Opinion
Case No. 8:10-cv-1224-T-33 AEP.
February 18, 2011
ORDER
This cause is before the Court on pro se Petitioner James Beckwith's timely-filed 28 U.S.C. § 2254 petition for writ of habeas corpus. Beckwith challenges his conviction and sentence entered by the Circuit Court for the Thirteenth Judicial Circuit, Hillsborough County, Florida. A review of the record demonstrates that, for the following reasons, the petition must be denied.
PROCEDURAL HISTORY
On January 16, 2004, Beckwith was convicted of the felony offenses of possession of a short-barreled shotgun and aggravated assault on a law enforcement officer, and three misdemeanor offenses. (Ex. A, p. 108). He was sentenced to fifteen years incarceration. (Ex. A, pp. 112-115).Direct Appeal
Beckwith pursued a direct appeal and his attorney, Jean Marie Henne, filed an initial brief raising two issues: 1) whether the trial court erred in denying a motion for judgment of acquittal, and 2) whether the trial court abused its discretion in admitting certain evidence. (Ex. B). The State filed an answer brief. (Ex. C). The state district court of appeal affirmed Beckwith's convictions and sentences on June 24, 2005. (Ex. D). Beckwith v. State, 907 So. 2d 522 (Fla. 2d DCA 2005) [table]. The mandate issued July 26, 2005. (Ex. E).
Collateral Proceedings
On or about January 24, 2006, Beckwith filed a Rule 3.850 motion for postconviction relief raising five claims of ineffective assistance of counsel. (Ex. A, pp. 16-44). On March 21, 2007, the state trial court ordered the State to respond to grounds one and two(a), reserved ruling on ground five, and summarily denied all other grounds. (Ex. A, pp. 303-554). (See Exhibit One to this Order.) On April 18, 2007, the State filed a response. (Ex. A, pp. 45-92). On May 31, 2007, the state trial court entered an order granting an evidentiary hearing on ground one, denying ground two(a), and reserving ruling on ground five. (Ex. A, pp. 93-222).
An evidentiary hearing was held on September 11, 2007. (Ex. A, pp. 256-283). On October 31, 2007, the circuit court entered a final order denying Beckwith's Rule 3.850 motion. (Ex. A, pp. 226-255). (See Exhibit 2 to this Order). Beckwith appealed and filed an initial brief. (Ex. F). The State filed an answer brief. (Ex. G). On September 4, 2009, the state district court of appeal affirmed the denial of Beckwith's postconviction motion. (Ex. H). Beckwith v. State, 17 So. 3d 294 (Fla. 2d DCA 2009) [table]. The mandate issued September 29, 2009. (Ex. I).
THE PRESENT PETITION
Beckwith signed the present federal petition, which raises the same five grounds for relief that he raised in his Rule 3.850 motion for postconviction relief, on May 21, 2010. The petition is timely.
STANDARD OF REVIEW UNDER 28 U.S.C. § 2254(d)
Pursuant to 28 U.S.C. § 2254(d), Beckwith is not entitled to habeas relief unless he can establish that a habeas claim adjudicated by the state courts "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established" Supreme Court precedent, or "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.S 2254(d)(1), (2).
Under the "contrary to" clause, a federal habeas court may not grant the writ unless the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, the federal court should not grant the writ unless the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 529 U.S. 362, 412 (2000).
DISCUSSION Ground One
Beckwith asserts that trial counsel was ineffective for failing to inform Beckwith of a plea offer made by the State. This claim was raised as ground one in Beckwith's state postconviction motion, and as issue one on appeal from the denial of the motion, and is therefore exhausted for federal habeas corpus purposes. The claim is without merit.
This claim was rejected on the merits by the state court after an evidentiary hearing, and Beckwith has shown no violation of any clearly established federal law. The clearly established federal law which applies to a claim of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984).
