United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE
5, 2017, the Court received Petitioner Williams's
petition under 28 U.S.C. § 2254 for writ of habeas
corpus by a person in state custody. Dkt. 1. He seeks relief
from a 2012 Florida state court conviction. Id. at
1. Respondents have filed a response in opposition, Dkt. 11,
and Petitioner has filed a reply, Dkt. 13. The Court finds
that no hearing is necessary and DENIES the petition.
August 21, 2012, a jury in the Circuit Court of the Fifth
Judicial Circuit, in and for Marion County, found Petitioner
guilty of one count of lewd and lascivious conduct and one
count of lewd and lascivious battery on a child. Dkt. 12-2 at
8; see also Dkt. 12-1 at 127. Petitioner was
sentenced to incarceration of seven and a half years, and ten
years of probation. Dkt. 12-2 at 1, 11-12.
counsel, Petitioner moved for a judgment of acquittal and
arrest of judgment that was denied. Dkt. 12-1 at 133. He
argued that there was no evidence presented as to the venue
or dates for the lewd and lascivious conduct. This was also
the sole issue raised in his appeal. Dkt. 12-5 at 44. The
District Court of Appeal for the Fifth District of Florida
(5th DCA) per curiam affirmed the judgment. Dkt. 12-5 at 62.
then filed a pro se habeas petition in the Fifth DCA alleging
ineffective assistance of appellate counsel. Dkt. 12-5 at
65-76. The Fifth DCA denied the petition, Dkt. 12-5 at 106,
and subsequent motion for rehearing, id. at 114.
Petitioner next filed a pro se 3.850 motion for
postconviction relief in the circuit court, raising eight
grounds for ineffective assistance of trial counsel. Dkt.
12-5 at 132-52. The postconviction court denied some of the
grounds and ordered the State to respond to the remaining
grounds. Dkt. 12-5 at 165. The court held an evidentiary
hearing on the remaining grounds (grounds II and VII here)
before denying them. Dkt. 12-6 at 76.
counsel on the appeal of the 3.850 denial filed an
Anders brief.Dkt. 12-7 at 51. Petitioner filed a pro se
brief for the appeal. Dkt. 12-7 at 66. The Fifth DCA per
curiam affirmed. Dkt. 12-8 at 41-42. Petitioner then filed a
pro se successive motion for postconviction relief raising
two additional grounds for relief. Dkt. 12-8 at 46-51. The
postconviction court denied the motion, finding it successive
and procedurally barred. Dkt. 12-8 at 58. The Fifth DCA per
curiam affirmed. Dkt. 12-8 at 94-95. Petitioner then timely
filed the instant petition.
raises ten grounds for relief, all premised on ineffective
assistance of trial counsel: (1) counsel failed to challenge
the police's warrantless arrest of Petitioner in a
residence; (2) counsel did not object to the
prosecution's use of recorded testimony of the
victim's stepfather; (3) counsel did not investigate a
possible exculpatory witness; (4) counsel did not move for a
bill of particulars to narrow the timeframe of offending
conduct; (5) counsel did not challenge the location or venue
of an offending act; (6) counsel did not challenge the
credibility of the victim; (7) counsel did not explore a
possible ulterior motive of the victim or his stepfather; (8)
counsel did not object to incomplete jury instructions; (9)
counsel did not seek a preliminary hearing; and (10)
petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). AEDPA
“establishes a highly deferential standard for
reviewing state court judgments, ” Parker v.
Sec'y for Dep't of Corr., 331 F.3d 764, 768
(11th Cir. 2003) (citation omitted), that does not allow
relief for a state court conviction on a claim
“‘that was adjudicated on the merits in the State
court proceedings' unless the state court's decision
was ‘(1) . . . contrary to, or involved an unreasonable
application of, clearly established Federal law as determined
by the Supreme Court of the United States; or (2) . . . based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,
'” Nejad v. Attorney Gen., State of Ga.,
830 F.3d 1280, 1288 (11th Cir. 2016) (quoting 28 U.S.C.
established Federal law” means holdings of the U.S.
Supreme Court “as of the time of the relevant
state-court decision.” Id. at 1288-89
(citation omitted). “Contrary to” requires a
state court conclusion “opposite to that reached by
[the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme Court] has
on a set of materially indistinguishable facts.”
