United States District Court, M.D. Florida, Jacksonville Division
ALVIN O. CLAVELLE, Petitioner,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
J. DAVIS, United States District Judge
Alvin O. Clavelle, in his Petition Under 28 U.S.C. §
2254 by a Person in Custody Pursuant to a State Court
Judgment (Petition) (Doc. 1), challenges a 2010 Duval County
conviction for armed robbery and possession of a firearm by
convicted felon. He raises eighteen grounds in the Petition.
Respondents filed an Answer in Response to Order to Show
Cause (Response) (Doc. 18).Petitioner filed a Reply to Answer
in Response to Order to Show Cause (Doc. 22). See
Order (Doc. 9).
CLAIMS OF PETITION
grounds are presented in the Petition for habeas corpus
relief: (1) the trial court erred by allowing the state to
shift the burden of proof during redirect examination of
witness Brock and rebuttal closing argument; (2) the
ineffective assistance of appellate counsel for failure to
raise the issue that essential elements of the charges were
omitted in the charging document; (3) the ineffective
assistance of counsel for failure to move for a judgment of
acquittal, argue the weight of the evidence in a motion for
new trial, or object to the state's case being founded on
improper stacking of inferences; (4) the ineffective
assistance of counsel by leading Petitioner not to testify;
(5) the ineffective assistance of counsel for presenting a
fraudulent reason to obtain a continuance, denying Petitioner
his right to a speedy trial and allowing the state to build
its case; (6) the ineffective assistance of counsel for
failure to rely on established law to seek to suppress
Petitioner's statement or to seek redaction of Detective
Gagnon's hearsay statements; (7) the ineffective
assistance of counsel for failure to object to the admission
of a photograph, move for a mistrial, or seek a curative
instruction concerning a photograph of Petitioner taken at
the time of a prior arrest and viewed by the jury; (8) the
ineffective assistance of counsel for failure to object to
the prosecutor's comment on Petitioner's silence; (9)
the ineffective assistance of counsel for failure to object
to the charging document going back to the jury room as it
contained the possession of a firearm by a convicted felon
count; (10) the ineffective assistance of counsel for failure
to present evidence of the temperature on the date of
Petitioner's arrest; (11) the ineffective assistance of
counsel for failure to investigate and/or call an expert in
handwriting analysis; (12) the ineffective assistance of
counsel for failure to elicit from Gwendolyn Taylor that
Petitioner never referred to her as "Wifey, " nor
did he refer to himself as "Daddy"; (13) the
ineffective assistance of counsel for failure to object to
co-defendant Reginald Wescott's testimony that he was
testifying because he was taking responsibility for his
actions; (14) the ineffective assistance of counsel for
failure to request a mere presence at the scene instruction;
(15) the ineffective assistance of counsel for failure to
move to suppress evidence seized during the arrest; (16) the
ineffective assistance of counsel for failure to object to
the amended information based on its omission of essential
elements of the crimes; (17) the ineffective assistance of
counsel based on the cumulative errors of counsel; and (18)
the state appellate court erred in refusing to correct the
trial court's error in denying Petitioner's Rule
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). It is
Petitioner's burden to establish the need for a federal
evidentiary hearing, and he has not met the burden.
Chavez v. Sec'y, Fla. Dep't of Corr., 647
F.3d 1057, 1060 (11th Cir. 2011), cert.
denied, 565 U.S. 1120 (2012). The pertinent facts
are fully developed in this record or the record otherwise
precludes habeas relief. Therefore, the 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).
Court will review the eighteen 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 consider Petitioner's request for
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, 565 U.S. 34, 38 (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,
886 F.3d 1138, 1147 (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. 16-6855, 2018 WL 1800370,
at *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, 2018 WL 1800370, at *7. "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
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 *3. 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 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, 2018 WL
1800370, at *3.
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).
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). A counsel's performance is deficient only if
counsel's "identified acts or omissions were outside
the wide range of professionally competent assistance."
