United States District Court, N.D. Florida, Pensacola Division
ERIC S. THEORGOOD, Petitioner,
JULIE L. JONES, Respondent.
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.
cause is before the court on Petitioner's petition for
writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
(ECF No. 1). Respondent filed an answer and relevant portions
of the state court record (ECF No. 10). Petitioner filed a
reply (ECF No. 20).
case was referred to the undersigned for the issuance of all
preliminary orders and any recommendations to the district
court regarding dispositive matters. See N.D. Fla.
Loc. R. 72.2(B); see also 28 U.S.C. §
636(b)(1)(B), (C) and Fed.R.Civ.P. 72(b). After careful
consideration of all issues raised by the parties, it is the
opinion of the undersigned that no evidentiary hearing is
required for the disposition of this matter, Rule 8(a), Rules
Governing Section 2254 Cases. It is further the opinion of
the undersigned that the pleadings and attachments before the
court show that Petitioner is not entitled to relief.
BACKGROUND AND PROCEDURAL HISTORY
relevant aspects of the procedural background of this case
are established by the state court record (see ECF
No. 10). Petitioner was charged in the Circuit
Court in and for Santa Rosa County, Florida, Case No.
2012-CF-547, with one count of burglary of an occupied
dwelling while wearing a mask or hood (Ex. A at 52).
Following a jury trial, Petitioner was found guilty as
charged (see Ex. A at 56-57, Ex. L). On January 9,
2013, Petitioner was sentenced to seven (7) years in prison
(Ex. A at 135-39). Petitioner, through counsel, appealed the
judgment to the Florida First District Court of Appeal
(“First DCA”), Case No. 1D13-230 (Ex. A at 143).
He subsequently filed a notice of voluntary dismissal, and
the First DCA dismissed the appeal on May 28, 2013 (Exs. B,
6, 2013, Petitioner filed a motion to modify sentence in the
trial court, pursuant to Rule 3.800(c) of the Florida Rules
of Criminal Procedure (Ex. D at 1-4). The trial court denied
the motion on July 8, 2013 (id. at 7-8).
October 3, 2013, Petitioner filed a motion for
post-conviction relief, pursuant to Rule 3.850 of the Florida
Rules of Criminal Procedure (Ex. D at 36-55). In an order
rendered October 31, 2013, the state circuit court dismissed
the motion on procedural grounds, without prejudice to
Petitioner's filing an amended motion within 60 days
(id. at 58-59). Petitioner filed an amended motion
on November 13, 2013 (id. at 62-87). In an order
rendered December 16, 2013, the circuit court again dismissed
the motion on procedural grounds, without prejudice to
Petitioner's filing an amended motion within 60 days
(id. at 88-89). Petitioner filed a second amended
motion on January 6, 2014 (id. at 92-118). In an
order rendered February 12, 2014, the circuit court struck
the motion as facially insufficient, without prejudice to
Petitioner's filing a third amended motion within 60 days
(id. at 119-20). Petitioner filed a third amended
Rule 3.850 motion on April 14, 2014 (id. at 127-59).
The circuit court appointed counsel to represent Petitioner
and held a limited evidentiary hearing (Ex. D at 192-93, Ex.
E at 204-05, Ex. F). Following the evidentiary hearing, the
circuit court denied Petitioner's third amended Rule
3.850 motion (Ex. E at 220-26). Petitioner appealed the
decision to the First DCA, Case No. 1D15-2944 (Ex. G). The
First DCA affirmed the decision per curiam without written
opinion on April 29, 2016, with the mandate issuing June 30,
2016 (Ex. H). Theorgood v. State, 192 So.3d 522
(Fla. 1st DCA 2016) (Table).
filed the instant federal habeas action on July 29, 2016 (ECF
presents ten claims of ineffective assistance of trial
counsel (“IATC”) in his § 2254 petition
(see ECF No. 1 at 14-35). Petitioner asserts he
presented all ten of his claims to the state courts in his
Rule 3.850 motion (id. at 5-12).
acknowledges that Petitioner presented ten IATC claims to the
state court in his Third Amended Rule 3.850 motion, and that
the claims in Petitioner's § 2254 petition are
“undoubtedly similar” to the ones he presented to
the state court (ECF No. 10 at 8, 24). However, Respondent
contends Petitioner did not fairly present the federal nature
of any of his IATC claims to the state courts (id.
at 7-22). Respondent argues that Petitioner's citing the
Sixth and Fourteenth Amendments to the Constitution in his
Third Amended Rule 3.850 motion, without citing any Supreme
Court or federal appellate court case dealing with his
claims, was insufficient to satisfy the fair presentment
requirement (id.). Respondent further argues that in
Petitioner's initial brief in the post-conviction appeal,
he only referenced his “Constitutional rights, ”
and cited a couple of federal cases in discussing some of his
claims (including United States v. Cronic, 466 U.S.
648 (1984) and Strickland v. Washington, 466 U.S.
668 (1984)), but none of the federal cases actually supported
his claims (id.). Respondent contends all of
Petitioner's claims are thus unexhausted and procedurally
It is a
long-standing prerequisite to the filing of a federal habeas
corpus petition that the petitioner have exhausted available
state court remedies, 28 U.S.C. § 2254(b)(1),
thereby giving the State the “‘opportunity to
pass upon and correct' alleged violations of its
prisoners' federal rights.” Duncan v.
Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865
(1995) (quoting Picard v. Connor, 404 U.S. 270, 275,
92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (citation omitted)). To
satisfy the exhaustion requirement, the petitioner must
“fairly present” his claim in each appropriate
state court, alerting that court to the federal nature of the
claim. Duncan, 513 U.S. at 365-66;
O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999); Picard, 404 U.S.
Supreme Court has offered the following guidance for
determining whether a habeas petitioner has met the
“fair presentation” requirement. In Picard v.