Id. at 1289 (citations omitted) (alterations in
original). The “unreasonable application” clause
applies only “if the state court identifies the correct
governing legal principle from [the Supreme] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case.” Id.
(citation omitted) (alterations in original).
court's factual determination, meanwhile, “is not
unreasonable merely because the federal habeas court would
have reached a different conclusion in the first
instance.” Id. (citation omitted). AEDPA
“requires federal habeas courts to presume the
correctness of state courts' factual findings unless
applicants rebut this presumption with ‘clear and
convincing evidence.'” Id. (citation
omitted). This is a “demanding but not insatiable
standard, requiring proof that a claim is highly
probable.” Id. (citation and internal
quotation marks omitted).
is ineffective under the Sixth Amendment if “(1)
counsel's performance was deficient; and (2) the
deficient performance prejudiced the defense such that
petitioner was deprived of a fair trial.” Dill v.
Allen, 488 F.3d 1344, 1354 (11th Cir. 2007) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
But in the habeas context, “[t]he question is not
whether a federal court believes the state court's
determination under the Strickland standard was
incorrect but whether that determination was unreasonable-a
substantially higher threshold.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009) (citation and
internal quotation marks omitted). “If there is
‘any reasonable argument that counsel satisfied
Strickland's deferential standard,' then a
federal court may not disturb a state-court decision denying
the claim.” Hittson v. GDCP Warden, 759 F.3d
1210, 1248 (11th Cir. 2014) (citation omitted).
argue that claims one, eight, and ten are procedurally
defaulted, and that Petitioner's ineffective assistance
of counsel claims are without merit. The Court finds that a
hearing is unnecessary, see Turner v. Crosby, 339
F.3d 1247, 1274-75 (11th Cir. 2003), and will handle the
issues in turn.
I. Warrantless Arrest of Petitioner in a Residence
raised this claim in his second motion for postconviction
relief, which the state court denied because it was
successive and procedurally barred. Dkt. 12-8 at 58. The
Fifth DCA per curiam affirmed. Dkt. 12-8 at 94-95. To avoid
default of federal claims, (1) “the applicant must have
fairly apprised the highest court of his state with the
appropriate jurisdiction of the federal rights which
allegedly were violated, ” and (2) “the applicant
must have presented his claims in state court in a
procedurally correct manner.” Upshaw v
Singletary, 70 F.3d 576, 578-79 (11th Cir. 1995).
at this stage Petitioner is unable to present his claims to
the state court, the grounds are procedurally defaulted.
See, e.g., Crosby v. Crosby, No.
502cv129OC10GRJ, 2005 WL 1126563, at * 2 n.15 (M.D. Fla. May
5, 2005) (citing Tafero v. State, 561 So.2d 557
(Fla. 1990) for proposition that “additional claims of
ineffective assistance of counsel cannot be raised in a
successive motion for post conviction relief where
ineffectiveness was raised and addressed in the first
motion”); Allen v. Sec'y, DOC, No.
2:12-CV-644-FTM-29CM, 2016 WL 762648, at *5 (M.D. Fla. Feb.
24, 2016), aff'd, 767 Fed.Appx. 786 (11th Cir.
Apr. 3, 2019) (“Petitioner cannot return to state court
to present this claim because Florida procedural rules
preclude a second, untimely Rule 3.850 motion absent certain
extenuating circumstances that are not present in this
case.”); see also Frazier v. State, 898 So.2d
1183, 1183-84 (Fla. 3d DCA 2005) (barring as successive
claims that could have and should have been made in previous
state prisoner seeking federal habeas corpus relief, who
fails to raise his federal constitution claim in state court,
or who attempts to raise it in a manner not permitted by
state procedural rules, is barred from pursuing the same
claim in federal court absent a showing of cause for and
actual prejudice from the default.” Alderman v.
