision to cross-examine a witness and the manner in which it is conducted are tactical decisions
"well within the discretion of a defense attorney." Fugate v. Head, 261 F,3d 1206. 1219 (11th Cir. 2001)
(quoting Messer v. Kemp, 760 F,2d 1080. 1090 (11th Cir. 1985)). In order to establish prejudice, a
habeas petitioner must show at least one "specific instance where cross-examination arguably could have
affected the outcome .. . of the trial." Id. (quoting Messer, 760 F.2d at 1090).
Here, review of the record reveals{2020 U.S. Dist. LEXIS 29} that counsel cross-examined the Cl about
his boat motor business, his employment by the police department, and his prior felony convictions, which
included a crime of dishonesty. [Vol. 3, T. 406-09], Co-defendant's counsel then cross-examined the Cl
on certain inconsistencies in his testimony, including the fact that he stated in his deposition that (1)
Petitioner and his co-defendant arrived to the planned transaction in Petitioner's truck, and not a Chevy
Malibu, as he had testified to on direct examination, and (2) the cocaine was in the backseat of the car,
and not in the glove compartment, as he had testified to on direct examination. [Vol. 3, pp. 422, 429]. In
response, the Cl explained that his testimony at the deposition was mistaken because "every time, well
every other time," he met with Petitioner, "he was in his truck," and that he recalled saying that the
cocaine was in the backseat, but "that was not actually what happened." [Id., 7. 422, 431], Counsel
capitalized on these inconsistencies during closing argument, when he argued that the Cl was not a
credible witness. [Id., 7. 501-02],
Thus, even if counsel had cross-examined the Cl about these inconsistencies, there is{2020 U.S. Dist.
LEXIS 30} no reasonable probability that the outcome at trial would have been difference because the
jury heard the inconsistencies through Petitioner's co-defendant's counsel cross-examination and through
counsel's closing argument. Still, the jury was unpersuaded and found Petitioner guilty in light of the
overwhelming evidence against him. Accordingly, Petitioner fails to demonstrate any prejudice resulting
from counsel's alleged deficient performance under Strickland. The state court's resolution of this claim
should, therefore, be left undisturbed. Williams v. Taylor, supra. Claim 3 should be denied.
In claim 4, Petitioner alleges that his lawyer was ineffective for failing to present an entrapment defense at
trial. [ECF 7, p. 10]. He claims that his lawyer told him that such a defense was not available to him
because of his lengthy criminal history. [Id.]. When Petitioner raised this claim in his Rule 3.850 Motion,
the trial court stated the following:
10
The Defendant claims that Trial Counsel was ineffective for not pursuing a defense of subjective
entrapment. The Defendant asserts that they discussed such a defense but that Trial Counsel would not
pursue it.
This Court again agrees and adopts the well-reasoned response put{2020 U.S. Dist. LEXIS 31} forth by
the State. First, this defense would be contrary to the Defendant's position that he was not involved with
the trafficking. Second, the State would have been able to introduce evidence of other attempts to
conduct drug transactions. The State gave notice that-it was seeking to introduce such evidence at trial.
(See notice of intent to introduce evidence of other crimes Ex. 1 of Ex. A). The Court granted the
Defendant’s motion in limine to prohibit the introduction of such evidence. (See transcript page 214
attached as part of Ex. A). However, this evidence would have been relevant and admissible had the
Defendant pursued the entrapment defense.
It is readily evident that the trial Counsel did not pursue the entrapment defense as a strategy to prevent
evidence of other attempts at making drug transactions. Further, this Court does not find that there was a
reasonable probability that an entrapment defense would have been successful. This claim is refuted by
the record and without merit.[ECF 12-1, Ex. 25, p. 262],
In Florida, entrapment is an affirmative defense, and Petitioner would have had the burden of proof at
trial. See Cardenas v. State, 867 So.2d 384, 392 (Fla. 2004). The entrapment defense applies when: (1)
the defendant{2020 U.S. Dist. LEXIS 32} is not a person "ready to commit" the crime, but is induced or
encouraged to commit the crime; (2) the criminal conduct is the direct result of the inducement; (3) the
person inducing him to commit the crime is a law enforcement officer; and, (4) the officer used methods
likely to persuade a person not readily disposed to commit the crime to do so. See Florida Standard Jury
instructions in Criminal Cases, 3.6(j) Entrapment (emphasis added).
