United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS, UNITED STATES DISTRICT JUDGE.
Joshua Lingebach challenges a 2007 Duval County conviction
for armed robbery. See Amended Petition for Writ of
Habeas Corpus (Amended Petition) (Doc. 8). He raises four
claims for habeas relief, claiming he received the
ineffective assistance of trial or appellate counsel. This
Court must be mindful that in 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 different). Also of note, when addressing a claim
of ineffective assistance of appellate counsel, the two-part
Strickland standard is applicable.
filed an Answer in Response to Order to Show Cause and
Petition for Writ of Habeas Corpus (Response) (Doc. 19) and
ask that the Amended Petition be denied. In support of their
Response, they submitted Exhibits (Doc. 19). Petitioner filed
a Reply to Respondents' Answer Brief (Reply) (Doc. 20).
CLAIMS OF PETITION
raises four grounds in his Amended Petition. They are: (1)
the ineffective assistance of appellate counsel for failure
to assert as error the trial court's denial of the motion
to suppress physical evidence; (2) the ineffective assistance
of appellate counsel for failure to argue on direct appeal
that trial counsel was ineffective for failing to make
certain arguments during the hearing on the motion to
suppress; (3) the ineffective assistance of trial
counsel for failure to do anything about a sleeping juror;
and (4) the ineffective assistance of trial counsel for
failure to accuse an officer of committing fraud through a
contend that ground one is without merit and the First
District Court of Appeal's decision is due deference.
Response at 6-13. They assert that ground two, raised for the
first time in the Amended Petition, is untimely and should be
dismissed as untimely; otherwise, they contend it is without
merit. Id. at 13-18. If found to be timely, they
assert deference is due to the state court's ruling.
Id. With regard to ground three, Respondents claim
it is also untimely raised as it does not relate back to the
original petition and it was raised after the relevant
one-year limitation period expired. Id. at 18. If
found to be timely filed by this Court, Respondents contend
the state court's ruling on this ground is entitled to
deference. Id. at 19. Finally, concerning ground
four, Respondents assert it is barred as unexhausted and
procedurally defaulted. Id. at 20-22. Alternatively,
they assert deference is due to the state court's
decision. Id. at 23-24.
Court will address Petitioner's four grounds, see
Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992), but
no evidentiary proceedings are required in this Court.
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 (2017). "AEDPA limits the scope of
federal habeas review of state court judgments[.]"
Pittman v. Sec'y, Fla. Dep't of Corr., 871
F.3d 1231, 1243 (11th Cir. 2017). As such, AEDPA ensures that
federal habeas relief is limited to extreme malfunctions, and
not used as a means to attempt to correct state court errors.
Ledford, 818 F.3d at 642 (quoting Greene v.
Fisher, 132 S.Ct. 38, 43 (2011)).
Eleventh Circuit recently outlined the parameters of review:
Thus, under AEDPA, a person in custody pursuant to the
judgment of a state court shall not be granted habeas relief
on a claim "that was adjudicated on the merits in State
court proceedings" 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; or ... 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). "For § 2254(d), clearly
established federal law includes only the holdings of the
Supreme Court-not Supreme Court dicta, nor the opinions of
this Court." Taylor v. Sec'y, Fla. Dep't of
Corr., 760 F.3d 1284, 1293-94 (11th Cir. 2014).
As for the "contrary to" clause, "a federal
habeas court may grant the writ if the state court arrives at
a conclusion opposite to that reached by [the Supreme Court]
on a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of
materially indistinguishable facts." Terry Williams
v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146
L.Ed.2d 389 (2000). Under the "unreasonable
application" clause, a federal habeas court may
"grant the writ if the state court identifies the
correct governing legal principle from [the Supreme
Court's] decisions but unreasonably applies that
principle to the facts." Id. at 413, 120 S.Ct.
1495. "In other words, a federal court may grant relief
when a state court has misapplied a 'governing legal
principle' to 'a set of facts different from those of
the case in which the principle was announced.'"
Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527,
156 L.Ed.2d 471 (2003) (quoting Lockyer v. Andrade,
538 U.S. 63, 76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). And
"an 'unreasonable application of' [Supreme
Court] holdings must be objectively unreasonable, not merely
wrong; even clear error will not suffice." Woods v.
Donald, ___ U.S. ___, 135 S.Ct. 1372, 1376, 191 L.Ed.2d
464 (2015) (per curiam) (quotation omitted). To overcome this
substantial hurdle, "a state prisoner must show that the
state court's ruling on the claim being presented in
federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement."
Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct.
770, 178 L.Ed.2d 624 (2011). This is "meant to be"
a difficult standard to meet. Id. at 102, 131 S.Ct.
