United States District Court, M.D. Florida, Jacksonville Division
WILLIAM L. NETTING, JR., Petitioner,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
J. DAVIS, UNITED STATES DISTRICT JUDGE
William L. Netting, Jr., challenges a 2008 Duval County
conviction for robbery. In his Petition (Doc. 1), he raises
eleven claims for habeas relief. Respondents filed an Answer
in Response to Order to Show Cause (Response) (Doc. 38) with
supporting Exhibits. They also filed Supplemental Exhibit K
(Doc. 43); a Response to Order to Show Cause (Doc. 49)
concerning appendices one through nine of Supplemental
Exhibit K; and relevant exhibits (see e.g., exhibit
C (Doc. 49 at 21-49)) not found elsewhere in the record
before the Court. Petitioner filed a Reply (Reply) (Doc. 56).
See Order (Doc. 6).
CLAIMS OF PETITION
seeks habeas relief on eleven grounds: (1) ineffective
assistance of counsel for failure to call alibi witnesses;
(2) ineffective assistance of counsel for failure to properly
challenge the pretrial identification as utilizing suggestive
procedures in creating the photo lineup, contending counsel
failed to understand the Biggers analysis; (3)
ineffective assistance of counsel for failure to move to
suppress the in-court identification of the perpetrator by
the victim; (4) ineffective assistance of counsel for failure
to object to suggestive photographs used in the pre-trial
identification, to object to the victim's in-court
identification, and to object to prosecutorial misconduct;
(5) ineffective assistance of counsel for failure to call
Officer Sharkey; (6) ineffective assistance of counsel for
failure to impeach the testimony of Officer Nelson, Rosann
Amondala, and Susan Numbers; (7) ineffective assistance of
counsel for failure to file a motion in limine (or a motion
to suppress) seeking suppression of the evidence found in
Officer Nelson's patrol car; (8) ineffective assistance
of counsel for failure to file a motion to suppress evidence
recovered at the crime scene; (9) ineffective assistance of
counsel for misadvising Petitioner not to take the stand;
(10) denial of substantial and procedural rights due to the
First District Court of Appeal's (1st DCA) denial of a
writ of habeas corpus for belated appeal; and (11) denial of
proper consideration of Petitioner's claims of
ineffective assistance of trial counsel due to the trial
court's denial of the amended 3.850 motion and/or habeas
corpus for ineffective assistance of post conviction counsel.
The Court will address the eleven grounds raised in the
Petition, see Clisby v. Jones, 960 F.2d 925, 936
(11th Cir. 1992).
urge this Court to deny the Petition without conducting an
evidentiary hearing. Response at 55. It is Petitioner's
burden to establish the need for a federal evidentiary
hearing. Chavez v. Sec'y, Fla. Dep't of
Corr., 647 F.3d 1057, 1060 (11th Cir. 2011),
cert. denied, 565 U.S. 1120 (2012). A
district court is not required to hold an evidentiary hearing
if the record refutes the asserted factual allegations or
otherwise precludes habeas relief. Schriro v.
Landrigan, 550 U.S. 465, 474 (2007). In this case, the
pertinent facts are fully developed in the record before the
Court. As a result, this Court can "adequately assess
[Petitioner's] claim[s] without further factual
development, " Turner v. Crosby, 339 F.3d 1247,
1275 (11th Cir. 2003), cert. denied, 541
U.S. 1034 (2004), and no further 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)).
parameters of review are as follows:
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., 876 F.3d 1039, 1053 (11th Cir. 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 103.
addressing the grounds raised in the Petition, the Court will
provide a brief procedural history. Petitioner was charged by
amended information with robbery. Ex. A at 17. He filed a
Notice of Intention to Claim Alibi. Id. at 39. The
defense stipulated that Petitioner was legally arrested by
Officer W. H. Nelson, on October 4, 2006, for the crime of
possession of cocaine. Id. at 161. The stipulation
required that the state refer to the defendant being
"detained on an unrelated matter."Id.
February 19, 2008, the trial court conducted a jury trial.
Ex. C; Ex. D. The jury returned a verdict of guilty. Ex. A at
193; Ex. D at 297. The trial court denied the motion for new
trial. Ex. A at 196; Ex. B at 262-63.
March 26, 2008, the trial court held a sentencing proceeding.
Ex. B at 239-76. The court sentenced Petitioner to a term of
fifteen years in prison. Id. at 275. The court
entered judgment on February 20, 2008, and sentence on March
26, 2008. Id. at 197-201.
appealed his conviction. Id. at 206. Through
counsel, Petitioner filed an appeal brief. Ex. E. The state
filed an answer brief. Ex. F. On March 12, 2009, the 1st DCA
affirmed per curiam. Ex. G. The mandate issued on March 30,
January 19, 2010, pursuant to the mailbox rule, Petitioner
filed a Motion for Postconviction Relief (Rule 3.850 motion).