However, Florida law permits the state the opportunity to rebut the defense. See Davis v. State, 937
So.2d 300, 303 (Fla. 4th DCA2006). The State may "prove predisposition with evidence of the
defendant's prior criminal activities, his reputation for such activities, reasonable suspicion of his
involvement in such activity, or his ready acquiescence in the commission of the crime." Blanco v. State,
218 So.3d 939, 944 (Fla. 3d DCA2017) (citing Jones v. State, 114 So.3d 1123, 1126 (Fla. 1st DCA2013)).
Here, review of the record reveals that prior to trial, the state gave notice of its intent to introduce
evidence of Petitioner's prior bad acts in order to show proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident, in accordance with Fla. Stat.
90.404(2)(c)(1). [ECF 12-1, Ex. 3]. Counsel filed an objection to this notice, arguing that the proposed
evidence would show mere propensity{2020 U.S. Dist. LEXIS 33} for criminal activity. [Id., Ex. 4], Prior to
jury selection, the state clarified that it filed the notice based on its anticipation that Petitioner would
present an entrapment defense. [Vol. 1, p. 5]. Then, after jury selection, counsel moved in limine to
exclude any testimony regarding Petitioner's prior, unsuccessful attempts to set up a transaction with the
Cl. [Vol. 2, T. 213-14],
Based on the record, it is clear that counsel was concerned with the possibility of the state introducing
evidence of other crimes because such evidence would have been damaging to the defense. As the
Respondent asserts [ECF 11, p. 27], counsel likely made a strategic decision not to pursue an
entrapment defense because (1) Petitioner likely would have had to testify to establish the defense, which
would have opened the door to evidence of Petitioner's seven prior felony convictions [ECF 12-1, Exs. 910]. This would have been prejudicial to Petitioner's defense. Accordingly, Petitioner cannot demonstrate
deficient performance under Strickland tor failing to pursue an entrapment defense at trial. The rejection
of this claim must therefore stand. Williams v. Taylor, supra.
In claim 5, Petitioner asserts that counsel was ineffective{2020 U.S. Dist. LEXIS 34} when he gave an
inadequate closing argument. [ECF 7, p. 12]. Particularly, Petitioner submits that the closing argument
centered on a theory of entrapment when there was no evidence presented to support such a defense at
trial. [Id.]. When Petitioner raised this claim in his Rule 3.850 Motion, the trial court analyzed it along with
11
claim 4, finding that it was reasonable for counsel not to pursue an entrapment defense. [ECF 12-1, Ex.
25, p. 262],
Petitioner's claim is belied by the record, which reveals that counsel argued fervently during closing
argument that the Cl was an untrustworthy witness with a motive to lie, to create evidence, and to
"insert[]M Petitioner into the drug transaction. [Vol. 3, T. 505-06], He further argued that the Cl was
creating this evidence because he "gets paid by how well he does." [Id., T. 506]. As discussed above,
testimony regarding the Cl's financial motive to lie was elicited during cross-examination. Thus, the
argument made by counsel was that Petitioner was framed, and had no knowledge or involvement in the
drug transaction. This is a materially different theory of defense than a defense of entrapment, where
Petitioner would have had to admit to participating{2020 U.S. Dist. LEXIS 35} in the drug deal through
inducement.
There is, therefore nothing to suggest that counsel's statements during closing argument were
unsupported by the evidence presented at trial. Contrary to Petitioner's representations here, the
statements made during closing argument did not center on an entrapment defense. Accordingly, claim 5
should be denied.
In claim 6, Petitioner alleges that he received ineffective assistance of counsel based on the cumulative
effect of counsel's errors. [ECF 7, p. 12]. In his memorandum, he appears to claim that this "cumulative
effect" was caused by both his appellate counsel and his trial counsel. [ECF 8, p. 12],
Here, when viewing the evidence in this case in its entirety, the alleged errors raised in this collateral
proceeding by both appellate counsel3 and trial counsel, neither individually nor cumulatively, infused the
proceedings with unfairness as to deny the movant a fundamentally fair trial and due process of law.
Petitioner therefore is not entitled to habeas corpus relief. See Fuller v. Roe, 182 F.3d 699. 704 (9th Cir.
