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Bradley v. Secretary, Department of Corrections

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

March 30, 2018

SECRETARY, Department of Corrections, Respondent.



         William Bradley applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1) and challenges the validity of his state conviction for robbery while wearing a hood, mask, or other device to conceal his identity. The respondent admits the application's timeliness. (Doc. 5 at 3) Numerous exhibits (“Resp. Ex. ”) support the response. (Doc. 7) Bradley replied. (Doc. 8) The respondent correctly argues that Bradley fails to prove entitlement to relief.

         I. FACTS [1]

         On July 12, 2008, Peter Moore, a night auditor at the Best Western hotel in Palm Harbor, completed a report, turned out the lights in the office adjacent to the lighted front desk area, and put his head down to rest. Four or five minutes later Moore heard a sound and looked up to see a man, whose face was covered with a green cloth. Moore testified that the man moved swiftly behind Moore, put his hand on Moore's shoulder, and directed Moore to go to the front desk and open the cash drawer. After the man emptied the cash from the drawer, he directed Moore to open the cash register. Moore complied. The man emptied the register, took Moore to the office, and instructed Moore to lie on his stomach. After the man bound Moore's hands and ankles, Moore heard sounds that suggested the man was tampering with the video equipment. The man left the office and darted past a hotel guest who entered the lobby. The guest observed that the man was a black male wearing shorts and a tank top. After the man left the hotel, the guest found Moore and cut Moore's bindings. Neither the guest nor Moore could identify the man. The man was behind Moore during the robbery but Moore observed a “brown arm.” Moore testified that the man knew about the front desk cash drawer, which was not part of a cash register.

         Also, Moore testified that the door for discs on the hotel's surveillance equipment was closed before the robbery but was open afterward. Police obtained video evidence from the hard drive of the DVR device. Video surveillance showed the masked man going over the front desk at 2:06 a.m. Exterior video surveillance showed the man walking in the parking lot at 2:03 a.m. and at 2:10 a.m. Police showed the video evidence to Dimitar Mitzev, the front desk manager, who was uncertain but believed that the masked man was Bradley, a former hotel maintenance employee. Police showed the video evidence to Barry Carnahan, a former maintenance employee who infrequently worked with Bradley at the hotel. Carnahan thought that he recognized the masked man on the video from the manner in which the man carried himself and was dressed, but Carnahan was less than certain of the man's identity because Carnahan did not see the man's face. Carnahan testified that Bradley was the only black man at the hotel. Terminated a week or two before the robbery, Bradley was employed at the hotel for about a month.

         Bradley received his final paycheck about fourteen hours before the robbery. Carl Griggs, who once worked with Bradley for a day-labor service, drove Bradley to the hotel the day before the robbery. After collecting his paycheck, Bradley told Griggs that in his paycheck Bradley had been “shorted” by several hours' pay. At Bradley's request the following morning (July 12, 2008), Griggs took Bradley to the bus station in Clearwater. Bradley gave Griggs a pair of Adidas shoes. Bradley told Griggs that he could not afford the bus ticket, and Griggs drove Bradley home. Griggs gave police the shoes Bradley gave him. An FDLE analyst both compared the shoes with a partial shoe print found on the front desk and determined that the left shoe could have formed the print. Bradley's shoe had no unique characteristics but the shoe had the same design, size, and shape as the shoe print.

         DNA testing established that Bradley's DNA profile matched - at eleven of thirteen areas - the profile on a partially smoked cigarette found on the floor of the office where the masked man confronted Moore. Smoking was not allowed in the building, and the hotel manager did not recall seeing a cigarette butt on the office floor when his shift ended. Moore began his shift the evening before the robbery. Moore testified that he was “very certain” that the cigarette butt was not on the office floor before the robbery.

         The jury convicted Bradley of robbery while wearing a hood, mask, or other device to conceal his identity. The state trial court sentenced Bradley to life imprisonment as a violent career criminal (as a releasee offender, Bradley faced a thirty-year minimum mandatory sentence).


