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Pappas v. Jones

United States District Court, N.D. Florida, Pensacola Division

March 21, 2017

GREGORY PAPPAS, Petitioner,
v.
JULIE L. JONES, Secretary, Department of Corrections, [1]Respondent.

          REPORT AND RECOMMENDATION TO DENY § 2254 PETITION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.

         On October 20, 2014, Petitioner, Gregory Pappas, a prisoner in the custody of the Florida Department of Corrections, proceeding through counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Pursuant to orders of this Court, Petitioner filed a Second Amended Petition on December 18, 2014, ECF No. 8, and on March 10, 2015, a third amended petition with memorandum. ECF Nos. 12, 13, 14. Respondent filed an answer with exhibits on December 7, 2015. ECF Nos. 25, 27. Petitioner filed a reply with exhibits on January 7, 2016. ECF No. 29.

         The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all the issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this case. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons set forth herein, the pleadings and attachments before the Court show that Petitioner is not entitled to federal habeas relief and this amended § 2254 petition should be denied.

         Background and Procedural History

         Petitioner was charged by Amended Information on July 5, 2007, in the circuit court in and for Escambia County, Florida, with Count 1, shooting into an occupied vehicle on or about February 28, 2007, in violation of section 790.19, Florida Statutes; and Count 2, aggravated assault by threat with a deadly weapon, without intent to kill, by firing a flare gun at an occupied vehicle, and at the time possessing a firearm, a flare gun, in violation of sections 784.021(1)(a) and 775.087(2), Florida Statutes. Ex. A at 3.[2]

         Jury trial was held on May 27-28, 2008, at which Petitioner did not testify. Ex. D, E. The jury found Petitioner guilty as charged, with a special finding that he used, carried, or actually possessed a firearm and that he discharged it during the commission of the aggravated assault. Ex. C at 447. Judgment and sentence were entered on May 28, 2008, and Petitioner was sentenced on Count 2 to a minimum mandatory term of twenty years in prison due to the finding that Petitioner used, carried or actually possessed a firearm and discharged a firearm. Petitioner was sentenced to a concurrent term of five years in prison for Count 1, with credit for time served of two days. Ex. C at 448-56.

         Petitioner appealed to the state First District Court of Appeal, which affirmed per curiam without opinion on August 20, 2009.[3] Ex. F, I. See Pappas v. State, 14 So.3d 1008 (Fla. 1st DCA 2009) (table). Petitioner's motion to correct sentencing error filed on April 6, 2010, was dismissed as untimely and the appeal from that order was voluntarily dismissed on July 23, 2010. Ex. K. Petitioner then filed, on July 14, 2010, a petition for writ of habeas corpus in the state First District Court of Appeal alleging ineffective assistance of appellate counsel.[4] Ex. L. After response from the State and reply by Petitioner, the petition alleging ineffective assistance of appellate counsel was denied on the merits. Ex. Q. See Pappas v. State, 51 So.3d 489 (Fla. 1st DCA 2010) (mem).

         Petitioner filed a motion for post-conviction relief in the trial court pursuant to Florida Rule of Criminal Procedure 3.850 on January 10, 2011.[5] Ex. T at 25-56. After ordering the State to respond on several claims, the trial court granted an evidentiary hearing on claims (2), (3), (4) and (12). The hearing was held on March 12, 2012, at which both trial counsel and Petitioner testified. Ex. T at 95-181. The trial court denied the post-conviction claims on August 7, 2012. Ex. U at 225-396. Petitioner appealed to the state First District Court of Appeal, which affirmed per curiam without opinion on June 17, 2014. Ex. CC. Rehearing was denied on August 11, 2014, and the mandate was issued on August 27, 2014. Ex. FF. See Pappas v. State, 145 So.3d 836 (Fla. 1st DCA 2014) (table).