According to Strickland, in order to prevail on a claim of ineffective assistance, a petitioner must prove that: (1) his counsel's performance was deficient; and (2) he sustained prejudice as a result. Beckwith has shown no deficient performance and is entitled to no relief. At the state court evidentiary hearing, Beckwith's trial counsel testified that she did not recall the prosecutor making any plea offers other than life. She also testified that if the prosecutor had made an offer, she would have conveyed it to Beckwith. (Ex. A, pp. 247-250). The state trial court found counsel's testimony to be credible. The second district court of appeal affirmed the trial court's denial of relief on this claim.
Counsel's testimony refuted Beckwith's claim of deficient performance and Beckwith has not shown that the state court ruling violated any clearly established federal law. Ground one does not warrant habeas corpus relief.
Ground Two
Beckwith asserts that trial counsel was ineffective for failing to call Altamese Simmons as a witness at trial and failing to investigate other potential witnesses. This claim was raised as ground two in Beckwith's state postconviction motion, and as issue two on appeal from the denial of the motion, and is therefore exhausted for federal habeas corpus purposes. However, the claim is without merit because Beckwith has failed to show either deficient performance or prejudice.Failure To Call Altamese Simmons
Beckwith alleged that Ms. Simmons was an eyewitness, that she had stated that Beckwith was shot while he was facing the door, not facing Officer Baxter, and that she had stated in her deposition that Beckwith did not confront the officer. (Ex. A, p. 27). Beckwith asserted that Ms. Simmons' testimony was contrary to the officers' accounts. (Ex. A, p. 28). In her taped police interview, Ms. Simmons stated that Beckwith ran toward an apartment, Officer Baxter said something, and then there was gunfire. (Ex. A, p. 53). When asked whether Beckwith ever turned toward the officer, Ms. Simmons responded, "I was . . he's sitting on the porch . . yes." (Ex. A, p. 55). She then agreed that the officer might have believed that she (the officer) was in danger because Beckwith still had the weapon in his hand. (Ex. A, p. 56).
In her deposition, Ms. Simmons stated that after Beckwith ran by her, she heard Officer Baxter say something and she thought she said it more than once. She then heard gunshots and saw Beckwith "go down in a sitting position." At that point, he was facing the officer and the gun was still in his arms. (Ex. A, pp. 77-78, 83). When asked whether she saw Beckwith turn towards the officer, she responded, "I can't say I actually saw him turn towards her, uh-uh (indicating negatively), I can't." (Ex. A, p. 82). She also said that she never saw Beckwith confronting or facing the officer before she saw him sitting down. (Ex. A, p. 84). She did not say that he did not confront the officer.
In denying relief on this claim, the state trial court found that Ms. Simmons' testimony would have benefitted the State, not Beckwith, and that Beckwith had therefore failed to show any prejudice. (Ex. A, pp. 102-103).
The transcripts of Ms. Simmons' statement and deposition show that she did not say that Beckwith never confronted the officer, only that she did not see him confront the officer. Moreover, as the state trial court found, her testimony would have been beneficial to the State, not Beckwith. Beckwith failed to demonstrate either deficient performance or prejudice, and the state court properly denied relief on this claim.
Failing To Investigate Other Witnesses
Beckwith asserts that counsel was ineffective for failing to investigate other potential witnesses. He does not identify any particular witness in his habeas petition. However, in his state postconviction motion, he alleged that counsel was ineffective for failing to investigate or interview Michelle Randolph. Beckwith asserted that Ms. Randolph's testimony could have supported the theory of defense that Beckwith did not commit an aggravated assault.
In her taped interview, Ms. Simmons stated that her niece, Michelle Randolph, lives on the same street and had called her (Ms. Simmons) earlier to tell her that a man had shot out his wife's car windows and to be careful. (Ex. A, pp. 63-66). She also stated that Michelle came running down to her house after the shooting. (Ex. A, p. 67).
