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Gresham v. Secretary, Department of Corrections

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

August 8, 2019

LEROY GRESHAM, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          JOHN ANTOON II UNITED STATES DISTRICT JUDGE.

         Leroy 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.

         I. Procedural History

         By 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.[1] 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).[2] 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.

         On June 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.

         While 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 appeal.

         On 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. at 155).

         II. Legal Standards

         A. Standard of Review Under the Antiterrorism Effective Death Penalty Act ("AEDPA")

         Pursuant 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; or
(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).

         "[S]ection 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 ...


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