United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE
cause is before the court on Petitioner's petition for
writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
(ECF No. 1). Respondent filed an answer and relevant portions
of the state court record (ECF No. 13). Petitioner filed a
reply (ECF No. 17).
case was referred to the undersigned for the issuance of all
preliminary orders and any recommendations to the district
court regarding dispositive matters. See N.D. Fla.
Loc. R. 72.2(B); see also 28 U.S.C. §
636(b)(1)(B), (C) and Fed.R.Civ.P. 72(b). After careful
consideration of all issues presented by the parties, it is
the opinion of the undersigned that no evidentiary hearing is
required for the disposition of this matter, Rule 8(a), Rules
Governing Section 2254 Cases. It is further the opinion of
the undersigned that the pleadings and attachments before the
court show that Petitioner is not entitled to relief.
BACKGROUND AND PROCEDURAL HISTORY
relevant aspects of the procedural background of this case
are established by the state court record (see ECF
No. 13). Petitioner was charged in the Circuit
Court in and for Leon County, Florida, No. 2012-CF-1496, with
one count of trafficking in hydrocodone (Count I) and one
count of resisting an officer without violence (Count II)
(Ex. A at 9). On June 4, 2014, a jury found Petitioner guilty
of both charges, after deliberating for 17 minutes, with a
specific finding that the trafficking charge involved an
amount of hydrocodone weighing 14 grams or more but less than
28 grams (Ex. A at 62-64, Ex. B 1-163). The same day, the
court sentenced Petitioner to a mandatory term of fifteen
(15) years in prison on Count I and a concurrent term of 11
months and 29 days on Count II, with pre-sentence jail credit
of 757 days (Ex. A at 68-77, Ex. B at 164-78).
filed a motion to correct sentencing error, pursuant to Rule
3.800(b)(2) of the Florida Rules of Criminal Procedure (Ex. D
at 146-61). The trial court summarily denied the motion on
March 9, 2015 (id. at 162-64).
through counsel, appealed the sentence to the Florida First
District Court of Appeal (“First DCA”), No.
1D14-2989 (Ex. E). The First DCA affirmed the judgment and
sentence per curiam without written opinion on September 22,
2015 (Ex. H). Brown v. State, 174 So.2d 997 (Fla.
1st DCA 2015) (Table). The mandate issued October 8, 2015
March 7, 2016, Petitioner filed a motion for post-conviction
relief in the state circuit court, pursuant to Rule 3.850 of
the Florida Rules of Criminal Procedure (Ex. K at 3-27). The
circuit court appointed counsel to represent Petitioner and
held an evidentiary hearing on all of Petitioner's claims
(id. at 41, 48-120). The state circuit court denied
the Rule 3.850 motion on May 30, 2017 (id. at
42-43). Petitioner appealed the decision to the First DCA,
No. 1D17-2614 (Ex. L). The First DCA affirmed the circuit
court's decision per curiam without written opinion on
August 10, 2018 (Ex. N). Brown v. State, 252 So.3d
151 (Fla. 1st DCA 2018) (Table). The mandate issued October
3, 2018 (Ex. N).
filed the instant federal habeas action on October 29, 2018
(ECF No. 1).
STANDARD OF REVIEW
courts may grant habeas corpus relief for persons in state
custody pursuant to 28 U.S.C. § 2254. Section 2254(d)
provides, in relevant part:
(d) An 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 with respect to any claim that was
adjudicated on the merits in State court proceedings 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) (2011).
United States Supreme Court explained the framework for
§ 2254 review in Williams v. Taylor, 529 U.S.
362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The appropriate
test was described by Justice O'Connor as follows:
Under the “contrary to” clause, a federal habeas
court may grant the writ if the state court arrives at a
conclusion opposite to that reached by this court on a
question of law or if the state court decides a case
differently than this 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 this Court's decisions but
unreasonably applies that principle to the facts of the
Id., 529 U.S. at 412-13 (O'Connor, J.,
the Williams framework, on any issue raised in a
federal habeas petition upon which there has been an
adjudication on the merits in a state court proceeding, the
federal court must first ascertain the “clearly
established Federal law, ” namely, “the governing
legal principle or principles set forth by the Supreme Court
at the time the state court render[ed] its decision.”
Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct.
1166, 155 L.Ed.2d 144 (2003). The law is “clearly
established” only when a Supreme Court holding at the
time of the state court decision embodies the legal principle
at issue. Thaler v. Haynes, 559 U.S. 43, 47, 130
S.Ct. 1171, 175 L.Ed.2d 1003 (2010); Woods v.
Donald, __U.S. __, 135 S.Ct. 1372, 1376, 191 L.Ed.2d 464
(2015) (“We have explained that clearly established
Federal law for purposes of § 2254(d)(1) includes only
the holdings, as opposed to the dicta, of this Court's
decisions.” (internal quotation marks and citation
identifying the governing legal principle(s), the federal
court determines whether the state court adjudication is
contrary to the clearly established Supreme Court case law.
The adjudication is not contrary to Supreme Court precedent
merely because it fails to cite to that precedent. Rather,
the adjudication is “contrary” only if either the
reasoning or the result contradicts the relevant Supreme
Court cases. See Early v. Packer, 537 U.S. 3, 8, 123
S.Ct. 362, 154 L.Ed.2d 263 (2002). Where there is no Supreme
Court precedent on point, the state court's conclusion
cannot be contrary to clearly established federal law.
See Woods, 135 S.Ct. at 1377 (holding, as to claim
that counsel was per se ineffective in being absent from the
courtroom for ten minutes during testimony concerning other
defendants: “Because none of our cases confront the
specific question presented by this case, the state
court's decision could not be contrary to any holding
from this Court.” (internal quotation marks and
citation omitted)). If the state court decision is contrary
to clearly established federal law, the federal habeas court
must independently consider the merits of the
petitioner's claim. See Panetti v. Quarterman,
551 U.S. 930, 954, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).
“contrary to” clause is not satisfied, the
federal habeas court next determines whether the state court
“unreasonably applied” the governing legal
principles set forth in the Supreme Court's cases. The
federal court defers to the state court's reasoning
unless the state court's application of the legal
principle(s) was “objectively unreasonable” in
light of the record before the state court.
Williams, 529 U.S. at 409; see Holland v.
Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L.Ed.2d
683 (2004) (per curiam). In applying this standard, the
Supreme Court has emphasized:
When reviewing state criminal convictions on collateral
review, federal judges are required to afford state courts
due respect by overturning their decisions only when there
could be no reasonable dispute that they were wrong. Federal
habeas review thus exists as “a guard against extreme
malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through
appeal.” Harrington, supra, at
102-103, 131 S.Ct. 770 (internal quotation marks omitted).
Woods, 135 S.Ct. at 1376 (quoting Harrington v.
Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624
2254(d) also allows federal habeas relief for a claim
adjudicated on the merits in state court where that
adjudication “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)(2). The “unreasonable
determination of the facts” standard is implicated only
to the extent the validity of the state court's ultimate
conclusion is premised on unreasonable fact finding.
See Gill v. Mecusker, 633 F.3d 1272, 1292
(11th Cir. 2011). As with the “unreasonable
application” clause, the federal court applies an
objective test. Miller-El v. Cockrell, 537 U.S. 322,
340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (holding that a
state court decision based on a factual determination
“will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented
in the state court proceeding.”). Federal courts
“may not characterize . . . state-court factual
determinations as unreasonable merely because we would have
reached a different conclusion in the first instance.”