Ex. I at 1-58. The circuit court ordered the state to file a
written response. Id. at 122. The state filed its
Response to Defendant's Motion for Post-Conviction
Relief. Id. at 123-31.
trial court appointed Kelly Papa, Esquire, as counsel for
Petitioner. Id. at 134. She moved to continue the
evidentiary hearing to attempt to locate witnesses.
Id. at 136-37. She also moved for authorization of
costs for a private investigator, which the court denied.
Id. at 140-46. The trial court conducted an
evidentiary hearing. Ex. RR; Ex. SS; Ex. TT. The court
provided a Notice of Ruling, noting that it had received the
state's and the defense's proposed orders, the
Defendant's Notice of pending memorandum of fact and law,
and Defendant's July 7, 2011 letter. Ex. J at 234.
trial court denied the Rule 3.850 Motion in its Order Denying
Defendant's Motion for Post Conviction Relief Rule 3.850.
Ex. H at 50-156. Petitioner moved for rehearing, id.
at 157-64, and the trial court denied rehearing. Id.
at 165. Petitioner appealed. Id. at 167; Ex. K.
See Supplemental Exhibit K (Doc. 43) & Response
to Order to Show Cause (Doc. 49). The state filed a notice
that it would not file a brief. Ex. L. The 1st DCA, on
September 10, 2012, per curiam affirmed. Ex. M. The mandate
issued on September 27, 2012. Id.
December 6, 2012, pursuant to the mailbox rule, Petitioner
filed a document entitled Verified 3.850 Motion and/or Habeas
Corpus for Ineffective Assistance of Postconviction Counsel
in the trial court. Ex. N at 1-24. On February 28, 2013, the
court denied the motion, finding that it had previously heard
and ruled upon Petitioner's Rule 3.850 motion.
Id. at 25.
thereafter, on December 17, 2012, Petitioner filed an Amended
3.850 Motion and/or Habeas Corpus for Ineffective Assistance
of Postconviction Counsel. Id. at 26-54. On February
28, 2013, the trial court denied the motion, concluding that
it had previously heard and ruled upon Petitioner's Rule
3.850 motion. Id. at 55. Petitioner appealed.
Id. at 56; Ex. O; Ex. P. On July 11, 2013, the 1st
DCA affirmed per curiam. Ex. Q. Petitioner moved for
rehearing. Ex. R. On December 5, 2013, the 1st DCA entered a
written opinion finding, "Florida law does not recognize
a right to the effective assistance of postconviction
counsel, " "there is no binding federal precedent
to the contrary[, ]" Petitioner's claims "were
properly denied as a matter of law, " and affirming the
trial court's decision. Ex. S at 10. The mandate issued
on December 31, 2013. Id. On December 31, 2013,
Petitioner filed a notice to invoke discretionary
jurisdiction. Ex. JJ. The Supreme Court of Florida, on
January 17, 2014, dismissed the case as moot, referencing the
1st DCA's written opinion on rehearing. Ex. KK.
23, 2013, Petitioner filed a petition for writ of mandamus in
the trial court. Ex. AA at 1-9. The court denied mandamus
relief. Id. at 19. Petitioner appealed. Id.
at 20-21. He filed an appeal brief. Ex. CC. The state
answered. Ex. DD. Petitioner replied. Ex. EE. On July 7,
2014, the 1st DCA reversed and remanded, directing that the
trial court issue an order instructing the clerk of court to
provide Petitioner with the requested transcripts of the
three-day evidentiary hearing. Ex. FF. Petitioner moved for
rehearing. Ex. GG. The 1st DCA denied rehearing. Ex. HH. The
mandate issued on August 29, 2014. Ex. II.
on April 24, 2013, Petitioner filed a Petition for Belated
Appeal in the 1st DCA. Ex. T. The 1st DCA directed Petitioner
to show cause why the petition should not be converted to a
petition alleging ineffective assistance of appellate
counsel. Ex. W. Petitioner responded. Ex. X. The 1st DCA
determined that the petition should be treated as one
alleging a claim of ineffective assistance of appellate
counsel. Ex. Y. The 1st DCA, on August 23, 2013, denied the
petition. Ex. Z. On September 17, 2013, Petitioner sought
discretionary review of the 1st DCA's August 23, 2013
decision. Ex. PP. The Supreme Court of Florida dismissed the
petition finding it was without jurisdiction. Ex. QQ.