1999)(holding in federal habeas corpus proceeding that where there is no single constitutional error
existing, nothing can accumulate to the level of a' constitutional violation),{2020 U.S. Dist. LEXIS
36} overruled on other grounds, Slack v. McDaniel, 529 U.S. 473. 482, 120 S. Ct. 1595, 146 L. Ed. 2d
542(2000). See also United States v. Rivera, 900 F.2d 1462. 1470 (10th Cir. 1990) (stating that "a
cumulative-error analysis aggregates only actual errors to determine their cumulative effect."). Contrary to
Petitioner's apparent assertions, the result of the proceedings were not fundamentally unfair or unreliable.
See Lockhart v. Fretwell, 506 U.S. 364. 369-70, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993). Accordingly,
the state court's resolution of this claim during Petitioner's state habeas proceedings are entitled to
deference under 2254(d). Claim 6 should be denied.
In claim 7, Petitioner alleges that he received ineffective assistance of appellate counsel when his lawyer
failed to argue on appeal that the trial court erred by failing to instruct the jury on entrapment. [ECF 7, p.
12]. He claims that "[whenever the principle instruction is given, it is proper to give the entrapment
instruction where there is a preponderance of evidence that the defendant may have been entrapped into
committing the charged offense." [ECF 8, p. 13]. He further asserts that the court failed to instruct the jury
as to the knowledge element of trafficking. [Id. p. 14],
Review of the record reveals that during the charge conference, counsel objected to a proposed
principals instruction, but the court denied it, finding that the state was entitled{2020 U.S. Dist. LEXIS
37} to it "under the facts of [the] case." [Vol. 3, T. 479-80], When the court instructed the jury, it informed
them, in accordance with the standard jury instruction^ that ”[i]f the defendant helped another person or
persons commit a crime the defendant is a principle and must be treated as if he had done all the other
things the other person or persons did..." [Vol. 3, T. 537],
Under Florida law, "[j]ury instructions requested by the State "must relate to issues concerning evidence
received at trial." Butler v. State, 493 So.2d 451, 452 (Fla. 1986). However, when there is no evidence to
support an aiding and abetting theory of guilt, a principals instruction is inappropriate. See Lewis v. State,
693 So.2d 1055, 1057 (Fla. 4th DCA1997). Under federal law, however, a jury instruction that "was
allegedly incorrect under state law is not a basis for habeas relief." Estelle v. McGuire, 502 U.S. 62. 67,
T12~S~Ct~475~116~L~Ed~2d~385-f1990HintemaF€itatiQns-&m4tte<lY I Ipnn federal habeas review, a jury
12
instruction is not judged in isolation but must be considered in the context of the instructions as a whole
and the trial record. See Estelle, 502 U.S. at 72. A defective jury charge raises an issue of constitutional
dimension only if it renders the entire trial fundamentally unfair. See Carrizales v. Wainwright, 699 F.2d
1053. 1055 (11th Cir. 1983).
Here, the evidence at trial showed that Petitioner arranged a drug deal between his co-defendant,{2020
U.S. Dist. LEXIS 38} Artez Anderson, and the Cl, Kenneth Pyle. In pertinent part, the Cl testified that he
arranged to give Petitioner a commission for brokering the deal. [Vol. 2, T. 386], On the date of the
arranged transaction, Petitioner went with his co-defendant to meet with the Cl, and sat in the Cl's car as
the transaction occurred. [Vol. 3, T. 402], The Cl explained what transpired in the car: the co-defendant
had the money in a shoebox, and the Cl handed the package of cocaine to Petitioner who then passed
the cocaine to the co-defendant. [Vol. 3, T. 403-06]. The co-defendant opened the package of cocaine
and looked inside. [Vol. 3, T. 404]. Police officers then swarmed the Cl's car and arrested everyone,
including the Cl in order to preserve his cover. [Vol. 3, T. 404-05].
Based on these facts, even if the jury did not believe that Petitioner himself trafficked in cocaine, it could
find that he aided and abetted his co-defendant in trafficking the cocaine. Accordingly, the principals
instruction was supported by the evidence presented at trial.
