# Writ of Hebeas Corpus — Bullard v. Moore (No. 99-2087)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Writ of Hebeas Corpus
- **Published:** January 1, 2000

## Text

Supreme Court, U.S. |
L\ FILED

992087 JUN 2 7 2000

OFFICE OF THE CLERK
No.00-

IN THE
Supreme Court of the Anited States
October Term, 2000

ESTON BULLARD, JR..,
Petitioner,
vs.

MICHAEL W. MOORE,
D.O.C. Secretary;

ROBERT A. BUTTERWORTH,
The Attorney General of the State of Florida,

Respondent(s)

PETITION FOR WRIT OF HABEAS CORPUS

EASTON BULLARD 008037
Union Correctional Institution
P.O. Box 221 Box K-21
Raiford, Florida 32083

SUMMARY OF THE
ISSUES PRESENTED

I.

Petitioner was denied his Sixth
Amendment right to effective assistance of
counsel pursuant to this Court's decision
in Strickland v. Washington, 104 § «GE.
2052 (1984), wherein defense counsel
failed to object to an erroneous jury
instruction that added an improper element
- “temporary deprivation" - to the crime
of robbery, thereby reducing the State's
burden of proof and depriving Petitioner
of his Due Process right to a fair trial.

The lower court denied relief on this
issue by misapplying this Court's decision
in Lockhart v. Fretwell, 506 U.S. 364
(1993), holding that if Petitioner were
retried the erronecus jury instruction
would be repeated because. the State
Supreme Court had, some years after
Petitioner's alleged offense was
committed, added "temporary deprivation"
to the elements of robbery. Not only is
this a misapplication of Fretwell, it is
also directly in conflict with this
Court's decisions in Wainwright v. Stone,
94° S.Ct. 190 (1973); Celder rv. Bull, 3
U.S. 836 (1798); Bourse. -. City of
Columbia, 378 U.S. 347 (1964); Marks v.
United States, 430 U.S. 188 (177); among
others. ? Bae SP

II

The trial court's use of an erroneous
jury instruction that added an improper
element to the crime of robbery, thereby
lessening the State's burden of proof,

i

violated the Due Process Clause of the
Fourteenth Amendment. .

The lower court denied relief on this
issue by- holding that defense counsel's
failure to object to the erroneous
instruction was "sound trial strategy."
That decision is in conflict with this
Court's decision in &stelle v. McQuire,
502 U.S. 62 (1991); and Matthews v. ae
States, 485 U.S. 58 (1988).

III

Petitioner was denied his Sixth
Amendment right to effective assistance of
counsel, Strickland v. Washiagton, supra,
by Appellate Counsel's failure to raise on
direct appeal the state trial court's
denial of Petitioner's Motion for
Severance for the murder and _ robbery
charge. The issue was meritorious and
there was no strategic reason for not
raising the issue.

IV

Petitioner was deprived of his Due
Process and Liberty Interest rights when
the state trial court’ disregarded
controlling Florida Supreme Court case law
and the mandate and law of the case
established by the State Appellate Court,
(and) resentenced Petitioner again to a
life sentence instead of the limited seven
‘7) to nine (9) year sentence prescribed
by the applicable’ state sentencing
guidelines.

ii

+ memes wae eee oe +

ee et eee nee te ae ole ees

te

Vv

Petitioner's life sentence imposed on
resentencing violated the Ex Post Facto
and Due process Clauses of the’ Fifth and
Fourteenth Amendments, wherein the state
trial court relied on an aggravating
factor that was not approved by the State
Supreme Court until after the alleged
offense was committed.

iii

PARTIES

The Petitioner is Eston Bullard, Jr.,
a prisoner in the Florida Department of
Corrections prison systen.

‘The Respondents are Michael W. Moore,
Secretary of the Florida Department of
Corrections, and Robert A. Butterworth,
Attorney General of the State of Florida.

iv

TABLE OF CONTENTS

PAGE
ISSUES PRESENTED......... uae as i-iii
edited (6085 Soe A yt iv
TABLE OF AUTHORITIES..............0-- vi-xi
cing BN SS i ccs 1-4
WL ICPION. « 5 cise oss eo etl coe 4-9
STATEMENT OF CASE...........eeeeeeeee 10-19
ISSUES PRESENTED.......0.eececeeeeees 20-49
ce CES ROI OO OTE Oe . .80
werieat108 a RS 50

TABLE 0F AUTHORITIES

Bailey v. State, 199 So.2d 726
(Pia. tet DCA 19GR. Ferree ee rk ees 20

Baker v. State, 466 So.2d 1144
(Fla. Dist. Ct. App. March 26, 1985)....47

Bastiste v. Blackburn, 786 F.2d 784

(Sth Cie, 1986) .5... 65600850585 i Fck ears

Bell v. State, 354 So.2d 1266
(Fla. 3rd DCA 1978)....... acepe sine haat .20

Bell v. State, 394 So.2d 979 rag
Pe EE a ok a ho 00 66 0d Oo ek Sa passin

Boute v. City of Columbia, 378 U.S. 347
oy ee re oh ae i, 26

Bullard v. State, 515 So.2d 1028
(Fla. Dist. Ct. App. 1987)...1,18,19,42,46

Bullard Vv. State, 529 So.2d 693
Cs ES 6 CN a cy chee wen eee Pale ek Ce ae oe oe 1

Bullard v. State; 559 So.2d 1140
OMS LT Be ee RS 2: Serene gare 1

Bullard v. State, 575 So.2d 656
[Pae. BAGt. CO. Bs See ks 00 ho ck EE ees 2

Bullard v. State, 600 So.2d 1105
[Pam BaRe. 2 toe Ss

(Fla. 1987.).. Pee yee 143% 44
State ws Baker, 483 So.2d: 423 - uct ath
(Fla. ‘February .6, 1986).........4 tk +s ae
State‘ % >Duninman,.427 So.2d: 166.
(1983) . (eee naehe is ta cneas -21, 22, a4, 28, 47
State Vv. Gray, “435 ‘So. ba 816 te
CRUE bc bcd cee 6: eo otras 6 ok tt Ss pee eee 28
Stewart v. State,‘ 420 50.24 862
CRIES « 66h we Od Sees oe hbk ees 21, 24; 28
Strickland'v. ‘Washington, 104 S.Ct. 2052
PRET 6 kde eae 4, 2d. 2c. By SOs eee

United States v. Brown, 479 F.2d 1170,
1173 (2d Cir. 1973)..... eee eeees betes 40

United States v. Hayman, 342 U.S. 205
bo. >} ee peseseceees ee eeeeeeseees 5

United States v. Hudson, 564 F.2d 1377
tie Bs te og» Pee Bene e eee eees 38

United States v. Mazurze, 415 U.S. 947
(19739) ccc ccsecscccvnceses Soo 5

Vaugh v. State, 460 So.2d 505
(Fla. 3rd DCA 1984)... eee Pre Tero Tee 28

Wainwright v. Stone, 94 §.Ct. 190
(1973) ......eeeeeeessdy 23, 24, 25, 31, 33

William v. Taylor, Slip No. 98-8384
(April 18, 2000)... .. cc eeeeeceeeeeseees 32

Winters v. New York, 333 U.S. 507, 514,
68 S.Ct. 665, 669 92 L.Ed. 840 (1948)...23

atte —-

Wyche v. State, 576 So.2d 884
Sak BOE. BEA SORES oi has a vee Pie ea ee 43

Yates v. Evatt, 500 U.S. 391 (1991)..34,37
CONSTITUTIONAL PROVISIONS

Fifth Amendment............. ees ey ee
Sixth Amendment............ ke oe
Fourteenth Aatndoent. ate ii, iii,? ,36,39, 48
Article I §10...... i eiwik suseas So ey oe 49
STATUTES AND RULES

BP ies BEORE: Shacas Sao, fi daa. Soc. 6
vo oak hb eet Lad ccs 8,9
SRD EO, SUBS eds oisinaas i cek cece: 4
EEG. MON ie ss che ths eccoa wks 3,4,5,6
Os a Cais 5b Oe ek} a 60a ae ke 49
Chapter 77-342, Laws of Florida..... 2i., 22
Chapter 92-155, Laws of Florida......... 22

Florida Rules of Criminal Procedure
pS ONES ORE gt SER Rea area ean Saran as 18

Florida Rules of Criminal Procedure
Bre Ba Maas be 6 kG Re ERR ES RA 39

Florida Rule or Criminal Procedure
BRT SS RE ak a MAC Kis ce CHE s CRS 2

Florida Rule of Criminal Procedure |
PS ae ee eee ee res ee ee 17

Florida Standard Jury Instructions in
Criminal Cases, 543 So.2d 1205, 1215

(CREB) sine Seds cave cdk kee orerees 555 16,22
FPiloOriae StAEGLe O° TTS GOR so. Bris CRS 17
Florida Statute §. $12.13
(ERTS) sic vik va saSeks unas sa cee 20,21,22,24
Florida Statute § 812,014......:....... 21
Florida Statute § 813.011 (1973)....... 20
Fla. R. Prof. R. 4-12(a), 4-1.4.......0.. 41

Florida Constitution,
Artiezeae FS fF US) o6.655 ho eA ee iw lees 48

United States Supreme Court
Po. RES } Pen errs ang Sry Gon y meng, 4 Urano 4

United States Supreme Court :
MUSOR SD B's 00 vn cece ee ween eee 5

trial whose result is
reliable.

