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Bradwell v. Jones

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

April 10, 2018

NICHOLAS BRADWELL, a/k/a/ NICHOLOUS BRADWELL, Petitioner,
v.
JULIE JONES, Respondent.

          REPORT AND RECOMMENDATION

          CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE

         Before the court is an amended petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 5). Respondent filed an answer, providing relevant portions of the state court record. (Doc. 15). Petitioner replied. (Doc. 24). The matter is referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the court show that petitioner is not entitled to habeas relief, and that the petition should be denied.

         BACKGROUND AND PROCEDURAL HISTORY

         On January 12, 2013, Florida Highway Patrol Trooper Mark Baker was driving on Lake Bradford Road in Tallahassee, Florida, when he approached petitioner's vehicle from behind.[1] Baker noticed that petitioner, the driver, was not wearing a safety belt. Baker activated his emergency lights. Petitioner first appeared to be pulling over, but instead abruptly turned left, crossing the lane of oncoming traffic and causing an oncoming vehicle, which had the right of way, to brake suddenly. After turning, petitioner accelerated very quickly down the road. Baker activated his siren and pursued petitioner's vehicle with siren and lights engaged. The chase reached speeds of 70 miles per hour in a residential area zoned for 35 miles per hour. At one point, petitioner slowed to 45 miles per hour and made a hard-right turn onto another street, then came to an intersection with a stop sign. Petitioner then made a sharp left turn at the intersection, running the stop sign at 35 miles per hour and then accelerating to 60 miles per hour. Baker pursued petitioner at 60 miles per hour until they reached the end of that street where it intersected with Mike Street. Petitioner drove through that intersection, pulled behind a house on Mike Street, jumped out of the vehicle while it was still moving, and started running through neighboring yards. Petitioner's vehicle crashed into a tree in the backyard of 1511 Mike Street. Baker pursued petitioner on foot through backyards, yelling, “Stop, this is the Police”, but petitioner kept running. Petitioner encountered a fence and, as he jumped it, almost fell. Baker observed a dark object fall away from petitioner's person. After scaling the fence petitioner took off running, but eventually threw his hands up, laid down on the ground on his back, and extended his arms to his sides. Baker ordered petitioner to not move, applied handcuffs, and placed him under arrest. Petitioner gave Baker his social security number for identification, which Baker ran through dispatch. Baker learned petitioner's name and that he had a suspended Florida Driver's License and was a convicted felon. Baker placed petitioner in his patrol vehicle and waited for back up.

         After back up arrived, Baker searched the vehicle and found two sandwich-sized Ziploc-style bags, full of cocaine, lying on the center console in front of the shifter. Baker then re-traced his steps along the path of the foot chase, and found one of petitioner's shoes in a backyard. Coming to the fence scaled by petitioner, Baker found a .40 caliber Glock pistol lying on the ground in the sand precisely in petitioner's path along with a purple Crown Royal bag containing a sandwich-sized Ziploc-style bag of cocaine and the same type bag of marijuana. The drugs were field tested and confirmed to be cocaine and marijuana. Searching petitioner's person, Baker found $1, 000.00 in cash. Petitioner was Mirandized and transported to the jail. (Doc. 15, Ex. C (trial transcript)).[2]

         Petitioner was charged in Leon County Circuit Court No. 2013-CF-140, with seven crimes: felony fleeing or attempting to elude a law enforcement officer in an agency vehicle with siren and lights activated at high speed or with wanton disregard for the safety of persons or property (Count 1); possession of a controlled substance - cocaine (Count 2); carrying a concealed firearm (Count 3); possession of a firearm by a convicted felon (Count 4); possession of cannabis (Count 5); resisting an officer without violence (Count 6); and driving while license suspended or revoked (Count 7). (Ex. A, p. 25). Petitioner retained counsel, John Edward Eagen. (Id., p. 45).

         Before trial, the defense stipulated that the narcotics found in the car and in the Crown Royal bag were cocaine and marijuana, and that at the time of the incident petitioner's driver's license and license privileges were suspended and petitioner knew they were suspended. (Id., pp. 49, 50). The firearm charges - Counts 3 and 4 - were severed. (See Ex. B, pp. 3-4). After a jury trial in which Trooper Baker was the only witness, a jury found petitioner guilty of the remaining five crimes as charged. (Ex. A, pp. 62-64). Petitioner was adjudicated guilty of Counts 1, 2, 5, 6 and 7, and sentenced to a total term of 8 years in prison.[3] (Ex. A, pp. 68-78 (judgment and sentence), pp. 91-104 (sentencing transcript)). On June 10, 2015, the Florida First District Court of Appeal (First DCA) affirmed the judgment per curiam without opinion. Bradwell v. State, 166 So.3d 768 (Fla. 1st DCA 2015) (Table) (copy at Ex. G).

