United States District Court, M.D. Florida, Tampa Division
CHARLENE EDWARDS HONEYWELL UNITED STATES DISTRICT JUDGE.
a Florida prisoner, initiated this action by filing a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
Section 2254 (Doc. 1). He subsequently filed an amended
petition (Doc. 2). The Court ordered Respondent to show cause
why the relief sought in the amended petition should not be
granted (Doc. 7). Respondent filed a limited response in
opposition, incorporating therein a motion to dismiss the
petition as untimely (Doc. 9), to which Petitioner replied
(Doc. 13). The motion to dismiss was denied (see
Doc. 16), and Respondent filed a supplemental response (Doc.
21). Upon consideration, the amended petition will be denied.
was found guilty of theft and aggravated battery (Doc. 9-1,
p. 3). He was sentenced to 15 years in prison on
the aggravated battery conviction, and 5 years on the theft
conviction, consecutive to the aggravated battery
(Id., pp. 4-12). His convictions and sentences were
affirmed on appeal (Id., pp. 15-16).
motion for post-conviction relief was denied (Doc. 22-4,
docket pp. 231-350), and the denial of the motion was
affirmed on appeal (Doc. 9-1, p. 68, 70). He thereafter
initiated this action by filing a petition for a writ of
habeas corpus (Doc. 1). His amended petition (Doc. 2) is now
before the Court.
amended petition raises five grounds for relief:
Ground One: MS. AMBER TUCKER RENDERED INEFFECTIVE ASSISTANCE
OF COUNSEL FOR FAILING TO PROTECT MR. FERNANDEZ'S RIGHT
TO A SPEEDY TRIAL BY WAIVING THE RIGHT AGAINST MR.
FERNANDEZ'S ORAL MOTION FOR SPEEDY TRIAL
Ground Two: MS. JENNIFER STROUF RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN SHE WITHDREW HER REQUEST FOR
MISTRIAL DURING THE TESTIMONY OF STATE WITNESS JACQUELINE
Ground Three: MS. JENNIFER STROUF RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN SHE FAILED TO OBJECT TO THE
SURPRISE TESTIMONY OF STATE WITNESS BILLY HAMM AS A DISCOVERY
BRADY V. MARYLAND VIOLATION
Ground Four: MS. JENNIFER STROUF RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN SHE FAILED TO PREPARE AND ADVISE
MR. FERNANDEZ ON THE CORRECT NUMBER OF PRIOR CONVICTIONS THAT
COULD BE USED TO IMPEACH HIS TESTIMONY
Ground Five: MS. JENNIFER STROUF AND MS. MELISSA WILSON
RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO
MOVE FOR JUDGMENT OF ACQUITTAL RELATIVE TO THE LESSER
INCLUDED OFFENSE OF GRAND THEFT
GOVERNING LEGAL PRINCIPLES
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 Cir. 2001):
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.”
under § 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. §
Standard for Ineffective Assistance of Counsel
United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984), established a two-part
test for determining whether a convicted person is entitled
to relief on the ground that his counsel rendered ineffective
assistance: (1) whether counsel's performance was
deficient and “fell below an objective standard of
reasonableness”; and (2) whether the deficient
performance prejudiced the defense. Id. at 687-88. A
court must adhere to a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance. Id. at 689-90. “Thus,
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. at 690; Gates
v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).
observed by the Eleventh Circuit Court of Appeals, the test
for ineffective assistance of counsel:
has nothing to do with what the best lawyers would have done.
Nor is the test even what most good lawyers would have done.
We ask only whether some reasonable lawyer at the trial could
have acted, in the circumstances, as defense counsel acted at
trial. Courts also should at the start presume effectiveness
and should always avoid second guessing with the benefit of
hindsight. Strickland encourages reviewing courts to
allow lawyers broad discretion to represent their clients by
pursuing their own strategy. We are not interested in grading
lawyers' performances; we are interested in whether the
adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th
Cir. 1992) (citation omitted). Under those rules and
presumptions, “the cases in which habeas petitioners
can properly prevail on the ground of ineffective assistance
of counsel are few and far between.” Rogers v.
Zant, 13 F.3d 384, 386 (11th Cir. 1994).
Exhaustion of State Remedies and Procedural Default
a district court can grant habeas relief to a state prisoner
under § 2254, the petitioner must exhaust all state
court remedies that are available for challenging his
conviction, either on direct appeal or in a state
post-conviction motion. See § 2254(b)(1)(A);
O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999)
(“[T]he state prisoner must give the state courts an
opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition.”). A
state prisoner “‘must give the state courts one
full opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process,' including review by the
state's court of last resort, even if review in that
court is discretionary.” Pruitt v. Jones, 348
F.3d 1355, 1358-59 (11th Cir. 2003) (quoting
O'Sullivan, 526 U.S. at 845.)
exhaust a claim, a petitioner must make the state court aware
of both the legal and factual bases for his claim. See
Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.
1998) (“Exhaustion of state remedies requires that the
state prisoner ‘fairly presen[t] federal claims to the
state courts in order to give the State the opportunity to
pass on and correct alleged violations of its' prisoners
federal rights.'”) (quoting Duncan v.
Henry, 513 U.S. 364, 365 (1995)). A federal habeas
petitioner “shall not be deemed to have exhausted the
remedies available in the courts of the State. . .if he has
the right under the law of the State to raise, by any
available procedure, the question presented.”