Id. 104 §.Ct. 2064.

(A) Trial Counsel was Deficient
Under Strickland

As shown above, under Florida law in
1985, the date of Petitioner's alleged
offense, "permanent" deprivation was an
essential element of the crime of robbery,
and “temporary" deprivation was not.

Petitioner's offense involved the
disarming of a deputy sheriff and then
driving away with her marked police car.
The trial record shows, and the State
agrees, that Petitioner kept the marked
police car for at most 10 to 15 minutes,
and then abandoned it on a public road,
leaving the keys in the ignition (R1-12-
VII-522-525).

Petitioner was convicted of robbery
by use of an erroneous and improper jury
instruction that included an intent to
"temporarily" deprive an owner of
property. Defense trial counsel failed
twice to object to the erroneous jury

27

instruction when the trial judge changed
the jury instruction without notice
between the preliminary charge conference
and the jury announcement. (R1-12-VIII-
601; R1-12-X-827; R1-12-XI-990).

Both defense trial counsels testified
at the federal evidentiary hearing that
they overlooked that the trial court had
spontaneously altered the jury instruction
previously discussed with defense counsel:
(R3-61; 161-162) Chief defense counsel
testified that he believed he _ was
ineffective for not objecting because ". .

it went to the heart of what the jury
got as the law, and it's -wrong. And
that's part of our job, is to make sure
that doesn't happen." (R3-66).

Bell v. State, (1981) held that the
specific intent to permanently deprive was
the only requisite intent to deprive in

the crime of robbery. This
notwithstanding, the jury was erroneously
instructed, without objection by defense

counsel, that Petitioner could be found
guilty of robbery if he had either the
deprive the owner of her property. (R1-12-
XI-990).

As noted above, several years before
and after Petitioner's trial, numerous
Florida appellate courts, relying on the
State Supreme Court's decisions in #SelJ,
Stewart, Dunnman, and Gray, held that an
instruction permitting a jury to find an
accused guilty of robbery by finding
anything other than the specific intent to
"Dermanently" deprive was reversible
error. See, Vaugh v. State, 460 So.2d 505
(Fla. 3rd DCA 1984); Halli v. State, 505

28

So.2d 657 (Fla. 2nd DCA 1987).

Therefore, the failure by
Petitioner's counsel to object to the
erroneous jury instruction "cannot be
considered to be within the 'wide range of
professionally competent assistance.'"
Ricalday v. Procunier, 736 F.2d 203, 207
(Sth Cir.1984) (quoting Strickland, 104
S.Ct. at 2066). :

(B) Petitioner was Prejudiced by
Trial Counsel's Defictent Assistance.

In order to demonstrate prejudice
under the second prong of Strickland,
Petitioner must demonstrate "that there is
a reasonable probability that, but for

counsel's unprofessional errors, the
result of the proceeding would have been
different. fe) obabi a
2 er ;

confidence in the outcome." Strickland,
104 §$.Ct. at 2068 (emphasis added).

Applying the prejudice standard to
Petitioner's case, the obvious question to
be answered: Is there a _ reasonable
probability that the jury would have had a
reasonable doubt as to Petitioner's guilt
if the words "temporarily deprive" had not
been included in the charge to the jury on
the elements of robbery?

As set forth te Se the evidence
presented at trial clearly showed
Petitioner took the marked police car,
then drove the marked police car some 8 to
9 miles away, and abandoned it on a public
road with the keys in the ignition. (R1-
12-VII=-522-525). Thus, there was more
than sufficient reason for the jury in

29

this case to conclude Petitioner did not
have the specific intent to "permanently"
deprive the officer of her police vehicle.
See, Herring v. Estelle, 491 F.2d 125 (5th
Cir. 1974) (Inmates who rushed and beat
jailer, then took his keys and escaped,
leaving keys in back door, not guilty of
‘robbery under Texas law because no intent
to permanently deprive existed).

Interestingly, trial counsel's so-
called strategy, as will be discussed
further infra, was to show no robbery
had occurred, merely a "theft." In 1985,
under Florida law, a person could be found
guilty of "theft" if he had the intent to
"temporarily" or "permanently" deprive an
owner of his property.

During deliberations the jury asked
the trial judge "can we charge the
defendant with aggravated assault and
Grand Theft or can we charge Grand Theft
with a weapon?" (R1-12-XI-1009). Thus,
the jury was clearly leaning toward a
"theft" conviction; however, the erroneous
jury instruction on robbery, regarding
"temporary" deprivation, appears to have
been the only justification for the jury's
guilty verdict on robbery. The jury was
allowed to convict Petitioner based upon
the illegal expanded element of robbery,
"temporary" deprivation; therefore,

Petitioner was prejudiced under the second |

prong of Strickland by trial counsel's
failure to properly object. As such, a
“reasonable probability" exists that
Petitioner would not have been convicted
of robbery except for counsel's error.

30

ES A LT TT te A ett ar tt te

(C) The U.S. Magistrate Judge's
Report and Recommendation:

First, the Magistrate's contention
that counsel's failure to object to the
erroneous jury instruction was reasonable
due to trial "strategy" flys in the face
of constitutional law and the
jurisprudence of this Court.

Pursuant to Wainwright v. Stone, the
State Supreme Court in fell] v. State made
the intent to "permanently" deprive an
essential element of robbery, just as if
the robbery statute had been so amended by
the legislature. Accordingly, -no
reasonable trial strategy could possibly
avoid putting the State to its
constitutional burden of proving all
elements beyond a reasonable doubt. Since
trial counsel's so-called strategy allowed
the state to avoid its burden of proof --
and certainly the state did not prove
Petitioner's intent to "permanently"
deprive - and the erroneous instruction
added an element (temporary deprivation)
that acted to relieve the state of its
burden to prove "permanent" deprivation.
This Court has held that "the
prosecution's burden to prove’ every
element of the crime is not relieved by a
.. . tactical decision not to contest an
essential element of the offense."
stelle: v. McGuire, 502 U.S. 62, 69
(1991).

Also, trial counsel must have seen
the error in their strategy because, as
noted by the Magistrate, counsel filed a
motion for new trial based upon the
erroneous instruction arguing Petitioner
did not have the requisite intent to

31

permanently deprive under Sell, supra.
And both trial counsels stated at the
federal evidentiary hearing that they
simply "missed" the trial court's
spontaneous addition of the erroneous
instruction, and their failure to object
had "no strategic" value whatsoever.

Accordingly, the Magistrate's finding
that counsel's failure to object to the
erroneous instruction was reasonable trial:
strategy has no basis in law, and is in
fact contrary to this Court's precedent in
McGuire and Mathews v. United States, 485
U.S. 58 (1988).

Second, the Magistrate misapplied the
Court's decision in Lockhart v. Fretwell,
supra, by finding the erroneous jury
instruction, which is now correct based on
subsequent case law, would be given if
Petitioner were retried on the robbery
charge. The Magistrate inccrrectly found
that Petitioner had ne "constitutional
right" to now have a jury instructed on
the elements of the offense (State of the
law) at the time the offense occurred.

This Court has recently clarified the
Fretwell decision, stating: _

Cases such as Wix v. Whiteside, 475
U.S. 157 (1986), and JZockart: v.
Fretwell, 506 U.S. 364 (1993), do not
justify a departure from a straight
forward application of Strickland
when the ineffectiveness of counsel
does deprive the defendant of a
substantial or procedural right to
which the law entitles hin.

William v. Taylor, No. 98-8384 (April 18,

32

2000).

The Magistrate seems to have missed
the fact that the erroneous jury
instruction set forth an essential element
of the crime of robbery - temporary
deprivation - that was not an essential
element of: that offense at that time,
according to the State Supreme Court's
interpretation of that statute. Thus,
that instruction criminalized conduct that
was not criminal at the time of the
offense.

As such, the 4x Post Facto and Due
Process clauses of the United States
Constitution would prohibit a state court
upon a re-trial of Petitioner's robbery
charge from using a jury instruction that
included the element of "temporary"
deprivation.

The Magistrate failed to note that
the State Supreme Court decisions, placing
first the element of "permanent"
deprivation, Bell v. State, and then
"temporary" or “permanent” deprivation as
elements, Daniels v. State, were judicial
interpretations of a state robbery statute
that, on its face, contained no mention of
either "permanent" or "temporary"
deprivation.

However, as set forth above, this
Court has long held that a State Supreme
Court's interpretation of a state statute
that defines the elements of that statute,
are just as binding as if "amended by the
[state] legislature." Wainwright Vv.
Stone, 94 S.Ct. at 192. Furthermore, an
accused must be tried under such a
judicially interpreted statute that was in

33

effect at the time of the alleged offense.
Id. at 193.

