United States District Court, M.D. Florida, Jacksonville Division
Demitrius Williams, Donna A. Gerace, Esq.
TIMOTHY J. CORRIGAN United States District Judge.
Leel Demitrius Williams, an inmate of the Florida penal
system, initiated this case by filing a pro se Petition Under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person
in State Custody. See Doc. 1 (Petition). Petitioner
challenges a state court (Clay County, Florida) judgment of
conviction for sale or delivery of cocaine within a 1, 000
feet of a church. Doc. 1 at 1. He is currently serving a
twenty-year term of incarceration. Respondents filed a
Response (Doc. 14; Resp.). Petitioner filed a Reply (Doc. 20) and
a memorandum of law (Doc. 28). This case is ripe for review.
Governing Legal Principals
Standard Under AEDPA
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner's federal habeas corpus
petition. See Ledford v. Warden, Ga. Diagnostic &
Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016), cert. denied, 137 S.Ct. 1432 (2017).
“‘The purpose of AEDPA is to ensure that federal
habeas relief functions as a guard against extreme
malfunctions in the state criminal justice systems, and not
as a means of error correction.'” Id.
(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).
first task of the federal habeas court is to identify the
last state court decision, if any, that adjudicated the
petitioner's claims on the merits. See Marshall v.
Sec'y Fla. Dep't of Corr., 828 F.3d 1277, 1285
(11th Cir. 2016). The state court need not issue an opinion
explaining its rationale in order for the state court's
decision to qualify as an adjudication on the merits. See
Harrington v. Richter, 562 U.S. 86, 100 (2011). Where
the state court's adjudication on the merits is
unaccompanied by an explanation,
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. But the State may rebut the presumption by showing
that the unexplained affirmance relied or most likely did
rely on different grounds than the lower state court's
decision, such as alternative grounds for affirmance that
were briefed or argued to the state supreme court or obvious
in the record it reviewed.
Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
state court has adjudicated a petitioner's claims on the
merits, a federal court cannot grant habeas relief unless the
state court's adjudication of the claim was
“contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States, ” or “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)(1), (2). A state court's
factual findings are “presumed to be correct”
unless rebutted “by clear and convincing
evidence.” Id. § 2254(e)(1).
AEDPA “imposes a highly deferential standard for
evaluating state court rulings” and “demands that
state-court decisions be given the benefit of the
doubt.” Renico v. Lett, 559 U.S. 766, 773
(2010) (internal quotation marks omitted). “A state
court's determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could
disagree on the correctness of the state court's
decision.” Harrington v. Richter, 562 U.S. 86,
101 (2011) (internal quotation marks omitted). “It
bears repeating that even a strong case for relief does not
mean the state court's contrary conclusion was
unreasonable.” Id. [at 102] (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The
Supreme Court has repeatedly instructed lower federal courts
that an unreasonable application of law requires more than
mere error or even clear error. See, e.g.,
Mitchell v. Esparza, 540 U.S. 12');">540 U.S. 12, 18 (2003);
Lockyer, 538 U.S. at 75 (“The gloss of clear
error fails to give proper deference to state courts by
conflating error (even clear error) with
unreasonableness.”); Williams v. Taylor, 529
U.S. 362, 410 (2000) (“[A]n unreasonable application of
federal law is different from an incorrect application of
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th
Cir. 2013) (internal citations modified).
Exhaustion and Procedural Default
are prerequisites to federal habeas review. Before bringing a
§ 2254 habeas action in federal court, a petitioner must
exhaust all state court remedies that are available for
challenging his state conviction. See 28 U.S.C.
§ 2254(b)(1)(A). To exhaust state remedies, the
petitioner must “fairly present” every issue
raised in his federal petition to the state's highest
court, either on direct appeal or on collateral review.
