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Gallion v. Secretary, Florida Department of Corrections

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

June 21, 2019

JERRY GALLION, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          BRIAN J. DAVIS UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Petitioner, who is proceeding pro se, challenges his state court conviction through a Petition for Writ of Habeas Corpus (Petition) (Doc. 1) pursuant to 28 U.S.C. § 2254. He is serving a fifteen-year prison sentence as a prison release reoffender as to count three (robbery) and a three-year consecutive sentence as to count four (fleeing or attempting to elude a law enforcement officer). Petition at 1. Respondents filed an Answer to Petition for Writ of Habeas Corpus (Response) (Doc. 24).[1] Petitioner responded by filing a Reply to Respondents' Response to Order to Show Cause (Doc. 29). The Petition is timely filed. See Response at 6-7.

         II. EVIDENTIARY HEARING

         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). As the record refutes the asserted factual allegations or otherwise precludes habeas relief, the Court finds Petitioner is not entitled to an evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Petitioner has not met his burden of demonstrating a need for an evidentiary hearing, particularly since an evidentiary hearing was conducted in state court on several claims. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011) (opining a petitioner bears the burden of establishing the need for an evidentiary hearing with more than speculative and inconcrete claims of need), cert. denied, 565 U.S. 1120 (2012).

         III. CLAIMS OF PETITION

         In the instant Petition, Petitioner raises twelve grounds. In ground one, he claims the trial court erred in denying the motion for judgment of acquittal on the charge of robbery, asserting the evidence was insufficient to show the property taken was in the possession or control of the victim at the time of the taking. Petition at 14. Petitioner raises one claim of ineffective assistance of appellate counsel in ground two, contending his appellate counsel was ineffective for failure to argue a properly preserved claim that the trial court erred in failing to conduct an adequate Richardson[2] hearing concerning the state's late disclosure of photograph and clothing evidence used for identification purposes. Petition at 15.

         Petitioner raises eight claims of ineffective assistance of trial counsel. He claims trial counsel was ineffective for: failure to object to the trial court imposing an illegal sentence under the prison release reoffender statute and for failure to award jail time credit on count four (ground three); failure to timely object to the state's late disclosure of evidence, a photograph and clothing (ground four); providing affirmative misadvice concerning the right to testify, including advice that Petitioner's prior conviction would automatically be introduced to the jury if Petitioner testified (ground five); failure to investigate, depose, and call witnesses (Linda Robinson, Leroy Harrison III, Elijah Laster, Johnny Lee, Darrell Monger, and Ola Rae Monger) (ground six); failure to successfully suppress Petitioner's incriminating statements made during his arrest (ground seven); providing affirmative misadvice concerning the penalty Petitioner faced and for failure to convey the strength and weaknesses of the state's case, resulting in Petitioner's inability to make an informed decision as to whether or not to accept a plea offer (ground eight); failure to object and claim fundamental error concerning the improper jury instruction for aggravated fleeing that failed to properly instruct the jury on the elements of the crime (ground nine); and failure to object to the prosecutor's systematic striking of African American jurors from the panel (ground ten). Petition at 20, 23, 28, 32, 35, 37, 40, & 44.

         In ground eleven, Petitioner raises one claim of ineffective assistance of post conviction counsel for failure to interview and call witnesses to the evidentiary hearing on the post conviction motion. Petition at 47. Finally, in ground twelve, Petitioner claims the post conviction court committed reversible error in reappointing post conviction counsel for the second evidentiary hearing on the post conviction motion, asserting a conflict arose during the first hearing. Petition at 49.

         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. This statute "imposes important limitations on the power of federal courts to overturn the judgments of state courts in criminal cases." Shoop v. Hill, 139 S.Ct. 504, 506 (2019) (per curiam). The AEDPA statute: "respects the authority and ability of state courts and their dedication to the protection of constitutional rights." Id. Therefore, "[u]nder AEDPA, error is not enough; even clear error is not enough." Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335, 1349 (11th Cir. 2019) (citing Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017) (per curiam)).

         Applying the statute as amended by AEDPA, federal courts may not grant habeas relief unless one of the claims: "(1)'was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) 'was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.' 28 U.S.C. § 2254(d)." Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d 1298, 1300-1301 (11th Cir. 2019).

         Thus, in order to obtain habeas relief, the state court decision must unquestionably conflict with Supreme Court precedent. Harrington v. Richter, 562 U.S. 86, 102 (2011). If some fair-minded jurists could agree with the lower court's decision, habeas relief must be denied. Meders, 911 F.3d at 1351. As noted in Richter, unless the petitioner shows the state court's ruling was so lacking in justification that there was error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement, there is no entitlement to habeas relief. Burt v. Titlow, 571 U.S. 12, 19-20 (2013).