Connor, the Court held that, for purposes of exhausting
state remedies, a claim for relief in habeas corpus must
include reference to a specific federal constitutional
guarantee, as well as a statement of the facts which entitle
the petitioner to relief. 404 U.S. at 277. In announcing that
“the substance of a federal habeas corpus claim must
first be presented to the state courts, ” id.,
404 U.S. at 278, the Court rejected the contention that the
petitioner satisfied the exhaustion requirement by presenting
the state courts only with the facts necessary to state a
claim for relief.
the Court has indicated that it is insufficient to make a
general appeal to a constitutional guarantee as broad as due
process to present the “substance” of such a
claim to a state court. In Anderson v. Harless, 459
U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982), the habeas
petitioner was granted relief on the ground that a jury
instruction violated due process because it obviated the
requirement that the prosecutor prove all the elements of the
crime beyond a reasonable doubt. Id. 459 U.S. at 7
(citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct.
2450, 61 L.Ed.2d 39 (1979)). The only manner in which the
habeas petitioner cited federal authority was by referring to
a state court decision in which “the defendant . . .
asserted a broad federal due process right to jury
instructions that properly explain state law.”
Anderson, 459 U.S. at 7. The Court expressed doubt
that a defendant's citation to a state-court decision
predicated solely on state law was sufficient to fairly
apprise a reviewing court of a potential federal claim merely
because the defendant in the cited case advanced a
federal claim. Id., 459 U.S. at 7 and n.3.
Furthermore, the Court clarified that such a citation was
obviously insufficient when the record satisfied the federal
habeas court that the federal claim asserted in the cited
case was not the same as the federal claim on which federal
habeas relief was sought. Id.
later, the Supreme Court readdressed the “fair
presentation” requirement in Duncan v. Henry,
513 U.S. 364. The Duncan Court strictly construed
the exhaustion requirement so as to mandate that, if state
and federal constitutional law overlap in their applicability
to a petitioner's claim, the petitioner must raise his
issue in terms of the applicable federal right in state court
in order to obtain federal review of the issue. The Supreme Court
explained, “[i]f a habeas petitioner wishes to claim
that an evidentiary ruling at a state court trial denied him
the due process of law guaranteed by the Fourteenth
Amendment, he must say so, not only in federal, but in state
court.” Duncan, 513 U.S. at 365-66.
Baldwin v. Reese, the Supreme Court again focused
upon the requirement of “fair presentation, ”
holding that “ordinarily a state prisoner does not
‘fairly present' a claim to a state court if that
court must read beyond a petition or a brief (or a similar
document) that does not alert it to the presence of a federal
claim in order to find material, such as a lower court
opinion in the case, that does so.” 541 U.S. 27, 32,
124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). The Baldwin
Court commented that “a litigant wishing to raise a
federal issue can easily indicate the federal law basis for
his claim in a state-court petition or brief, for example, by
citing in conjunction with the claim the federal source of
law on which he relies or a case deciding such a claim on
federal grounds, or by simply labeling the claim
‘federal.'” Id., 541 U.S. at 32.
With regard to this statement, the Eleventh Circuit stated in
McNair v. Campbell, 416 F.3d 1291 (11th Cir. 2005):
If read in a vacuum, this dicta might be thought to create a
low floor indeed for petitioners seeking to establish
exhaustion. However, we agree with the district court that
this language must be “applied with common sense and in
light of the purpose underlying the exhaustion requirement[:]
‘to afford the state courts a meaningful opportunity to
consider allegations of legal error without interference from
the federal judiciary.'” McNair [v.
Campbell], 315 F.Supp.2d at 1184 (quoting Vasquez v.
Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 620, 88
L.Ed.2d 598 (1986)). This is consistent with settled law
established by the Supreme Court. . . . We therefore hold
that “‘[t]he exhaustion doctrine requires a
habeas applicant to do more than scatter some makeshift
needles in the haystack of the state court
416 F.3d at 1302-03 (citations omitted).
state court record shows that Petitioner filed his Third
Amended Rule 3.850 Motion on the model form provided in Rule
3.987 of the Florida Rules of Criminal Procedure
(see Ex. D at 127-59). The form instructed
Petitioner as follows:
Additional pages are not permitted except with respect to the
facts that you rely upon to support your grounds for relief.
No citation of authorities need be furnished. If briefs or
arguments are submitted in support of your legal claims (as
opposed to your factual claims) they should be submitted in
the form of a separate memorandum of law.
(Ex. D at 127). In the section of the form which instructed
Petitioner to “state concisely every ground on which
you claim that the judgment or sentence is unlawful, ”
and to “summarize briefly the facts supporting each
ground, ” Petitioner set forth each of his ten IATC
claims (id. at 134-55). All of Petitioner's
grounds for relief referenced the denial of his right to
effective assistance of counsel, and all but two of them
cited the Sixth and Fourteenth Amendments of the U.S.
Constitution (id.). In support of all of his
grounds, Petitioner argued that defense counsel's
performance was deficient, and that counsel's performance
prejudiced him such that there was a reasonable probability
the outcome of trial would have been different without
counsel's errors and omissions (id.). In the
state circuit court's order disposing of Petitioner's
Rule 3.850 motion, the court adjudicated the merits of each
of Petitioner's claims (see ECF No. 1 at
36-42). The state court construed all of
Petitioner's IATC claims as federal claims, applying the
standard articulated by the Supreme Court in
Strickland, which is the applicable legal standard
for IATC claims brought under the Sixth Amendment.
references to federal law and the federal standard applicable
to IATC claims was sufficient to alert the state court to the
federal nature of his claims. Therefore, the undersigned
concludes Petitioner satisfied the fair presentation
component of the exhaustion requirement.
FEDERAL REVIEW OF STATE COURT'S ADJUDICATION OF
PETITIONER'S CLAIMS ON THE MERITS
courts may grant habeas corpus relief for persons in state
custody pursuant to 28 U.S.C. § 2254, as amended by the
Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Pub. L. 104-132, § 104, 110 Stat.
1214, 1218-19. Section 2254(d) provides, in relevant part:
(d) An application for a writ of habeas
corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that 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) (2011).
United States Supreme Court explained the framework for
§ 2254 review in Williams v. Taylor, 529 U.S.
