United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION TO DENY § 2254
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
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.
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.
and Procedural History
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.
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.
appealed to the state First District Court of Appeal, which
affirmed per curiam without opinion on August 20,
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. 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).
filed a motion for post-conviction relief in the trial court
pursuant to Florida Rule of Criminal Procedure 3.850 on
January 10, 2011. 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).
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.
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;
(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).
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).
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)).
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).
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).
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).
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).
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.
1: Failure to Move to Suppress Evidence from
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.
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.
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.
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.
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.
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
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.
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. 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.
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
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
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.
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.
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.
2: Jury Instructions
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.
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.
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.
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 ...