Opinion
3:21cv1430/LAC/ZCB
11-07-2024
FRANK A. MOSLEY, Petitioner, v. RICKY D. DIXON, Respondent.
REPORT AND RECOMMENDATION
ZACHARY C. BOLITHO, UNITED STATES MAGISTRATE JUDGE
This is a federal habeas corpus case filed under 28 U.S.C. § 2254. (Doc. 1). Petitioner, Frank Mosley, is imprisoned in the Florida Department of Corrections where he is serving a twenty-year sentence for lewd and lascivious molestation of a minor and stalking. Respondent has answered the petition (Docs. 12, 21), and Petitioner has replied (Docs. 18, 22). For the reasons below, Petitioner is not entitled to habeas relief.
The Court believes this matter may be resolved without an evidentiary hearing. Rule 8(a), Rules Governing Section 2254 Cases.
I. Factual Background
Petitioner's convictions stem from his inappropriate conduct with a thirteen-year-old girl, M.D.C. The evidence at trial established that Petitioner, who was forty-seven years old at the time, met M.D.C. at the trailer park where she lived with her sisters. (Docs. 12-8 at 30 through 12-9 at 12). Petitioner was at the trailer park to look at a trailer to rent. The landlord told M.D.C. and two other children to give Petitioner a tour of the trailer. In the trailer, Petitioner told M.D.C. that she had a nice butt. Petitioner asked M.D.C.'s age, and M.D.C.'s sister told Petitioner that M.D.C. was thirteen.
Shortly thereafter, Petitioner saw M.D.C. and other children walking down the road. He asked M.D.C. where they were going, and she responded that they were going to the river. At the river, the children began swimming. Petitioner then pulled up in his van. He stripped down to his underwear and jumped in the water with the children. Petitioner then swam up behind M.D.C. and grabbed her buttocks with both hands. When they finished swimming, the children walked home. As they were walking home, Petitioner pulled up beside them in his van and offered M.D.C. money, as well as a phone so that he could communicate with her.
A couple of days later, M.D.C. was at home when her sister walked in and said that Petitioner wanted her (M.D.C.) to come outside. M.D.C. went outside, and Petitioner was sitting in an older model Chevy Impala. Petitioner asked M.D.C. if she wanted to go for a ride. He said they could go to the beach and then to his house. M.D.C. refused. Later that day, M.D.C. walked to the mailbox. When she returned, Petitioner was talking to M.D.C.'s father about a boat that was sitting in the yard.
A few days later, M.D.C. was getting ready for school when she heard a loud car pull up. M.D.C. and her younger sister were the only people home at the time. M.D.C's sister went outside and returned with a letter from Petitioner, which she gave to M.D.C. Here are some excerpts from the letter:
• “I hope you are thinking about me like I think about you.”
• “baby, don't play yourself with them young boys. Baby, take yourself to another level where you belong.”
• “Today I got closer to your step dad so I can start coming by your house and talk with him. This will help you and me to be able to see, look into each other's eyes.”
• “I really want to know how you feel about me. You're 14. I'm 30, but age isn't nothing but a number. Young females nowadays like older men because they know how to treat a young woman.”
• “I was thinking that trailer park isn't the place for us to be spending time at....them people would find out and we don't need anyone in our business.”
• “I promise to be good to you and take my time with you and teach you what love and care is all about. You know, we have some years to go before our business can be known.”
• “Baby, do you miss seeing me? Do you think about me? And yes, you do have a nice butt, but what I like most about you is your golden heart.”
• “If I'm to be your man, then let me do my part when I come to helping out, plus, when you stayed out of school, you can come spend the day at my place. No one will ever know.”(Doc. 12 at 10-11). M.D.C. went to school and gave the letter to a resource officer. (Doc. 12-29 at 7-8). The resource officer notified a detective who commenced an investigation.
During the investigation, Petitioner was interviewed by the police. He admitted to swimming in the water with M.D.C., but he denied grabbing her butt. Although Petitioner admitted that the letter to M.D.C. was inappropriate, he stated he had no intention of having a sexual relationship with M.D.C. Instead, he claimed he only wanted to help M.D.C. and her family.
Petitioner was subsequently charged in state court with lewd and lascivious molestation of a victim between 12 and 16 years of age (Count 1), aggravated stalking of a victim under 16 years of age (Count 2), possession of a controlled substance (Count 3), and resisting an officer without violence (Count 4). (Doc. 12-19 at 2-3). He went to trial on Counts 1 and 2, and a jury convicted him as charged.(Doc. 12-80 at 56; Docs. 12-8 through 12-15). At sentencing, Petitioner pleaded no contest to Counts 3 and 4. (Doc. 12-2 at 20-25). The state court sentenced him as a prison releasee reoffender to 15 years' imprisonment on Count 1 and a consecutive term of 5 years' imprisonment on Count 2. (Doc. 12-80 at 35 through 12-81 at 4).
Counts 1 and 2 were severed from Counts 3 and 4 for trial.
The court sentenced Petitioner to time served on Counts 3 and 4. (Id.).
II. Procedural History
Following his conviction, Petitioner appealed to the Florida First District Court of Appeal (First DCA). (Doc. 12-83). That court affirmed the convictions but reversed the consecutive aspect of the sentences and remanded for resentencing. (Doc. 12-86). The Florida Supreme Court disagreed on the sentencing issue, quashed the First DCA's decision, and remanded for proceedings consistent with its opinion that the trial court was authorized to impose consecutive sentences. (Doc. 12-88). The First DCA then replaced its previous opinion with the higher court's opinion. (Doc. 12-90).
The appellate court held that PRR sentences could not be imposed consecutively where offenses arose out of the same criminal episode.
Next, Petitioner sought state postconviction relief in a habeas petition alleging ineffective assistance of appellate counsel. (Doc. 12100). The First DCA denied the petition on the merits. (Doc. 12-104).
Petitioner then went back to the trial court and sought postconviction relief under Florida Rule of Criminal Procedure 3.850. (Doc. 12-108). The trial court appointed counsel for Petitioner and held an evidentiary hearing on two of his thirteen claims. (Doc. 12-109). The trial court ultimately denied the motion, and Petitioner appealed to the First DCA.(Docs. 12-130, 12-134). The First DCA affirmed. (Doc. 12137).
Although the court denied postconviction relief, it corrected the judgment and sentence to reflect that Petitioner was designated a sexual offender not a sexual predator.
Petitioner then turned his postconviction efforts to federal court by filing the current habeas corpus petition under 28 U.S.C. § 2254. (Doc. 1). His petition presents four claims of trial court error and three claims of ineffective assistance of trial counsel. Respondent asserts procedural defenses to some claims and argues that none of them warrant habeas relief. The Court will discuss all of that below, but it will first summarize the legal standard for § 2254 petitions.