Since Petitioner was denied clearly
defined constitutional rights, and the
State Supreme Court's decision in Sel,
along with that Court's subsequent
decision affirming fell, were not "lawless
decisions" as defined in Fretwell, the
Magistrate's analysis under Fretwell is
clearly in error and has no basis in law.

Third, the Magistrate concluded that
the jury would have convicted Petitioner
even if the proper instruction had been
given. This clearly goes against the
evidence presented at trial.

A jury is presumed to follow
instructions. Yates v. &vatt, 500 U.S.
391 (1991). In this case, it is clear the
jury paid attention to the instructions, a
copy of which was given to the jury in
deliberations. And as noted above, the
jury asked tthe ttrial judge certain
pertinent questions about convicting
Petitioner of the lesser included offense
of Grand Theft, an offense where
"temporary" taking was a correct requisite
element. (RI-12-XI-1009).

There was also no evidence presented
at trial to show Petitioner had an intent
to permanently deprive the police officer
of her vehicle. The Magistrate did not
cite any record support for his conclusion
that the improper jury instruction did not
infect the outcome of the jury's verdict
on the robbery charge. Accordingly, the
Magistrate's conclusion to the contrary
has no basis in fact or law.

34

(d) The Petitioner Received
Ineffective Assistance for Failure To
Argue Specific Intent To Rob and/or
Permanently Deprive in the Robbery Case.

The State of Florida was required to
prove the Petitioner had the specific
intent to permanently deprive the owner of

her vehicle to prove robbery. Bell v.
State, 394 So0.2d 979 (Fla. 1981).
Petitioner's trial counsel, however, ~

failed to make the obvious argument to the
jury and trial court that Petitioner did
not intend to permanently deprive the
police officer of her vehicle.

As shown above, the evidence
presented at trial toward the robbery
charge lacked any proof that Petitioner
had the specific intent to permanently
deprive. Therefore, by failing to inform,
educate, and argue to the jury and trial
court’ that the State had failed to offer
proof of that requisite element, counsel
unwittingly relieved the State of its
burden of proof. Because this Court, over
30 years ago, declared that "the Due
Process Clause protects the accused
against conyiction except upon proof
‘beyond a reasonable doubt of every fact

, itut crime wi
which he is charged," Jn Re Winship, 397
U.S. 358, 364 (1970) (emphasis added).
Any decision, tactical or otherwise
labeled, to forego holding the State to

. Counsel failed to argue in the
Motion For judgment and Acquittal that
the State had failed to offer any proof
of the specific intent to permanently
deprive.

35

ats strict ‘burden of. proof on the: element
of intent to-.permanently. deprive, or
failing to. argue to the jury and;the: trial
court’ that. the. State... had:.not::met its
burden to show the requisite intent, was
not -a :‘"“reasonable": decisiom: under
Strickland. . Pe - :

As to-prejudice, -because the State
failed in its burden of proof on'‘intent,
prejudice is evident.: Petitioner has the
right protected under the Due Process
Clause, and the Fourteenth Amendment,
United States Constitution, against
conviction unless the State proves all
elements beyond a é reasonable doubt.
Jackson v. Virginia, 443 U.S. 307 (1979).

The Magistrate below concluded there
was sufficient testimony for a jury to
convict on the officer's testimony about
Petitioner taking the police car. (R2-43-
52). This reading of the police officer's
testimony is not reflected in the record
itself, and, is not supported in any
portion of the trial record. Furthermore,
taking all the evidence presented at trial
collectively, and in a light’ most
favorable to the State, the evidence, at
best, showed Petitioner's intent was to
"temporarily" deprive the officer of her
police car. And under the law at the time
in the State of Florida, Petitioner could
have only been convicted of grand theft
based on an intent to "temporarily"
deprive.

o-. aap oo ee noe

36

ee

ISSUE II:

THE IMPROPER JURY INSTRUCTION FOR
ROBBERY VIOLATED THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.

“An erroneous jury instruction is
analyzed as fo "whether there is a
reasonable likelihood that the jury has
- applied the challenged instruction in ‘a
way" that violated the Constitution.
Estelle v. McGuire, 502 U.S. 62 (1991).
The Magistrate judge denied federal habeas
relief by stating the instruction did not
infect the whole trial with error.

As previously noted and argued, this
finding is based upon erroneous factual
conclusions which are used to support
illogical inferences. (See Issue I a. and
b. above).

The federal Magistrate appears to be
ruling that the jury would have convicted
Petitioner even if the proper instruction
had been given. This goes against the
evidence presented at trial.

A jury is -presumed to _ follow
instruction. Vates v. Evatt, 500 U.S. 391
(1991). In the present case, it is clear
the jury paid attention to the
instructions, a copy of which were given
to the jury in deliberations. During
deliberations the jury asked the trial
judge “can we charge the defendant with
aggravated assault and Grand Theft or can
we charge Grand Theft with a weapon?"

There was also no evidence that
Petitioner had an intent to permanently
deprive the police officer of her cruiser.

37

The Magistrate did not cite any
record support for his conclusion that the
improper jury instruction did not infect
the entire trial.

In United States v. Hudson, 564 F.2d
1377 (9th Cir. 1977), Audson was convicted
of armed post office robbery. the proper
jury instruction was “before it could find
that the defendant had put the postal
clerk's life in jeopardy by use of a
dangerous weapon, it must find that the
gun was loaded at the time of the crime."
The trial court explained the proper jury
instruction by giving an unobjected to
instruction that included exposing a
person to a risk or fear of death in

defining "jeopardizing." The Ninth
Circuit held *. . . the instruction
allowed for the possibility of conviction
on an improper basis. .. . we hold that
the error was plain and manifestly
prejudicial to substantial rights." Id.

note 3 at 1380. See also Sastiste v.
Blackburn, 786 F.2d 784 (5th Cir. 1986).

In the present case there is no
question that it is reasonably probable
that the jury convicted Petitioner on the
improper "temporary" deprivation part of
the jury instruction.

The Magistrate Judge also denied
relief because the Florida Supreme Court
changed the definition of robbery after
Petitioner's offense date. The Magistrate
conciudes the new definition will be given
at retrial, and therefore, no prejudice
results to Petitioner based on Lockfart v.
Fretwell, 506 U.S. 364 (1993). As shown
above, this is a misapplication of
Fretwell.

38

ISSUE III:

APMIMRONEP WAS JENUED . the
District Court on remand shall direct
that petitioner be sentenced within
the guidelines. Morganti v. State,
924 So.2d 641, 642 (Fla. 1988).

The law is clear that trial courts
are not authorized under the law to depart
from a guidelines sentence after the
Original reason(s) for departure have been
reversed by an dppellate court as being
invalid, because no valid reasons remain
for departure. Morganti supra, Pope v.
State, 561 So.2d 554 (Fla. 1990). 7

. At the resentencing hearing the trial
judge admitted that he relied upon the
habitual offender statute to originally
depart (RI-12-Four Brown Folders Vol. II
41-43). That in the trial judges
subsequent sentencing order he also
admitted he relied on the habitual
offender statute to originally depart (RI-
12 Four Brown Folders Vol. 1-125). But
also in the trial judges subsequent
resentencing order after admitting he
Originally used the habitual offender
’ Statute to depart, on the very next page
he contradicts himself and states that in
his 1986 (original) sentence he "clearly
articulated two (2) reasons to exceed the
sentencing guidelines." (RI-12 Four Brown
Folders Vol. 1-126).

The trial judge went on to say that
he clearly articulated the habitual
offender and police officer victim reasons
by dividing paragraph 5, supra of his 1986
sentence order into the component parts.

The trial judge used _ the - police
officer victim aggravating departure

45

reason to exceed Petitioner's 7 to 9
guidelines sentence and again imposed
another life sentence with a mandatory
minimum three year sentence (RI-12- Four
Brown Folders Vol. 1-126-130).

The trial judge was required, and his
discretion was limited, as a matter of
law, to resentence Petitioner within his
recommended guidelines sentence of 7 to 9
years. ;

Petitioner has a right to due process
at sentencing. A deprivation of that
right is not merely a matter of state
procedural law, but is a liberty interest
that the Fourteenth Amendment preserves
against arbitrary deprivation by the
state. Haynes v. Butler, 825 F.2d 923
(5th Cir. 1987) citing Arcks v. Oklahoma,
447 U.8. 343° (i960). Although Azcks,
supra, dealt with discretion of a jury in
sentencing, the same rule applies to
judges. VPratter v. Maggio, 686 F.2d 346
(Sth Cir. 1982).

Relief may be required where
Petitioner, as here, is able to show that
the sentence, imposed . . . is wholly
unauthorized by law, devoid of discretion
or amounted to an arbitrary or capricious
abuse of discretion depriving the
Petitioner of his liberty. Haynes, supra,
at 924.

