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Scott v. Inch

United States District Court, N.D. Florida, Panama City Division

July 2, 2019

KENNETH WAYNE SCOTT, Petitioner,
v.
MARK S. INCH,[1] Respondent.

          REPORT AND RECOMMENDATION

          HOPE THAI CANNON, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Petitioner Kenneth Wayne Scott's (“Scott”) petition for writ of habeas corpus under 28 U.S.C. § 2254. ECF Doc. 1. The matter was referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After considering the Petition and the State's response (ECF Doc. 20) and allowing Scott an opportunity to submit a reply[2], the undersigned recommends the Petition be DENIED without an evidentiary hearing.

         Scott's petition is premised on three grounds: (1) the State committed a Brady[3] violation by failing to disclose, prior to and during Scott's trial, the State's investigation of drug theft and evidence tampering by Joseph Graves (“Graves”), a Florida Department of Law Enforcement (“FDLE”) analyst and supervisor; (2) the trial court violated Scott's due process rights in denying his motion for a new trial based on newly discovered evidence, namely, Graves' arrest; and (3) defense counsel was ineffective for failing to file a motion to suppress evidence obtained pursuant to a search warrant supported by an affidavit from Sgt. Kenny Brock (“Sgt. Brock”), which allegedly contained false or inaccurate information. ECF Doc. 1. For the reasons set forth below, the undersigned finds that the state court's adjudication of these same claims was not contrary to clearly established federal law or based on an unreasonable application of the facts to the law. See 28 U.S.C. § 2254(d).

         I. BACKGROUND

         A. The Search Warrant

         On September 7, 2012, Sgt. Brock, of the Washington County Sheriff's Office, submitted to County Judge Colby Peele an affidavit for a warrant to search Scott's property. ECF Doc. 20-5 at 60-61. In the affidavit, Sgt. Brock stated that at around noon on September 7, 2012, the Probation & Parole Office in Chipley, Florida, contacted Sgt. Brock and “advised that he had a probationer that provided some information concerning a citizen of Washington County that was engaged in illegal activity.” Id. at 61. Sgt. Brock visited the probationer and learned that the probationer's ex-girlfriend, Lisa Johnson (“Johnson”), had information regarding Scott. Id. Because the information from the probationer was second hand, Brock contacted Johnson at 1:32 p.m. on the same day, and Johnson told him that she had visited Scott at his home on September 6th, observed he had ½ gram of methamphetamine and smoked methamphetamine with him during the visit. Id. She further told Sgt. Brock that Scott showed her multiple types of pornography on his desktop computer. Id. Johnson told Sgt. Brock that after she left, she received text messages from Scott asking her whether she was interested in child pornography and showed the messages to Sgt. Brock. Id. Johnson also stated that she could tell that the pornographic materials were located on Scott's computer, not online. ECF Doc. 20-5 at 61.

         In the affidavit, Sgt. Brock also recounted additional information he, Investigator Jeremy Pelfrey and Special Agent Langley obtained from Johnson, including several visits Johnson had with Scott at his property and her observations, and use of, methamphetamines during those visits. Id. at 63. Johnson advised that during one of those visits, which took place on August 24, 2012, she smoked methamphetamine with Scott and two others, one of whom she identified as Stephanie Bassham. Id. On that occasion she also observed a ½ gram of methamphetamine inside the trailer and the presence of a methamphetamine lab. Id. Additionally, Johnson advised that Bassham was also in the process of moving out and was driving a white minivan. ECF Doc. 20-5 at 63. On August 31, 2012, Brock and Inv. Pelfrey observed a white female loading boxes into a minivan at Scott's residence while conducting surveillance. Id.

         Sgt. Brock next described information he obtained from another confidential informant who had advised that he had been in Scott's residence and had observed Scott using the computer to sell methamphetamines, including through the social media platform Facebook. Id. at 64. Brock confirmed that Scott had communicated with Johnson from his computer and that Scott had a Facebook account, containing a current photo of Scott. Id. Sgt. Brock concluded the affidavit with a description of a controlled buy set up between Johnson and Scott on September 7, 2012, for which Johnson was give two (2) twenty-dollar bills. Id.

         B. The Search of Scott's Property and Scott's Statements

         A search warrant was signed by Judge Peele on September 7, 2012, and a search was conducted in the early morning hours of September 8, 2012. ECF Doc. 20-2 at 75 (Jury Trial Trans. at 186). During the search, authorities found drug paraphernalia and 741.9 grams of methamphetamine, (ECF Doc. 20-5 at 90) (Jury Trial Trans. at 85), 416.5 grams of which was found in an okra jar in a toolbox to which Scott voluntarily led agents during the search. Id. at 84 (Jury Trial Trans. at 78-9). No. child pornography was ever reported to have been found on Scott's computer. See ECF Doc. 1 at 12 (claiming that “[n]otably, at no time was there any evidence retrieved from Petitioner Scott's home or computers depicting the alleged child pornography”).

