Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Collins v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Tampa Division

March 27, 2017

JERMAINE COLLINS, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

          ORDER

          Charlene Edwards Honeywell ' United States District Judge

         Petitioner Jermaine Collins, a Florida prisoner proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Dkt. 1.) He challenges a judgment entered by the Circuit Court for the Sixth Judicial Circuit, in and for Pinellas County, Florida, in 2007. Respondent agrees that the petition is timely filed. (Dkts. 10, 11.) Collins filed a reply. (Dkt. 22.) Upon review, the petition must be denied.

         PROCEDURAL HISTORY

         A jury convicted Collins of one count of attempted robbery with a firearm. (Dkt. 16, Ex. 1A, p. 46.) The trial court imposed a sentence of thirty years in prison as a habitual felony offender. (Dkt. 16, Ex. 1C, p. 229.) The state appellate court per curiam affirmed Collins' conviction and sentence. (Dkt. 16, Ex. 2, Opinion.) Collins filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which the state court summarily denied. (Dkt. 16, Exs. 3A, 3C.) The state appellate court per curiam affirmed the order of denial. Collins v. State, 124 So.3d 923 (Fla. 2d DCA 2013) (table).

         FACTS[1]

         On the afternoon of September 21, 2006, Cassandra Frank was driving in St. Petersburg, Florida, to meet a friend. Frank stopped at the Shady Side Market to get drinks for her two young children, who were in the car with her. Inside the store, a man in a distinctive striped shirt jokingly attempted to take her items at the counter but placed them back in front of her. After Frank left the store, it took several minutes to secure her children in their car seats. When she got into the driver's seat, a man she did not know jumped in the passenger's seat and asked her for a ride. She turned down his request. The man from the store, now with the striped shirt wrapped around his head, appeared at the passenger's side window with a silver firearm and demanded money from Frank and the other man. Frank threw the only cash she had, a $5 bill, toward the passenger's window; it landed in the man's lap.

         Frank accelerated, and the car's movement pushed the gunman away. The other man, still inside the car, moved his leg over Frank's legs and attempted to reach the brake pedal. He managed to pull the keys from the ignition. As he exited the car, he wiped down the vehicle with the inside of his shirt. After he ran away, Frank retrieved the keys and drove to her friend's location.

         During the subsequent investigation, police developed Jermaine Collins and Willie Moise as suspects. When Detective Allyn Stone showed Frank photo packs containing their photographs, Frank immediately identified Collins as the gunman and Moise as the man who entered her car.

         On October 9, 2006, police came into contact with Collins and Moise near the Shady Side Market. Officer Webb took Collins into custody. Officer Kurt Bradshaw observed Moise flee after taking a silver revolver from a vehicle. Following a pursuit, Moise was taken into custody. Frank testified that she could not distinguish the revolver recovered from Moise's possession from the one used in the attempted robbery. In particular, she recognized an engraving on the revolver's barrel.

         STANDARD OF REVIEW

         The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Habeas relief can only be granted if a petitioner is in custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d), which sets forth a highly deferential standard for federal court review of a state court adjudication, states:

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.

         In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied-the state-court adjudication resulted in a decision that (1) “was contrary to . . . clearly established Federal Law, as determined by the Supreme Court of the United States” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.” 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. 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.

         “The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable . . . an unreasonable application is different from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694 (2002). “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.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the objective reasonableness, not the correctness per se, of the state court decision that [the federal court is] to decide.”). The phrase “clearly established Federal law” encompasses only the holdings of the United States Supreme Court “as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412.

         The purpose of federal review is not to re-try the case. “The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Cone, 535 U.S. at 693. In other words, “AEDPA prevents defendants-and federal courts-from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult to meet, ' . . . and ‘highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt' . . . .”) (citations omitted).

         The state appellate court affirmed the denial of Collins' postconviction motion in a per curiam decision without a written opinion. This decision warrants deference under Section 2254(d)(1) because “the summary nature of a state court's decision does not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom. Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at 99 (“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.”).