362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The appropriate
test was described by Justice O'Connor as follows:
Under 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 this court on a
question of law or if the state court decides a case
differently than this Court has on a set of materially
indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant
the writ if the state court identifies the correct governing
legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the
Id., 529 U.S. at 412-13 (O'Connor, J.,
the Williams framework, on any issue raised in a
federal habeas petition upon which there has been an
adjudication on the merits in a state court proceeding, the
federal court must first ascertain the “clearly
established Federal law, ” namely, “the governing
legal principle or principles set forth by the Supreme Court
at the time the state court render[ed] its decision.”
Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct.
1166, 155 L.Ed.2d 144 (2003). The law is “clearly
established” only when a Supreme Court holding at the
time of the state court decision embodies the legal principle
at issue. Thaler v. Haynes, 559 U.S. 43, 47, 130
S.Ct. 1171, 175 L.Ed.2d 1003 (2010); Woods v.
Donald, ___ U.S. ___, 135 S.Ct. 1372, 1376, 191 L.Ed.2d
464 (2015) (“We have explained that clearly established
Federal law for purposes of § 2254(d)(1) includes only
the holdings, as opposed to the dicta, of this Court's
decisions.” (internal quotation marks and citation
identifying the governing legal principle(s), the federal
court determines whether the state court adjudication is
contrary to the clearly established Supreme Court case law.
The adjudication is not contrary to Supreme Court precedent
merely because it fails to cite to that precedent. Rather,
the adjudication is “contrary” only if either the
reasoning or the result contradicts the relevant Supreme
Court cases. Early v. Packer, 537 U.S. 3, 8, 123
S.Ct. 362, 154 L.Ed.2d 263 (2002) (“Avoiding th[e]
pitfalls [of § 2254(d)(1)] does not require citation to
our cases-indeed, it does not even require awareness of our
cases, so long as neither the reasoning nor the result of the
state-court decision contradicts them.”). Where there
is no Supreme Court precedent on point, the state court's
conclusion cannot be contrary to clearly established federal
law. See Woods, 135 S.Ct. at 1377 (holding, as to
claim that counsel was per se ineffective in being absent
from the courtroom for ten minutes during testimony
concerning other defendants: “Because none of our cases
confront the specific question presented by this case, the
state court's decision could not be contrary to any
holding from this Court.” (internal quotation marks and
citation omitted)). If the state court decision is contrary
to clearly established federal law, the federal habeas court
must independently consider the merits of the
petitioner's claim. See Panetti v. Quarterman,
551 U.S. 930, 954, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).
“contrary to” clause is not satisfied, the
federal habeas court next determines whether the state court
“unreasonably applied” the governing legal
principles set forth in the Supreme Court's cases. The
federal court defers to the state court's reasoning
unless the state court's application of the legal
principle(s) was “objectively unreasonable” in
light of the record before the state court.
Williams, 529 U.S. at 409; see Holland v.
Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L.Ed.2d
683 (2004) (per curiam). In applying this standard, the
Supreme Court has emphasized:
When reviewing state criminal convictions on collateral
review, federal judges are required to afford state courts
due respect by overturning their decisions only when there
could be no reasonable dispute that they were wrong. Federal
habeas review thus exists as “a guard against extreme
malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through
appeal.” Harrington, supra, at
102-103, 131 S.Ct. 770 (internal quotation marks omitted).
Woods, 135 S.Ct. at 1376 (quoting Harrington v.
Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624
2254(d) also allows federal habeas relief for a claim
adjudicated on the merits in state court where that
adjudication “resulted in a decision that 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)(2). The “unreasonable
determination of the facts” standard is implicated only
to the extent the validity of the state court's ultimate
conclusion is premised on unreasonable fact finding. See
Gill v. Mecusker, 633 F.3d 1272, 1292 (11th Cir. 2011).
As with the “unreasonable application” clause,
the federal court applies an objective test. Miller-El v.
Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d
931 (2003) (holding that a state court decision based on a
factual determination “will not be overturned on
factual grounds unless objectively unreasonable in light of
the evidence presented in the state court
proceeding.”). Federal courts “may not
characterize . . . state-court factual determinations as
unreasonable merely because we would have reached a different
conclusion in the first instance.” Brumfield v.
Cain, ___ U.S. ___, 135 S.Ct. 2269, 2277, 192 L.Ed.2d
356 (2015) (quotation marks omitted).
performing review under § 2254(d), the federal court
presumes that all factual determinations made by the state
court are correct. 28 U.S.C. § 2254(e)(1). The
petitioner bears “the burden of rebutting the
presumption of correctness by clear and convincing
evidence.” Id.; see, e.g.,
Miller-El, 537 U.S. at 340 (explaining that a
federal court can disagree with a state court's factual
finding and, when guided by the AEDPA, “conclude the
decision was unreasonable or that the factual premise was
incorrect by clear and convincing evidence”). Neither
the Supreme Court nor the Eleventh Circuit has interpreted
how § 2254(d)(2) and § 2254(e)(1) interact in the
context of fact-based challenges to state court
adjudications. See Cave v. Sec'y for Dep't of
Corr., 638 F.3d. 739 (11th Cir. 2011). However, the
Eleventh Circuit has declined to grant habeas relief under
§ 2254(d)(2) in the context of a state appellate
court's summary affirmance, where it found that the
validity of the state court decision was not premised on the
trial court's unreasonable fact finding, and that the
petitioner failed to demonstrate “by clear and
convincing evidence that the record reflect[ed] an
insufficient factual basis for affirming the state
court's decision.” Gill, 633 F.3d at 1292.
the federal habeas court finds that the petitioner satisfied
the AEDPA and § 2254(d), does the court take the final
step of conducting an independent review of the merits of the
petitioner's claims. See Panetti, 551 U.S. at
954. Even then, the writ will not issue unless the petitioner
shows that he is in custody “in violation of the
Constitution or laws and treaties of the United
States.” 28 U.S.C. § 2254(a). “If this
standard is difficult to meet, that is because it was meant
to be.” Richter, 562 U.S. at 102.
this framework, the court will review Petitioner's
A. Ground One: “Denial of Effective Assistance of
Counsel. Defense counsel conceded the defendant's guilt
to a crime during opening and closing statements without the
defendant's personal consent in the presence of the jury.