Brumfield v. Cain, __U.S. __, 135 S.Ct. 2269, 2277,
192 L.Ed.2d 356 (2015) (quotation marks omitted).
performing review under § 2254(d), the federal court
presumes that all factual determinations made by the state
court are correct. 28 U.S.C. § 2254(e)(1). The
petitioner bears “the burden of rebutting the
presumption of correctness by clear and convincing
evidence.” Id.; see, e.g.,
Miller-El, 537 U.S. at 340 (explaining that a
federal court can disagree with a state court's factual
finding and, when guided by the AEDPA, “conclude the
decision was unreasonable or that the factual premise was
incorrect by clear and convincing evidence”).
the federal habeas court finds that the petitioner satisfied
§ 2254(d), does the court take the final step of
conducting an independent review of the merits of the
petitioner's claim. See Panetti, 551 U.S. at
954. Even then, the writ will not issue unless the petitioner
shows that he is in custody “in violation of the
Constitution or laws and treaties of the United
States.” 28 U.S.C. § 2254(a). “If this
standard is difficult to meet, that is because it was meant
to be.” Richter, 562 U.S. at 102.
this framework, the court will review Petitioner's
Ground One: “Ineffective assistance of trial
counsel for misadvising Defendant as to his sole affirmative
defense, in violation of the U.S. Const. 6th
Two: “Ineffective assistance of trial counsel for
misadvising Defendant not to testify in his own defense, in
violation of the U.S. Const. 6th Amend.”
Three: “Ineffective assistance of trial counsel for
misadvising and failing to procure the attendance of a
crucial witness for his trial violation [sic] of his 6th U.S.
Four: “The cumulative effect of trial counsel's
deficient performance prejudiced the
alleges his sole defense was a “prescription defense,
” but defense counsel erroneously advised him it was
not a viable defense and instead pursued a sympathy/jury
nullification defense (ECF No. 1 at 5, 7, 8; ECF No. 17 at
5-12). Petitioner alleges prior to trial, he told
defense counsel that the loose hydrocodone pills found in his
pocket belonged to his sister, Margaret Bryant, who had a
prescription for the pills, and that she left the pills at
Petitioner's residence “for him to possess”
(ECF No. 17 at 10). Petitioner alleges Ms. Bryant would have
testified she had a valid prescription for “at least 15
pills” (id.). Petitioner alleges defense
counsel advised him that Ms. Bryant's testimony would not
support any defense (id.).
also alleges defense counsel misadvised him with respect to
testifying on his own behalf (ECF No. 17 at 8). Petitioner
alleges during trial, defense counsel advised the court that
Petitioner intended to testify (id.). Petitioner
alleges the trial court conducted a colloquy, during which
the court advised Petitioner that he would be required to
answer questions truthfully, including whether he had any
prior convictions (id.). Petitioner alleges he
decided not to testify, but his decision was based upon
defense counsel's failure to advise him that although the
prosecutor could inquire about the number of his prior
convictions, the prosecutor could not inquire about any
pending charges (id. at 9). Petitioner alleges if
counsel had advised him about these limitations, he would
have testified (id.). Petitioner also alleges
counsel misadvised him that his testimony would not support a
prescription defense (id. at 8).
contends the “total impact” of counsel's
error produced a fundamentally flawed trial (ECF No. 1 at 10;
ECF No. 17 at 13).
appears to concede Petitioner exhausted these four claims in
the state courts by presenting them in his Rule 3.850 motion
(ECF No. 13 at 18-20, 30- 32, 39-40). Respondent contends the
state court's adjudication of Grounds One, Two, and Three
was not based upon an unreasonable determination of the facts
in light of the evidence presented at the evidentiary
hearing, nor was the adjudication contrary to or an
unreasonable application of clearly established federal law
(id. at 20-30, 33-39, 40-44).
respect to Ground Four, Respondent contends the United States
Supreme Court has not held that distinct constitutional
claims may be cumulated to grant federal habeas relief (ECF
No. 13 at 45). Respondent further contends that even if
Petitioner's “cumulative effect” claim is
cognizable, he is not entitled to relief, because the state
court's rejection of the claim was not contrary to or an
unreasonable application of clearly established federal law
(id. at 45-48).