Id. at 690. And importantly, with regard to the
establishment of prejudice requirement, the reasonable
probability of a different result must be "a probability
sufficient to undermine confidence in the outcome."
Id. 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
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
two-part Strickland standard also governs a claim of
ineffective assistance of appellate counsel. Overstreet
v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016). The
Eleventh Circuit has stated:
To prevail on a claim of ineffective assistance of appellate
counsel, a habeas petitioner must establish that his
counsel's performance was deficient and that the
deficient performance prejudiced his defense. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674 (1984); Brooks v. Comm'r,
Ala. Dep't of Corr., 719 F.3d 1292, 1300 (11th Cir.
2013) ("Claims of ineffective assistance of appellate
counsel are governed by the same standards applied to trial
counsel under Strickland.") (quotation marks
omitted). Under the deficient performance prong, the
petitioner "must show that counsel's representation
fell below an objective standard of reasonableness."
Strickland, 466 U.S. at 688, 104 S.Ct. at 2064.
Rambaran v. Sec'y, Dep't of Corr., 821 F.3d
1325, 1331 (11th Cir. 2016), cert. denied,
137 S.Ct. 505 (2016).
a claim of ineffective assistance of trial counsel, the
combination of Strickland and § 2254(d)
requires a doubly deferential review of a state court
decision. See Harrington v. Richter, 562 U.S. 86,
105 (2011); see also Gissendaner v. Seaboldt, 735
F.3d 1311, 1323 (11th Cir. 2013) ("This double deference
is doubly difficult for a petitioner to overcome, and it will
be a rare case in which an ineffective assistance of counsel
claim that was denied on the merits in state court is found
to merit relief in a federal habeas proceeding.")
(quotation marks and alteration omitted), cert.
denied, 135 S.Ct. 159 (2014). Indeed, the Supreme
Court has opined that "[i]f this standard is difficult
to meet, that is because it was meant to be."
Richter, 562 U.S. at 102.
considering deficient performance by appellate counsel,
a court must presume counsel's performance was
"within the wide range of reasonable professional
assistance." Id. at 689, 104 S.Ct. 2052. Appellate
counsel has no duty to raise every non-frivolous issue and
may reasonably weed out weaker (albeit meritorious)
arguments. See Philmore v. McNeil, 575 F.3d 1251,
1264 (11th Cir. 2009). "Generally, only when ignored
issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be
overcome." Smith v. Robbins, 528 U.S. 259, 288,
120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (quoting Gray v.
Greer, 800 F.2d 644, 646 (7th Cir. 1986)); see also
Burger v. Kemp, 483 U.S. 776, 784, 107 S.Ct. 3114, 97
L.Ed.2d 638 (1987) (finding no ineffective assistance of
counsel when the failure to raise a particular issue had
"a sound strategic basis").
Overstreet, 811 F.3d at 1287; see also Owen v.
Sec'y, Dep't of Corr., 568 F.3d 894,
915 (11th Cir. 2009) (stating "any deficiencies of
counsel in failing to raise or adequately pursue [meritless
issues on appeal] cannot constitute ineffective assistance of
counsel"), cert. denied, 558 U.S. 1151
satisfy the prejudice prong, a petitioner must show a
reasonable probability that "but for the deficient
performance, the outcome of the appeal would have been
different." Black v. United States,
373 F.3d 1140, 1142 (11th Cir. 2004) (citations omitted),
cert. denied, 543 U.S. 1080 (2005); see
Philmore v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir.
2009) ("In order to establish prejudice, we must first
review the merits of the omitted claim.
performance will be deemed prejudicial if we find that
'the neglected claim would have a reasonable probability
of success on appeal.'") (citations omitted),
cert. denied, 559 U.S. 1010 (2010).
detailed procedural history is provided in the Response.