Further, to the extent that Petitioner argues that the trial court erred by failing to give the jury an
entrapment instruction, such a claim is without{2020 U.S. Dist. LEXIS 39} merit. Petitioner's counsel did
not request an entrapment instruction, nor was there any evidence presented at trial to support such an
instruction. Petitioner fails to demonstrate that the failure to give an entrapment instruction rendered his
trial fundamentally unfair. See Carrizales v. Wainwright, 699 F.2d at 1055. Therefore, appellate counsel
cannot be faulted for failing to raise this meritless issue on appeal. Claim 7 should be denied. See
2254(d).5
In claim 8, Petitioner alleges that appellate counsel was ineffective for failing to argue that trial counsel
was ineffective. [ECF 7, p. 13], This claim is entirely without merit. As discussed above, trial counsel was
not ineffective based on any of the grounds raised in this habeas petition. There is, therefore, nothing to
suggest that counsel's alleged ineffectiveness was "apparent on the face of the record" as required by
Florida law to raise an ineffectiveness claim on direct appeal. See Mansfield v. State, 758 So.2d 636, 642
(Fla. 2000). Accordingly, appellate counsel cannot be faulted for failing to raise this meritless issue on
direct appeal. See Chandler v. Moore, 240 F.3d at 917. As such, the state court's resolution of this claim
is entitled to deference under 2254(d). Claim 8 should be denied.
In claim 9, Petitioner alleges that he received ineffective assistance{2020 U.S. Dist. LEXIS 40} of
appellate counsel when his lawyer failed to argue that the trial court erred by allowing the use of un
authenticated transcripts at trial. [ECF 7, p. 13]. Specifically, he claims that his lawyer was not given prior
notice of the transcripts, and they were not part of the trial court's files or records. [Id.]. In his
memorandum, he explains that his voice on the phone calls was not properly authenticated, and therefore
his identity should not have been included on the transcripts. [ECF 8, pp. 17-18],
Review of the record reveals that during trial, the state asked to distribute transcripts of the recorded
phone calls to the jury as a demonstrative aide. [Vol. 2, T. 326], Counsel objected to the transcripts
arguing that the jury should decide who was speaking during the phone calls and that the alleged
identities of the speakers should not be included in the transcripts. [Vol. 2, T. 355]. After listening to
argument from both parties outside the presence of the jury, the Court found that the transcripts were
sufficiently fair and accurate "to allow the jury to consider them as aides in understanding what are on the
tapes." [Vol. 2, T. 360]. The Cl then testified that he was speaking{2020 U.S. Dist. LEXIS 41} with
Petitioner during the phone calls and that was accurately reflected in the transcripts. [Vol. 2, T. 367],
When the recordings themselves were entered into evidence, they, along with the transcripts, were
published to the jury, who was instructed that the transcripts were "provided...only as a guide to help" the
jurors follow along. [Vol. 2, T. 369], The court also told the jury that the transcripts were not evidence of
and
the transcripts, the jury was to rely on what was in the recording. [Id.].
13
Here, there is plainly nothing in the record to suggest that the use of these transcripts as a demonstrative
aide during trial violated Petitioner's constitutional rights. The Cl testified as to his personal knowledge of
the speakers on the phone calls, and the transcripts closely tracked the recorded conversations played to
the jury. The court also instructed the jury that the transcripts were not evidence of the identity of the
speakers during the phone calls. Accordingly counsel cannot be faulted for failing to raise this meritless
issue on appeal. The state court's resolution of this{2020 U.S. Dist. LEXIS 42} claim is, therefore, entitled
to deference under 2254(d). Claim 9 should be denied.
In claim 10, Petitioner argues that appellate counsel was ineffective for failing to argue that the
prosecutor's closing argument was misleading. [ECF 7, p. 13]. He also claims that he was convicted and
sentenced based on an erroneous verdict form and jury instructions. [Id.]. Particularly, he claims he was
charged with a second-degree felony, but was convicted and sentenced for a first-degree felony
punishable by life. [ECF 8, p. 19].
The standard for federal habeas corpus review of a claim of prosecutorial misconduct is whether the
alleged actions rendered the entire trial fundamentally unfair. Donnelly v. DeChristoforo, 416 U.S. 637.
642-45, 94 S. Ct. 1868. 40 L. Ed. 2d 431 (19741: Hall v. Wainwright, 733 F.2d 766. 773 (11th Cir. 1984).
In assessing whether the fundamental fairness of the trial has been compromised, the circumstances are
to be considered in the context of the entire trial, Davis v. Zant, 36 F.3d 1538. 1551 (11th Cir. 1983); and
"[sjuch a determination depends on whether there is a reasonable probability that, in the absence of the
improper remarks, the outcome of the trial would have been different." Williams v. Weldon, 826 F.2d
1018, 1023 (11th Cir. 1988).
First, review of the information reveals that Petitioner was charged with trafficking 400 grams or more of
cocaine, in violation of Fla. Stat. 893.135(1)(b)1,c. [ECF 12-1, Ex. 1], The applicable statute{2020 U.S.
