United States District Court, M.D. Florida, Orlando Division
ANTOON II UNITED STATES DISTRICT JUDGE.
Gresham ("Petitioner") filed an Amended Petition
for Writ of Habeas Corpus ("Amended Petition, ”
Doc. 8) pursuant to 28 U.S.C. § 2254 alleging two
grounds for relief. In both grounds, Petitioner argues that
the State court misapplied clearly established federal law in
denying relief as to two claims of his post-conviction rule
3.850 motion of ineffective assistance of counsel, contrary
to the Sixth Amendment of the United States Constitution. The
first claim was based on counsel's failure to investigate
an alibi defense, and the second was based on counsel's
failure to move to suppress the identification of Petitioner
based on unnecessarily suggestive procedures by law
enforcement. The Attorney General, State of Florida, and the
Secretary, Department of Corrections
("Respondents"), filed a Response to the Amended
Petition ("Response, ” Doc. 24), and Petitioner
filed a Reply to the Response. (Doc. 27). For the following
reasons, the Amended Petition must be denied.
Information, the State of Florida charged Petitioner with
attempted first-degree murder (Count One), robbery with a
firearm (Count Two), and possession of a firearm by a
convicted felon (Count Three). (Doc. 25-1 at 5-7). During
pre-trial proceedings, the trial court held two
Nelson hearings. The second Nelson hearing
addressed Petitioner's dissatisfaction with his
counsel's failure to file a motion to suppress and to
contact his witnesses. (Doc. 25-2 at 8-16). The trial court
determined that counsel was not acting incompetently and
denied Petitioner's request to discharge counsel.
(Id. at 16). A month after the second
Nelson hearing, on February 15, 2008, the Petitioner
entered a negotiated guilty plea to all counts, and in
exchange, the State agreed to a twenty-five-year sentence.
(Doc. 25-1 at 9-10). The trial court sentenced Petitioner to
concurrent twenty-five-year terms of imprisonment for Counts
One and Two and to a concurrent minimum mandatory three-year
term of imprisonment on Count Three. (Id. at 11-12).
Petitioner did not appeal.
23, 2008, Petitioner filed a motion for post-conviction
relief pursuant to Rule 3.850 of the Florida Rules of
Criminal Procedure (Id. at 15-25), but after filing
an amended Rule 3.850 motion (Id. at 27-55),
Petitioner voluntarily dismissed his motions. (Id.
at 57-59). On February 9, 2010, Petitioner filed a second
Rule 3.850 motion raising three claims of ineffective
assistance of counsel (Id. at 64-84), which he
supplemented on March 2, 2010. (Id. at 86-97). On
February 21, 2011, the trial court summarily denied the
second Rule 3.850 motion. (Doc. 25-2 at 2-7). Petitioner
appealed the denial to the Fifth District Court of Appeal,
which affirmed per curiam, "without prejudice
to address supplemental motion." (Id. at 158).
On August 9, 2013, the trial court denied Petitioner's
"Supplement to motion for post-conviction relief/'
Petitioner's appeal of this decision was also per
curiam affirmed by the Fifth District Court of Appeal.
the second Rule 3.850 motion was pending, the Petitioner
filed a motion to correct an illegal sentence pursuant to
Rule 3.800(a) of the Florida Rules of Criminal Procedure.
(Doc. 25-1 at 101-03). The state trial court summarily denied
that motion (Id. at 110-12), and Petitioner did not
February 3, 2014, Petitioner filed his third Rule 3.850
motion. (Doc. 25-2 at 86- 89). The trial court determined
that an evidentiary hearing on Petitioner's claim of
newly discovered evidence was necessary. (Id. at
95-97). At the conclusion of the evidentiary hearing, the
trial court denied relief. (Id. at 99-101).
Petitioner appealed, but the Fifth District Court of Appeal
dismissed the appeal for lack of prosecution. (Id.
Standard of Review Under the Antiterrorism Effective Death
Penalty Act ("AEDPA")
to the AEDPA, federal 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. Sec'y for Dep't of
Corr., 432 F.3d 1292, 1308 (11th Cir. 2005).
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.
Williams, 529 U.S. at 413. Even if the federal court
concludes that the state court applied federal law
incorrectly, habeas relief is appropriate only if that
application was "objectively unreasonable."
Parker v. Head,244 F.3d 831, 835 (11th Cir. 2001),
citingWilliams, 529 U.S. at 410. Whether a
state court's decision was an unreasonable application of
law must be assessed in light of the record before ...