United States District Court, M.D. Florida, Tampa Division
JAMES A. ZIMMERMAN, Petitioner,
FLORIDA ATTORNEY GENERAL and SECRETARY, DEPARTMENT OF CORRECTIONS, Respondents.
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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.
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
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.
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.
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).
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).
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).
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.
Counsel was ineffective on the face of the record
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
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
Dkt. 5 at 7. As with Petitioner's other overlapping
claims, some of these points are also addressed in other
grounds for relief.
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
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
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.
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
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.
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.
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.
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.”).
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. 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.
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.
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)
Failure to demand a speedy trial
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.
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
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).
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.