Dist. LEXIS 43} expressly states that a violation of this subsection is a felony in the first degree. Fla. Stat.
893.135(1 )(b)1 (2009). Accordingly, contrary to Petitioner's representations here, he was charged with
and convicted of a first-degree felony, and sentenced to life imprisonment as a habitual felony offender.
[Vol. 3, T. 571-72]; see also Fla. Stat. 775.084(1 )(a)1.
The record also shows that during closing argument, the prosecutor discussed the jury instructions and
argued that the lesser included offenses of trafficking in cocaine did not apply because the state had
proven that Petitioner committed the offenses as charged. [Vol. 3, T. 491-92]. Counsel objected, arguing
that the prosecutor was stating her personal opinion, rather than arguing what the evidence showed. [Id.,
T. 493]. The court overruled the objection. [Id., T. 494],
Here, appellate counsel was not ineffective for failing to challenge this ruling on appeal because nothing
about the prosecutor's statements was improper or an attempt to mislead the jury. Rather, her statements
properly related to her argument that the state had satisfied its burden of proof. United States v. Hall, 47
F.3d 1091. 1098 (11th Cir. 1995) ("Claims of prosecutorial misconduct are fact specific inquiries which
must be conducted against the backdrop of the{2020 U.S. Dist. LEXIS 44} entire record.") (citations
omitted).
Considering the foregoing, Petitioner fails to demonstrate that the prosecutor's comments during closing
argument were improper, rather than reasonable inferences from the evidence presented at trial. In
context, the evidence at trial, through the testimony of the Cl and the forensic analyst, established that the
package sold to Petitioner contained over 1000 grams of cocaine. [Vol. 3, T. 455, 491-92], Accordingly, it
was not improper for the prosecutor to argue that the evidence did not support a conviction for the lesser
included offenses. The state court's resolution of this claim is therefore entitled to deference under
2254(d). Claim 10 should be denied.
14
VIII. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the Petitioner to establish the need for a federal
evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of Corn, 647 F.3d 1057. 1060 (11th Cir. 2011). To
determine whether an evidentiary hearing is needed, the question is whether the alleged facts, when
taken as true, are not refuted by the record and may entitle a petitioner to relief. Schriro v. Landrigan, 550
U.S. 465, 474, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (20071: Jones v. Sec'y, Fla. Dep't of Corn, 834 F.3d
1299, 1318-19 (11th Cir. 2016), cert, den'd, 137 S. Ct. 2245. 198 L. Ed. 2d 683(20171. The pertinent
facts of this case are fully developed in the record before the Court. Because this Court can "adequately
assess [petitioner's] claim[s]{2020 U.S. Dist. LEXIS 45} without further factual development," Turner v.
Crosby, 339 F,3d 1247. 1275 (11th Cir. 2003), an evidentiary hearing is not warranted here.
IX. Certificate of Appealability
A prisoner seeking to appeal a district court's final order denying his petition for writ of habeas corpus has
no absolute entitlement to appeal but must obtain a certificate of appealability (COA"). See 28 U.S.C.
2253(c)(1): Harbison v. Bell, 556 U.S. 180, 183, 129 S. Ct. 1481. 173 L. Ed. 2d 347(2009). This Court
should issue a certificate of appealability only if the petitioner makes a substantial showing of the denial of
a constitutional right." See 28 U.S.C. 2253(c)(2). Where a district court has rejected a petitioner's
constitutional claims on the merits, the Petitioner must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims debatable or wrong. See Slack v. McDaniel, 529
U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000). However, when the district court has rejected a
claim on procedural grounds, the Petitioner must show 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. Upon
consideration of the record, this court should deny a certificate of appealability. Notwithstanding, if
Petitioner does{2020 U.S. Dist. LEXIS 46} not agree, he may bring this argument to the attention of the
District Judge in objections.
X. Conclusion
Based upon the foregoing, it is recommended that this petition for writ of habeas corpus be denied, that
no Certificate of Appealability issue and the case be closed.
Any party who objects to this recommendation or anything in it must, within fourteen days of the date of
service of this document, file specific written objections with the court. Failure to do so will bar a de
novo determination by the District Judge of anything in the recommendation and will bar an attack, on
appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C. 636(b)(1)(C): Thomas v. Am, 474
U.S. 140. 149, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985).
SIGNED this 18th day of March, 2020.