U.S. Constitution, Amendment VI, XIV.”
Ground Six: “Denial of effective assistance of
counsel. Defense counsel failed to question the police
investigator and the victims in trial about the original
description discrepancy of the suspect and failed to present
description discrepancy to the jury for a reasonable defense.
U.S. Constitution, Amendment VI, XIV.”
these claims concern defense counsel's choice of trial
strategy. In Ground One, Petitioner alleges defense counsel,
Attorney Pfeiffer, conceded his guilt to the lesser included
offense of trespassing without Petitioner's consent
(see ECF No. 1 at 5, 14-17). Petitioner alleges on
November 19, 2012, the day before his jury trial, Attorney
Pfeiffer visited him at the jail and informed Petitioner that
he (Pfeiffer) believed that the best trial strategy was to
concede that Petitioner trespassed into the victims'
hotel room, because Investigator Chris Henderson intended to
testify that Petitioner admitted to the trespass
(id.). Petitioner alleges he told Attorney Pfeiffer
that he did not admit to committing any crime, and
he did not commit either a trespass or a burglary
(id.). Petitioner alleges during opening statements
at trial, Attorney Pfeiffer admitted to the jury that the
State had evidence (including DNA evidence and testimony of
witnesses) that Petitioner entered the hotel room in
question, but Pfeiffer argued that there was no evidence
Petitioner intended to commit a crime in the hotel room;
therefore, Petitioner was guilty of only trespassing
(id.). Petitioner alleges Attorney Pfeiffer also
admitted Petitioner's guilt of trespassing in closing
arguments (id.). Petitioner alleges he did not
consent to Pfeiffer's strategy of admitting that
Petitioner was guilty of trespass (id.). Petitioner
contends Pfeiffer's conduct constituted ineffective
assistance of counsel, in violation of the Sixth Amendment
Ground Six, Petitioner alleges the victims initially
described the intruder as a black male, approximately
6'5" tall, weighing 300 pounds, and wearing gray
clothing and a towel over his head (ECF No. 1 at 26-27).
Petitioner alleges the victims' description changed nine
days after the crime, when DNA evidence linked Petitioner to
a pillowcase/hood discovered approximately one quarter mile
from the crime scene (id.). Petitioner alleges
Attorney Pfeiffer was deficient for failing to cross-examine
the victims about their varying physical descriptions, and
for failing to cross-examine Investigator Henderson about the
change in the victims' description (id.).
Petitioner further contends Attorney Pfeiffer was deficient
for failing to argue to the jury that the victims'
initial description of the intruder did not match
Petitioner's physical description, and that the
victims' description changed to match Petitioner's
physical description after the results of the DNA testing
were known (id.).
contends the state court's adjudications of Grounds One
and Six were not based upon an unreasonable determination of
the facts, or contrary to or an unreasonable application of
clearly established federal law (ECF No. 10 at 33-41, 47-49).
Clearly Established Federal Law
standard for evaluating claims of ineffective assistance of
counsel is set forth in Strickland v. Washington,
466 U.S. 668 (1984). To obtain relief under
Strickland, Petitioner must show (1) deficient
performance by counsel and (2) a reasonable probability that,
but for counsel's deficient performance, the result of
the proceeding would have been different. Id. at
687-88. If Petitioner fails to make a showing as to either
performance or prejudice, he is not entitled to relief.
Id. at 697.
focus of inquiry under the performance prong of
Strickland is whether counsel's assistance was
reasonable considering all the circumstances and under
prevailing professional norms. Strickland, 466 U.S.
at 688-89, 691. “The petitioner's burden to prove,
by a preponderance of the evidence, that counsel's
performance was unreasonable is a heavy one.” Jones
v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006)
(citing Chandler v. United States, 218 F.3d 1305,
1313 (11th Cir. 2000) (en banc)). “Judicial scrutiny of
counsel's performance must be highly deferential, ”
and courts should make every effort to “eliminate the
distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time.” Strickland, 466 U.S. at 689.
“[T]here are no ‘absolute rules' dictating
what reasonable performance is . . . .” Michael v.
Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005) (quoting
Chandler, 218 F.3d at 1317). Indeed,
“‘[a]bsolute rules would interfere with
counsel's independence-which is also constitutionally
protected-and would restrict the wide latitude counsel have
in making tactical decisions.'” Id.
(quoting Putman v. Head, 268 F.3d 1223, 1244 (11th
record is not complete regarding counsel's actions,
“then the courts should presume ‘that what the
particular defense lawyer did at trial-for example, what
witnesses he presented or did not present-were acts that some
lawyer might do.'” Jones, 436 F.3d at 1293
(citing Chandler, 218 F.3d at 1314-15 n.15).
“Even if many reasonable lawyers would not have done as
defense counsel did at trial, no relief can be granted on
ineffectiveness grounds unless it is shown that no reasonable
lawyer, in the circumstances, would have done so.”
Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
the prejudice prong of the Strickland standard,
Petitioner's burden of demonstrating prejudice is high.
See Wellington v. Moore, 314 F.3d 1256, 1260 (11th
Cir. 2002). To establish prejudice, Petitioner must show
“that every fair-minded jurist would conclude
‘that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.'” Jones
v. GDCP Warden, 753 F.3d 1171, 1184 (11th Cir. 2014)
(quoting Strickland, 466 U.S. at 694). “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome, ” not that
counsel's conduct more likely than not altered the
outcome of the proceeding. Id. (citation omitted).
And Petitioner must show that the likelihood of a different
result is substantial, not just conceivable. Williamson
v. Fla. Dep't of Corr., 805 F.3d 1009, 1016 (11th
Cir. 2015) (citing Richter, 562 U.S. at 112).