III. Section 2254 Standard of Review
When considering a state prisoner's § 2254 habeas petition, a federal court is not typically sitting as an appellate court with the mandate of correcting errors that may have occurred in the state court. See Shinn v. Ramirez, 596 U.S. 366, 377 (2022) (explaining that a federal habeas proceeding is not “a substitute for ordinary error correction through appeal”). Instead, under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal habeas court applies a “highly deferential standard of review for evaluating state-court rulings [on the merits], which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citation omitted).
Under AEDPA, a federal court may invalidate a state criminal conviction only if the state court decision (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)(1)-(2). The state court's factual determinations “shall be presumed to be correct,” and the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
“[T]o be contrary to clearly established federal law, the state court must either (1) apply a rule that contradicts the governing law set forth by Supreme Court case law, or (2) reach a different result from the Supreme Court when faced with materially indistinguishable facts.” Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010) (cleaned up). An “unreasonable application” of federal law occurs “if the state court correctly identifies the governing legal principle from [the Supreme Court's] decisions but unreasonably applies it to the facts of the particular case.” Bell v. Cone, 535 U.S. 685, 694 (2002). “To meet [the unreasonable application] standard, a prisoner must show far more than that the state court's decision was merely wrong or even clear error.” Shinn v. Kayer, 592 U.S. 111, 118 (2020) (cleaned up). Rather, the state court's application of federal law must be “so obviously wrong that its error lies beyond any possibility for fairminded disagreement.” Id. (cleaned up). This standard reflects that the “writ of habeas corpus is an extraordinary remedy that guards only against extreme malfunctions in the state criminal justice systems.” Ramirez, 596 U.S. at 377 (cleaned up).
IV. Discussion
A. Ground One: “Lower court abused its discretion and violated Petitioner's due process right guaranteed by the United States Constitution.”
In Ground One, Petitioner claims that the trial court violated the Sixth Amendment by denying defense counsel's motion to withdraw because of a conflict of interest. (Doc. 1 at 14-17). Petitioner alleges he was represented at trial by Attorney Russell from the Office of Regional Conflict Counsel (RCC). (Id. at 15-16). Petitioner alleges that prior to trial, Mr. Russell sought to withdraw based on two grounds. (Id. at 15). First, Richard Currey had previously represented Petitioner at the public defender's office, but he had since come to work for the RCC. (Id.). Petitioner alleges he had filed complaints about Mr. Currey with the trial court and the Florida State Bar. (Id.). Petitioner alleges Mr. Russell's second ground for seeking to withdraw was the fact that Melissa Walker had come to work for the RCC during the pendency of Petitioner's case. (Id.). Earlier in the proceedings, Ms. Walker had served as a prosecutor in Petitioner's criminal case. (Id.).
Petitioner contends it was a conflict of interest for any attorney from the RCC, including Mr. Russell, to represent him due to Currey's and Walker's present employment there. (Doc. 1 at 15-16). Petitioner alleges Mr. Russell's representation was impaired by the conflict, which he says was evidenced by Mr. Russell's poor performance. (Id. at 16). Petitioner contends the trial court violated his Sixth Amendment right to conflict-free counsel under Cuyler v. Sullivan, 446 U.S. 335 (1980). (Id. at 17). He asserts he would not have been convicted absent the conflict of interest. (Id.).
Respondent concedes that Petitioner presented his Sixth Amendment claim on direct appeal. (Doc. 12 at 32). Respondent argues that the claim should be denied because it does not raise a federal issue, and even if it did, Petitioner has not demonstrated that the state court's adjudication of the claim was contrary to, or an unreasonable application of, clearly established federal law. (Id. at 32-36).
1. The state court proceedings
The trial court held a hearing on Mr. Russell's motion to withdraw as counsel. (Doc. 12-7). At that hearing, the State offered an explanation regarding Mr. Currey's and Ms. Walker's prior involvement in Petitioner's case. Mr. Currey worked for the public defender's office and represented Petitioner for a period of time. When Mr. Currey joined the RCC, he worked in the RCC's Escambia County office and presumably had no involvement in Santa Rosa County cases, like Petitioner's.
The trial court docket indicates that Currey represented Petitioner from May 25, 2007 to April 25, 2008. (Doc. 1 at 15; Doc. 12-1 at 28-31).
After Mr. Currey left the public defender's office, another public defender picked up Petitioner's representation. During that attorney's representation, Petitioner filed a motion and a series of letters with the trial court, indicating that he was dissatisfied with the representation provided by the public defender's office.In response to Petitioner's filings, the trial court held a combined Nelson and Faretta hearing. At the conclusion of the hearing, the trial court determined that the public defender's office did not provide ineffective representation. The court did, however, grant Petitioner's request to represent himself and discharged counsel.
Petitioner's “Formal Complaint” and letters are part of the state court record. (Doc. 12-20 at 6-8; Doc. 12-21; Doc. 12-22 at 2-4).
Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973) (prescribing the procedure for addressing a defendant's request to discharge appointed counsel due to counsel's alleged ineffective assistance).
Faretta v. California, 422 U.S. 806, 831-32 (1975) (holding that before a defendant may waive his right to counsel and proceed pro se at trial, the trial court must determine that the defendant's waiver of the right to counsel is knowing and voluntary, and that he is aware of the dangers and disadvantages of self-representation).
This occurred in mid-2008, nearly two years prior to the hearing on Mr. Russell's motion to withdraw. (Doc. 12-7; Doc. 12-23 at 2, 4). Two months after discharging counsel, the court granted Petitioner's request to reappoint counsel. (Doc. 12-32 at 6-8; Doc. 12-1 at 25-26).
With respect to Ms. Walker's prior involvement, the State offered that Ms. Walker began her employment with the RCC the day before Mr. Russell filed the motion to withdraw. Ms. Walker was hired by the RCC to work in the Pensacola office (Escambia County) on child dependency cases, not criminal cases like Petitioner's. (Doc. 12-7 at 6-11).
Mr. Russell confirmed that Ms. Walker was recently hired by the RCC's Escambia County office to work on child dependency cases. (Doc. 12-7 at 11). Mr. Russell also agreed that Ms. Walker's involvement in Petitioner's case during her time as a prosecutor was limited to attending some depositions and filing amended discovery notices.(Id.). Mr. Russell stated that Petitioner “is not comfortable with the fact that the person that [sic] used to prosecute him now works for the same office that I do.” (Id.).
The trial court docket indicates that Ms. Walker's involvement in Petitioner's case was limited to November of 2007 to April of 2008, when she filed amended discovery exhibits and appeared at “docket days” and a hearing on Petitioner's motion for bond reduction. (Doc. 12-17 at 2426, 30-31; Doc. 12-18 at 2-4, 8, 11).
Mr. Russell told the court that with respect to Mr. Currey, Petitioner indicated he had filed a state bar complaint against Mr. Currey. (Id.). Mr. Russell did not offer any other information about Petitioner's alleged conflict with Mr. Currey. (Id.).
