Opinion
8:19-cv-2212-MSS-CPT
07-22-2022
BRIAN CUFFIE, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
ORDER
Cuffie petitions for a writ of habeas corpus under 28 U.S.C. § 2254 and challenges his state court convictions for trafficking in cocaine, sale or delivery of cocaine, and possession of cocaine. (Docs. 1, 9-2 at 357-58, 11, and 22) The Respondent responds and submits the relevant state court record (Doc. 9), and Cuffie replies (Doc. 26) and submits memoranda in support of his petition. (Docs. 22, 37, and 38) After reviewing the pleadings and the state court record, the Court DENIES the petition.
PROCEDURAL HISTORY
A jury found Cuffie guilty of one count of cocaine trafficking, three counts of cocaine sale or delivery, and three counts of cocaine possession. (Doc. 9-2 at 357) The trial court sentenced Cuffie as a habitual felony offender to four concurrent twenty-five-year prison sentences for the trafficking and sale or delivery convictions and three concurrent five-year prison sentences for the possession convictions. (Doc. 9-2 at 359-66) Cuffie appealed, appellate counsel filed a brief to comply with Anders v. California, 386 U.S. 738 (1967) (Doc. 9-2 at 461-84), and the state appellate court affirmed. (Doc. 9-2 at 500)
Cuffie engaged in extensive state post-conviction litigation, the post-conviction court denied relief, and the state appellate court affirmed. Cuffie's federal petition follows.
FACTS
On September 10, 2014, a confidential informant arranged for an undercover detective to purchase crack cocaine from Cuffie. (Doc. 9-2 at 191) The informant gave the detective Cuffie's telephone number, and the detective obtained Cuffie's photograph from a motor vehicle database. (Doc. 9-2 at 192-93) The informant arranged for the detective to purchase the drugs at a house in Saint Petersburg, Florida. (Doc. 9-2 at 195)
The detective and the informant drove to the house. (Doc. 9-2 at 195-96) Cuffie arrived in a car, and the detective approached Cuffie. (Doc. 9-2 at 197) Cuffie reached into the center console for a box that contained several pieces of crack cocaine. (Doc. 9-2 at 197-98) Cuffie gave the crack cocaine to the detective, and the detective gave Cuffie one hundred dollars. (Doc. 9-2 at 198) The detective clearly observed Cuffie's face and observed a tattoo of the word, “Respect,” on one of Cuffie's forearm and another tattoo of a key or a heart on the other forearm. (Doc. 9-2 at 198, 200-01) During trial, the prosecutor asked the trial judge to direct Cuffie to roll up his sleeves and show the jury his forearms. (Doc. 9-2 at 287) The detective audio recorded the drug sale.
The next day, the confidential informant arranged a second sale. (Doc. 9-2 at 208-09) The detective and the informant drove to the same house. (Doc. 9-2 at 209-10) Cuffie arrived in the same car, exited his car, and entered the detective's car. (Doc. 9-2 at 210-11) Cuffie gave the detective several pieces of crack cocaine, and the detective gave Cuffie one hundred dollars. (Doc. 9-2 at 211-13) The detective told Cuffie that he would like to purchase powder cocaine in the future. (Doc. 9-2 at 213) The detective audio recorded the second drug sale.
Five days later, the confidential informant arranged a third sale. (Doc. 9-2 at 218-19) The detective, the informant, and Cuffie met in a parking garage. (Doc. 9-2 at 219-20) Cuffie arrived in the same car, parked next to the detective's car, and entered the detective's car. (Doc. 9-2 at 220-21) The detective gave Cuffie seven hundred dollars, and Cuffie gave the detective powder cocaine. (Doc. 9-2 at 221) The detective audio recorded the third drug sale.