Isl Robin L. Rosenberg
UNITED STATES MAGISTRATE JUDGE
Footnotes
15
1 Pursuant to Fed. R. Civ. P. 25(d), since Mark S. Inch has replaced Julie Jones as the Secretary of the
Florida Department of Corrections, he is substituted as the proper respondent in this case.
2 For purposes of this Report, when referring to the trial transcript, the Court uses the numbering
system used by the Respondent in its response. [ECF 11]. This statement of facts is taken from the
Respondent's summary of the facts in its response to the Court's order to show cause. [ECF 11, pp. 9-
16].
3 The merits of Petitioner's appellate counsel claims are addressed below.
4 The standard jury instruction for principals is Fla. Std. Jury. Instr. 3.5(a).
5 Similarly, appellate counsel cannot be faulted for failing to argue that the trial court failed to instruct
the jury as to the knowledge element of trafficking because such a claim is meritless. The record shows
that the court specifically instructed the jury that in order to find Petitioner guilty of trafficking, it must find
that Petitioner "knew that the substance [involved] was cocaine or a mixture containing cocaine." [Vol. 3,
T. 530],
16
■4
l
(
t!
District Court Of Appeal Of The State Of Florida
Fourth District
TERRY DARNELL ANDERSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-281
[June 7, 2018]
Appeal of order denying rule 3.850 from the Circuit Court for the
Nineteenth Judicial Circuit, St. Lucie County; Gary L. Sweet Judge- L T
Case No. 56-2009-CF-001510 A.
Terty Darnell Anderson, Lowell, pro se.
No appearance required for appellee.
Per Curiam.
Affirmed.
Levine, Conner and Kuntz, JJ., concur.
Not final until disposition of timely filed motion for rehearing.
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT, 110 SOUTH TAMARIND AVENUE, WEST PALM BEACH, FL 33401
July 27, 2018
CASE NO.: 4D18-0281
L.T. No.:
562009CF001510A
TERRY DARNELL ANDERSON
v.
Appellant / Petitioner(s)
STATE OF FLORIDA
Appellee / Respondent(s)
BY ORDER OF THE COURT:
ORDERED that appellant's pro se motion filed June 19, 2018 for rehearing, clarification
or certification and motion for rehearing en banc is denied.
Served:
cc: Attorney General-W.P.B.
Sharon Lee Stedman
LON N WEISSBLUM, Clerk
Fourth District Cpurt of
"'
Terry Darnell Anderson
MANDATE
from
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
This cause having been brought to the Court by appeal, and after due
consideration the Court having issued its opinion;
YOU ARE HEREBY COMMANDED that such further proceedings be had in said
cause as may be in accordance with the opinion of this Court, and with the rules of
procedure and laws of the State of Florida.
WITNESS the Honorable Jonathan D. Gerber, Chief Judge of the District Court
of Appeal of the State of Florida, Fourth District, and seal of the said Court at West
Palm Beach, Florida on this day.
DATE:
CASE NO.:
COUNTY OF ORIGIN:
T.C. CASE NO.:
STYLE:
5®
a
*
t/i
August 17,2018
18-0281
St. Lucie
562009CF001510A
TERRY DARNELL
ANDERSON
FOURTH
DISTRICT
if*
©
T
v.
STATE OF FLORIDA
LONN WEISSBLUM, Cleric
Fourth District Court of Appeal
wQ
Served:
cc: Attorney General-W.P.B.
State Attorney-S.L.
Sharon Lee Stedman
Clerk St. Lucie
Terry Darnell Anderson
4
v
IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT
IN AND FOR ST. LUCIE COUNTY, FLORIDA
STATE OF FLORIDA
vs.
FELONY DIVISION
562009CF1510A
CASE NO.:
TERRY DARNELL ANDERSON,
/
Defendant.
ORDER DENYING MOTION FOR POSTCONVICTION RELIEF
THIS CASE came before the Court in chambers on the Defendant’s pro se
motion dated December 16, 2013, pursuant to Florida Rule of Criminal Procedure
3.850. The Court finds and orders as follows.
On September 29, 2010, the Defendant was found guilty by a jury of trafficking in
cocaine in an amount of 400 grams or more (count 1) and unlawful use of a two-way
communications device (count 3). On November 18,2010, the Defendant was
sentenced to life in prison as a habitual felony offender with a minimum mandatory of
fifteen years in prison on count 1 and ten years in prison on count 3. The Defendant’s
