United States District Court, M.D. Florida, Ocala Division
Phillip K. Johnson Jr., Petitioner,
Secretary, Department of Corrections, and Florida Attorney General, Respondents.
MEMORANDUM AND ORDER
A. Magnuson United States District Court Judge
matter is before the Court on a Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254. For the following
reasons, the Petition is denied.
April 2009, a jury convicted Petitioner Phillip K. Johnson,
Jr. of attempted robbery with a firearm. The trial court
sentenced Johnson to 30 years in prison.
subsequently filed a motion to correct illegal sentence under
Florida Rule of Criminal Procedure 3.800. The postconviction
court denied the motion and Johnson appealed that decision.
The appellate court reversed and ordered that Johnson be
resentenced to fifteen years' imprisonment with a
mandatory minimum of ten years after the government conceded
that there had been a sentencing error. Johnson v.
State, 44 So.3d 209 (table) (Fla. Dist. Ct. App. 2010).
August 2011, Johnson filed for postconviction relief under
Florida Rule of Criminal Procedure 3.850, this time claiming
ineffective assistance of counsel. The postconviction court
held an evidentiary hearing on some of Johnson's claims,
and eventually denied relief on all grounds. The appellate
court affirmed. Johnson v. State, 130 So.3d 233
(table) (Fla. Dist. Ct. App. 2013).
March 2014, Johnson timely filed the instant Petition.
Johnson claims that he received ineffective assistance of
counsel because his trial counsel (1) made an inadequate
motion for judgment of acquittal, (2) failed to object to the
filing of an amended information, (3) failed to object or
move to suppress hearsay identification testimony, (4) failed
to object to suggestive police identification procedures, and
(5) failed to request a jury instruction on abandonment.
(Pet.'s Supp. Mem. (Docket No. 2) at 4-20.)
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2241 et seq., a
federal court's “review is greatly circumscribed
and is highly deferential to the state courts.”
Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir.
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.” Bell v. Cone, 535 U.S.
685, 693 (2002) (citation omitted). 28 U.S.C. § 2254,
which applies to persons in custody pursuant to a state-court
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). Further, § 2254 states that
“a determination of a factual issue made by a State
court shall be presumed to be correct.” Id.
§ 2254(e)(1). The burden is on the petitioner to
“rebut the presumption ...