         On October 14, 2015, petitioner filed a pro se motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Ex. H, pp. 1-32). The state circuit court denied relief without an evidentiary hearing (id., pp. 33-106), and the First DCA affirmed per curiam without opinion. Bradwell v. State, 191 So.3d 463 (Fla. 1st DCA 2016) (Table) (copy at Ex. K). The mandate issued June 13, 2016. (Ex. K).

         Petitioner filed his original federal habeas petition on June 24, 2016. (Doc. 1). Petitioner's amended petition raises four grounds for relief. (Doc. 5). Respondent asserts that to the extent any of petitioner's claims challenge the validity of the convictions on Counts 5, 6 and 7, the court is without jurisdiction to entertain them because those sentences completely expired prior to the date petitioner filed his original petition. Respondent asserts that to the extent petitioner's claims challenge the validity of his convictions on Counts 1 and 2, federal habeas relief must be denied. (Doc. 15).

         JURISDICTION TO REVIEW CONVICTIONS ON COUNTS 5, 6 AND 7

         A federal district court may entertain a habeas corpus petition only from a petitioner “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); see also 28 U.S.C. § 2254(a). The “in custody” requirement is jurisdictional. See Stacey v. Warden, Apalachee Corr. Inst., 854 F.2d 401, 403 (11th Cir. 1988). To satisfy the “in custody” requirement, “the habeas petitioner [must] be ‘in custody' under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989); see also id., 490 U.S. at 491 (“We have never held . . . that a habeas petitioner may be ‘in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed.”); id. at 492 (“While we have very liberally construed the ‘in custody' requirement for purposes of federal habeas, we have never extended it to the situation where a habeas petitioner suffers no present restraint from a conviction.”).

         Petitioner was sentenced on Counts 5, 6 and 7 to concurrent terms of 11 months and 29 days in the county jail with credit for 28 days. The sentences were imposed on July 15, 2013, and ran concurrent with the sentence imposed on Count 1. (Ex. A, p. 68). Petitioner filed his original petition in this case on June 24, 2016, which is two years after his sentences on Counts 5, 6 and 7 expired. Petitioner's reply does not address, much less dispute this fact. Although courts have traditionally interpreted the “in custody” requirement liberally to include situations where the sentence in question enhances or delays the commencement of another sentence, that circumstance does not exist here, because all of petitioner's sentences are concurrent. The sentences on Counts 5, 6 and 7 had no effect on the commencement of petitioner's other sentences. Petitioner does not allege, and nothing in the record suggests, that he is under any “present restraint” attributable to his convictions and sentences on Counts 5, 6 and 7. This court is thus without jurisdiction to consider any challenge to petitioner's convictions for possession of cannabis (Count 5), resisting a law enforcement officer without violence (Count 6), or driving while license suspended (Count 7). See Maleng, supra; see also e.g., Diaz v. State of Fla. Fourth Judicial Circuit ex rel. Duval Cnty., 683 F.3d 1261, 1264-65 (11th Cir. 2012) (holding that habeas petitioner in federal custody was not “in custody” under the state judgment he sought to collaterally attack, where he filed his habeas petition eight months after his state sentence had fully expired, he was not under any present restraint attributable to that state conviction, and any grant of relief would not serve to accelerate his release from his present federal confinement).

         HABEAS REVIEW OF CONVICTIONS ON COUNTS 1 AND 2 (FELONY FLEEING OR ATTEMPTING TO ELUDE A LAW ENFORCEMENT

         OFFICER; POSSESSION OF COCAINE)

         Section 2254 Standard of Review

         Federal courts are precluded from granting a habeas petition on a claim that was adjudicated on the merits in state court unless the state court's decision (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, ” or (2) “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 state court's factual determinations are presumed correct, unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

         The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362 (2000).[4] Justice O'Connor described the appropriate test:

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).

         Under the Williams framework, 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 (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. See Thaler v. Haynes, 559 U.S. 43, 47 (2010); Woods v. Donald, 575 U.S. __, __, 135 S.Ct. 1372, 1376 (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. See Early v. Packer, 537 U.S. 3, 8 (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 (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. See Williams, 529 U.S. at 409; Holland v. Jackson, 542 U.S. 649, 652 (2004). The Supreme Court described the “unreasonable application” standard this way:

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 (2011)). The § 2254(d) standard “is difficult to meet . . . because it was meant to be.” Richter, 562 U.S. at 102.

         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. See Miller-El v. Cockrell, 537 U.S. 322, 340 (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, 576 U.S. __, __, 135 S.Ct. 2269, 2277 (2015) (quotation marks omitted).

         Only if the federal habeas court finds that the petitioner satisfied § 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).

