Opinion
Case No. 05-20804-Civ-LENARD.
August 30, 2005
REPORT OF MAGISTRATE JUDGE
Trabon Marion, a state prisoner confined at Everglades Correctional Institution, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his convictions of two drug offenses entered on a jury verdict in Dade County Circuit Court case number 022-3699.
This Cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. § 636(b) (1) (B) and Rules 8 and 10 of the Rules Governing Section 2254 Cases in the United States District Courts.
For its consideration of this petition the Court has what in legal effect is a memorandum of law with exhibits submitted by the petitioner [DE 4], and the response of the state to an order to show cause with multiple exhibits.
Marion makes the following claims:
1. Officer Carl Baaske acted without probable cause, and defense counsel failed to investigate this issue prior to trial.
2. The prosecutor engaged in misconduct by eliciting testimony during trial which was subject to a pretrial stipulation on a motion in limine.
3. The trial court confused and coerced him into stipulating to the exclusion of the testimony of the chemist.
4. Defense counsel did not advise him of the elements of the crimes.
5. Trial counsel was not prepared for trial because he lacked the name of a witness and evidence of prior misconduct by Officer Baaske.
6. Defense counsel commented in closing argument that the area where he was arrested was a high crime area.
7. The trial court imposed a vindictive sentence.
9. Trial counsel failed to file a motion to suppress the cocaine and cannabis based on a lack of probable cause.
10. Trial counsel failed to preserve all claims at trial.
There is no claim numbered "8" set forth in the petition or in Marion's reply to the state's response. [DE 17].
On May 3, 2005, Marion moved to amend his petition to add two additional claims. [DE 16] On May 9, 2005, the motion was denied without prejudice, and Marion was informed that if he wanted to amend his petition, he must file a new motion accompanied by a proposed amended petition setting out his new claims for the court's review on or before June 3, 2005. He was cautioned that if no new motion was received by June 3, 2005, the petition currently on file would be adjudicated. As of the date of this report, Marion has filed nothing further in the proceeding.
On May 14, 2003, Marion was convicted following a jury trial of one count each possession with the intent to sell cocaine, and possession with the intent to sell cannabis. [DE 14, Ex.B] On that same day, he was sentenced to serve an aggregate of ten years in prison. [Id.]
Marion prosecuted a direct appeal, and his appointed counsel filed a memorandum brief pursuant to Anders v. California, 386 U.S. 738 (1967), suggesting as possible error the trial court's denial of motions for continuance, judgment of acquittal and new trial, as well as the sentence imposed. [DE 14, Ex.D at 4] After Marion filed additional documents with the court [DE 14, Ex.E], his conviction and sentence were affirmed without comment on January 28, 2004. Marion v. State, 871 So.2d 888 (Fla. 3 DCA 2004) (table) [DE 14, Ex.F]
After an additional proceeding which is not germane here [DE 14, Ex.H-I], Marion filed a motion for postconviction relief pursuant to Fla.R.Cr.P. 3.850, raising the same claims he makes in this federal proceeding on February 23, 2004. [DE 14, Ex.J] Following a response by the state [DE 14, Ex.K], the trial court denied relief in a form order [DE 14, Ex.L], and that result was affirmed in a brief memorandum opinion, Marion v. State, 892 So.2d 1131 (Fla. 3 DCA 2004) (table), with the mandate issuing on March 18, 2005. This federal proceeding ensued on March 17, 2005.
The date the mandate issued was confirmed by consulting athttp://www.flcourts.orq/, the website of the Florida courts.
An earlier federal petition Marion filed in case number 042-1983-Civ-Huck was dismissed without prejudice for Marion's failure to exhaust his state court remedies as to his claims.
The Eleventh Circuit recognizes the "mailbox" rule in connection with the filing of a prisoner's petition for writ of habeas corpus. Adams v. U.S., 173 F.3d 1339 (11 Cir. 1999) (prisoner's pleading is deemed filed when executed and delivered to prison authorities for mailing). [DE 1 at 25].
The respondent acknowledges correctly that this petition was filed timely pursuant to 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act of 1996. Artuz v. Bennett, 531 U.S. 4 (2000) (pendency of properly-filed state postconviction proceedings tolls the AEDPA limitations period). The respondent also rightfully concedes that all of Marion's claims have been exhausted in the state forum. Anderson v. Harless, 459 U.S. 4 (1982) (issues raised in a federal habeas corpus petition must have been fairly presented to the state courts and thereby exhausted).