FINDINGS OF FACT AND CONCLUSIONS OF LAW INTRODUCTION
order to prevail on a Sixth Amendment claim of ineffective
assistance of trial counsel, 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). The Eleventh Circuit,
in Reaves v. Sec'y, Fla. Dep't of Corr., 872
F.3d 1137, 1148 (11th Cir. 2017) (quoting
Strickland, 466 U.S. at 687), instructed: a
counsel's performance is deficient only if counsel's
errors are "so serious that counsel was not functioning
as the 'counsel' guaranteed the defendant by the
Sixth Amendment." And importantly, with regard to the
establishment of prejudice requirement, the Eleventh Circuit
related that the reasonable probability of a different result
must be "a probability sufficient to undermine
confidence in the outcome. Id. (quoting
Strickland, 466 U.S. at 694).
the trial court, in denying the Rule 3.850 motion, referenced
the applicable two-pronged Strickland standard as a
preface to addressing Petitioner's claims of ineffective
assistance of counsel. Ex. H at 51-52. The court not only
recognized the applicable standard, it further noted that all
that is constitutionally required is reasonably effective
counsel, not perfect or error-free counsel. Id. at
52. Also of significance for all of the grounds raised in the
Rule 3.850 motion, the court credited the testimony of
Petitioner's trial attorneys, Carr Smith and Amanda Kuhn,
over that of Petitioner, finding counsels' testimonies
more credible and persuasive than Petitioner's.
review of Mr. Smith's evidentiary hearing testimony, the
court noted the following. First, that Mr. Smith realized the
state's case against Petitioner was a strong one.
Id. Second, he said the state's case's
strength derived from several factors: (1) the identification
by Ms. Numbers; (2) the DNA evidence linking Petitioner to
the crime scene by a baseball hat left behind at the scene;
(3) the cards and documents discovered in Officer
Nelson's new patrol vehicle; and (4) the potentially
devastating testimony of cooperating co-defendant Paul Swint.
Id. Third, there was no plea offer by the state
(meaning Petitioner was left with the choice to go to trial
or plead straight up). Id.
Smith attested that he sought the aid and advice of more
experienced employees in the Public Defender's Office and
used the Office's resources. Id. at 53. Mr.
Smith said he investigated the alibi witness leads provided
by Petitioner, but he did not find a credible or solid alibi
witness. Id. Upon investigation, he found that the
witnesses were not able to establish an alibi or were
otherwise so potentially detrimental to Petitioner's case
that the defense could not risk calling the witnesses.
Id. Although Mr. Smith found Cynthia Goodman to be
the most helpful alibi witness, he ultimately concluded that
her presence at trial was potentially very damaging due to
her knowledge of Petitioner's violent propensities.
preparing to challenge the identification testimony of Ms.
Numbers, Mr. Smith said that he researched the issue and
filed pretrial motions, hoping they would lead to the
suppression of both the pre-trial and in-trial
identifications. Id. He also sought advice from
experienced and qualified attorneys with regard to the DNA
evidence. Id. Mr. Smith also sought a jury view of
the patrol vehicle in an attempt to demonstrate the
unlikelihood of Petitioner being able to hide cards in the
vehicle. Id. at 54.
regard to the claim of failure to call Mr. Swint, Mr. Smith
testified that he opted not to call co-defendant Swint as a
witness; however, Mr. Smith explained that he was prepared to
impeach Swint's trial testimony after locating the
impeachment witnesses. Id.
the large gap between the time of the robbery and
Petitioner's arrest, Mr. Smith stated that it was
apparent that Petitioner could have changed clothes between
the robbery and arrest. Id. Mr. Smith testified
"he had great difficulty locating witnesses who were
firm as to when or even which day they saw the Defendant in
relation to the robbery, let alone what he might have been
wearing." Id. Mr. Smith said he was convinced
that it was not in his client's best interest to testify,
as Petitioner was a convicted felon and the state's cross
examination of him might be quite damaging. Id.
Kuhn, another assistant public defender, testified that she
knew of the excited utterance exception to the hearsay rule,
but did not recall why she did not assert it when she
attempted to introduce a description by Ms. Numbers regarding
her assailant through cross examination of Officer Sharkey.
Id. at 55.
seeking post conviction relief, Petitioner criticized Mr.
Smith for failing to call Mike Casey, Robert Sharkey, Leslie
Boyce, Kevin Storch, Veronica Stamper, Cindy Goodman, Erica
Chambers, and Pat Chambers to establish an alibi or a time
line of events. Id. Petitioner also said he wanted
Mr. Smith to obtain an identification expert. Id.