Zant, 22 F.3d 1541, 1549 (11th Cir. 1994) (citation
omitted). “Cause exists if there was ‘some
objective factor external to the defense [that] impeded
counsel's efforts to comply with the State's
procedural rule.'” Mize v. Hall, 532 F.3d
1184, 1190 (11th Cir. 2008) (citation omitted). It is not
enough that a prisoner is pro se. Harmon v Barton,
894 F.2d 1268, 1274 (11th Cir. 1990). Actual prejudice
requires Petitioner to show that there is at least a
reasonable probability that the result of the proceeding
would have been different. Henderson v. Campbell,
353 F.3d 880, 892 (11th Cir. 2003).
establish cause, Petitioner states that he “was unaware
of this serious constitutional rights violation until
conducting research for the initial brief for the appeal of
the first Rule 3.850 motion.” Dkt. 13 at 2-3. He
further emphasizes his lack of familiarity in the legal
system. Id. at 3. This is insufficient. Nor can
Petitioner establish prejudice because an unconstitutional
arrest cannot plausibly affect the result of trial. For
example, Plaintiff does not specify any evidence that could
have been suppressed following any unconstitutional arrest.
“[w]here, under state law, claims of ineffective
assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural default
will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in
the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.”
Martinez v. Ryan, 566 U.S. 1, 17-18 (2012). This
exception applies only where (1) a state requires a prisoner
to raise ineffective-trial-counsel claims at the
initial-review stage of a state collateral proceeding and
precludes those claims during direct appeal; (2) the prisoner
did not comply with state rules and failed properly to raise
ineffective-trial-counsel claims in his state initial-review
collateral proceeding; (3) the prisoner did not have counsel
(or his appointed counsel was ineffective by not raising
ineffective-trial-counsel claims) in that initial-review
collateral proceeding; and (4) failing to excuse the
prisoner's procedural default would cause the prisoner to
lose a ‘substantial' ineffective-trial-counsel
claim. Arthur v. Thomas, 739 F.3d 611, 629 (11th
Cir. 2014). “A defaulted claim is substantial if the
resolution of its merits would be debatable among jurists of
reason.” Duffy v. Sec'y, Dep't of
Corr., 729 Fed.Appx. 669, 670 (11th Cir. 2018) (citation
although a defendant cannot typically raise ineffective
assistance of trial counsel claims on direct appeal in
Florida, Rigg v. Warden, Blackwater River Corr.
Facility, 685 Fed.Appx. 812, 815-16 (11th Cir. 2017)
(citing Reynolds v. State, 99 So.3d 459, 474 (Fla.
2012)); Ellerbee v. State, 87 So.3d 730, 739 (Fla.
2012), Petitioner did raise a number of ineffective
assistance of counsel claims in his state initial-review
collateral proceeding. In any event, there is no indication
on the record that not excusing the procedural default would
cause the prisoner to lose a “substantial”
ineffective-trial-counsel claim. Arthur, 739 F.3d at
claims that when officers arrested Petitioner at his
residence without a warrant, they had to first enter his yard
through a closed perimeter fence. Dkt. 1 at 7. They entered
“for the sole purpose of taking [Petitioner] into
custody.” Id. But it is not clear whether
police actually entered Petitioner's dwelling when they
arrested him, see Moore v. Pederson, 806 F.3d 1036,
1039 (11th Cir. 2015), and courts have upheld seemingly more
intrusive conduct than opening a clasped but unlocked fence,
see, e.g., United States v. Holmes, 143
F.Supp.3d 1252, 1254 (M.D. Fla. 2015), aff'd,
No. 17-15404, 2019 WL 2293167 (11th Cir. May 29, 2019)
(finding no Fourth Amendment violation where police entered
fenced property with “No Trespassing” sign and
then unlocked screen door onto enclosed front porch).
though Plaintiff argues that his trial counsel “was
negligent at protecting his rights guaranteed under the
Fourth Amendment, ” id. at 8, Petitioner does
not specify what trial counsel should have done. As mentioned
above, Petitioner does not direct the Court to any illegally
obtained evidence that could have been suppressed. See
Bradley v. Nagle, 212 F.3d 559, 565 (11th Cir. 2000).
And a Fourth Amendment violation during arrest does not by
itself warrant habeas relief. See McDougald v. Houston
Cty. Sheriff's Office, No. 1:16-CV-838-MHT, 2017 WL
3015886, at *1 (M.D. Ala. June 14, 2017), report and
recommendation adopted, No. 1:16CV838-MHT, 2017 WL
3015810 (M.D. Ala. July 14, 2017) (collecting cases).
does not establish cause or prejudice, and this is not a
II. Use of Stepfather's Recorded ...