United States District Court, N.D. Florida, Tallahassee Division
DARRIUS L. WORTHEY, Petitioner,
STATE OF FLORIDA, Respondent.
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
about November 2, 2018, Darrius L. Worthey filed a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
ECF No. 1. He subsequently filed an amended § 2254
petition. ECF No. 9; see ECF No. 19. On May 9, 2019,
Respondent filed an answer, with exhibits. ECF No. 13.
Petitioner has filed a reply. ECF No. 20.
matter was referred to the undersigned United States
Magistrate Judge for report and recommendation pursuant to 28
U.S.C. § 636 and Northern District of Florida Local Rule
72.2(B). After careful consideration, the undersigned has
determined no evidentiary hearing is required for the
disposition of this matter. See Rule 8(a), R. Gov.
§ 2254 Cases. The pleadings before the Court show the
petition should be denied.
a trial in case number 2011-CF-1464A, in the Second Judicial
Circuit, Leon County, a jury convicted Petitioner Darrius L.
Worthey of three counts, in connection with events that
occurred May 7, 2011, at the Walker-Ford Community Center:
(1) first degree murder (victim Maricus Deshazier), a capital
felony in violation of section 782.04(1), Florida Statutes;
(2) attempted second degree murder (victim Christopher
Deshazier), a first degree felony in violation of section
782.04(3), Florida Statutes; and (3) attempted armed robbery
with a firearm, a second degree felony in violation of
section 812.132, Florida Statutes. Ex. C. Worthey testified
at the trial. Ex. B at 348-69. David Collins, assisted by his
son Charles Collins, represented Worthey. See Ex. B.
On December 20, 2012, the trial court adjudicated Worthey
guilty and sentenced him to life in prison on Count 1, thirty
(30) years in prison on Count 2 with a minimum mandatory term
of twenty (20) years, and twenty-five (25) years in prison on
Count 3, to run concurrently. Ex. C.
appealed his judgment and sentence to the First District
Court of Appeal (First DCA), assigned case number 1D13-0361.
Ex. D. On December 5, 2013, the First DCA per curiam affirmed
the case without a written opinion. Ex. D; Worthey v.
State, 127 So.3d 508 (Fla. 1st DCA 2013) (table).
March 25, 2015, Worthey filed a pro se motion for
post-conviction relief pursuant to Florida Rule of Criminal
Procedure 3.850. Ex. E at 4-42. He subsequently filed an
amended Rule 3.850 motion, raising twelve (12) claims of
ineffective assistance of counsel (IAC). Id. at
59-84. The State filed a response. Id. at 86-87. By
order on June 8, 2016, the state post-conviction trial court
set all claims for an evidentiary hearing. Id. at
88-94. By order on July 12, 2016, the court granted
Worthey's motion for appointment of counsel. Id.
evidentiary hearing on the Rule 3.850 motion took place
February 3, 2017. Ex. E at 110-205 (transcript). At the
conclusion of the hearing, the court made findings on the
record and denied relief. Id. at 197-203. In an
order entered February 10, 2017, the court denied the Rule
3.850 motion “for the reasons stated on the
record.” Id. at 103.
through counsel, appealed the denial of post-conviction
relief to the First DCA and filed a brief in assigned case
number 1D17-653. Ex. F. The State filed an answer brief, Ex.
G, and Worthey filed a reply, Ex. H. On March 6, 2018, the
First DCA affirmed the case without a written opinion. Ex. I;
Worthey v. State, 242 So.3d 342 (Fla. 1st DCA 2018).
The mandate issued March 27, 2018. Ex. I. Worthey sought
discretionary review in the Florida Supreme Court, assigned
case number SC18-672. Ex. J. On May 4, 2018, that court
dismissed the case for lack of jurisdiction. Id.
indicated above, Worthey filed his § 2254 petition on or
about November 2, 2018, ECF No. 1, and he subsequently filed
an amended § 2254 petition, ECF No. 9. In the amended
§ 2254 petition, Worthey raises ten grounds, all
claiming ineffective assistance of counsel (IAC):
(1) IAC - Failed to Conduct Adequate Pretrial
Investigation and Conceded Worthey's Guilt at
Trial: Worthey asserts he provided counsel
“with viable information concerning his innocence and
if that information was used or adequately investigated it
would have concurred with Petitioner's theory of
innocence, that he was never on the scene of the
alleged offenses and was only testifying that he was
on the scene because counsel ‘coerced' him into not
only testifying which Petitioner never originally had
any intentions of doing but also writing exactly
what he was told to say in a letter so he'd remember
exactly what to say.” ECF No. 9 at 10. Worthey
indicates he was actually at the Pick-n-Pull “with two
law-abiding citizens: K'yatta S. Livingston and
Jacqueline Ash at the very exact time the crime was said to
be committed.” Id.