Response at 2-13. It will not be repeated here. The Court
will provide a brief statement of procedural history as it
relates to exhaustion of the claims.
was charged by third amended information with armed robbery
and possession of a firearm by a convicted felon. Ex. E at
37. On June 2-3, 2010, the trial court conducted a jury
trial. Ex. G; Ex. H; Ex. I. The jury returned a verdict of
guilty as to the two counts. Ex. E at 93-95; Ex. I at 442,
22, 2010, the trial court held a sentencing proceeding. Ex.
F. The court sentenced Petitioner to concurrent terms in
prison: thirty years in prison on the armed robbery count,
with a ten-year minimum mandatory term, and fifteen years in
prison on the possession of a firearm count, with a
three-year minimum mandatory term. Id. at 34-35. The
court also revoked and terminated Petitioner's probation
in another case, and sentenced Petitioner to fifteen years in
prison. Id. at 35. The court entered judgment and
sentence for armed robbery and possession of a firearm by a
convicted felon on July 22, 2010. Ex. J at 27-34.
filed a Motion to Correct Illegal Sentencing Error Under Rule
3.800(b)(2), Florida Rules of Criminal Procedure. Ex. N. The
trial court granted the motion. Id. On December 30,
2011, the court amended the sentencing order, per the order
of December 21, 2011. Ex. J at 29. The amendment concerned
fees and costs, not the length of the prison term.
sought a belated appeal, and the First District Court of
Appeal (1st DCA) granted the request for a belated appeal.
Ex. A; Ex. B. Through counsel, Petitioner filed an appeal
brief. Ex. Q. The state filed an answer brief. Ex. R. On
December 26, 2012, the 1st DCA per curiam affirmed. Ex. S.
Petitioner moved for rehearing, and the 1st DCA denied the
motion. Ex. T. The mandate issued on January 11, 2013. Ex. U.
filed a Motion for Postconviction Relief (Rule 3.850 motion),
pursuant to the mailbox rule, on September 19, 2013. Ex. V at
1-32. The trial court struck the motion, granting leave to
amend. Id. at 33-69. Petitioner filed his Amended
Motion for Postconviction Relief (amended Rule 3.850 motion)
on December 4, 2014, pursuant to the mailbox rule.
Id. at 70-117. The trial court ordered the state to
file a response to ground three of the amended Rule 3.850
motion. Id. at 118-22. The state responded. Ex. X.
Petitioner replied. Ex. W at 212-13. The trial court denied
the amended Rule 3.850 motion. Id. at 216-394.
Petitioner appealed. Id. at 398. He filed a brief.
Ex. Y. The state filed a notice that it would not file a
brief. Ex. Z. The 1st DCA, on February 11, 2016, per curiam
affirmed. Ex. AA. The mandate issued on March 8, 2016.
Petitioner, on April 17, 2013, filed a Petition for Writ of
Habeas Corpus Ineffective Assistance of Appellate Counsel in
the 1st DCA. Ex. BB. The state responded. Ex. EE. Petitioner
replied. Ex. FF. The 1st DCA, on January 13, 2014, denied the
petition on its merits. Ex. GG.
case is ripe for review. Therefore, the Court will address
each ground of the Petition.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
first ground of the Petition, Petitioner raises a claim of
trial court error in allowing the state to shift the burden
of proof during redirect examination of witness Brock and
rebuttal closing argument. Petitioner exhausted this claim by
raising it on direct appeal. Ex. Q. The 1st DCA affirmed. Ex.
Court finds that Petitioner adequately exhausted his claim by
presenting it on direct appeal. The 1st DCA affirmed per
curiam. Ex. S. Thus, there is a qualifying state court
decision under AEDPA.
under AEDPA should be given to the 1st DCA's
adjudication. Its decision is not inconsistent with Supreme
Court precedent. The state court's adjudication of this
claim is not contrary to or an unreasonable application of
Supreme Court law, or based on an unreasonable determination
of the facts. Petitioner is not entitled to habeas relief
based on this claim. Thus, ground one is due to be denied.
the Court finds Petitioner is not entitled to habeas relief
on this ground. Petitioner, on direct appeal, asserted the
trial court erred by allowing the state to shift the burden
of proof to the defense during redirect examination of state
witness Greg Brock and through rebuttal closing argument. Ex.
