United States District Court, M.D. Florida, Tampa Division
AMENDED  ORDER
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE
Van Sanders, a Florida prisoner, initiated this action for
habeas corpus relief pursuant to 28 U.S.C. Section 2254.
(Dkt. 1). Upon consideration of the petition and memorandum,
the Court ordered Respondent Secretary, Department of
Corrections, to show cause why relief sought in the petition
should not be granted. (Dkt. 4). Thereafter, Respondent filed
a response in opposition to the petition, along with the
state court record. (Dkts. 11, 13). Mr. Sanders then filed a
reply. (Dkt. 17).
petition, Mr. Sanders alleges a total of fourteen (14) claims
for relief, set forth in four grounds with sub-grounds. The
Court has reviewed the record and the undersigned has read
the trial transcript in its entirety. The Court will address
related claims together.
December 7, 2004, Mr. Sanders was charged with capital sexual
battery in violation of Florida Statutes Section
794.011(2)(a). (Dkt. 13 Ex. 1 Vol. I at 1). The charges
stemmed from the alleged sexual battery of Mr. Sanders'
young niece. Following a jury trial held in October 2007, Mr.
Sanders was found guilty as charged and sentenced to life in
prison. (Dkt. 13 Ex. 1 Vol. I at 40-41, 47-52). On appeal,
Florida's Second District Court of Appeal affirmed his
conviction and sentence per curiam. (Dkt. 1 Exs. 2, 4);
Sanders v. State, 14 So.3d 1013 (Fla. 2d DCA 2009)
Sanders then moved, in a motion and amended motion, for
post-conviction relief pursuant to Rule 3.850, Florida Rules
of Criminal Procedure. (Dkt. 13 Ex. 6). Through a series of
orders, the state post-conviction court held an evidentiary
hearing on several issues and ultimately denied each claim.
(Dkt. 13 Exs. 7, 10, 11). He appealed, and the state
appellate court affirmed the denial of his Rule 3.850 motion
without a written opinion. (Dkt. 13 Exs. 12, 15); Sanders
v. State, 179 So.3d 329 (Fla. 2d DCA 2015) (per curiam)
Sanders also filed a petition for writ of habeas corpus in
the state appellate court, which was denied. (Dkt. 13 Ex.
18). He then filed a petition for writ of certiorari with the
Florida Supreme Court, which was dismissed for lack of
jurisdiction. (Dkt. 13 Ex. 19). He subsequently filed a
petition alleging ineffective assistance of appellate counsel
in the state appellate court, which was denied. (Dkt. 13 Exs.
20, 23); Sanders v. State, 83 So.3d 726 (Fla. 2d DCA
Sanders then filed the instant federal habeas petition in
this Court. Upon review, the Court can resolve the entire
petition on the basis of the record. Therefore, an
evidentiary hearing is not warranted. See Schriro v.
Landrigan, 550 U.S. 465, 474 (2007).
GOVERNING LEGAL PRINCIPLES
Petitioner filed his petition after April 24, 1996, this case
is governed by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"). Penry v. Johnson, 532 U.S. 782,
792 (2001); Henderson v. Campbell, 353 F.3d 880,
889-90 (11th Cir. 2003). The AEDPA "establishes a more
deferential standard of review of state habeas
judgments," Fugate v. Head, 261 F.3d 1206, 1215
(11th Cir. 2001), in order to "prevent federal habeas
'retrials' and to ensure that state-court convictions
are given effect to the extent possible under law."
Bell v. Cone, 535 U.S. 685, 693 (2002); see also
Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(recognizing that the federal habeas court's evaluation
of state-court rulings is highly deferential and that
state-court decisions must be given the benefit of the
Standard of Review Under the AEDPA
to the AEDPA, habeas relief may not be granted with respect
to a claim adjudicated on the merits in state court unless
the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that 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). The phrase "clearly
established Federal law," encompasses only the holdings
of the United States Supreme Court "as of the time of
the relevant state-court decision." Williams v.
Taylor, 529 U.S. 362, 412 (2000).
