United States District Court, N.D. Florida, Panama City Division
REPORT AND RECOMMENDATION
THAI CANNON, UNITED STATES MAGISTRATE JUDGE
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, the undersigned recommends the
Petition be DENIED without an evidentiary
petition is premised on three grounds: (1) the State
committed a Brady 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).
The Search Warrant
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
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.
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.
The Search of Scott's Property and Scott's
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”).
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.
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.
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.
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.
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.
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.
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).
August 4, 2015,  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 ...