Clearly Established Federal Law
standard for evaluating claims of ineffective assistance of
counsel is set forth in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To
obtain relief under Strickland, Petitioner must show
(1) deficient performance by counsel and (2) a reasonable
probability that, but for counsel's deficient
performance, the result of the proceeding would have been
different. Id. at 687-88. If Petitioner fails to
make a showing as to either performance or prejudice, he is
not entitled to relief. Id. at 697.
focus of inquiry under the performance prong of
Strickland is whether counsel's assistance was
reasonable considering all the circumstances and under
prevailing professional norms. Strickland, 466 U.S.
at 688-89, 691. “The petitioner's burden to prove,
by a preponderance of the evidence, that counsel's
performance was unreasonable is a heavy one.” Jones
v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006)
(citing Chandler v. United States, 218 F.3d 1305,
1313 (11th Cir. 2000) (en banc)). “Judicial scrutiny of
counsel's performance must be highly deferential, ”
and courts should make every effort to “eliminate the
distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time.” Strickland, 466 U.S. at 689.
“[T]here are no ‘absolute rules' dictating
what reasonable performance is . . . .” Michael v.
Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005) (quoting
Chandler, 218 F.3d at 1317). Indeed,
“‘[a]bsolute rules would interfere with
counsel's independence-which is also constitutionally
protected-and would restrict the wide latitude counsel have
in making tactical decisions.'” Id.
(quoting Putman v. Head, 268 F.3d 1223, 1244 (11th
Cir. 2001)). Counsel's performance is deficient only if
it is “outside the wide range of professional
competence.” Jones, 436 F.3d at 1293 (citing
Strickland, 466 U.S. at 690); Lancaster v.
Newsome, 880 F.2d 362, 375 (11th Cir. 1989) (emphasizing
that petitioner was “not entitled to error-free
are “countless ways to provide effective assistance in
any given case.” Strickland, 466 U.S. at 691.
“Even the best criminal defense attorneys would not
defend a particular client in the same way.”
Id. at 689. Rare are the situations in which the
“wide latitude counsel must have in making tactical
decisions” will be limited to any one technique or
approach. Id. “Counsel was entitled to
formulate a strategy that was reasonable at the time . . .
.” Richter, 562 U.S. at 107 (citations
omitted); Ward v. Hall, 592 F.3d 1144, 1164 (11th
Cir. 2010) (“[C]ounsel cannot be adjudged incompetent
for performing in a particular way in a case, as long as the
approach taken might be considered sound trial
strategy.”). “Even if many reasonable lawyers
would not have done as defense counsel did at trial, no
relief can be granted on ineffectiveness grounds unless it is
shown that no reasonable lawyer, in the circumstances, would
have done so.” Rogers v. Zant, 13 F.3d 384,
386 (11th Cir. 1994).
Eleventh Circuit has explained trial counsel's
responsibilities regarding a client's right to testify as
In Teague, we specifically delineated the duties of
a trial counsel with respect to a defendant's right to
testify. Counsel must advise the defendant (1) of his right
to testify or not testify; (2) of the strategic implications
of each choice; and (3) that it is ultimately for the
defendant himself to decide whether to testify. Id.
McGriff v. Dept. of Corr., 338 F.3d 1231, 1237 (11th
Cir. 2003) (citing United States v. Teague, 953 F.2d
1525, 1532 (11th Cir. 1992)). “[I]f defense counsel
believes that it would be unwise for the defendant to
testify, counsel may, and indeed should, advise the client in
the strongest possible terms not to testify.”
Teague, 953 F.2d at 1533.
respect to the prejudice prong of the Strickland
standard, Petitioner's burden of demonstrating prejudice
is high. See Wellington v. Moore, 314 F.3d 1256,
1260 (11th Cir. 2002). To establish prejudice, Petitioner
must show “that every fair-minded jurist would conclude
‘that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.'” Jones
v. GDCP Warden, 753 F.3d 1171, 1184 (11th Cir. 2014)
(quoting Strickland, 466 U.S. at 694). “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome, ” not that
counsel's conduct more likely than not altered the
outcome of the proceeding. Id. (citation omitted).
And Petitioner must show that the likelihood of a different
result is substantial, not just conceivable. Williamson
v. Fla. Dep't of Corr., 805 F.3d 1009, 1016 (11th
Cir. 2015) (citing Richter, 562 U.S. at 112).