About a month later, the detective arranged a fourth sale. (Doc. 9-2 at 226) The detective called Cuffie on the telephone. (Doc. 9-2 at 226-27) The detective and Cuffie met at a gas station. (Doc. 9-2 at 228) Cuffie arrived in a different car with a temporary license tag. (Doc. 9-2 at 229) Motor vehicle records showed that the temporary tag belonged to Cuffie. (Doc. 9-2 at 230-31) The detective followed Cuffie to a parking lot next to a bar. (Doc. 9-2 at 231-33) The detective parked his car next to Cuffie's car, and Cuffie entered the detective's car. (Doc. 9-3 at 233) Cuffie told the detective that he did not have the cocaine but promised that another male would bring the cocaine. (Doc. 9-2 at 233-34)
A short time later, Cuffie called the detective and wanted to confirm that the detective had enough money. (Doc. 9-2 at 234-35) Cuffie and the detective met, and the detective showed Cuffie two thousand dollars in cash. (Doc. 9-2 at 235) Cuffie called the detective, and the detective and Cuffie met in the parking lot of a restaurant. (Doc. 9-2 at 235) Cuffie threw the cocaine on the floorboard of the detective's car, and the detective gave the money to Cuffie. (Doc. 9-2 at 235-36) The detective audio recorded the fourth drug sale.
After each sale, the detective secured the cocaine in an evidence locker. (Doc. 9-2 at 206-07, 217, 225-26, 258) At trial, the prosecution introduced into evidence the cocaine that Cuffie sold to the detective and played all audio recordings of the drug sales for the jury. (Doc. 9-2 at 199-205, 212-17, 221-25, 236-58) A chemist analyzed the substances that Cuffie sold to the detective and testified that the substances contained cocaine. (Doc. 9-2 at 279-80) The powder cocaine from the fourth drug sale weighed 41.91 grams (Doc. 9-2 at 280), more than the 28 grams required under Florida's cocaine trafficking statute. § 893.135(1)(b)(1)(a), Fla. Stat. Several months after the drug sales, police arrested Cuffie. (Doc. 9-2 at 259-60) At trial, Cuffie argued that he was not the male who had sold the detective the cocaine. (Doc. 9-2 at 307-12)
STANDARDS OF REVIEW
AEDPA
Because Cuffie filed his federal petition after the enactment of the Antiterrorism and Effective Death Penalty Act, AEDPA governs his claims. Lindh v. Murphy, 521 U.S. 320, 327 (1997). AEDPA amended 28 U.S.C. § 2254(d) to require:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by [the U.S. Supreme Court] on a question of law or if the state court decides a case differently than [the U.S. Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision involves an unreasonable application of clearly established federal law “if the state court identifies the correct governing legal principle from [the U.S. Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. Clearly established federal law refers to the holding of an opinion by the U.S. Supreme Court at the time of the relevant state court decision. Williams, 529 U.S. at 412.
“[AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). A federal petitioner must show that the state court's ruling was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Ineffective Assistance of Counsel
Cuffie asserts ineffective assistance of counsel - a difficult claim to sustain. Strickland v. Washington, 466 U.S. 668, 687 (1984) explains:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
“There is no reason for a court . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Strickland, 466 U.S. at 690.
“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691. To demonstrate prejudice, the defendant must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690. A defendant cannot meet his burden by showing that the avenue chosen by counsel was unsuccessful. White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Because the standards under Strickland and AEDPA are both highly deferential, “when the two apply in tandem, review is ‘doubly' so.” Richter, 562 U.S. at 105. “Given the double deference due, it is a ‘rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding.'” Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303 (11th Cir. 2019) (citation omitted).
The state appellate court affirmed in a decision without a written opinion the postconviction court's order denying Cuffie relief. (Doc. 9-4 at 21) A federal court “‘look[s] through' the unexplained decision to the last related state-court decision that does provide a relevant rationale [and] presume[s] that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
Because the post-conviction court recognized that Strickland governed the claims (Doc. 9-3 at 2-18), Cuffie cannot meet the “contrary to” test in Section 2254(d). Cuffie instead must show that the state court either unreasonably applied Strickland or unreasonably determined a fact.
ANALYSIS
Ground One
Cuffie titles this ground, “Due Process Violation; Fundamental Error, Inadmissible Evidence (No Jurisdiction),” and alleges the following (Doc. 1 at 5):
Before the start of trial in [a] Nelson hearing[,] I objected to the evidence by motion to “dismiss” because forensic document(s) show[ ] the dates the evidence was collected was before the alleged offense dates asserted in the arrest affidavit. [The] trial judge allowed [the] State to proceed without producing a “property receipt.”