“When a defendant challenges a conviction, the question
is whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt
respecting guilt.” Strickland, 466 U.S. at
695. The prejudice assessment does “not depend on the
idiosyncracies of the particular decisionmaker, ” as
the court should presume that the judge or jury acted
according to law. Id. at 694-95. Further, when the
claimed error of counsel occurred at the guilt stage of trial
(instead of on appeal), Strickland prejudice is
gauged against the outcome of the trial, not on appeal.
See Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir.
2006) (citing Strickland, 466 U.S. at 694-95).
when a district court considers a habeas petition, the state
court's findings of historical facts in the course of
evaluating an ineffectiveness claim are subject to the
presumption of correctness, while the performance and
prejudice components are mixed questions of law and fact.
Strickland, 466 U.S. at 698; Collier v.
Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999).
“Surmounting Strickland's high bar is
never an easy task.” Padilla v. Kentucky, 559
U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).
“Establishing that a state court's application of
Strickland was unreasonable under § 2254(d) is
all the more difficult.” Richter, 131 S.Ct. at
Richter Court explained:
The standards created by Strickland and §
2254(d) are both “highly deferential, ” and when
the two apply in tandem, review is “doubly” so.
The Strickland standard is a general one, so the
range of reasonable applications is substantial. Federal
habeas courts must guard against the danger of equating
unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel's actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied
Strickland's deferential standard.
Id. (citations omitted).
Federal Review of State Court Decision
presented these claims as Grounds 1 and 6 in his Third
Amended Rule 3.850 motion (Ex. D at 134-37, 146-47). In the
state circuit court's written decision denying the
claims, the court correctly stated the deficient performance
and prejudice prongs of the Strickland standard as
the applicable legal standard (see ECF No. 1 at 38).
The court denied Ground 1 on the ground that Petitioner
failed to show he was prejudiced by counsel's alleged
error (see id.). The court adjudicated Ground 6 as
In Ground 6, Defendant essentially claims that counsel was
ineffective for conceding his guilt to the lesser-included
offense of trespassing. He alleges that counsel should have
adopted a strategy based on the discrepancies in the
description of the suspect given by the victims. He also
alleges that, if counsel had adopted such a strategy, then he
would have been acquitted.
The Court finds that Defendant has not demonstrated that
counsel's performance was deficient or that he was
prejudiced. At the limited evidentiary hearing, counsel
testified that, based on the evidence, he believed the best
trial strategy would be to admit that Defendant was in the
hotel room but argue that Defendant did not intend to commit
a crime therein.[FN 10] Based on the evidence presented by
the State . . . specifically Defendant's statement to the
investigator that the incident was a joke that had gone bad,
[FN 11] the Court finds that counsel's tactical decision
to concede guilt to the lesser-included offense of
trespassing was reasonable. See Harris v. State, 768
So.2d 1179, 1182-83 (Fla. [4th DCA 2000]). The Court
therefore concludes that Ground 6 should be denied.
[FN 10: Limited Evidentiary Hearing Transcript, pp. 31-34,
[FN 11: Exhibit D, Trial Transcript, pp. 188-89, 195-97.]
(ECF No. 1 at 41). The First DCA affirmed the decision
without written opinion (Ex. H).
Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160
L.Ed.2d 565 (2004), the Supreme Court made clear that an
attorney does not have the authority, without explicit
consent, to enter a guilty plea on behalf of a client, but
that counsel's concession of some level of guilt at trial
is not the functional equivalent of a guilty plea. 543 U.S.
at 187-88. The Court explained that despite the concession of
guilt made by Nixon's counsel, Nixon retained the rights
accorded a defendant in a criminal trial, including the right
to have the state prove every element of the offense beyond a
reasonable doubt. Id. at 188. The Court also
explained that a concession of guilt was not presumed to be
deficient performance, and under Strickland, the
defendant still must prove “counsel's concession
trial strategy was unreasonable.” Id. at 189.
The Court in Nixon found in that case that
ineffective assistance had not been shown. Although
Nixon was a capital case, the principles set forth
still apply in the noncapital context.
factual context of Petitioner's IATC claims are found in
the transcript of Petitioner's trial, which was part of
the record in the state post-conviction proceeding (as
evidenced by the circuit's court's reference to
portions of it in its order denying Petitioner's Rule
Attorney Pfeiffer's opening statement, he argued that
Petitioner was “possibly” guilty of trespass (Ex.
L at 94-98).
Meyer, one of the victims, testified that he, his wife
Kirsten, and his five-year-old son Martin stayed at the
Quality Inn hotel a/k/a/ Bay Beach Inn, in Gulf Breeze,
Florida on January 21 and 22 of 2012 (Ex. L at 98-100). Mr.
Meyer testified that their room was on the second floor
facing the water, and it had a balcony with a glass door,
which “opened like a normal door with hinges”
(id. at 101). Mr. Meyer testified that the door did
not have a screen (id.). Mr. Meyer testified that
when the family went to bed, they left the balcony door
propped open at least 45 degrees, with a fold-down door stop
(id. at 102). Mr. Meyer testified that there were
several items on the balcony, including two chairs from the
hotel, and the family's wet bathing suits, beach towels,
and sandals (id.). He testified that some of the
items were hanging on the railing of the balcony, and other
items were on the chairs (id. at 103). Mr. Meyer
testified there were no stairs leading to the balcony or any
other way to access the balcony from the ground
(id.). Meyer testified that his son was sleeping in
the bed closest to the balcony, and he and his wife were
sleeping in the other bed, which was closest to the front
door of the room (id. at 105-07). Mr. Meyer
testified that at approximately 3:00 in the early morning of
January 23, he had used the bathroom and went back to bed
facing the balcony (id. at 107, 112). He testified
that he had not fallen back to sleep, and heard a bit of
noise on the balcony, so he lifted his head and looked
(id.). Mr. Meyer testified that he saw an individual
looking into the room and moving through the threshold of the
balcony door into the room (id. at 107-08). Mr.
Meyer testified that he immediately got out of bed, yelled at
the intruder to leave, moved toward the person, and attempted
to push him out of the room through the balcony door
(id.). Mr. Meyer testified that the intruder was
approximately his own weight and height, had very dark skin,
and was wearing something white draped over his head and down
to his shoulders on both sides (id. at 108-09).