“When a defendant challenges a conviction, the question
is whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt
respecting guilt.” Strickland, 466 U.S. at
695. The prejudice assessment does “not depend on the
idiosyncracies [sic] of the particular decisionmaker, ”
as the court should presume that the judge or jury acted
according to law. Id. at 695.
when a district court considers a habeas petition, the state
court's findings of historical facts in the course of
evaluating an ineffectiveness claim are subject to the
presumption of correctness, while the performance and
prejudice components are mixed questions of law and fact.
Strickland, 466 U.S. at 698; Collier v.
Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999).
“Surmounting Strickland's high bar is
never an easy task.” Padilla v. Kentucky, 559
U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).
“Establishing that a state court's application of
Strickland was unreasonable under § 2254(d) is
all the more difficult.” Richter, 131 S.Ct. at
788. As the Richter Court explained:
The standards created by Strickland and §
2254(d) are both “highly deferential, ” and when
the two apply in tandem, review is “doubly” so.
The Strickland standard is a general one, so the
range of reasonable applications is substantial. Federal
habeas courts must guard against the danger of equating
unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel's actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied
Strickland's deferential standard.
Id. (citations omitted).
Federal Review of State Court Decision
presented all four of these claims in his Rule 3.850 motion
(Ex. K at 13-26). The parties presented evidence during the
evidentiary hearing in the circuit court, including the
testimony of three witnesses, Petitioner, Margaret
Brown-Bryant (Petitioner's sister), and Attorney John
Eagen (Petitioner's trial counsel) (Ex. K at 48-108). The
circuit court also took judicial notice of the trial record,
including the trial transcript (id. at 47, 68).
Brown-Bryant testified she is Petitioner's sister (Ex. K
at 79). She testified that in early May of 2012, she brought
their mother from Donalsonville, Georgia, to Petitioner's
home, so he could care for her (id. at 80-81). Ms.
Bryant testified she brought her mother's clothing and
medications (id. at 81). Bryant testified she also
brought her own medication, specifically, hydrocodone, but
she did so accidentally (id. at 81-82). Ms. Bryant
testified, “It was in a bag, and I didn't know
it” (id. at 81). Ms. Bryant testified the
hydrocodone was in a prescription pill bottle (id.
at 83-84, 87). Bryant testified that after she put everything
in Petitioner's house, Petitioner said he could not take
care of their mother, so she hastily left with her mother and
“everything” (id. at 82). Ms. Bryant
later testified she left some of her things and some of her
mother's things behind at Petitioner's house
(id. at 94).
Bryant testified that on the day Petitioner was arrested in
May of 2012, she learned that he was charged with possession
of her prescription pills (Ex. K at 90). When asked how many
times she met with Attorney Eagen, Ms. Bryant responded:
A. If I seen [sic] him, twice. That was the only time. I
spoke to Ms. Marilee [sic], his legal assistant.
Q. Okay. Did you talk to him about the facts of the case?
A. I met with him downstairs once, and I asked him. I said,
what's going on? We are working on it. But I told Ms.
Marilee everything. She was the one taking the money and
Q. Okay. So you would, of course, not know whether or not Mr.
Eagen's assistant told him anything.
A. I wouldn't.
at 83-84). Ms. Bryant testified she was present at trial
(id. at 84). She stated she would have testified
that the pills were hers (id.).
cross-examination, Ms. Bryant testified she would have been
able to obtain a copy of her prescription, but “Nobody
asked for it” (Ex. K at 91, 92). She testified:
Q [by counsel for the State]. And you didn't bother
getting that, knowing that your older brother is facing a
minimum mandatory prison sentence of 15 years for being in
possession of your pills?
A. Can I speak now?
Q. No. You can answer my question.
A. Okay. I didn't even know anything about mandatory. No,
ma'am, I didn't. My mom was still with me and still
ill. So, no, ma'am. I didn't know he was facing no
[sic] 15 years. I didn't.
inquiry by the court, Ms. Bryant testified she left 15 pills,
at the most, at Petitioner's house (Ex. K at 95). She
testified none of ...