(2) IAC - Failed to Impeach Detective's
Testimony: Worthey asserts trial counsel did not
properly impeach Detective James Besse's trial testimony
on issue of misidentification. Id. at 12.
(3) IAC - Failed to Excuse Sleeping Juror:
Worthey asserts trial counsel performed ineffectively by not
excusing a sleeping juror after he told both his attorneys
that “the African American juror with the dreads,
sitting in the first row was ‘nodding' on and off,
in and out of sleep.” Id. at 14.
(4) IAC - Failed to Present Available Evidence
Supporting Worthey's Theory of Innocence:
Worthey asserts he sent trial counsel a letter informing them
of two alibi witnesses, Livingston and Ash, who would testify
that he was at the Pick-and-Pull at the time the crime
occurred at the community center. Id. at 16.
(5) IAC - Coerced Worthey to Change Story for
Trial: Worthey asserts his counsel performed
ineffectively by coercing him to change his story and testify
at the trial that he was present at the crime scene.
Id. at 19.
(6) IAC - Failed to Move for Judgment of
Acquittal: Worthey asserts his trial counsel
performed ineffectively by not moving for a judgment of
acquittal (JOA) at the close of the evidence. Id. at
20. Worthey indicates that when the trial judge inquired
about whether counsel would move for a JOA, counsel whispered
to Worthey that “if the judge was asking him this at
the current stage to which the trial phase was in at that
time then it was a good chance that trial could be won and
that he'd rather win the trial than take the
‘easy' way out by entering a JOA.”
(7) IAC - Failed to Move to Suppress Out-of-Court
Identification: Worthey asserts trial counsel
performed ineffectively by not filing a motion to suppress
the out-of-court identification by the victim, Christopher
Deshaizer, who first identified Vishuntavious Sutton, a
co-defendant, as the shooter and later “changed his
story and claimed that Petitioner was actually the
shooter.” Id. at 21-22. Worthey asserts the
photo line-up from which Deshaizer identified him “was
highly suggestive and did not portray how Petitioner looked
at the time of the offense.” Id. at 22.
Worthey asserts Detective Besse “took extreme measures
to make sure [the] victim identified Petitioner in the photo
line by using a dated picture of Petitioner from a year
before's arrest to make Petitioner fit the physical
description that victim had voiced.” Id.
(8) IAC - Failed to Impeach Victim: Worthey
asserts his trial counsel performed ineffectively by not
impeaching the victim with his previous inconsistent
statements regarding the shooter's identity. Id.
(9) IAC - Failed to Call or Use Expert to Challenge
Testimony of State's Firearm Expert: Worthey
asserts his trial counsel should have retained a firearms
expert to challenge testimony regarding the type and accuracy
of the firearms described at trial. Id. at 25.
(10) IAC - Failed to Object to Verdict on Basis of
Insufficient Evidence: Worthey asserts counsel
performed ineffectively by not challenging the verdict as
contrary to the weight of the evidence and moving for a new
trial. Id. at 26.
has filed an answer and exhibits. ECF No. 13. Worthey has
filed a reply. ECF No. 20.
to 28 U.S.C. § 2254, as amended by the Anti-Terrorism
and Effective Death Penalty Act of 1996 (AEDPA), federal
courts may grant habeas corpus relief for persons in state
custody. Section 2254(d) provides, in pertinent part:
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). See, e.g., Cullen v.
Pinholster, 563 U.S. 170, 180-83 (2011); Gill v.
Mecusker, 633 F.3d 1272, 1287-88 (11th Cir. 2011).