         Review of the state court decision is limited to the record that was before the state court. Pinholster, 563 U.S. at 181-82. Collins bears the burden of overcoming by clear and convincing evidence a state court factual determination. “[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir. 2001).

         INEFFECTIVE ASSISTANCE OF COUNSEL

         Claims of ineffective assistance are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). A petitioner must show both deficient performance by counsel and resulting prejudice. Demonstrating deficient performance “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. Deficient performance is established if, “in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance.” Id. at 690. However, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. Additionally, “a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Id.

         Collins must demonstrate that counsel's alleged error prejudiced the defense because “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691-92. To show prejudice, a petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. A petitioner cannot meet his burden merely by showing that counsel's choices were unsuccessful:

The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial . . . . We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992).

         Sustaining a claim of ineffective assistance of counsel on federal habeas review is difficult because “[t]he standards created by Strickland and § 2254(d) are both ‘highly deferential, ' and when the two apply in tandem, review is ‘doubly' so.” Richter, 562 U.S. at 105 (citations omitted). See also Pinholster, 563 U.S. at 202 (a petitioner must overcome the “‘doubly deferential' standard of Strickland and AEDPA.”). If a claim of ineffective assistance of counsel can be resolved through one of the Strickland test's two prongs, the other prong need not be considered. Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.”)

         DISCUSSION

         Ground One

         Collins claims that the state trial court lacked subject matter jurisdiction over his case, resulting in violations of his rights to due process and equal protection. He claims that the court had no jurisdiction because the charging document was invalid. Specifically, he asserts that the charging document was not supported by sworn testimony of a “material witness.” To raise a cognizable federal habeas claim alleging a defective state court charging document, the document must be so defective that it deprives the court of jurisdiction. See DeBenedictis v. Wainwright, 674 F.2d 841, 842 (11th Cir. 1982) (“The sufficiency of a state indictment or information is not properly the subject of federal habeas corpus relief unless the indictment or information is so deficient that the convicting court is deprived of jurisdiction.”).

         Collins has not made this showing. Florida law provides that state circuit courts have jurisdiction over felony cases. § 26.012(2)(d), Fla. Stat. Additionally, the amended information filed in Collins' case set forth the elements of attempted robbery with a firearm as provided in Florida law. (Dkt. 1A, pp. 26-27.) See § 812.13, Fla. Stat. (defining robbery and addressing use of firearm or other deadly weapon). The amended information also contains the required oath of the Assistant State Attorney stating his “good faith in instituting this prosecution” and certifying that “he has received testimony under oath from the material witness or witnesses for the offense.” (Id.) See Fla. R. Crim. P. 3.140(g) (setting forth requirements of the oath). Collins has not established that the testimony presented to the prosecutor was insufficient to lawfully support the charging document. Therefore, he does not show any defect in the charging document that deprived the state court of jurisdiction so as to raise a cognizable claim. Ground One warrants no relief.

         Ground Two

         Collins asserts that trial counsel was ineffective for failing to investigate and call two witnesses. Specifically, Collins asserts that counsel should have called “Mike, ” the owner of the Shady Side Market, and Mohamed Youssouf, [2] the cashier, “to prove that [Collins] never entered the store on this particular day.” (Dkt. 1, p. 25.)

         Collins claimed in his postconviction motion that Mike would have testified that he told Detective Stone he did not see Collins in the store that afternoon, that an incident at the counter that day did not involve Collins, and that he gave Stone the surveillance video. Collins presents what he asserts is a March 11, 2012 affidavit signed by Youssouf. The affidavit provides that Youssouf told Detective Stone he did not see Collins in the store on the afternoon of the crime, and that an incident at the counter between a black male and a Hispanic woman did not involve Collins. (Dkt. 1, p. 46.) Youssouf's affidavit states that he “would have testified [Collins] was not the black male involved in the incident of September 21, 2006.” (Dkt. 1, pp. 46-47.)