In her deposition, when asked whether she saw anyone else around when she heard the shots, Ms. Simmons responded, "No, I don't recall seeing anybody else around. . . ." (Ex. A, p. 83). In denying this claim, the state trial court stated that "Ms. Simmons did not provide the names of additional witnesses during her deposition as she stated that she did not recall seeing anybody else around when she heard the shots" and that "Ms. Simmons did not provide the names of any additional witnesses who could be considered eyewitnesses to the incident." (Ex. A, pp. 102-103). The state trial court was correct. There is no indication in the record that Michelle Randolph was present at the time of the shooting and Ms. Simmons did not provide the names of any other witnesses. Beckwith failed to show either deficient performance by counsel or prejudice and the state courts properly denied relief on this claim.
Beckwith also claims that trial counsel was ineffective for failing to impeach key witnesses. He does not identify the witnesses in his petition. However, in the state courts, he claimed that counsel was ineffective for failing to impeach two law enforcement officers. The state courts properly denied relief on this claim. Beckwith, in his postconviction motion and in his postconviction appellate brief, pointed to inconsistencies between the officers' testimony, but did not indicate what counsel should have done to impeach either officer that he did not do. The inconsistencies were contained in the trial testimony and were therefore before the jury and, as the state circuit court noted, counsel referenced inconsistencies in the officers' testimony during closing argument. Beckwith has not alleged any specific action that counsel should have taken that he did not take and has shown neither deficient performance on the part of counsel nor prejudice.
Ground two does not warrant habeas corpus relief.
Ground Three
Beckwith asserts that trial counsel was ineffective for failing to investigate and present an temporary insanity defense. This claim was raised as ground three in Beckwith's state postconviction motion, and as issue two(b) on appeal from the denial of the motion, and is therefore exhausted for federal habeas corpus purposes. The claim is without merit.
The state circuit court summarily denied this claim and attached portions of the record to support its denial. (Ex. A, pp. 481-482, 387). Those portions of the record show that Beckwith had been evaluated by two doctors, Dr. Pandya and Dr. Merin, and that neither doctor indicated that there was any possibility that Beckwith was insane at the time of the offense. Based on the doctors' reports, it was not unreasonable for counsel not to further investigate the issue, and Beckwith has shown no deficient performance on the part of counsel.
Ground three does not warrant habeas corpus relief.
Ground Four
Beckwith asserts that trial counsel was ineffective for failing to set out adequate grounds in support of a motion for judgment of acquittal. Beckwith asserts that counsel should have argued that Beckwith did not intentionally or unlawfully threaten Officer Baxter by word or act. Beckwith further asserts that there were inconsistencies in the evidence. This claim was raised as ground four in Beckwith's state postconviction motion, and as issue two(c) on appeal from the denial of the motion, and is therefore exhausted for federal habeas corpus purposes. The claim is without merit because Beckwith has failed to show prejudice.
Officer Baxter's testimony was legally sufficient to support Beckwith's conviction for aggravated assault on a law enforcement officer and Beckwith does not argue otherwise. Because the evidence was legally sufficient, Beckwith cannot show a reasonable probability that a motion for judgment of acquittal would have been granted had counsel made the arguments suggested by Beckwith. Thus, he can show no prejudice and the state courts properly denied relief on this claim.
Ground four does not warrant habeas corpus relief.
Ground Five
Beckwith asserts that trial counsel was ineffective based on cumulative error. However, because Beckwith failed to demonstrate both deficient performance and prejudice with respect to any of his claims of ineffective assistance, this claim is without merit.
Ground five does not warrant habeas corpus relief.
Beckwith's Reply
Beckwith argues that the record is insufficient to determine the merits of his petition because the record on direct appeal is not available. However, because Beckwith's claims were raised and ruled on in the state postconviction proceedings, the documents related to those proceedings, with supporting attachments, are sufficient for a determination of Beckwith's claims.
Accordingly, the Court orders:
That Beckwith's petition is denied. The Clerk is directed to enter judgment against Beckwith and to close this case.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
The Court declines to issue a certificate of appealability pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts because Petitioner has failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2).
