United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS, UNITED STATES DISTRICT JUDGE.
who is represented by counsel, challenges his state court
(Duval County) conviction through an Amended Petition for
Writ of Habeas Corpus (Petition) (Doc. 21) pursuant to 28
U.S.C. § 2254. He filed an Amended Memorandum of Law in
Support of Petition Filed Under 28 U.S.C. § 2254
(Memorandum) (Doc. 22) as well. He is serving three
consecutive life sentences for three counts of sexual
battery. Petition at 1. Respondents filed a Response to
Petition for Writ of Habeas Corpus (Response) (Doc.
Petitioner, through counsel, filed a Reply to the
Respondents' Response to Mr. Adkison's Petition for
Writ of Habeas Corpus (Doc. 24). The Petition is timely
filed. See Response at 13.
pertinent facts are fully developed in this record or the
record otherwise precludes habeas relief; therefore, the
Court is able to "adequately assess [Petitioner's]
claim[s] without further factual development,"
Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.
2003), cert. denied, 541 U.S. 1034 (2004). As the record
refutes the asserted factual allegations or otherwise
precludes habeas relief, the Court finds Petitioner is not
entitled to an evidentiary hearing. Schriro v.
Landrigan, 550 U.S. 465, 474 (2007). Petitioner has not
met his burden of demonstrating a need for an evidentiary
hearing. See Chavez v. Sec'y, Fla. Dep't of
Corr., 647 F.3d 1057, 1060 (11th Cir. 2011) (opining a
petitioner bears the burden of establishing the need for an
evidentiary hearing with more than speculative and inconcrete
claims of need), cert. denied, 565 U.S. 1120 (2012).
CLAIMS OF PETITION
raises four grounds in the Petition: (1) the Petitioner's
constitutional rights were violated when the state trial
court denied the Petitioner's motion to suppress; (2) the
Petitioner's constitutional rights were violated when the
trial court premised the Petitioner's sentence on his
tardy remorse; (3) the Petitioner's constitutional right
to effective counsel was violated when counsel failed to call
a witness that would have supported the Petitioner's
theory of innocence; and (4) the Petitioner's
constitutional right to effective counsel was violated when
counsel misadvised the Petitioner about testifying during his
[first] sentencing hearing. Petition at 4, 6-7, 9. These
claims are exhausted. Response at 13.
STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act (AEDPA) governs
a state prisoner's federal petition for habeas corpus.
See 28 U.S.C. § 2254. This statute "imposes
important limitations on the power of federal courts to
overturn the judgments of state courts in criminal
cases." Shoop v. Hill, 139 S.Ct. 504, 506
(2019) (per curiam). The AEDPA statute: "respects the
authority and ability of state courts and their dedication to
the protection of constitutional rights." Id.
Therefore, "[u]nder AEDPA, error is not enough; even
clear error is not enough." Meders v. Warden, Ga.
Diagnostic Prison, 911 F.3d 1335, 1349 (11th Cir. 2019)
(citing Virginia v. LeBlanc, 137 S.Ct. 1726, 1728
(2017) (per curiam)), petition for cert. filed, (U.S. Aug. 2,
2019) (No. 19-5438).
the statute as amended by AEDPA, federal courts may not grant
habeas relief unless one of the claims: "(1)'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) '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)." Nance v. Warden, Ga.
Diagnostic Prison, 922 F.3d 1298, 1300-1301 (11th Cir.
in order to obtain habeas relief, the state court decision
must unquestionably conflict with Supreme Court precedent.
Harrington v. Richter, 562 U.S. 86, 102 (2011). If
some fair-minded jurists could agree with the lower
court's decision, habeas relief must be denied.
Meders, 911 F.3d at 1351. As noted in Richter,
unless the petitioner shows the state court's ruling was
so lacking in justification that there was error well
understood and comprehended in existing law beyond any
possibility for fair-minded disagreement, there is no
entitlement to habeas relief. Burt v. Titlow, 571
U.S. 12, 19-20 (2013).
undertaking its review, this Court is not obliged "to
flyspeck the state court order or grade it."
Meders, 911 F.3d at 1349. Indeed, specificity and
thoroughness of the state court decision is not required;
even if the state court fails to provide rationale or
reasoning, AEDPA deference is due "absent a conspicuous
misapplication of Supreme Court precedent." Id.
at 1350 (citation and quotation marks omitted).
importance, a state court's finding of fact, whether a
state trial court or appellate court, is entitled to a
presumption of correctness under 28 U.S.C. § 2254(e)(1).
But, this presumption of correctness applies only to findings
of fact, not mixed determinations of law and fact.
Brannan v. GDCP Warden, 541 Fed.Appx. 901, 903-904
(11th Cir. 2013) (per curiam) (recognizing the distinction
between a pure question of fact from a mixed question of law
and fact), cert. denied, 573 U.S. 906 (2014).
there has been one reasoned state court judgment rejecting a
federal claim followed by an unexplained order upholding that
judgement, federal habeas courts employ a "look
through" presumption: "the federal court should
'look through' the unexplained decision to the last
related state-court decision that does provide a relevant
rationale. It should then presume that the unexplained
decision adopted the same reasoning." Wilson v.
