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Zimmerman v. Florida Attorney General

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

July 18, 2019




         On November 9, 2016, the Court received Petitioner Zimmerman's Petition under 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody. Dkt. 1. He filed an Amended Petition on December 2, 2016. Dkt. 5. Petitioner seeks relief from a 2012 Florida state court conviction. Id. at 1. Respondents have filed a response in opposition. Dkt. 10. The Court finds that no hearing is necessary and DENIES the Amended Petition.


         On June 8, 2012, a jury in the Circuit Court of the Fifth Judicial Circuit, in and for Marion County, found Petitioner guilty of one count sexual battery of a physically helpless person. Dkt. 11-2 at 93. Evidence at trial showed that Petitioner committed the battery against the victim, who was living in his residence at the time, while she was sleeping. Dkt. 11-1 at 397-98. In addition to the victim's testimony that Petitioner raped her, the State presented evidence of Petitioner's DNA found in a semen sample on the crotch of the victim's pajama bottoms. Id. at 498, 512, 514. There was also testimony that on a recorded, “controlled” call, Petitioner admitted pulling down the victim's pants that evening “to prove a lesson to her.” Id. at 466. Petitioner was sentenced to thirty years' imprisonment. Dkt. 11-2 at 105.

         Petitioner appealed the judgment through counsel, raising only an ineffective assistance of counsel argument. Dkt. 11-2 at 177, 195. The District Court of Appeal for the Fifth District of Florida (Fifth DCA) per curiam affirmed the judgment, noting that such a claim “may be raised on direct appeal only where the ineffectiveness is apparent on the face of the record, ” and that the affirmance was without prejudice to Petitioner's right to seek postconviction relief. Id. at 254-55.

         Petitioner, through counsel, next filed his 3.850 motion for postconviction relief in the circuit court, raising roughly fifteen grounds of ineffective assistance of trial counsel. Dkt. 11-2 at 273. The court held an evidentiary hearing, id. at 382, and denied the motion, id. at 528. In the subsequent appeal Petitioner raised twelve grounds for ineffective assistance of counsel, Dkt. 11-3 at 210, and the Fifth DCA per curiam affirmed. Dkt. 11-3 at 298.

         Petitioner, through counsel, then filed his habeas Petition and Amended Petition in federal court. Dkts. 1, 5. He has also filed a memorandum in support of the Amended Petition. Dkt. 6. Respondents acknowledge the Petition's timeliness. Dkt. 10 at 4.

         Petitioner raises a number of claims related to ineffective assistance of counsel. As categorized by Petitioner, the first issue is ineffective assistance of counsel based on the following: (1) numerous deficiencies of trial counsel, including that he lacked knowledge of substantive and procedural law; (2) counsel failed to demand a speedy trial when he learned that DNA evidence was not available; (3) counsel did not prepare for trial, including taking depositions; (4) counsel did not research DNA in anticipation of the State's evidence, did not obtain a defense DNA witness, and did not sufficiently address the DNA evidence's shortcomings; (5) counsel conducted a “meaningless” voir dire; (6) counsel did not object to the court's extended comments during voir dire about Petitioner's right not to testify; (7) counsel did not object to the prosecutor's opening statements implying that the Petitioner would testify; (8) counsel conceded Petitioner's guilt in the opening statement; (9) counsel did not implement a trial strategy; (10) counsel failed to object to the prosecutor's questions; (11) counsel advised Petitioner not to testify; (12) counsel did not adequately address the State's argument about Petitioner's flight; and (13) cumulative error.

         The remaining issues relate to conflict: (14) counsel did not demand a speedy trial due to his own financial interests; and (15) counsel did not vigorously cross-examine the victim because of his relationship with the victim's boyfriend whom he had represented.


         This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA “establishes a highly deferential standard for reviewing state court judgments, ” Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 768 (11th Cir. 2003) (citation omitted), that does not allow relief from a state court conviction on a claim “‘that was adjudicated on the merits in the State court proceedings' unless the state court's decision was ‘(1) . . . contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or (2) . . . based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, '” Nejad v. Attorney Gen., State of Ga., 830 F.3d 1280, 1288 (11th Cir. 2016) (quoting 28 U.S.C. § 2254(d)).

         “Clearly established Federal law” means holdings of the U.S. Supreme Court “as of the time of the relevant state-court decision.” Id. at 1288-89 (citation omitted). “Contrary to” requires a state court conclusion “opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Id. at 1289 (citations omitted) (alterations in original). The “unreasonable application” clause applies only “if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (citation omitted) (alterations in original).

         A state court's factual determination, meanwhile, “is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Id. (citation omitted). AEDPA “requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.'” Id. (citation omitted). This is a “demanding but not insatiable standard, requiring proof that a claim is highly probable.” Id. (citation and internal quotation marks omitted).

         Counsel is ineffective under the Sixth Amendment if “(1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense such that petitioner was deprived of a fair trial.” Dill v. Allen, 488 F.3d 1344, 1354 (11th Cir. 2007) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). But in the habeas context, “[t]he 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) (citation and internal 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.” Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014) (citation omitted).


