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Theorgood v. Jones

United States District Court, N.D. Florida, Pensacola Division

March 28, 2018

ERIC S. THEORGOOD, Petitioner,
JULIE L. JONES, Respondent.



         This 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).

         The 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.


         The relevant aspects of the procedural background of this case are established by the state court record (see ECF No. 10).[1] 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, C).

         On June 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).

         On 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).

         Petitioner filed the instant federal habeas action on July 29, 2016 (ECF No. 1).


         Petitioner 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).

         Respondent 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 defaulted (id.).

         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), [2] 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. at 277-78.

         The 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.

         Additionally, 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.

         Years 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.[3] 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.

         In 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 record.'”

416 F.3d at 1302-03 (citations omitted).[4]

         The 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).[5] 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.

         Petitioner's 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.[6] Therefore, the undersigned concludes Petitioner satisfied the fair presentation component of the exhaustion requirement.


         Federal 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).

         The 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 prisoner's case.

Id., 529 U.S. at 412-13 (O'Connor, J., concurring).

         Employing 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 omitted)).

         After 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).

         If the “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 (2011)).

         Section 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).

         When 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.

         Only if 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.

         Within this framework, the court will review Petitioner's claims.[7]

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.”

         Both of 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 (id.).

         In 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.).

         Respondent 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).

         1. Clearly Established Federal Law

         The 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.

         The 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 Cir. 2001)).

         If the 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).

         As to 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).

         Finally, 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 788.

         As the 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).

         2. Federal Review of State Court Decision

         Petitioner 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 follows:

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, 42-43.]
[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).

         In 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.

         The 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 3.850 motion).

         In Attorney Pfeiffer's opening statement, he argued that Petitioner was “possibly” guilty of trespass (Ex. L at 94-98).

         Sean 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).

         Kristen 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).

         John 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).

         Deputy 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).

         Jason 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).

         Mitchell 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).

         Sergeant Mark Lyster testified he received the items of evidence and turned them over to Investigator Henderson (Ex. L at 173-75).

         Investigator 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).

         Investigator 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 (id.).

         Investigator 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).

         Diana 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).

         Jennifer 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).

         In 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.).

         This is 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 Cir. 1984).

         The 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).

         Attorney 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, was reasonable.

         Petitioner 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.

         B. 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 VI, XIV.”

         Petitioner 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.).

         Respondent 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).

         1. Clearly Established Federal Law

         The Strickland standard, set forth supra, governs this claim.

         2. Federal Review of State Court Decision

         Petitioner 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 been acquitted.
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 ...

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