Section 104(d) of the AEDPA [ 28 U.S.C. § 2254(d)] sets out a significant new restriction upon the ability of federal courts to grant habeas corpus relief. It provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to a 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 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.
In Williams v. Taylor, 529 U.S. 362 (1999), the Supreme Court interpreted this provision as follows:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
"Clearly established federal law" refers to the holdings of the United States Supreme Court as of the time of the relevant state court decision. Putnam v. Head, 268 F.3d 1223, 1241 (11 Cir. 2001). A state court's decision is "contrary to" clearly established federal law if the state court 1) applied a rule that contradicts United States Supreme Court case law, or 2) arrived at a result different from that reached in a United States Supreme Court decision when faced with materially indistinguishable facts. Id.; see also, Fugate v. Head, 261 F.3d 1206, 1215-16 (11 Cir. 2001). A state court arrives at an "unreasonable application" of clearly established federal law if it 1) unreasonably applies a correct legal principle for Supreme Court case law to the facts of a petitioner's case, or 2) unreasonably extends or declines to extend a legal principle from Supreme Court case law to a new situation. Id. In this context, an "unreasonable application" is an "objectively unreasonable" application. Williams v. Taylor, supra at 409.
The Eleventh Circuit has stressed the importance of this new standard, stating that the AEDPA "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Crawford v. Head, 311 F.3d 1288, 1295 (11 Cir. 2002). Specifically, the AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal `retrials' and to ensure that state court convictions are given effect to the extent possible under law." Crawford, supra at 1295, quoting Bell v. Cone, 535 U.S. 685 (2002).
In his first claim, Marion contends that Officer Carl Baaske acted without probable cause in arresting him, and defense counsel failed to investigate this issue prior to trial. Essentially, it appears that the pro se petitioner appears to argue that his attorney rendered ineffective assistance in failing to discover or argue that the arresting officer lacked probable cause. To prevail on a claim of ineffective assistance, a petitioner must demonstrate both that his attorney's efforts fell below constitutional standards, and that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668 (1984). Review of counsel's conduct is to be highly deferential,Spaziano v. Singletary, 36 F.3d 1028, 1039 (11 Cir. 1994), and second-guessing of an attorney's performance is not permitted.White v. Singletary, 972 F.2d 1218, 1220 (11 Cir. 1992) ("Courts should at the start presume effectiveness and should always avoid second-guessing with the benefit of hindsight.");Atkins v. Singletary, 965 F.2d 952, 958 (11 Cir. 1992). Because a "wide range" of performance is constitutionally acceptable, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.2d 384, 386 (11 Cir. 1994).
In this case, Marion's argument [DE 1 at 4] that counsel failed to perceive that he was arrested on an unreliable anonymous tip is misplaced. Instead, Officer Baaske testified that the tip he received caused him to investigate Marion, and he observed Marion for thirty minutes prior to making the arrest. [T.224-33] Officer Baaske stated that during that time, he saw Marion handling and bagging narcotics, and engaging in at least five narcotics transactions. [T.229-30] Once Marion became aware of the officer's presence, he fled on foot and abandoned the narcotics. [T. 233-36] Thus, the anonymous tip caused the officer to undertake a surveillance of Marion on a public place, and the surveillance resulted in his observation of Marion engaging in criminal activity.
Probable cause to arrest exists when law enforcement officials have facts and circumstances within their knowledge sufficient to warrant a reasonable belief that the suspect had committed or was committing a crime. Beck v. Ohio, 379 U.S. 89 (1964). Probable cause determinations are to be guided by a review of the totality of the circumstances. Illinois v. Gates, 462 U.S. 213 (1983);United States v. Gonzalez, 969 F.2d 999 (11 Cir. 1992). Under Florida law, probable cause to arrest is present where, as here, an experienced narcotics officer observes hand-to-hand transactions. Revels v. State, 666 So.2d 213 (Fla. 2 DCA 1995). In this case, where the officer personally observed Marion engaged in criminal activity prior to effecting the arrest, any assertion that probable cause was lacking rightfully would have been rejected, and Marion suffered no prejudice when no such argument was made. Accordingly, the state courts' denial of relief on this claim was in accord with applicable federal principles, Strickland, supra, and that same result should occur here. Williams v. Taylor, supra.
In his second claim, Marion contends that the prosecutor engaged in misconduct by eliciting testimony during trial which was subject to a pretrial stipulation on a motion in limine. Prior to trial, the parties stipulated that Officer Baaske would not mention the anonymous tip that caused him to investigate Marion. [T.7-8] The court admonished the prosecutor to tell the officer that "he is not to advise about the anonymous call and any description he received. It is all hearsay. It is irrelevant, so it is not admissible." [T.8] When the officer testified, he stated that he had seen the petitioner earlier in the day, but made no mention of an anonymous tip or description.