Because Petitioner is not entitled to a certificate of appealability, Petitioner is not entitled to appeal in forma pauperis. Petitioner is assessed the $455.00 appellate filing fee and must pay this filing fee unless the Eleventh Circuit determines that he may proceed on appeal in forma pauperis.
ORDERED at Tampa, Florida, on February 18, 2011.
DIVISION: C ORDER TO RESPOND, IN PART, DENYING, IN PART, AND RESERVING RULING, IN PART, ON MOTION FOR POST-CONVICTION RELIEF ORDER TO RESPOND TO MOTION TO CORRECT ILLEGAL SENTENCETHIS MATTER is before the Court on Defendant's Motion for Post-Conviction Relief, filed on January 24, 2006, and Defendant's Motion to Correct Illegal Sentence Credit for Jail Time Served, filed on December 27, 2006. After reviewing Defendant's Motions, the court file, and the record, the Court finds as follows:
On July 31, 2003, a jury found Defendant guilty of Possession of Short-Barreled Shotgun (count one), Aggravated Assault on a Law Enforcement Officer (count two), Battery (Domestic Violence) (count three), Trespass in Unoccupied Structure of Conveyance (count four), and Battery (Touch or Strike) (count five). On January 16, 2004, the Court sentenced Defendant to fifteen (15) years' Florida State Prison on counts one and two, to run concurrent, with 946 days' credit for time served. The Court sentenced Defendant to credit for time served on counts three, four, and five. ( See Judgment and Sentence, attached).
In his Motion for Post-Conviction Relief, Defendant raises the following five grounds for relief:
1. Ineffective assistance of counsel for failure to safeguard or convey a plea offer that would have reduced Defendant's sentence.
2. (a) Ineffective assistance of counsel for failure to call Altamese G. Simmons as a witness.
(b) Ineffective assistance of counsel for failure to impeach Officer Terry Goff.
(c) Ineffective assistance of counsel for failure to impeach Office Josephine Baxter.
3. Ineffective assistance of counsel for failure to present a defense of temporary insanity.
4. (a) Ineffective assistance of counsel for failure to set forth grounds in support of the judgment of acquittal to the charge of Aggravated Assault on a Law Enforcement Officer.
(b) Ineffective assistance of counsel for failure to renew the Motion for Judgment of Acquittal at the close of all the evidence.
5. Ineffective assistance of counsel due to cumulative error.
In all grounds raised, Defendant alleges ineffective assistance of counsel. When ineffective assistance is alleged, the burden is on the person seeking collateral relief to allege the grounds for relief specifically, and to establish whether the grounds resulted in prejudice. Effective assistance of counsel does not mean that a defendant must be afforded errorless counsel or that future developments in law must be anticipated. See Meeks v. State, 382 So. 2d 673 (Fla. 1980). In Strickland v. Washington, the U.S. Supreme Court provided the following standard for determining ineffective assistance of counsel:
The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. 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 the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable . . . [T]he proper standard for attorney performance is of reasonably effective assistance.Strickland v. Washington, 466 U.S. 668, 686-687 (1984).
In Downs v. State, the Florida Supreme Court stated that a defendant must prove prejudice affirmatively. See Downs v. State, 453 So. 2d 1102 (Fla. 1984). The test for prejudice is:
[T]hat there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Strickland, 466 U.S. at 694.
However, even if a defendant's allegations are sufficient to state a claim for relief, a motion may be summarily denied, without an evidentiary hearing, if the record conclusively refutes the allegations and demonstrates that the defendant is not entitled to relief. See Anderson v. State, 627 So. 2d 1170 (Fla. 1993). An evidentiary hearing will be required unless the motion is facially insufficient or the record demonstrates that the defendant is not entitled to relief. See id.