“This is a ‘difficult to meet' and
‘highly deferential standard for evaluating state-court
rulings, which demands that state-court decisions be given
the benefit of the doubt.'” Cullen, 563
U.S. at 181 (quoting Harrington v. Richter, 562 U.S.
86, 102 (2011), and Woodford v. Visciotti, 537 U.S.
19, 24 (2002)). This Court's review “is limited to
the record that was before the state court that adjudicated
the claim on the merits.” Id.
claims of ineffective assistance of counsel (IAC), the United
States Supreme Court has adopted a two-part test:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
To demonstrate ineffectiveness, a “defendant must show
that counsel's performance fell below an objective
standard of reasonableness.” Id. at 688. To
demonstrate prejudice, a defendant “must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. For
this Court's purposes, importantly, “[t]he question
‘is not whether a federal court believes the state
court's determination' under the Strickland
standard ‘was incorrect but whether that determination
was unreasonable - a substantially higher
threshold.'” Knowles v. Mirzayance, 556
U.S. 111, 123 (2009) (quoting Schriro v. Landrigan,
550 U.S. 465, 473 (2007)). “And, because the
Strickland standard is a general standard, a state
court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.”
Id. It is a “doubly deferential judicial
review that applies to a Strickland claim evaluated
under the § 2254(d)(1) standard.” Id.
1: IAC - Pretrial Investigation and Concession of
4: IAC - Evidence Supporting Theory of
two grounds are analyzed together as they involve similar
claims. In his first ground, Petitioner Worthey argues his
trial counsel did not do an adequate pretrial investigation
although he had provided counsel with the names of two
individuals, K'yatta Livingston and Jacqueline Ash, who
would have testified that he was elsewhere, specifically at
the Pick-n-Pull, at the time the crime occurred at the
Walker-Ford Community Center. ECF No. 9 at 10. He further
argues that counsel performed ineffectively by conceding
guilt at trial, although he does not elaborate on this in his
petition. See id. Respondent indicates Worthey
exhausted this ground in state court by raising it as the
first claim in his Rule 3.850 motion. ECF No. 13 at 28;
see Ex. E at 47-50.
conclusion of the evidentiary hearing, the post-conviction
trial court judge made the following findings on the record
in denying this claim:
Count 1 is an allegation of inadequate pretrial investigation
and conceding guilt at trial.
I don't think the defense conceded guilt at all at trial,
having read the entire transcript. The defense was that the
co-defendant, Mr. Vishuntavious Sutton was the one that shot
the victims and that the Defendant was not involved.
Mr. Collins [defense counsel] argued ably and was able to get
some hearsay statement in that the State was strenuously
objecting to at Pages 311 through 317. And those had to do
with whether Chris Deshazier, the victim that lived, whether
he made some statements right after the incident about
whether it was Mr. Sutton that was the shooter. And he got
those statements in through an officer that Mr. David Collins
[defense counsel] called in his case in chief, one of four
officers that he called in his case in chief.
Chuck Collins [defense counsel] testified that he did
investigate the video at the Pick-n-Pull; that there was no
video, and he also - Mr. Collins investigated the two alibi
witnesses and determined that they couldn't offer any
testimony that would support or corroborate the
Defendant's alibi claims and his testimony was credible
Ex. E at 197.
in his fourth ground, Petitioner Worthey argues his trial
counsel provided ineffective assistance by not presenting
available evidence supporting his theory of innocence. ECF
No. 9 at 16. Worthey indicates he sent counsel a letter with
information about two alibi witnesses, Livingston and Ash,
who would testify he as at the Pick-and-Pull at the time the
crime occurred at the community center. Id.
indicates Worthey's claim here is similar to that raised
in Ground 1. ECF No. 13 at 28. Respondent also indicates
Worthey raised the ground as the fourth claim in his Rule
3.850 motion, id., see Ex. E at 47-50, and
appealed the denial of the claim to the First DCA,
see Ex. F at 32-38.
conclusion of the evidentiary hearing, the post-conviction
trial court judge made the following findings on the record
in denying this claim:
Related to Count 4, failure to present evidence of the
Defendant's theory of innocence, and this also mentions
the alibi witnesses. Again, in the - and someone - the person
who actually committed the crime, Vishuntavious Sutton, did
testify at the trial; and Mr. David Collins questioned him
about the shooting on Pages 157 through 160. And it was
admitted in evidence that Sutton was about 5'8”,
which was the height that Mr. Deshazier, I guess, identified
the shooter as, or that was certainly the defense theory,
that he was identified as the shooter and was approximately
5'8”, and evidence of that was admitted on Pages
376 and 348 of the transcript.
