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Netting v. Secretary, Florida Department of Corrections

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

February 9, 2018

WILLIAM L. NETTING, JR., Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          BRIAN J. DAVIS, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Petitioner 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.[1] 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).

         II. CLAIMS OF PETITION

         Petitioner 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[2] 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).

         Respondents 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.[3] 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.

         III. STANDARD OF REVIEW

         The 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)).

         The 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. 770.

Pittman, 871 F.3d at 1243-44.

         There 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).

         In 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).[4] 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)).

         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). "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)).

         Where 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.

         Although 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.

         IV. PROCEDURAL HISTORY

         Before 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."[5]Id.

         On 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.

         On 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.

         Petitioner 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, 2009. Id.

         On 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.

         The 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.

         The 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.

         On 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.

         Shortly 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.

         On May 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.[6] Ex. FF. Petitioner moved for rehearing. Ex. GG. The 1st DCA denied rehearing. Ex. HH. The mandate issued on August 29, 2014. Ex. II.

         Meanwhile, 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.

         V. FINDINGS OF FACT AND CONCLUSIONS OF LAW INTRODUCTION

         In 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).

         Notably, 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. Id.

         Upon 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.

         Mr. 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. Id.

         In 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.

         With 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.

         Due to 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.

         Ms. 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.

         In 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.

         Although 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.

         After 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.

         GROUNDS OF THE PETITION

         A. Ground One

         In 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.

         Relying 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.

         Furthermore, 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.

         Additionally, 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.

         "Which 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).

         In this 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 Strickland.[7]

         With 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.

         The 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 (2011).

         There 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 facts.

         B. Ground Two

         Petitioner, 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 68.

         As the 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.

         Moreover, 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 ...


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