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Williams v. Secretary, Florida Department of Corrections

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

July 16, 2019

LEEL DEMITRIUS WILLIAMS, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et. al., Respondents.

          Leel Demitrius Williams, Donna A. Gerace, Esq.

          ORDER

          TIMOTHY J. CORRIGAN United States District Judge.

         I. Status

         Petitioner, 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.).[1] Petitioner filed a Reply (Doc. 20) and a memorandum of law (Doc. 28). This case is ripe for review.

         II. Governing Legal Principals

         A. Standard Under AEDPA

         The 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)).

         The 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).

         When a 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 federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal citations modified).

         B. Exhaustion and Procedural Default

          There 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.”).

         In addressing exhaustion, the United States Supreme Court explained:

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).

         A state 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, [2] supra, at 747-748, 111 S.Ct. 2546; Sykes, [3] 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).[4] 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. 2639).

         Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

         In the 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.

         C. Ineffective Assistance of Counsel

         “The 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.

         This 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 counsel”).

         To 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).

         For 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.

         “The 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. 2004).

         III. Analysis

         Ground One

         Petitioner argues that the trial court erred in failing to conduct a complete pretrial Nelson[5] inquiry to address all of his allegations that his trial counsel was not representing him effectively. Doc. 1 at 5.

         Respondents 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.

         Ground Two

          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.

         The 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.

         At 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.

         Alcorn 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.

         On 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.

         To the 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 Cir. 1989).

         Here, 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.

         Ground Three

         Petitioner 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.

         Petitioner 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 follows:

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 is denied.

Resp. Ex. M at 86-87. The First DCA per curiam affirmed the trial court's denial without a written opinion. Resp. Ex. T.

         To the extent that the First DCA affirmed the trial court's denial on the merits, [6] 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 proceedings.

         Nevertheless, 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.

         Ground Four

         Petitioner 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[7] hearing should have been conducted on the omissions.

         Petitioner 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) ...

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