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Draper v. Secretary, Department of Corrections

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

July 11, 2019

TIMOTHY C. DRAPER, Petitioner,




         Petitioner, an inmate of the Florida penal system proceeding pro se, challenges his state court (St. Johns County) conviction through a Petition for Writ of Habeas Corpus (Petition) (Doc. 1) pursuant to 28 U.S.C. § 2254. He is serving a twelve-year prison sentence (aggravated assault with a firearm; false imprisonment; aggravated battery with a deadly weapon) to be followed by eight years of probation (possession of a firearm by a convicted felon). Petition at 1. Respondents filed a Response to Petition (Response) (Doc. 12).[1] Petitioner notified the Court he does not intend to file a reply (Doc. 14). The Petition is timely filed. See Response at 8-9.


         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 post conviction 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).


         Petitioner raises five grounds in his Petition. In grounds one through three, he raises claims of ineffective assistance of trial counsel. He claims trial counsel was ineffective for: (1) "failing to disclose to the court and the defendant the current competency issues regarding the state[']s key witness[;]" (2) "failing to motion the trial court for defense D.N.A. expert affirmatively misleading defendant that he was not eligible for D.N.A. expert due to the economy[;] and (3) "failing to inform the court that the ordered mental health evaluation to determine defendant's competency to stand trial had never been done[, ]" depriving Petitioner of a fair trial.[2] Petition at 4, 6, & 7-8.

         In his fourth ground, Petitioner claims the post conviction court committed reversible error "when it failed to conduct an adequate Faretta[3] hearing prior to allowing defendant to represent himself during the evidentiary hearing[, ]" depriving Petitioner of his rights under the Due Process Clause. Petition at 9. Finally, in his fifth ground, Petitioner claims his "conviction was illegally obtained when the court accepted Petitioner's plea using a legally insufficient plea colloquy." Id. at 11.


         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).


         Petitioner raises three 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.


         A. Ground One

         In ground one, Petitioner claims the ineffective assistance of counsel for failure to disclose to the court and the defendant the competency issues of the state's key witness, Lisa Pressley. Petitioner raised this claim in his Rule 3.850 motion, Ex. Q at 22-25, and the circuit court addressed this ground after conducting an evidentiary hearing. Ex. S. In its order, the circuit court set forth the two-pronged Strickland standard before addressing the grounds for relief. Ex. T at 179-81.

         The circuit court, in addressing the claim of ineffective assistance of counsel, considered evidentiary hearing testimony. Id. at 181. The court found trial counsel's, Ms. Barger's testimony credible. Id. at 183-84. The court also found Petitioner failed to establish that Ms. Barger was ineffective for failing to challenge Ms. Pressley's competency. Id. at 184. The court denied the claim concluding Petitioner failed to establish either ineffectiveness or resulting prejudice. Id. at 185. Upon review, Petitioner failed to overcome the presumption that counsel's performance fell within the wide range of reasonably professional assistance.

         The Fifth District Court of Appeal (5th DCA) affirmed per curiam without explanation. Ex. AA. This affirmance is an adjudication on the merits entitled to AEDPA deference. This Court will employ the "look through" presumption; the Court will "look through" the unexplained decision to the last related state court decision that provides relevant rationale (the circuit court's decision denying post conviction relief) and will presume the unexplained 5th DCA decision adopted the same reasoning as the circuit court. Wilson.

         The Court is convinced that fairminded jurists could agree with the circuit court's decision. Additionally, the Court defers to the state court's factual findings, including its credibility assessments. Petitioner has failed to rebut their correctness with clear and convincing evidence. See 28 U.S.C. 2254(e)(1). "Determining the credibility of witnesses is the province and function of the state courts, not a federal court engaging in habeas review. Federal habeas courts have 'no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.'" Consalvo v. Sec'y for Dep't of Corr., 664 F.3d 842, 845 (11th Cir. 2011) (per curiam) (quoting Marshall v. Lonberger, 459 U.S. 422');">459 U.S. 422, 434 (1983)), cert. denied, 568 U.S. 849 (2012).

         As the state court reasonably determined the facts and reasonably applied federal law to those facts in rejecting the claim of ineffective assistance of counsel, Petitioner is not entitled to habeas relief. The state court's ruling is entitled to AEDPA deference. The 5th DCA affirmed the trial court's decision. Ex. AA. The 5th DCA's decision is not inconsistent with Supreme Court precedent, and the state court's adjudication of this claim is not contrary to or an unreasonable application of Strickland, or based on an unreasonable determination of the facts. Thus, AEDPA deference is due, and Petitioner is not entitled to relief on ground one.

         Evidentiary hearing testimony reveals Ms. Barger deposed Ms. Pressley at the Sulzbacher Center in Jacksonville, Florida. Ex. S at 458. The deposition took place in Jacksonville, because "it's our obligation to take a deposition in the county where the witness resides." Id. Ms. Barger testified it was never a secret that Ms. Pressley had had some mental health problems. Id. at 459. Ms. Barger said no one tried to hide Ms. Pressley's condition and it was known why she left the Sheriff's Office. Id.

         During the deposition, Ms. Barger did not observe or hear anything that caused her to believe Ms. Pressley may be incompetent to testify. Id. at 461. Ms. Barger said she told Petitioner, that although Ms. Pressley had some mental health issues at the time she worked as a corrections deputy, there was no nexus between her problems at the time of her deposition and her observations and recording of evidence at the jail. Id. at 462. Ms. Barger testified that after reviewing the transcript of the trial, it was clear the state, on direct, brought out the fact that Ms. Pressley had been diagnosed as bipolar and manic depressive, was suffering from post-traumatic stress disorder, and was taking medication. Id. at 463. Ms. Barger attested that, after conducting the deposition, she believed Ms. Pressley had the ability to testify. Id.

         The trial record demonstrates Ms. Pressley worked at the Sheriff's Office from January 2006 to April of 2012. Tr. at 252-53. On direct, Ms. Pressley testified she left the Office due to some emotional issues. Id. at 253. She testified she was diagnosed as bipolar, manic depressive, and suffering form post-traumatic stress disorder. Id. She also testified she was taking medication, but it did not affect her ability to tell the truth. Id.

         On cross examination, Mr. Barger asked Ms. Pressley whether they had spoken the day before the trial. Id. at 259. Ms. Pressley said yes. Id. Ms. Pressley testified she was not taking medication when she worked for the Sheriff's Office. Id. at 262. She said she began ...

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