At the conclusion of the hearing, the trial court determined that Mr. Russell did not have an actual conflict of interest and, for that reason, the trial court denied the motion to withdraw. (Doc. 12-7 at 12; Doc. 1250 at 9).
Petitioner argued on direct appeal that the trial court's denial of the motion to withdraw violated the Sixth Amendment and Florida law. (Doc. 12-83 at 33-38). The First DCA affirmed Petitioner's conviction without commenting on the issue. (Doc. 12-86).
As previously mentioned, the First DCA reversed Petitioner's sentences, but the Florida Supreme Court quashed the First DCA's decision. (Docs. 12-86, 12-88). On remand, the First DCA replaced its decision with the higher court's decision. (Doc. 12-90). The affirmance of Petitioner's convictions did not change.
2. Analysis of Petitioner's habeas claim
To obtain habeas relief, Petitioner must demonstrate that no fairminded jurist could agree with the state court's determination that Mr. Russell did not have a conflict of interest that adversely affected his performance.Petitioner has not made that demonstration here.
The First DCA's decision was not accompanied by reasons, so the federal habeas court must “look through” the unexplained decision to the trial court's rationale. Wilson v. Sellers, 584 U.S. 122, 125 (2018).
Here is why. The Sixth Amendment's guarantee of effective assistance of counsel demands “not only a minimally competent lawyer, but also counsel unburdened by a conflict of interest that impedes zealous representation.” Dallas v. Warden, 964 F.3d 1285, 1302 (11th Cir. 2020). One type of conflict of interest arises when counsel jointly represents codefendants. If a trial court improperly requires joint representation over timely objection, then reversal is automatic. Holloway v. Arkansas, 435 U.S. 475, 488 (1978). Holloway's automatic reversal rule “is limited only to those circumstances where a trial court improperly requires the joint representation of codefendants overly timely objection.” Dallas, 964 F.3d at 1303 (emphasis added).
In the absence of the joint representation of codefendants, the appropriate legal standard is set out in Cuyler v. Sullivan, 446 U.S. 335 (1980). Dallas, 964 F.3d at 1303. That standard requires a showing that defense counsel had a conflict of interest that adversely affected counsel's performance. Dallas, 964 F.3d at 1303; see also Mickens v. Taylor, 535 U.S. 162, 172 n.5 (2002) (clarifying that the Sullivan standard “is not properly read as requiring inquiry into actual conflict as something separate and apart from adverse effect. An ‘actual conflict,' for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance.”).
Considering the evidence presented at the hearing on Mr. Russell's motion to withdraw, a reasonable jurist could conclude that Petitioner failed to show that Mr. Russell had a conflict of interest that adversely impacted his representation of Petitioner. Neither Mr. Russell nor Petitioner articulated how Mr. Russell's continued representation could or would adversely impact Petitioner. Petitioner's direct appeal brief fared no better. Petitioner did not assert that Mr. Russell's representation was adversely affected in any way by the fact that Mr. Currey and/or Ms. Walker were employed by the RCC.
Petitioner has not demonstrated that the state court's adjudication of his federal claim was contrary to, or an unreasonable application of, clearly established Federal law. Thus, Petitioner is not entitled to habeas relief on Ground One.
B. Ground Two: “Trial court erred in denying Petitioner's motion to represent himself without conducting a proper Faretta inquiry.”
In Ground Two, Petitioner claims that the trial court violated the Sixth Amendment by denying his right to self-representation without conducting a detailed Faretta inquiry. (Doc. 1 at 19-22). He alleges his criminal case was pending for four years (from April 2007 to July 2011), and during that time, the trial court was able to observe that he maintained the same ability to respond to questions and interact with the court throughout the proceedings. (Id. at 20-21). Petitioner also alleges that psychological reports concluded he possessed a factual and rational understanding of the legal system and his charges, and that he was capable of demonstrating the capacity to assist his attorney and maintain appropriate courtroom behavior. (Id. at 21). Petitioner alleges he represented himself at two court hearings in mid-2008, but then he requested and received appointment of counsel in August 2008. (Id.). He alleges he made an unequivocal request to represent himself at a pretrial hearing and was “competent enough” to knowingly waive his right to counsel, but he says the trial court denied his request without conducting a proper Faretta inquiry. (Id. at 20-22).
1. The state court proceedings
The record demonstrates that Petitioner was represented by counsel for the first year of the trial court proceedings (May 2007 to June 2008). (Doc. 12-6 at 6-7). As previously described, in June 2008, the trial court granted Petitioner's request to discharge the public defender's office and represent himself. (Doc. 12-28 at 8). Petitioner's selfrepresentation lasted two months. In August of 2008, Petitioner filed a motion for appointment of counsel, which the trial court granted. (Doc. 12-32 at 6-10).
The documents listed in the Appeal Index are part of the federal habeas record. (Docs. 12-2 through 12-81).
Six months later, in February of 2009, defense counsel filed a motion to have Petitioner psychologically evaluated. (Doc. 12-37 at 3-4; see also Doc. 12-38 at 2-4). The trial court appointed a mental health expert who concluded that Petitioner suffered from a psychiatric disorder that rendered him incompetent to proceed. (Doc. 12-41 at 3-6). On July 27, 2009, the trial court adjudicated Petitioner incompetent and committed him to a state mental health treatment facility. (Doc. 12-40 at 19-24). In December of 2009, the facility's staff deemed Petitioner competent, and in January of 2010, the trial court adjudicated Petitioner competent to stand trial. (Doc. 12-41 at 7-9; Doc. 12-45 at 3).
At defense counsel's request, Petitioner was again evaluated by a mental health expert on June 29, 2010. And he was again deemed incompetent to proceed. (Doc. 12-53 at 3-6). The trial court appointed a second expert. (Doc. 12-53 at 7-8 through Doc. 12-54 at 2). The second expert determined that a complete competency evaluation could not be conducted because Petitioner “would not, or could not, respond to [the] examiner's questions.” (Doc. 12-54 at 4-9). Three months later, the trial court reappointed the same expert to conduct another competency evaluation. (Doc. 12-55 at 5-6 through Doc. 12-56 at 2). And six months after that, the court ordered another competency evaluation. (Doc. 12-53 at 7-8 through Doc. 12-54 at 2-3; Doc. 12-55 at 5-6 through Doc. 12-56 at 2). The expert determined that Petitioner was incompetent. (Doc. 12-57 at 2-7). On January 6, 2011, the court again adjudicated Petitioner incompetent and committed him to a state mental health treatment facility. (Doc. 12-58 at 5 through Doc. 12-59 at 2-4).
In March of 2011, the facility's staff deemed Petitioner competent, and in April 2011, the trial court adjudicated Petitioner competent to stand trial. (Doc. 12-59 at 6-7; 12-61 at 3).