Cuffie contends that he raised this claim in his motion for post-conviction relief and his petition alleging ineffective assistance of appellate counsel. (Doc. 1 at 6)
The Court liberally construes the ground in the pro se federal petition. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Liberally construed, the ground asserts that (1) trial counsel was ineffective for not moving to exclude the cocaine because of a lack of a chain of custody and (2) appellate counsel was ineffective for not arguing on direct appeal that the trial court erred by admitting the cocaine because of a lack of a chain of custody. Cuffie raised the claims in his post-conviction motion and his ineffective assistance of appellate counsel petition. (Docs. 9-2 at 515-17 and 9-6 at 98-100)
The Respondent narrowly construes the claim as a federal due process claim. (Doc. 9 at 12-16) A federal due process claim is meritless for the same reasons presented below. Thigpen v. Thigpen, 926 F.2d 1003, 1012 (11th Cir. 1991).
Ineffective Assistance of Counsel
Cuffie asserts that trial counsel was ineffective for not moving to exclude the cocaine because of a lack of a chain of custody. (Doc. 1 at 5-6) The post-conviction court denied the claim as follows (Doc. 9-3 at 6) (state court record citations omitted):
The Defendant contends that counsel was ineffective for failing to challenge the chain of custody violations in a suppression hearing. Specifically, the Defendant claims that the dates on the evidence do not match or do not provide the correct dates that the evidence was received into the property remote bin or drug locker. The Defendant argues that had counsel challenged these discrepancies, it could have changed the outcome of the results at trial.
The Defendant fails to establish that he suffered prejudice. Prior to trial, the Court addressed this exact issue on the record. The Court found that the record would establish why there was a discrepancy with the dates of the evidence and that there was no basis for challenging or excluding the evidence. Therefore, this claim is denied.
The post-conviction court did not unreasonably deny the claim. Before trial, Cuffie moved to dismiss his appointed counsel because his appointed counsel would not move to suppress the cocaine. (Doc. 9-3 at 51) The following discussion ensued between the parties and the trial judge (Doc. 9-3 at 51-59):
[Court:] So, you file a pro se, sworn motion to dismiss. For purposes of the law, this doesn't exist. It's on paper, but it doesn't exist because you're represented. But, apparently, that goes to the heart of what our discussion is here today. “Evidence
being admissible due to the forensic documents exposing possession of the evidence before the offenses allegedly had taken place. Facts in the matter rest in the discovery which hold the dates of the alleged offenses and the dates of the collected items in evidence.”
Is there some discrepancy on the paperwork when the items were collected or something that - that he's talking about or what?
[Prosecutor:] I can explain what's going on. I've been listening to Mr. Cuffie's jail calls. What his issue is[,] is the request for laboratory analysis which is filled in by - by the law enforcement officer. When the first date, the September 10th [date] goes down, he types the information in and it kind - it gets auto-populated. So, every time that there is evidence that he submits, he goes back to that form and it's - it'll - it'll say the defendant's name, the case number, the report number, what officer, what agency, and it says date collected and it goes back to that September 10th date. However, if you look at the bottom where it's filled out with the chain - the chain of evidence, it shows the dates that the lab received it, the dates that it went back to the department, and, so, all of those dates are correct. So, I think his holdup is because that September 10th date is on the form for the three transactions, but if you look on the bottom, it goes - where it says - where the lab filled out when they actually received it.
[Court:] Well, according to the information, there was a sale on the 10th or 11th? Is -
[Prosecutor:] There was a - a sale on September 10th, September 11th, September 16th, and October 22nd.
[Court:] Okay. And, so, when he first collected the coke on the 10th, he put in the date of the evidence?
[Prosecutor:] If I could approach and show you? And this is -
[Court:] I -
[Prosecutor:] If Your Honor wants to see?
[Court:] I don't. I mean it -
[Prosecutor:] I know. It shows how it says September 10th right there but down here, it's all the correct dates.
[Court:] Okay.
[Prosecutor:] So, all this information's auto-populated and defaults to it every time.
[Court:] So, the initiating time is 9/10 and then the other subsequent dates of collected evidence on the same defendant are -
[Prosecutor:] Correct.
[Court:] - indicated in the bottom of the sheets?
[Prosecutor:] Correct.
[Court:] Do you - so, you're - this is the ah-ha moment that we were thinking was going to exist. Is that right, Mr. Cuffie?