Meyer testified that the intruder's face was visible, but
the rest of his head was covered (id. at 109). Mr.
Meyer testified that his wife and son were screaming
(id. at 110). Meyer testified that he and his wife
pushed the intruder back through the door and onto the
balcony, and then the intruder went over the balcony
(id.). Mr. Meyer testified that he looked over the
balcony railing and saw the intruder lying motionless face
down (id. at 111). Meyer testified that the
intruder's head was no longer covered, and he could see
very dark skin and a close-shaven head (id.). Mr.
Meyer testified that he grabbed all of the items off the
balcony, went inside the room, and locked the door
(id.). Mr. Meyer testified that he saw sandy
footprints from the intruder “a good distance into the
room” (id. at 115-16). He testified that his
wife called 911 (id.). Mr. Meyer testified that he
suffered large scrapes on his back as a result of pushing the
intruder through the balcony door (id. at 114). He
testified that the intruder did not take anything from the
room (id. at 113). On cross-examination, Mr. Meyer
testified that his own height was approximately 5'8"
(id. at 120).
Meyer's trial testimony was generally consistent with her
husband's (Ex. L at 123-38). She testified that during
the early morning hours of January 23, 2012, she heard a thud
that woke her up (id. at 129). Mrs. Meyer testified
that she saw her husband engaged in a struggle with another
man (id. at 129-30). Mrs. Meyer testified that the
struggle occurred past her son's bed, which was closer to
the balcony, and at the foot of the bed in which she and her
husband were sleeping, which was the bed that was further
from the balcony and closer to the front door of the hotel
room (id. at 130). Mrs. Meyer testified that the
intruder had dark skin and short dark hair, was dressed in
dark gray clothing, and had something white covering the top
of his head (id. at 130-31). Mrs. Meyer testified
that she got out of bed and helped her husband push the
intruder out of the room and onto the balcony, and the
intruder “went back over the balcony”
(id. at 131). Mrs. Meyer testified that the intruder
landed flat on the ground, and at that point she saw that he
had short, dark hair (id.). Mrs. Meyer testified
that she went back into the room and called 911
(id.). Mrs. Meyer testified that police responded
while she was still on the phone (id. at 132). Mrs.
Meyer testified that after the intruder left the room, she
saw sandy footprints in the room (id. at 133). She
testified that the only items of value in the room were two
iPhones and an iPad, which were near the foot of the bed
where the struggle occurred, and her jewelry, which was in
the bathroom (id. at 132, 136). Mrs. Meyer testified
that the intruder did not take any items from the room
(id. at 132). Mrs. Meyer testified that she suffered
a bruise on her left arm as a result of the incident
(id. at 133). On cross-examination, Mrs. Meyer
testified that during the 911 call, she described the
intruder as 6'5" tall and weighing 300 pounds, but
she later realized that her description was not accurate due
to her perspective of lying down at the time she made the
observation (id. at 137, 142).
Couch, Jr., testified that at approximately 11:00 p.m. on
January 22, 2012, he gave Petitioner a ride from Janet's
Mustang Bar near Midway on Highway 98 in Gulf Breeze, to
Pensacola, and then back to Gulf Breeze (Ex. L at 149-52).
Mr. Couch testified that he dropped Petitioner off at the Bay
Beach Inn in Gulf Breeze at approximately midnight
(id. at 152).
John Zabelle testified he was a canine handler with the Santa
Rosa County Sheriff's Office at the time of the burglary
(Ex. L at 154-55). Zabelle testified he was dispatched to the
hotel, and upon his arrival, other officers informed him that
the suspect had come off the balcony and then ran
(id. at 158). Deputy Zabelle testified he went to
the area below the balcony where the suspect was last seen,
and then brought his canine to the spot (id.).
Zabelle testified the canine began to track to the east end
of the 3-Mile Bridge, along the seawall toward the foot of
the bridge (id. at 158-59). Deputy Zabelle testified
that a Gulf Breeze police officer accompanied him during the
canine track (id. at 159). Zabelle testified that
the canine tracked to a white pillowcase and a large white
towel with a “Choice Hotels International” label,
and the items were collected (id. at 159, 180-81).
The large white towel was admitted into evidence as Exhibit 7
(see Ex. L at 180-81; Ex. A at 87). The pillowcase
was admitted into evidence as Exhibit 8 (see Ex. L
at 181-82; Ex. A at 87).
Denney testified he was an officer with the Gulf Breeze
Police Department (Ex. L at 161). Denney testified that he
was the officer who accompanied Deputy Zabelle during the
canine track (id. at 161-64). Officer Denney
testified that upon discovering the pillowcase and towel, he
placed gloves on his hands and collected the items
(id. at 163-64). Officer Denney testified that he
observed two holes burned into the pillowcase, which were
approximately the diameter of a person's eyes and spaced
approximately the width of a person's eyes (id.
at 164-65). Denney testified that he also observed blood on
the pillowcase (id. at 165). Officer Denney
testified he turned the evidence over to Officer Stevens
(id. at 165-66).
Stevens, an officer with the Gulf Breeze Police Department,
testified that he collected items of evidence from Officer
Denney (Ex. L at 169-71). Stevens testified he placed each of
the items in a separate bag and placed the bags in his trunk
(id. at 171). He testified he returned to the police
station and turned the items over to Sergeant Lyster
(id. at 171-72).
Mark Lyster testified he received the items of evidence and
turned them over to Investigator Henderson (Ex. L at 173-75).
Chris Henderson testified that he responded to the Quality
Inn/Bay Beach Inn shortly after the burglary (Ex. L at
176-78). Henderson testified he photographed the balcony and
the area of ground just below the balcony (id. at
178-79). Investigator Henderson testified that he made a cast
of a shoe print found on the beach near the foot of the Three
Mile Bridge (id. at 178-79, 183-84). He testified
that in addition to the large towel and pillowcase discovered
by the officers during the canine track, two small
“hand or wash” towels were discovered near the
hotel buildings (id. at 179, 181). The small towels
were admitted into evidence as Exhibits 7A and 7B (Ex. L at
181; Ex. A at 87). Investigator Henderson testified he
submitted the shoe print cast and the pillowcase to the
Florida Department of Law Enforcement's
(“FDLE”) crime lab (id. at 179-84, 196).