At a pre-trial hearing two months later, on June 16, 2011, defense counsel announced that Petitioner wished to represent himself. (Doc. 12 7 at 20). The trial court conducted the following inquiry:
THE COURT: All right. Would you state your name?
THE DEFENDANT: Frank Andre Lewis Mosley.
THE COURT: All right. And do you have a problem with your attorney?
THE DEFENDANT: Yes, sir.
THE COURT: All right. What are you asking from the Court?
THE DEFENDANT: Well, my, my previous attorney that I had or-had a conflict with the Public Defender's Office. So what they did was they assigned me a conflict-free attorney which is one that I have now.
THE COURT: Right.
THE DEFENDANT: Which is Mr. Russell. That same attorney that I had, he's how working for the conflict-free attorney's office. I don't feel comfortable with that. Also the prosecutor that was prosecuting my case at first, Ms. Walker, she also works for that same office.
Judge Santurri heard a motion on this here about the conflict, and he denied it.
I still, I don't know if that issue is, still be preserved for appeal. But I was informed by my attorney now, Mr. Russell, that that, that issue was still preserved for appeal.
THE COURT: Okay.
[THE DEFENDANT]: So I wanted to make sure of that.
Also he feels that, Mr. Russell feels that he can't make no good faith arguments on the few issues that I have to raise. I feel that he can. And I have Florida Supreme Court cases supporting that. And one of the issues was, where I got that in the motions. If you would like me to present it in a motion?
THE COURT: Did you file a written motion?
THE DEFENDANT: Yes, sir. I have a written motion prepared.
THE COURT: And you have not filed it yet?
THE DEFENDANT: No, sir. I file it once I been deemed pro se. I can't file it now.
THE COURT: You can't file your motion as long as you are represented.
THE DEFENDANT: Right.
THE COURT: Now here's the thing, see. I mean right now you have not alleged any ineffective assistance of counsel. And you expressed your concerns about the people that work in the office.
But you have to understand the choices that you have. If you want to discharge your court-appointed lawyer, I won['t] be able to appoint another lawyer for you unless I find that he is legally ineffective. If there is just a dispute as to how you think the case should be handled or some other personal disagreement that you have with him, that's not sufficient.
So if I discharge him then you have two choices: You can represent yourself, or you can hire a private attorney.
THE DEFENDANT: Yes, sir.
THE COURT: So what are you asking me to do now?
THE DEFENDANT: Okay. For the record, I am not saying that at this time that Mr. Russel is being ineffective to me.
THE COURT: All right.
THE DEFENDANT: To a degree as far as arguing that here.
THE COURT: Okay.
THE DEFENDANT: What I am saying is my conflict is with, I'm uncomfortable with the conflict attorney that I had is now working for the same office. And I just don't feel that I would feel that, you know, I'm just uncomfortable with that. I'd rather have another appointed counsel. If not, I would like
to have it preserved for appeal and go ahead and proceed with proceeding pro se, if the Court would deem me so.
THE COURT: Well, see, I can't let you proceed pro se unless you are asking me to discharge Mr. Russell.
THE DEFENDANT: I am actually representing myself, sir. And discharge Russell.
THE COURT: And are you asking that Mr. Russell be discharged?
THE DEFENDANT: Yes, sir. I am.
THE COURT: And you want to represent yourself?
THE DEFENDANT: Yes, sir. I do.
THE COURT: All right. Well, first of all I have to go through something with you on that.
THE DEFENDANT: Yes, sir.
THE COURT: How much education do you have?
THE DEFENDANT: I graduated high school.
THE COURT: Have you ever been treated for any kind of psychological problem?
THE DEFENDANT: Yes, sir.
THE COURT: You have?
THE DEFENDANT: Yes, sir.
THE COURT: What have you been treated for?
THE DEFENDANT: Schizophrenic and ADA [sic].
THE COURT: How long ago was that?
THE DEFENDANT: I don't know how long ago that was.
THE COURT: Are you currently being treated for that?
THE DEFENDANT: Yes, sir. I am currently being treated for it.
THE COURT: You are.
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Sir, your motion is denied. And Mr. Russell will remain as your attorney. Okay. I cannot find that you are capable of representing myself.
THE DEFENDANT: They said I was capable of proceeding to trial so I've never did-
THE COURT: Well, there is a difference between being competent to go to trial and tried-
THE DEFENDANT: I'm competent to represent myself, Your Honor.
THE COURT: Well, I don't feel that you are, sir, because of what you just told me about your mental condition.
And so I'm going to deny your request to represent yourself. And Mr. Russell will remain as your attorney of record.(Doc. 12-7 at 20-25).
Petitioner argued on direct appeal that the trial court erred in denying his motion to represent himself without conducting a full Faretta hearing. (Doc. 12-83 at 39-44). The First DCA court affirmed without stating its reasons.
2. Analysis of Petitioner's habeas claim
Before discussing whether Petitioner has demonstrated that the state court's adjudication of his claim was contrary to, or an unreasonable application of, clearly established federal law, the Court will explain the applicable law.
The Sixth Amendment guarantees a defendant the right to waive representation by counsel and represent himself. Faretta v. California, 422 U.S. 806, 831-32 (1975). The decision to waive counsel must be made “competently and intelligently.” Id. at 835. The competency standard for waiving the right to counsel is the same as the competency standard for standing trial-the defendant must have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and have “a rational as well as factual understanding of the proceedings against him.” Godinez v. Moran, 509 U.S. 389, 391, 396 (1993). In addition to determining that a defendant is competent to waive counsel, a trial court must determine whether the waiver itself is knowing and voluntary. Id. at 400.
“Although a defendant need not himself have the skill and experience of a lawyer in order [to] competently and intelligently to choose self representation, he should be made aware of the dangers and disadvantages of self representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” Faretta, 422 U.S. at 835 (cleaned up). The Supreme Court has not “prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel.” Patterson v. Illinois, 487 U.S. 285, 298 (1988). The “core inquiry is whether the defendant understood the choices before him” and the risks of self-representation. Jones v. Walker, 540 F.3d 1277, 1293 (11th Cir. 2008).
A defendant's mental capacity is relevant to determining whether a waiver of the right-to-counsel is knowing and voluntary. Moore v. Michigan, 355 U.S. 155, 164-65 (1957). The Constitution does not forbid States from insisting upon representation by counsel for individuals who are competent enough to stand trial but who suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. Indiana v. Edwards, 554 U.S. 164, 178 (2008).
The facts in this case are like those in Edwards. In Edwards, the defendant's mental condition became the subject of three competency proceedings. 554 U.S. at 167-68. Almost one year after the trial court had determined that Edwards had improved to the point of competency, Edwards asked to represent himself and requested a continuance of trial to prepare. Id. at 168. The trial court refused, and Edwards proceeded to trial represented by counsel. Id. at 168-69. The jury failed to reach a verdict on two of the three counts, so the State retried Edwards on those counts six months later. Id. at 169.