         After the search, Scott signed a Miranda waiver and gave a recorded statement (which was played for the jury at trial). ECF Doc. 20-2 at 88-115 (Jury Trial Trans. at 199-228). In the statement, Scott admitted the bottles in the gray toolbox, containing 416.5 grams of a mixture containing methamphetamine, were his. Id. at 93-94 (Jury Trial Trans. at 206-07). He then described his process for making methamphetamine, how long he had been doing so, and the frequency that he made it. Id. at 94-100 (Jury Trial Trans. at 207-12). He also stated his father and the two females who were in the trailer at the time of the search were not involved. Id. at 108-11 (Jury Trial Trans. 221-23).

         C. Procedural History

         On September 28, 2012, an Information was filed in the Circuit Court of the Fourteenth Judicial Circuit of Florida in Washington County in No. 672012CF00300A, charging Scott as follows: Count I - Trafficking in Amphetamine (200 Grams or More); Count II - Possession of Controlled Substance with Intent to Sell or Distribute; and Count III - Possession of Paraphernalia. ECF Doc. 20-1 at 23. Scott was not charged with any kind of child pornography offense.

         Scott pled not guilty. Id. at 25. During discovery, Scott's counsel sent a letter to the Assistant State Attorney seeking a copy of the video of Johnson making the buy from Scott. ECF Doc. 1-1 at 23 (Appendix to Petition). The Assistant State Attorney responded that, “Per Jeremy Pelfrey, WCSO, this video cannot be recorded onto a CD/DVD but may be viewed at his office upon request.” Id. at 25.

         Scott's trial began on September 23, 2013. ECF Doc. 20-1 at 164. At his trial, FDLE analyst Samuel Catalani (“Catalani”) testified about the substances found at Scott's property during the search. ECF Doc. 20-1 at 288 (Jury Trial Trans. at 74). Catalani testified he worked in the drug chemistry section of the FDLE lab in Pensacola, Florida, and personally performed the analysis of the evidence in Scott's case “for the presence or absence of any controlled substances.” Id. Further, he testified that he personally conducted gas chromatograph and mass spectrometer tests on the evidence submitted and (1) that each substance submitted was a liquid, not a pill, and (2) that eleven of them tested positive for the presence of methamphetamine. Id. at 291-99. As noted above, Catalani testified the total amount of substances containing methamphetamine was 741.9 grams. Id. at 299.

         In addition to Catalani's testimony, the State offered evidence and testimony relating to the search and Scott's post-Miranda statements. See ECF Doc. 20-2 at 74. The officers who conducted the search testified, and Scott's recorded statement was played for the jury. ECF Doc. 20-2 at 88-115. The State did not introduce (1) testimony from Johnson or the other confidential informant; (2) testimony about the controlled buy; or (3) the video and audio recording of the controlled buy. However, the State entered as an exhibit a photograph of a twenty-dollar bill found in Scott's possession during the search - the same bill that was given to Johnson for the controlled buy. ECF Doc. 20-5 at 64; ECF Doc. 20-4 at 30.

         On September 25, 2013, Scott was found guilty as charged in Count I; guilty of the lesser included offense of Possession of Methamphetamine in Count II; and guilty as charged in Count III. ECF Doc. 20-5 at 60-61. On November 6, 2013, Scott was adjudicated guilty on Counts I and III and sentenced as follows: Count I -15 years in prison (which was the mandatory minimum), with credit for 425 days previously served, (ECF Doc. 20-1 at 81); Count III - time served (425 days). ECF Doc. 20 at 2. The trial court granted Scott's Motion to Set Aside Verdict in Count II on double jeopardy grounds. ECF Doc. 20-1 at 142. The trial court also accepted Scott's plea of no contest to sale of methamphetamine in a related case, No. 12-301, adjudicated him guilty of that charge, and sentenced him to time-served. ECF Doc. 20-1 at 143-44.

         On November 21, 2013, Scott appealed his judgments and sentences in Cases 12-300CF and 12-301CF to the First District Court of Appeal. ECF Doc. 20-1 at 93 (Ex. B1 at 75). The First District Court per curiam affirmed the sentences without written opinion on January 9, 2015, in No. 1D13-5938. Scott v. State, 156 So.3d 1083 (Fla. 1st DCA 2015). The Court's mandate issued February 4, 2015. ECF Doc. 20-4 at 104 (Ex. B11). On or about May 19, 2015, Scott filed a Motion for Mitigation, Reduction or Modification of Sentence in the trial court, which was summarily denied on June 3, 2015. ECF Doc. 20-4 at 116 (Ex. C1 at 9-10).

         On August 4, 2015, [4] Scott filed a pro se Motion for Postconviction Relief under Fed. R. Crim. P. 3.850 in the state circuit court, alleging seven grounds for relief, three of which mirror the claims asserted in this petition. ECF Doc. 20-4 at 144-80 (Ex. C1 at 38-74). The state court issued an 11-page order denying relief as to all seven claims on June 28, 2016. ECF Doc. 20-5 at 194 to 204 (Ex. C1 at 281-91). Scott appealed the court's denial to the First DCA (ECF Doc. 20-6 at 13 (Ex. C1 at 450)), which per curiam affirmed the postconviction order without written opinion on March 21, 2017. Scott v. State, 224 So.3d 216 (Fla. 1st DCA 2017); ECF Doc. 20-6 at 20 (Ex. C2). The court's mandate issued April 18, 2017. Id. at 22 (Ex. C3). Scott filed the instant case on September 7, 2017. (Ex. D). As the Respondent states in his brief, only ...


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