judgment and sentence were affirmed on appeal with a mandate issued February 15,
2013. Anderson v. State, 105 So. 3d 536 (Fla. 4th DCA 2013).
In his motion, the Defendant claims that his counsel was ineffective. In order to
succeed on a claim of ineffective assistance of counsel, a defendant must show that
counsel s performance was deficient and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668,687 (1984); see also State v. Dickey,
928 So. 2d 1193,1196 (Fla. 2006). A defendant must establish specific acts or
omissions of counsel that were “so serious that counsel was not functioning as the
"counsel” guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at
687.J.n_dem.onstrating-prejudice,-a-defendant-must-shGw-that-there-is-a-reasonabie------
St. Lucie County File Date: 12/07/2017 15:10 PM
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. Strickland, 466 U.S. at 694. A reasonable probability is one
sufficient to undermine confidence in the outcome of the case that is, that absent
counsel’s errors, the fact finder would have had a reasonable doubt respecting guilt.
Bowman v. State, 748 So. 2d 1082,1085 (Fla. 4th DCA 2000). It is unnecessary to
address both prongs if one or the other is not met. See Atkins v. Dugger, 541 So. 2d
1165,1166 (Fla. 1989).
Ground One
The Defendant claims that Trial Counsel was ineffective for failing to have
recorded video authenticated prior to trial. The Defendant alleges that he believes that
the video recording had been tampered with and does not show the true events within
the car during the alleged cocaine transaction. The Defendant claims that he never had
possession of the cocaine as reflected in the video recording.
First, this claim is insufficiently pled. The Defendant does not state what the
video would have reflected or specifically how he believes that it was tampered with.
Further, the Defendant fails to specially assert how the suppression of the video
recording would have resulted in a different outcome.
Second, this Court agrees with the State that there is sufficient record evidence
to refute the Defendant's claim. (See State response attached as A). The issue of the
Defendant’s request to have the video recording authenticated was raised prior trial.
(See transcript pages 15-24 attached as part of Ex. A).1 During this time, Trial Counsel
advised the Court that he did not believe that there was any evidence or reason to
believe that the videb had been tampered with. (See transcript page 18 attached as
1 This Court notes that it has supplemented the portion of the transcript provided by the
Statein-ExrA-with"pages itfinds relevant):------------------------------------------2
‘ St. Lucie County File Date: 12/07/2017.15:10 PM
part of Ex. A).
Even if the video recording was to be suppressed, there was sufficient evidence
presented by the State at trial that the outcome of the trial would not have been
different. The State presented several recorded phone conversations between the
Defendant or co-Defendant and the confidential informant (Cl) attempting to set up the
transaction. (See transcript pages 369-372; 376-381; 385-389; and 394-399 attached
as part of Ex. A). Further, the testimony of Officer Joshua Peto and the Cl Kenneth
Pyle demonstrate that the outcome would not be different. (See transcript pages 243260; 263-275; 282; 301; 305-324; and 367-410 attached as part Of Ex. A). As part of his
testimony, Mr. Pyle testified that he opened his glove compartment retrieved the kilo of
cocaine and handed it to the Defendant who then handed to his co-Defendant in the
back seat. (See transcript pages 402-404 attached as part of Ex. A). As pointed out
above, there was sufficient evidence presented by the State that even had the video
recording not been played for the jury, the outcome of the Defendant’s trial would not
have been different. The Defendant’s claim is refuted by the record.
Ground Two
The Defendant alleges that Trial Counsel was ineffective for failing to impeach
Kenneth Pyle regarding inconsistent statements that he made.
\
This Court agrees and adopts the well-reasoned response put forth by the State.
(See State response attached as Ex. A). As the State points out, the Defendant admits
that co-Defendant’s attorney impeached Mr. Pyle with these inconsistent statements.
However, the Defendant incorrectly asserts that this impeachment could not be used in
his case. The jury heard the impeachment of Mr. Pyle. There was no need for Trial
Counsel to impeach Mr. Pyle for a second time. As the State points out, this would
have allowed Mr. Pyle to again provide an explanation for the inconsistent statements.
3
St. Lucie County File Date: 12/07/2017 15:10 PM
The Defendant has not demonstrated that Trial Counsel was ineffective. The
Defendant’s claim is refuted by the record and without merit.
Ground Three and Four
The Defendant claims that Trial Counsel was ineffective for not pursuing a
defense of subjective entrapment. The Defendant asserts that they discussed such a
defense but that Trial Counsel would not pursue it.