The standard for federal habeas corpus review of a claim of prosecutorial misconduct is whether the actions rendered the trial fundamentally unfair. Donnelly v. DeChristoforo, 416 U.S. 637, 642-45 (1974); Hall v. Wainwright, 733 F.2d 766, 773 (11 Cir. 1984). In assessing whether the fundamental fairness of the trial was compromised, the totality of the circumstances are to be considered in the context of the entire trial. Hance v. Zant, 696 F.2d 940 (11 Cir.), cert. denied, 463 U.S. 1210 (1983). "Such a determination depends on whether there is a reasonable probability that, in the absence of the improper remarks, the outcome of the trial would have been different."Williams v. Weldon, 828 F.2d 1018 (11 Cir.), cert. denied, 485 U.S. 964 (1988). In this case, there was no compromise to the fundamental fairness of Marion's trial, so his second claim warrants no relief.
In his third claim, Marion asserts that the trial court confused and coerced him into stipulating to the exclusion of the testimony of the chemist. However, the record reveals that this claim is utterly without merit. Far from trying to "confuse" or "coerce" the petitioner, the court engaged him in a colloquy and carefully explained the stipulation and its meaning, as follows:
THE COURT: Now Mr. Marion, you understand what your lawyer has just said as far as stipulating?
MARION: Yes, sir.
THE COURT: That means you are agreeing that what was seized in the case was, in fact, cocaine and cannabis. Do you understand that?
MARION: Well, I'm not sure what it was.
THE COURT: But what is happening is what you are agreeing to — I'm not saying you are agreeing that is what was taken from you because you are saying it was not you.
MARION: Right.
THE COURT: But what is being agreed upon is whatever was seize by the police on this particular day, and it is alleged that the date of the offense was August 9th 2002, that whoever was selling drugs out there or possessing with intent to sell was, in fact, cocaine and cannabis. Do you understand that?
MARION: Yes, sir.
THE COURT: You don't have to stipulate to that. This chemist could be called to testify and say, `I received some drugs from the police officers who made an arrest right on this particular day. I tested the items and what they are is, in fact, cocaine and cannabis.' That is all you are agreeing to.
The chemist is not going to say who possessed the cocaine and the cannabis. So all you are stipulating to is whatever was seized in the case was, in fact, cocaine and cannabis.
Do you understand that?
MARION: Yes, sir.
THE COURT: Are you in agreement to that stipulation?
MARION: Yes, sir.
THE COURT: Is anyone forcing you to stipulate to that?
MARION: No, sir.
[T.17-18]
The theory of the defense in this case was that Marion was "in the wrong place at the wrong time" [T.217], and that he had no knowledge of the drugs that were seized and nothing to do with selling them. Defense counsel argued that the drugs "could have belonged — and we submit did belong — to other individuals, not Mr. Marion." [T.218] However, at no time did counsel contend that the substances which were seized were not cannabis and cocaine. Therefore, the nature of the substances was not central to the defense, and the stipulation was proper and did not cause Marion to suffer any prejudice. Since the foregoing quotation from the trial transcript belies any contention that it was the product of coercion or confusion, the state courts' denial of relief on this claim should not be disturbed. Williams v. Taylor, supra.
In his fourth claim, Marion argues essentially that he received ineffective assistance of counsel because his lawyer did not advise him of the elements of the crimes. However, he does not explain what element or elements he was unaware of, or how that alleged ignorance affected the outcome of the case. Because it is well established under federal law that bare and conclusory allegations of ineffective assistance of counsel such as these are insufficient to require further consideration, Ferguson v. United States, 699 F.2d 1071 (11 Cir. 1983); United States v. Ammirato, 670 F. 2d 552 (5 Cir. 1982), it is apparent that Marion's fourth claim warrants no relief.