In the present case, the record
reflects that the trial judge overlooked
where the First District Court of Appeals
found that he originally exceeded
Petitioner's guidelines sentence solely
due to his qualification as a habitual
offender, Bullard at 1029, in which was

46

established as the "law of the case."

The record also reflects that the
trial judge overlooked controlling case
law, Shull, supra, and that he made an
incorrect statement that he relied also on
"Victim Police Officer" in his original

sentence as a departure reason.
Petitioner was denied due process at his
resentencing. Petitioner has a liberty

interest right: that the Fourteenth
Amendment preserves against arbitrary
deprivation by the state.

ISSUE V:

THE LIFE SENTENCE IMPOSED ON
RESENTENCING VIOLATED THE DUE
PROCESS/EX POST FACTO CLAUSES.

Petitioner challenged whether the
trial court's retroactive application of
the later developed aggravating departure
law consisting of the victim's police
officer status violated the Due process
and/or the Ex Post Facto Clause.

The Magistrate judge summarily ruled
the claim should be denied based on an
analysis presented somewhere between pages
10 and 34 of the Report and Recommendation
discussing ineffective assistance of trial
counsel. (R2-43-53).

The aggravating departure law, victim
law enforcement officer was approved in
Baker v. State, 466 So.2d 1144 (Fla. Dist.
Ct. App. March 26, 1985).

The Saker court, Third District,
stayed the issuance of its mandate upon
certification to the Supreme Court of

47

Florida. The Supreme Court in State v.
Baker, 483 So.2d 423 (Fla. February 6,
1986) approved the Third District's
decision on the departure law, and issued
its mandate on March 5, 1986, thereafter
the Third District issued its mandate on
March 11, 1986.

The constitutional provision
governing adoption of rules of practice
and procedure provides the Supreme Court
exclusive authority to adopt rules for
practice and procedure in all_ state
courts. Florida Constitution, Article V §
a . Both attorneys
agreed that the jury instructions, which were quite lengthy,
contained one single adverb (“temporarily”) to which they, by
hindsight, would have objected if they had noticed the inclusion
of the word. Defense counsel later became aware of the inclusion
of the word “temporarily” in the jury instruction and filed a
Motion for New Trial addressed to this issue. Petitioner’s
Composite Exhibit, Exhibit 4, Motion for New Trial, filed
March 24, 1986; Record at 303-04. The motion stated “(t)he
Court erred in instructing the jury on the elements of armed
robbery.”Id. Additionally, they filed a Memorandum of Law in

5 Ar the evidentiary hearing, Petitioner testified he told Mr. Harrison,
his defense counsel, thar the trial judge had misstated the law
regarding robbery by including the word “temporarily” in the jury
instruction; however, Mr. Harrison did not object to the misstatement
during the in-court proceedings. Transcript of the Evidentiary
Hearing, held February 13, 1997, at 215.

Support of Defendant Bullard’s Motion for New Trial and
argued the issue to the trial judge. Petitioner's Composite
Exhibit, Exhibit 5; Record at 305-15; Petitioner’s Composite
Exhibit, Exhibit 23; Tr. at 1033-45. Aiter argument by counsel,
the trial judge denied the Motion for New Trial, stating:

All right. I deny the motion. I think the instruction
was properly given. I think it’s a complete statement
of the or accurate statement of the law.

Tr. at 1046; Record at 316.

Defense counsel heard the correct standard jury instruction on
robbery at the preliminary jury instructions charge conference,
but missed th misstatement when the trial judge read the jury
instruction on robbery to the jury. Pursuant to Fla.R.Crim.P
3.390(d), defense counsel should have objected to the jury
instruction. Petitioner's Composite Exhibit, Exhibit 14. (Further,
at the evidentiary hearing, Petitioner argued that pursuant to
Fla.R.Crim.P. 3.985 defense counsel should have requested the
_ trial judge to enter a written order or explain on the record why
he was deviating from the standard jury instruction. Petitioner’s
Composite Exhibit, Exhibit 15. This issue was never raised in the
state courts and is procedurally barred. Moreover, the issue is not
one of federal constitucional proportion.)

Mr. Fallin testified at the evidentiary hearing that he was
ineffective for failing to object to the misstatement in the jury
instruction. EH Tr. at 66. Further, Mr. Harrison testified he

area and that there was no “robbery” intent to take her police
car. Id. at 84. It was not the defenses position that Petitioner
merely intended to temporarily take the police car. Id. at 162.
The theory of the defense was to “get a lesser-included offense of
",: Grand larceny.” Id. Thus, defense counsel were arguing that
this was not a robbery at all, id., and the “temporary” versus

“permanent” distinction was not part of the defense theory. See
Ground 1(b), supra.

Strickland does not define deficient performance as every
mistake made by counsel. In fact, Strickland holds that counsel is
not expected to try a perfect case, and that not every error, even
if professionally unreasonable, renders counsel ineffective.
Neither is Mr. Fallin’s confession of error entitled to controlling
weight. Harris v. Dugger, 874 F.2d 756, 761 n.4 (11th Cir.
1989). In this case, the attorneys “missed”, a single word -
(“temporarily”) in a jury instruction. However, Mr. Harrison
testified he would not have argued to the jury that Petitioner
intended to take the police officer’s car temporarily and not
permanently. EH Tr. at 164. Moreover, defense counsel, in
closing argument, summarized its theory of the case, which was
not an argument that Petitioner intended to only temporarily
take the police officer's car. Tr. at 941-42. Specifically, defense

counsel stated:

Certainly he took the car and he had no permission
to, but he didn't rob her for the car.

Now this again is a good example as to what I think
of the State’s problem with their case of overcharging.
Perhaps Mr. Bullard stole a police car, no question he
didn't have permission to drive off in it, but this isn't
an armed robbery. This is what we need to pay

close attention to the elements and the opportunities
you'll have to decide what if any criminal offenses
were committed right there. This is not an armed
robbery, this may be auto theft, that's what it would
be.

The elements of the robbery count will be explained
to you and it will be — and it will be explained to

? you in great detail by the Judge.

But the part of it
. *.
sre i-* £i&D (UL)

person in fear to take it. Not that the woman was

afraid, but that was the reason she was in fear was

Mr. Bullard was stealing her car. I submit that was an

afterthought, she was afraid of him wrestling with

her was not, though, to commit a robbery. That was

an afterthought to get in that car and drive off
Id. at 906, 941-42, 953 (emphasis added). At the evidentiary
hearing, Mr. Harrison concluded the jury would not have
accepted the “temporary taking” argument since the facts of the
case did not present a joy ride situation. EH Tr. at 164, 171.
Further, he stated because of the facts of the case concerning
how Petitioner took the car from Officer Williams it would not
have made a difference if the jury had been charged on the
“temporary taking” issue. Id. at 186. Finally, he noted if defense
counsel had argued that Petitioner intended only to temporarily
take the car, Petitioner may have needed to testify. Id. at 187. He
stressed how important it was to this case to avoid placing
Petitioner on the stand. Id. Thus, defense counsels’ performance
in not objecting to the jury instruction was not deficient becaus
the “temporary taking” of the car was not part of the defense
trial strategy, which strategy was rational if not resourceful.

In any event, the jury instruction as given by the trial judge
was later held by the Florida Supreme Court to be a correct
statement of the law. In Daniels v. State, 587 So.2d 460 (Fla.
1991), the Florida Supreme Court held that the specific intent
required to coramit robbery is intent to steal, i.e., to deprive the
owner of the property either permanently or temporarily. Thus, if
this case were to be tried again, the word “temporarily” would be
properly included in the jury instruction, just as it was at
Petitioner's trial.

The prejudice prong focuses on the inquiry of whether.
counsel's deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair. Strickland,
466 U.S. at 687. “Unreliability or unfairness does not result if

the ineffectiveness of counsel does not deprive the defendant of
any substantive or procedural right to which the law entitles
him.” Lockhart v. Fretwell, 506 U.S. at 371. Further, it is clear
“(che assessment of prejudice should proceed on the assumption
that the decisionmaker is reasonably, conscientiously, and
impartially applying the standards that govern the decision.” Id.
at 373 (quoting Strickland, 466 U.S. at 695) (Justice O'Connor,
concurring opinion). The United States Supreme Court, in
Fretwell, concluded that a court determining the prejudice prong °
of the two-part test “may not consider the effect of an objection
it knows to be wholly meritless under current governing law
even if the objection might have been considered meritorious at
the time of its omission.” Id. That is precisely the case here.

Because Petitioner has no constitutional right to be tried again
under what is now an incorrect jury instruction, his ineffective
assistance claim is without merit because he cannot show
prejudice. Moreover, no prejudice has been shown because even
if the trial judge had not included the (now correct) term
“remporarily” in the jury instruction on robbery, it would not
have changed the outcome of the jury trial.