[Cuffie:] Yes, sir, and I don't believe that the - the dates that she's speaking about actually clarif[y] the date that - whichever date that [ ] the evidence was collected.
[Court:] The cop is going to say that he took the evidence -
[Cuffie:] The alleged evidence.
[Court:] The cop is going to say that he took the evidence on each date, on the 10th, the 11th, the 16th, and the 22nd and placed it in the evidence locker and then it was sent to the lab then to be tested. Is that right, State?
[Prosecutor:] Yes, Judge.
[Court:] Each of those individual dates, right?
[Prosecutor:] Yes, Judge.
[Court:] And if questioned on - about those documents, he's going to say what you just told me, right?
[Prosecutor:] Yes, Judge.
[Court:] It - it goes back to the original date of the acceptance of the first bit of evidence and then, because it's a subsequent receiving of evidence connected to the initial case, that's the default date when he prints - puts it in the computer, right?
[Prosecutor:] Yes. I also spoke to the chemist this morning and asked him if he's ever seen this before. He says, with the sheriff's office, he actually has and [ ] it's their default and he - he has seen it before.
[Court:] So, he could have put in each individual date when he was introducing the evidence on the form and didn't?
[Prosecutor:] No, no. He's seeing the 9th, how it's the first date. He's seen that before.
[Court:] Right. But which is the way that it normally works? The - it - that's the way it normally works with them is that -
[Prosecutor:] My - yes, that was my understanding.
[Court:] All right. So, I'm not sure what - what you think this all means. I mean, the cop's going to testify that he got the evidence from you on each individual date, put it into evidence, it was - sat in the evidence locker until they took it over to the - the chemist to do the analysis.
Did he analyze all four substances at once or did he do -
[Prosecutor:] No. Different dates.
[Court:] Different dates?
[Prosecutor:] Yes.
[Court:] Same chemist?
[Prosecutor:] Yes.
...
[Court:] So, the chemist is going to say, “I took it out of the evidence locker on four different dates, analyzed it, put it back in the evidence locker, and with the initials on the bags, this is the evidence that was collected by the - by the detective and this is the evidence that I tested.”
I'm not sure where your issue comes in. I - I - I'm just not understanding. You're thinking it's a gotcha moment because each of those things says 9/10 on the one part of the form?
[Cuffie:] Your Honor, I had - I did not give this man anything or anything of that nature.
[Court:] You're complaining -
[Cuffie:] Pretty - pretty much. Yes, sir. Yes, sir, and it -
[Court:] Okay. Well, that's not going to work for the reasons that I just told you. We've explained to you how the evidence processing once it's taken into evidence occurs and because that date is on one part of the front of the form doesn't somehow - what - what do you think should happen? The evidence should get thrown out? Is that why you're thinking it should be a motion to dismiss?
[Cuffie:] Yeah.
...
[Court:] All right. Well, I can't find that they're doing anything wrong because I can't find that there is a date snafu here because of the explanation that I just gave you. You just don't want to understand the way it is that they present that evidence.
If your lawyers think there's some advantage to bringing it out that there are different dates on the front of the form and letting the cop explain it, that's fine. They certainly can ask the cop about that, but he's going to explain it and I don't think that explanation is going to lead to anything good that will happen for you, but that's your perception of whatever the situation is.
So, if you're complaining about your lawyers for that reason, that they didn't file that motion, then that complaint is - is, in my view, unfounded. So, I can't take them off the case or suggest that they're not doing what they should be doing based on that....
