United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS UNITED STATES DISTRICT JUDGE.
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). 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.
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).
CLAIMS OF PETITION
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 hearing concerning the state's late
disclosure of photograph and clothing evidence used for
identification purposes. Petition at 15.
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.
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.
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. 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)).
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.
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).
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).
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
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).
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).
INEFFECTIVE ASSISTANCE OF COUNSEL
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).
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.
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.
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
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).
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. 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
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).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
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
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
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.
mandate issued on April 15, 2009. Id.
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).
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.
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.
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.
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,  . . ., 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
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).
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
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
* * * *
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
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
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.
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).
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
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 §
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
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 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.
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.
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.
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
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.
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. 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
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.
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).
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
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
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.
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.
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.
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