         Petitioner filed his third amended petition for writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254 raising the following grounds for relief:

(1) Petitioner was denied effective assistance of trial counsel when his attorney failed to move to suppress evidence from a search of Petitioner's truck after police illegally entered Petitioner's garage to feel the truck's hood. ECF No. 13 at 5.
(2) Petitioner was denied effective assistance of trial counsel when counsel failed to request a jury instruction mirroring the statutory definitions of “firearm” and “destructive device.” ECF No. 13 at 7.
(3) Petitioner was denied effective assistance of appellate counsel when his attorney failed to raise the trial court's denial of a “deadly weapon” alternative to a “firearm” on the aggravated assault verdict form, denying due process and the possibility of a jury pardon, and prejudicing Petitioner because the appellate court would have reversed based on the confusing jury verdict form omitting a lesser included offense. ECF No. 13 at 9; ECF No. 14 at 13.
(4) Petitioner was denied effective assistance of appellate counsel when counsel failed to raise the trial court's refusal to allow Petitioner's expert to state an opinion that a flare is not an “explosive” or “firearm” under Federal law. ECF No. 13 at 10; ECF No. 14 at 16.
(5) Trial counsel rendered ineffective assistance by failing to move to suppress the contaminated or destroyed exculpatory evidence consisting of a flare gun that Officer Fortenberry discharged before placing into evidence. ECF No. 13 at 12; ECF No. 14 at 17.

         Analysis

         Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for persons in state custody only under certain specified circumstances. Section 2254(d) provides in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011).

         “Under the ‘contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring). “Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413 (O'Connor, J., concurring).

         The Supreme Court has explained that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The Court stated:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. . . . It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further. Section 2254(d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems, ” not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Id. at 102-03 (citation omitted). The federal court employs a “ ‘highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.' ” Pinholster, 563 U.S. at 181 (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).

         “Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b). The Petitioner must have apprised the state court of the federal constitutional claim, not just the underlying facts of the claim or a “somewhat similar state-law claim.” Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (quoting Anderson v. Harless, 459 U.S. 4, 5-6 (1982)). In order for remedies to be exhausted, “the petitioner must have given the state courts a ‘meaningful opportunity' to address his federal claim.” Preston v. Secretary, Florida Dep't of Corr., 785 F.3d 449, 457 (11th Cir. 2015) (quoting McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005)). Petitioner must “fairly present” his claim in each appropriate state court in order to alert the state courts to the federal nature of the claim. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 275 (1971).

         In order to obtain review where a claim is unexhausted and, thus, procedurally defaulted, the Petitioner must show cause for the default and prejudice resulting therefrom or a fundamental miscarriage of justice. Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993). In order to demonstrate cause, Petitioner must show that an “external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim.” McCleskey v. Zant, 499 U.S. 467, 497 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). A federal court may grant a habeas petition on a procedurally defaulted claim without a showing of cause or prejudice if necessary to correct a fundamental miscarriage of justice. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). In order to satisfy the miscarriage of justice exception, the Petitioner must show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting Carrier, 477 U.S. at 496).

         This Court's review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at 181. The state court's factual findings are entitled to a presumption of correctness and to rebut that presumption, the Petitioner must show by clear and convincing evidence that the state court determinations are not fairly supported by the record. See 28 U.S.C. § 2254(e)(1).

         For claims of ineffective assistance of counsel, the United States Supreme Court has adopted a two-part test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient performance, a “defendant must show that counsel's performance fell below an objective standard of reasonableness.” Id. at 688. Counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Burt v. Titlow, 134 S.Ct. 10, 17 (2013) (quoting Strickland, 466 U.S. at 690). Federal courts are to afford “both the state court and the defense attorney the benefit of the doubt.” Titlow, 134 S.Ct. at 13. The reasonableness of counsel's conduct must be viewed as of the time of counsel's conduct. See Maryland v. Kulbicki, 136 S.Ct. 2, 4 (2015) (citing Strickland, 466 U.S. at 690).

