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Gardner v. Secretary, Florida Department of Corrections

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

April 19, 2018



          BRIAN J. DAVIS, United States District Judge


         Petitioner Michael Gardner, in his Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) (Doc. 1) and Argument in Support of § 2254 (Doc. 2), challenges a 2010 Duval County conviction for sale or delivery of cocaine (count one) and resisting officer without violence (count two). He raises twelve grounds in the Petition. Respondents filed a Response to Petition for Writ of Habeas Corpus (Response) (Doc. 15).[1] Petitioner filed a Reply Response (Reply) (Doc. 18). See Order (Doc. 9).


         The twelve grounds are: (1) the trial court erred in finding probable cause for Petitioner's arrest; (2) the trial court erred by overlooking the illegal search and seizure during the arrest, in contravention of the Fifth and Fourteenth Amendments; (3) the trial court deprived Petitioner of his rights under the Fifth and Fourteenth Amendments by denying Petitioner's motion for judgment of acquittal of sale or delivery of cocaine; (4) the trial court abused its discretion in admitting a poor quality audio recording of the drug transaction, depriving Petitioner of his rights under the Fifth and Fourteenth Amendments; (5) the ineffective assistance of counsel for failure to object and move to suppress the audio tape; (6) the ineffective assistance of counsel for failure to properly argue for a judgment of acquittal; (7) the ineffective assistance of counsel for failure to file a motion to dismiss the charges; (8) the ineffective assistance of counsel for failure to impeach Detective Williams with prior inconsistent statements; (9) the ineffective assistance of counsel for a failure to file a motion for new trial based on the fact that the verdict was contrary to the weight of the evidence; (10) the ineffective assistance of counsel for failure to argue a Fourth Amendment violation; (11) the ineffective assistance of counsel based on the cumulative errors of counsel; and (12) the trial court lacked jurisdiction to impose a sentence upon a criminal offense or theory not charged in the state's information, resulting in manifest injustice.


         Petitioner seeks an evidentiary hearing. Petition at 43. It is his 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). In this regard, 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 thorough review of the record before the Court, the Court finds that the pertinent facts are fully developed in this record or the record otherwise precludes habeas relief. 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).

         Although it is clear that no evidentiary proceedings are required in this Court, the Court will review the twelve grounds raised in the Petition, 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)), and determine whether Petitioner is entitled to the collateral relief he seeks.


         The 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). This narrow scope of review under AEDPA provides for habeas relief only if there are extreme malfunctions, certainly not to be used as a means to correct state court errors. Ledford, 818 F.3d at 642 (quoting Greene v. Fisher, 132 S.Ct. 38, 43 (2011)).

         Federal courts may grant habeas relief if:

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).
A state court's decision rises to the level of an unreasonable application of federal law only where the ruling is "objectively unreasonable, not merely wrong; even clear error will not suffice." Virginia v. LeBlanc, 582 U.S. __, __, 137 S.Ct. 1726, 1728, 198 L.Ed.2d 186 (2017) (per curiam) (quoting Woods v. Donald, 575 U.S. __, __, 135 S.Ct. 1372, 1376, 191 L.Ed.2d 464 (2015) (per curiam)). This standard is "meant to be" a difficult one to meet. Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).

Rimmer v. Sec'y, Fla. Dep't of Corr., 876 F.3d 1039, 1053 (11th Cir. 2017), petition for cert. docketed by (U.S. Mar. 9, 2018) (No.17-8046).

         "We also must presume that 'a determination of a factual issue made by a State court [is[ correct, ' and the petitioner 'ha[s] the burden of rebutting the presumption of correctness by clear and convincing evidence.' 28 U.S.C. § 2254(e)(1)." Morrow v. Warden, No. 17-10311, 2018 WL 1474837, at *5 (11th Cir. March 27, 2018), 886 F.3d 1138, __ (11th Cir. 2018). Additionally, "[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).

         Recently, in Wilson v. Sellers, No. 16855, slip op. 1, 5 (U.S. April 17, 2018), 584 U.S. __ (2018), the Supreme Court concluded there is a "look through" presumption in federal habeas law, as silence implies consent. See Kernan v. Hinojosa, 136 S.Ct. 1603, 1605 (2016) (per curiam). This presumption is employed when a higher state court provides no reason for its decision; however, it is just a presumption, not an absolute rule. Wilson, slip op. at 9. "Where there are convincing grounds to believe the silent court had a different basis for its decision than the analysis followed by the previous court, the federal habeas court is free, as we have said, to find to the contrary." Id. at 11.

