United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS, United States District Judge
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). Petitioner filed
a Reply Response (Reply) (Doc. 18). See Order (Doc.
CLAIMS OF PETITION
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.
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).
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.
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). 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)).
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. §
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).
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).
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.
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.
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).
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.
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.
appealed his conviction. Id. at 115. Through
counsel, Petitioner filed an Anders
brief. 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.
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.
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.
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.
INEFFECTIVE ASSISTANCE OF COUNSEL
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).
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
EXHAUSTION AND PROCEDURAL DEFAULT
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.
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).
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).
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).
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).
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,  and the 1st DCA per curiam
affirmed. Ex. L.
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.
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
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.
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.
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.
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 ...