         To demonstrate prejudice under Strickland, a 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.” 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. For this Court's purposes, “[t]he question ‘is not whether a federal court believes the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable-a substantially higher threshold.' ” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Mirzayance, 556 U.S. at 123. It is a “doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.” Id.

         Ground 1: Failure to Move to Suppress Evidence from Truck

         Petitioner contends he was denied effective assistance of trial counsel when his attorney failed to move to suppress evidence seized from his truck after police entered Petitioner's garage to feel the truck's hood. ECF No. 13 at 5. This claim was raised in his Rule 3.850 motion and denied by the post-conviction court. Ex. U at 228.

         The police arrived at Petitioner's home after a report that he had fired a flare gun during an apparent road rage incident. Law enforcement received a 911 call from the victim Susan Elizabeth Langston reporting that when she turned on to Bayou Boulevard from Lloyd Street in Escambia County, she noticed a vehicle directly behind her flashing its lights. Ex. A at 4 (police report). She reported that when the vehicle passed her on the left, the driver, later identified as Petitioner, gave her a rude hand signal, which she returned. Langston reported that Petitioner pulled his vehicle to the shoulder and as she drove past, he stuck his arm out the window and was holding what appeared to be an orange flare gun, which was in the shape of an actual gun. The victim reported that Petitioner fired the flare gun and a flare was projected over her car in which her seven-year-old daughter was a passenger.

         Langston managed to obtain the vehicle tag number, and law enforcement was dispatched to Petitioner's residence where the vehicle with that tag number was parked in the open garage. The arrest report stated that the vehicle, which matched the description and tag number given by the victim, “had a warm hood.” Ex. A at 4. Petitioner was arrested and, the report indicates, “[a] search of Pappas' vehicle, incident to arrest, revealed an orange flare gun located in an open compartment on the driver's side door. . . . The flare gun was seized and turned in as evidence.” Ex. A at 5.

         The post-conviction court granted an evidentiary hearing on this claim that trial counsel was ineffective for failing to move to suppress the search of Petitioner's vehicle and the seizure of the flare gun. At the hearing, held March 12, 2012, both Petitioner and his trial counsel testified. The court also reviewed transcripts of the testimony of two officers in the case and the trial transcript. Ex. T at 95-98. Petitioner testified that when the first officer arrived at his residence, he met him outside in front of the open garage. Petitioner's truck was parked inside. Petitioner testified that he was never asked for permission and never gave officers permission to enter his home, his curtilage, or his garage. Ex. T at 104-05.

         Petitioner testified that a second officer, Officer Fortenberry, drove up in his driveway and exited her vehicle, screaming at him that “the lady had a baby in the car.” Ex. T at 107. Petitioner said that Officer Fortenberry then entered the garage without asking permission and touched the hood of the truck, which was facing forward inside the garage. Ex. T at 107-110. Petitioner said he refused to answer any questions posed by the officers and he asked for a lawyer, but they continued to ask him questions. Ex. T at 112-13. He testified that he requested they not go into the truck, and once they did, he was arrested and the flare gun was seized. Ex. T at 114.

         At the Rule 3.850 hearing, Petitioner testified that his trial counsel talked to him before trial and advised him about trial strategy. Ex. T at 116. According to Petitioner, he told his trial counsel about how the officers entered the garage without his consent and went into his truck to seize a flare gun, but that his attorney never discussed the possibility of suppression of the evidence with him. Ex. T at 128.

         Petitioner's trial counsel testified at the evidentiary hearing that he and Petitioner discussed the circumstances of the officers entering his garage and that he explored the possibility of moving to suppress. Ex. T at 147. He said he deposed the officers with that possibility in mind and he provided the copies of the deposition transcripts to Petitioner to review. He recalled that it was “after the flare had been found from - - based on the consent, they got the flare.” Ex. T at 148. He testified that Petitioner never told him he did not give permission for officers to go into the truck and that based on his conversations with Petitioner, “it was clear to me there was no motion to suppress available.” Ex. T at 148.