At trial, the detective testified that Cuffie sold him crack cocaine on September 10, 2014, identified the crack cocaine that he purchased from Cuffie on that date, stated that the crack cocaine appeared in the same or substantially the same condition, and confirmed that he filled out a form memorializing his collection of the evidence. (Doc. 9-2 at 198-99) The trial judge admitted the crack cocaine into evidence without objection. (Doc. 9-2 at 199) The detective testified in the same manner for the crack cocaine purchased on September 11, 2014 (Doc. 9-2 at 212-13), the powder cocaine purchased on September 16, 2014 (Doc. 9-2 at 221-22), and the powder cocaine purchased on October 22, 2014. (Doc. 9-2 at 23637) The trial judge admitted the cocaine purchased on those dates into evidence without objection. (Doc. 9-2 at 213, 222, 237)
Because a motion to suppress the cocaine would not have succeeded, trial counsel was not ineffective, and the post-conviction court did not unreasonably deny the claim. Pinkney v. Sec'y, Dep't Corrs., 876 F.3d 1290, 1297 (11th Cir. 2017) (“[A]n attorney will not be held to have performed deficiently for failing to perform a futile act, one that would not have gotten his client any relief.”). Armstrong v. State, 73 So.3d 155, 171 (Fla. 2011) (“‘Relevant physical evidence is admissible unless there is an indication of probable tampering.' . . . [T]o demonstrate probable tampering, the party attempting to bar the evidence must show that there was a probability that the evidence was tampered with - the mere possibility is insufficient. Once the party moving to bar the evidence has met its burden, the burden shifts to the nonmoving party to establish a proper chain of custody or submit other evidence that tampering did not occur.”) (citation omitted).
Ineffective Assistance of Appellate Counsel
Cuffie asserts that appellate counsel was ineffective for not arguing on direct appeal that the trial court erred by admitting the evidence because of a lack of a chain of custody. (Doc. 1 at 5-6) The state appellate court denied the claim in a decision without a written opinion. (Doc. 9-6 at 104) The unelaborated decision is an adjudication on the merits owed deference under Section 2254(d), and Cuffie must demonstrate that there was no reasonable basis for the denial of relief. Richter, 562 U.S. at 98.
Because trial counsel did not object to the admission of the cocaine, the state appellate court could have reviewed the issue only for fundamental error. § 924.051(3), Fla. Stat. This Court presumes that, in the decision without written opinion, the state appellate court determined that no fundamental error arose from the admission of the cocaine. Pinkney, 876 F.3d at 1299. Fundamental error is an issue of state law, and a state court's determination of state law receives deference in federal court. Pinkney, 876 F.3d at 1299. Even so, “[f]undamental error . . . is ‘error that reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.'” Pinkney, 876 F.3d at 1297 (quoting Kilgore v. State, 688 So.2d 895, 898 (Fla. 1996)). Because the prosecution established the chain of custody for the cocaine admitted at trial, Cuffie could not demonstrate fundamental error. State v. Hampton, 44 So.3d 661, 666 (Fla. 2d DCA 2010). Because the issue would not have succeeded on direct appeal, appellate counsel was not ineffective, and the state appellate court did not unreasonably deny the claim. Pinkney, 876 F.3d at 1297.
Ground One is DENIED.
Ground Two
Cuffie titles this ground, “Due Process Violation, Trial Court Lacks Subject Matter Jurisdiction - ‘Trial by Ambush,'” and alleges the following:
[The] State did not file discovery material; expert reports of “chemical substance test,” police reports, “witness list,” search and seizure documents, object[s] or photos, electronic recording[s] (nothing). “A reviewing court is confined to the record” and cannot decide [ ] issues outside the record. The constitutional duty was abandon[ed] by [the] State to provide the filing of evidence instead of ambush[ing] the accused with unauthorized evidence mentioned above[,] ....
(Doc. 1 at 7) (state court record citations omitted)
Search or seizure and any document thereto, these items must be on file in the office of the clerk of the court and can be reviewed or copied by the defendant “without invoking discovery.”
The pertinent document “property receipt” paramount to the “record” while concerning the alleged crime of sale and possession of a controlled substance (return inventory). [The] property receipt demonstrates: the property was seized, the purpose [of] the items are to be used, description, by [which] authority and date of impound[ ] - so on. Without a property receipt[,] there is no cause, no jurisdiction. Violation of substantive due process rights. “Illegal detention.”
(Doc. 1-1 at 5) (state court record citations omitted)
Cuffie contends that he raised this claim in his petition alleging ineffective assistance of appellate counsel. (Doc. 1 at 7)
Liberally construed, the ground asserts that appellate counsel was ineffective for not directing the state court clerk to transmit with the record on appeal the arrest affidavit and other documents disclosed in discovery, which Cuffie contends was necessary to demonstrate error on appeal. Erickson, 551 U.S. at 94. Cuffie raised the claim in his ineffective assistance of appellate counsel petition. (Doc. 9-3 at 272, 274)
The Respondent narrowly construes the claim as a federal due process claim. (Doc. 9 at 16-19) A federal due process claim is meritless for the same reasons presented below. To the extent that the Court could construe the ground as asserting a claim for unlawful arrest, arrest affidavits (Doc. 11-1 at 1-7) filed with the state court clerk demonstrate that probable cause supported Cuffie's arrest. To the extent that the Court could construe the ground as asserting a claim for a discovery violation, “[t]here is no general constitutional right to discovery in a criminal case.” Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Also, both claims are unexhausted and procedurally barred. (Doc. 9 at 16-17) O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998).