         In undertaking its review, this Court is not obliged "to flyspeck the state court order or grade it." Meders, 911 F.3d at 1349. Indeed, specificity and thoroughness of the state court decision is not required; even if the state court fails to provide rationale or reasoning, AEDPA deference is due "absent a conspicuous misapplication of Supreme Court precedent." Id. at 1350 (citation and quotation marks omitted).

         Of importance, a state court's finding of fact, whether a state trial court or appellate court, is entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). But, this presumption of correctness applies only to findings of fact, not mixed determinations of law and fact. Brannan v. GDCP Warden, 541 Fed.Appx. 901, 903-904 (11th Cir. 2013) (per curiam) (recognizing the distinction between a pure question of fact from a mixed question of law and fact), cert. denied, 573 U.S. 906 (2014).

         Where there has been one reasoned state court judgment rejecting a federal claim followed by an unexplained order upholding that judgement, federal habeas courts employ a "look through" presumption: "the federal court should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (Wilson).

         Once a claim is adjudicated in state court and a prisoner seeks relief in the federal court system, AEDPA's formidable barrier to habeas relief comes into play, and it is very difficult for a petitioner to prevail under this stringent standard. As such, state-court judgments will not easily be set aside once the Court employs this highly deferential standard that is intentionally difficult to meet. See Richter, 562 U.S. at 102. Although AEDPA does not impose a complete bar to issuing a writ, it severely limits those occasions to those "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts" with Supreme Court precedent. Id. In sum, application of the standard set forth in 28 U.S.C. § 2254(d) ensures that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, and not a mechanism for ordinary error correction. Richter, 562 U.S. at 102-103 (citation and quotation marks omitted).

         V. INEFFECTIVE ASSISTANCE OF COUNSEL

         Petitioner raises multiple claims of ineffective assistance of counsel. 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). See Brewster v. Hetzel, 913 F.3d 1042, 1051-52 (11th Cir. 2019) (reviewing court may begin with either component).

         In order to obtain habeas relief, a counsel's errors must be so great that they actually adversely effect the defense. In order to satisfy this prejudice prong, the reasonable probability of a different result must be "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

         The standard created by Strickland is a highly deferential standard, requiring a most deferential review of counsel's decisions. Richter, 562 U.S. at 105. Not only is there the "Strickland mandated one layer of deference to the decisions of trial counsel[, ]" there is the added layer of deference required by AEDPA: the one to a state court's decision. Nance, 922 F.3d at 1303. Thus,

Given the double deference due, it is 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." Johnson v. Sec'y, DOC, 643 F.3d 907, 911 (11th Cir. 2011). And, for the reasons we have already discussed, it is rarer still for merit to be found in a claim that challenges a strategic decision of counsel.

Nance, 922 F.3d at 1303.

         VI. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

         In ground two, Petitioner raises a claim of ineffective assistance of appellate counsel. Petition at 15. The two-part Strickland standard is applicable to this claim. Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016). The Eleventh Circuit describes Strickland's governance of this type of claim:

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 Richter, 562 U.S. at 105. When considering deficient performance by appellate counsel,

a court must presume counsel's performance was "within the wide range of reasonable professional assistance." Id.[3] 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) (footnote omitted) (since the underlying claims lack merit, "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 "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) (per curiam) ("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. FINDINGS OF FACT AND CONCLUSIONS OF LAW

         A. Ground One

         In the first ground of the Petition, Petitioner asserts the trial court erred in denying the motion for judgment of acquittal on the charge of robbery, claiming the evidence was insufficient to show the property taken was in the possession or control of the victim at the time of the taking. Petition at 14. Respondents counter that Petitioner failed to fairly present to the state courts the substance of a federal habeas claim. Response at 19-20. As such, Respondents urge the Court to find Petitioner's due process claim unexhausted and procedurally barred.

         The record shows defense counsel, Mr. David Thompson, moved for a motion for judgment of acquittal as to the charge of robbery. He argued there was no evidence the victim was in fear at the time of the robbery. Ex. C at 275. In support of the motion, counsel said the vehicle was outside of the store with the engine running, and while admittedly the taking did not have to be from the actual possession of the victim, "the taking requires that the taking itself must be as a result of the overbearing or the use -- as I read the instruction is the best way to say it, it cannot be taken without use of force." Ex. C at 275-76. Defense counsel asserted the vehicle was already in possession of the Petitioner when the victim came out of the store, as Petitioner was behind the wheel, the keys were in the vehicle, the vehicle was running, and Petitioner simply pulled out of the parking lot. Id. at 276. The trial court denied the motion. Id. Defense counsel renewed the motion, and the trial court denied the renewed motion. Id. at 300-301.