         The state court rejected Collins' claim with respect to both prospective witnesses:

The Defendant alleges that counsel was ineffective for failing to call two witnesses to testify on his behalf at trial: “Mike, ” the owner of the Shady Side Market, outside of which the attempted robbery took place, and his employee, Mohammad Yussif. The Defendant contends that calling these witnesses would have supported a misidentification defense. . . .
In the instant case, the victim, Cassandra Frank, was robbed at gunpoint outside the Shady Side Market after making a purchase in the store. Ms. Frank was in her vehicle preparing to leave the parking lot of the store when two men, one unarmed and undisguised man and one disguised and armed man, attempted to rob her. The victim identified the Defendant as the armed man who had disguised his face with a shirt. Since the Defendant's face was partially disguised, this identification was partly based on an incident that took place inside the store prior to the attempted robbery. Specifically, the victim testified that as she was making her purchase inside the store, the Defendant jokingly tried to take away her items before returning them. She claims that the shirt that partially obscured the robber's face was the same shirt that she saw the Defendant wearing moments before inside the store.
Defendant contends that both witnesses would have testified that they were familiar with the Defendant and did not see the Defendant in the store that day. As asserted by the State, this does not prove that the Defendant was not in the store that day. Since the witnesses make no claim that they saw every person who entered the store that day, it is a reasonable inference, given the victim's testimony that she saw Defendant in the store that the Defendant was in the store, but that the witnesses failed to observe him. Given that this testimony would not exculpate the Defendant, and the fact that the victim was able to quickly identify both the Defendant and his codefendant, as well as the gun used by the Defendant, which was recovered from his codefendant, the Defendant cannot show prejudice from the omission of this testimony.
In addition, even taking the Defendant's allegations as it concerns the store surveillance cameras as true, there is no reasonable probability that the outcome would have been different. Defendant states that the Shady Side Market had an interior surveillance camera and that the video recording of the day of the crime was given to Detective Stone. First, the Defendant does not allege what exculpatory evidence the video would have shown, if any. Second, the indoor surveillance camera would not have captured the attempted robbery that occurred outside of the store. Second, [sic] even if the surveillance tape was delivered to Officer Stone, which Detective Stone testified was not the case, this conflicting testimony about the existence of a surveillance tape would not have changed the outcome. As stated above, the victim was able to quickly identify both the Defendant and his codefendant. Further, the victim was able to identify the gun used by the Defendant, which was recovered from his codefendant.

(Dkt. 16, Ex. 3C, pp. 311-12) (court's record citations omitted).

         The state court further found:

The Defendant alleges that counsel was ineffective for failing to call Mr. Mohammad Youssouf. The Defendant asserts that Mr. Youssouf was available to testify and counsel was aware of this fact. The Defendant's assertions regarding the substance of Mr. Youssouf's testimony, however, are contradictory and call into question their reliability. In his motion for postconviction relief, filed on February 22, 2010, the Defendant stated that Mr. Youssouf would have testified that he had not “observed any kind of incident between a black male and a Hispanic female at the checkout counter on the afternoon of September 21, 2006.” In fact, Defendant alleges that this statement by Mr. Youssouf appears in the police report of Officer Stone, the investigating officer. In its February 29, 2012 response, the State asserted that the Defendant was not prejudiced by this omission as Mr. Youssouf's testimony did not contradict the victim's testimony. In his reply to the State's response, the Defendant attached the newly drafted affidavit of Mr. Youssouf. In the affidavit, Mr. Youssouf states that he observed “an incident at the checkout counter, between a black male and a Hispanic woman on the afternoon of September 21, 2006, ” and that the Defendant was not involved in that incident. This is in direct contradiction to the Defendant's sworn motion, which indicted that Mr. Youssouf would testify that he did not observe any such encounter. Given the timing of the affidavit, its recent creation, and the fact that it directly conflicts with the Defendant's prior sworn statements regarding Mr. Youssouf, and apparently, Mr. Youssouf's statements to the police, the Court finds the affidavit unreliable. Robinson v. State, 736 So.2d 93 (Fla. 4th DCA 1999) (discussing that an evidentiary hearing need not be held if the affidavit supporting the defendant's claim is inherently unreliable.)
Further, even assuming, arguendo, that the affidavit is reliable, the omission of Mr. Youssouf's testimony did not prejudice the Defendant. First, the affidavit does not set forth what Mr. Youssouf observed on the day of the robbery. Rather, the affidavit concerns what Mr. Youssouf told Officer Stone several days after the robbery. Thus, the affidavit is insufficient. Second, as the State points out, Mr. Youssouf's proposed testimony still does not contradict the victim's version of events. Mr. Youssouf does not state that he observed everyone who entered the store that day, nor does he state that the interaction between the Hispanic female and the black male at the checkout counter involved the victim or was the only such interaction that day. Thus, this testimony does not exculpate the Defendant. This is particularly true given the fact that Mr. Youssouf's testimony would have been impeached by his own prior inconsistent statements to Officer Stone that he did not witness an interaction between a black man and a Hispanic female on the date of the robbery. In addition to destroying the credibility of Mr. Youssouf, this impeachment evidence would have harmed the credibility of the defense. As a result, such testimony would not have resulted in a different outcome.