In ground one of his Motion, Defendant alleges ineffective assistance of counsel for failure to safeguard or convey a plea offer that would have reduced Defendant's sentence. Specifically, Defendant contends the State offered him a plea offer of forty-eight (48) months, which counsel never relayed to him. Defendant claims he found out about the offer two weeks later, after talking to family friend Lydia Anderson and his son James Beckwith, both of whom inquired to counsel about the status of Defendant's case. Defendant asserts that upon confronting counsel at a pre-trial hearing about the offer, counsel responded, "Oh, I'm glad I didn't tell you about that plea offer, because the State Attorney took it back." Defendant argues he would have accepted the State's offer rather than proceed to trial and maintains counsel prejudiced him in violation of Fla. Rule Crim. P. 3.171(c)(2) by failing to advise him of the offer. The Court finds that, from the record, it cannot conclusively refute this allegation. As such, the Court orders the State to respond to ground one of Defendant's Motion.
In ground two (a) of his Motion, Defendant alleges ineffective assistance of counsel for failure to call Altamese G. Simmons as a witness. Specifically, Defendant maintains that at her deposition, Simmons stated Defendant did not confront Officer Baxter; further, she claimed Defendant had the gun in his lap area when he was shot by police. Defendant maintains counsel's failure to call Simmons at trial prejudiced him, because her statements contradicted Officer Baxter's and Officer Goff's statements that he committed aggravated assault. Defendant also contends Simmons provided the names of additional witnesses that counsel failed to contact and interview. In claims of ineffective assistance of counsel for failure to call a witness, facially sufficient post-conviction motions "must set forth four requirements: (1) the identity of the prospective witness; (2) the substance of the prospective witness's testimony; (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial; and (4) an assertion that the witness was available to testify." Barthel v. State, 882 So. 2d 1054, 1055 (Fla. 2d DCA 2004) ( citing Nelson v. State, 875 So. 2d 579, 582-83 (Fla. 2004)). Further, an ineffective assistance of counsel claim is insufficient if the defendant does not indicate what favorable information counsel could have elicited from the witness. See Reaves v. State, 826 So. 2d 932, 940 (Fla. 2002). Upon review of the record, the Court cannot conclusively determine why counsel did not call Simmons as a witness, and finds Defendant's allegations facially sufficient under Barthel and Reaves. Therefore, the Court orders the State to respond to ground two (a) of Defendant's Motion.
In ground two (b) of his Motion, Defendant alleges ineffective assistance of counsel for failure to impeach Officer Terry Goff. Specifically, Defendant maintains Goff testified to Baxter taking evasive steps to avoid Defendant, while Baxter testified she was running towards Defendant. Defendant argues Goff stated Baxter did not discharge her firearm until Defendant faced Baxter, while Baxter stated she started firing upon approaching the door. Defendant also contends other statements "were either false of severely exaggerated." Defendant asserts counsers failure to properly impeach Goff prejudiced him, because it prevented the exploration of possible biases against Defendant and in favor of Baxter.
The Court notes Florida Statute § 90.608(5), "provides that any party may attack the credibility of a witness by contradictory testimony given by another witness as long as the facts testified to are not collateral to the issue." Griffin v. State, 827 So. 2d 1098, 1099 (Fla. 1st DCA 2002); see also Lawson v. State, 651 So. 2d 713, 715 (Fla. 2d DCA 1995). However, evidence is collateral and inadmissible when it is nether (1) relevant to prove an independent fact or issue, nor (2) would discredit a witness by establishing bias, corruption, of lack of competency. See id. Further, if a cross-examination concerns a collateral or irrelevant matter, the cross-examiner must accept the witness's answer and may not subsequently impeach the witness by introducing extrinsic evidence. See Daeda v. State, 841 So. 2d 632, 635 (Fla. 2d DCA 2003) ( citing Caruso v. State, 645 So. 2d 389, 394 (Fla. 1994)). Upon review of the record, the Court finds Defendant's assertion that Goff harbored possible biases is unsupported. "Mere speculation regarding possible error is not enough to satisfy Strickland." Bruno v. State, 807 So. 2d 55, 67 (Fla. 2001). Further, the Court notes both counsel and the State addressed the results of an independent police investigation into Baxter's conduct, which found she acted with justifiable force to shoot Defendant under the circumstances. ( See Transcript, July 30, 2003, Volume V, pp. 652-653, attached). The Court finds Defendant fails to demonstrate that any inconsistencies in Goff's testimony were material, and as such, could not be subsequently impeached by introducing extrinsic evidence because the matters were collateral.
