United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY C. DRAPER, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.
J. DAVIS, UNITED STATES DISTRICT JUDGE.
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.
Petitioner notified the Court he does not intend to file a
reply (Doc. 14). The Petition is timely filed. See
Response at 8-9.
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).
CLAIMS OF PETITION
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. Petition at 4, 6, & 7-8.
fourth ground, Petitioner claims the post conviction court
committed reversible error "when it failed to conduct an
adequate Faretta 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.
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 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).
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.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
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.
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.
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.
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).
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
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.
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.
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.
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