(Id., pp. 427-28.)

         Collins has not demonstrated ineffective assistance of counsel. “Which witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that [a reviewing court] will seldom, if ever, second guess.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995). Collins does not show that counsel performed deficiently in failing to call Mike or Youssouf. Collins offers no evidence to support his contention that Mike would have testified as he theorizes. See United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit. A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim.”) (footnotes omitted); Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001) (“Johnson offers only speculation that the missing witnesses would have been helpful. This kind of speculation is ‘insufficient to carry the burden of a habeas corpus petitioner.'”) (quoting Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir.1985)).

         Additionally, the anticipated testimonies of Mike and Youssouf may show that they simply did not observe Collins inside the store, not that Collins was not in fact there. As t he state court's order indicates, Collins alleged in his postconviction motion that Youssouf told Stone he did not see an altercation at the counter. This is inconsistent with the statement in his affidavit that he saw an altercation but it did not involve Collins. Assuming the prior inconsistent statement was made as described in Collins' postconviction motion, the State could have impeached Youssouf's credibility.[3]

         Furthermore, Collins does not show prejudice as a result of counsel's omission. Even if Mike and Youssouf testified as Collins suggests, Collins does not demonstrate a reasonable probability that the outcome of trial would have changed. Frank was certain in her identification of Collins. She testified that she quickly identified his photo in the photo pack Stone showed her. (Dkt. 16, Ex. 1B, pp. 125-26.) Frank testified that the shirt over Collins' face did not prevent her from recognizing him as the same person who was in the store, and that she had no doubt Collins attempted to rob her. (Id., pp. 127-29.) Detective Stone also testified that Frank immediately identified a photo of Collins in a photo pack, and that she stated the unique shirt wrapped around his face during the crime was the same one he was wearing earlier in the store. (Id., pp. 149-50.) Frank also readily identified Moise as the other person involved. (Id., pp. 125, 149.) Finally, co-defendant Moise was later found in possession of a firearm indistinguishable from the one Frank observed during the attempted robbery.

         Collins has not shown that the state court's order was contrary to or an unreasonable application of clearly established federal law or was based on an unreasonable determination of the facts. He is not entitled to relief on Ground Two.

         Grounds Three (A) and (D)

         In Grounds Three(A) and Three(D), Collins alleges that trial counsel was ineffective for failing to object to improper prosecutorial comment during opening and closing statements.