         Thus, with the Supreme Court's guidance, this Court must undertake the following review. If the last state court to decide a prisoner's federal claim provides an explanation for its merits-based decision in a reasoned opinion, "a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable." Id. at 2. But, if the relevant state-court decision on the merits is not accompanied by a reasoned opinion, for example the decision simply states affirmed or denied, a federal court "should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale." Id. At this stage, the federal court presumes the unexplained decision adopted the same reasoning as the lower court. Id. The presumption is not irrebutable, as strong evidence may refute it. Hinojosa, 136 S.Ct. at 1606. The state can, however, rebut the presumption by showing the higher state court relied or most likely relied on different grounds than the lower state court, "such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed." Wilson, slip op. at 2.

         Although the § 2254(d) standard is difficult to meet, the standard is meant to be difficult. Rimmer, 876 F.3d at 1053 (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). This Court recognizes, applying the AEDPA standard, state court decisions must be given the benefit of the doubt. Trepal v. Sec'y, Fla. Dep't of Corr., 684 F.3d 1088, 1107 (11th Cir. 2012) (quotation and citations omitted), cert. denied, 568 U.S. 1237 (2013).


         In an information, Petitioner was charged with sale or delivery of cocaine and resisting an officer without violence. Ex. B1 at 10-11. The state filed a Notice of Intent to Classify Defendant as an Habitual Felony Offender. Id. at 12. On January 7, 2010, the trial court conducted a jury trial. Ex. B3; Ex. B4. The jury returned a verdict of guilty as to the two counts. Ex. B4 at 346-47; Ex. B1 at 50-51.

         On April 27, 2010, the trial court held a sentencing proceeding. Ex. B1 at 135-144. The court sentenced Petitioner as an habitual felony offender to thirty years in prison on count one, and to time-served on count two. Id. at 143-44. The court entered judgment and sentence on April 27, 2010. Ex. B1 at 102-108.

         Petitioner appealed his conviction. Id. at 115. Through counsel, Petitioner filed an Anders brief.[2] Ex. C. Thereafter, Petitioner filed a pro se brief. Ex. F. On June 15, 2011, the First District Court of Appeal (1st DCA) per curiam affirmed. Ex. G. The mandate issued on July 12, 2011. Ex. H.

         Petitioner filed a Motion for Postconviction Relief (Rule 3.850 motion), pursuant to the mailbox rule, on January 5, 2012. Ex. I at 1-15. He filed a Supplement to Motion for Postconviction Relief (supplement) on March 6, 2013, pursuant to the mailbox rule. Id. at 16-19. The trial court denied the Rule 3.850 motion and the supplement in its Order Denying Defendant's Motions for Postconviction Relief. Id. at 24-138. Petitioner appealed. Ex. J. The state filed a notice that it would not file a brief. Ex. K. The 1st DCA, on August 4, 2015, per curiam affirmed. Ex. L. The mandate issued on September 1, 2015. Ex. O.

         On July 28, 2015, Petitioner filed a Motion to Correct Illegal Sentence pursuant to Rule 3.800(a), Fla. R. Crim. P. Ex. R at 1-4. The trial court denied the motion. Id. at 9-11. Petitioner appealed. Id. at 24-27. He filed a brief. Ex. S. The state filed a notice of filing no answer brief. Ex. T. The 1st DCA per curiam affirmed. Ex. U. The mandate issued on November 29, 2016. Ex. V.

         Petitioner, on January 19, 2016, filed a Petition for Writ of Habeas Corpus in the 1st DCA. Ex. W. The 1st DCA, on February 9, 2016, dismissed the petition, citing Baker v. State, 878 So.2d 1236 (Fla. 2004) (per curiam) (finding habeas corpus relief is not available to obtain collateral post conviction relief if the claims can be raised pursuant to Rule 3.850). Ex. X.


         In order to prevail on his 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), petition for cert. docketed by (U.S. April 9, 2018) (No. 17-8428), 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).

