United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE
Robert Bacon (hereinafter “Petitioner, ”
“Bacon, ” or “Defendant”) initiated
this action proceeding pro se by filing a timely 28
U.S.C. § 2254 petition for writ of habeas corpus (Doc.
#1, “Petition”) and Memorandum of Law (Doc. #2,
“Memorandum”) challenging his judgment and
conviction of DUI manslaughter and leaving the scene of an
accident involving death entered in the Twentieth Judicial
Circuit Court in Collier County, Florida.
filed a Response (Doc. #16, Response) opposing all grounds
and attached supporting exhibits (Doc. #17, Exhs. 1-15; Doc.
#27, Supp. Exh. 16-17) consisting of the record on direct
appeal and the postconviction record. Inter alia,
Respondent argues that Petitioner has not satisfied 28 U.S.C.
§ 2254(d) (1)- (2). Petitioner filed a Reply (Doc. #31) and
also attached an exhibit (Doc. #32-1) consisting of the
postconviction court's order denying his Rule 3.850
motion, which Respondent previously submitted.
reasons that follow, the Court denies the Petition.
Applicable § 2254 Law
Deferential Review Required By AEDPA
filed his Petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214
(1996). Abdul-Kabir v. Quarterman, 550 U.S. 233, 246
(2007); Penry v. Johnson, 532 U.S. 782, 792 (2001).
Consequently, post-AEDPA law governs this action.
Abdul-Kabir, 550 U.S. at 246; Penry, 532
U.S. at 792; Davis v. Jones, 506 F.3d 1325, 1331,
n.9 (11th Cir. 2007).
the deferential review standard, habeas relief may not be
granted with respect to 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). Cullen v. Pinholster,
U.S., 131 S.Ct. 1388, 1398 (2011). “This is a difficult
to meet, and highly deferential standard for evaluating
state-court rulings, which demands that the state-court
decisions be given the benefit of the doubt.”
Id. (citations omitted). See also Harrington v.
Richter, ___ U.S.___, 131 S.Ct. 770, 786 (2011)
(pointing out that “if [§ 2254(d)'s] standard
is difficult to meet, that is because it was meant to
the Eleventh Circuit and the Supreme Court broadly interpret
what is meant by an “adjudication on the merits.”
Childers v. Floyd, 642 F.3d 953, 967-68 (11th Cir.
2011). Thus, a state court's summary rejection of a
claim, even without explanation, qualifies as an adjudication
on the merits that warrants deference by a federal court.
Id.; see also Ferguson v. Culliver, 527
F.3d 1144, 1146 (11th Cir. 2008). Indeed, “unless the
state court clearly states that its decision was based solely
on a state procedural rule [the Court] will presume that the
state court has rendered an adjudication on the merits when
the petitioner's claim ‘is the same claim
rejected' by the court.” Childers v.
Floyd, 642 F.3d at 969 (quoting Early v.
Packer, 537 U.S. 3, 8 (2002)).
legal principle is ‘clearly established' within the
meaning of this provision only when it is embodied in a
holding of [the United States Supreme] Court.”
Thaler v. Haynes, ___ U.S.___, 130 S.Ct. 1171, 1173
(2010); see also Carey v. Musladin, 549 U.S. 70, 74
(2006) (citing Williams v. Taylor, 529 U.S. 362, 412
(2000)) (recognizing “[c]learly 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
issues its decision). “A state court decision involves
an unreasonable application of federal law when it identifies
the correct legal rule from Supreme Court case law but
unreasonably applies that rule to the facts of the
petitioner's case, or when it unreasonably extends, or
unreasonably declines to extend, a legal principle from
Supreme Court case law to a new context.”
Ponticelli v. Sec'y, Fla. Dep't of Corr.,
690 F.3d 1271, 1291 (11th Cir. 2012) (internal quotations and
citations omitted). The “unreasonable
application” inquiry requires the Court to conduct the
two-step analysis set forth in Harrington v.