Castille v. Peoples, 489 U.S. 346, 351 (1989)
(emphasis omitted). Thus, to properly exhaust a claim,
“state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process.” O'Sullivan v. Boerckel,
526 U.S. 838, 845 (1999); see also Pope v. Rich, 358
F.3d 852, 854 (11th Cir. 2004) (noting “that
Boerckel applies to the state collateral review
process as well as the direct appeal process.”).
addressing exhaustion, the United States Supreme Court
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U.S.C.
§ 2254(b)(1), thereby giving the State the
“‘“opportunity to pass upon and
correct” alleged violations of its prisoners'
federal rights.'” Duncan v. Henry, 513
U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per
curiam) (quoting Picard v. Connor, 404 U.S. 270,
275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). To provide the
State with the necessary “opportunity, ” the
prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court
to the federal nature of the claim. Duncan,
supra, at 365-366, 115 S.Ct. 887; O'Sullivan
v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144
L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
prisoner's failure to properly exhaust available state
remedies results in a procedural default which raises a
potential bar to federal habeas review. The United States
Supreme Court has explained the doctrine of procedural
default as follows:
Federal habeas courts reviewing the constitutionality of a
state prisoner's conviction and sentence are guided by
rules designed to ensure that state-court judgments are
accorded the finality and respect necessary to preserve the
integrity of legal proceedings within our system of
federalism. These rules include the doctrine of procedural
default, under which a federal court will not review the
merits of claims, including constitutional claims, that a
state court declined to hear because the prisoner failed to
abide by a state procedural rule. See,
e.g., Coleman,  supra, at 747-748,
111 S.Ct. 2546; Sykes,  supra, at 84-85, 97
S.Ct. 2497. A state court's invocation of a procedural
rule to deny a prisoner's claims precludes federal review
of the claims if, among other requisites, the state
procedural rule is a nonfederal ground adequate to support
the judgment and the rule is firmly established and
consistently followed. See, e.g.,
Walker v. Martin, 562 U.S.___, ___, 131 S.Ct. 1120,
1127- 1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler,
558 U.S.___, ___, 130 S.Ct. 612, 617-618, 175 L.Ed.2d 417
(2009). The doctrine barring procedurally defaulted claims
from being heard is not without exceptions. A prisoner may
obtain federal review of a defaulted claim by showing cause
for the default and prejudice from a violation of federal
law. See Coleman, 501 U.S., at 750, 111 S.Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus,
procedural defaults may be excused under certain
circumstances. Notwithstanding that a claim has been
procedurally defaulted, a federal court may still consider
the claim if a state habeas petitioner can show either (1)
cause for and actual prejudice from the default; or (2) a
fundamental miscarriage of justice. Ward v. Hall,
592 F.3d 1144, 1157 (11th Cir. 2010). In order for a
petitioner to establish cause and prejudice,
the procedural default “must result from some objective
factor external to the defense that prevented [him] from
raising the claim and which cannot be fairly attributable to
his own conduct.” McCoy v. Newsome, 953 F.2d
1252, 1258 (11th Cir. 1992) (quoting Carrier, 477
U.S. at 488, 106 S.Ct. 2639). Under the prejudice prong, [a
petitioner] must show that “the errors at trial
actually and substantially disadvantaged his defense so that
he was denied fundamental fairness.” Id. at
1261 (quoting Carrier, 477 U.S. at 494, 106 S.Ct.
v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
absence of a showing of cause and prejudice, a petitioner may
receive consideration on the merits of a procedurally
defaulted claim if the petitioner can establish that a
fundamental miscarriage of justice, the continued
incarceration of one who is actually innocent, otherwise
would result. The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive consideration
on the merits of his procedurally defaulted claim.
“[I]n an extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who
is actually innocent, a federal habeas court may grant the
writ even in the absence of a showing of cause for the
procedural default.” Carrier, 477 U.S. at 496,
106 S.Ct. at 2649. “This exception is exceedingly
narrow in scope, ” however, and requires proof of
actual innocence, not just legal innocence. Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).
