United States District Court, M.D. Florida, Jacksonville Division
ARTHUR L. BRADDY, Petitioner,
SECRETARY, DOC, et al., Respondents.
J. DAVIS United States District Judge
Arthur L. Braddy challenges a 2007 (Duval County) conviction
for possession of a firearm by a convicted felon. Petition
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (Petition) (Doc. 1) at 1. He filed
the Petition on February 3, 2015, pursuant to the mailbox
rule. In the Petition, he raises six grounds for
habeas relief. Respondents filed an Answer in Response to
Order to Show Cause and Petition for Writ of Habeas Corpus
(Response) (Doc. 14). Exhibits are appended to the Response
(Doc. 14). Petitioner submitted a Reply Brief (Doc.
15). See Order (Doc. 5).
Court provides a brief procedural history for historical
context. Petitioner was charged by information with multiple
offenses, including possession of a firearm by a convicted
felon. Ex. A at 11-12. After a jury trial on the possession
of a firearm charge, the jury returned a verdict of guilty as
charged. Id. at 57. On December 10, 2007, the trial
court sentenced Petitioner to twenty-five years in prison as
an habitual violent felony offender. Id. at 65-67.
appealed. Id. at 72; Ex. B; Ex. C; Ex. D. On April
8, 2009, the First District Court of Appeal (1st DCA)
affirmed per curiam. Ex. E. The mandate issued on April 24,
2009. Ex. F.
December 4, 2009, pursuant to the mailbox rule, Petitioner
filed a Motion for Post Conviction Relief 3.850. Ex. G. He
amended his motion (Rule 3.850 Motion). Id. The
state responded. Id. The trial court conducted an
evidentiary hearing on three of the grounds. Ex. H at 325-77.
On January 6, 2014, the circuit court entered an Order
Denying Defendant's Motion for Post Conviction Relief.
Id. at 157-319. Petitioner appealed. Id. at
320; Ex. I; Ex. J;; Ex. K. On November 17, 2014, the 1st DCA
affirmed per curiam. Ex. L. The mandate issued on December
15, 2014. Ex. M.
March 21, 2011, Petitioner filed a Petition for Writ of
Habeas Corpus in the 1st DCA. Ex. N. The 1st DCA denied the
petition alleging ineffective assistance of appellate
counsel. Ex. O.
STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act (AEDPA) governs
a state prisoner's federal petition for habeas corpus.
See 28 U.S.C. § 2254; Ledford v. Warden,
Ga. Diagnostic & Classification Prison, 818
F.3d 600, 642 (11th Cir. 2016), cert.
denied, 137 S.Ct. 1432 (U.S. Apr. 3, 2017).
"'The purpose of AEDPA is to ensure that federal
habeas relief functions as a guard against extreme
malfunctions in the state criminal justice systems, and not
as a means of error correction.'" Id.
(quoting Greene v. Fisher, 132 S.Ct. 38, 43 (2011)).
Under AEDPA, when a state court has adjudicated the
petitioner's claim on the merits, a federal court may not
grant habeas relief unless the state court's decision was
"contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States, " 28 U.S.C. §
2254(d)(1), or "was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding, " id. §
2254(d)(2). A state court's factual findings are presumed
correct unless rebutted by clear and convincing
evidence. Id. § 2254(e)(1);
Ferrell v. Hall, 640 F.3d 1199, 1223 (11th Cir.
..."It bears repeating that even a strong case for
relief does not mean the state court's contrary
conclusion was unreasonable." [Harrington v.
Richter, 562 U.S. 86, 101 (2011)] (citing Lockyer v.
Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d
144 (2003)). The Supreme Court has repeatedly instructed
lower federal courts that an unreasonable application of law
requires more than mere error or even clear error.
See, e.g., Mitchell v. Esparza,
540 U.S. 12');">540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003);
Lockyer, 538 U.S. at 75 ("The gloss of clear
error fails to give proper deference to state courts by
conflating error (even clear error) with
unreasonableness."); Williams v. Taylor, 529
U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)
("[A]n unreasonable application of federal law is
different from an incorrect application of federal
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th
Cir. 2013), cert. denied, 135 S.Ct. 67
applying AEDPA deference, the first step is to identify the
last state court decision that evaluated the claim on its
merits. Marshall v. Sec'y, Fla. Dep't of
Corr., 828 F.3d 1277, 1285 (11th Cir.
2016). Regardless of whether the last state court
provided a reasoned opinion, "it may be presumed that
the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles
to the contrary." Harrington v. Richter, 562
U.S. 86, 99 (2011); see also Johnson v. Williams,
133 S.Ct. 1088, 1096 (2013). "The presumption may be
overcome when there is reason to think some other explanation
for the state court's decision is more likely."
Richter, 562 U.S. at 99-100 (citing Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991)).
the last adjudication on the merits is unaccompanied by an
explanation, the petitioner must demonstrate there was no
reasonable basis for the state court to deny relief.