Defendant also maintains, "several other statements made my Goff during the trial were simply not true." However, the Court cannot determine if Goff's other statements were collateral or independent, as Defendant states only that Goff's testimony was "either false or severely exaggerated." Therefore, the Court finds this portion of Defendant's claim to be conclusory and unsupported. "Where allegations of ineffective assistance of counsel are too general and made without reference to the underlying facts of the case, the motion is facially insufficient and properly'denied." Wright v. State, 646 So. 2d 811, 813 (Fla. 1st DCA 1994); see also Oramas v. State, 615 So. 2d 853 (Fla. 2d DCA 1993). Further, the Court notes counsel repeatedly referenced inconsistencies in the officers' testimonies during closing argument. ( See Transcript, Volume VI, pp. 829-831, attached). Therefore, the Court finds Defendant failed to support his allegation of deficient performance by counsel under Strickland. As such, the Court finds Defendant warrants no relief on ground two (b) of his Motion.
In ground two (c) of his Motion, Defendant alleges ineffective assistance of counsel for failure to impeach Officer Josephine Baxter. Specifically, Defendant asserts (1) Baxter's testimony did not match the injuries he sustained in the shooting; and (2) Baxter's testimony that she had no cover to protect or shield herself was untrue because several vehicles were parked in front of the house. The Court finds the first sub-claim attacks the sufficiency of evidence to convict and is not cognizable in a motion for post-conviction relief. See Montana v. State, 597 So. 2d 334 (Fla. 1992). Further, Defendant fails to assert what counsel should have impeached in Baxter's testimony. Therefore, the Court finds Defendant's allegation is too general and facially insufficient. Wright, 646 So. 2d at 813; see also Oramas v. State, 615 So. 2d at 853. The Court finds Defendant's second sub-claim is collateral because it is irrelevant to proving an independent fact or issue; thus, her testimony could not be impeached by introducing extrinsic evidence. Finally, the Court notes counsel repeatedly referenced inconsistencies in the officers' testimonies during closing argument. ( See Transcript, Volume VI, pp. 829-831, attached). Therefore, the Court finds Defendant failed to support his allegation of deficient performance by counsel under Strickland. As such, the Court finds Defendant warrants no relief on ground two (c) of his Motion.
In ground three of his Motion, Defendant alleges ineffective assistance of counsel for failure to present a defense of temporary insanity. Specifically, Defendant asserts counsel's failure to demonstrate a causal link of temporary insanity between his long term mental health problems and irrational actions at the time of the incident resulted in deficient performance and prejudice. Upon review of the record, the Court notes a psychological report by Dr. Kirti J. Pandya, who found Defendant's sanity to be intact at the time of the offense. ( See Letter from Dr. Kirti J. Pandya, p. 7, attached). A second psychological report by Dr. Sidney J. Merin found Defendant did not exhibit any "significant or compelling suggestions of any brain trauma of psychotic behavior." ( See Letter from Dr. Sidney J. Merin, p. 5, attached). Rather, Dr. Merin argued Defendant was, "choosing, voluntarily, to behave in a manner suggesting he is not competent," and was, "very likely dissimulating and is choosing not to be candid in his awareness of the fact that he is being charged with a number of offenses." ( See Letter from Dr. Sidney J. Merin, pp. 4-5, attached). The record offers no reports of any conflicting viewpoints of Defendant's sanity at the time of the offense, as Defendant alleges; further, Defendant fails to substantiate his claim by attaching such reports. As Defendant was found to not have been insane at the time of the incident, Defendant fails to demonstrate how counsel was deficient for failing to present a temporary insanity defense. Therefore, the Court finds Defendant warrants no relief on ground three of his Motion.