Ward, 592 F.3d at 1157. “To meet this
standard, a petitioner must ‘show that it is more
likely than not that no reasonable juror would have convicted
him' of the underlying offense.” Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Additionally, “‘[t]o be credible,' a claim of
actual innocence must be based on reliable evidence not
presented at trial.” Calderon v. Thompson, 523
U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at
324). With the rarity of such evidence, in most cases,
allegations of actual innocence are ultimately summarily
rejected. Schlup, 513 U.S. at 324.
Ineffective Assistance of Counsel
Sixth Amendment guarantees criminal defendants effective
assistance of counsel. That right is denied when a defense
counsel's performance falls below an objective standard
of reasonableness and thereby prejudices the defense.”
Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per
curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521
(2003), and Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish ineffective assistance, a person
must show that: (1) counsel's performance was outside the
wide range of reasonable, professional assistance; and (2)
counsel's deficient performance prejudiced the challenger
in that there is a reasonable probability that the outcome of
the proceeding would have been different absent counsel's
deficient performance. Strickland, 466 U.S. at 687.
two-part Strickland standard also governs a claim of
ineffective assistance of appellate counsel. Overstreet
v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016).
When considering deficient performance by appellate counsel,
a court must presume counsel's performance was
“within the wide range of reasonable professional
assistance.” Id. at 689, 104 S.Ct. 2052.
Appellate counsel has no duty to raise every non-frivolous
issue and may reasonably weed out weaker (albeit meritorious)
arguments. See Philmore v. McNeil, 575 F.3d 1251,
1264 (11th Cir. 2009). “Generally, only when ignored
issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be
overcome.” Smith v. Robbins, 528 U.S. 259, 288
(2000) (quoting Gray v. Greer, 800 F.2d 644, 646
(7th Cir.1986)); see also Burger v. Kemp, 483 U.S.
776, 784 (1987) (finding no ineffective assistance of counsel
when the failure to raise a particular issue had “a
sound strategic basis”).
Id.; see also Owen v. Sec'y, Dep't of
Corr., 568 F.3d 894, 915 (11th Cir. 2009)
(“failing to raise or adequately pursue [meritless
issues on appeal] cannot constitute ineffective assistance of
satisfy the prejudice prong of an ineffective assistance of
appellate counsel claim, a petitioner must show a reasonable
probability that “but for the deficient performance,
the outcome of the appeal would have been different.”
Black v. United States, 373 F.3d 1140, 1142
(11th Cir. 2004); see also Philmore v. McNeil, 575
F.3d 1251, 1264-65 (11th Cir. 2009) (prejudice results only
if “the neglected claim would have a reasonable
probability of success on appeal”). Also,
[a] reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id., at
694, 104 S.Ct. 2052. It is not enough “to show that the
errors had some conceivable effect on the outcome of the
proceeding.” Id., at 693, 104 S.Ct. 2052.
Counsel's errors must be “so serious as to deprive
the defendant of a fair trial, a trial whose result is
reliable.” Id., at 687, 104 S.Ct. 2052.
Richter, 562 U.S. at 104. As such,
“[a]ppellate counsel might fail to identify a mediocre
or obscure basis for reversal without being ineffective under
Strickland.” Overstreet, 811 F.3d at
1287 (citation omitted).
both claims of ineffective assistance of trial counsel and
appellate counsel, there is no “iron-clad rule
requiring a court to tackle one prong of the
Strickland test before the other.” Ward v.
Hall, 592 F.3d 1144, 1163 (11th Cir. 2010). Since both
prongs of the two-part Strickland test must be
satisfied to show a Sixth Amendment violation, “a court
need not address the performance prong if the petitioner
cannot meet the prejudice prong, and vice-versa.”
Id. (citing Holladay v. Haley, 209 F.3d
1243, 1248 (11th Cir. 2000)). As stated in
Strickland: “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course
should be followed.” 466 U.S. at 697.
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)
(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.
Richter, 562 U.S. at 105. As such,
“[s]urmounting Strickland's high bar is
never an easy task.” Padilla v. Kentucky, 559
U.S. 356, 371 (2010). “Reviewing courts apply a
‘strong presumption' that counsel's
representation was ‘within the wide range of reasonable
professional assistance.'” Daniel v.