         On direct appeal, Petitioner raised one ground: "[t]he trial court erred in denying Appellant's motion for judgment of acquittal on the charge of robbery when the evidence was insufficient to show that the property taken was in the possession or control of the victim at the time of the taking." Ex. E at 2. No. mention is made of a due process claim in the appellate brief. Ex. E. No. federal cases are referenced, and importantly, no mention is made of Jackson v. Virginia, 443 U.S. 307');">443 U.S. 307 (1979), the seminal Due Process Clause case. At most, Petitioner alleged insufficiency to establish the element of robbery that Petitioner "took the motor vehicle from the person or custody of the victim." Id. at 17. The First District Court of Appeal (1st DCA) affirmed per curiam. Ex.

         G. The mandate issued on April 15, 2009. Id.

         In addressing the question of exhaustion, the district court must ask whether the claim was raised in the state court proceedings and whether the state court was alerted to the federal nature of the claim:

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).

         On appeal, Petitioner failed to reference the federal source of law or any case deciding the claim on federal grounds, and he did not label the claim as federal. Thus, Petitioner never gave the state courts a meaningful opportunity to address a Fourteenth Amendment Due Process Clause claim.

         After a thorough review of the record before the Court, the Court concludes Petitioner failed to exhaust a Fourteenth Amendment claim in the state courts. It is clear from state law that any future attempts at exhaustion of this ground would be futile. As such, Petitioner has procedurally defaulted the due process claim.

         Petitioner has failed to show cause and prejudice or that a fundamental miscarriage of justice will result if the Court does not reach the merits of the Fourteenth Amendment claim. Consequently, ground one is due to be denied.

         Alternatively, even assuming the claim is not procedurally barred, Petitioner is not entitled to habeas relief on his claim of a Fourteenth Amendment violation. "In Jackson v. Virginia, 443, U.S. 307, [324] . . ., we held that a state prisoner is entitled to habeas corpus relief if a federal judge finds that 'upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" McDaniel v. Brown, 558 U.S. 120, 121 (2010) (per curiam). Upon due consideration, the evidence adduced at trial was sufficient to convict Petitioner of robbery. An explanation follows.

         This Court "must consider all of the evidence admitted at trial[.]" Id. at 131. Reviewing the evidence "in the light most favorable to the prosecution[, ]" Jackson, 443 U.S. at 319, this Court must presume that the trier of fact resolved any conflicts in favor of the prosecution, and giving credit and deference to that resolution, this Court can only set aside a state-court decision as an unreasonable application of . . . clearly established Federal law, if the state court's application is objectively unreasonable. 28 U.S.C. § 2254(d).

         After viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found Petitioner committed the offense of robbery. The court charged the jury:

To prove the crime of robbery, the State must prove the following four things: They have to prove each of these beyond any reasonable doubt. The first is that Mr. Gallion took the motor vehicle from the person or custody of Kaazon Riles; second is that force, violence, assault or putting in fear was used in the course of taking; the third is that the property taken was of some value and the fourth is that the taking was with the intent to permanently or temporarily deprive Mr. Riles of his right to the property or any benefit of it.
Now, in the course of taking is a turn [sic] we use. That means the act occurred prior to, contemporaneous with or subsequent to the taking of the property and the act and the taking of the property constitute a continuous series of acts or events.
* * * *
The taking must be by the use of force or violence or by assault so as to overcome the resistance of the victim or by putting the victim in fear so that the victim does not resist.
The law does not require the victim of robbery resist to any particular extent or that the victim offer any actual physical resistance if the circumstances are such that the victim is placed in fear of death or great bodily harm if he does not resist. But unless prevented by fear, there must be some resistance to make the taking one done by force or violence.
In order for a taking by force, violence, or putting in fear to be robbery, it's also not necessary that the taking be from the person of the victim. It is sufficient if the property taken is under the actual control of the victim so that it cannot be taken without the use of force, violence, or intimidation directed upon the victim.

Ex. C at 345-46.

         As noted by Respondents, the evidence presented at trial showed Petitioner took the victim's car by threatening and intimidating the victim with a gun that the victim thought was real. The victim was in close proximity to the car with intent to re-enter the car, but Petitioner told the victim to back off and threatened and intimidated the victim with the gun so that Petitioner could drive off in the car unheaded. In Florida, "the property that is the subject of the taking need not be in the actual physical possession or immediate presence of the person." Jones v. State 652 So.2d 346, 350 (Fla. 1995) (per curiam). It constitutes robbery if "the property is taken from 'the person or custody of another' if it is sufficiently under the victim's control so that the victim could have prevented the taking if she had not been subjected to violence or intimidation by the robber." Id. (citation omitted).