Pruitt, 348 F.3d at 1358. The prohibition against
raising an unexhausted claim in federal court extends to both
the broad legal theory of relief and the specific factual
contention that supports relief. Kelley v. Sec'y,
Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir.
requirement of exhausting state remedies as a prerequisite to
federal review is satisfied if the petitioner “fairly
presents” his claim in each appropriate state court and
alerts that court to the federal nature of the claim. 28
U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S.
270, 275-76 (1971). A petitioner may raise a federal claim in
state court “by citing in conjunction with the claim
the federal source of law on which he relies or a case
deciding such claim on federal grounds, or simply by labeling
the claim ‘federal.'” Baldwin v.
Reese, 541 U.S. 27, 32 (2004).
doctrine of procedural default provides that “[i]f the
petitioner has failed to exhaust state remedies that are no
longer available, that failure is a procedural default which
will bar federal habeas relief, unless either the cause and
prejudice or the fundamental miscarriage of justice exception
is established.” Smith v. Jones, 256 F.3d
1135, 1138 (11th Cir. 2001). To establish cause for a
procedural default, a petitioner “must demonstrate that
some objective factor external to the defense impeded the
effort to raise the claim properly in state court.”
Wright v. Hopper, 169 F.3d 695, 703 (11th Cir.
1999). See also Murray v. Carrier, 477 U.S. 478
(1986). To show prejudice, a petitioner must demonstrate not
only that the errors at his trial created the possibility of
prejudice but that they worked to his actual and substantial
disadvantage and infected the entire trial with error of
constitutional dimensions. United States v. Frady,
456 U.S. 152 (1982). The petitioner must show at least a
reasonable probability of a different outcome. Crawford
v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).
a petitioner may obtain federal habeas review of a
procedurally defaulted claim if review is necessary to
correct a fundamental miscarriage of justice. Edwards v.
Carpenter, 529 U.S. 446, 451 (2000); Carrier,
477 U.S. at 495-96. A fundamental miscarriage of justice
occurs in an extraordinary case where a constitutional
violation has probably resulted in the conviction of someone
who is actually innocent. Schlup v. Delo, 513 U.S.
298, 327 (1995). “‘[A]ctual innocence' means
factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998).
To meet this standard, a petitioner must show a reasonable
likelihood of acquittal absent the constitutional error.
Schlup, 513 U.S. at 327.
contends that Attorney Tucker was ineffective in waiving
Petitioner's right to speedy trial against his expressed
wishes. He alleges that he did not agree with
Attorney Tucker when on January 14, 2009, she moved for a
continuance of his trial scheduled for January 20, 2009. He
argues that he was prejudiced by the continuance because it
allowed the State to collect DNA evidence from him, which was
used against him at trial. He states that in light of the DNA
evidence and “late witnesses, ” he was
“forced” into pursing a “risky”
theory of self-defense and testifying at trial. He contends
that had Attorney Tucker not waived speedy trial, there is a
reasonable probability that the outcome of his trial would
have been different.
claim was raised in Ground One of Petitioner's Amended
Second Motion for Postconviction Relief (Doc. 22-4, docket
pp. 102-04). After an evidentiary hearing (see id.,
docket pp. 145-225), the state post-conviction court denied
the claim as follows:
Defendant alleges ineffective assistance of counsel due to
trial counsel's failure to protect Defendant's right
to speedy trial. Defendant alleges he was arrested on July
26, 2008, and Fla. R. Crim. P. 3.191(a) provides every person
charged with a felony shall be brought to trial within 175
days of arrest. Defendant explains his speedy trial period
expired on January 17, 2009, and with the recapture period
until February 1, 2009. Defendant alleges his trial was
scheduled for January 20, 2009, but at a pretrial conference
on January 14, 2009, his counsel moved for a continuance and
in her motion stated she had consulted with Defendant who has
no objection and understands speedy trial is waived on
granting the motion. Defendant alleges he did not agree to
waive speedy trial and orally moved for speedy trial which
counsel did not adopt. Defendant alleges the continuance
harmed his defense because it allowed the State more time to
prepare and allowed the State time to move to compel blood
and saliva samples from the Defendant for comparison to
evidence from the crime scene. Defendant explains an analysis
of the evidence from the crime scene resulted in a DNA match
of the Defendant to a tank top found at the scene and to the
victim's socks. Defendant alleges that needlessly
continuing the trial bolstered the State's case through
DNA evidence and forced Defendant into a risky self-defense
argument, required Defendant to admit to the offense and
testify at trial.
In his Amended Second Motion, Defendant alleges the waiver of
speedy trial was not consensual and not a reasonable trial
strategy. Defendant alleges absent counsel's performance
there is a reasonable probability the outcome of the trial
would have been different.
At the January 9, 2015 evidentiary hearing, Amber Tucker,
Defendant's former counsel testified. Counsel testified
she began her representation of Defendant in November of
2008. (Evid. Hrg. Transc. p. 13). Counsel testified she met
with Defendant on January 12, 2009, and explained how speedy
trial worked. (Evid. Hrg. Transc. p. 14). Counsel explained
she requested a continuance because her level of preparation
on January 14, 2009 was only in the beginning stages. (Evid.
Hrg. Transc. p. 15). Counsel admitted ...