Sellers, 138 S.Ct. 1188, 1192 (2018) (Wilson).
claim is adjudicated in state court and a prisoner seeks
relief in the federal court system, AEDPA's formidable
barrier to habeas relief comes into play, and it is very
difficult for a petitioner to prevail under this stringent
standard. As such, state-court judgments will not easily be
set aside once the Court employs this highly deferential
standard that is intentionally difficult to meet. See
Richter, 562 U.S. at 102. Although AEDPA does not impose a
complete bar to issuing a writ, it severely limits those
occasions to those "where there is no possibility
fairminded jurists could disagree that the state court's
decision conflicts" with Supreme Court precedent.
Id. In sum, application of the standard set forth in
28 U.S.C. § 2254(d) ensures that habeas corpus is a
guard against extreme malfunctions in the state criminal
justice systems, and not a mechanism for ordinary error
correction. Richter, 562 U.S. at 102-103 (citation and
quotation marks omitted).
INEFFECTIVE ASSISTANCE OF COUNSEL
raises claims of ineffective assistance of counsel. To
prevail on his Sixth Amendment claims, Petitioner must
satisfy the two-pronged test set forth in Strickland v.
Washington, 466 U.S. 668, 688 (1984), requiring that he
show both deficient performance (counsel's representation
fell below an objective standard of reasonableness) and
prejudice (there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different). See Brewster v.
Hetzel, 913 F.3d 1042, 1051-52 (11th Cir. 2019)
(reviewing court may begin with either component).
order to obtain habeas relief, a counsel's errors must be
so great that they adversely affect the defense. In order to
satisfy this prejudice prong, the reasonable probability of a
different result must be "a probability sufficient to
undermine confidence in the outcome."
Strickland, 466 U.S. at 694.
standard created by Strickland is a highly deferential
standard, requiring a most deferential review of
counsel's decisions. Richter, 562 U.S. at 105.
Not only is there the "Strickland mandated one layer of
deference to the decisions of trial counsel[, ]" there
is the added layer of deference required by AEDPA: the one to
a state court's decision. Nance, 922 F.3d at
Given the double deference due, it is a "rare case in
which an ineffective assistance of counsel claim that was
denied on the merits in state court is found to merit relief
in a federal habeas proceeding." Johnson v.
Sec'y, DOC, 643 F.3d 907, 911 (11th Cir. 2011). And,
for the reasons we have already discussed, it is rarer still
for merit to be found in a claim that challenges a strategic
decision of counsel.
Nance, 922 F.3d at 1303.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
first ground of the Petition, Petitioner claims his
constitutional rights were violated when the state trial
court denied Petitioner's motion to suppress. Petition at
4. He contends officers coerced him during custodial
interrogation, and his inculpatory statement that he showed a
knife to one victim and admitted having sex with the women
was the result of coercion despite his request for an
attorney early in the interrogation. Id. Basically,
Petitioner argues his statements should have been suppressed
because they were involuntary and in violation of his rights
under Miranda to terminate questioning.
record demonstrates, prior to trial, Petitioner moved to
suppress his statements. Ex. 3 at 65-71. The trial court on
August 10, 2011, conducted a hearing on the motion. Ex. 6 at
564-652. Petitioner and two officers testified. Id.
The trial court considered their testimony as well as the DVD
recording of the interview and the two rights forms. Ex. 4 at
a detailed, written decision, the trial court denied the
motion to suppress. Id. at 314-17. The court found
the statements elicited from Petitioner during the police
interrogation were not illegally obtained. Id. at
315. With citation to the relevant Supreme Court case law,
Edwards v. Arizona, 451 U.S. 477 (1981), the trial
court made several pertinent findings. Ex. 4 at 315-16. The
court found Petitioner invoked his right to counsel.
Id. at 316. The court found the officers respected
this invocation, as evidenced by their efforts to gather
their belongings and the statement of Detective Devevo that
they would be outside. Id. The court found the
detectives conducted no further questioning of Petitioner,
nor did they make any statements that they should have known
were reasonably likely to elicit an incriminating response
from Petitioner. Id.
to Petitioner's contentions, the court also found that
after Petitioner invoked his right to counsel, Petitioner
reinitiated the dialogue with the detectives. Id.
Petitioner asked a question of the detectives. Id.
Detective Devevo told Petitioner they were done as Petitioner
had invoked his right to counsel. Id. Detective
Devevo asked Petitioner if he desired to waive the right he
had invoked, and Petitioner assured the detective he
understood his rights and wanted to waive his rights.
Id. At this point, the detective went over a second
rights form with Petitioner, and Petitioner waived his right
to counsel and proceeded to talk to the detectives.
Id. at 316-17. Ultimately, the trial court held,
“that, after reinitiating conversation with the
detectives, the Defendant knowingly and intelligently waived
his earlier request for counsel.” Id. at 317.
direct appeal, Petitioner raised the following issue:
"[w]hether the trial court erred in admitting
Appellant's interrogation video into evidence over
objection that his re-waiver of Miranda rights was coerced
and not voluntary.” Ex. 13 at ii. He asserted the trial
court erred in denying the motion to suppress. Id.
at 23. With respect to the findings of the trial court,
Petitioner argued the trial court erred in determining
Petitioner's re-waiver of his Miranda rights was a
product of his voluntary re-initiation of his interrogation.
Id. at 26. Petitioner urges this Court to conclude
that the second waiver was a product of police coercion,
involuntary, and certainly subject to suppression.
Id. at 27. Petitioner relies on several factors,
including his limited opportunity to ...