         In the course of the trial, the victim testified he was very scared after Petitioner pointed the gun at him. Ex. B at 150. The victim testified, when he reached the driver's door of the vehicle, Petitioner tapped a gun on the driver's window and said back off or get back. Id. at 148. The victim testified he would not have allowed Petitioner to take the vehicle but for Petitioner pointing the gun at him. Id. at 152. The victim opined, "he [Petitioner] probably would have had to really run over me to get it." Id.

         In this case, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found Petitioner committed robbery of the vehicle as charged in the information. This Court must defer to this resolution as well as give AEDPA deference to the 1st DCA's decision on direct appeal to the extent the claim was raised in the federal constitutional sense. Also, to the extent that the federal constitutional ground was addressed, the state court's rejection of the constitutional claim is entitled to deference as required pursuant to AEDPA. Brown, 558 U.S. at 132 (a reviewing court must not depart "from the deferential review that Jackson and § 2254(d)(1) demand").

         Thus, to the extent a Fourteenth Amendment claim was raised and addressed, the adjudication of the state appellate court resulted in a decision that involved a reasonable application of clearly established federal law, as determined by the United States Supreme Court. Therefore, Petitioner is not entitled to relief on this ground because the 1st DCA's decision 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. Ground one is due to be denied.

         B. Ground Two

         In ground two, Petitioner raises his sole claim of ineffective assistance of appellate counsel. Petition at 15. Petitioner asserts his appellate counsel was ineffective for failure to raise the claim that the trial court erred in failing to conduct an adequate Richardson[4] hearing regarding the state's late disclosure of evidence used for identification purposes. Petition at 15. Petitioner exhausted this ground by presenting it in ground three of his state petition for writ of habeas corpus. Ex. H at 19-29. The 1st DCA denied the petition alleging ineffective assistance of appellate counsel on its merits. Ex. J.

         To provide context for this claim, the Court references the relevant portions of the trial record. After the jury was sworn, opening statements completed, and while the first witness was on the stand, defense counsel, Mr. Thompson, asked to approach the bench. Ex. B at 130. Mr. Thompson informed the court that he had just received a picture from the state. Id. Mr. Thompson said the state called him the day before about a picture of Petitioner and some clothing they wanted to introduce. Id. The court asked why the matter had not been brought up before the swearing of the jury. Id. Mr. Thompson advised the court he had heard about the evidence at 4:30 the day before, and finally saw the items that morning. Id. at 131. The court, noting that the jury had already been sworn, stated Mr. Thompson was too late to object to the evidence. Id. Mr. Thompson said he was waiting for the evidence to be introduced to object. Id. at 132. The court accused counsel of trying to set up a mistrial. Id. Mr. Thompson denied that he had that intent. Id. The court admonished Mr. Thompson that his conduct was unprofessional. Id. at 133. Mr. Thompson apologized and said he was not trying to be unprofessional. Id. The court stated counsel was being both incompetent and unprofessional. Id. Mr. Thompson explained he did not have a lot of time to think the matter through, and he had just received the evidence. Id. He said he believed it was appropriate to object now. Id. at 134.

         After this initial exchange, the court inquired as to what counsel wanted to do. Id. The court asked if counsel wanted a mistrial, and then stated the evidence was coming in. Id. at 135. Mr. Thompson said he did not want the evidence coming in, and he believed it came to him too late. Id. The court overruled counsel's objection to the evidence coming in, explaining that the evidence was given to counsel pre-trial, and no objection was made pre-trial. Id. After the state offered its explanation as to when the evidence was brought to the attention of Mr. Thompson, the court asked Mr. Thompson "what is the prejudice to the defendant[?]" Id. at 136-37. More specifically, the court inquired: "what is the prejudice to you and Mr. Gallion by virtue of this so-called late disclosure which you are late in objecting to?" Id. at 138.

         At first, Mr. Thompson said he had no idea. Id. He then said he would not want any indication the evidence came from the jail as the defense had taken great pains to not reveal Petitioner's incarceration. Id. The court assured counsel that information was not going to come out unless Petitioner wanted it brought out. Id. When again asked about prejudice to the defense, Mr. Thompson responded:

If, in fact, they intended to use it, we could have used -- if we have [sic] known before the depositions of the officers they intend to use it to identify with, we would have had that property or those -- those clothes prior to the deposition and could have used that to cross-examine the police officer. We didn't have it at the time of the deposition because it wasn't revealed until to you.

Id. at 138-39.