Petitioner questioned the advisability of Mr. Smith's
closing argument, expressing surprise at its content.
Id. Petitioner was also critical of Mr. Smith's
handling of the physical evidence, including that which
flowed from the unrelated drug arrest, and the failure to
bring Petitioner's clothes from his arrest before the
jury. Id. at 55-56.
acknowledging his colloquy with the court concerning the
right to testify, Petitioner insisted that the blame should
fall on counsel for providing Petitioner with erroneous
advice not to testify. Id. at 56. Petitioner
admitted that his first criminal arrest occurred twenty-five
years prior to the robbery arrest. Id. He also
represented that he had been in court and represented by
counsel in numerous other criminal cases. Id.
Finally, although not presented as a claim in his Rule 3.850
motion, the court construed a claim of factual innocence
based on Petitioner's contention that he had a medical
condition that would have rendered him physically unable to
commit the crime. Id.
summarizing the evidence presented at the evidentiary
hearing, the court made the following assessment of the
testimonies and performance of defense counsel:
The Court accepts the testimonies of Mr. Carr and Ms. Kuhn,
and finds that they were not ineffective in their
investigation and preparation of the defense in this case.
The Court finds that the trial decisions made by Mr. Smith
and Ms. Kuhn, which are under attack by the Defendant in the
instant Motion, constituted sound trial strategy of defense
attorneys. See Stronger v. State, 419 So.2d 1044
(Fla. 1982); Gonzalez v. State, 579 So.2d 145, 146
(Fla. 3d DCA 1991) ("Tactical decisions of counsel do
not constitute ineffective assistance of counsel.")
Finally, before reaching the merits of the Defendant's
arguments, the Court notes that the Defendant established
from each witness at the evidentiary hearing that their
memories were much better around the time of the crime in
question and the Defendant's trial. The Court has taken
this fact into consideration.
Ex. H at 56-57.
OF THE PETITION
ground one, Petitioner raises a claim of ineffective
assistance of trial counsel, complaining that counsel failed
to call alibi witnesses. Petition at 9-12. As noted by
Respondents, Petitioner raised this claim of ineffective
assistance of counsel in claim two of his Rule 3.850 motion.
Response at 12.
on a number of sound reasons, the trial court rejected this
claim. The court recognized that defense counsel made
extensive efforts to develop an alibi defense and find
witnesses to support the previously noticed alibi claim. Ex.
H at 57. In particular, counsel filed a motion for
continuance in an attempt to form his defense and prepare for
trial. Id. Not only that, the court found that Mr.
Smith undertook the appropriate measures to prepare for
trial, taking depositions, performing investigations, and
attempting to build an alibi defense. Id. But, after
hearing Mr. Smith's evidentiary hearing testimony, the
court concluded "that none of the witnesses provided by
the Defendant, singularly or cumulatively, could have
supplied the Defendant with a credible or solid alibi to the
crime in question." Id. at 57-58.
the court determined that Mr. Smith made a tactical decision
to wait until the last moment to abandon the alibi defense,
finding the potential alibi witnesses suffering from
credibility issues and poor memory, including an inability to
place Petitioner elsewhere at the time of the instant
offense. Id. at 58. The court found counsel's
assessment of the effectiveness of the alibi defense
persuasive, recognizing that the defense "was dependent
upon the testimony of the Defendant's cohorts, most of
whom, if not all, were incarcerated, involved in drugs, on
drugs during the time of the instant crime and maintained
long felony records." Id. In sum, the court was
convinced that defense counsel's assessment that the
alibi defense, as it stood, was "tantamount to no
defense at all, " and was persuaded that counsel was
accurate in his assessment that such a defense would cause
more harm than good. Id. As such, the court found
defense counsel was not ineffective for failing to present
the alibi defense as counsel's assessment was a
reasonable one. Id.
the court found counsel's decision not to call Kelvin
Williams, Michael Casey, and Paul Swint as defense witnesses
constituted another tactical decision. Id. Kelvin
Williams and Michael Casey were listed as witnesses to
provide rebuttal testimony if the co-defendant, Paul Swint,
took the stand against Petitioner. Id. Since the
state did not call the co-defendant, the testimony of the
rebuttal witnesses became irrelevant and would have been
deemed inadmissible hearsay. Id. Mr. Smith explained
that he did not call Mr. Swint as a witness because he had
been a cooperating state's witness and would have likely
implicated Petitioner in the robbery if called to the stand.