Ground I(d)- Failure to Raise Ex Post Facto Issue on
Resentencing

Petitioner contends counsel was ineffective for failure to raise
the constitutional ex post facto doctrine as an objection to the
departure sentence imposed at the resentencing. Specifically,
Petitioner alleges the trial court imposed an allegedly illegal
sentence at resentencing because the trial judge relied upon the
victim's status as a police officer as a basis for departure.
According to Petitioner, this factor was created in “1987” by the
Florida Supreme Court's decision in State v. Baker, and thus
applying it to his case constituted an ex post facto application.
Thus, Petitioner concludes counsel erred by failing to object.

Even assuming arguendo that the ex post facto prohibition
applies in this situation, this claim is meritless because Petitioner
relies upon the wrong year (1987) in citing to State v. Baker, and
incorrectly contends that the case was decided after Petitioner's

offense and conviction. See Petitioner's Proposed Report and
Recommendation, filed April 21, 1997, at 20; Petitioner's
Memorandum of Law in Support of Petition for Writ of Habeas
Corpus, filed August 22, 1994, at 7. To the contrary, the
decision was actually reported on February 6, 1986 (before
Petitioner's trial), as State v. Baker, 483 So. 2d 423 (Fla. 1986),
and it affirms a decision in Baker u. State, 466 So. 2d 1144 (Fla.
3rd DCA 1985) (decided March 26, 1985, before Petitioner’s
offense). Thus, the relevant decision was rendered before
Petitioner's crime and was affirmed by the Florida Supreme
Court before Petitioner's sentencing; application of Baker’
teachings to Petitioner's case did not create any ex post facto
problems. For this reason, Petitioner's ineffective assistance of
trial counsel claim on this ground is without merit.

C. Ineffective Assistance of Appellate Counsel

As ground 2, Petitioner claims his appellate counsel‘ was
ineffective for failing to raise on direct appeal (a) the trial court’s
denial of Petitioner's Motion to Sever the first degree murder and
armed robbery charges, and (b) the trial court’s denial of the
motion for a judgment of acquittal based on the insufficiency of
the evidence on the robbery charge.

In Heath uv. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991)
(citations omitted), cert. denied, 502 U.S. 1077 ( 1992), the
Eleventh Circuit recognized: “(t)his circuit has applied the
Supreme Court's test for ineffective assistance at trial, see
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), to guide its analysis of ineffective assistance
of appellate counsel claims. Therefore, (Petitioner) must show
that his appellate counsel’s performance was deficient and that
this performance prejudiced the defense. “See page 11, supra.

6 P Douglas Brinkmeyer, an Assistant Public Defender, was Petitioner's

appellate counsel. Transcript of Evidentiary Hearing, held February 13,
1997, at 106.

In applying the Strickland components,

[a] court need not determine whether counsel's
performance was deficient before examining the
prejudice suffered by the defendant as a result of the
alleged deficiencies . . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be §0,
that course should be followed.

Smith v. Wainwright, 777 F.2d 609, 616 (11th Cir. 1985)
(quoting Strickland, 466 U.S. at 697), rehg denied, 785 F.2d
1037 (11th Cir.), cert. denied, 477 U.S. 905 (1986).

Thus, in reviewing appellate counsel’s performance, the
inquiry is whether it was a reasonable decision under prevailing
professional norms to not raise the issue on direct appeal. The
Court should presume effectiveness. Strickland, 466 U.S. at 690.
The reasonableness of counsel’s assistance is reviewed in light of
the facts and law that existed at the time of the challenged
conduct. Chateloin v. Singletary, 89 F.3d 749, 753 (11th Cir.
1996). Finally, the “Sixth Amendment does not require appellate
advocates to raise every non-frivolous issue.” Heath, 941 F.2d at
1130-31.

[E] fective advocates “winnow out" weaker
arguments even though the weaker arguments may
be meritorious. . . . [A]n appellate advocate who
review[s] the entire record, th[inks] about various
claims, and then cho[oses] to pursue [some] claims
on appeal ha[s] furnished effective appellate
assistance. . . . [E]ven though a non-appealed issue
might have been successful, the appellate advocacy
ha[s] to be judged in its entirety.

13. at 1131.

; To determine prejudice, this Court must review the merits of
the omitted claim. If “the omitted claim would have had a

reasonable probability of success on appeal, then counsel’s
performance necessarily resulted in prejudice.” Joiner v U.S.,
103 F.3d 961.

Ground 2(a)- Failure to Raise Denial of Severance on Appeal

Petitioner contends his appellate counsel was ineffective for

ili § to raise on direct appeal the trial court’s denial of
Petitioner's Motion to Sever the first degree murder and armed
tobbery charges. Prior to the trial, defense counsel filed a Motion
for Separate Trials and Severance of Offenses and a
Memorandum of Law and Fact in Support of His Motion to
Sever Counts One and Two and for Separate Trials Thereon.
Petitioner's Composite Exhibit, Exhibits 2 and 3; Record at 40,
181-87. Defense counsel addressed the Motion to Sever with the
trial judge on February 21, 1986, but argument on the motion
was continued. Petitioner's Composite Exhibit, Exhibit 16;
Record, Volume III, Tr. at 20-24.

On February 25, 1986, counsel Presented the Motion to Sever
to the trial judge. Petitioner's Composite Exhibit, Exhibit 17;
Record, Volume IV, Tr. at 49-68. In support of the motion,
defense counsel submitted a memorandum of law and the

was robbed. Record, Volume IV, Tr. at 50. Initially, the trial
judge read the facts from defense counsel's memorandum of law
in support of the Motion to Sever and asked if counsel could
agree On a statement of facts. Id.

The trial judge summarized the issue:
allegedly shot Tommy Ethridge at about 2:30 a.m. on
March 15th, 1985(,) at the home of Bucky Peeples

Then left those premises. Approximately two hours
later Bullard was arrested by Jacksonville police

Officer Charnita Williams as he was walking
westbound down the road. Bullard was unarmed.
Ms. Williams pulled out her .38 revolver and told
Bullard to get his hands up. She pointed her gun at
Bullard.

The point the defendant emphasizes here is that
Ethridge and Williams incidents are separate and
distinct. 3

Mr. Bullard was casually walking down the street
when arrested by Officer Williams. He just wanted to
be left alone. The officer admits aiming her revolver
at him so that he thought she was going to shoot
him on the spot. She also acknowledges that Bullard
grabbed her gun in order that she not shoot him.

Bullard then hopped in her squad car and to get
away from her.

Under Publ v. State, it says that —cites that 1983,
Fourth DCA is squarely on point, that around 8:00
p-m. Puhl! kidnapped a woman and took her to the
convenience store where she escaped. Then between
two and a half hours later he robbed three other
people, used the same gun in the robberies that he
used in the kidnapping incident.

The appellant could find - the appellate court found
kidnapping and robberies were not based on the
same transaction, or two or more connected acts or
transactions and therefore that the trial court had
erred in not granting the defendant(‘s) pretrial

motion for severance of the counts.

The Court is in exactly the same situation as the
Puhl case because the robbery of the police officer's

car took place about two hours after the alleged
homicide and had nothing in common with that
alleged homicide.

Four, there's another very important aspect in the
Puhl case in which the evidence of the defendant's
guilt in the kidnapping and subsequent robbery was
overwhelming as to each individual count. The
Court held nevertheless the harmless error rule was
inapplicable since where there is a disjoinder of
counts that rule does not apply.

Can we agree on those facts generally as to time, place and so

on?

Id. at 50, 52-53.

The State informed the trial judge that the time and dates
were incorrect, noting the shooting took place on July 15, 1985,
at 3:30 a.m., not March 15, 1985, at 2:30 a.m. Id. at 53-54.
Further, the State noted the robbery/attempted arrest by Officer
Williams occurred at 4:05 a.m. Id. at 54. The State repeatedly
contended the robbery occurred thirty-five minutes or “some 40
minutes” after the shooting. Id. at 54, 55, 66. Further, the State
argued the shooting and the robbery were within “walking
distance” and were within a “couple of miles” of each other. Id.
at 54. Finally, the State concluded "(t)he evidence of the armed
robbery would be admissible in the murder case because
Bullard’s flight from a police officer when the police officer
attempted to make an arrest would be admissible to show his
escape to avoid prosecution or his flight to avoid prosecution.”
Id. at 55. The State cited two cases’, id. at 56, 59, in support of
its argument, but the trial judge concluded neither case was
similar to the issue before the court. Id. at 59, 64.

7King v. State, 390 So.2d 315 (Fla. '980); Bundy v. State, 455 So.2d
330 (Fla. 1984).

Defense counsel stated the robbery was about two hours after
the shooting. Id. at 538, 62, 66. Further, defense counsel argued
Publ v. State, 426 So.2d 1226 (Fla. 4th DCA 1983) was
controlling and the shooting and robbery incidents were “not the
same episode” since they were two hours and “quite some
distance” apart. Tr. at 62-63.

Even after the State noted it would like to provide case law
with regard to the flight to avoid prosecution issue, the trial
judge stated he was ready to make a ruling. Id. at 65. The State °
responded “(w)hatever the Court's preference.” Id.