Henderson testified that he developed Petitioner as a suspect
in the burglary (Ex. L at 185). Henderson testified that he
knew Petitioner as an acquaintance at a local bar
(id. at 185-86). Henderson testified that the local
television station broadcast a news story about the burglary,
and Henderson told the TV station that Petitioner was a
person of interest (id. at 186). Investigator
Henderson testified that the broadcast included a picture of
Petitioner (id.). Henderson testified that
Petitioner contacted him on February 9, 2012, after the
broadcast aired, and provided his date of birth and social
security number (id.). Henderson testified that
Petitioner asked why his photo was on the local news, and
Henderson responded that Petitioner was a suspect in the
hotel burglary (id. at 187). Investigator Henderson
testified that Petitioner initially denied that he was at the
hotel that night, and said he was at the Mustang Bar in Gulf
Breeze (id. at 187-88). Henderson testified that
Petitioner subsequently contacted him several times, and
after Henderson described some of the evidence he had
gathered, Petitioner admitted that he was at the hotel, and
described the incident as “a joke that had gone
bad” (id. at 188-89, 194). Investigator
Henderson testified that Petitioner told him that he went to
the hotel to meet some acquaintances, and when he got there,
he decided to scare them (id. at 188). Henderson
testified that Petitioner stated he climbed up onto the
second floor balcony and entered the hotel room, and then
realized that it was not the correct room (id.).
Investigator Henderson testified that he asked Petitioner
about the holes burned in the pillowcase, and Petitioner
stated that he used a cigarette lighter to make holes in the
pillowcase, which he intended to use to scare the
acquaintances in the hotel room (id.). Henderson
asked Petitioner the names of his acquaintances, but
Petitioner could provide only a first name and said it was a
woman with red hair (id. at 189, 194-95). Henderson
testified he asked Petitioner to try to provide the
woman's last name, but Petitioner said the woman was out
of the country (id.). Investigator Henderson
testified that Petitioner asked what the criminal charges
were, and Henderson responded that the charges were burglary
and battery (id. at 189). Henderson testified that
Petitioner responded that the male victim had battered him
(Petitioner) when Petitioner was standing in the room
(id. at 189, 195). Petitioner stated he tried to get
away but was tackled by the victims, causing him to fall over
the balcony onto the ground and injure himself
Henderson identified a pair of tennis shoes that he collected
from Petitioner after Petitioner was arrested and detained at
the jail (Ex. L at 190). Henderson testified he also
collected buccal swabs from Petitioner, and submitted the
evidence to FDLE (id. at 191-92). Investigator
Henderson testified that Petitioner's shoes and the shoe
print both had the impression “Jordan”
(id. at 194).
Kabus, a crime lab analyst with FDLE, testified that she
examined the cast of the shoe impression made at the scene
and determined that there was sufficient detail for her to
make a comparison (Ex. L at 199-200, Ex. M at 202-04). Ms.
Kabus testified that she compared the impression with the
pair of shoes provided by Investigator Henderson, and
determined that, based upon the tread design, physical size,
shape, and condition, the left shoe could have made the
impression (Ex. M at 204-06).
Kay, a crime lab analyst in the biology section of the FDLE,
testified that she examined the pillowcase provided by
Investigator Henderson (Ex. M at 218-29). Ms. Kay testified
that she cut a portion of the pillowcase where there appeared
to be blood and developed a full, complete DNA profile
(id. at 229). Ms. Kay testified that she compared
the DNA profile with the DNA profile of Petitioner's
buccal swab and determined that the DNA profiles matched
(id. at 230-32). Ms. Kay testified regarding the
statistical population frequency of the DNA match
(id. at 232). She testified, “[I]f you went
out and grabbed a random person off the street, the chances
that they would have that exact same profile . . . is 1 in 24
Quintilian [sic]” (id.). Ms. Kay testified
that the number is equal to one million times the Earth's
population (id. at 233).
closing argument, Attorney Pfeiffer argued that there were
not many facts in dispute, but the question for the jury was
whether the facts satisfied the elements of burglary (Ex. M
at 246-54). Pfeiffer argued that there was no dispute that
Petitioner was in the hotel room on the night of the crime,
but the evidence failed to prove that Petitioner intended to
commit a crime when he entered the room (id.).
Pfeiffer argued that the evidence was consistent with only
the crime of trespass, and that Petitioner should be found
guilty of only that offense (id.).
not a case where defense counsel conceded Petitioner's
guilt to the offense charged in the information. Petitioner
was charged with burglary of an occupied dwelling while
wearing a mask or hood. Petitioner alleges only, and the
record confirms, that Attorney Pfeiffer conceded only that
Petitioner was guilty of trespass. Therefore, defense
counsel's concession did not amount to a guilty plea, and
Petitioner's consent to the strategy was not required.
See McNeal v. Wainwright, 722 F.2d 674, 676-77 (11th
next question is whether Attorney Pfeiffer's trial
strategy was reasonable. Pfeiffer testified at the
post-conviction evidentiary hearing that he developed a trial
strategy based upon the evidence he expected the State to
introduce (Ex. F at 29-34). Attorney Pfeiffer testified that
he deposed Investigator Henderson and thus was aware of
Petitioner's admission to Henderson he had entered the
hotel room (id. at 31-33). Pfeiffer testified he was
also aware of the DNA evidence (id. at 33). Attorney
Pfeiffer testified that he was aware that there was a
discrepancy between Mr. and Mrs. Meyer's physical
descriptions of the intruder, but given the DNA evidence and
Petitioner's admission that he was in the room, he
believed that the better defense strategy was to focus on the
intent element of the burglary and argue for the lesser
included offense of trespass, as opposed to trying to
convince the jury that Petitioner was not in the hotel room
(id. at 33-40, 42). Attorney Pfeiffer testified that
he discussed this strategy with Petitioner prior to trial,
and although Petitioner didn't like it, Pfeiffer
explained why he was going with the trespass theory and that
he thought it was the best option (id. at 33-34).