Pittman, 871 F.3d at 1243-44.
is a presumption of correctness of state court's factual
findings, unless the presumption is rebutted with clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). The
standard of proof is demanding, requiring that a claim be
highly probable. Bishop v. Warden, GDCP, 726 F.3d
1243, 1258 (11th Cir. 2013), cert. denied,
135 S.Ct. 67 (2014). Also, the trial court's
determination will not be superseded if reasonable minds
might disagree about the factual finding. Brumfield v.
Cain, 135 S.Ct. 2269, 2277 (2015). Also of note,
"[t]his presumption of correctness applies equally to
factual determinations made by the state trial and appellate
courts." Pope v. Sec'y for Dep't of
Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (quoting
Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)),
cert. denied, 568 U.S. 1233 (2013).
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). Once identified, the Court reviews the
state court's decision, "not necessarily its
rationale." Pittman, 871 F.3d at 1244 (quoting
Parker v. Sec'y for Dep't of Corr., 331 F.3d
764, 785 (11th Cir. 2003) (citation omitted)).
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).
"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
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. Rimmer v. Sec'y, Fla.
Dep't of Corr., No. 15-14257, 2017 WL 5476795, at
*11 (11th Cir. Nov. 15, 2017) (opining that to reach the
level of an unreasonable application of federal law, the
ruling must be objectively unreasonable, not merely wrong or
even clear error). 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
provide the procedural history in their Response. Response at
FINDINGS OF FACT AND CONCLUSIONS OF LAW
first ground, Petitioner claims his appellate counsel was
ineffective for failure to assert that the lower court erred
in determining that Petitioner's motion to suppress
physical evidence should be denied. Amended Petition at 5.
Petitioner raised this claim in his Petition for Belated
Appeal, construed to be a petition alleging ineffective
assistance of appellate counsel. Ex. F. The First District
Court of Appeal (1st DCA) denied the petition alleging
ineffective assistance of appellate counsel on its merits.
Ex. G. Petitioner moved for rehearing, Ex. H, and the 1st DCA
denied the motion. Ex. I.
there is a qualifying state court opinion for AEDPA purposes.
Based on the 1st DCA's denial of the claim on its merits,
this Court must "review it using the deferential
standard set out in § 2254(d)(1)." Rambaran v.
Sec'y, Dep't of Corr., 821 F.3d 1325, 1330 (11th
Cir.), cert. denied, 137 S.Ct. 505 (2016).
two-part Strickland test is applicable to a claim of
ineffective assistance of appellate counsel:
To prevail on a claim of ineffective assistance of appellate
counsel, a habeas petitioner must establish that his
counsel's performance was deficient and that the
deficient performance prejudiced his defense. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674 (1984); Brooks v. Comm'r,
Ala. Dep't of Corr., 719 F.3d 1292, 1300 (11th Cir.
2013) ("Claims of ineffective assistance of appellate
counsel are governed by the same standards applied to trial
counsel under Strickland.") (quotation marks omitted).
Under the deficient performance prong, the petitioner
"must show that counsel's representation fell below
an objective standard of reasonableness."
Strickland, 466 U.S. at 688, 104 S.Ct. at 2064.
"The standards created by Strickland and §
2254(d) are both highly deferential, and when the two apply
in tandem, review is doubly so." Harrington,
562 U.S. at 105, 131 S.Ct. at 788 (quotation marks and
citations omitted); see also Gissendaner v.
Seaboldt, 735 F.3d 1311, 1323 (11th Cir. 2013)
("This double deference is doubly difficult for a
petitioner to overcome, and it will be a rare case in which
an ineffective assistance of counsel claim that was denied on
the merits in state court is found to merit relief in a
federal habeas proceeding.") (quotation marks and
alteration omitted). "If this standard is difficult to
meet, that is because it was meant to be."
Harrington, 562 U.S. at 102, 131 S.Ct. at 786.
Rambaran, 821 F.3d at 1331.
the record before the Court, appellate counsel did not
perform deficiently. She raised the issue that Petitioner was
deprived of his right to a fair trial by the prosecutor's
closing argument. Ex. B; Ex. C. The 1st DCA agreed that the
"statement made during closing argument by the
prosecutor was inappropriate[, ]" but found that the
overwhelming evidence of guilt means the error "could
not have reasonably affected or contributed to the verdict[,
]" and ultimately concluded that but for the
overwhelming evidence of guilt, the inappropriate comment on
Petitioner's right to a jury trial would have required
reversal. Ex. D.
counsel presented a persuasive argument that the comment
constituted an inappropriate comment by the prosecutor on
Petitioner's right to jury and penalized him for
exercising his constitutional rights. Ex. B at 8. Counsel
urged the 1st DCA to find that this was a comment on
Petitioner exercising his right to a jury trial. Id.
at 10. Counsel submitted that not only was the comment
improper, it ...