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Jordan v. Secretary, Department of Corrections

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

August 26, 2019



          Charlene Edwards Honeywell United States District Judge.

         Petitioner, a Florida prisoner, initiated this action by filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (“petition”) (Doc. 1). Respondent filed a response in opposition to the petition (Doc. 15), to which Petitioner replied (Doc. 73). Upon consideration, the petition will be denied.

         I. BACKGROUND

         Petitioner was convicted of attempted first-degree murder and aggravated battery involving great bodily harm (Respondent's Ex. 1, record pp. 14-15). He was sentenced to life in prison on the attempted murder conviction and 30 years on the aggravated battery conviction (Id., record pp. 19-24). The convictions and sentences were affirmed on appeal (Respondent's Ex. 4).

         Petitioner filed a motion for post-conviction relief under Rule 3.850, Fla. R. Crim. P., alleging ineffective assistance of trial counsel, which he subsequently amended (Respondent's Ex. 6). Claim four of the motion was denied, and an evidentiary hearing was scheduled on the remaining grounds (Respondent's Ex. 7). The remaining grounds were denied after the evidentiary hearing (Respondent's Ex. 8). The denial of the motion was affirmed on appeal (Respondent's Ex. 14).

         Petitioner filed a motion under Rule 3.800(a), Fla.R.Crim.P., in which he argued that his sentence was illegal (Respondent's Ex. 17). The motion was denied (Respondent's Ex. 18), and the denial was affirmed on appeal (Respondent's Ex. 19).

         Petitioner filed his federal habeas petition in which he raises eight grounds for relief (Doc. 1).


         Because 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 doubt).

         A. Standard of Review Under the AEDPA

         Pursuant 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; 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. 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.

         If the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was “objectively unreasonable.” Id.

         Finally, 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. § 2254(e)(1).

         B. Standard for Ineffective Assistance of Counsel

         The 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.[1] 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).

         As 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).

         C. Exhaustion of State Remedies and Procedural Default

         Before 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.)

         To 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. 2004).

         The 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).

         The 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).

         Alternatively, 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.

         III. ANALYSIS


         Petitioner contends that he was denied due process when the prosecutor knowingly presented false testimony. Specifically, he alleges that the prosecutor knew Officer McCoy's testimony that Maria Miller had identified Petitioner from a “photopak lineup” as the person who shot the victim was false. He appears to further allege that Officer McCoy falsely testified that Miller identified Petitioner as the shooter when she was brought to see him “in person.” This claim fails because Officer McCoy did not testify that Miller identified Petitioner as the shooter (Respondent's Ex. 8, Vol. III, transcript pages 261-69). Although Officer McCoy testified that Octavia Williams identified Petitioner from the photopak (id., transcript pp. 263-64, 266), she testified that Miller did not identify Petitioner from the photopak because she could not be “100 percent” certain it was Petitioner, since Petitioner is smaller than he appeared in his photograph in the photopak (Id., transcript pp. 266-68). And although Officer McCoy testified that she had an officer bring Petitioner to Miller to show him to her in person, she did not state that Miller identified Petitioner as the shooter at that time (Id., transcript p. 269).

         “In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Supreme Court held that when the prosecution solicits or fails to correct known false evidence, due process requires a new trial where ‘the false testimony could in any reasonable likelihood have affected the judgment of the jury.'” Trepal v. Sec'y, Fla. Dep't of Corr., 684 F.3d 1088, 1107 (11th Cir. 2012) (quoting Giglio, 405 U.S. at 154). Because Petitioner has failed to demonstrate that Officer McCoy gave false testimony, his Giglio claim fails. See, e.g., Jones v. Hetzel, 2017 WL 4618157, at *2 (S.D. Ala. Oct. 16, 2017), certificate of appealability denied, 2018 WL 2246586 (11th Cir. Mar. 14, 2018) (“Because a Giglio violation requires proof that the prosecution presented false testimony, and because the Rule 32 judge properly found Booker did not offer false testimony, the petitioner's only claim fails as a matter of law.”). Accordingly, Ground One warrants no relief.


         Petitioner contends that defense counsel was ineffective in failing to notify the trial court that the prosecutor failed to disclose “Markese White's sworn written affidavit statement” during discovery after counsel had requested it. He further alleges that counsel “misled” him when he stated that Officer Spatola's police report was White's sworn written statement. Petitioner further contends that he was denied due process during the state post-conviction evidentiary hearing when the post-conviction court used a police report rather than White's written statement to deny this claim.

