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Wendell S. Anglin v. Secretary

November 2, 2011

WENDELL S. ANGLIN, PETITIONER,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, RESPONDENT.



ORDER

Before this Court is Petitioner Wendell S. Anglin's pro se timely-filed 28 U.S.C. § 2254 petition for writ of habeas corpus.Anglin challenges his conviction and sentence entered by the Circuit Court for the Tenth Judicial Circuit, Polk County, Florida.

A review of the record demonstrates that, for the following reasons, the petition must be denied.

PROCEDURAL HISTORY

On June 17, 2005, the State of Florida charged Anglin by Information with two counts of aggravated assault on a law enforcement officer. The offense was alleged to have occurred on May 25, 2005. Prior to trial, the State amended the Information twice to reflect the charges as two counts of attempted murder in the second degree. Following trial, the jury found Anglin guilty of two counts of aggravated assault with a deadly weapon, lesser-included offenses to the second degree murder charges. On December 8, 2005, the state trial court found that Anglin qualified as both a prison releasee reofferder and a habitual offender. The state trial court sentenced Anglin to ten years incarceration on each count. The sentences run concurrently.

RELEVANT EVENTS AT ANGLIN'S TRIAL

At trial, a video tape was played for the jury depicting an incident which occurred at a Lowe's home/hardware store. Two detectives were conducting an investigation of fraud. The subject of the investigation was Alesia Neely, Anglin's girlfriend. In the tape, Anglin was seen driving his vehicle toward the detectives without "slowing down." (Ex. 10, R 137-170). Post-arrest and Miranda advisement, Anglin admitted to law enforcement that he was the driver of the vehicle and that he drove his vehicle at the named victims. Anglin admitted he stopped when these victim law enforcement officers displayed their badges. (Ex. 10, R 171- 181).

While Anglin was in jail awaiting trial, Anglin's telephone conversation with an unidentified woman was recorded. The recording was played for the jury. (Ex. 10, R187-198). In this recording, Anglin did most of the talking, which included his own account of what happened:

The guy was sitting back there looking over video tapes of me and her writing checks at Lowe's. He work [sic] the security door, and I'll be God damn if she ain't standing in the motherfucking line? He's sitting there watching video of us writing checks there the week prior on his security surveillance camera, and there she is standing in line. You know what I'm saying? I know --(inaudible) -- security cameras. And she was standing in line. And, you know, I called her on two-way, and I could tell by her voice something was wrong. You know what I'm saying? So I hauled ass, and I was up there. I get in the parking lot. Well, there's two fucking people standing there with her, you know, I didn't know if they were managers, police, what the fuck they were. So I tried to run their fucking ass over. (Ex. 10, R 192-193).

Direct Appeal

Anglin filed a Notice of Appeal on January 24, 2006, raising two issues: 1) whether the trial court abused its discretion in failing to grant a motion for judgment of acquittal; and 2) whether the trial court erred in denying a motion in limine designed to "keep out" Anglin's then pending charges. In his reply brief, Anglin added a third issue: whether the trial court abused its discretion in denying Anglin's motion for mistrial when the taped jail telephone call revealed prejudicial information to the jury. (Ex. 6). The state district court of appeal per curiam affirmed Anglin's conviction and sentence on January 3, 2007. Anglin v. State, 946 So.2d 1074 (Fla. 2d DCA 2007)(table).

Rule 3.850 Motion for Post-conviction Relief

On June 5, 2007, Anglin filed a pro se rule 3.850 motion for post-conviction relief alleging ineffective assistance of trial counsel based on six separate grounds. (Ex. 9). On October 2, 2007, the state trial court summarily denied grounds one, two, and four, but ordered the State to respond to grounds three, five, and six. (Ex. 10). Following the State's response (Ex.11), the state trial court denied grounds five and six and granted an evidentiary hearing on ground three. (Ex. 12). The evidentiary hearing took place July 28, 2008. (Ex. 13). Following the hearing, the state trial court denied ground three. (Ex. 14).

Anglin appealed the denial of his rule 3.850 motion. On January 29, 2010, the state district court of appeal per curiam affirmed the denial of post-conviction relief. Anglin v. State, 27 So.3d 664 (Fla. 2d DCA 2010)(table). (Ex. 18).

Anglin filed a petition for writ of habeas corpus in the state district court of appeal. That court denied the petition on June 14, 2007. Anglin v. State, 959 So.2d 260 (Fla. 2d DCA 2007)(table). (Ex. 19).

Anglin then filed the present 28 U.S.C. § 2254 petition for writ of habeas corpus, raising the same six grounds of ineffective assistance of counsel he raised in his rule 3.850 motion for post-conviction relief.

STANDARDS OF REVIEW

The AEDPA Standard

Under 28 U.S.C. § 2254(d) and (e) as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), this court's review of the state court's factual findings must be highly deferential. Such findings are presumed to be correct unless rebutted by clear and convincing evidence. Similarly, the state courts' resolutions of issues of law-including constitutional issues-must be accepted unless they are found to be "contrary to" clearly established precedent of the Supreme Court of the United States or involved an "unreasonable application" of such precedent. Williams v. Taylor, 529 U.S. 362 (2000). Indeed, it is not enough that the federal courts believe that the state court was wrong; it must be demonstrated that the state court decision was "objectively unreasonable." Id. Breedlove v. Moore, 279 F.3d 952 (11th Cir. 2002).

Ineffective Assistance of Counsel Standard

To have a facially valid claim in alleging ineffective assistance of counsel, a Petitioner must meet the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland's two-part test requires a Petitioner to demonstrate that counsel's performance was deficient and "there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. However, if ...


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