         A federal court may not grant habeas relief on a claim adjudicated in state court unless the adjudication “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). A habeas applicant “meets this demanding standard only when he shows that the state court's decision was ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Dunn v. Madison, 138 S.Ct. 9, 11 (2017) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). If a state court's decision is unaccompanied by an opinion explaining the denial of relief, a federal habeas court must determine “what arguments or theories” could have supported the state court's decision and “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 Supreme] Court.” Richter, 562 U.S. at 102.

         Under § 2254(d)(2), the state court's factual findings are entitled to “substantial deference” and will not be disturbed if reasonable minds reviewing the record might disagree about the finding in question. Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015). The habeas court presumes that the state court's determination of a factual issue is correct, unless the applicant rebuts that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         Bradley claims ineffective assistance of counsel, a difficult claim to sustain. “[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). To demonstrate that counsel was constitutionally ineffective, an applicant must show (1) that counsel's representation fell below an objective standard of reasonableness and (2) that counsel's deficient performance prejudiced the applicant. Strickland v. Washington, 466 U.S. 668, 687 (1984). The court presumes that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” 466 U.S. at 690. To establish prejudice under Strickland, an applicant must show a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694. “[W]hen a court is evaluating an ineffective-assistance claim, the ultimate inquiry must concentrate on ‘the fundamental fairness of the proceeding.'” Weaver v. Massachusetts, 137 S.Ct. 1899, 1911 (2017) (quoting Strickland, 466 U.S. at 696).

         “Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both ‘highly deferential, ' and when the two apply in tandem, review is ‘doubly' so.” Richter, 562 U.S. at 105 (citations omitted). “The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Richter, 562 U.S. at 105.


         A. Ground Two and Subclaim Two of Ground Three

         Bradley challenges both the State's evidence that he was the perpetrator and his trial counsel's effectiveness in arguing the motion for judgment of acquittal.

         1. Ground Two

         Bradley alleges that the state trial court deprived him of his constitutional right to due process by denying his motion for judgment of acquittal. (Doc. 1 at 15 and 19) He contends the evidence was insufficient to establish his identity as the perpetrator. (Doc. 1 at 15) Bradley did not raise this argument in support of a judgment of acquittal at trial, but on direct appeal he raised the argument as fundamental error.[2] The State argued that Bradley did not preserve the issue and in the alternative, that the State introduced competent, substantial evidence that Bradley committed the robbery. The state appellate court per curiam affirmed. Bradley v. State, 67 So.3d 207 (Fla. 2d DCA 2011).[3] The state court's decision warrants deference under Section 2254(d) as an adjudication on the merits.[4]

         The Due Process Clause of the Fourteenth Amendment requires the state to prove beyond a reasonable doubt each element of the offense charged. Jackson v. Virginia, 443 U.S. 307, 316 (1979). The governing question is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319 (emphasis in original). “When the record reflects facts that support conflicting inferences, there is a presumption that the jury resolved those conflicts in favor of the prosecution and against the defendant.” Preston v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449, 463 (11th Cir. 2015) (citation omitted). Jackson “makes clear that it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). “[A] federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was “objectively unreasonable.” Cavazos, 565 U.S. at 2 (citation omitted).

         The state court's rejection of Bradley's challenge to the sufficiency of the evidence is not objectively unreasonable. The jury observed the video evidence that showed the masked man climbing over the counter of the front desk and walking outside the hotel, and from this evidence the jury could compare the man's build with that of Bradley. A partial shoe print on the front desk counter had the same design, size, and shape as the left shoe of the pair that Bradley gave his friend after the robbery. (Resp. Ex. 2, v. 2 at 244) The jury could find from the video evidence and print comparison that the shoes worn by the masked man were those Bradley gave Griggs. In addition, the jury could infer - from both this evidence and Moore's testimony that he heard sounds as if the man was tampering with the surveillance equipment - that Bradley knew the hotel had video surveillance and wanted to divest himself of, or remove, inculpatory evidence.