Just before the retrial, Edwards again asked to represent himself. Id. Referring to the lengthy record of psychiatric issues, the trial court noted that Edwards still suffered from schizophrenia and concluded that “[w]ith these findings, he's competent to stand trial but I'm not going to find he's competent to defend himself.” Id.
The Supreme Court noted that Faretta did not consider the problem of mental competency and, therefore, did not answer the question of the relationship between the mental competence to stand trial and the ability to conduct self-representation. Id. at 170-71. The Supreme Court also noted:
Mental illness is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual's function at different times in different ways....In certain instances an individual may well be able to satisfy [the] mental competence standard, for he will be able to work with counsel at trial, yet at the same time he may be unable to carry out the basic tasks needed to present his own defense without the help of counsel.554 U.S. at 175-76.
The Supreme Court further explained that:
[T]he Constitution permits judges to take realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial . but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.(Id. at 177-78).
Petitioner, like the petitioner in Edwards, had been diagnosed with schizophrenia and previously committed to a mental hospital multiple times. A fairminded jurist, therefore, could agree with the state court's determination that the trial court's denial of Petitioner's request for selfrepresentation did not violate Faretta or Edwards. See Holland v. Florida, 775 F.3d 1294, 1314 (11th Cir. 2014) (holding that, whether measured against Faretta or Edwards, state court's denial of petitioner's request for self-representation did not violate his constitutional rights where trial court determined that petitioner was incompetent to represent himself because he had been diagnosed with schizophrenia and previously committed to a mental institution). For these reasons, Petitioner is not entitled to federal habeas relief on Ground Two.
C. Ground Three: “Trial court erred in admitting Petitioner's statement to Sgt. Panchaud as the statement was taken in violation of Petitioner's right to counsel.”
In Ground Three, Petitioner challenges one of the trial court's evidentiary rulings. Petitioner alleges Sergeant Panchaud interviewed him after he had invoked his right to counsel at a first appearance one month prior. (Doc. 1 at 24-27). Petitioner alleges defense counsel objected to the admission of Sergeant Panchaud's testimony regarding Petitioner's statements, but the trial court admitted the testimony. (Id.). Petitioner claims that the trial court's ruling violated the U.S. Constitution and the Florida Constitution. (Id.).
Respondent asserts that the federal claim in Ground Three is unexhausted and procedurally barred because Petitioner presented only a state law claim on direct appeal. (Doc. at 42, 44-45). Respondent further argues that even if Petitioner's federal claim was exhausted, the state court's rejection of the claim was not contrary to, or an unreasonable application of, clearly established federal law. (Id. at 45).
1. Exhaustion requirement
Let's start the discussion by summarizing the exhaustion requirement for § 2254 cases. That requirement is found in 28 U.S.C. § 2254(b)(1), which provides that 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 unless it appears that-(A) the applicant has exhausted the remedies available in the courts of the State.” This means that a “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.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The exhaustion requirement is “designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Rose v. Lundy, 455 U.S. 509, 518 (1982). To satisfy the exhaustion requirement, a petitioner must have “fairly presented” the substance of his federal claim to the state courts. Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351 (11th Cir. 2012).
In habeas cases involving Florida prisoners, “claims for postconviction relief are exhausted once they are appealed to the state district court of appeal. They need not be appealed to the Florida Supreme Court in order to be considered exhausted for federal habeas purposes.” Barritt v. Sec'y Fla. Dep't of Corr., 968 F.3d 1246, 1249 n.3 (11th Cir. 2020).
A petitioner “fairly” presents the substance of his federal claim when he describes the claim “such that [the state courts] are permitted the opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim.” Kelley v. Sec'y Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004) (cleaned up). Exhaustion is not present “merely” because “the federal habeas petitioner has been through the state courts. ..nor is it sufficient that all the facts necessary to support the claim were before the state courts or that a somewhat similar statelaw claim was made.” McNair v. Campbell, 416 F.3d 1291, 1302-07 (11th Cir. 2005) (cleaned up). Instead, exhaustion requires that the “ground relied upon... be presented face-up and squarely; the federal question must be plainly defined.” Kelley, 377 F.3d at 1345 (cleaned up).
If a petitioner has not exhausted his claim in state court and it “is clear from state law that any future attempts at exhaustion would be futile,” then federal courts “may treat unexhausted claims as procedurally defaulted.” Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999). And a procedurally defaulted claim will not be considered by a federal habeas court unless “a petitioner can show (1) cause for the default and (2) actual prejudice resulting from the alleged constitutional violation.” Sealey v. Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1365 (11th Cir. 2020).
2. Petitioner's Ground Three is unexhausted
Having summarized the applicable law, it is time to apply it to Petitioner's case. Although Petitioner says that he presented Ground Three on direct appeal (Doc. 1 at 24), the record shows otherwise. The record shows that Petitioner previously argued on direct appeal that the trial court erroneously admitted his statement to Sergeant Panchaud, because it was obtained in violation of the Florida Constitution. (Doc. 1283 at 45-49). Petitioner acknowledged in his state appellate brief that the United States Supreme Court has held that the Sixth Amendment did not prohibit police-initiated interrogation after the right to counsel attached, provided there was a valid waiver of counsel and the statement was otherwise voluntary. (Id. at 46). But Petitioner argued that the states were free to continue prohibiting these types of police-initiated interrogations as a matter of state constitutional law. Therefore, Petitioner argued that the Florida Constitution prohibited admission of the statements Petitioner made to Sergeant Panchaud. (Id. at 46-49).
Petitioner's direct appeal argument gave no indication that he was asserting a violation of the U.S. Constitution. His brief relied exclusively on the Florida Constitution. Thus, Petitioner did not fairly present a federal claim to the First DCA. For this reason, Ground Three is unexhausted. See McNair, 416 F.3d at 1301-04 (petitioner failed to “fairly present” his federal constitutional claim concerning jurors' improper consideration of extraneous evidence, where his direct appeal brief relied almost exclusively on state law to argue that the jury's action violated state law); see also French, 790 F.3d at 1270-71 (petitioner failed to exhaust-and procedurally defaulted-his claims that the trial court's exclusion of a false kidnapping accusation and the trial court's ruling prohibiting cross-examination with respect thereto violated the Confrontation Clause of the Sixth Amendment; petitioner's single reference to “confrontation” in his direct appeal brief did not fairly present a Confrontation Clause claim under the Sixth Amendment); Samuel v. Fla. Dep't of Corr., No. 20-12002, 2022 WL 3104925, at *3 (11th Cir. Aug. 4, 2022) (petitioner failed to properly exhaust-and procedurally defaulted-due process challenge to jury instruction where none of his state-court pleadings referred to the Constitution or any federal rights, and none of the state-court cases he argued discussed constitutional error).
