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Clavelle v. Secretary, Florida Department of Corrections

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

May 1, 2018

ALVIN O. CLAVELLE, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          BRIAN J. DAVIS, United States District Judge

          I. INTRODUCTION

         Petitioner 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).[1]Petitioner filed a Reply to Answer in Response to Order to Show Cause (Doc. 22). See Order (Doc. 9).

         II. CLAIMS OF PETITION

         Eighteen 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 3.850 motion.

         III. EVIDENTIARY HEARING

         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). 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).

         The 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 collateral relief.

         IV. STANDARD OF REVIEW

         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, 565 U.S. 34, 38 (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, 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).

         Recently, 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 *8.

         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 *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.

         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).

         V. INEFFECTIVE ASSISTANCE OF COUNSEL

         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). 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.

         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.

         VI. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

         The 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).

         As with 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.

         When considering deficient performance by appellate counsel,

a court must presume counsel's performance was "within the wide range of reasonable professional assistance." Id.[2] 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 (2010).

         To 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.

         Counsel's 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).

         VII. PROCEDURAL HISTORY

         A 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.

         Petitioner 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, 448.

         On July 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.

         Petitioner 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.

         Petitioner 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.

         Petitioner 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. Id.

         Meanwhile, 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.

         This case is ripe for review. Therefore, the Court will address each ground of the Petition.

         VIII. FINDINGS OF FACT AND CONCLUSIONS OF LAW

         A. Ground One

         In the 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. S.

         The 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.

         Deference 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.

         Alternatively, 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 DNA[3] 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 for comparison?
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.

         Later 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. Id.

         The 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.

         Therefore, 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.

         Finally, 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.

         Petitioner 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.

         Defense counsel objected. Id. The prosecutor said, "[s]he [defense counsel] brought it up." Id. After approaching the bench, the following transpired:

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 that.
MR. ROCKWELL: Yeah.
THE COURT: Move on. MR. ROCKWELL: Yes, ma'am.

Ex. I at 406-407.

         The 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.

         Attorneys 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.

         Upon 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.

         Finally, 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.

         Petitioner is not entitled to habeas relief on ground one. Therefore, ground one is due to be denied.

         B. Ground Two

         The 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.

         There 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.

         Moreover, 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.

         The 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." Id.

         The 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).

         In 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.

         In 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.

         In this 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).

         Here, 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.

         The 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 ...


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