Okay. I grant the motion for severance. I don’t think
that there's any relationship at all between the
robbery and the murder. I think the distance, the
time, and the space between one and the other have
nothing to do except that the defendant was leaving
that general area and J think it would be error to try
them together.

Id. at 65-66.

The State again informed the trial judge that counsel had not
agreed on the facts (the time between the shooting and the
robbery; the mileage/distance between where the shooting
occurred and where the robbery took place), that counsel had

not submitted anything regarding the mileage between where
the shooting and the robbery occurred, and that defense counsel
had only cited the Publ case in support of their motion. Id. at
66-68. The trial judge asked the State if it needed more time,
and the State responded affirmatively. Id. Thus, the trial judge

8The trial judge quoted defense counsel's contentions contained in his
Memorandum of Law and Fact in Support of His Motion to Sever
Counts One and Two and for Separate Trials Thereon. Petitioner's
Composite Exhibit, Exhibit 3; Record at 183.

os . - - er eee

took the Motion for Separate Trials and Severance of Offenses
under advisement until February 28, 1986. Id. On February 28,
1986, the rrial judge denied the Motion for Separate Trials and
Severance of Offenses without a written opinion or any further
discussion. Record, Volume II at 248-49,

Petitioner was represented on direct appeal by P. Douglas
Brinkmeyer, an Assistant Public Defender. EH Tr. at 106. Mr.
Brinkmeyer has practiced criminal law since 1975 and did two
years of trial work and three years of appellate practice with the
Public Defender’s Office of the Tenth Circuit before moving to
Tallahassee in 1981. Id. Since 1981, he has done criminal
appellate work in the Appellate Division of the Public Defender’s
Office for the Second Circuit. Id. Mr. Brinkmeyer testified that
the severance issue was not preserved for appellate review:

My understanding was at that time and still is that
any pretrial motion must be made in writing prior to
trial, and the trial lawyer has an obligation to present
it to the court in a timely fashion and to get any
ruling on it before trial because trial judges do not
like motions coming in on the day of trial which
could have been made pretrial. And if the motion is
denied pretrial, then the lawyer has an obligation to
renew the motion at the beginning of the trial.

Id. at 118, 120-21. However, both Mr. Fallin and Mr. Harrison
testified they had properly preserved the severance issue for
appeal. Id. at 54, 56-57. -

As Petitioner's appellate counsel, Mr. Brinkmeyer’s
responsibility was to insure that the state court record was
complete and “to review the record and look for possible points
on appeal.” Id. at 122. Mr. Brinkmeyer described his duty as an
“obligation to raise any arguable meritorious issues... .” Id. at
122-23. He noted that some issues are arguable, but not
meritorious since the First District Court of Appeai “is a very

conservative appellate court.”? Id. at 123. He concluded his
“policy is that (he) will present only those issues that (he) can
honestly sign (his) name to the brief that (he) believe(s) have
merit.” Id. at 137.

Mr. Brinkmeyer and Petitioner did not agree on the issues to
be raised on appeal, and Petitioner wrote more than one letter to
Mr. Brinkmeyer and his office demanding that additional
matters be raised on appeal. Id. at 123-26. Priorto Mr. ~~
Brinkmeyer’s filing of the appellate brief, Petitioner asked him to
raise the severance issue on direct appeal. Id. at 126. Mr.
Brinkmeyer never responded in writing to any of Petitioner's
letters. Id. at 132. However, Mr. Brinkmeyer did talk with Mr.
Fallin regarding the appeal, and Mr. Fallin urged him to raise the
habitual offender sentencing and the jury instruction issues.

Id. at 128.

Thus, while Mr. Brinkmeyer was aware of the severance issue,
he concentrated on the habitual offender sentencing and the jury
instruction issues pursuant to Mr. Fallin’s instructions. Id. at
126-29. Mr. Brinkmeyer had “no independent recollection” of
why he did not raise the severance issue, but had “some ideas
about why (he) didn’t raise that issue.” Id. at 127, 129. In
reviewing the record, he knew he had two other meritorious
issues on which he could likely prevail. Id. at 127-29. Indeed,
appellate counsel did ultimately prevail on the sentencing issue
on appeal. Bullard, 515 So.2d 1028. |

Petitioner claims Mr. Brinkmeyer did not raise the severance
issue because he believed it was not preserved for appeal, and
Mr. Brinkmeyer’s testimony reflects this. This Court does not

9 The First District Court of Appeal, in 1992, denied without opinion
Petitioner's Petition for Writ of Habeas Corpus on the severance issue.
Petitioner's Petition at 10-11; Transcript of the Evidentiary Hearing,
held February 13, 1997, at 138-39.

need to address whether a written severance motion, denied
pretrial, needs to be renewed at trial to properly preserve the
issue for appellate purposes. This is because, putting aside the
issue of whether Mr. Brinkmeyer's performance was deficient in
failing to raise this issue, no prejudice has been shown as the
severance issue would not have had a reasonable probability of
success on appeal.

The standard of review in Florida appellate courts on a trial
court's denial of a motion for severance is and was in 1986 a
showing that the trial court abused its discretion. Panzavecchia v.
Wainwright, 658 F.2d 337 (5th Cir. 1981); Crossley u State, 596
So. 2d 447 (Fla. 1992); Menendez v. State, 368 So.2d 1278 (Fla.
1979). The mere fact that the appellate court “might have
decided the motion differently if it had been the trial court” will
not warrant reversal. Canakaris v. Canakaris, 382 So.2d 1197
(Fla. 1980) (Judicial discretion is abused when judicial action is
arbitrary, fanciful, or unreasonable, or where no reasonable man
would take the view adopted by trial court; however, if
reasonable men could differ as to the propriety of action taken
by trial court, then it cannot be said thar trial court abused its
discretion.).

While the trial court in this case was initially receptive to
severance, Ir. at 65-66, the court eventually exercised its
discretion and denied the severance motion. Record, Volume II
at 248-49. While the record does not show why the trial judge
changed his mind, the record does show the denial of the
severance motion was within the trial court’s discretion. Tr. at
52-53. The principal case cited by defendant in support of
severance, Publ v. State, 426 So.2d 1226 (Fla. 4th DCA 1983), is
clearly distinguishable from the case now before this Court. In
Publ, before trial, Pu] moved for a severance of four charges
involving the kidnapping victim from the eight charges involving
five other victims, but the trial court denied the n.otion. The
evidence at trial showed that Puhl held a gun on a woman and
kidnapped her on September 6 at 8:00 p.m. About two and one-
half hours later on the same night, he robbed three other
persons, fired shots at them and at two other persons. The ~

Fourth District Court of Appeal stated, “(t)he only similarity
between the offense against the kidnapping victim and the other
victims was the use of a handgun by Puhl. “Publ, 426 So.2d at
1226. It concluded “offenses may not be joined if they are not
based on the same act or transaction or two or more connected
acts or transactions and that a severance must be granted upon a
timely motion if two or more offen: s are improperly joined.

Id. at 1226-27.

Here, unlike Publ, Petitioner's two charges (first degree murder
and robbery) were episodically connected! since Petitioner was
fleeing the homicide scene when Officer Williams came upon
him. Apparently, the trial judge agreed with the State that
Petitioner was in flight from the homicide when he took the
police officer’s car. In closing argument, the State reminded the
jury of the flight or fleeing the scene by Petitioner, Tr. at 893,
and the trial court did give a flight jury instruction. Td. at 982-
83. The record supports the trial court's decision to deny
severance since the trial court was within its discretion to
determine that the zobbery of Officer Williams aiid the taking of
her car were clearly parr of Petitioner's flight from the scene of
the homicide and were within close proximity timewise and

logistically.

10 In Wright u. Sate, 586 So.2d 1024, 1029 (Fla. 1991), the
Florida Supreme Court reiterated that joinder of criminal
charges is not proper for charges based on similar but separate
episcdes, separated in time, which are connected only by similar
circumstances and the accused's alleged guilt in both or all
instances. The charges must be "episodically connected,” not
distinct. Id.

Petitioner's contention that the charges were not connected is
unconvincing!!. Petitioner himself has argued that the robbery
and the homicide occurred “close” in time, Petitioner's
Memorandum at Petitioner further contended at trial that he
blacked out during the robbery due to the stress of the homicide,
so he implicitly concedes the connection between the events
while sacrificing the ability to allege that the taking of the police
car was not a part of his flight from the homicide.

Thus, Petitioner cannot show the trial court abused its
discretion in denying severance, a prerequisite to reversal on
appeal. Therefore, Petitioner has failed to show a reasonable
probability that Petitioner would have prevailed on this issue on
appeal, and the ineffective assistance claim based on appellate

counsel's failure to raise the severance issue is without merit.