Predictably, the State's answer brief in the direct appeal similarly addressed only Petitioner's claim that the trial court's ruling violated his rights under the Florida Constitution. (Doc. 12-84 at 28-31). The First DCA affirmed Petitioner's convictions without providing reasons or indicating that it considered a federal constitutional issue with respect to the admission of Sergeant Panchaud's testimony. (Docs. 12-86, 12-88, 12-90).
Any attempt by Petitioner to return to state court to exhaust a federal claim now would be procedurally barred under Florida law. See Bailey, 172 F.3d at 1303 (holding that when a petitioner fails to properly exhaust a federal claim in state court, and it is obvious that the unexhausted claim now would be procedurally barred under state law, the claim is procedurally defaulted); see also Smith v. State, 453 So.2d 388, 389 (Fla. 1984) (claims that could have been raised on direct appeal are foreclosed from consideration under postconviction relief); Fla. R. Crim. P. 3.850(c) (same). Accordingly, Petitioner's federal claim concerning the trial court's admission of his statements to Sergeant Panchaud is procedurally barred.
A violation of state law is not a basis for federal habeas relief. 28 U.S.C. § 2254(a) (a federal court shall entertain an application for habeas relief only on the ground that the applicant is in custody in violation of the Constitution or laws of the United States). Additionally, the state court's adjudication of Petitioner's state law claim (i.e., that the trial court's ruling violated the Florida Constitution) is not subject to review by this Court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (holding that the federal habeas court must abide by the state court's interpretation of state law).
D. Ground Four: “Ineffective assistance of counsel- failure to request lesser included instruction of ‘unnatural act,' category two permissive.”
In Ground Four, Petitioner claims that defense counsel was ineffective for failing to request a jury instruction on the lesser included offense of “unnatural act.” (Doc. 1 at 29-32). Petitioner asserts that this offense was a permissive jury instruction under Florida law, and there was evidence to support the instruction. (Id.). According to Petitioner, if defense counsel had requested the jury instruction, then the trial court would have been required to give it, and the result of his trial would have been different. (Id. at 30-31).
Ineffective assistance of counsel claims are governed by the standard found in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a Strickland claim, a petitioner must show that (1) counsel's performance was constitutionally deficient, and (2) prejudice resulted. Id. at 687. Under the deficiency prong, the inquiry focuses on “whether counsel's assistance was reasonable considering all the circumstances.” Id. at 688. Trial counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. As for the prejudice prong, the inquiry focuses on whether the petitioner has shown there is a “reasonable probability” that the outcome would have been different absent counsel's deficient performance. Id. at 694. To make the prejudice showing, the “likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).
Both the Strickland standard and the standard for relief under § 2254 are “highly deferential.” Richter, 562 U.S. at 105. And when-in a case like the current one-“the two apply in tandem, review is doubly” deferential. Id. (cleaned up). The Supreme Court has warned that “habeas courts must guard against the danger of equating unreasonableness under Strickland['s]” deficient performance prong with “unreasonableness under § 2254(d).” Id. Thus, “[w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id.
1. The state court postconviction proceedings
Petitioner presented this ineffectiveness claim in his second amended Rule 3.850 motion. (Doc. 12-108 at 4-7, 36-39). It was one of the two claims that were litigated at the evidentiary hearing. (Doc. 12109).
Petitioner's trial counsel, Mr. Russell, testified that he requested a jury instruction on the lesser included offense of misdemeanor battery. (Id. at 26). Russell could not recall the reason he did not also request a jury instruction on the category two lesser-included offense of “unnatural and lascivious act.” (Id. at 25-27). Petitioner's collateral review counsel asked Mr. Russell if the omission was simply an oversight. (Id. at 27). Russell responded with the following:
I wouldn't say that because if-if I knew that the battery was a lesser included, a cat[egory] two, a category two lesser included, I would have seen the unnatural and lascivious act. But like I said, I can't see anything in- in my file or at the charge conference where I said, I'm doing this because.(Id.).
On cross-examination by the State, Mr. Russell reiterated that his decision not to request the “unnatural and lascivious act” instruction was intentional, although he could not recall his reasoning for that decision. (Doc. 12-109 at 36). Mr. Russell stated, “if I felt that I had a legal and/or factual basis, ... I would have asked for the lesser because I had asked for the other lesser.” (Id.).
The trial court correctly cited Strickland as the controlling legal standard. (Doc. 130 at 6). The court rejected this particular claim on the prejudice prong. (Id. at 6-7). The court found that the jury was instructed on the charged offense of lewd and lascivious molestation and a lesser included offense of battery. The court reasoned that because the jury found Petitioner guilty of the highest, charged offense, there was no reasonable probability that an instruction on another lesser included offense would have resulted in a different verdict.
Petitioner argued this issue in his postconviction appeal. (Doc. 12134 at 14-20). The First DCA affirmed without stating its reasons. (Doc. 12-137).
2. Analysis of Petitioner's habeas claim
To obtain habeas relief, Petitioner must demonstrate that no fairminded jurist could agree with the state court's assessment of Strickland's deficient performance prong. Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012). Petitioner has not made that demonstration in this case.
The First DCA's decision was not accompanied by reasons, so the federal habeas court must “look through” the unexplained decision to the trial court's rationale. Wilson, 584 U.S. at 125.
The jury was instructed that if they returned a verdict of guilty, “it should be for the highest offense which has been proven beyond a reasonable doubt.” (Doc. 12-80 at 3). The jury returned a verdict of guilty on lewd and lascivious molestation as charged in the information, which was the highest offense. (Id. at 5). Because the jury found that the evidence supported a guilty verdict on the highest offense, the jury would not have been permitted to find Petitioner guilty of the lesser offense of unnatural and lascivious act, even if counsel had requested an instruction on that offense. See Crapser v. Sec'y, Dep't of Corr., 855 Fed.Appx. 626, 627-29 (11th Cir. 2021) (holding that state court reasonably rejected petitioner's ineffectiveness claim based upon failure to request lesser-offense instructions; jury concluded that evidence against petitioner supported his conviction for charged offense of lewd and lascivious molestation; therefore, even if lesser-offense instructions had been given, jury would not have been permitted to convict petitioner of lesser-included offenses); see also Hester v. Sec'y, Fla. Dep't of Corr., No. 19-15138-B, 2020 WL 1540401, at *1 (11th Cir. Jan. 31, 2020) (holding that reasonable jurists would not debate state court's determination that defense counsel was not ineffective for failing to request instruction on a lesser-included offense).
Petitioner has not demonstrated that the state court's adjudication of Ground Four was contrary to, or an unreasonable application of, Strickland. Nor has he shown that the state court's decision was based upon an unreasonable determination of fact. Petitioner, therefore, is not entitled to federal habeas relief on Ground Four.