         Trial counsel was cross-examined on the issue of whether, when he deposed Officer Fortenberry, and she said she went into the garage to check the truck, counsel should have seen that a motion to suppress was necessary. Ex. T at 166. Counsel did not respond directly but testified that he did discuss the possibility of a suppression motion with Petitioner. Counsel explained: “There was more than a thorough discussion with my client. We talked about it because it was hard to make him understand things sometimes, so I went over it with him numerous times.” Ex. T at 173. Counsel also testified that he recalled the depositions indicating that entry into the garage and touching the hood of the car came after Petitioner gave permission to Officer Briarton to search the truck. Ex. T at 170. However, Officer Fortenberry testified in her deposition, which the post-conviction court reviewed, that after she arrived at Petitioner's residence, he was read his Miranda rights by Officer Briarton.[6] Ex. U (Attachment 6 - deposition of Fortenberry at transcript page 7). She said she then walked into the garage and felt the hood of the truck, which was warm. Ex. U (Attachment 6 - deposition of Fortenberry at transcript page 8). She exited the garage and asked Petitioner if he would mind if she looked look in the truck, to which he responded “[N]o, it's in the door, the driver's side door.” Id. at page 11. Fortenberry further testified in deposition that after she retrieved the flare gun from the truck Petitioner said he did not want the officers in his truck. Id. Officer Briarton also testified in his deposition, which was reviewed by the post-conviction court, that the truck was searched only after Petitioner consented. Ex. U (Attachment 6 - deposition of Briarton at page 12). At the jury trial, Officer Briarton testified that Petitioner gave the officers consent to search the truck. Ex. D at 151. Similarly, Officer Fortenberry testified at trial that she asked Petitioner for consent to search the truck and he did consent. Ex. D at 155.

         Petitioner's claim that trial counsel should have moved to suppress the evidence of the flare gun because any consent to search the truck was tainted by Officer Fortenberry's warrantless entry into the garage to feel the truck hood was denied by the post-conviction court. Ex. U at 228-33. The court found trial counsel's testimony to be credible and Petitioner's testimony to be less than credible. Ex. U at 229. The court also found that before consent to search was given, Officer Fortenberry briefly entered the open garage and felt the truck hood. Ex. U at 230. The court stated in the order:

Assuming that it was an illegal search when Officer Fortenberry entered the garage and touched the hood of Defendant's truck, the Court does not find Defendant's subsequent consent to be tainted. Even if it is considered “presumptively tainted, ” and even if the Court could find some merit in a motion to suppress, the Court cannot find that counsel was deficient. . . .
An attorney's strategic decision does not “constitute ineffective assistance if alternate courses of action have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct.”. . .
Mr. Thomas [trial counsel] testified at the evidentiary hearing that the first thing he explored in this case was a motion to suppress, and that he asked questions specifically in depositions that would help him to determine if such a motion would be meritorious. Mr. Thomas reviewed the specific facts with Defendant at length, researched legal authority, “determined that a motion to suppress would be fruitless, and decided that the best trial strategy would be to “attack the constitutionality of the way the State was using the statute to include a flare gun as a firearm.” The Court finds Mr. Thomas's trial strategy to be well within the norms of reasonable professional conduct. . . .
Finally, and importantly, the Court would note that even if the deficiency prong of the Strickland test were presumed to be satisfied, Defendant cannot demonstrate that he was prejudiced by any inaction by counsel. Even if the flare gun had been successfully suppressed at trial, it is not likely that the outcome of the proceedings would have been different. The victim testified at trial that Defendant shot a flare gun at her. She testified further that she is familiar with flare guns. She also testified that she saw Defendant's face during the incident and she identified Defendant in the courtroom. After the incident, Defendant drove away and she recorded his license tag number. . . .

