United States District Court, M.D. Florida, Fort Myers Division
LARRY G. ALDERMAN, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS and ATTORNEY GENERAL, STATE OF FLORIDA, Respondents.
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon a pro se petition
for habeas corpus relief filed pursuant to 28 U.S.C.
§ 2254 by Larry G. Alderman
(“Petitioner”) (Doc. 1, filed June 12,
2014). Petitioner, a prisoner of the Florida Department of
Corrections, attacks the convictions entered by the Twentieth
Judicial Circuit Court in and for Collier County, Florida for
grand theft of a motor vehicle; burglary of a structure; and
possession of a concealed weapon by a convicted felon
(Doc. 1 at 1). Respondent filed a response to the
petition (Doc. 11). Petitioner filed a reply
(Doc. 16), and the petition is now ripe for review.
raises four claims in his petition. Upon due consideration of
the pleadings and the state court record, the Court concludes
that each claim must be denied. Because the petition may be
resolved on the basis of the record, an evidentiary hearing
is not warranted. See Schriro v. Landrigan, 550 U.S.
465, 474 (2007) (if the record refutes the factual
allegations in the petition or otherwise precludes habeas
relief, a district court is not required to hold an
Background and Procedural
March 24, 2009, the State of Florida charged Petitioner with
grand theft of an automobile, in violation of Florida
Statute § 812.014 (count one); burglary of a
structure, in violation of Florida Statute §
810.02 (count two); and possession of a concealed weapon
by a convicted felon, in violation of Florida Statute
§ 790.23 (count three).
to trial, defense counsel (“Counsel”) moved to
dismiss count three on the ground that the “concealed
weapon” at issue was actually a pocket knife (Ex. 2).
After a short hearing was held on the motion, it was denied
because the state had filed a traverse in which in contested
Petitioner's factual assertions regarding the
characterization of the knife (Ex. 5). Counsel then moved for
a bifurcated trial on count three to prevent the jury from
learning of Petitioner's prior convictions (Ex. 6). The
second motion was granted (Ex. 7 at 10-18).
October 22, 2009, a jury found Petitioner guilty as charged
on count one and guilty of the lesser-included offense of
trespass in a structure on count two. He was also found
guilty of carrying a concealed weapon (Ex. 8). On the second
part of the bifurcated trial on count three, Petitioner
waived a jury, and the trial court found him guilty of
carrying a concealed weapon by a convicted felon (Ex. 7 at
408-25). After a sentencing hearing, the trial court
sentenced Petitioner to a total term of fifteen years in
prison as a habitual felony offender (Ex. 9; Ex. 10).
Florida's Second District Court of Appeal affirmed
Petitioner's convictions without a written opinion (Ex.
13); Alderman v. State, 60 So.3d 393 (Fla. 2d DCA
December 1, 2011, Petitioner moved for post-conviction relief
pursuant to Rule 3.850 of the Florida Rules of Criminal
Procedure (“Rule 3.850 motion”) (Ex. 14). The
state filed a response (Ex. 16). On December 5, 2012, the
post-conviction court adopted the state's response and
denied each claim in Petitioner's Rule 3.850 motion (Ex.
18). Florida's Second District Court of Appeal affirmed
without a written opinion (Ex. 20).
signed the instant federal habeas petition on June 9, 2014
Governing Legal Principles
Standard of Review Under the Antiterrorism Effective Death
Penalty Act (“AEDPA”)
the AEDPA, federal habeas relief may not be granted regarding
a claim adjudicated on the merits in state court 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). This standard is both mandatory and
difficult to meet. White v. Woodall, 134 S.Ct. 1697,
1702 (2014). A state court's summary rejection of a
claim, even without explanation, qualifies as an adjudication
on the merits which warrants deference. Ferguson v.
Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Notably,
a state court's violation of state law is not
sufficient to show that a petitioner is in custody in
violation of the “Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2254(a);
Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
established federal law” consists of the governing
legal principles, rather than the dicta, set forth
in the decisions of the United States Supreme Court at the
time the state court issued its decision. White, 134
S.Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74
(2006) (citing Williams v. Taylor, 529 U.S. 362, 412
(2000)). That said, the Supreme Court has also explained that
“the lack of a Supreme Court decision on nearly
identical facts does not by itself mean that there is no
clearly established federal law, since ‘a general
standard' from [the Supreme Court's] cases can supply
such law.” Marshall v. Rodgers, 133 S.Ct.
1446, 1449 (2013) (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). State courts “must
reasonably apply the rules ‘squarely established'
by [the Supreme] Court's holdings to the facts of each
case.” White, 134 S.Ct. at 1706 (quoting
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).
clearly established federal law is on point, habeas relief is
only appropriate if the state court decision was
“contrary to, or an unreasonable application of,
” that federal law. 29 U.S.C. § 2254(d)(1). A
decision is “contrary to” clearly established
federal law if the state court either: (1) applied a rule
that contradicts the governing law set forth by Supreme Court
case law; or (2) reached a different result from the Supreme
Court when faced with materially indistinguishable facts.
Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010);
Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
court decision involves an “unreasonable
application” of the Supreme Court's precedents if
the state court correctly identifies the governing legal
principle, but applies it to the facts of the
petitioner's case in an objectively unreasonable manner,
Brown v. Payton, 544 U.S. 133, 134 (2005);
Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir.
2000), or “if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a
new context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should
apply.” Bottoson, 234 F.3d at 531 (quoting
Williams, 529 U.S. at 406). The petitioner must show
that the state court's ruling was “so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” White, 134 S.Ct. at
1702 (quoting Harrington v. Richter, 562 U.S. 86
(2011)). Moreover, “it is not an unreasonable
application of clearly established Federal law for a state
court to decline to apply a specific legal rule that has not
been squarely established by [the Supreme] Court.”
Knowles, 556 U.S. at 122.
when reviewing a claim under § 2254(d), a federal court
must remember any “determination of a factual issue
made by a State court shall be presumed to be correct[,
]” and the petitioner bears “the burden of
rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. §
2254(e)(1); Burt v. Titlow, 134 S.Ct. 10, 15
(2013) (“[A] state-court factual determination is not
unreasonable merely because the federal habeas court would
have reached a different conclusion in the first
instance.”) (quoting Wood v. Allen, 558 U.S.
290, 293 (2010)).
Ineffective Assistance of Counsel
Strickland v. Washington, the Supreme Court
established a two-part test for determining whether a
convicted person is entitled to relief on the ground that his
counsel rendered ineffective assistance. 466 U.S. 668,
687-88 (1984). A petitioner must establish that
counsel's performance was deficient and fell below an
objective standard of reasonableness and that the deficient
performance prejudiced the defense. Id. This is a
“doubly deferential” standard of review that
gives both the state court and the petitioner's attorney
the benefit of the doubt. Burt, 134 S.Ct. at 13
(citing Cullen v. Pinholster, 131 S.Ct. 1388, 1403
focus of inquiry under Strickland's performance
prong is “reasonableness under prevailing professional
norms.” Strickland, 466 U.S. at 688-89. In
reviewing counsel's performance, a court must adhere to a
strong presumption that “counsel's conduct falls
within the wide range of reasonable professional
assistance.” Id. at 689. The petitioner bears
the heavy burden to “prove, by a preponderance of the
evidence, that counsel's performance was
unreasonable[.]” Jones v. Campbell, 436 F.3d
1285, 1293 (11th Cir. 2006). A court must “judge the
reasonableness of counsel's conduct on the facts of the
particular case, viewed as of the time of counsel's
conduct, ” applying a “highly deferential”
level of judicial scrutiny. Roe v. Flores-Ortega,
528 U.S. 470, 477 (2000) (quoting Strickland, 466
U.S. at 690).
prejudice prong of the Strickland standard,
Petitioner's burden to demonstrate prejudice is high.
Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir.
2002). Prejudice “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, 466 U.S. at 687. That is, “[t]he
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Id. at 694. A reasonable probability is “a
probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
response to Petitioner's Rule 3.850 motion, the state
briefly summarized the facts ...