2254(d)(1) provides two separate bases for reviewing state
court decisions; the 'contrary to' and
'unreasonable application' clauses articulate
independent considerations a federal court must
consider." Maharaj v. Secretary for Dep't. of
Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning
of the clauses was discussed by the Eleventh Circuit Court of
Appeals in Parker v. Head, 244 F.3d 831, 835 (11th
Under the "contrary to" clause, a federal court may
grant the writ if the state court arrives at a conclusion
opposite to that reached by [the United States Supreme Court]
on a question of law or if the state court decides a case
differently than [the United States Supreme Court] has on a
set of materially indistinguishable facts. Under the
'unreasonable application' clause, a federal habeas
court may grant the writ if the state court identifies the
correct governing legal principle from [the United States
Supreme Court's] decisions but unreasonably applies that
principle to the facts of the prisoner's case.
federal court concludes that the state court applied federal
law incorrectly, habeas relief is appropriate only if that
application was "objectively unreasonable."
section 2254(d)(2), a federal court may grant a writ of
habeas corpus if the state court's decision "was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding." A determination of a factual issue made by
a state court, however, shall be presumed correct, and the
habeas petitioner shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.
See Parker, 244 F.3d at 835-36; 28 U.S.C. §
evaluating a petitioner's claim, a federal habeas court
must first identify the highest state court decision, if any,
that adjudicated the claim on the merits. Marshall v.
Sec'y, Fla. Dep't of Corr., 828 F.3d
1277, 1285 (11th Cir. 2016). Where that state court's
adjudication is not accompanied by a reasoned opinion, the
United States Supreme Court has explained that:
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).
Ineffective Assistance of Counsel Standard
of ineffective assistance of counsel are analyzed under the
test set forth in Strickland v. Washington, 466 U.S.
668 (1984), which requires a petitioner to demonstrate both
deficient performance by counsel and resulting prejudice.
Demonstrating deficient performance "requires showing
that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant
by the Sixth Amendment." Id. at 687. Deficient
performance is established if, "in light of all the
circumstances, the identified acts or omissions [of counsel]
were outside the wide range of professionally competent
assistance." Id. at 690. However, "counsel
is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment." Id. Additionally,
"a court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel's challenged conduct
on the facts of the particular case, viewed as of the time of
counsel's conduct." Id.
petitioner must demonstrate that counsel's alleged errors
prejudiced the defense because "[a]n error by counsel,
even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had
no effect on the judgment." Id. at 691-92. To
show prejudice, the petitioner must show "a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Id. at 694.
a claim of ineffective assistance of counsel on federal
habeas review is very difficult because "[t]he standards
created by Strickland and § 2254(d) are both
'highly deferential,' and when the two apply in
tandem, review is 'doubly' so." Harrington
v. Richer, 562 U.S. 86, 105 (2011) (citations omitted).
See also Cullen v. Pinholster, 563 U.S. 170, 202
(2011) (a petitioner must overcome the" 'doubly
deferential' standard of Strickland and
AEDPA.") (citation omitted). If a claim of ineffective
assistance of counsel can be resolved through one of
Strickland's two prongs, the other prong need
not be considered. Strickland, 466 U.S. at 697;
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir.
Petitioner's Challenge to the State Court's Summary
ground three and grounds four (A)-(G), Mr. Sanders claims
that the state court erred by summarily denying his claims
without an evidentiary hearing. (Dkt. 1 at 10-14; Dkt. 17 at
8). Under Florida law, a motion for post-conviction relief
may be summarily denied "only if the claims asserted are
either legally insufficient or conclusively refuted by the
record." Washington v. State, 10 So.3d 1126,
1127 (Fla. 1st DCA 2009) (citing Freeman v. State,
761 So.2d 1055, 1061 (Fla. 2000)). If the state court is
unable to "attach portions of the record that
conclusively refute the claims," then, "summary
denial is improper, and an evidentiary hearing is
required." Id. at 1127-28.
the Court need not decide whether the state post-conviction
court erred because a defect in a state collateral proceeding
provides no basis for habeas relief, "since no question
of a constitutional nature is involved." See Carroll
v. Sec >, Dep't of Corr., 574 F.3d 1354,
1365 (11th Cir. 2009) (quoting McCullough v.
Singletary, 967 F.2d 530, 535 (11th Cir. 1992)); see
also Anderson v. Sec'y for Dep't of Con., 462
F.3d 1319, 1330 (11th Cir. 2006) (citing Spradley v.
Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987)).
Additionally, "a challenge to a state collateral
proceeding does not undermine the legality of the detention
or imprisonment - [that is], the conviction itself-and thus
habeas relief is not an appropriate remedy."