The state appellate court denied the claim in a decision without a written opinion. (Doc. 9-3 at 298) The unelaborated decision is an adjudication on the merits owed deference under Section 2254(d), and Cuffie must demonstrate no reasonable basis for the denial of relief. Richter, 562 U.S. at 98.
Cuffie contends that the documents in discovery would have demonstrated on appeal that the trial court lacked subject matter jurisdiction over the prosecution (Doc. 22 at 3-4) and that the prosecutor failed to corroborate evidence introduced at trial with documents disclosed in discovery. (Doc. 37 at 2)
Even if appellate counsel had directed the trial court clerk to transmit documents disclosed in discovery to the state appellate court, appellate counsel could not have successfully argued on direct appeal that the trial court lacked subject matter jurisdiction. The prosecutor filed the information, which charged Cuffie with seven felonies, in state circuit court (Doc. 9-3 at 278-80), and the state circuit court had “exclusive original jurisdiction . . . [o]f all felonies and of all misdemeanors arising out of the same circumstances as a felony which is also charged.” § 26.012(2)(d), Fla. Stat. Art. 5, §5(b), Fla. Const. Because the state circuit court had jurisdiction over the felony prosecution, the issue would not have succeeded on direct appeal, and appellate counsel was not ineffective. Pinkney, 876 F.3d at 1297.
Also, appellate counsel could not have demonstrated error on direct appeal by arguing that the prosecution failed to corroborate evidence presented at trial with documents disclosed in discovery. A prosecutor does not have the burden to corroborate evidence presented at trial with documents disclosed in discovery. The prosecutor must prove a criminal offense at trial beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361-62 (1970). A reviewing court determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (italics in original). “Sufficiency-of-the evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt.” United States v. Powell, 469 U.S. 57, 67 (1984) (bolding added).
The evidence at trial proved that Cuffie twice sold crack cocaine and twice sold powder cocaine to the detective. The detective testified that Cuffie gave him cocaine in exchange for money. A chemist analyzed the substances and confirmed the presence of cocaine. The evidence at trial, viewed in the light most favorable to the prosecution, proved that Cuffie unlawfully sold cocaine, and the prosecution did not have to corroborate the evidence of guilt with documents disclosed in discovery. Consequently, appellate counsel was not ineffective for failing to direct the clerk to transmit documents disclosed in discovery to the state appellate court, and the state appellate court did not unreasonably deny the claim. Pinkney, 876 F.3d at 1297.
Ground Two is DENIED.
Ground Three
Cuffie titles this ground, “Fourth [and] Fourteenth Amendment Violation,” and alleges the following (Doc. 1 at 8):
False arrest, false imprisonment[,] and illegal detention due to an arrest made without reasonable suspicion, probable cause, [a] “valid complaint,” [an] “arrest warrant,” or due process of law. All affidavits do not assert an initial cause or circumstances leading to arrest, “no receipt” evidence!
Cuffie contends that he raised this claim as ground one and ground two in his motion for post conviction relief. (Doc. 1 at 9)
Liberally construed, the ground in the federal petition asserts that (1) trial counsel was ineffective for not moving to dismiss the information because no probable cause supported his arrest and (2) trial counsel was ineffective for not moving to suppress false statements in the arrest affidavit. Erickson, 551 U.S. at 94. Cuffie raised both claims as ground one and ground two in his state post-conviction motion. (Doc. 9-2 at 505-15)
Ineffective Assistance of Counsel - Lack of Probable Cause
Cuffie asserts that trial counsel was ineffective for not moving to dismiss the information because no probable cause supported his arrest. (Doc. 1 at 8-9) The post-conviction court denied the claim as follows (Doc. 9-3 at 3-5) (state court record citations omitted):
The Defendant alleges that counsel rendered ineffective assistance by failing to file a motion to dismiss the Felony Information. The Defendant claims that the Information was defective because the statements made by the confidential informant in the affidavit supporting the information were not made under oath.... The Defendant appears to argue that the information should be dismissed because it was the result of the fruit of the poisonous tree since there was never any probable cause to identify the Defendant since the information from the confidential informant was learned over the phone and not verified in person prior to the initial drug buy. The Defendant argues that because of these alleged defects, the Court lacked subject matter jurisdiction to preside over his case. The Defendant contends that without counsel's errors, the outcome of his trial would have been different.
