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Pinkney v. Secretary, Department of Corrections

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

April 11, 2017

Harmon Pinkney, III, Petitioner,
v.
Secretary, Department of Corrections, and Florida Attorney General, Respondents.

          MEMORANDUM AND ORDER

          PAUL A. MAGNUSON UNITED STATES DISTRICT COURT JUDGE.

         This 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.

         BACKGROUND

         On 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)[1].) 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).)

         Pinkney 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).)

         Pinkney 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).

         Pinkney filed the instant Petition in November 2014. He raises ten grounds for relief, all based on the alleged ineffective assistance of his trial counsel.

         DISCUSSION

         Under 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; 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). 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.

         AEDPA 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.[2]

         But as 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 exhaust.

         A. Ineffective Assistance of Counsel

         Pinkney 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 ...


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