         From Moore's testimony that on about four or five occasions he had observed Bradley when Moore started his shift (Resp. Ex. 2, v. 2 at 146, 154-55, 279), the jury could find that Bradley observed Moore on those occasions and knew when Moore came on duty. And from Moore's testimony that the man knew about the cash drawer (Resp. Ex. 2, v. 2 at 139, 143), the jury could infer that Bradley knew Moore would have access to the cash drawer.

         Bradley argues that Moore and the hotel guest who found Moore could not identify Bradley as the masked man. (Doc. 1 at 17) This argument goes to the weight of the evidence. The front desk manager and Carnahan gave testimony that was not definitive but was probative of Bradley's identity as the perpetrator. Bradley argues that when the prosecutor asked the manager to point Bradley out for the jury, the prosecutor asked another question, interrupting the manager's testimony, and the manager did not identify Bradley as the masked man. (Doc. 1 at 17) A review of record discloses that the manager testified, “I see him sitting right across - (indicating).” (Resp. Ex. 2, v. 2 at 198) From the manager's testimony that he knew Bradley and that the man on video appeared to be Bradley, the state court could reasonably determine that the manager identified Bradley as the masked man.

         Bradley argues that the manager testified on cross-examination that “he could not point a finger at anyone.” (Doc. 1 at 18) Bradley also argues that Carnahan, when shown the video, was not certain who the masked man was because the man's face was concealed. (Doc. 1 at 18) The manager's and Carnahan's testimony was not conclusive on the identity of the masked man, but the jury could infer from their testimony - together with the shoe print comparison and the evidence that Bradley's DNA was on the partially consumed cigarette found on the office floor - that Bradley was the masked man. The manager did not recall seeing a cigarette on the office floor when his shift ended and Moore took over before the robbery, and Moore was “very certain” the cigarette was not on the floor before the robbery. (Resp. Ex. 2, v. 2 at 144, 196) The prosecutor argued that Bradley discarded the cigarette during the robbery. In addition the prosecutor argued both that a photo from the exterior video showed that, before entering the hotel, Bradley made a motion to his mouth and that Bradley was smoking at the time. (Resp. Ex. 2, v. 2 at 167, 181, 282) The jury decided these questions by its verdict, and the jury's decision is supported by the record.[5]

         The evidence, when viewed in the light most favorable to the State, was sufficient for a rational trier of fact to find beyond a reasonable doubt that Bradley was the perpetrator, an essential element of the robbery charge. As a consequence Bradley cannot demonstrate that the state appellate court's affirmance was contrary to, or an unreasonable application of, Jackson or was based on an unreasonable determination of fact. Ground two warrants no relief.

         2. Subclaim Two of Ground Three

         Bradley contends that in moving for a judgment of acquittal his trial counsel rendered ineffective assistance by not arguing that the State failed to establish Bradley's identity as the perpetrator and, thereby, failed to preserve the issue for appeal. (Doc. 1 at 34 and 37) Bradley raised this ground in his post-conviction motion. (Resp. Ex. 9 at 11-13) The post-conviction court found that the trial transcript disclosed that the State presented sufficient evidence to permit the jury to negate all reasonable hypotheses of Bradley's innocence. (Resp. Ex. 12 at 4) The state court gave this analysis in denying relief (Resp. Ex. 12 at 4-5) (record citations and additional authority omitted):