         “An opening statement gives counsel the opportunity to state what evidence will be presented in order to make it easier for the jurors to understand what is to follow, and is not an occasion for argument.” United States v. Lizon-Barias, 252 Fed. App'x 976, 978 (11th Cir. 2007). “Opening remarks are not evidence, and the purpose of opening argument is to outline what an attorney expects to be established by the evidence.” Occhicone v. State, 570 So.2d 902, 904 (Fla. 1990). “[T]he ‘sole purpose of closing argument is to assist the jury in analyzing, evaluating and applying the evidence.'” United States v. Pearson, 746 F.2d 787, 796 (11th Cir. 1984) (quoting United States v. Dorr, 636 F.2d 117, 120 (5th Cir. 1981)). While he may not go beyond the evidence presented to the jury, the prosecutor is not limited to a bare recitation of the facts. The prosecutor may comment on the evidence and express the conclusions he contends the jury should draw from the evidence. United States v. Johns, 734 F.2d 657, 663 (11th Cir. 1984). In Florida, “[w]hile wide latitude is permitted in closing argument, see Breedlove v. State, 413 So.2d 1, 8 (Fla. 1982), this latitude does not extend to permit improper argument.” Gore v. State, 719 So.2d 1197, 2000 (Fla. 1998).

         An allegedly improper remark must be considered in the context of the proceeding as a whole, and relief is only available if an improper remark prejudiced the defendant's substantial rights. See United States v. Beasley, 72 F.3d 1518, 1525 (11th Cir. 1996) (“Prosecutorial misconduct is a basis for reversal only if, in the context of the entire trial and in light of any curative instruction, the misconduct may have prejudiced the substantial rights of the accused.”). See also United States v. Young, 470 U.S. 1, 11 (1985) (“[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial.”).[4]

         A. Failure To Object During Opening Statement

         Collins asserts that the prosecutor “stated that the investigation . . . ended when the Petitioner was arrested four blocks from the scene of the attempted robbery, ” making it seem like he “was there at the scene” of the crime “and that the victim was right in her identification of him.” (Dkt. 1, pp. 25-26.)

         During his opening statement, the prosecutor said:

[O]n September 26 [sic] of last year on 15th Avenue South in St. Petersburg in late afternoon Jermaine Collins . . . appeared at the window of an automobile driven by a woman by the name of Cassandra Frank and occupied by her two young children and put a gun in her face demanding her purse, wallet, and your whatever.

(Dkt. 16, Ex. 1B, p. 93.) The prosecutor went on to describe what he expected the evidence to show about the crime and investigation. (Id., pp. 93-98.) He then stated, “The investigation concludes when October 9th about 4 blocks away . . . investigating officers from the St. Petersburg Police Department come into contact both with Mr. Collins and with Mr. Moise.” (Id., p. 98.) The prosecutor then noted that Collins lived less than a block from the Shady Side Market. (Id., p. 99.)

         The state court rejected Collins' claim of ineffective assistance for failing to object:

The Defendant alleges that counsel was ineffective for failing to object and move for a mistrial when the prosecutor made improper statements to the jury during his opening statement. Specifically, the Defendant claims that the prosecutor stated that the investigation in the above-styled case ended when the Defendant was arrested four blocks from the scene of the attempted robbery. He contends that this statement was improper because he was arrested in the above-styled case while in custody on other charges and not four blocks from the scene of the attempted robbery. The Defendant alleges that the prosecutor's statements were prejudicial and misleading because they made it appear as though the Defendant was arrested for the attempted armed robbery four blocks away from where the crime occurred, when in fact, the arrest referred to by the Prosecutor was on unrelated charges.
The State contends and this Court agrees that the Defendant's claim is clearly refuted by the record. During his opening statement, the prosecutor clearly states that the attempted robbery took place on September 21, 2006, and that the Defendant was arrested on October 9, 2006. Therefore, the jury was not misled into believing that the Defendant was arrested immediately after the crime took place.
Further, the prosecutor's statements regarding the Defendant being arrested four blocks away from the scene of the attempted robbery are not prejudicial. The record indicates that the jury was made aware of the fact that the Defendant lived next door to the location where the attempted robbery took place. Thus, the fact that the Defendant was arrested four blocks from the scene is harmless.
Lastly, the record clearly shows that at no point during his opening statement did the prosecutor state or even imply why the Defendant was arrested on October 9, 2006. As the State correctly asserts, it would have been improper for the prosecutor to discuss the unrelated charges for which the Defendant was arrested on October 9, 2006. Therefore, this Court does not find any portion of the prosecutor's statements to be prejudicial, nor does it find that counsel's failure to object rendered his assistance ineffective. The Defendant should note that counsel had no grounds upon which to base an objection to the prosecutor's statements, and therefore, cannot be held ineffective for failing to do so. Schoenwetter v. State, 46 So.3d 535, 546 (Fla. 2010). In light of the foregoing, this claim is denied.