         Finally, in 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 prong. Id.


         The Petition is timely filed. Response at 6-7. Respondents assert, however, ten out of Petitioner's twelve claims are procedurally defaulted, but Respondents recognize Petitioner adequately exhausted grounds six and nine. Id. at 7, 24, 31.

         Since the question of exhaustion has been raised, this Court must ask whether Petitioner's claims were fairly raised in the state court proceedings:

Before seeking § 2254 habeas relief in federal court, a petitioner must exhaust all state court remedies available for challenging his conviction. See 28 U.S.C. § 2254(b), (c). For a federal claim to be exhausted, the petitioner must have "fairly presented [it] to the state courts." McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005). The Supreme Court has suggested that a litigant could do so by including in his claim before the state appellate court "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.'" Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). The Court's guidance in Baldwin "must be applied with common sense and in light of the purpose underlying the exhaustion requirement"-namely, giving the state courts "a meaningful opportunity" to address the federal claim. McNair, 416 F.3d at 1302. Thus, a petitioner could not satisfy the exhaustion requirement merely by presenting the state court with "all the facts necessary to support the claim, " or by making a "somewhat similar state-law claim." Kelley, 377 F.3d at 1343-44. Rather, he must make his claims in a manner that provides the state courts with "the opportunity to apply controlling legal principles to the facts bearing upon (his) [federal] constitutional claim." Id. at 1344 (quotation omitted).

Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351-52 (11th Cir.2012), cert. denied, 568 U.S. 1104 (2013).

         The doctrine of procedural default requires the following:

Federal habeas courts reviewing the constitutionality of a state prisoner's conviction and sentence are guided by rules designed to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism. These rules include the doctrine of procedural default, under which a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule. See, e.g., Coleman, supra, at 747-748, 111 S.Ct. 2546; Sykes, supra, at 84-85, 97 S.Ct. 2497. A state court's invocation of a procedural rule to deny a prisoner's claims precludes federal review of the claims if, among other requisites, the state procedural rule is a nonfederal ground adequate to support the judgment and the rule is firmly established and consistently followed. See, e.g., Walker v. Martin, 562 U.S. __, __, 131 S.Ct. 1120, 1127-1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S. __, __, 130 S.Ct. 612, 617-618, 175 L.Ed.2d 417 (2009). The doctrine barring procedurally defaulted claims from being heard is not without exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law. See Coleman, 501 U.S., at 750, 111 S.Ct. 2546.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012).

         The Supreme Court has imparted that a petition for writ of habeas corpus should not be entertained unless the petitioner has first exhausted his state court remedies. Castille v. Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy, 455 U.S. 509 (1982). A procedural default arises "when 'the petitioner fails to raise the [federal] claim in state court and it is clear from state law that any future attempts at exhaustion would be futile.'" Owen v. Sec'y, Dep't of Corr., 568 F.3d 894, 908 n.9 (11th Cir. 2009) (quoting Zeigler v. Crosby, 345 F.3d 1300, 1304 (11th Cir. 2003)), cert. denied, 558 U.S. 1151 (2010).

         There are, however, allowable exceptions to the procedural default doctrine; "[a] prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law." Martinez, 566 U.S. at 10 (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). If cause is established, a petitioner is required to demonstrate prejudice. In order to demonstrate prejudice, a petitioner must show "that there is at least a reasonable probability that the result of the proceeding would have been different had the constitutional violation not occurred." Owen, 568 F.3d at 908. More particularly, to demonstrate cause, a petitioner must show that some objective factor external to the defense impeded his effort to properly raise the claim in state court. Wright v. Hopper, 169 F.3d 695, 703 (11th Cir.), cert. denied, 528 U.S. 934 (1999).

         After a thorough review of the record before the Court, the Court concludes Petitioner exhausted all of his claims of ineffective assistance of counsel. Thus, not only did he exhaust grounds six and nine, he also exhausted grounds five, seven, eight, ten, and eleven. See Reply at 2. He raised these claims in his Rule 3.850 motion, the trial court addressed the grounds applying the Strickland two-pronged test, and denied the claims. Ex. I at 24-37. Petitioner completed the exhaustion requirements by appealing the denial of the Rule 3.850 motion, [3] and the 1st DCA per curiam affirmed. Ex. L.