Comm'r, Ala. Dep't of Corr., 822 F.3d 1248, 1262
(11th Cir. 2016) (quoting Strickland, 466 U.S. at
689). “When this presumption is combined with §
2254(d), the result is double deference to the state court
ruling on counsel's performance.” Id.
(citing Richter, 562 U.S. at 105); see also
Evans v. Sec'y, Dep't of Corr., 703 F.3d 1316,
1333-35 (11th Cir. 2013) (en banc) (Jordan, J., concurring);
Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.
argues that the trial court erred in failing to conduct a
complete pretrial Nelson inquiry to address all of
his allegations that his trial counsel was not representing
him effectively. Doc. 1 at 5.
allege, and the Court agrees, that this claim is not
cognizable on federal habeas review. See Resp. at
13-15. “Any complaint about the lack of a proper
Nelson inquiry raises an issue of state law that is
not cognizable in this proceeding.” Ortiz v.
McNeil, No. 3:09-cv-563-J-12TEM, 2010 WL 4983599, at *5
(M.D. Fla. Dec. 2, 2010). The Court must be mindful that the
purpose of a federal habeas proceeding is review of the
lawfulness of Petitioner's custody to determine whether
that custody is in violation of the Constitution or laws or
treaties of the United States. See Coleman v.
Thompson, 501 U.S. 722 (1991). This Court will not
reexamine state court determinations on issues of state law.
See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
The Court will be bound by the Florida court's
interpretation of its own laws unless that interpretation
breaches a federal constitutional mandate. McCoy v.
Newsome, 953 F.2d 1252, 1264 (11th Cir. 1992). Since
this ground presents a state law claim concerning a ruling by
the trial court after a Nelson inquiry, Petitioner
is not entitled to federal habeas corpus relief as there has
been no breach of a federal constitutional mandate.
Consequently, Petitioner's claim raised in Ground One is
not cognizable in this habeas proceeding. Ground One is due
to be denied.
Petitioner alleges that the trial court erred in allowing the
state to present collateral crimes evidence that Petitioner
sold drugs on other occasions. Doc. 1 at 7.
state charged Petitioner with the October 8, 2010, sale or
delivery of cocaine within 1, 000 feet of a church. Resp. Ex.
A at 15; 259. The sale occurred between Petitioner and police
informant Malisa Alcorn. Prior to trial, trial counsel, on
behalf of Petitioner, filed a motion in limine to exclude
“any and all statements about . . . Alcorn [having
allegedly purchased drugs from [Petitioner] in the past and
about [Petitioner] having allegedly sold to other people in
the past as well.” Resp. Ex. A at 31-32. The trial
court conducted a hearing on the motion in which the trial
court agreed that such evidence would not be admitted during
trial, and the state advised that it instructed Alcorn to not
testify about past purchases. Id. at 156.
trial, Alcorn testified that on October 8, 2010, she, at the
direction of police, contacted Petitioner to purchase
narcotics. Id. at 111. The controlled buy was to
happen at Alcorn's home, and prior to the meeting, police
searched the residence and equipped Alcorn with an audio and
video recording device that recorded the transaction.
Id. at 112. A portion of the recording was played
for the jury during Alcorn's trial testimony.
Id. at 266-82. The recording begins with Alcorn
waiting for Petitioner outside of her home. Id. at
266. As she waited, an individual named Kevin David
approached Alcorn and advised her that he too was waiting on
Petitioner. Id. Petitioner finally arrived and
immediately told Alcorn about rumors that she was working as
an informant for the police. Id. at 272-78. Alcorn
denied Petitioner's rumored allegations.