And then the Defendant himself testified that he was
6'2”, and Mr. Collins asked a couple of other
witnesses about that, so that the Defendant's height
definitely came into evidence.
Ex. E at 199-200.
state court record supports the determination by the
post-conviction judge that defense counsel did not concede
guilt at trial. See Ex. B. Further, the record
supports the post-conviction judge's findings that
defense counsel did not perform deficiently. In particular,
as the court found, defense counsel presented argument, and
testimony to support the argument, that Worthey's
co-defendant, Vishuntavious Sutton, was the person who shot
the victims and Worthey was not involved, discussed in the
analysis of Grounds 2 and 8, infra. See Ex.
B at 90-94, 225-27, 311-17, 348, 376, 391-98.
court also found, defense counsel Chuck Collins testified
that he tried to found out if the Pick-n-Pull had a
surveillance video, but to his knowledge, “there was
never any video from there.” Ex E at 155. Chuck Collins
further testified that, after investigating the alibi
witnesses referenced by Worthey, concluded those witnesses
could not offer testimony that would support Worthey's
alibi claim. Ex. E at 142-43, 155.
post-conviction judge properly found defense counsel
credible. The state post-conviction trial court sits as the
fact-finder and determines witness credibility in Rule 3.850
proceedings. See, e.g., Consalvo v. Sec'y
for Dep't of Corr., 664 F.3d 842, 845 (11th Cir.
2011) (“Determining the credibility of witnesses is the
province and function of the state courts, not a federal
court engaging in habeas review.”); Smith v.
State, 697 So.2d 991, 992 (Fla. 4th DCA 1997); Fla. R.
Crim. P. 3.850(d). “Federal habeas courts have
‘no license to redetermine credibility of witnesses
whose demeanor was observed by the state court, but not by
them.'” Consalvo, 664 F.3d at 845 (quoting
Marshall v. Lonberger, 459 U.S. 422, 434 (1983)).
on the foregoing, Petitioner Worthey has not shown that the
state court's rejection of these grounds involved an
unreasonable application of clearly established federal law
or that it was based on an unreasonable determination of the
facts. See 28 U.S.C. § 2254(d)(1)-(2).
these grounds should be denied.
2: IAC - Failed to Impeach Detective's
8: IAC - Failed to Impeach Victim
grounds, both alleging defense counsel performed
ineffectively in impeaching witnesses, are analyzed together.
In his second ground, Petitioner Worthey argues his trial
counsel provided ineffective assistance by not properly
impeaching the trial testimony of Detective James Besse on
the issue of misidentification. ECF No. 9 at 12. In
particular, Worthey asserts:
Investigator Detective James Besse of the Tallahassee Police
Department testified at Petitioner's trial and admitted
under oath that he pointed to photograph #5 in a photo line
up consisting of six different individuals and said to the
victim, Christopher Deshaizer, that, “that him right
isn't it. . . that the guy right there right?”
Detective Besse also admitted that the original
identification of the shooter strayed from 5”7 and
5”10 and that Vishuntavious Sutton (said co-defendant
in case) was identified by Christopher Deshaizer, victim, in
a sworn affidavit on the scene of crime not even a good hour
later, by height, weight, skin complexion, hair style,
clothing description and by name. He stated that through
“investigation” Petitioner was developed as the
shooter, when in fact a anonymous tip came in through crime
stopper's tipline implementing that, they overheard
petitioner telling someone he'd just killed someone.
Trial counsel's failure to impeach Detective's
testimony regarding speculative and lack-luster testimony
denied Petitioner's right to have a fair and impartial
indicates Worthey exhausted this ground by raising it as the
second claim in his Rule 3.850 motion and presenting it in
the appeal from the denial of post-conviction relief. ECF No.