To the extent the Defendant is attempting to attack the charging instrument in the guise of an ineffective assistance of counsel claim, such a claim could have been raised on direct appeal and is therefore not cognizable in a claim for postconviction relief. Williams v. State, 642 So.2d 67, 68 (Fla. 1st DCA 1994).
In addition, the Defendant's claim that counsel should have challenged the Information based upon the fact that Florida Rule of Criminal Procedure 3.l40(g) requires testimony under oath from a material witness to the offense for the State to file a Felony Information is without merit. The Defendant claims that this testimony was not provided. However, the Information contained an oath from the Assistant State Attorney which states that “he has received testimony under oath from the material witness or witnesses for the offense.”
...
To the extent the Defendant appears to be arguing that counsel should have challenged the probable cause for the Defendant's arrest because the police identified him based on hearsay from the confidential informant, the Defendant's claim is without merit. “Probable cause to arrest exists when facts and circumstances within an officer's knowledge and of which he had reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that an offense has [been] or is being committed.” Caraballo v. State, 39 So.3d 1234, 1246 (Fla. 2010). The arrest affidavit indicates that the Defendant sold narcotics to Detective Cruz, an undercover law enforcement officer with the Pinellas County Sheriff's Office, on four separate occasions. Detective Cruz was able to positively identify the Defendant at each transaction. Therefore, the Defendant's claim that counsel should have challenged the Information based on a lack of probable cause is without merit and denied.
Whether the prosecutor properly signed the information after receiving testimony from a material witness of the offense is an issue of state law, and a state court's determination of state law receives deference in federal court. Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985). The prosecutor swore under oath that “he [had] received testimony under oath from the material witness or witnesses for the offense” and “the allegations as set forth in the [ ] information [were] based upon facts that have been sworn to as true, and which if true, would constitute the offense therein charged.” (Doc. 9-3 at 20) In arrest affidavits (Doc. 9-3 at 31, 33, 35, 43), the detective swore under penalty of perjury that Cuffie sold him cocaine. The affidavits supported the allegations in the information. Fla. R. Crim. P. 3.140(g). State v. Gonzalez, 212 So.3d 1094, 1097-98 (Fla. 5th DCA 2017).
Whether an arrest is constitutional depends on “whether at [the] moment [the arrest was made] the facts and circumstances within [the police officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964). “That standard - probable cause to believe the suspect has committed a crime - traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the [United States Supreme Court] has approved these informal modes of proof.” Gerstein v. Pugh, 420 U.S. 103, 120 (1975). “To determine whether an officer had probable cause for an arrest, ‘[a court] examine[s] the events leading up to the arrest, and then decide[s] whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.'” District of Columbia v. Wesby, 138 S.Ct. 577, 586 (2018) (quoting Maryland v. Pringle, 540 U.S. 366, 371 (2003)).
In each arrest affidavit, the detective swore under penalty of perjury that Cuffie sold him cocaine. (Doc. 9-3 at 31, 33, 35, 43) The day after Cuffie's arrest, a judge reviewed the affidavits and found that probable cause supported Cuffie's arrest. (Doc. 9-3 at 31-36, 43-44) The judge properly relied on hearsay in the affidavits to make that determination. Because an objectively reasonable police officer would have believed that Cuffie sold cocaine to the detective, probable cause supported his arrest.