testified that she then gave Petitioner $150 in exchange for
crack cocaine. Id. at 276. After the transaction,
Petitioner searched Alcorn's person for a listening
device and accused her of using “police money” to
conduct the transaction; however, Petitioner did not locate
the wire. Id. at 277-80. According to Alcorn, David
then asked Petitioner about separately exchanging crack
cocaine for pain medication. Id. at 282. Alcorn
testified that Petitioner and David made a transaction at
that time. Id. at 282-85. Once Petitioner and David
left Alcorn's home, Detective Elvis John Guzman, who
watched the transaction from across the street, picked Alcorn
up and Alcorn provided the police with the crack cocaine
obtained from Petitioner. Id. at 289; 325.
direct appeal, appellate counsel, on behalf of Petitioner
argued that the trial court reversibly erred in allowing the
state to admit evidence of Petitioner's separate drug
transaction with David. Resp. Ex. G. The state filed an
answer brief arguing, among other things, that
Petitioner's drug transaction with David was inextricably
intertwined with the charged offense. Resp. Ex. I at 34. The
First District Court of Appeal per curiam affirmed
Petitioner's judgment and sentence without a written
opinion. Resp. Ex. K.
extent that the First DCA affirmed the trial court's
denial on the merits, the Court will address the claim in
accordance with the deferential standard for federal court
review of state court adjudications. Evidence of criminal
activity other than the charged offense is not
“extrinsic” when it is: “(1) an uncharged
offense which arose out of the same transaction or series of
transactions as the charged offense, (2) necessary to
complete the story of the crime, or (3) inextricably
intertwined with the evidence regarding the charged
offense.” United States v. Baker, 432 F.3d
1189, 1205 n. 9 (11th Cir. 2005) (quoting United States
v. Veltmann, 6 F.3d 1483, 1498 (11th Cir. 1993)).
“Evidence, not part of the crime charged but pertaining
to the chain of events explaining the context, motive[, ] and
set-up of the crime, is properly admitted if linked in time
and circumstances with the charged crime, or forms an
integral and natural part of an account of the crime, or is
necessary to complete the story of the crime for the
jury.” United States v. McLean, 138 F.3d 1398,
1403 (11th Cir. 1998). And evidence is inextricably
intertwined with the evidence regarding the charged offense
if it forms an “integral and natural part of the
witness's accounts of the circumstances surrounding the
offenses for which the defendant was indicted.”
United States v. Foster, 889 F.2d 1049, 1053 (11th
the audio/video device was continuously recording from the
time Alcorn began waiting for Petitioner until she reunited
with police. As the state argued in its answer brief on
appeal, see Resp. Ex. I, there is no evidence that
Alcorn or the officers knew David would be there, but Alcorn
was forced to interact with David and could not leave her
home until Petitioner completed his transaction with David.
As such, this evidence was inextricably intertwined with the
charged offense, and the state never presented evidence that
Petitioner sold drugs on another date. Upon review of the
record, this Court concludes that the state court's
adjudication of this claim was not contrary to clearly
established federal law, did not involve an unreasonable
application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceedings.
Ground Two is due to be denied.
contends that trial counsel was ineffective for failing to
file a motion to dismiss the Information. Doc. 1 at 8.
According to Petitioner, the Information was not based on the
sworn testimony of a material witness to the crime, thus, the
trial court did not have jurisdiction.
raised this claim in his motion for postconviction relief
filed pursuant to Florida Rule of Criminal Procedure 3.850.
Resp. Ex. M at 5. The trial court denied the claim as
Defendant alleges he received ineffective assistance from
counsel because, although the information was filed without
the testimony of a material witness, counsel did not move to
dismiss it. Specifically, Defendant argues that the
information was improperly based on Detective Guzman's
sworn statement that attested to his personal observation of
the drug transaction, Guzman did not have “personal
knowledge” of said transaction. Further, Defendant
avers that the reliability of the confidential informant was
not established in the affidavit. Because of these
deficiencies, Defendant argues that the Court did not have
subject matter jurisdiction.