E. Ground Five: “State court erred from failing to issue a show cause order attacking postconviction relief proceeding challenging ineffective assistance of counsel claim failure [sic] to depose, subpoena and present the testimony of Ms. Tiffany Sledge in violation of Petitioner's 6th and 14th Amendment [sic] under the United States Constitutional [sic] rights.”
In Ground Five, Petitioner claims that his trial counsel was ineffective for failing to present testimony from Tiffany Sledge. (Doc. 1 at 33). Petitioner alleges Ms. Sledge would have testified to the following facts: (1) she was supposed to meet Petitioner at the river to fish; (2) Petitioner did not go to the river to swim; (3) Petitioner did not go to the river alone; (4) the alleged victim attempted to engage Petitioner by repeatedly walking by him and pushing his head as he sat on the dock; (5) Ms. Sledge wanted to buy a home in the Bagdad area (the area where the victim lived) and spoke with a realtor, Ms. Johnson; and (6) Lisa Serrano lived near the victim and told Sledge that Petitioner was visiting her (Serrano) on April 2 and 3, not stalking the victim. (Id. at 33-34). According to Petitioner, he would have been acquitted if defense counsel had presented Ms. Sledge's testimony at trial. (Id. at 34).
Petitioner alleges he presented this claim as Ground Two of his second amended Rule 3.850 motion. (Doc. 1 at 33-34). He claims the trial court erred by denying it without directing the State to respond. (Id. at 33-34).
Respondent argues that Ground Five is not the same issue that Petitioner presented in Ground Two of his Rule 3.850 motion. (Doc. 12 at 49). Respondent asserts that in the Rule 3.850 motion, Petitioner presented a claim of ineffective assistance of trial counsel with respect to counsel's failure to present Tiffany Sledge's testimony at trial; but in Petitioner's § 2254 petition, he presents a claim of error with respect to the post-conviction court's denial of the ineffectiveness claim without first directing the State to respond to it. (Id.). Respondent asserts that the issues are completely different, and the issue presented in Ground Five of the § 2254 petition is, therefore, unexhausted. (Id.).
Respondent further argues that Ground Five does not present a federal law issue and instead challenges only the internal procedures the state courts used to examine Rule 3.850 claims-specifically, whether the claims require a response from the State and whether an evidentiary hearing is required. (Id.). Respondent contends a federal habeas court has no jurisdiction to review such state court procedural matters. (Id.).
Respondent goes on to argue that to the extent the Court construes Ground Five as asserting the same claim he presented in Ground Two of his Rule 3.850 motion, the state court reasonably applied Strickland in rejecting it. (Doc. 12 at 50-51).
1. The state court postconviction proceedings
In Ground Two of Petitioner's Rule 3.850 motion, Petitioner claimed that trial counsel was ineffective for failing to call Tiffany Sledge, Petitioner's girlfriend, as a witness. (Doc. 12-108 at 7-10). He alleged that Ms. Sledge was available to testify at trial and would have testified consistently with her pretrial deposition. Petitioner offered his description of Sledge's deposition testimony.
The trial court summarily denied the claim. (Doc. 12-130 at 7-9). The court compared Ms. Sledge's actual deposition testimony with Petitioner's description and found that Petitioner's description was partially refuted by the record. The court then considered Ms. Sledge's deposition testimony in the context of the testimony presented at trial and determined that Petitioner failed to show a reasonable probability that the outcome of the trial would have been different if trial counsel had called Ms. Sledge as a witness. (Id. at 8-9).
Petitioner argued in his postconviction appellate brief that the trial court erred by summarily denying (i.e., without directing a response or holding an evidentiary hearing) his ineffectiveness claim based upon defense counsel's failure to present Ms. Sledge's testimony. (Doc. 12-134 at 21-32). The First DCA affirmed the lower court's decision without providing reasons. (Doc. 12-137).
2. Petitioner exhausted his ineffectiveness claim
The Eleventh Circuit has held that a petitioner's argument, on postconviction appeal, that the lower court erred by summarily denying a claim “fairly presents” the underlying claim to the appellate court. See Henry v. Dep't of Corr., 197 F.3d 1361, 1367 (11th Cir. 1999); see also Nieves v. Sec'y, Fla. Dep't of Corr., 770 Fed.Appx. 520, 522 (11th Cir. 2019). Applying this principle, the Court concludes that Petitioner fairly presented the substance of his federal ineffectiveness claim to First DCA.
3. Analysis of Petitioner's habeas claim
Looking through the First DCA's unexplained decision to the trial court's rationale, the Court asks whether Petitioner has demonstrated that the state court's decision was based upon an unreasonable determination of the facts or was an unreasonable application of Strickland.The answer is no.
As previously noted, Petitioner cannot satisfy the “contrary to” component of § 2254(d)(1) because the state court applied the Strickland standard to his ineffectiveness claims.
For starters, Petitioner has not rebutted any of the state court's factual findings with clear and convincing evidence. Further, the state court's determination of the facts was reasonable and fully supported by the excerpts of Ms. Sledge's deposition testimony and the trial testimony attached to the state court's order. (Doc. 12-131 at 6-80; Doc. 12-132 at 22 through Doc. 12-133 at 15).
Additionally, Petitioner has not demonstrated that no fairminded jurist could agree with the state court's assessment of Strickland's prejudice prong.Considering Ms. Sledge's deposition testimony, the testimony that the jury heard, and the verdict, a fairminded jurist could conclude, as the state court did, that there is no reasonable probability the jury's verdict would have been different if Ms. Sledge had testified at trial. For this reason, Petitioner is not entitled to federal habeas relief on Ground Five.
See Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012) (“[I]f some fairminded jurists could agree with the state court's decision, although others might disagree, federal habeas relief must be denied.”); Morris v. Sec'y, Dep't of Corr., 677 F.3d 1117, 1126 (11th Cir. 2012) (if, at a minimum, fairminded jurists could disagree about the correctness of the state court's decision, the state court's application of Supreme Court precedent was not unreasonable, and AEDPA precludes the grant of habeas relief) (citing Richter, 562 U.S. at 102-03); Johnson v. Sec'y, Dep't of Corr., 643 F.3d 907, 910 (11th Cir. 2011) (“[O]nly ‘if there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents' may relief be granted.”).
F. Ground Six: “State court erred from failing to issue a show cause order attacking postconviction relief proceeding challenging ineffective assistance of counsel claim failure [sic] to depose, subpoena and present the testimony of Detective Sloan, in violation of the Petitioner's 6th and 14th Amendment Rights under the U.S. Constitution.”
In Ground Six, Petitioner claims trial counsel was ineffective for failing to depose Detective Sloan and present her testimony at trial. (Doc. 1 at 35-37). Detective Sloan was one of the three detectives who investigated the victim's allegations. (Id.). Petitioner alleges he would have been acquitted if defense counsel had deposed Detective Sloan and presented her testimony. (Id.). Petitioner states he raised this ineffectiveness claim as Ground 4 of his second amended Rule 3.850 motion. (Id. at 35). He argues that the trial court erred by denying the claim without directing the State to respond to it, and the First DCA affirmed the lower court's decision. (Id. at 35, 37-38).
