United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS, UNITED STATES DISTRICT JUDGE
Lapolean Owens, challenges a 2013 Duval County conviction for
three counts of burglary of a dwelling. In his Petition Under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person
in State Custody (Petition) (Doc. 1), he raises two claims of
ineffective assistance of trial counsel. Respondents filed a
Response to Petition for Writ of Habeas Corpus (Response)
(Doc. 9) with Exhibits. Petitioner filed a Reply to Response to
Petition for Writ of habeas Corpus (Doc. 10). See
Order (Doc. 4).
CLAIMS OF PETITION
claims are: (1) ineffective assistance of counsel for failure
to object to prosecutorial misconduct, and (2) ineffective
assistance of counsel for failure to impeach adverse
witnesses, Officer Dave Kaplitz and Sheraud Washington.
Court will address these grounds of ineffective assistance of
counsel, see Long v. United States, 626 F.3d 1167,
1169 (11th Cir. 2010) ("The district court must resolve
all claims for relief raised on collateral review, regardless
of whether relief is granted or denied.") (citing
Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992)
and Rhode v. United States, 583 F.3d 1289, 1291
(11th Cir. 2009)), but no evidentiary proceedings are
required in this Court. It is Petitioner's burden to
establish the need for a federal evidentiary hearing, and he
has not met the burden. Chavez v. Sec'y, Fla.
Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir.
2011), cert. denied, 565 U.S. 1120 (2012).
It is important to note that a district court is not required
to hold an evidentiary hearing if the record refutes the
asserted factual allegations or otherwise precludes habeas
relief. Schriro v. Landrigan, 550 U.S. 465, 474
(2007). After a comprehensive review of the record before the
Court, the Court finds that the pertinent facts are fully
developed in this record. Consequently, this Court is able to
"adequately assess [Petitioner's] claim[s] without
further factual development, " Turner v.
Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003),
cert. denied, 541 U.S. 1034 (2004), and no
further evidentiary proceedings are required in this Court.
STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act (AEDPA) governs
a state prisoner's federal petition for habeas corpus.
See 28 U.S.C. § 2254; Ledford v. Warden,
Ga. Diagnostic & Classification Prison, 818 F.3d
600, 642 (11th Cir. 2016), cert. denied,
137 S.Ct. 1432 (2017). "AEDPA limits the scope of
federal habeas review of state court judgments[.]"
Pittman v. Sec'y, Fla. Dep't of Corr., 871
F.3d 1231, 1243 (11th Cir. 2017). As such, AEDPA ensures that
federal habeas relief is limited to extreme malfunctions, and
not used as a means to attempt to correct state court errors.
Ledford, 818 F.3d at 642 (quoting Greene v.
Fisher, 132 S.Ct. 38, 43 (2011)).
parameters of review are as follows:
Thus, under AEDPA, a person in custody pursuant to the
judgment of a state court shall not be granted habeas relief
on a claim "that was adjudicated on the merits in State
court proceedings" unless the state court's decision
was "contrary to, or involved an unreasonable
application of, clearly established Federal law as determined
by the Supreme Court of the United States; or ... was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." 28
U.S.C. § 2254(d). "For § 2254(d), clearly
established federal law includes only the holdings of the
Supreme Court-not Supreme Court dicta, nor the opinions of
this Court." Taylor v. Sec'y, Fla. Dep't of
Corr., 760 F.3d 1284, 1293-94 (11th Cir. 2014).
As for the "contrary to" clause, "a federal
habeas court may grant the writ if the state court arrives at
a conclusion opposite to that reached by [the Supreme Court]
on a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of
materially indistinguishable facts." Terry Williams
v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146
L.Ed.2d 389 (2000). Under the "unreasonable
application" clause, a federal habeas court may
"grant the writ if the state court identifies the
correct governing legal principle from [the Supreme
Court's] decisions but unreasonably applies that
principle to the facts." Id. at 413, 120 S.Ct.
1495. "In other words, a federal court may grant relief
when a state court has misapplied a 'governing legal
principle' to 'a set of facts different from those of
the case in which the principle was announced.'"
Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527,
156 L.Ed.2d 471 (2003) (quoting Lockyer v. Andrade,
538 U.S. 63, 76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). And
"an 'unreasonable application of' [Supreme
Court] holdings must be objectively unreasonable, not merely
wrong; even clear error will not suffice." Woods v.
Donald, ___ U.S. ___, 135 S.Ct. 1372, 1376, 191 L.Ed.2d
464 (2015) (per curiam) (quotation omitted). To overcome this
substantial hurdle, "a state prisoner must show that the
state court's ruling on the claim being presented in
federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement."
Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct.
770, 178 L.Ed.2d 624 (2011). This is "meant to be"
a difficult standard to meet. Id. at 102, 131 S.Ct.
Pittman, 871 F.3d at 1243-44.
is a presumption of correctness of state court's factual
findings, unless the presumption is rebutted with clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). The
standard of proof is demanding, requiring that a claim be
highly probable. Bishop v. Warden, GDCP, 726 F.3d
1243, 1258 (11th Cir. 2013), cert. denied,
135 S.Ct. 67 (2014). Also, the trial court's
determination will not be superseded if reasonable minds
might disagree about the factual finding. Brumfield v.
Cain, 135 S.Ct. 2269, 2277 (2015). Also of note,
"[t]his presumption of correctness applies equally to
factual determinations made by the state trial and appellate
courts." Pope v. Sec'y for Dep't of
Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (quoting
Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)),
cert. denied, 568 U.S. 1233 (2013).
applying AEDPA deference, the first step is to identify the
last state court decision that evaluated the claim on its
merits. Marshall v. Sec'y, Fla. Dep't of
Corr., 828 F.3d 1277, 1285 (11th Cir.