Mr. Mitzev [the manager] and Mr. Carnahan [the former employee] positively identified - albeit without complete certainty - Defendant as the person they witnessed on the videotapes. Additionally, the State also presented physical evidence placing Defendant at the scene of the crime. First, Sergeant Nygren testified he observed a partially smoked cigarette laying on the floor of the hotel lobby, which forensic specialist Stacy Wall later collected. Diane Williams a Florida Department of Law Enforcement crime laboratory analyst, then positively matched the DNA present on the cigarette with the DNA lifted from Defendant's buccal swab. Second, Sergeant Nygren further testified Defendant's friend, Carl Griggs, provided him with a pair of Defendant's shoes. When compared with photographs of a shoe print left behind at the crime scene, a[n] FDLE analysis [sic] determined the two were a match. Finally, the record reveals the jury had an opportunity to personally observe surveillance videos of the robbery.
Given the abundance of evidence presented by the State at trial, Defendant's trial counsel would have had no grounds to successfully pursue a judgment of acquittal. See Mosley v. State, 46 So.3d 510, 526 (Fla. 2009) (“A motion for judgment of acquittal should not be granted unless ‘there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under law.'”) (quoting Williams v. State, 967 So.2d 735, 755 (Fla. 2007)). Accordingly, any attempt by trial counsel would have proven meritless.

         Bradley admits that the state court correctly found that his DNA was on the partially smoked cigarette found at the scene but argues that this evidence is consistent with his “reasonable” hypothesis of innocence. (Doc. 1 at 40) Specifically, he argues that the cigarette “was left in the office” by Bradley when he collected his paycheck and that the cigarette was knocked to the floor “presumably by the robber.” (Doc. 1 at 40-41)

         In Florida, “[w]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” Preston v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449, 460 (11th Cir. 2015) (citation omitted). The state courts have already determined - favorably to the State - what would have occurred under Florida law if Bradley's trial counsel had argued that the evidence was wholly circumstantial and that the evidence did not exclude every reasonable hypothesis except guilt. Consequently, Bradley cannot show that he was prejudiced by counsel's performance. See Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) (“The Florida Supreme Court already has told us how the issues would have been resolved under state law had [petitioner's counsel] done what [petitioner] argues he should have done ..... It is a fundamental principle that state courts are the final arbiters of state law, and federal habeas courts should not second-guess them on such matters.”) (citation and quotation marks omitted).

         Bradley argues (Doc. 1 at 39-40) that the state court unreasonably found (1) that the hotel manager and Carnahan “positively identified - albeit without complete certainty - Defendant as the person they witnessed on video tapes” (Resp. Ex. 12 at 4) and (2) that, when Bradley's shoes obtained from his friend Griggs were compared with photographs of the shoe print at the crime scene, an FDLE analyst determined that the two were “a match.” (Resp. Ex. 12 at 4) Bradley fails to rebut the presumption of correctness of the state court's findings by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). A reasonable jurist might agree that the manager's identification of Bradley as the masked man was “positive” but was tempered by the manager's testimony that he was not certain. Although Carnahan testified neither that Bradley was the masked man nor that he told police that Bradley was the man, Carnahan testified both that he had the opportunity to observe Bradley's height, weight, and physical demeanor and that he told police who Carnahan believed was the masked man. (Resp. Ex. 2, v. 2 at 212) Asked what he recognized, Carnahan testified, “Just the way he carried himself and the way he was dressed.” (Resp. Ex. 2, v. 2 at 213) On cross-examination Carnahan was asked, “basically was it your testimony that you recognized a similar build of the person on the video than that of Mr. Bradley.” Carnahan responded, “No. He was the only man - actually he was the only black man that was at the motel.” (Resp. Ex. 2, v. 2 at 214) Affording Carnahan's testimony a generous interpretation, a reasonable mind might agree that Carnahan identified Bradley to police as the man whom the employee believed, but was not certain, was depicted on the video, based on the man's manner, dress, and race.

         In addition a reasonable mind could agree - based on the FDLE analyst's testimony that the design, style, and size of the shoe print on the front desk counter corresponded with Bradley's shoe (Resp. Ex. 2, v. 2 at 244) - with the state court's finding that the analyst found a “match” based on the analyst's finding of “an agreement of class characteristics only.” (Resp. Ex. 2, v. 2 at 247) In short, the state court's determinations of law and fact were not “so lacking ...

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