11 None of the cases cited by Petitioner in support of his contention
are factually similar to this case. See Petitioner's Proposed Report and
Recommendation, filed April 21, 1997, at 23 n.1. The closest case,
Jones v. State, 497 So.2d 1268 (Fla. 3rd DCA 1986), review denied,
506 So.2d 1043 (Fla.), cert. denied, 484 U.S. 823 (1987), reversed a
denial of a motion to sever but on factually distinguishable grounds.
Moreover, Jones has been called into question by the Florida Supreme
Court in Crossley v. State, 596 So.2d 447, 450 (Fla. 1992). This
Court has independently reviewed additional Florida case law on
severance and is satisfied that the trial judge did not abuse his
discretion in denying severance on these facts and that therefore
Petitioner was not prejudiced by appellate counsel's failure to raise the
issue on direct appeal. See Gudinas v. State, No. 86070, 1997 WL
166238 (Fla. Apr. 10, 1997) (affirming denial of severance (joinder));-
see also Brown v. State, 502 So.2d 979 (Fla. 1st DCA 1987).

Ground 2(b)- Failure to Raise Denial of
Motion for Judgment of Acquittal on Appeal

Petitioner claims ineffective assistance of appellate counsel for
his failure to raise on direct appeal the trial court's denial of the
motion for a judgment of acquittal based on the insufficiency of
the evidence on the robbery charge. Defense counzi, at the close
of the State's case, argued the motion for judginent of acquittal:

As to Count II (robbery), Your Honor, I'd like
you to really take a hard look at this and ask you if
you would agree with me that while there may have
been an unlawful taking of this police officer's
vehicle, this is not a robbery. She testified that the
defendant approached her, he was frightened, he put
up his hands, he said, “I don’t have anything. I don't
have anything,” and then he acted in taking away her
gun only to protect herself pardon me, protect
himself from being shot by this police officer.

And the important thing about that is there is a
real kind of a splinter dichotomy between the
incident with the wrestling with the gun and the
taking of the car. In other words, the taking of the
car was kind of an afterthought.

What I am saying is I don't think Mr. Bullard
ever put this lady — let me rephrase it, he never took
this vehicle by putting this officer in fear by
assaulting her or by doing anything else that's set
forth in the robbery statute. There's just not that
nexus between the taking of the car and the wrestling
of the gun.

If you remember that she said that Mr. Bullard
put his finger - thumb in the hammer portion of the
gun in order to prevent her from shooting him. It

was kind of a defensive thing.

And I just think the nexus for robbery just isn't
there and I would ask that you grant a judgment of
acquittal as to Count II.

Tr. at 613-14. The trial court denied the motion for judgment of
acquittal, stating the State had shown a prima facie case: :

On the charge of robbery, I deny the motion for
judgment of acquittal on that for the reason I feel as
though the State's made out a prima facie case,
they've proven time, date, place, identity. They've
had testimony of the victim in this case that that [sic]
defendant did use force, violence, assault upon her in
taking her gun, and that she said she was in fear at
the time he took it she was in fear and she was also
surprised. Those are also not necessarily mutual
exclusive emotions, one does not exclude the other
that he took the car, but the reason he took the car is
because she was in fear. She couldn't stop him, that's
what her testimony was. He had a gun he wrestled
from her.

And the fact he may feel as though there were — was
a dichotomy of events, I don’t agree with you
whether there was or not. She was still placed in fear
and he took the motor vehicle from her. And in my
opinion it's not the ordinary standard robbery where
you hold up, give me your money or your life,
nonetheless it meets all the elements of a robbery.
And I don't know that the ~ in any event, I feel as
though the State's made out a prima facie case
sufficient to go to the jury on the charge of armed
robbery.

Id. at 614-15. Further, when the moti-cn was renewed, the trial
court denied the motion, stating there was prima facie evidence
sufficient to submit the case to the jury. Id. at 879.

Petitioner has not shown his appellate counsel's performance was
deficient. Petitioner, at the evidentiary hearing, did not inquire
as to why Mr. Brinkmeyer did not raise this issue on appeal.
Further, Petitioner did not address this issue in his Proposed _
Report and Recommendation. See Petitioner's Proposed

Report and Recommendation at 24-25. This Court is of the
opinion that appellate counsel's failure to raise the denial of the
motion for judgment of acquittal was not deficient because the
trial court did not err in denying the motion. Further, Mr.
Brinkmeyer spoke with Mr. Fallin and raised on direct appeal
the two arguable and meritorious issues suggested by Mr. Fallin.
Thus, this Court is not convinced that Mr. Brinkmeyer was
deficient in not raising this issue on appeal.

Robbery is defined as the taking of money or other property
which may be the subject of larceny from the person or custody
of another when in the course of the taking there is the use of
force, violence, assault, or putting in fear. Fla. Stat. § 812.13(1)
(1989). The trial judge read the following instructions to the

jury:

Before you can find the defendant guilty of robbery,
the State must prove the following four elements
beyond a reasonable doubt: number one, that the
defendant took the motor vehicle from the person or
custody of C.E. Williams; and two, thar the taking
was done by force, violence, assault, or by putting
C.E. Williams in fear; and three, that the property
taken was of some value; and four, that the defendant
took the motor vehicle from the person or custody of
C.E. Williams and at the time of the taking intended
to temporarily or permanently deprive C.E. Williams
of the motor vehicle.

Tr. at 990. :

Under Florida law, “(i)n moving for a judgment of acquittal,
(Petitioner) admits not only the facts stated and the evidence
adduced, but he also admits, for the purpose of the motion,
every conclusion favorable to the State that a fact-finder might
reasonably infer from the evidence.” Lynch v. State, 293 So. 2d
44, 45 (Fla. 1974). The testimony of Officer Williams describes
the taking of the car by Petitioner. From that testimony, the trial
court was correct in denying the motion for judgment of
acquittal, concluding that the jury could reasonably find that
Petitioner had committed a robbery.

On appeal, when faced with an issue of whether the trial court
erred by denying a motion for judgment of acquittal, the
appellate court reviews the evidence to determine if the evidence
is sufficient to create a jury question. See Smithson v. State, 689
So. 2d 1226, 1228 (Fla. 5th DCA 1997). This Court believes
that there was sufficient evidence on the robbery count to
submit the question to the jury, and this issue would not have
had a reasonable probability of success on appeal.

D. Remaining Claims

In ground 3, Petitioner claims the state courts misapplied state
sentencing guidelines. This Court agrees with Respondents’
contention that this ground does not present a violation of
federal constitutional dimension. It is clear that federal habeas
corpus cannot be used to ask federal courts to reapply state
sentencing law and substitute their own sentences for those of
the state courts. In ground 4, Petitioner contends he was denied
a fair trial because of the use of an improper jury instruction on
robbery due to the inclusion of the word “temporarily.” For the
reasons stated in Section B of this Report and Recommendation
and because the improper jury instruction (later found to be
proper) did not so infect the entire trial that the resulting
conviction violated due process, see Estelle v. McGuire, 502 US.
62 (1991), this claim is without merit. Finally, as ground 5,
Petitioner claims an ex post facto violation at resentencing. For

the reasons stated in Section B of this Report and Recomm-
endation, this claim is without merit.

IV. Recommendation

That the Petition for Writ of Habeas Corpus (Doc. # 1) filed
herein be DENIED.

ENTERED at Jacksonville, Florida, this 5th day of June, 1997."

UNITED STATES MAGISTRATE JUDGE

sc 6/4

c: The Honorable Harvey E. Schlesinger,
United States District Judge

John D. Middleton, Esquire

Assistant Attorney General (Menser)
Assistant State Attorney (Taylor)

SOUTHERN REPORTER, 2d SERIES

Eston BULLARD, Jr.,
Appellant,
V.

STATE of Florida, Appellee.
No. BO-61.
District Court of Appeal of
Florida,

First District.

Oct. 28, 1987.
Rehearing Denied
Dec. 8, 1987.

Defendant was convicted by
jury in the Circuit Court,
Duval County, R. Hudson
Olliff, J., of armed robbery
and was sentenced to life
imprisonment with three-year
mandatory minimum, and he
appealed. The District Court
of Appeal, Booth, J., held
that: (1) defendant's habitual
offender status could not be
used as reason for departure
from guidelines
recommendation of 12 to 17
years, and (2) instruction on
_ intent element of robbery,
that State had to prove
defendant's intent to
temporarily or permanently
deprive robbery victim of

property, was not fundamental
error in absence of issue with
respect to that element.

Affirmed in part, reversed in
part, and remanded.

1. Criminal Law - 1203.32

Armed robbery defendant's
habitual offender status could
not be used as reason for

departure from sentencing
guidelines recommendation.

2. Criminal Law ~1038.1(4)

Instruction on intent
element of robbery, that State
had to prove defendant's
intent to temporarily or
permanently deprive robbery
victim of property, was not
fundamental error in absence
of issue with respect to that
element.

Michael E. Allen, Public
Defender, and P. Douglas
Brinkmeyer, Asst. Public
Defender, Tallahassee, for
appellant.