In his fifth claim, Marion asserts that his attorney was not prepared for trial because he did not know the name of a witness or have evidence of prior misconduct by Officer Baaske. As to the first part of this claim, it appears that Marion intends to refer to Marlon Jones, who was present at the scene of the drug sales and was arrested by Officer Baaske sometime after Marion. [DE 1 at 10] However, the record makes it apparent that counsel was unaware of this witness' existence and identity until the first day of trial. The salient facts were explained by counsel in the motion for new trial as follow:
On the day of trial, the defendant told defense counsel that he thought he knew of someone who was a witness to his arrest and the moments before his arrest. This was the first time that the defendant had ever told defense counsel about this or any other witness that were present. Defense counsel motioned the Court for a continuance in order to locate this witness. The Court inquired as to the name and location of this witness. The defendant could not give a name or location of the witness. The Court denied the continuance. On the second day of trial and before the state put on its case, defense counsel is handed an arrest affidavit of a person arrested for the same transaction and time period. But this person is arrested over a week later. Additionally no where in the arrest affidavit does it mention that the defendant is the co-defendant and vice versa. This persons case was no action[ed]. At that point, the defense with the arrest affidavit in hand which had the name, address, date of birth and telephone number motioned the Court for at least a 24 hour continuance in order to try to find this person who may be a crucial witness to the defense. The continuance was denied. . . .
[DE 1, Ex.l]
At the hearing on the foregoing motion, defense counsel told the court, "I have made numerous attempts and my investigator has been looking for this witness nonstop. Unfortunately, I cannot report to the Court I have found him or what he would say." [DE 1, Ex.2]
Under these circumstances, it is apparent that Marion has failed to demonstrate that counsel's efforts with respect to the missing witness constituted ineffective assistance. The fact that Marion did not apprise counsel of the existence of a possible witness until the morning of the first day of trial does not bespeak any inadequacy on counsel's part. Moreover, even if an argument could be made that counsel could or should have discovered this witness with greater diligence, Marion's claim would still fail because he has made no showing whatever that he was prejudiced by the absence of the witness' testimony. No proffer was made at trial as to what the substance of the testimony would be [T.20], nor does Marion make any allegations in the instant petition as to what the witness would have said or how the outcome of the trial was affected. [DE 1 at 10-13] Under these circumstances, ineffective assistance of counsel has not been demonstrated. See Waters v. Thomas, 46 F.3d 1506, 1510 (11 Cir. 1995) (a claim of ineffective assistance of counsel fails unless both prongs of the Strickland analysis are satisfied).
Similarly, as to the second component of his fifth claim, Marion states in only the most general of terms that counsel should have obtained evidence of prior misconduct by Officer Baaske. Marion in his petition never identifies what the nature of Baaske's asserted misconduct was, or how it would have been pertinent to Marion's trial. In his reply to the state's response, he states that Officer Baaske had once received a reprimand for making a false statement [DE 17 at 25-26], but again explains only in generalities that counsel's inability to provide additional information on the matter amounted to ineffective assistance. Accordingly, the state courts' denial of relief on this conclusory assertion of ineffective assistance was factually reasonable and in accord with controlling federal principles,Strickland, supra, and that outcome should not be disturbed here. Williams v. Taylor, supra.
In his sixth claim, Marion argues that his attorney rendered ineffective assistance by commenting in argument that the area where Marion was arrested was a high crime area. Specifically, counsel argued to the jury as follows:
[The officer] is going to tell you that there was another black man in the neighborhood at the time that he also observed doing these transactions and he is going to tell you that thus individual, as he approached them, took off running.
But he is going to tell you that Mr. Marion did not run. He did not run anywhere because he had no reason to run. Mr. Marion was arrested. The man who took off running was not arrested that night. Mr. Marion was. And when he was, the officer will tell you that he found no drugs on Mr. Marion, no money that a drug dealer would have.
On Mr. Marion all he found were a pile of drugs on a milk carton under a tree in a vacant lot in an area where there are drug deals going on all the time. Drugs that could have belonged — and we submit did belong — to other individuals, not Mr. Marion.
[T.218]
It is well settled that tactical or strategic choices cannot support a collateral claim of ineffective assistance. McNeal v. Wainwright, 722 F.2d 674 (11 Cir. 1984); United States v. Costa, 691 F.2d 1358 (11 Cir. 1982). Even if such a decision in retrospect appears incorrect, it can constitute ineffective assistance only "if it was so patently unreasonable that no attorney would have chosen it," Adams v. Wainwright, 709 F.2d 1443, 1445 (11 Cir.), cert. denied, 464 U.S. 1663 (1984), or if the petitioner can demonstrate a "reasonable probability that the verdict [otherwise] would have been different." Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). It is apparent on this record that counsel acknowledged to the jury that the area where Marion was arrested was known for drug sales for strategic reasons, in furtherance of the defense that Marion was "at the wrong place at the wrong time." Accordingly, the state courts' denial of relief on this claim was in accord with these controlling federal authorities, and the same result should pertain here. Williams v. Taylor, supra.
