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Bacon v. Bondi

United States District Court, M.D. Florida, Fort Myers Division

March 28, 2017

ROBERT BACON, Petitioner,
PAM BONDI, Respondent.



         I. Status

         Petitioner 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.

         Respondent 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).[1] 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.

         For the reasons that follow, the Court denies the Petition.

         II. Applicable § 2254 Law

         A. Deferential Review Required By AEDPA

         Petitioner 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).

         Under 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; 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). 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 be.”).

         Both 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)).

         “A 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).

         The 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 order. Id.

         B. Federal Claim Must Be Exhausted in State Court

         Ordinarily, 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)).

         To 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)).

         “The 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 justice.

         C. Ineffective Assistance of Counsel

         Ineffective 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 1403 (2011)

         States 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)).

         III. Findings of Fact and Conclusions of Law

         This 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).

         A. Ground One

         Petitioner 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.

         Petitioner contends the out-of-court identification procedure was unduly suggestive and impermissible. Citing “Simmons v. U.S., ”[2] 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.

         In 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[3] 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 suppress)).[4]

         The 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. ...

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