         Petitioner's Claims

         Ground OneThe Introduction of Inadmissible Collateral Crime/Other Bad Act Evidence Was Fundamental Error; the Evidence Was Harmful, Not Relevant and Deprived Petitioner of His Right to a Fair Trial. Thus, Violating His Sixth and Fourteenth Amendment Rights of the United States Constitution.” (Doc. 5, p. 5).

         This claim involves Trooper Baker's testimony describing the cocaine he found at the scene, and the cash he found on petitioner's person. Petitioner argues that although he was charged with only possessing cocaine - not with selling it or possessing it with the intent to sell - Trooper Baker testified “to the effect that Petitioner possessed a large amount of cocaine and a large amount of cash, and that the amount of cocaine and the packaging indicated that it was not for personal use.” (Doc. 5, p. 6). Petitioner contends that “the trial court abused its discretion and fundamentally erred when it allowed the State to introduce crime/other bad act evidence that was harmful, not relevant to the case, prejudicing Petitioner where the jury heard this irrelevant evidence and found Petitioner guilty and deprived him of a fair trial.” (Id., pp. 5-6).

         Respondent asserts a procedural default defense, arguing that petitioner's characterization of his claim as a violation of his Sixth and Fourteenth Amendment rights is new. When petitioner challenged the testimony at issue on direct appeal, his counseled initial brief did not, according to respondent, fairly present the matter as a violation of his federal constitutional rights; rather, he presented it as a state law issue. (Doc. 15, pp. 15-23). Respondent asserts that even if this court finds in petitioner's favor on the exhaustion issue (i.e., that he fairly presented the state court with the federal constitutional nature of his claim and that the state court denied relief on the merits as opposed to imposing a procedural bar), petitioner's claim still fails because he has not shown that the state court's rejection of the claim was contrary to, or an unreasonable application of, clearly established Federal law. (Id., pp. 23-26). Respondent is correct on both points.

         A. Exhaustion and Procedural Default

          Before bringing a § 2254 habeas action in federal court, a petitioner must exhaust all available state court remedies for challenging his conviction, 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 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971) (citation omitted)). The petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard, 404 U.S. at 277-78. A claim that was not presented to the state court and can no longer be litigated under state procedural rules is considered procedurally defaulted, i.e., procedurally barred from federal review. See Boerckel, 526 U.S. at 839-40, 848; Hittson v. GDCP Warden, 759 F.3d 1210, 1260 n.56 (11th Cir. 2014) (“Where a return to state court would be futile - because the petitioner's claims would clearly be barred by state procedural rules - a federal court can ‘forego the needless judicial ping-pong' and treat unexhausted claims as procedurally defaulted.” (quoting Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998))).

         A petitioner seeking to overcome a procedural default must “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). “For cause to exist, an external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim.” McCleskey v. Zant, 499 U.S. 467, 497 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). “To establish ‘prejudice, ' a petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different.” Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003).

         The miscarriage of justice exception requires the petitioner to show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995). “‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 624 (1998). The Schlup standard is very difficult to meet:

[A] substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. To be credible, such a claim requires [a] petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.

513 U.S. at 327. “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him.” Id.

         Petitioner's appellate counsel summarized the issue before the First DCA this way: “The improper admission of collateral crime/other bad act evidence suggesting that appellant, Nicholas Bradwell, had committed other uncharged crimes, was fundamental error. Such evidence is presumptively harmful, and it was actually harmful here, and fundamental error.” (Doc. 15, Ex. D, p. 9). Petitioner argued in substance that admission of the challenged testimony rose to the level of fundamental error as gauged by Florida decisional law in analogous contexts. (Ex. D, pp. 12-18 (discussing Czubak v. State, 570 So.2d 925 (Fla. 1990); Keen v. State, 775 So.2d 263 (Fla. 2000); Ward v. State, 559 So.2d 450 (Fla. 1st DCA 1990); Everett v. State, 124 So.3d 938 (Fla. 1st DCA 2013); and Bozeman v. State, 698 So.2d 629 (Fla. 4th DCA 1997))). Petitioner confined his argument to state law and state standards, namely: Florida's fundamental error standard; Florida case law discussing Florida's standards for gauging the harmfulness of an error; Florida's guidelines for admitting collateral crime/bad act evidence; and Florida case law determining whether, in particular circumstances, the admission of improper collateral crime evidence constituted fundamental error. (Id.). The state cases petitioner cited did not address federal law. Petitioner concluded:

[T]he jury had reason to be skeptical of the state's evidence, the uncorroborated testimony of a single witness; the admission of improper evidence of uncharged crimes could have caused the jury to resolve any qualms it had about the quality and reliability of the state's case against Bradwell; the state also sandbagged defense counsel by eliciting the testimony of uncharged bad acts for the first time on redirect examination. Admitting the evidence was fundamental error.