Q at i. At trial, the state called Greg Brock, a
analyst employed by the Florida Department of Law
Enforcement, to testify. Ex. G at 156-57. On re-direct
examination, the following inquiry took place:
Q Mr. Brock, does the State Attorney's Office as well as
any defense attorney have the ability to submit items to you
A As far as I'm -- as far as I know anybody can
contribute to the evidence section in the laboratory.
Q So it's not just something that the State
Attorney's Office or the Sheriff's Office has --
MS. FOURMAN [Defense Counsel] Your Honor, I object to this.
THE COURT: I overrule the objection.
BY MS. SMITH:
Q It's not just something that the State Attorney's
Office or the Sheriff's Office has to provide you. It can
be provided --
A As far as I know it has to be a contributing agency.
Obviously somebody can't walk in off the street, but as
far as I know, you know.
Id. at 169.
on, defense counsel asked to put on the record the purpose of
the objection. Id. at 184. She said the basis of the
objection was "burden shifting[, ]" as Brock's
testimony suggested that anybody could submit DNA for
comparison. Id. at 185. The prosecutor responded
that the reason for the question was because Ms. Fourman
asked, "well, no swabs of Reginald Burroughs were
submitted and analyzed with these samples so we felt it was
necessary to establish that." Id. The court
said because it was a response by the state to the
defense's question, the objection was overruled.
Id. In sum, the court found it was a proper
follow-up question to a topic raised by the defense.
record reflects that on cross examination, defense counsel
asked, "[a]nd you were not asked to compare any of the
DNA from the guns or the glove to a specific sample from
Reginald Burroughs, it that correct?" Id. at
168. Mr. Brock responded that he did not have a DNA standard
from Mr. Burroughs. Id. Defense counsel asked Mr.
Brock, if he had received such a sample, could he have
compared it to the DNA from the seized items. Id.
Mr. Burroughs responded in the affirmative. Id.
the record clearly shows that defense counsel broached the
subject, and the prosecutor's questions were in response
to the topic raised by the defense. In this instance, the
court ruled the prosecutor's follow-up questions were an
invited response to those raised by Petitioner.
and alternatively, this claim should be denied because:
[t]his ground alleges a claim of state law error,
specifically a state trial court evidentiary ruling.
"[F]ederal habeas corpus relief does not lie for errors
of state law." Lewis v. Jeffers, 497 U.S. 764,
780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990); see Estelle
v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116
L.Ed.2d 385 (1991) (explaining that errors that do not
infringe on defendant's constitutional rights provide no
basis for federal habeas corpus relief).
Dishman v. Jones, No. 4:12cv485-WS, 2015 WL 3952670,
at *6 (N.D. Fla. June 29, 2015). Even
assuming the trial court erred in its ruling, "[an
erroneous state evidentiary ruling will be considered
fundamentally unfair only if it concerns a matter which is
material in the sense of a crucial, critical, highly
significant factor." Dobbs v. Kemp, 790 F.2d
1499, 1504 (11th Cir. 1986) (quoting Shaw v.
Boney, 695 F.2d 528, 530 (11th Cir.1983)) (internal
quotation marks omitted), decision modified on denial of
reh'g, 809 F.2d 750 (11th Cir. 1987). With regard to
this evidentiary ruling, that is not the case.
also claims the trial court erred in allowing the state to
shift the burden in closing arguments. In particular,
Petitioner references the following portion of the
prosecutor's closing argument:
There's no possible way he could have seen Reginald
Wescott with this mysterious third guy, who, by the way, just
happens to look real similar to Alvin Clavelle and nothing
like this Reginald Burroughs, who you've heard absolutely
no evidence from as being a suspect or being involved at
anytime during this crime, except until this trial from the
defense attorney's mouth. From no other witnesses at all.
If they're so concerned about Reginald Burroughs, why
didn't they go do this? It's not our job to test DNA
Ex. I at 406.
counsel objected. Id. The prosecutor said,
"[s]he [defense counsel] brought it up."
