United States District Court, M.D. Florida, Ocala Division
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.
February 3, 2009, a jury in Marion County, Florida, convicted
Petitioner Harmon Pinkney, III, of four counts of strong-arm
robbery and one count of attempted strong-arm robbery.
According to the trial testimony, in December 2007, Pinkney
entered the Central Florida State Bank in Ocala, Florida, put
a pillowcase on the counter at a teller station and demanded
money. (App'x Ex. B (Trial Tr.) at 145 (Docket No. 7-6 at
66).) He also demanded that four bank
employees give him their purses and cell phones.
(Id. at 146; 162 (Docket No. 7-6 at 67, 83).) The
trial court sentenced Pinkney to a total of 20 years'
imprisonment and five years of probation. (Id. Ex. A
at 146-55 (Docket No. 7-5 at 3-12).)
appealed his conviction, contending that double jeopardy
barred his convictions for taking property from a person and
from that person's employer in a continuous act.
(Id. Ex. E at 1-15 (Docket No. 7-8 at 92 to 7-9 at
14).) The Florida Fifth District Court of Appeal affirmed
without opinion. Pinkney v. State, 41 So.3d 914
(table) (Fla. Dist. Ct. App. 2010). Pinkney filed a habeas
petition in the appeals court, contending that his appellate
counsel was ineffective for failing to challenge the
admission of video surveillance evidence and failing to
challenge the sufficiency of the evidence regarding the
force, assault, or fear element of a charge of strong-arm
robbery. (App'x Ex. F at 1-7 (Docket No. 7-9 at 31-37).)
The court denied that petition on the merits without comment.
(Id. at 57 (Docket No. 7-9 at 87).)
then filed for postconviction relief pursuant to Florida Rule
of Criminal Procedure 3.850. (App'x Ex. G (Docket No. 7-9
at 92).) Pinkney's 3.850 motion raised twelve claims of
ineffective assistance of trial counsel, nearly all of which
are repeated in the instant Petition. The trial court held an
evidentiary hearing on Pinkney's claims, at which
Pinkney's trial counsel testified. (App'x Ex. G at
130-233 (Docket No. 7-11 at 35 to 7-12 at 59).) In a thorough
and lengthy order, the trial court ultimately denied all of
Pinkney's claims as without merit. (Id. at
258-325 (Docket No. 7-12 at 84 to 7-13 at 20).) The Fifth
District Court of Appeal affirmed that denial per curiam.
Pinkney v. State, 138 So.3d 468 (table) (Fla. Dist.
Ct. App. 2014).
filed the instant Petition in November 2014. He raises ten
grounds for relief, all based on the alleged ineffective
assistance of his trial counsel.
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.
2002). Indeed, 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 judgment, provides:
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 of correctness by clear and
convincing evidence.” Id.
requires both that a habeas petition be timely filed and that
the petitioner have exhausted his remedies with respect to
the relief he seeks. The State agrees that this Petition is
timely. It argues, however, that Pinkney has failed to
exhaust his remedies with respect to ground 2, which contends
that his counsel was ineffective for failing to object to the
prosecutor's closing argument, and ground 9, which
asserts that counsel was ineffective for failing to object to
the prosecutor's impeachment and rehabilitation of a
witness. According to the State, because the trial court
denied these grounds (raised in the trial court as grounds 3
and 10) and Pinkney did not appeal the denial, he has failed
to exhaust his remedies and these claims should be dismissed
on that basis.
the State recognizes, the United States Supreme Court
recently explained that a habeas petitioner may establish
cause for the procedural default of an ineffective-assistance
claim when the petitioner acted pro se during the initial
collateral proceeding at which that claim was presented.
Martinez v. Ryan, 566 U.S. 1, 13-14 (2012). Pinkney
did not have the benefit of counsel during his state
postconviction proceedings, and thus likely can establish
cause under Martinez. And given that Pinkney's
claims are without any substantive merit, the Court will
address the claims rather than dismissing them for failure to
Ineffective Assistance of Counsel
can succeed on his claims that his counsel was ineffective
only if he can show that the trial court's or appellate
court's determination of the facts surrounding his claims
was unreasonable. 28 U.S.C. § 2254(d). Thus, he must
establish both that his trial counsel was ineffective ...