Lastly, Cuffie sold the cocaine to the detective on September 10, 2014, September 11, 2014, September 16, 2014, and October 22, 2014. (Doc. 9-3 at 31, 33, 35, 43) Police arrested Cuffie for the four offenses on February 10, 2015. (Doc. 9-3 at 31, 33, 35, 43) Months before Cuffie's arrest, Cuffie delivered the cocaine to the detective. Because the cocaine was not a fruit of the arrest, a motion to dismiss the information would not have succeeded even if police had unlawfully arrested Cuffie. Consequently, the post-conviction court did not unreasonably deny the claim. Maryland v. Macon, 472 U.S. 463, 471 (1985) (“‘The exclusionary rule enjoins the Government from benefiting from evidence it has unlawfully obtained; it does not reach backward to taint information that was in official hands prior to any illegality.'”) (citation omitted); United States v. Crews, 445 U.S. 463, 474 (1980) (“An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction.”).
Ineffective Assistance of Counsel - False Statements in Arrest Affidavit
Cuffie asserts that trial counsel was ineffective for not moving to suppress false statements in the arrest affidavit. (Doc. 1 at 8-9) The post-conviction court denied the claim as follows (Doc. 9-3 at 5-6) (state court record citations omitted):
The Defendant claims that he was denied effective assistance of counsel because counsel failed to suppress false statements in the criminal report affidavit. Specifically, the Defendant argues that the statements made by Detective Cruz regarding the use of department funds were false because there was no evidence presented at trial to demonstrate that department funds were used. The Defendant argues that this evidence was necessary for the State to prove its case against him and that Detective Cruz's failure to document the use of these funds violates the Pinellas County Sheriff's Office standard operating procedure. The Defendant contends that if counsel had challenged these statements, the outcome could have possibl[y] changed.
As an initial matter, the Defendant's claim that the Detective's statements are false because the evidence does not reflect that the department funds were used is speculative and conclusory. Further, the Defendant's claim that had counsel challenged these statements, the outcome could have possibly changed is speculative. Speculative claims cannot form the basis for postconviction relief.
Moreover, the Defendant's claim that the State could not prove the charges against the Defendant because they did not establish that department funds were used is without merit. The elements of the sale of cocaine, possession of cocaine, and trafficking of cocaine do not include an element that department funds were used. See § 893.13, Fla. Stat. (2014). Regardless, the State did put on evidence that Detective Cruz used department funds during each of the transactions. For the aforementioned reasons, this claim is denied.
The information charged Cuffie with cocaine trafficking in violation of § 893.135(1)(b)(1)(a), Fla. Stat., sale or delivery of cocaine in violation of § 893.13(1)(a)(1), Fla. Stat., and possession of cocaine in violation of § 893.13(6)(a), Fla. Stat. (Doc. 9-3 at 19-20) Whether these offenses contain an element requiring the use of funds from a police department is an issue of state law, and a state court's determination of state law receives deference in federal court. Bradshaw v. Richey, 546 U.S. 74, 76 (2005). None of the offenses require proof of the use of funds from a police department. §§ 893.13(1)(a)(1), (6)(a) and 893.135(1)(b)(1)(a), Fla. Stat.
Even so, in the four arrest affidavits, the detective swore under penalty of perjury that he purchased the cocaine from Cuffie with funds from the police department. (Doc. 9-3 at 31, 33, 35, 43) At trial, the detective testified under oath that he used “department funds” to purchase the cocaine from Cuffie. (Doc. 9-3 at 78, 90, 98) Cuffie fails to come forward with clear and convincing evidence to rebut the post-conviction court's finding that evidence proved that the detective purchased the cocaine with funds from the police department. 28 U.S.C. § 2254(e)(2). Even if trial counsel had moved to suppress the statements concerning the detective's use of funds from the police department, the trial court would not have granted Cuffie relief, and the outcome at trial would not have changed. Consequently, trial counsel was not ineffective, and the post-conviction court did not unreasonably deny the claim. Pinkney, 876 F.3d at 1297.
Ground Three is DENIED.
Accordingly, it is ORDERED that Cuffie's petition (Doc. 1) is DENIED. The Clerk is DIRECTED to enter a judgment against Cuffie and CLOSE this case.
CERTIFICATE OF APPEALABILITY AND LEAVE TO PROCEED IN FORMA PAUPERIS
Because Cuffie neither makes a substantial showing of the denial of a constitutional right nor demonstrates that reasonable jurists would find debatable both the merits of the underlying claims and the procedural issues that he seeks to raise, a certificate of appealability and leave to appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2). Slack v. McDaniel, 529 U.S. 473, 478 (2000).
DONE AND ORDERED.