Richter, 131 S.Ct. at 770. First, the Court determines
what arguments or theories support the state court decision;
and second, the Court must determine whether
“fairminded jurists could disagree that those arguments
or theories are inconsistent with the holding in a
prior” Supreme Court decision. Id. (citations
omitted). Whether a court errs in determining facts “is
even more deferential than under a clearly erroneous standard
of review.” Stephens v. Hall, 407 F.3d 1195,
1201 (11th Cir. 2005). The Court presumes the findings of
fact to be correct, and petitioner bears the burden of
rebutting the presumption by clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
Supreme Court has held that review “is limited to the
record that was before the state court that adjudicated the
claim on the merits.” Cullen, 131 S.Ct. at
1398. Thus, the Court is limited to reviewing only the record
that was before the state court at the time it rendered its
Federal Claim Must Be Exhausted in State Court
a state prisoner seeking federal habeas relief must first
“‘exhaus[t] the remedies available in the courts
of the State, ' 28 U.S.C. § 2254(b)(1)(A), thereby
affording those courts ‘the first opportunity to
address the correct alleged violations of [the]
prisoner's federal rights.'” Walker v.
Martin, 562 U.S. 307, 316 (2011) (quoting Coleman v.
Thompson, 501 U.S. 722, 731 (1991)). This imposes a
“total exhaustion” requirement in which all of
the federal issues must have first been presented to the
state courts. Rhines v. Weber, 544 U.S. 269, 274
(2005). “Exhaustion requires that state prisoners must
give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process. That is, to
properly exhaust a claim, the petitioner must fairly present
every issue raised in his federal petition to the state's
highest court, either on direct appeal or on collateral
review.” Mason v. Allen, 605 F.3d 1114, 1119
(11th Cir. 2010) (citing O'Sullivan v. Boerckel,
526 U.S. 838, 845 (1999) and Castile v. Peoples, 489
U.S. 346, 351 (1989)).
fairly present a claim, a petitioner must present the
same federal claim to the state court that he urges
the federal court to consider. A mere citation to the federal
constitution in a state court proceeding is insufficient for
purposes of exhaustion. Anderson v. Harless, 459
U.S. 4, 7 (1983). A state law claim that “is merely
similar to the federal habeas claim is insufficient to
satisfy the fairly presented requirement.” Duncan
v. Henry, 513 U.S. 364, 366 (1995) (per curiam).
“‘[T]he exhaustion doctrine requires a habeas
applicant to do more than scatter some makeshift needles in
the haystack of the state court record.'”
McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir.
2005) (quoting Kelley v. Sec'y for the Dep't of
Corr., 377 F.3d 1317, 1343-44 (11th Cir. 2004)).
teeth of the exhaustion requirement comes from its
handmaiden, the procedural default doctrine.” Smith
v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001),
cert. denied, 534 U.S. 1136 (2002). Under the
procedural default doctrine, “[i]f the petitioner has
failed to exhaust state remedies that are no longer
available, that failure is a procedural default which will
bar federal habeas relief ..... ” Smith, 256
F.3d at 1138. A procedural default for failing to exhaust
state court remedies will only be excused in two narrow
circumstances. First, a petitioner may obtain federal habeas
review of a procedurally defaulted claim if he shows both
“cause” for the default and actual
“prejudice” resulting from the asserted error.
House v. Bell, 547 U.S. 518, 536-37 (2006); Mize
v. Hall, 532 F.3d 1184, 1190 (11th Cir. 2008). Second,
Petitioner would have to show a fundamental miscarriage of
Ineffective Assistance of Counsel
assistance of counsel claims are reviewed under the standards
established by 28 U.S.C. § 2254(d). Newland v.
Hall, 527 F.3d 1162, 1183 (11th Cir. 2008). Post-AEDPA,
the standard set forth in Strickland v. Washington,
466 U.S. 668 (1984), remains applicable to the claims of
ineffective assistance of counsel raised in this case.
Newland, 527 F.3d at 1184. In Strickland,
the Supreme Court established a two-part test to determine
whether a convicted person is entitled to habeas relief on
the grounds that his or her counsel rendered ineffective
assistance: (1) whether counsel's representation was
deficient, i.e., “fell below an objective
standard of reasonableness” “under prevailing
professional norms, ” which requires a showing that
“counsel made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment”; and (2) whether the
deficient performance prejudiced the defendant, i.e., there
was a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different, which “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 688;
see also Bobby Van Hook, 558 U.S. 4, 8, 130 S.Ct.