(Dkt. 16, Ex. 3C, pp. 312-13) (court's record citations omitted).

         It is clear that the prosecutor provided a chronological history of the offense, investigation, and subsequent arrest of Collins near the same physical location as the offense. Collins does not demonstrate that the prosecutor's statements inaccurately implied that he was arrested at the time of the attempted robbery or suggested that Frank's identification was therefore correct. Accordingly, he does not show that counsel was ineffective for failing to object or move for a mistrial. Collins does not establish that the state court unreasonably applied Strickland or unreasonably determined the facts in rejecting this claim. Ground Three(A) warrants no relief.

         D. Failure To Object During Closing Argument

         In asserting that trial counsel was ineffective for failing to object to the State's improper closing argument, Collins argues that the prosecutor improperly 1) bolstered Bradshaw's testimony; 2) referred to Collins' arrest on unrelated charges; 3) referred to hearsay testimony from Bradshaw and Stone; and 4) elicited sympathy for the victim.

         The state court rejected Collins' claim:

The Defendant alleges that counsel was ineffective for failing to object to the State's improper closing arguments. Specifically, the Defendant alleges the following: 1) that the State made comments implying a professional knowledge that improperly bolstered the testimony of Officer Bradshaw; 2) that the State referred to the Defendant's arrest on unrelated charges and implied the Defendant's guilt by stating that Mr. Moise had fled from the scene with the revolver; 3) that the State referred to hearsay testimony from Officer Bradshaw and Detective Stone; and 4) that the State's comments were improper because they were “made for the sole purpose of soliciting sympathy for the victim, ” thereby “improperly influencing the jury's verdict.” The Defendant further alleges that had counsel objected to these comments, the objections would have been sustained, and counsel could have made a motion for mistrial, which would have been granted by the Court.
The State contends and this Court agrees that the Defendant's allegations have no merit. Closing argument is an opportunity for attorneys to comment on evidence and testimony, and to “explicate those inferences which may be reasonably drawn from the evidence.” See Merck v. State, 975 So.2d 1054, 1061 (Fla. 2007); see also Bertolotti v. State, 476 So.2d 130, 134 (Fla. 1985). Both parties are afforded wide latitude “so that they may ‘advance all legitimate arguments and draw logical inferences from the evidence.'” See Rivera v. State, 840 So.2d 284, 286 (Fla. 5th DCA 2003) (quoting McArthur v. State, 801 So.2d 1[0]37, 1040 (Fla. 5th DCA 2001)). When evaluating a prosecutor's comments during closing argument, the remarks “should be reviewed within the context of the closing argument as a whole and considered cumulatively within the context of the entire record.” Id. at 287. A comment may be viewed as inappropriate while standing alone however, “when considered within the context of the entire closing argument and the record, it may be a fair comment.” Id.
As previously stated, this Court does not find the testimonies of Officer Bradshaw and Detective Stone to constitute hearsay, and therefore, the State did not improperly bolster the credibility of the witnesses, nor did it refer to hearsay testimony during closing argument. Rather, the State's comments were based on the evidence presented at trial, and therefore, even when considered cumulatively, counsel's failure to object to the State's remarks would not have changed the outcome of the trial. See State v. Bouchard, 922 So.2d 424 (Fla. 2d DCA 2006); see also Gonzalez v. State, 990 So.2d 1017, 1028-29 (Fla. 2008) (Where comments originating from facts and inferences presented at trial were deemed proper for closing argument). Counsel cannot be deemed ineffective for failing to make a meritless objection. See Schoenwetter, 46 So.3d at 546. As such, this claim is denied.

(Dkt. 16, Ex. 3C, pp. 319-20.)

         1. Bolstering Testimony ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.