Ex. U at 231-232 (citations and footnotes omitted). The court also noted that counsel filed voluminous pretrial motions in pursuance of his strategy to challenge the constitutionality of the statute. Ex. U at 232, n.15. Denial of this claim was affirmed by the state First District Court of Appeal. Ex. CC. These state court adjudications are entitled to AEDPA deference.

         In light of the testimony presented at the evidentiary hearing concerning counsel's trial strategy and investigation into the possibility of a successful motion to suppress, and in light of the trial testimony, the post-conviction court's credibility determinations and conclusions are not objectively unreasonable. Under § 2254(d), federal courts have “no license to determine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.” Marshall v. Lonberger, 459 U.S. 422, 434 (1983). “[D]etermining the credibility of witnesses is the province and function of the state courts, not the federal court engaging in habeas review.” Consalvo v. Sec'y, Dep't of Corr., 664 F.3d 842, 845 (11th Cir. 2011). Credibility and demeanor of a witness are considered to be a questions of fact entitled to a presumption of correctness under the AEDPA and the Petitioner has the burden to overcome the presumption by clear and convincing evidence. Id. at 845.

         Neither deficiency nor prejudice under the standards required by Strickland have been established. The state courts' adjudications have not been shown to be unreasonable in light of the record in this case. As noted earlier, “[t]he question ‘is not whether a federal court believes the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable-a substantially higher threshold.' ” Mirzayance, 556 U.S. at 123 (quoting Schriro, 550 U.S. at 473). As the post-conviction court found, even if the flare gun had been suppressed, Petitioner has not demonstrated as required by Strickland that but for counsel's alleged error, there is a reasonable probability that the result of the trial would have been different. The victims' testimony identifying Petitioner and the truck he was driving, and her description of the device he fired over her car as an orange, pistol-shaped flare gun, would have been sufficient for the jury to find Petitioner guilty.

         Petitioner has failed to demonstrate that the state courts' adjudication of this claim resulted in a decision that is contrary to, or involving an unreasonable application of, Strickland or any other federal law, as determined by the Supreme Court. Nor has Petitioner shown that the adjudication rests on an unreasonable determination of fact in light of the state court record. Habeas relief on Ground 1 should be denied.

         Ground 2: Jury Instructions

         Petitioner contends in Ground 2 that he was denied effective assistance of trial counsel when counsel failed to request a jury instruction mirroring the definitions of “firearm” and “destructive device” under section 775.087(2), Florida Statutes, and by reference therein, section 790.001, Florida Statutes. ECF No. 13 at 7. This claim was raised in Petitioner's post-conviction motion and denied by the trial court. Ex. U at 227. The state First District Court of Appeal affirmed. Ex. CC.

         Count 2 of the Amended Information alleged that Petitioner committed an aggravated assault and in the course of that offense, actually possessed and discharged a firearm, to-wit: a flare gun, in violation of sections 784.021(1)(a) and 775.087(2), Florida Statutes. Ex. A at 3. Petitioner contends that prior to the start of the jury trial, the court removed the definition of “destructive device” from the jury instructions as inapplicable, and shortened the definition of “firearm, ” all without objection by Petitioner's counsel. ECF No. 11-2 at 10. Petitioner argues that the definition of “destructive device” is an “exculpatory definition” because a flare gun does not meet the statutory definition of a “destructive device, ” and failure to have the jury instructed on it was a violation of due process. Id. He further contends that the shorter version of the definition of “firearm” favored the State. Id. at 10.

         The Respondent contends that the definition of “destructive device” was not necessary because it was irrelevant to the charges, which alleged possession and discharge of a “firearm.” ECF No. 25 at 31. Respondent also contends that the revised version of the statutory definition of “firearm” given to the jury was simply a more concise version of the definition and only omitted irrelevant parts of that statutory definition. Id.

         The post-conviction court denied the claim, finding that the instruction given to the jury-“A firearm is legally defined as any weapon which will, is designed to, or may be readily converted to: one, expel a projectile; two, by action of an explosive”-was a proper instruction based on the charges filed and the facts of ...


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