Pfeiffer's trial strategy was reasonable. Attorney
Pfeiffer knew that Petitioner had admitted to Investigator
Henderson that he entered the victims' hotel room without
their consent, and Pfeiffer knew that Petitioner's
admission was admissible at trial. Pfeiffer also knew that
DNA evidence linked Petitioner to the bloody pillowcase found
during the canine track from where the intruder fell of the
balcony to the foot of the bridge where the pillowcase was
found. Attorney Pfeiffer's strategy was to cast doubt on
the State's evidence that Petitioner entered the hotel
room with the intent to commit a crime therein. The
State's evidence with respect to intent was purely
circumstantial, primarily that there were valuables in the
room, and Attorney Pfeiffer attempted to cast doubt on the
State's case with respect to intent by emphasizing that
Petitioner explained to Investigator Henderson that he
intended to play a joke on friends but mistakenly entered the
wrong room. Attorney Pfeiffer's strategic decision to
pursue a defense of conceding Petitioner's unauthorized
entry into the hotel room but arguing there was insufficient
evidence to prove that Petitioner intended to commit a crime
therein, instead of pursuing a defense of misidentification,
failed to demonstrate that the state court's adjudication
of Ground One or Ground Six was contrary to or an
unreasonable application of Strickland. See.
e.g., Solis v. Sec'y, Fla. Dep't of
Corr., ___ Fed.Appx. ___, 2018 WL 1129603, at *2 (11th
Cir. Mar. 1, 2018) (unpublished but recognized as persuasive
authority) (state court could have reasonably determined that
trial counsel, faced with victim's positive
identification and biological evidence connecting petitioner
to crimes of burglary with assault and sexual battery, made
strategic decision to concede that petitioner was guilty of
assault and to focus on State's failure to produce direct
evidence that petitioner had burgled the victim's
vehicle). Petitioner is not entitled to federal habeas relief
on Ground One or Ground Six.
Ground Two: “Denial of Effective Assistance of
Counsel. Defense counsel failed to seek defendant's
personal appearance regarding critical proceeding, speedy
trial calendar call and an opportunity to cancel or proceed
with the speedy trial demand. U.S. Constitution, Amendment
alleges Attorney Pfeiffer erred at a “calendar
call” proceeding on October 11, 2012, by failing to
seek Petitioner's appearance at the proceeding or to
request a continuance to enable Petitioner to appear and
participate (see ECF No. 1 at 6, 18-19). Petitioner
alleges the decision of whether to proceed with a demand for
speedy trial is strictly the defendant's decision, and at
no time did he authorize Attorney Pfeiffer to make any
decisions concerning his speedy trial rights (id.).
Petitioner alleges he did not waive his personal appearance
at the October 11 “calendar call” (id.).
He alleges Attorney Pfeiffer's proceeding without him
violated Rule 3.180 of the Florida Rules of Criminal
Procedure (id.). Petitioner alleges Attorney
Pfeiffer knew that the State intended to amend the
information in a manner that increased Petitioner's
maximum sentence exposure from 15 to 30 years (by charging
him under Florida Statute § 775.0845, which reclassified
his offense from a second degree felony to a first degree
felony based upon his wearing a hood during the burglary to
conceal his identity) (id.). Petitioner alleges if
he had been present at the October 11 “calendar call,
” he would have instructed Attorney Pfeiffer to
withdraw the demand for speedy trial to enable the defense to
conduct further investigation on the “amended
charges” (id.). Petitioner alleges he would
not have been found guilty of any wrongdoing if he had more
time to prepare a stronger defense (id.).
contends the state court's adjudication of Ground Two was
not based upon an unreasonable determination of the facts, or
contrary to or an unreasonable application of clearly
established federal law (ECF No. 10 at 41-42).
Clearly Established Federal Law
Strickland standard, set forth supra,
governs this claim.
Federal Review of State Court Decision
presented this claim as Ground 2 in his Third Amended Rule
3.850 motion (Ex. D at 138-39). The state circuit court
adjudicated the claim as follows:
In Ground 2, Defendant claims that counsel was ineffective
for failing to secure his presence at the calendar call held
on October 11, 2012. He alleges the following. He did not
waive his presence at the hearing, and he did not authorize
counsel to make any decisions regarding speedy trial. His
absence prejudiced the defense because the State intended to
file the second amended information. If he had been present
at the calendar call and informed of the State's intent,
he would have withdrawn his demand for speedy trial. The
defense would have then had more time to investigate, conduct
depositions, and prepare a reasonable defense on the new
charge in the third amended information, and he would have
The Court finds that Defendant's allegations are
conclusory and refuted by the record. Counsel filed the
demand for speedy trial on October 8, 2012.[FN 6] The
calendar call was held three days later on October 11,
2012.[FN 7] See Fla. R. Crim. P. 3.19l(b)(1). At the
calendar call, no matters were discussed that required
Defendant's input and no adverse rulings were made
against him. See Wike v. State, 813 So.2d 12, 20-21
(Fla. 2002). Counsel expressed his desire to have Defendant
present, but it was discovered that Defendant had not been
transported from the jail. Counsel did not make any new
decisions regarding speedy trial. The only matter discussed
was that the case needed to be set for trial and that the
parties had picked November 20, 2012, as the trial date.
See Fla. R. Crim. P. 3.19l(b)(2). The State did not
announce its intent to file the second amended information,
which notably was not filed until November 19, 2012.[FN 8]
The Court therefore concludes that Ground 2 should be denied.
[FN 6: Exhibit H, Demand for Speedy Trial.]
[FN 7: Exhibit I, Calendar Call Transcript.]
[FN 8: Exhibit C, Second Amended Information.]
(ECF No. 1 at 39-40). The First DCA affirmed the decision
without written ...