Carroll, 574 F.3d at 1365. Therefore, Mr.
Sanders' argument that the state court was required to
hold an evidentiary hearing does not entitle him to relief.
Failure of State Court to Cite Strickland
his federal habeas petition, Mr. Sanders complains that the
state courts did not address or apply Strickland to
his claims of ineffective assistance. However, the Supreme
Court has explained that
[a] state-court decision is "contrary to" our
clearly established precedents if it "applies a rule
that contradicts the governing law set forth in our
cases" or if it "confronts a set of facts that are
materially indistinguishable from a decision of this Court
and nevertheless arrives at a result different from our
precedent." Williams v. Taylor, 529 U.S. 362,
405-406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Avoiding
these pitfalls does not require citation of our cases -
indeed, it does not even require awareness of our cases, so
long as neither the reasoning nor the result of the
state-court decision contradicts them.
Early v. Packer, 537 U.S. 3, 8 (2002). Accordingly,
Mr. Sanders' argument does not entitle him to relief.
Claims of Judicial Bias
Mr. Sanders alleges judicial bias with regard to the claims
he presented to the state post-conviction court in his Rule
3.850 motion for post-conviction relief. He contends that the
state court judge who presided over his Rule 3.850
post-conviction proceedings "was [previously a]
supervising assistant state attorney on his case and even
signed papers as [such] directly relating to his case"
at the trial level. (Dkt. 1 at 9-10). He asserts that the
post-conviction judge improperly "adopted all of the
state's arguments ... as well as [the] state's
misinterpretation of law." (Dkt. 1 at 10; see also,
e.g., Dkt. 1 at 11, 15, 16; Dkt. 17 at 9-16, 20-22, 25,
Sanders correctly concedes that his claim of judicial bias in
relation to his post-conviction proceedings does not entitle
him to habeas relief. However, as he notes, if the claims are
meritorious, they "might deprive the state of the
[AEDPA] presumption of correctness" due the
post-conviction judge's findings, if bias rendered the
proceedings not full and fair. See Quince v. Crosby,
360 F.3d 1259, 1262 (11th Cir. 2004) (citing Thompson v.
Keohane, 516 U.S. 99, 108-09(\995); Hardwick v.
Crosby, 320 F.3d 1127, 1158 (11th Cir.
2003)). (Dkt. 17at 9-10).
record reflects that, following Mr. Sanders' trial and
conviction, Assistant State Attorney M. M. Handsel signed and
filed a "Notice of Intent to Declare Defendant A Sexual
Predator" on March 20, 2008, months after the conclusion
of Mr. Sanders' trial. (Dkt. 13 Ex. 1 Vol. I at 58).
Three years later, on March 18, 2011, the Honorable Mary M.
Handsel signed an order denying in part and striking in part
Mr. Sanders' Rule 3.850 motion for post-conviction
relief. (Dkt. 13 Ex. 7). Judge Handsel subsequently entered
orders denying relief on all of Mr. Sanders' claims.
(Dkt. 13Exs. 10, 11). Notwithstanding the judge's prior
participation in his case, the Court concludes that the claim
is precluded from federal habeas review.
when a state court rejects a petitioner's claim on the
basis that the claim was not properly raised in accordance
with state procedure, constituting an independent and
adequate state ground, federal review of the claim in a
subsequent federal habeas proceeding is not available.
See Coleman v. Thompson, 501 U.S. 722, 729-30
(1991). See also Judd v. Haley, 250 F.3d 1308, 1313
(11th Cir. 2001). Although Mr. Sanders raised a judicial bias
argument on appeal of the denial of his Rule 3.850
motion, he did not raise the issue in the post-conviction
court. Under Florida law, "an appellate court will not
consider an issue unless it was presented to the lower
court," except in cases of fundamental error.
Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982).
Respondent argued on appeal that, because the matter was not
first brought to the post-conviction judge's attention,
the state appellate court's review was limited to
fundamental error. (Dkt. 13 Ex. 13 at 33). In denying relief,
the state appellate court implicitly concluded that the
error, if any, was not fundamental - an issue of state law
that this Court may not second guess. See Estelle v.