Id. After approaching the bench, the following
MR. ROCKWELL [the prosecutor]: Your Honor, just to go off
that, the Court allowed me on cross -- the Court allowed the
witness to testify that anybody can give DNA and if
they're going to say that it's our job to test the
guy who was never even a suspect, that's just speaking
along the lines of the testimony during trial.
MS. FOURMAN: Your Honor, I absolutely disagree. I think that
was clearly burden shifting.
THE COURT: I'm sorry. You think it was clearly.
MS. FOURMAN: Burden shifting. And I mean I made that
objection during that person's testimony. It was
overruled, but at this point when the State argued they could
have gone and gotten Reginald Burroughs, that's burden
shifting and I have to move for a mistrial.
THE COURT: Okay. I deny the motion for mistrial. No. more of
MR. ROCKWELL: Yeah.
THE COURT: Move on. MR. ROCKWELL: Yes, ma'am.
Ex. I at 406-407.
trial court denied the motion for mistrial, but directed the
prosecutor to cease this line of argument. The prosecutor
complied with the court's admonition.
are permitted wide latitude in their closing arguments,
Hammond v. Hall, 586 F.3d 1289, 1335 (11th Cir.
2009), cert. denied, 562 U.S. 1145 (2011);
however, attorneys should not make "[i]mproper
suggestions, insinuations, or assertions" that are
intended to mislead the jury or appeal to passions or
prejudices during closing arguments. United States v.
Hope, 608 Fed.Appx. 831, 840 (11th Cir. 2015) (per
curiam). The trial court apparently sustained defense
counsel's objection to this line of argument, as the
court ordered the prosecutor to stop it and move on, while
denying defense counsel's motion for mistrial.
review, the comments did not deprive Petitioner of a fair and
impartial trial, materially contribute to the conviction, or
reach the level of harm or taint the proceedings so much as
to require a new trial, or constitute such inflammatory
comments as to influence the jury to reach a more severe
verdict than it would have otherwise reached. Walls v.
State, 926 So.2d 1156, 1167 (Fla. 2006) (citation
omitted). Although the prosecutor's comments may have
been improper, they were not sufficiently egregious as to
require reversal. Defense counsel promptly objected, and this
line of argument ceased. Although the trial court denied the
motion for mistrial, in order to grant it the court would
have to have found that the comments were so pervasive,
inflammatory, and prejudicial to preclude the jury's
rational thinking of the case. Knoizen v. Bruegger,
713 So.2d 1071, 1072 (Fla. 5th DCA 1998). That was not the
case as this particular argument was not the focus of the
prosecutor's closing argument.
the jury was presented with sufficient competent evidence to
support the finding of guilt as to the armed robbery charge.
There is not a reasonable probability that these particular
comments contributed to the conviction; they were harmless in
light of the substantial evidence against the Petitioner.
Thus, the comments did not prejudice the jury or impair the
fairness of the proceeding.
is not entitled to habeas relief on ground one. Therefore,
ground one is due to be denied.
second ground of the Petition is a claim of ineffective
assistance of appellate counsel for failure to raise the
issue that essential elements of the charges were omitted in
the charging document. Petitioner contends the information
omitted the third element of armed robbery, that the property
taken was of some value, and omitted the second element of
possession of a firearm, that the defendant knowingly had in
his care, custody, possession, or control a firearm. Petition
at 6. Petitioner exhausted this ground by properly raising it
in his state Petition for Writ of Habeas Corpus. Ex. BB. The
1st DCA denied the claim on its merits. Ex. GG.
is a qualifying state court decision; therefore, the Court
will address this claim in accordance with the deferential
standard for federal court review of state court
adjudications. After a review of the record and the
applicable law, the Court concludes the state court's
adjudication of this claim was not contrary to clearly
established federal law, did not involve an unreasonable
application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceedings. As
such, Petitioner is not entitled to relief on this claim of
ineffective assistance of appellate counsel.
even assuming the state court's adjudication of this
claim is not entitled to deference, Petitioner ineffective
assistance of appellate counsel claim nevertheless is without
merit. Given the record, he has not shown a reasonable
probability exists that the claim would have been meritorious
on direct appeal, if counsel had raised the claim in the
manner suggested by Petitioner. Having shown neither
deficient performance nor resulting prejudice,
Petitioner's ineffectiveness claim is without merit.