2016). Once identified, the Court reviews the
state court's decision, "not necessarily its
rationale." Pittman, 871 F.3d at 1244 (quoting
Parker v. Sec'y for Dep't of Corr., 331 F.3d
764, 785 (11th Cir. 2003) (citation omitted)).
of whether the last state court provided a reasoned opinion,
"it may be presumed that the state court adjudicated the
claim on the merits in the absence of any indication or
state-law procedural principles to the contrary."
Harrington v. Richter, 562 U.S. 86, 99 (2011).
"The presumption may be overcome when there is reason to
think some other explanation for the state court's
decision is more likely." Richter, 562 U.S. at
99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803
the last adjudication on the merits is unaccompanied by an
explanation, the petitioner must demonstrate there was no
reasonable basis for the state court to deny relief.
Id. at 98. "[A] habeas court must determine
what arguments or theories supported or, as here, could have
supported, the state court's decision; and then it must
ask whether it is possible fairminded jurists could disagree
that those arguments or theories are inconsistent with the
holding in a prior decision of [the] Court."
Richter, 562 U.S. at 102; Marshall, 828
F.3d at 1285.
the § 2254(d) standard is difficult to meet, it was
meant to be difficult. Rimmer v. Sec'y, Fla.
Dep't of Corr., 876 F.3d 1039, 1053 (11th Cir. 2017)
(opining that to reach the level of an unreasonable
application of federal law, the ruling must be objectively
unreasonable, not merely wrong or even clear error),
petition for cert. docketed by (U.S. Mar.
9, 2018) (No. 17-8046). Indeed, in order to obtain habeas
relief, "a state prisoner must show that the state
court's ruling on the claim being presented . . . was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement."
Richter, 562 U.S. at 103.
order to provide context, the Court provides the relevant
procedural history of the criminal case. In an amended
information, Petitioner was charged with three counts of
burglary of a dwelling. Ex. A at 35. Petitioner filed a
Notice of Alibi. Id. at 53-54. On March 11-13, 2013,
the trial court conducted a jury trial. Ex. C; Ex. D; Ex. E.
The jury returned a verdict of guilty as charged. Ex. A at
111-15; Ex. E at 596. Petitioner moved for a new trial, Ex. A
at 161, and the trial court denied it. Id. at 162.
April 11-12, 2013, the trial court held a sentencing
proceeding. Ex. B at 281-382. The court sentenced Petitioner
to concurrent twelve-year prison terms for the three
offenses. Id. at 380-82. The court entered judgment
and sentence on March 13, 2013. Ex. A at 177-82. Petitioner
appealed his conviction. Id. at 193. Through
counsel, Petitioner filed an appeal brief. Ex. J. The state
filed an answer brief. Ex. K. Petitioner replied. Ex. L. On
July 17, 2014, the First District Court of Appeal (1st DCA)
per curiam affirmed. Ex. M. The mandate issued on August 25,
filed a Motion for Post Conviction Relief Pursuant [to] Fla.
R. Crim. P. 3.850 (Rule 3.850 motion), pursuant to the
mailbox rule, on March 31, 2015. Ex. N at 1-34. The trial
court ordered the state to file a response. Id. at
35-37. The state filed a Response to Defendant's Motion
for Post-Conviction Relief. Id. at 60-149.
Petitioner replied. Id. at 150-56.
trial court denied the Rule 3.850 motion in its Order Denying
Defendant's Motion for Post Conviction Relief.
Id. at 157-227. Petitioner filed a Notice of Appeal.
Id. at 228. He filed an Initial Brief. Ex. O. The
state filed a notice that it would not file a brief. Ex. P.
The 1st DCA, on April 22, 2016, per curiam affirmed. Ex. Q.
The mandate issued on June 17, 2016. Id. Petitioner
moved for rehearing. Ex. R. The 1st DCA, on June 2, 2016,
denied rehearing. Ex. S.
INEFFECTIVE ASSISTANCE OF COUNSEL
habeas petition, Petitioner raises two claims of ineffective
assistance of trial counsel, and in order to prevail on these
Sixth Amendment claims, Petitioner must satisfy the
two-pronged test set forth in Strickland v.
Washington, 466 U.S. 668, 688 (1984), requiring that he
show both deficient performance (counsel's representation
fell below an objective standard of reasonableness) and
prejudice (there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different). Recently, the Eleventh
Circuit, in Reaves v. Sec'y, Fla. Dep't of
Corr., 872 F.3d 1137, 1148 (11th Cir. 2017) (quoting
Strickland, 466 U.S. at 687), instructed: a
counsel's performance is deficient only if counsel's
errors are "so serious that counsel was not functioning
as the 'counsel' guaranteed the defendant by the
Sixth Amendment." And importantly, with regard to the
establishment of prejudice requirement, the Eleventh Circuit
provided that the reasonable probability of a different
result must be "a probability sufficient to undermine
confidence in the outcome. Id. (quoting
Strickland, 466 U.S. at 694).
order to prevail on a claim of ineffective assistance of
counsel, both parts of the Strickland test must be
satisfied. Bester v. Warden, Att'y Gen. of the State
of Ala., 836 F.3d 1331, 1337 (11th Cir. 2016) (citing
Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.
2000)), cert. denied, 137 S.Ct. 819 (2017).
However, a court need only address one prong, and if it is
found unsatisfied, the court need not address the other
FINDINGS OF FACT AND CONCLUSIONS OF LAW
ground one, Petitioner raises a claim of ineffective
assistance of counsel for failure to object to prosecutorial
misconduct. Petition at 5. Petitioner exhausted this ground
by raising it in ground one of ...