McGuire, 502 U.S. 62, 67 (1991) ("[I]t is not the
province of a federal habeas court to reexamine state-court
determinations on state-law questions."). Under Florida
law, Mr. Sanders' claim is, therefore, procedurally
claim of judicial bias is also procedurally defaulted for a
second reason - Mr. Sanders failed to present to the state
appellate court any facts demonstrating actual bias or
prejudice resulting from the post-conviction judge's
participation in his case. He merely argued that, "[a]s
the postconviction judge took an active part in Mr.
Sanders' postconviction [proceedings] in this matter, she
should have recused herself from Mr. Sanders'
postconviction proceeding sua
sponte[.]” (Dkt. 13 Ex. 12 at 49
the AEDPA, "[a]n application for a writ of habeas corpus
on behalf of a person in custody pursuant to the judgment of
a State court shall not be granted unless it appears that --
(A) the applicant has exhausted the remedies available in the
courts of the State[.]" 28 U.S.C. § 2254(b)(1)(A).
"[T]he prohibition against raising nonexhausted claims
in federal court extends not only to broad legal theories of
relief, but also to the specific assertions of fact that
might support relief." Kelley v. Sec'y for
Dep't of Con., 377 F.3d 1317, 1344 (11th Cir. 2004).
Because Mr. Sanders failed to raise in state court the
various arguments now presented in the instant federal
petition - for example, that the post-conviction judge simply
"parroted" the arguments made by the State in
deciding the issues he presented in his Rule 3.850 motion -
he has not exhausted, and has procedurally defaulted, those
Grounds One & Four (C) - Admission by Silence
ground one, Mr. Sanders claims that the trial
court erred by "unreasonably limiting [his]
ability to 'fully and fairly' cross-examine [a] state
witness about circumstances surrounding [an] alleged tacit
admission." (Dkt. 1 at 5). Mr. Sanders explains that his
brother, David Patrick Sanders, testified as a witness for
the State about a phone call during which Mr. Sanders
purportedly admitted to the crime by his silence.
(Id.). The defense sought testimony from the brother
on cross-examination that their grandmother was present at
Mr. Sanders' end of the telephone conversation.
(Id.). The State objected, and the trial court
sustained the State's hearsay objection. (Id.).
Mr. Sanders argues that, in doing so, the trial court
unconstitutionally limited the defense's
cross-examination on that point. (Id.). He further
claims that the "[d]ecisions by the trial and appellate
court were based on an unreasonable determination of the
facts where [the] State did not show that knowledge of [the
grandmother's presence] was hearsay."
record reveals that the following exchanges occurred at
[DIRECT EXAMINATION of David Sanders]
[BY MR. KENNY:]
Q Did there come a time when [A.S.] talks to you about
something that may have happened between your brother[, ]
Manfred[, ] and her?
Q And does there come a time, when you actually understand
that you will actually have a conversation with your brother
A Yes, I think you are referring to my deposition, and in my
deposition, I don't want to get into too many convoluted
Q I will make it easier. Does there come a time when you call
your brother when he was in Germany?
Q Do you talk to your brother about the allegation that
[A.S.] made regarding what Manfred Sanders had done to her?
A To be specific, my step-mother said that Manfred had raped
Q Do you talk to your brother about whether or not he had
raped [A.S.]? Is that the term that you used with him?
A Yes, on the phone I said -I'm not sure exactly how I
said it. I don't know if I said it was [A.S.] and I
probably say now that you raped her, because the allegation
had previously been something different.
Q Now, when you tell him that, what does he say?
A He didn't say anything. He just -- we didn't
discuss it any further.
Q Did he deny it?
A No, at that time he didn't deny it over the phone.
MR. KENNY: No. further questions, Judge.
THE COURT: Defense may inquire.
MR. LIVERMORE [Counsel for Defense]: Yes.
BY MR. LIVERMORE:
Q Now, sir, specifically the conversation that you talked -
when you said you were talking to your brother in Germany, do
you remember when that was?
A It was most likely in late 2003 or early 2004, but I
can't recall the exact date.
Q And that conversation, Manfred was in Germany?
A That's correct, he would have been in Germany.
Q When you spoke to your brother, did you speak in English or
Q And during the conversation did you learn that your
grandmother was next to him listening to the conversation?
A Well, there is -
MR. KENNY: Objection, hearsay, Judge.
THE COURT: I will sustain it, you may rephrase.
BY MR. LIVERMORE:
Q Did you understand that she was there?
MR. KENNY: Objection, same objection.
THE COURT: Sustained. Counsel please approach ...