(Id., pp. 17-18).

         Petitioner's only reference to any constitutional right came in his labeling of the issue on appeal, where he said: The introduction of inadmissible collateral crime/other bad act evidence was fundamental error; the evidence was harmful, not relevant and deprived Appellant of his constitutional right to a fair trial.” (Ex. D, p. i). This single, general reference to a constitutional right is not enough to fairly present a federal constitutional claim under the Due Process Clause. The general reference to “constitutional right to a fair trial, ” unaccompanied by any identification or discussion of a federal constitutional standard, any reference to federal law, or any citation to a federal case does not meet the Eleventh Circuit standard of fair presentation. (Ex. D, pp. 10-18).

         The Eleventh Circuit requires more than “needles in the haystack” to satisfy the exhaustion requirement. See McNair v. Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005) (“We therefore hold that the exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record.” (internal quotation marks and citations omitted)); see also Landers v. Warden, Attorney Gen. of Ala., 776 F.3d 1288, 1296-97 (11th Cir. 2015) (holding that petitioner procedurally defaulted his claim that the state court's inadequate fact-finding procedures violated his Fourteenth Amendment due process rights; petitioner's claim in state court that he was denied a “fair” proceeding was not sufficient to apprise the state court of a federal claim about due process because the only support he presented for the argument was based on state law).

         Petitioner's present claim that the admission of collateral crime evidence violated his rights under the Sixth and Fourteenth Amendments is unexhausted and procedurally defaulted. Petitioner makes none of the requisite showings to excuse the procedural default. Petitioner's reliance on Martinez v. Ryan, 566 U.S. 1 (2012) in his reply is misplaced, as that equitable rule does not apply in this context. See Lambrix v. Sec'y, Fla. Dep't of Corr., 756 F.3d 1246, 1249 (11th Cir. 2014) (“[T]he equitable rule in Martinez ‘applies only to the issue of cause to excuse the procedural default of an ineffective assistance of trial counsel claim that occurred in a state collateral proceeding'[.]” (quoting Chavez v. Sec'y, Fla. Dep't of Corr., 742 F.3d 940, 943 (11th Cir. 2014))). Petitioner's procedural default bars federal habeas review of Ground One.[5] The undersigned notes that the requirement to fairly raise the federal claim does not merely serve to preserve the claim for federal habeas; it allows the state courts an opportunity to rule correctly on the federal issue.

         B. Section 2254 Review of State Court's Decision

         Even assuming to petitioner's benefit (without deciding) that he properly exhausted his federal constitutional challenge to the testimony at issue by presenting it in his direct appeal, he is not entitled to habeas relief. The First DCA's summary rejection of petitioner's claim warrants deference under 28 U.S.C. § 2254(d). See Harrington v. Richter, 562 U.S. 86, 100 (2011) (“This Court now holds and reconfirms that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'”). Because the First DCA's opinion offers no reasoned explanation and there is no lower court opinion to “look through” to, this court employs the test announced in Richter, supra. The Richter test provides that “[w]here a state court's decision is unaccompanied by an explanation, ” a petitioner's burden under section 2254(d) is to “show[ ] there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. 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 United States Supreme] Court.” Id. at 102.

         One theory that could have supported the First DCA's decision is that petitioner opened the door to the testimony he now challenges. Petitioner's defense strategy was to concede that the substance Baker found in the car and in the Crown Royal bag was cocaine, but to argue that the State's evidence failed to sufficiently connect petitioner to the cocaine. (Ex. C, pp. 20-21 (opening argument), pp. 40-57 (cross-examination of Trooper Baker), pp. 70-71 (motion for judgment of acquittal), pp. 103-04, 106-10 (closing argument)). The defense emphasized that no drugs were found on petitioner's person; that the car petitioner drove was not his; that the bags of cocaine recovered from the car and the Crown Royal bag were not tested for fingerprints; that the Crown Royal bag was not found in petitioner's actual possession; and that no drug paraphernalia or physical evidence of petitioner having used the drugs was found in the car or on his person. To that end, during cross-examination of Trooper Baker defense counsel asked Baker:

Q [Defense Counsel Eagan]: And inside of the - oh, first let me ask you about the baggies. Would you describe these about the size of a sandwich bag?
A [Trooper Baker]: We had - there were two different types of bags. There were ones that were the sandwich bags, which you could kind of see from the outside, and then inside of that were a couple of the small bags. Now -
Q: Slide - okay -
A: I'm sorry?
Q: The smaller bags, are they the type one would - like if you went to get - oh, sometimes you buy jewelry and they're in a little, tiny bag?
A: Yes. Yes, sir. Like you buy maybe earrings or something ...

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