         At that point, the court provided Mr. Thompson with an opportunity to take depositions. Id. at 139-40. Mr. Thompson confirmed he wanted the opportunity to take depositions.[5] Id. at 140. The court ruled the witnesses were to be made available for depositions. Id. Mr. Thompson objected to the relevance of the photograph, and that objection was overruled. Id. at 142-43.

         In this instance, the asserted discovery violation did not materially hinder the defense. Any shortcomings in the trial court's inquiry were harmless as an adequate remedy was offered, accepted, and undertaken by the defense. The defense was given the opportunity to present allegations of prejudice and an opportunity to take depositions to cure any alleged prejudice. The corrective action taken by the court, by allowing depositions to take place, adequately addressed the problem. Any trial court error in failing to conduct a more in-depth Richardson inquiry was harmless.

         To prevail on a claim of ineffective assistance of appellate counsel, Petitioner's burden is heavy. He must:

first show that his counsel was objectively unreasonable, see Strickland, 466 U.S., at 687-691, 104 S.Ct. 2052, in failing to find arguable issues to appeal-that is, that counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them. If [a petitioner] succeeds in such a showing, he then has the burden of demonstrating prejudice. That is, he must show a reasonable probability that, but for his counsel's unreasonable failure to file a merits brief, he would have prevailed on his appeal. See id., at 694, 104 S.Ct. 2052 (defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different").

Smith v. Robbins, 528 U.S. 259, 285-86 (2000).

         Undoubtedly, Petitioner has not satisfied the Strickland requirements with regard to this claim of ineffective assistance of appellate counsel. He has not shown that the 1st DCA decided this claim in a manner contrary to Strickland, or that the 1st DCA's application of Strickland was objectively unreasonable. Certainly Petitioner has a constitutional right to effective assistance of counsel on direct appeal, but "there is no constitutional duty to raise every nonfrivolous issue." Grossman v. Crosby, 359 F.Supp.2d 1233, 1261 (M.D. Fla. 2005) (citation omitted). With respect to the underlying claim that the trial court erred in failing to conduct an adequate Richardson hearing regarding the state's late disclosure of evidence used for identification purposes, appellate counsel could have reasonably decided to winnow out this weaker argument and proceed with the stronger argument presented on direct appeal.

         Upon review, Petitioner's appellate counsel filed a twenty page brief raising the issue of denial of the motion for judgment of acquittal on the charge of robbery. Ex. E. Upon the filing of Petitioner's state petition for writ of habeas corpus, the 1st DCA reviewed Petitioner's additional arguments concerning claims Petitioner argued his appellate counsel should have raised on direct appeal, and the 1st DCA summarily denied the petition on its merits, thus making its determination that no appellate relief would have been forthcoming. Ex. J. Thus, Petitioner has failed to show a reasonable probability the outcome of the direct appeal would have been different had appellate counsel argued as Petitioner's suggests appellate counsel should have on direct appeal.

         The denial of relief on the ineffective assistance of appellate counsel claim was neither contrary to, nor an unreasonable application of Strickland. Therefore, Petitioner is not entitled to habeas relief on ground two.

         C. Ground Three

         In ground three, Petitioner claims trial counsel was constitutionally ineffective for failure to object to the trial court imposing an illegal sentence under the prison release reoffender statute and for failure to award jail time credit on count four. Petition at 20. The record demonstrates Petitioner, in his Rule 3.850 motion, claimed the ineffective assistance of counsel and sought additional jail time credits as to counts three and four. Ex. L at 6. The court granted the motion as to count three only, crediting Petitioner with seven additional days of jail time credit on count three. Id. at 150.

         On appeal of denial of the Rule 3.850 motion, Petitioner raised the following claim: "trial court erred in evidentiary hearing when trial judge orally pronounced that Duval County Assistant State Prosecutor conceded error in Appellant ground one under illegal sentence, and only addressed jail credits, fail [sic] to address prison release re-offender sanction or ineffective assistant [sic] of counselor [sic] in violation of the 5th, 6th, and 14th Amendments rights of the United States Constitution." Ex. Q at ii. Petitioner limited his argument to the court's failure to grant relief on the claim regarding the alleged illegal sanction of a prison release re-offender sentence. Id. at 5-7.

         Respondents assert Petitioner's failure to brief the jail time issue after receiving an evidentiary hearing necessarily means Petitioner abandoned this contention on appeal; therefore, the claim should be deemed unexhausted and procedurally defaulted. Response at 37. Upon review, by failing to present the jail time claim on appeal of the denial of his Rule 3.850 motion, Petitioner failed to give the state courts one full opportunity to resolve any constitutional issue related to ...


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