This Court again agrees and adopts the well-reasoned response put forth by the
State. First, this defense would be contrary to the Defendant’s position that he was not
involved with the trafficking. Second, the State would have been able to introduce
evidence of other attempts to conduct drug transactions. The State gave notice that it
was seeking to introduce such evidence at trial. (See notice of intent to introduce
evidence of other crimes Ex. 1 of Ex. A). The Court granted the Defendant’s motion in
. limine to prohibit the introduction of such evidence. (See transcript page 214 attached
as part of Ex. A). However, this evidence would have been relevant and admissible had
the Defendant pursued the entrapment defense.
It is readily evident that the trial Counsel did not pursue the entrapment defense
as a strategy to prevent evidence of other attempts at making drug transactions.
Further, this Court does not find that there was a reasonable probability that an
entrapment defense would have been successful. This claim is refuted by the record
and without merit.
Ground Five
The Defendant claims that the cumulative effect of Trial Counsel’s errors entitled
him to relief.
Having found no merit in the previous four claims individually or in combination,
this Court does not find that there was cumulative error that would entitle the Defendant
4
• St. I.ucie County File Date: 12/07/2017 15:10 PM
to relief.
It is hereby ORDERED that the Defendant’s motion is DENIED.
The Defendant has thirty days to seek appellate review.
DONE AND ORDERED in chambers in Fort Pierce, St. Lucie County, Florida on
A4
, 2017.
GARY L. SWEgF
CIRCUIT COURT JUDGE
Certificate of Service
I hereby certify that a true and correct copy of the above order, including any
attachments, has been sent to the following addressees by U.S. Mail, postage prepaid
or e-portal, to the following persons, onTN>
2017.
Sharon Lee Stedman
Counsel for the Defendant
3015 Albert Street
Orlando, Florida 32806-6115
Bruce Harrison
Assistant State Attorney
Office of the State Attorney
JOSEPH E. SMITH
CLERK OF THE COURT
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Deputy Clerk
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St. I.ucie Countv File Date: 12/07/2017 15:10PM
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PALM
BEACH, FL 33401
September 06,2013
CASE NO.: 4D13-2471
L.T. No.:
562009CF001510A
TERRY ANDERSON
v.
Appellant / Petitioners)
STATE OF FLORIDA
Appellee / Respondent(s)
BY ORDER OF THE COURT:
ORDERED that Petitioner’s July 11, 2013 petition for writ of habeas corpus
alleging ineffectiveness of appellate counsel is denied on the merits; further,
ORDERED that, to the extent the petition raises issues of ineffectiveness of trial
counsel, and without passing on the merits of such claims, the denial is without
prejudice to petitioner’s right to raise these issues in a timely filed postconviction motion,
should that be appropriate. See Fla. R. Crim. P. 3.850.
I HEREBY CERTIFY that the foregoing is a true copy of the original court order.
Served:
cc:
Attorney General-W.P.B.
Terry Darnell Anderson
Ic
MARIIfYN BEUTTENMULLER, clerk
Fourth District Cburt of Appeal
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District Court Of Appeal Of The State Of Florida
Fourth District
January Term 2013
TERRY DARNELL ANDERSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D10-5011
[January 16, 2013]
Per Curiam.
Affirmed.
Warner, Ciklin and Levine, JJ., concur.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Dan Vaughn, Judge; L.T. Case No. 562009CF001510A.
Carey Haughwout, Public Defender, and Susan D. Cline, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A.
Tringali, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
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from
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
This cause having been brought to the Court by appeal, and after due
consideration the Court having issued its opinion;
YOU ARE HEREBY COMMANDED that such further proceedings be had in
said cause as may be in accordance with the opinion of this Court, and with the
rules of procedure and laws of the State of Florida.
WITNESS the Honorable Melanie G. May, Chief Judge of the District Court
of Appeal of the State of Florida, Fourth District, and seal of the said Court at West
Palm Beach, Florida on this day.
DATE:
February 15, 2013
CASE NO.:
4D10-5011
COUNTY OF ORIGIN:
St. Lucie
T.C. CASE NO.:
562009CF001510A
STYLE:
TERRY DARNELL ANDERSON V. STATE OF FLORIDA
4HEMS
FEB 1 8 2013
lARIlfYN BEUTTENMULLER, Clerk
Fourth District Court of Appeal
ORIGINAtTO:
cc:
Public Defender-P.B.
sp
JosepirErSrrTitTTTClerF
Attorney General-W.P.B.
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.