13, 16 (2009); Cullen v. Pinholster, 131 S.Ct. at
may “impose whatever specific rules . . . to ensure
that criminal defendants are well represented, ” but
“the Federal Constitution imposes one general
requirement: that counsel make objectively reasonable
choices.” Bobby Van Hook, 130 S.Ct. at 17
(internal quotations and citations omitted). It is petitioner
who 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, ” Roe v. Flores-Ortega, 528 U.S. 470,
477 (2000) (quoting Strickland, 466 U.S. at 690),
applying a “highly deferential” level of judicial
scrutiny. Id. A court must adhere to a strong
presumption that “counsel's conduct falls within
the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. An attorney is not
ineffective for failing to raise or preserve a meritless
issue. Ladd v. Jones, 864 F.2d 108, 109-10 (11th
Cir. 1989); United States v. Winfield, 960 F.2d 970,
974 (11th Cir. 1992) (“a lawyer's failure to
preserve a meritless issue plainly cannot prejudice a
client”). “To state the obvious: the trial
lawyers, in every case, could have done something more or
something different. So, omissions are inevitable. But, the
issue is not what is possible or ‘what is prudent or
appropriate, but only what is constitutionally
compelled.'” Chandler v. United States,
218 F.3d 1305, 1313 (11th Cir. 2000) (quoting Burger v.
Kemp, 483 U.S. 776, 794 (1987)).
Findings of Fact and Conclusions of Law
Court has carefully reviewed the record and, for the reasons
set forth below, concludes no evidentiary proceedings are
required in this Court. Schriro v. Landrigan, 550
U.S. 465, 127 S.Ct. 1933, 1939-40 (2007). Petitioner does not
proffer any evidence that would require an evidentiary
hearing, Chandler v. McDonough, 471 F.3d 1360 (11th
Cir. 2006), and the Court finds that the pertinent facts of
the case are fully developed in the record before the Court.
Schriro, 550 U.S. at 474; Turner v. Crosby,
339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied,
541 U.S. 1034 (2004).
first argues that the trial court erred by denying his motion
to suppress. Petition at 5; Memorandum at 2-8. Petitioner
explains that an eyewitness in this case, Carlos Diaz,
testified that on February 11, 2008, at around 11:00 p.m. he
was driving alone in his vehicle going south on U.S. 41 to
pick up his brother from work. He past two bicyclists, one of
whom had a flashing light. After he passed the bicyclists,
Diaz looked in his rearview mirror and saw a black truck get
close to the bicyclists and then one of the truck's
headlights went out. The truck then passed Diaz's
vehicle. Diaz caught up with the truck stopped at an
intersection and wrote down the tag number. After Diaz
picked-up his brother at work, Diaz drove back by the
accident scene and stopped to tell police what he had
witnessed. Diaz was then taken to a home in Naples Park. Once
at the Naples Park home, Petitioner claims that Diaz saw him
in handcuffs and in a spot light. Additionally, Petitioner
contends that he was placed in the back seat of the police
car. Diaz identified Petitioner as the driver of the truck he
saw. Diaz did not subsequently identify Petitioner in court.
Instead, Petitioner claims that Deputy Boliak testified that
another officer had stated that Diaz identified him on the
evening of the incident. Id. at 4.
contends the out-of-court identification procedure was unduly
suggestive and impermissible. Citing “Simmons v.
U.S., ” Petitioner argues that the trial court did
not make a factual finding regarding the first prong of
Simmons, i.e. whether the identification was tainted
or highly suggestive, and instead only addressed the second
prong of Simmons, ultimately finding that the
totality of the circumstances did not give rise to a
substantial likelihood of misidentification. Petitioner
submits that the trial court's finding was erroneous
because Diaz could not identify Petitioner as the driver,
even when he was presented in a different perspective
involving being placed in police car and viewed through
rear-view mirror, or with a hat placed on his head to match
the description of the driver. Id. at 7. Instead,
Petitioner argues Diaz only became certain of the
identification during the suppression hearing. Id.
Response, Respondent acknowledges that Petitioner exhausted
Ground One by raising this claim in his motion to suppress
with the trial court and on direct appeal. Response at 12.
Respondent argues that Ground One is barred by the
Stone doctrine because Petitioner had a full and
fair opportunity to develop this claim before the State
court. Response at 12. Respondent reviews the testimony
provided at the pre-trial hearing on the motion to suppress
and notes that the trial court denied Bacon's motion.
Id. at 14 (citing Exh. 10e at 169-195 hearing
transcript); see also Doc. #32 (referencing Exhs.
16-17 (trial court order denying Bacon's motion to
Court agrees with Respondent that Petitioner has exhausted
Ground One by raising the issue at the trial court in a
motion to suppress, which the trial court denied, and then on
direct appeal. However, the Court does not find that Ground
One is barred by Stone v. ...