Id. The court did not find deficient performance by
defense counsel in this regard. Id.
witnesses, if any, to call . . . is the epitome of a
strategic decision, and it is one that [a court] will seldom,
if ever, second guess." Waters v. Thomas, 46
F.3d 1506, 1512 (11th Cir. 1995), cert.
denied, 516 U.S. 856 (1995). In order to demonstrate
ineffectiveness, the decision must be so patently
unreasonable that no competent attorney would have chosen
that path. Dingle v. Sec'y for the Dep't of
Corr. 480 F.3d 1092, 1099 (11th Cir. 2007) (quotation
omitted), cert. denied, 552 U.S. 990
(2007). See Rizo v. United States, No. 03-20010-CIV,
2014 WL 7152755, at *5 (S.D. Fla. Dec. 15, 2014),
aff'd, 662 Fed.Appx. 901 (11th Cir. 2016)
(finding counsel's decision not to call alibi witnesses
was not unreasonable, particularly where the alibis were not
airtight, avoiding leaving the jury with the conundrum as to
whether to focus more on the proof of the alibi than on
whether the state has met its burden of proof).
instance, Petitioner has not shown that Mr. Smith's
decision not to present an alibi defense was an unreasonable
strategic move that no competent counsel would have taken.
Consequently, Petitioner's counsel's decision not to
call the alibi witnesses was not unreasonable or otherwise
deficient. The Court will not address the prejudice prong as
Petitioner has failed to establish the first prong of
regard to the rebuttal witnesses, given the fact that the
state did not call the co-defendant to the stand,
counsel's decision not to call the rebuttal witnesses was
also a sound tactical decision. Based on the record, there
was certainly good reason for Mr. Smith to be circumspect
about the potential content of Mr. Swint's testimony as
Swint had been the state's cooperating witness and had
already pled to the crime. Mr. Smith's strategic decision
was not so patently unreasonable that no competent attorney
would have elected not to call the co-defendant to the stand.
decision to deny this claim of ineffective assistance of
counsel is not inconsistent with Strickland.
"Only those habeas petitioners who can prove under
Strickland that they have been denied a fair trial
by the gross incompetence of their attorneys will be granted
the writ." Marshall, 828 F.3d at 1290 (quoting
Kimmelman v. Morrison, 477 U.S. 365, 382 (1986)).
This standard is extremely difficult to meet, and even a
strong case for habeas relief will not prevail as long as the
state court's contrary conclusion was reasonable. Here,
the trial court found Petitioner failed to satisfy the
performance prong of Strickland and denied post
conviction relief. The 1st DCA affirmed the decision of the
trial court. Ex. M. The 1st DCA did not give reasons for its
denied, 137 S.C. 819 (2017). A court need only
address one prong, and if it is found unsatisfied, the court
need not address the other. Id. summary affirmance;
however, if there was any reasonable basis for the court to
deny relief, the denial must be given deference by this
Court. Cullen v. Pinholster, 563 U.S. 170, 187-88
is a qualifying state court decision and AEDPA deference is
warranted. The adjudication of the state court resulted in a
decision that involved a reasonable application of clearly
established federal law, as determined by the United States
Supreme Court. Therefore, Petitioner is not entitled to
relief on ground one because the state court's decision
was not contrary to clearly established federal law,
Strickland and its progeny, did not involve an
unreasonable application of clearly established federal law,
and was not based on an unreasonable determination of the
in his second ground, raises a claim of ineffective
assistance of counsel for failure to properly challenge the
pretrial identification as utilizing suggestive procedures in
creating the photo lineup, asserting this deficiency in
performance was caused by counsel's failure to understand
the Biggers analysis. Petitioner raised two grounds
in his Rule 3.850 motion with respect to this issue: claims
twelve and sixteen. See Response at 17-18; Ex. H at
Court previously noted, before addressing specific grounds
for relief, the trial court set forth the Strickland
standard in its order. Ex. H at 51-52. In addressing grounds
twelve and sixteen of the Rule 3.850 motion, the trial court
first noted that defense counsel filed a motion in limine
objecting to the state's use of the lineup photograph and
seeking exclusion of it at trial. Id. at 69. Of
significance, the court granted the motion in part.
See exhibits "F" and "G"
attached to the trial court's order. Ex. H at 148-150.
Additionally, the court found the issue properly preserved
for appeal purposes. Id. at 69.
the court concluded, based on defense counsel's testimony
at the evidentiary hearing, that he fully understood the
Biggers analysis. Id. Mr. Smith explained
why he did not pursue such an attack, stating that he did not
believe that he could satisfy the preliminary issue because
the police did not utilize suggestive procedures in creating
the photo lineup. Id. Believing it would have been a