Respondent argues, as with Petitioner's previous claim, that Ground Six does not present a cognizable federal claim because it challenges only the internal procedures of the state courts used to examine Rule 3.850 claims. (Doc. 12 at 52). Respondent goes on to argue that to the extent the Court construes Ground Six as asserting the same claim that Petitioner presented in Ground Four of his Rule 3.850 motion, the claim is unexhausted because Petitioner did not present any argument on this ineffectiveness claim in his initial brief on appeal to the First DCA. (Doc. 21).
In Florida, when the trial court grants or denies a Rule 3.850 motion after holding an evidentiary hearing on one or more claims (which is what happened here (see Doc. 12-109)), an appellant must serve an initial brief within the time allowed under Florida's appellate rules. Fla. R. App. P. 9.141(b)(3)(C). The initial brief must address all arguments that the appellant wishes to preserve for appellate review; and any issue that is not raised and argued is waived. Atwater v. Crosby, 451 F.3d 799, 809-10 (11th Cir. 2006); see also Myers v. Sec'y, Fla. Dep't. of Corr., No. 19-14060-A, 2020 WL 6156872, at *1 (11th Cir. Jan. 29, 2020).
Here, Petitioner's initial brief in the post-conviction appeal did not include any argument concerning defense counsel's alleged ineffectiveness for failing to depose and present testimony from Detective Sloan. (Doc. 12-134). By failing to include any argument on this issue, Petitioner failed to complete that round of Florida's established appellate review process. His failure to do so renders Ground Six procedurally defaulted.
Petitioner has not shown cause for the procedural default. Nor has he demonstrated that he is entitled to federal review of Ground Six through any other recognized exception to the procedural default doctrine. Petitioner, therefore, is not entitled to federal habeas review of Ground Six.
G. Unnumbered Claim: “State court did lack jurisdiction to try Petitioner by a speedy trial violation [sic] on the offense of Aggravated Stalking in violation of Petitioner's Sixth and Fourteenth Amendment right [sic] to the U.S. Constitution.”
In his final ground for relief, Petitioner alleges the State brought a misdemeanor charge of stalking and then filed a “no action” on the charge. (Doc. 1 at 39). He alleges he told his defense attorneys that he wished to exercise his right to a speedy trial, and they responded that he was “on speedy trial track.” (Id.). Petitioner alleges thirteen months after the State filed a “no action” on the misdemeanor charge, the State amended the information to add a felony aggravated stalking charge. (Id.).
Petitioner alleges the State lacked jurisdiction to amend the information because the felony stalking charge was based on the same conduct and criminal episode as the misdemeanor stalking charge. (Id.). He alleges he asked defense counsel to file a motion to dismiss the felony stalking charge on speedy trial grounds (i.e., 175 days had elapsed since the State filed a “no action” on the misdemeanor charge), but defense counsel failed to file the motion. (Id.). Petitioner alleges he also requested that defense counsel raise the issue at a probable cause hearing, but counsel failed to do so. (Id. at 40). Petitioner alleges the trial court knew that Petitioner's Sixth and Fourteenth Amendment rights were being violated. (Id. at 39). He asserts he presented this claim to the state courts in habeas corpus actions, but the courts failed to correct the constitutional violations. (Id. at 40).
Respondent asserts an exhaustion defense. (Doc. 12 at 56). Respondent contends that any challenge to the trial court's actions should have been raised on direct appeal, but it was not. (Id.). And to the extent Petitioner asserts a claim of ineffective assistance of counsel based upon counsel's failure to seek dismissal of the aggravated stalking charge, Petitioner should have raised it in the Rule 3.850 proceeding. (Id.). Respondent contends Petitioner is now procedurally barred from presenting either claim to the state courts, therefore, the claims are procedurally defaulted on federal habeas. (Id.).
The state court record confirms that Petitioner did not present his claim of trial court/jurisdictional error on direct appeal. (Doc. 12-83, 1295). And he did not present his ineffective assistance of trial counsel claim in the Rule 3.850 proceeding. (Doc. 12-108). Florida's procedural rules do not provide a second direct appeal. And any attempt to assert either or both claims in a Rule 3.850 motion would be rejected as untimely or successive or both. See Fla. R. Crim. P. 3.850(b), (h). For these reasons, the claims asserted in Petitioner's final ground for relief are unexhausted and procedurally barred.
Petitioner filed two pre-trial, pro se habeas petitions in the trial court. (Doc. 12-18 at 12-20; Doc. 12-33 at 8 through 12-35 at 5). The trial court struck both petitions as nullities because Petitioner was represented by counsel when he filed them. (Doc. 12-23 at 3; Doc. 12-35 at 7). Petitioner did not challenge those rulings on direct appeal. (Doc. 12-83). The only other habeas petition that Petitioner filed in state court was a petition alleging ineffective assistance of appellate counsel for failing to argue that the trial court failed to conduct a “formal and proper” competency hearing. (Doc. 12-100). None of those petitions properly exhausted the issue of trial court/jurisdictional error and related ineffective assistance of trial counsel claim asserted in the last ground of Petitioner's § 2254 petition.
Petitioner does not allege cause for his procedural default. And he has not alleged he is entitled to federal review of his defaulted claims through any other recognized exception. Petitioner, therefore, is not entitled to federal habeas review of the last claim asserted in his § 2254 petition.
V. Conclusion
For the reasons above, Petitioner's § 2254 petition should be denied.
VI. Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant,” and if a certificate is issued “the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must still be filed, even if the Court issues a certificate of appealability. 28 U.S.C. § 2254 Rule 11(b).
“Section 2253(c) permits the issuance of a COA only where a petitioner has made a ‘substantial showing of the denial of a constitutional right.'” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting § 2253(c)(2)). “At the COA stage, the only question is whether the applicant has shown that ‘jurists of reason could disagree with the district court's resolution of his [or her] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.'” Buck v. Davis, 580 U.S. 100, 115 (2017) (citing Miller-El, 537 U.S. at 327). The petitioner here cannot make that showing. Therefore, the undersigned recommends that the district court deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: “Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue.” Thus, if there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation.
Accordingly, it is respectfully RECOMMENDED that:
1. The petition for writ of habeas corpus (Doc. 1) be DENIED.
2. A certificate of appealability be DENIED.
At Pensacola, Florida, this 7th day of November 2024.
Notice to the Parties
Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the Report and Recommendation. Any different deadline that may appear on the electronic docket is for the Court's internal use only and does not control. An objecting party must serve a copy of the objections on all other parties. A party who fails to object to the magistrate judge's findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.