The Court notes later psychological reports relate to Defendant's competency at trial, not his competency at the time of the offense.
In ground four (a) of his Motion, Defendant alleges ineffective assistance of counsel for failure to set forth grounds in support of his Motion for Judgment of Acquittal to the charge of Aggravated Assault on a Law Enforcement Officer. Specifically, Defendant maintains the Court's denial of his Motion for Judgment of Acquittal stemmed from counsel's ineffectiveness to argue or set forth factual inconsistencies related to the victim's perception of the events. Defendant contends the Court would have dismissed the charge, but for counsel's deficient performance. However, the Court notes Defendant appealed the Court's ruling, arguing it erred by denying his Motion because the State failed to demonstrate the factors of immanency and intent. ( See Brief of Appellee, Argument Point I, pp. 10-18; see also Defendant's Judicial Acts to be Reviewed, attached). The Second District Court of Appeal subsequently affirmed the decision of this Court. See Beckwith v. State, 907 So. 2d 522 (Fla. 2d DCA 2005). A defendant's post-conviction claims are procedurally barred if the allegation was directly raised on appeal. See Asay v. State, 769 So. 2d 974, 989 (Fla. 2000). The Court finds Defendant's claim of ineffective assistance of counsel "is an attempt to relitigate procedurally barred claims by couching them in terms of ineffective assistance of counsel." Id. As such, the Court finds Defendant's claim to be without merit. Therefore, the Court finds Defendant warrants no relief on ground four (a) of his Motion.
In ground four (b) of his Motion, Defendant alleges ineffective assistance of counsel for failure to renew the Motion for Judgment of Acquittal at the close of all the evidence. However, the Court notes counsel renewed Defendant's Motions twice after all of the evidence was presented:
THE COURT: I'll let you rest in front of the jury. You're renewing all previously made motions both for mistrials, directed verdict and all objections during any portion of the trial; is that correct? MR. LEUKAL: Yes, Your Honor. THE COURT: I*m still reserving ruling on my previous reservation and all other rulings are reaffirmed. * * * * * *(A bench conference was held, as follows:)
MS. PERLIN: I'll be raising all objections and motions previously raised and we preserve the record. THE COURT: Same previous rulings. ( See Transcript, July 31, 2003, Volume VI, pp. 791, 841, attached).Further, counsel filed a Motion for Judgment of Acquittal after the jury found Defendant guilty, which the Court later denied. ( See Defendant's Motion for Judgment of Acquittal or in the Alternative Motion for New Trial, attached). As such, the Court finds Defendant fails to establish deficient performance by counsel under Strickland. Therefore, the Court finds Defendant warrants no relief on ground four (b) of his Motion.
In ground five of his Motion, Defendant claims ineffective assistance of counsel due to cumulative errors. Because the Court cannot conclusively refute all of Defendant's allegations and has ordered the State to respond, the Court reserves ruling on ground five.
In his Motion to Correct Illegal Sentence Credit for Jail Time Served, Defendant alleges the Court failed to calculate eighty-three (83) days into his sentence for time spent committed in a state hospital. The Court notes it previously denied Defendant's claim in a previous Motion, and the Second District Court of Appeal affirmed the decision of this Court. See Beckwith v. State, 926 So. 2d 1279 (Fla. 2d DCA 2006). However, in his current Motion, Defendant attaches an excerpt from his sentencing hearing, in which the Court grants him credit for time served in the state hospital. Further, the Court notes that jail-time credit must be awarded for a defendant's pre-conviction detention in a state mental hospital. See Tal-Mason v. State, 515 So. 2d 738 (Fla. 1987). Therefore, the Court orders the State to respond to Defendant's Motion to Correct Illegal Sentence.
( See Order Denying Motion to Allow Credit for Jail Time Served, attached).