An officer has personal knowledge of a drug transaction when
he or she observes the confidential informant enter and leave
the building and can listen to the proceedings through a
listening device. Raucho v. State, 915 So.2d 278,
280 (Fla. 4th DCA 2005) (establishing parameters for
reliability of confidential informants and personal knowledge
of officers involved in the controlled buy). As Defendant
concedes Guzman's affidavit states that he
“personally observed” the sale as he and other
officers watched and listened to the drug transaction. This
clearly constitutes “personal knowledge.” Because
the affidavit was made by one with personal knowledge and not
based on hearsay, there was no need to establish the
reliability of the confidential informant. Further, an
information is only fatally defective and subject to
dismissal if it fails to allege the elements of the charged
offense or is so vague that it misleads a defendant or
exposes him to double jeopardy. See Fla. R. Crim. P.
3.140(o); Edwards v. State, 128 So.3d 134, 136 (Fla.
1st DCA 2013). Clearly there was no issue with the
Court's subject matter jurisdiction. This claim is
patently frivolous and without merit. Accordingly, Ground One
Resp. Ex. M at 86-87. The First DCA per curiam affirmed the
trial court's denial without a written opinion. Resp. Ex.
extent that the First DCA affirmed the trial court's
denial on the merits,  the Court will address the claim in
accordance with the deferential standard for federal court
review of state court adjudications. After a review of the
record and the applicable law, the Court concludes that the
state court's adjudication of the claim was not contrary
to clearly established federal law, did not involve an
unreasonable application of clearly established federal law,
and was not based on an unreasonable determination of the
facts in light of the evidence presented in the state court
even assuming the state court's adjudication is not
entitled to deference, this claim is without merit. The
Amended Information that the state proceeded on is signed by
the assistant state attorney and certifies “that
testimony under oath has been received from the material
witness(es) for the offense.” Resp. Ex. A at 15. The
sworn oath of the prosecutor that he or she received
testimony under oath from the material witness or witnesses
for the offense is sufficient under Florida law. Bromell
v. McNeil, No. 07-61917-CIV, 2008 WL 4540054, at *17
(S.D. Fla. Oct. 10, 2008); Ruiz v. Sec'y, Dep't
of Corr., No. 8:06-cv-2086-T-17TGW, 2008 WL 786327, at
*4-*5 (M.D. Fla. Mar. 20, 2008) (rejecting a claim of
ineffective assistance of counsel for failure to move for
dismissal based on a deficient information, unsupported by a
sworn statement of a material witness). In State v.
Perkins, 977 So.2d 643, 646 (Fla. 5th DCA 2008), the
court explained that an assistant state attorney signing the
information charging a felony does not have to personally
administer the oath and question the material witness or
witnesses upon which the charges are based, but must simply
receive and consider the sworn testimony. As such, Ground
Three is due to be denied.
maintains that trial counsel was ineffective for failing to
file a motion to suppress the illegal arrest of Petitioner.
He avers that the arrest affidavit did not establish probable
cause for an arrest, nor did it contain sufficient facts to
make a probable cause determination. Doc. 1 at 10. As such,
Petitioner contends that a Franks hearing should
have been conducted on the omissions.
raised this claim as ground two of his Rule 3.850 motion.
Resp. Ex. M at 52-54. The trial court denied the claim,
finding in pertinent part:
Defendant avers counsel should have moved to suppress his
illegal arrest and the search incident to that arrest on the
grounds that the affidavit supporting the arrest warrant did
not establish probable cause and omitted material facts.
Specifically, Defendant avers the affidavit failed to
establish the reliability of the confidential informant or
her information; the officers' personal knowledge of the
drug transaction; the presence of another party during the
transaction; and there was a lack of video evidence.
A controlled buy eliminates the need to establish the
reliability of the confidential informant, as the controlled
buy itself corroborates the informant's credibility.
Raucho v. State, 915 So.2d at 280. A confidential
informant completes a successful controlled buy where he or
she is searched, given money, observed entering and leaving
the building, returns to the officers, and is searched again,
revealing drugs. Clark v. State, 635 So.2d 1010,
1011 (Fla. 1st DCA 1994) ...