         Respondents argue that claims two, seven, and eight are procedurally defaulted, and that Petitioner's ineffective assistance of counsel claims are without merit. Dkt. 10 at 5. Petitioner did not reply. See Dkt. 12-13. The Court finds that a hearing is unnecessary, see Turner v. Crosby, 339 F.3d 1247, 1274-75 (11th Cir. 2003), and will handle the issues in turn.

         I. Counsel was ineffective on the face of the record

         It is unclear whether Petitioner's first stated ground is a discrete ineffective assistance of counsel claim or merely encapsulates the many different deficiencies alleged. The “supporting facts” in the petition state, in their entirety,

Attorney lacked knowledge of substantive and procedural law. Did not understand the concept of evidentiary hearings (Richardson); deposition of witnesses; prepare witnesses for and utilize witnesses appropriately during trial; failed to develop[] favorable witness testimony and allowed for improper cross-examination. Failed to obtain witnesses, such as a DNA expert. Failed to properly cross-examine State's DNA expert.

Dkt. 5 at 7. As with Petitioner's other overlapping claims, some of these points are also addressed in other grounds for relief.

         After an evidentiary hearing, the postconviction court issued a lengthy ruling on Petitioner's 3.850 motion in which it denied all Petitioner's claims and stated “[t]o the extent that it is deemed necessary, it should be noted that the Court has accepted the testimony of [trial counsel] as more credible than that of [Petitioner].” Dkt. 11-2 at 566. Before addressing the individual claims, the court also noted that:

the trial attorney for [Petitioner] was working within the constraint imposed by the fact that [Petitioner] had admitted committing the crime. More specifically, when trial counsel asked about his trial strategy, he candidly offered this reply:
Q: Did you discuss with him the fact that if he did testify and he lied on the stand, you would not be able to ask questions and he would have to testify in narrative form?
A: Absolutely. . . . It was actually that I told him that that's how it was going to be, because he had already told me that he did it. So there was no question as to what he was going to testify to; I knew. He had already told me in confidence what happened. . . .

Dkt. 11-2 at 529-30.[1]

         The court then broke up Petitioner's first claim into four categories: (1) counsel's lack of experience, and ignorance of (2) procedural law, (3) the potential criminal punishment, and (4) the handling of evidentiary issues. On the first point, the postconviction court cited counsel's testimony that, prior to his representation of Petitioner, he had tried at least six felony cases at trial, including cases involving sexual battery, and had selected at least a couple dozen juries. Id. at 531. He also worked as both a state prosecutor and public defender. The court then noted that a “general accusation that trial counsel was inexperienced does not demonstrate deficient performance.” Id. (citing Gamble v. State, 877 So.2d 706 (Fla. 2004)). Rather, Petitioner must connect this lack of experience to some deficient performance.

         The postconviction court then observed that the “procedural aspects” noted by Petitioner merely concerned a discussion regarding calendar conflicts, and that the trial took place five months after the discussion. Id. at 531-32. As for Petitioner's possible punishment as a habitual felony offender, the postconviction court found it relevant that the State did not file its notice of intent to seek the habitual offender status or qualification as a prison releasee reoffender until near the conclusion of a hearing on January 9, 2012, days after the consequences had been explained to counsel. Id. at 532. It is unclear how such allegedly deficient performance could affect the result of the criminal proceedings.

         Lastly, the court rejected Petitioner's claims that if he was aware of counsel's shortcomings he would not have proceeded to trial with counsel but would have obtained a more experienced attorney. Dkt. 11-2 at 533-34. The court noted that Petitioner had attended seven hearings with counsel at which Petitioner could observe counsel's abilities, and at no point did he express any concerns. Id. And, again, Petitioner fails to tie any general inexperience or shortcomings of counsel to deficiencies or prejudice at trial.

         The postconviction court considered the issue of DNA, which consumes much of Petitioner's supporting memorandum, Dkt. 6 at 16-40, as it related to Petitioner's other claims. Petitioner now claims that trial counsel was ineffective in challenging this evidence. A few points are worth noting.

         First, though Petitioner claims that defense counsel should have retained a DNA expert to rebut the State's witness, as explained below, there was simply no money for it. Petitioner seems to suggest that counsel should not have agreed to handle a case that required costs to retain an expert. Dkt. 6 at 22. Yet the need for an expert was attenuated because, as counsel opined, there were very few aspects of the DNA evidence to challenge, and Petitioner's claims to the contrary and of “manipulation” or confusion between a major and minor “contributor” are mere speculation. Dkt. 6 at 26; Dkt. 11-1 at 511; Dkt. 11-2 at 514; see Carroll v. Crosby, No. 6:05-CV-857-ORL-31KRS, 2008 WL 2557555, at *9 (M.D. Fla. June 20, 2008), aff'd, 574 F.3d 1354 (11th Cir. 2009) (finding no habeas relief warranted where state court determined counsel decided not to hire a DNA expert because the DNA evidence was “pretty solid” and the laboratory that did the work was not under scrutiny); see also Merriel v. Sec'y, Dept. of Corr., No. 6:11-cv-1100-Orl-37DAB, 2013 WL 1365744, at *5 (M.D. Fla. Apr. 4, 2013) (“Petitioner does not allege that he had consensual sexual intercourse with the victim; therefore, he gives no explanation for the presence of his DNA. Petitioner has not shown that counsel's failure to further question [the State's DNA witness] or obtain a defense expert resulted in prejudice.”).