Id. at 98. "[A] habeas court must determine
what arguments or theories supported or, as here, could have
supported, the state court's decision; and then it must
ask whether it is possible fairminded jurists could disagree
that those arguments or theories are inconsistent with the
holding in a prior decision of [the] Court."
Richter, 562 U.S. at 102; Marshall, 828
F.3d at 1285.
the § 2254(d) standard is difficult to meet, it was
meant to be difficult. Indeed, in order to obtain habeas
relief, "a state prisoner must show that the state
court's ruling on the claim being presented . . . was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement."
Richter, 562 U.S. at 103.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
first ground, Petitioner raises a claim of ineffective
assistance of trial counsel for failure to raise an objection
to "three false statements" made by Officer Richard
C. Santoro, Jr., or for failure to make some attempt to
impeach Officer Santoro with his deposition testimony.
Petition at 6. The first statement at issue is:
A Ah, as I got him in a headlock, my door -- my patrol car
was actually open, the doors. As I got him in the headlock, I
could just like see his arm go back behind his back area and
he brings out a weapon, a pistol, and then brings it up.
Q At the point where you see a pistol in the defendant's
hand from reaching from his back area, what do you do in
response at that point?
A I immediately like -- basically, like I said, my door was
open, and I then throw him into my car, and myself and the
defendant actually go into the car, and the guy ended up --
just took the gun out of his hand.
Ex. H at 199.
second statement at issue is:
Q Okay. And so the gun that was on the ground, did you -- you
said that he was in custody, so those people there were still
there on the ground, they were still sitting there; correct?
A I told them to move away from the gun as I saw the gun fall
to the ground.
. . . .
Q So you are telling us that this gun that you found on the
street -- but you're not sure if it's the same gun
that fell from his hands; are you? Because you don't know
if the people that were sitting there switched it out, or you
don't know if Mr. Lugo switched it out? Because you
didn't know Mr. Lugo; did you?
A When the gun fell from his hand, I told Deas and Henderson
to move away from the gun. They moved clear away from the
gun, more towards the corner of the place. They never went
back towards that area.
Id. at 210, 213.
third statement at issue is:
Q When -- did that gun, from the point where it left Mr.
Braddy's hand onto the ground, did it ever leave your
control or out of your vision before it was stored in the
Jacksonville Sheriff's property room?
Id. at 201.
order to prevail on this Sixth Amendment claim, Petitioner
must satisfy the two-pronged test set forth in Strickland
v. Washington, 466 U.S. 668, 688 (1984), requiring that
he show both deficient performance (counsel's
representation fell below an objective standard of
reasonableness) and prejudice (there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
exhausted this ground by raising it in his Rule 3.850 motion.
Ex. G. The trial court denied relief, Ex. H, and the 1st DCA
per curiam affirmed. Ex. L.
review of the circuit court's order, it set forth the
applicable two-pronged Strickland standard as a
preface to addressing the claims of ineffective assistance of
counsel. Ex. H at 158-59. The court provided this explanation
for denying the claim of ineffective assistance of counsel
with respect to the first statement:
As to the first set of statements, Defendant contends Officer
Santoro's response implies that the officer took the gun
out of Defendant's hand and, therefore, contradicts both
the officer's deposition testimony, wherein he stated he
"threw the Defendant into the side of his car door and
the slam of hitting the car door dislodged the gun from his
hand, " (Def.'s Am. Mot. 7), and the officer's
later trial testimony that he did not actually take the gun
out of Mr. Braddy's hand but that it fell to the ground
while he was physically struggling with Defendant.
(Def.'s Am. Mot. 7.) A careful review of the record,
however, reveals that Officer Santoro's deposition and
trial testimonies were not inconsistent. During his
deposition, Officer Santoro actually stated, "So I guess
by the time I slammed him into the car door . . . basically,
I dislodged the gun from his hands." (Ex. E at 16.)
Later in the deposition, Officer Santoro indicated that the
gun fell to the floor as a result of Defendant slamming into
the car door. (Ex. E at 17.) Both statements were consistent
with Officer Santoro's trial testimony; indeed, Officer
Santoro never testified that he physically took the gun out
of Defendant's hand, instead he testified that during a
physical struggle, he threw Defendant against the open door
of his patrol car, thereby dislodging the gun from
Defendant's hand. (Exs. D at 27, 48; E at 16-17.) Because
Officer Santoro's statements were not inconsistent and
did not amount to perjury, counsel was not deficient for
failing to object to them or to impeach the officer based on
Ex. H at 162 (citations omitted).
Santoro's response that the struggle just took the gun
out of Petitioner's hand was not a model of clarity, on
cross examination Santoro stated that he saw the gun fall out
of Petitioner's hands. Id. at 209. Through his
questioning, defense counsel brought forth a more precise
Q Okay. And so at some point did he -and that's when you
took the gun out of his hand?
A That's when I threw him against my patrol car, and
that's when the gun ...