United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS, United States District Judge
Eric Cohens initiated this case by filing a Petition for writ
of habeas corpus (Doc. 1) on November 13, 2015, pursuant to
the mailbox rule. He is proceeding on an Amended Petition
(Amended Petition) (Doc. 4) and a Memorandum of Law (Doc. 5).
In the Amended Petition, Petitioner raises three claims for
habeas relief in challenging a 2012 Putnam County conviction
for attempted first degree murder with a firearm. Respondents
filed a Response to Order to Show Cause (Response) (Doc. 9)
and an Appendix of Exhibits to Response to Order to Show
Cause (Appendix) (Doc. 10). Petitioner filed a Reply (Reply)
(Doc. 12). See Order (Doc. 8).
CLAIMS OF PETITION
raises three claims: (1) a violation of
Bradyprinciples through a discovery violation,
resulting in the deprivation of due process and equal
protection of the law; (2) the use of prejudicial evidence at
trial, resulting in the deprivation of due process and equal
protection of the law; and (3) the ineffective assistance of
counsel for misadvising Petitioner to reject the state's
plea offer and rely on a motion to dismiss to obtain relief.
urge this Court to dismiss/deny the Petition. Response at 12.
The Court will address the grounds raised in the Petition,
see Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.
1992), but no evidentiary proceedings are required in this
Court. Petitioner has not met his 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). Of import, 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, the 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
evidentiary proceedings are required.
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.
Court will provide a brief procedural history. Petitioner was
charged by second amended information with attempted first
degree murder with a firearm. Ex. A at 81. On January 24,
2012, the trial court conducted a jury trial. Ex. A, Trial
Transcript. The jury returned a verdict of guilty. Ex. A at
165. On March 6, 2012, the trial court held a sentencing
proceeding. Ex. A, Sentencing Transcript. The court
adjudicated Petitioner guilty and sentenced him to a term of
thirty years in prison, with a twenty-five year minimum
mandatory sentence. Id. at 39. The court entered
judgment and sentence on March 8, 2012, nunc pro tunc to
March 6, 2012. Ex. A at 237-44.
appealed his conviction. Id. at 247. Through a
public defender, Petitioner filed an Anders
brief. Ex. B. The state submitted a notice that
it did not attend to file a brief. Ex. C. Through counsel,
Petitioner filed an Initial Brief of Appellant. Ex. D. The
state filed an Answer Brief. Ex. E. On March 5, 2013, the
Fifth District Court of Appeal (5th DCA) affirmed per curiam.
Ex. F. The mandate issued on April 1, 2013. Ex. G. Petitioner
sought rehearing. Ex. H. The 5th DCA denied rehearing. Ex. I.
1, 2014, pursuant to the mailbox rule, Petitioner filed a
petition for writ of habeas corpus alleging ineffective
assistance of appellate counsel in the 5th DCA. Ex. J. On
October 8, 2014, the 5th DCA denied the petition. Ex. K.
January 9, 2014, pursuant to the mailbox rule, Petitioner
filed a Motion for Postconviction Relief. Ex. L. The state
filed a response. Ex. M. Petitioner filed an Amended Motion
for Postconviction Relief Rule 3.850. Ex. N. The state
responded. Ex. O. The trial court denied the amended motion.
Ex. P. Petitioner appealed, and counsel filed an Anders
brief. Ex. R. The state filed a notice that it would not file
a brief. Ex. S. The 5th DCA, on August 11, 2015, per curiam
affirmed. Ex. T. The mandate issued on September 4, 2015. Ex.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
first ground of the Amended Petition, Petitioner claims there
was a violation of Brady principles through a
discovery violation, resulting in the deprivation of due
process and equal protection of the law. Amended Petition at
5. Respondents note that this ground correlates with the
first issue of Petitioner's direct appeal. Response at 5.
However, Respondents also note that when the ...