It is ORDERED AND ADJUDGED that the Office of the State Attorney SHALL RESPOND to grounds one, and two (a) of Defendant's Motion for Post-Conviction Relief within thirty (30) days from the date of this Order.
It is FURTHER ORDERED that grounds two (b), two (c), three, four (a), and four (b) of Defendant's Motion for Post-Conviction Relief are hereby DENIED.
It is FURTHER ORDERED that the Court RESERVES RULING on ground five.
It is FURTHER ORDERED that the Office of the State Attorney SHALL RESPOND to Defendant's Motion to Correct Illegal Sentence within thirty (30) days from the date of this Order.
Defendant may not appeal until such time as this Court has entered a final Order.
DONE AND ORDERED in Chambers in Hillsborough County, Florida, this ___ day of March, 2007.
Attachments:
— Motion for Post-Conviction Relief
— Motion to Correct Illegal Sentence Credit for Jail Time Served
— Judgment and Sentence
— Transcript, July 30, 2003, Volume V (portions attached).
— Letter from Dr. Kirti J. Pandya
— Letter from Dr. Sidney J. Merin
— Brief of Appellee
— Defendant's Judicial Acts to be Reviewed
— Transcript, July 31, 2003, Volume VI (portions attached)
— Defendant's Motion for Judgment of Acquittal or in the Alternative Motion for New Trial
— Order Denying Motion to Allow Credit for Jail Time Served
FINAL ORDER DENYING MOTION FOR POST-CONVICTION RELIEF
THIS MATTER is before the Court on Defendant's pro se Motion for Post-Conviction Relief, filed on January 24, 2006, pursuant to Florida Rule of Criminal Procedure 3.850. On September 11, 2007, the Court held an evidentiary hearing on ground one of that Motion. After reviewing Defendant's Motion, the hearing transcript, the court file, and the record, the Court finds as follows:
In ground one, Defendant alleges ineffective assistance of counsel due to counsel's failure to safeguard or convey a plea offer that would have reduced Defendant's sentence. Specifically, Defendant contends the State offered him a plea offer of forty-eight (48) months, which counsel never relayed to him. Defendant claims he found out about the offer two weeks later, after talking to family friend Lydia Anderson and his son James Beckwith, both of whom inquired of counsel about the status of Defendant's case. Defendant asserts that upon confronting counsel at a pre-trial hearing about the offer, counsel responded, "Oh, I'm glad I didn't tell you about that plea offer, because the State Attorney took it back." Defendant argues he would have accepted the State's offer rather than proceed to trial and maintains counsel prejudiced him in violation of Florida Rule of Criminal Procedure 3.171(c)(2) by failing to advise him of the offer.
At the evidentiary hearing, counsel testified that the State did not extend any plea offers. Specifically, counsel explained that the Assistant State Attorney prosecuting Defendant's case was determined to go to trial as the case had received extensive media coverage. Moreover, counsel testified that, had the State made an offer, she would have conveyed it to both Defendant and Lydia Anderson. ( See Transcript, September 11, 2007, pp. 20 — 23, attached). The Court finds counsel's testimony credible and that it refutes Defendant's allegation. As such, Defendant is not entitled to relief on ground one.
In ground five, Defendant claims ineffective assistance of counsel due to counsel's cumulative errors. However, as this Court has found that Defendant warrants no relief on his allegations of individual error, so too must his allegation of cumulative error fail. See Bryan v. State, 748 So. 2d 1003, 1008 (Fla. 1999); see also Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003). As such, Defendant is not entitled to relief on ground five.
It is therefore ORDERED AND ADJUDGED that grounds one and five of Defendant's Motion for Post-Conviction Relief are hereby DENIED.
Defendant has thirty (30) days from the date of this Order within which to file an appeal.
DONE AND ORDERED in Chambers in Hillsborough County, Florida, this 30th day of October, 2007.
Attachments:
Transcript, September 11, 2007