         Petitioner exhausted grounds one and two by presenting these grounds in his pro se brief on direct appeal. Ex. F. In Point One on direct appeal, Petitioner relied on the Fourth Amendment to the United States Constitution and referenced Jenkins v. State, 978 So.2d 116, 121 (Fla. 2008) ("The Florida Constitution now expressly provides that the right shall be construed in conformity with the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court."), a case addressing the reasonableness of a search under the Fourth Amendment. Ex. F at 5-7. In Point Three on direct appeal, Petitioner raised the following claim: "[t]rial court erred in violation of Appellant's Fourth Constitutional Amendment right in Article 1, Section 12 Illegal Search and Seizure." Ex. F at 9. Within the body of Point Three, he repeatedly referenced the Fourth Amendment and argued the officer did not have probable cause to conduct a search and seizure. Id. at 10-11.

         Petitioner admits that the constitutional claims raised in grounds three and four are unexhausted. As cause, he claims his appellate counsel performed deficiently by failing to raise these constitutional claims on direct appeal, and Petitioner was unrepresented in his post conviction proceeding, so he asks that the Martinez [v. Ryan, 566 U.S. 1 (2012)] exception be extended to these grounds. Reply at 6-8. Unfortunately for Petitioner, the narrow exception set forth in Martinez has not been extended to allow a federal court to hear a substantial, but procedurally defaulted claim of ineffective assistance of appellate counsel. Indeed, in Davila v. Davis, 137 S.Ct. 2058, 2065-66 (2017), the Supreme Court specifically declined to allow this extension. Thus, grounds three and four are unexhausted and procedurally defaulted.

         Petitioner has failed to show cause, and he does not meet the prejudice or manifest injustice exceptions. Although a petitioner may obtain review of the merits of a procedurally barred claim if he satisfies the actual innocence "gateway" established in Schlup v. Delo, 513 U.S. 298 (1995), Petitioner has not done so. The gateway is meant to prevent a constitutional error at trial from causing a miscarriage of justice and "'the conviction of one who is actually innocent of the crime.'" Kuenzel v. Comm'r, Ala. Dep't of Corr., 690 F.3d 1311, 1314 (11th Cir. 2012) (per curiam) (quoting Schlup, 513 U.S. at 324), cert. denied, 569 U.S. 1004 (2013). The fundamental miscarriage of justice exception is only available in extraordinary cases upon a showing of "'actual' innocence" rather than mere "'legal' innocence." Johnson v. Ala., 256 F.3d 1156, 1171 (11th Cir. 2001) (citations omitted), cert. denied, 535 U.S. 926 (2002). With respect to these unexhausted grounds, Petitioner has failed to identify any fact warranting the application of the fundamental miscarriage of justice exception.

         In conclusion, the Court finds grounds three and four are unexhausted and procedurally defaulted. As Petitioner has failed to establish cause and prejudice or any factors warranting the application of the fundamental miscarriage of justice exception to overcome the default, these grounds are due to be denied as procedurally barred.

         With respect to the issue of exhaustion, the last matter the Court will address is whether ground twelve of the Petition has been properly exhausted in the state court system. Upon review, Petitioner presented this ground in his Motion to Correct Illegal Sentence. Ex. R at 1-4. He claimed his sentence was "constitutionally intolerable[.]" Id. at 1. He asserted his thirty-year sentence was unconstitutional because he was not charged as a principal in the state's information. Id. He referenced due process principles in the body of his motion. Id. at 2. He also relied on United States v. Prentiss, 256 F.3d 971 (10th Cir. 2001) (recognizing the Fifth Amendment's requirement that the government prove each and every element of a crime beyond a reasonable doubt), overruling in part on other grounds recognized by Pioneer Centres Holding Co. Employee Stock Ownership Plan and Trust v. Alerus Financial, N.A., 858 F.3d 1324 (10th Cir. 2017). See Ex. R at 2.

         The trial court denied this claim for relief on its merits, finding it unnecessary "that an indictment or information specifically charge a person under the principal theory to sustain a conviction under the theory." Ex. R at 10 (citation omitted). Petitioner appealed, and the 1st DCA per curiam affirmed. Ex. U. Therefore, the Court concludes that ...

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