         What is more, trial counsel was at the outset unaware the State would produce DNA evidence because the State initially suggested it would not use DNA. Dkt. 11-2 at 415-16. Counsel asked for a Richardson hearing and to exclude the evidence, which was unsuccessful.[2] Id. To prepare for trial, counsel nonetheless conducted some independent research on DNA and discussed the issue with a DNA specialist. Counsel was also able to depose the State's DNA analyst. Petitioner, moreover, is unable to point with specificity to deficient aspects of counsel's cross-examination at trial. See Dkt. 11-1 at 516-28. In any event, Petitioner cannot show prejudice because the jury was still presented with the victim's unambiguous testimony in which she identifies Petitioner. See Merriel, 2013 WL 1365744, at *5.

         Moving on, Petitioner does not elaborate on his claim of “deposition of witnesses.” Counsel did depose witnesses, and Petitioner does not persuasively argue that the result at trial would have been different had counsel transcribed the depositions. Cf. Jackson v. Jones, No. CIVA 06-0172-BHC, 2007 WL 2069918, at *14 (S.D. Ala. July 16, 2007) (“Petitioner has made no allegation of any particular evidence or information which would have been discovered that had not already been produced pursuant to the trial court's discovery order. Therefore, Petitioner has failed to establish that he was in any way prejudiced by his trial counsel's failure to file a motion for discovery.”). Counsel was nonetheless taking copious notes during the depositions. Dkt. 11-2 at 416.

         The Court finds that the postconviction court was not unreasonable in finding no meritorious Strickland claim for Petitioner's first ground. To the extent that the postconviction court rested its determination solely on deficient performance or prejudice, the Court finds de novo that Petitioner does not establish either prong. See Ferrell v. Hall, 640 F.3d 1199, 1226 (11th Cir. 2011) (citations omitted).

         II. Failure to demand a speedy trial

         Petitioner argues that counsel was ineffective for failing to demand speedy trial when he discovered that the State was not yet able to process DNA evidence. Dkt. 5 at 8. Though he raises the issue here, Petitioner admits that “[a]fter conducting evidentiary hearing, it was determined that the issue was not appropriate for appeal.” Dkt. 5 at 10. Petitioner also acknowledges that because this claim was not presented to the state appellate court, it is not exhausted. Dkt. 6 at 11 n.17.

         Indeed, to avoid default of federal claims, (1) “the applicant must have fairly apprised the highest court of his state with the appropriate jurisdiction of the federal rights which allegedly were violated, ” and (2) “the applicant must have presented his claims in state court in a procedurally correct manner.” Upshaw v Singletary, 70 F.3d 576, 578-79 (11th Cir. 1995). Because at this stage Petitioner is unable to present his claims to the state court, the grounds are procedurally defaulted. See, e.g., Crosby v. Crosby, No. 502cv129OC10GRJ, 2005 WL 1126563, at * 2 n.15 (M.D. Fla. May 5, 2005) (citing Tafero v. State, 561 So.2d 557 (Fla. 1990) for proposition that “additional claims of ineffective assistance of counsel cannot be raised in a successive motion for post conviction relief where ineffectiveness was raised and addressed in the first motion”); Allen v. Sec'y, DOC, No. 2:12-CV-644-FtM-29CM, 2016 WL 762648, at *5 (M.D. Fla. Feb. 24, 2016), aff'd, 767 Fed.Appx. 786 (11th Cir. Apr. 3, 2019) (“Petitioner cannot return to state court to present this claim because Florida procedural rules preclude a second, untimely Rule 3.850 motion absent certain extenuating circumstances that are not present in this case.”); see also Frazier v. State, 898 So.2d 1183, 1183-84 (Fla. 3d DCA 2005) (barring as successive claims that could have and should have been made in previous postconviction motion).

         “[A] state prisoner seeking federal habeas corpus relief, who fails to raise his federal constitution claim in state court, or who attempts to raise it in a manner not permitted by state procedural rules, is barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default.” Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994) (citation omitted). “Cause exists if there was ‘some objective factor external to the defense [that] impeded counsel's efforts to comply with the State's procedural rule.'” Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir. 2008) (citation omitted). Prejudice requires Petitioner to show that there is at least a reasonable probability that the result of the proceeding would have been different. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003).

         Petitioner does not argue cause or prejudice and, again, acknowledges failure to exhaust. Nor is he able to make out a claim under Martinez v. Ryan, 566 U.S. 1 (2012) because he was represented during his initial-review collateral proceeding and there is no claim that postconviction counsel (indeed, the same as current counsel) was ineffective. In any event, the postconviction court's determination on the matter was not unreasonable.

         III. Inadequate ...

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