Based on his failure to satisfy the two prongs, Petitioner is
not entitled to federal habeas relief on ground two.
record shows the following. In the third amended information,
Petitioner was charged with count four, armed robbery. Ex. E
at 37. The information charged that Petitioner, on December
4, 2008, in the County of Duval and the State of Florida,
"did carry a firearm, and did unlawfully by force,
violence, assault, or putting in fear, take money or other
property, to-wit: a wallet, the property of Rose Caraccioli,
from the person or custody of Rose Caraccioli, with the
intent to permanently or temporarily deprive Rose Caraccioli
of the money or other property, and during the commission of
the aforementioned robbery the said [Petitioner] did actually
possess a firearm, contrary to the provisions of Sections
812.13(2)(a) and 775.087(2)(a)1, Florida Statutes."
robbery statute, 812.13, Fla. Stat., defines robbery as
"the taking of money or other property which may be the
subject of larceny from the person or custody of another,
" with the intent to either permanently or temporarily
deprive the person or the owner of the money or other
property, when in the course of the taking, the use of force,
violence, assault, or putting in fear is used. See United
States v. Fritts, 841 F.3d 937, 939 (11th Cir. 2016)
(noting "Florida's robbery statute set[s] forth the
elements of robbery), cert. denied, 137
S.Ct. 2264 (2017).
United States v. Lockley, 632 F.3d 1238, 1242-43
(11th Cir.), cert. denied, 565 U.S. 885
(2011) (emphasis added), the Eleventh Circuit explained:
For our purpose, then, commission of robbery in violation of
Fla. Stat. § 812.13(1) necessarily
requires that the defendant (1) commit a taking of money or
other property from another person or in the custody of
another person (2) with the intent to permanently or
temporarily deprive the person of the money or property or
any benefit thereof (3) using force, violence, or an
intentional threat of imminent force or violence against
another coupled with an apparent ability to use that force or
violence, or by causing the person to fear death or great
bodily harm (4) where the money or property has
value. See Fla. Std. Jury Instr. (Crim.)
15.1. These elements hew almost exactly to the generic
definition of robbery.
order to constitute armed robbery, there is an added
requirement that "in the course of committing the
robbery the offender carried a firearm or other deadly
weapon." 812.13(2)(a), Fla. Stat.
case, with respect to the armed robbery charge, the
information referenced the specific section of the criminal
code which sufficiently details all the elements of the
offense; therefore, any failure to include an essential
element of the crime does not necessarily render the
information so defective that it will not support a judgment
of conviction for armed robbery. DuBoise v. State,
520 So.2d 260, 265 (Fla. 1988) (per curiam).
the information referenced sections 812.13(2)(a) and
775.087(2)(a)1, Florida Statutes. The heading referred to
count four as "armed robbery." Based on these
factors, Petitioner was placed on adequate notice of the
crime being charged. Certainly he was not misled in the
preparation of his defense. This is evidenced by the fact
that defense counsel had no objection to the armed robbery
instruction, except with respect to the principals
instruction. Ex. H at 347-48.
question is whether the information "is so fundamentally
defective that it cannot support a judgment of
conviction." McMilan v. State, 832 So.2d 946,
948 (Fla. 5th DCA 2002) (quoting Ford v. State, 802
So.2d 1121, 1130 (Fla. 2001)), denial of post conviction
relief aff'd in part, rev'd in part on other
grounds, 901 So.2d 958 (Fla. 5th DCA 2005). Upon review,
the information was not so vague, indistinct or indefinite
that Petitioner was misled or exposed to double