In his seventh claim, Marion argues that the trial court imposed a vindictive sentence after he rejected the state's pretrial plea offer. [DE 1 at 16-18] Marion bases this claim in part on assertions that the court "participated" in the plea negotiations and remarked, "Sorry," when they did not succeed. [Id.] However, in context, it is apparent that the court did no more than solicit information from the attorneys about the status of the plea negotiations, and used the word "sorry" not to express regret that the offer had not been accepted, but rather to ask defense counsel to repeat himself because the court had not clearly heard what had just been said:
THE COURT: Now, Mr. Viera, this is your case. Did you convey that offer to your client?
DEFENSE COUNSEL: I conveyed the offer a couple of times, Judge.
THE COURT: What did he relay to you as his desire to accept or reject the [offer]?
DEFENSE COUNSEL: Last time I conveyed the offer, my client expressed to me that he wished to reject the offer last week. THE COURT: Sorry.
DEFENSE COUNSEL: This was last week.
THE COURT: Did you explain what the maximum penalties are in the event he goes to trial and is found guilty?
DEFENSE COUNSEL: Yes I explained the maximum penalty. In this case, he is charged with two counts of —
THE COURT: One is possession with intent to sell cocaine. The other is possession of — with intent and one with possession of.
DEFENSE COUNSEL: I told him the maximum penalty is 20 years if he is convicted of both.
THE COURT: Mr. Marion, stand and raise your right hand please.
DEFENSE COUNSEL: I did not talk to him about the bottom of his guidelines which are —
PROSECUTOR: The exact months of 54.6 months in state prison.
[T.11]
In fact, as noted above, Marion received a sentence of ten years rather than the possible 20 after he was convicted at trial. [DE 15, Ex.B]
Under Florida law, a judge in imposing a sentence is never bound by any negotiations which may have occurred between the prosecution and the defense. Davis v. State, 308 So.2d 27, 29 (Fla. 1975). A disparity between the sentence received and an earlier offer, standing alone, does not support a finding of vindictiveness. Mitchell v. State, 521 So.2d 185, 190 (Fla. 4 DCA 1988). Generally, Florida courts recognize that:
[A] defendant may not complain simply because he received a heavier sentence after trial. A disparity between the sentence received and the earlier offer will not alone support a finding of vindictiveness . . . Having rejected the offer of a lesser sentence, [the defendant] assumes the risk of receiving a harsher sentence. Were it otherwise, plea bargaining would be futile.Stephney v. State, 564 So.2d 1246, 1248 (Fla. 3 DCA 1990). This principle applies even in situations where the court has participated in unsuccessful plea negotiations. Wilson v. State, 845 So.2d 142 (Fla. 2003).
Federal law also holds that "where a defendant makes a voluntary choice to reject or withdraw from a plea bargain, is convicted of the crimes alleged against him, and receives an otherwise lawful sentence for those crimes he has no cause to complain that the sentence received is harsher than that originally tendered. In such a case, the defendant has acquired no right to a sentence which he has voluntarily rejected and assumes the risk of a lawfully authorized harsher sentence."Adamson v. Ricketts, 758 F.2d 441, 448 (9 Cir. 1985); accord, Hitchcock v. Wainwright, 745 F.2d 1332, 1338-40 (11 Cir.),rev'd on other grounds, 481 U.S. 393 (1987); Frank v. Blackburn, 646 F.2d 873, 885 (5 Cir. 1980).
Here, then, the fact that Marion received a harsher sentence following his conviction by the jury after rejecting the pretrial plea deals offered by the state raises no inference of vindictiveness under either Florida or federal law. Accordingly, habeas corpus relief in not warranted on his seventh claim.Williams v. Taylor, supra.
In his ninth claim, Marion asserts that he received ineffective assistance of counsel when his lawyer failed to file a motion to suppress the cocaine and cannabis based on a lack of probable cause. This argument is simply a reiteration of claim one, supra, and should be rejected for the reasons expressed above.
It will be recalled that the petition contains no claim numbered "8."
In his tenth claim, Marion alleges without elaboration that his trial counsel provided ineffective assistance by failing to preserve all claims at trial. As with his fourth claim, however, Marion provides no explanation of what trial errors went unpreserved, or why preservation of those errors would have changed the outcome of the trial or the ensuing appeal. Accordingly, as with claim four above, these bare and conclusory assertions of ineffective assistance warrant no further consideration. Ferguson v. United States, supra; United States v. Ammirato, supra.
For the foregoing reasons, it is recommended that this petition for habeas corpus relief be denied.
Objections to this report may be filed with the District Judge within ten days of receipt of a copy of the report.