         Petitioner's ineffective assistance of counsel claim was raised in Ground Seven of his Rule 3.850 motion (Respondent's Ex. 6, record pp. 200-02). In denying the claim, the state post-conviction court stated:

In claim seven, Defendant alleges ineffective assistance of counsel for failing to inform Defendant of a discovery violation. Specifically, Defendant alleges that the State and counsel led him to believe that Markese White's initial statement to police officers was the same as the sworn written statement Mr. White made later in the day. Defendant alleges that the State failed to provide him a copy of the written statement and that counsel failed to obtain a copy of the written statement. At the evidentiary hearing, Defendant identified the statement as the one made to Officer Spatola on September 3, 2009. (See Transcript, Aug. 13, 2013, p. 56).
Mr. James testified at the evidentiary hearing that the sworn statement was part of the police report and that the police report was provided to Defendant. (See Transcript, Aug. 13. 2013, p. 97, 99). Mr. James testified the letter written to Defendant indicating that he did not provide the sworn statement was done in error. (See Transcript, Aug. 13, 2013, p. 98; Exhibit 12, attached).
The Court finds that the record supports Mr. James' testimony. The statement made by Markese White to Officer Spatola was entered into evidence as Exhibit 10. (See Exhibit, 10, attached). The statement is page 40 of a Tampa police department report. Paragraph 8 of the State's Notice of Discovery indicates the report was provided as part of discovery. (See Notice of Discovery, attached). Thus, there was no discovery violation and counsel's performance was not deficient for failing to inform Defendant of such a violation. Accordingly, Defendant is not entitled to relief on claim seven.

(Respondent's Ex. 8, Vol. I, pp. 9-10) (emphasis in original).

         Petitioner appears to complain that counsel was deficient in failing to alert the trial court that the State never provided the defense with the hand written statement White gave to law enforcement on September 3, 2009 (see Doc. 1-2, docket p. 39). The statement, according to Petitioner, is not the same statement that White gave to Officer Spatola earlier that night which was documented in Officer Spatola's police report (see Respondent's Ex. 8, record p. 551).

         Petitioner has failed to demonstrate that counsel was deficient in failing to notify the trial court that the State failed to provide White's written statement because he has not shown that counsel was aware of the written statement at the time of Petitioner's trial in February 2010. It is apparent from defense counsel's testimony during the evidentiary hearing on Petitioner's Rule 3.850 motion that counsel believed White's statement was part of the police report, and the police report had been provided to Petitioner (Id., record pp. 453-56). Counsel's February 14, 2011 letter to Petitioner indicates that White's written statement “was never provided by the State during the discovery process.” (Id., record p. 548). P e titioner himself testified that he did not receive White's written statement until two years later when he wrote the State Attorney's Office and received the statement in response (Id., record p. 415). Defense counsel was not ineffective in failing to notify the trial court regarding a discovery violation of which he was not aware.

         Even if Petitioner could somehow show that counsel was deficient, he has failed to allege, let alone demonstrate, prejudice. White's written statement provides:

We [were] in the alley of the apartments of Jackson Heights playing dice [when] the older man that go by the name of baldy came up in at first he look around for like a minute then he pulled out a gun and shot at Leslie and he chase Leslie and shot several more times and I ran away. I ran into the apartments, ran to the outside and I found Leslie in an alley behind a gate.

(Doc. 1-2, docket p. 39). The statement was not favorable to Petitioner, since it identified Petitioner, who was known as “Baldy, ” as the person who shot the victim. And it was consistent with the recorded statement White gave to Officer Torres in which White indicated, in pertinent part, that he was playing dice with others behind the apartments when Petitioner approached the group, pulled a gun out and pointed it at them, and fired shots at and chased after the victim (Respondent's Ex. 6, record p. 139).

         Suppression of evidence by the prosecution denies a defendant due process only if the evidence is favorable to the defense and material, i.e., there is a reasonable probability that if the evidence was disclosed, the result of the trial would have been different. See Stephens v. Hall, 407 F.3d 1195, 1203 (11th Cir.2005) (discussing Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Bagley, 473 U.S. 667, 678 (1985), other citations omitted). White's written statement was neither favorable to the defense nor material. Accordingly, Petitioner cannot demonstrate that he was prejudiced by counsel's failure to notify the trial court that the State failed to disclose White's written statement.

         The state courts' denial of this claim was not contrary to Strickland, and was not based on an unreasonable determination of the facts. Accordingly, Petitioner is not entitled to federal habeas relief on Ground Two.

         Finally, to the extent Petitioner contends that he was denied due process during the evidentiary hearing on his Rule 3.850 post-conviction motion, the claim is not cognizable under § 2254 because a defect in a collateral proceeding, rather than the conviction or sentence, is unrelated to the cause of detention and does not state a claim for habeas corpus relief. See Quince v. Crosby, 360 F.3d 1259, 1261-62 (11th Cir.2004) (“while habeas relief is available to address defects in a criminal defendant's conviction and sentence, an alleged defect in a collateral proceeding does not state a basis for habeas relief.”); Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir.1987) (petitioner's § 2254 claim that the state trial court violated his due process rights because it failed to conduct an evidentiary hearing and did not attach to its opinion denying relief those portions of the record on which it relied went to issues unrelated to the cause of petitioner's detention and did not state a basis for habeas relief). Accordingly, this claim warrants no relief.


         Petitioner contends that his federal due process and equal protection rights were violated because there was insufficient evidence identifying him as the perpetrator of the crimes for which he was convicted. Respondent argues that this claim is unexhausted because Petitioner did not raise it as a federal claim on direct appeal. Respondent is correct that Petitioner ...

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