13 at 33; see Ex. E at 48-49, Ex. F at 33-40. The
First DCA affirmed the case per curiam without a written
opinion. Ex. I.
state post-conviction trial court denied the claim, on the
record at the conclusion of the evidentiary hearing, making
the following findings:
Related to Ground 2, failure to impeach the detective's
testimony on misidentification, Mr. David Collins crossed
Investigator Besse on Pages 222 to 228 of the transcript. He
thoroughly crossed Investigator Besse on the inconsistencies
in Mr. Chris Deshazier's statement and crossed Mr.
Deshazier on Pages 90 through 92.
He called the four defense witnesses in addition to the
Defendant and argued in closing that the - the victim, in
fact, was identifying the other co-defendant, Mr. Sutton, and
not the Defendant. The pages of that closing are 391 through
398 where Mr. David Collins talks about that. And the - the
different physical descriptions were a big part of that also.
Meaning the different heights that we've talked about
today, and I'll get - I'll talk about that a little
bit more in a moment.
Ex. E at 197-98.
state court record supports the post-conviction judge's
findings. In particular, the trial transcript reflects, as
the court found, Worthey's attorney cross-examined
Sergeant James Besse, who worked as an Investigator in the
Homicide/Violent Crimes Unit of the Tallahassee Police
Department in May 2011. See Ex. B at 208-09. On
direct, Besse testified that he understood Christopher
Deshazier was in the vehicle when the shooting occurred and
“he was grazed on his back with a bullet.”
Id. at 210. Besse was “only on scene for 10 or
15 minutes” when he “was told by [his]
supervisor” to transport Deshazier back to the police
department to conduct an interview. Id. at 209-10.
Deshazier provided Besse with the name of a suspect and Besse
developed another suspect's name as well. Id. at
210-11. Deshazier provided Besse a description of the shooter
before Besse developed Worthey's name. Id. at
217. Besse testified that Deshazier “described [the
shooter's] hairstyle as unkempt, like it could have been
put into twists, but it wasn't. . . . [and] described
that the suspect was dark-complected and that he had tattoos
that were kind of hard to see, but he believed they were
flames, tattoos, on his arms.” Id. at 217.
Besse prepared a photo lineup, which included a photo of
Worthey as well as five other individuals and “[a]ll
the individuals have similar characteristics, same sex, same
race, and similar age groups.” Id. at 212.
Besse presented the lineup to Deshazier and told him
“the suspect may or may not be in the photo
lineup” and that “[p]eople's hairstyle
changes, facial hair changes, people gain and lose weight,
and to concentrate on their facial structure.”
Id. Besse testified he puts the line up down in
front of the witness and has the witness look at it; Besse
removes his hands from the lineup when he shows it to a
witness. Id. at 212-13. Besse testified that
Deshazier picked out Number 5, which depicted Worthey, and
Deshazier “stated that he was the one that was in the
vehicle and had shot the victim in his face and shot Mr.
Deshazier.” Id. at 213. Besse instructed
Deshazier to sign and date the picture. Id.
cross, David Collins questioned Besse about a sworn statement
taken by Officer Derrick Kidd from Deshazier at the crime
scene, before Besse interviewed Deshazier and conducted the
photo lineup. Id. at 222-24. Besse reviewed the
statement while on the stand. Id. at 224-25. Collins
then questioned Besse further:
Q Now, you know what that statement says, don't you?
A Yes, sir.
Q It's an identification, isn't it, by Chris
Deshazier of who the shooter was, isn't it?
A I don't know if I read that. He mentions a name in
Q Go ahead. This is the statement of identification of who
the shooter was. There's a name and there's a
physical description. And if I'm wrong, tell me.
A All it says is “he, ” sir. It doesn't
verify who that is.
Q It says more than that, doesn't it?
A Well, in the identification of when he says who pulls a gun
on him, he says “he.” It doesn't give a name.
Q Right. But if you read it in total context, it tells you
who it was, doesn't it?
A It could be interpreted that way, yes.
Q It could be interpreted that way?
A I mean, if he specifically would have said who shot, then
the name should be there. All it says is “he.” Q
Well, whose name did he put in there? Who did he say just got
out of prison two weeks before?
A He called him V.
Q Right. And that's who he described as the shooter,
A No, sir. He says “he” pulled. It doesn't
Q Who does he say got out of prison two weeks beforehand?