Robert A. Butterworth,

1, Although Snete x Neil , 457 So.2d 481, 487 (Fla. 1984) expressly left open the
question, we assume, without deciding, thar the decision is applicable xo other than
racial groups. Of course, we have already decided thar the holing in Neil applies to
civil cases. See City of Miami u Cornett, 463 s0.2d. 399 (Fla. 3d DCA 1985).

Arty. Gen., and John M.
Koenig, Jr., Asst. Atty. Gen.,
Tallahassee, for appellee.

BOOTH, Judge.

This cause is before us on
appeal from a judgment of
conviction entered on a jury
verdict of guilty of armed
robbery and sentence to life
imprisonment with a three-
year mandatory minimum.
On appeal, the issues are: first,
whether the trial court erred
in using appellant's habitual
offender status as the reason
for departure from the
sentencing guidelines
recommendation of 12 to 17
years; and second, whether the
court's instruction on the
intent element of robbery
constituted fundamental error.
We affirm appellant's
conviction, but are required to
reverse his sentence and
remand for resentencing due
to the decision of the Supreme
Court of Florida in Whitehead
v. State, 498 So.2d 863
(Fla.1987).

The facts are that
Jacksonville Police Officer
Charnita Williams observed
appellant walking along a road
as she responded to a radio
call that there had been a

murder in the area. As the
officer pulled her car over
appellant walked towards the
car with something in his
hand. The officer drew her
gun and got out of the car as
appellant rushed to the rear of
the car. After raising his
hands, appellant grabbed

the officer's wrist and took the
gun, pointing it ar her. As the
officer backed away, appellant
got into the marked patrol car
and drove away.

Later that day, Nassau
County Deputy Sheriff W.G.
Dover identified the stolen
patrol car exceeding the speed
limit and followed it onto a
road where he found the car
abandoned. Appellant was ap-
prehended after being tracked

by a police dog.

[1] The trial court exceeded
the guide-lines
recommendation due to
appellant's qualification as a
habitual offender. This was
error under the holding in
Whitehead supra, wherein the
Supreme Court held that
habitual offender status is not
an adequate reason to depart
from the sentencing

guidelines. In Brown wv. State,
508 So.2d 776 (Fla. lst DCA

_——— oo wn mm pr e- . 5 sees. -.+

1987), this court further
tuled that conviction of a
first-degree felony coupled
with a habitual offender status
does not require a mandatory
sentence of life imprisonment
under Section 775.-
084(4)(a)(1), Florida Statutes.
Therefore, we must reverse

appellant's sentence and
remand for resentencing.

[2] As to the second issue, the
trial court charged the jury
that the state had to prove
appellant's intent to
“temporarily”or “permanently”
deprive the robbery victim of
‘Property. The standard jury
instructions do not include
the word “temporarily,” and
robbery requires the specific
intent to permanently deprive.
Bell v. State, 394 So.2d 979
(Fla.1981). In Hall vu State,
505 So.2d 657 (Fla. 2d DCA
1987), the court found
reversible error in a similar
instruction where the
objection was preserved for
appeal. In the case below,
there was no timely objection.
Therefore, the question is
whether the erroneous
instruction was fundamental
error. See Castor v. State, 365
So.2d 701 (Fla.1978).

In Williams uv. State, 400
So.2d 542 (Fla. 3d DCA
1981), the Third District
Court of Appeal held that the
Omission, without objection,
of the intent element from a
robbery instruction was
harmless and not fundamental
error. Williams states the error
must involve a critical and
disputed issue at trial, holding
(400 So.2d at 544-545):

~ ass While there are several -

broad references to an
affirmative duty of the trial
court to instruct the jury on
the elements of the crime
charged [citations omitted],
the fact is that every such
omission or misstatement
which has actually been found
to constitute

fundamental error concerned
a critical and disputed jury
issue in the case....

.--[W]hen it does not appear
that the subject of the
defective charge was an issue
at the trial, our courts have re-
peatedly declined to reverse in
the absence of timely

objection...

«+ [S]everal courts presented

with the identical issue
involved here have squarely
held, as we do, that the

omission of the intent element
from a robbery instruction is
not fundamental error in the
absence of a real dispute on
that question. Williams, supra,

states the generally recognized
rule that the omission of, or

erroneous instruction with
respect to, a particular
element of an offense is not
reversible and/or fundamental
error if there was no issue
with respect to such element.
See Annot., 169 ALL.R. 315
(1947). In Leary uv. State, 406
So.2d 1222 (Fla. 4th DCA

1981), the court affirmed the :

robbery conviction, holding:
We agree thar failing to
charge on the element of
intent is prejudicial error.
Bell v. State, 394 So.2d 979
(Fla.1981) We do not agree,
however, that it is necessarily
error of fundamental propor-
tions. Where, as here, the
evidence is clear and
undisputed that property
[automobile] is taken from
another by the use of force
and transported to another
locality, the undeniable
inference is that there was an
intention to deprive the owner
of that property. There was
neither evidence nor argument

in this case. Under such
circumstances failure to
instruct on intent does not
amount to a deprivation of
due process. (emphasis added)
The record does not
indicate that appellant
disputed the intent element at
trial below. There was i
evidence that appellant did

not abandon the stolen car

until hours after it was stolen

and only then when a deputy
sheriff in another county
began following him.
Appellant was obviously not
out for a joyride. There was
neither evidence nor argument
raising specific intent as an
issue, and the instruction,
therefore, was not error of a
fundamental nature.
The evidence below, in the
context of the issues presented
by both sides, leaves no doubt
that appellant possessed the
requisite state of mind.
AFFIRMED in part,
REVERSED in part, and
REMANDED for

WENTWORTH, J., and
WILLIS,
BEN C., (Ret.), Associate

Judge, concur.

SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, DC 20543-0001

nee OF Tee cOLeY . . June 28, 1999 ABA COOK eH

John David Middleton
303 State Road: 26
Melrose, FL 32666

RE: Eston Bullard, Jr. v. Harry K. Singletary, Jr., Sec.,
Florida Department of Corrections (U. S. Court of Appeals
for the Eleventh Circuit No. 94-3409) A ee

Dear Mr. Middleton:

Your petition for a writ of certiorari in the above-entitled
case was received from Federal Express on June 21,:1999 and must be
returned as out-of-time.

The time to file this petition began to run on December 31,
1998, when the United States Court of Appeals for the Eleventh
Circuit denied your erg tay for rehearing. Accordingly, the
petition had to be filed in this court on or before March 31,

1999, which was 90 days from the date of denial of: the petition for
rehearing . See Rule 13 of the Rules of this Court and 28 U.S.C.
2101(c). Your initial petition was not received until April 15,

* 1999. 2

Once the time to file a petition in a civil matter has expired,
the Clerk is directed by Rule 13.2 to refuse to file the petition.

Your check in the amount of. $300 is returned as well.

Sincerely,. i
William K. Suter, glerk
By: —

Francis J. Loxgon
(202) 479-302

Enclosures .

ce: Clerk, U.S. Ct. of Appls., 11th Circuit
Richard Doran

AFFIDAVIT
STATE OF FLORIDA

COUNTY OF PUTNAM

JOHN D, MIDDLETON, ESQ.., being by me first duly sworn, deposes and
says as follows:

alae | am an attorney licensed to practice law in the State Florida
and have been since 1976.

2. On August 24, 1994, I filed a Petition for Writ of Habeas Corpus

on behalf of Eston Bullard, Jr. in the Federal District Court, in and for the
Middle District of Florida. The District Court denied the Petition and I filed
a timely appeal to the Eleventh Circuit Court of Appeals.
3. The Eleventh Circuit Court of Appeals issued it per curiam
opinion September 25, 1998 affirming the lower court's order.
| 4. I next filed a timely Motion for Rehearing the Eleventh Circuit
Court of Appeals which was denied by its Order filed December 31, 1998.
The Eleventh Circuit issued its Mandate on January 15, 1999.
5. ~ Petitioner filed a Petition for Writ of Certiorari in the United
States Supreme Court on April 15, 1999. The Clerk of the United States
Supreme Court refused the accept the petition for filing because it was
filed more’ than” 90 ‘days after the December 31, 1998 order denying
rehearing was entered by this Court.
er My office miscalendered the date that tie Petition for Writ of

_Certiorari should have been filed. As a result I rendered ineffective

assistance’ of counsel to Mr. Bullard as he had no input or control as far as

the filing date. As a result Mr. Bullard is being denied the opportunity to

a

—

file a Petition for Certiorari in the United States Supreme Court and to have
these issues heard.

A The issues in the Petition for Certiorari are not frivolous and
have substantial arguable merit.

we

D. MIDDLETON, ESQ.

SWORN TO AND SUBSCRIBED before me this 12th day of April, 2000,
by JOHN D. MIDDLETON, ESQ. who is personally known to me.

Notary =e

Commission Number: iS Pale b- . J

My Commission Expires: - ward? 5 uneamee
ASE ANTE Pla tenes wren & Co

LSORMOTARY Pla Memey Sarwan & Sending Ca.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0953%3A1. Public record. Not legal advice.