Opinion
Case No. 3:13-cv-817-J-32PDB
03-04-2017
SHIRLEY ROBINSON, Petitioner, v. SECRETARY OF THE FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
ORDER
I. Status
Petitioner, an inmate of the Florida penal system, initiated this action by filing a pro se Petition for Writ of Habeas Corpus (Doc. 1) (Petition) pursuant to 28 U.S.C. § 2254. Petitioner challenges her 2007 state court (Suwannee County, Florida) judgment of convictions and sentences for trafficking in cocaine (count one), possession of marijuana (count two), and tampering with evidence (count three). Petitioner was sentenced to ten years with a three-year mandatory minimum term of imprisonment, followed by five years of probation on count one; time served on count two; and five years in prison on count three. Respondent Secretary for the Florida Department of Corrections filed her response. See Respondent's Answer in Response to Order to Show Cause and Petition for Writ of Habeas Corpus (Doc. 19) (Response). Petitioner replied. See Petitioner's Traverse to Response to Order to Show Cause (Doc. 22) (Reply). The case is ripe for review.
Citations to Petitioner's filings refer to the page numbers assigned by the Court's electronic case filing system.
Petitioner was released from the custody of the Florida Department of Corrections on October 6, 2015. She is currently on probation.
The Court refers to the exhibits attached to the Response as "Ex."
II. Evidentiary Hearing
"In a habeas corpus proceeding, the burden is on the petitioner to establish the need for an evidentiary hearing." Jones v. Sec'y, Fla. Dep't of Corr., 834 F.3d 1299, 1318 (11th Cir. 2016). "In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id. The pertinent facts of this case are fully developed in the record before the Court. Because this Court can "adequately assess [Petitioner's] claim without further factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will not be conducted.
III. Standard of Review
"A state prisoner's § 2254 habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996" (AEDPA). Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016). "'The purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction.'" Id. (quoting Greene v. Fisher, 132 S. Ct. 38, 43 (2011)).
Under AEDPA, when a state court has adjudicated the petitioner's claim on the merits, a federal court may not grant habeas relief unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). A state court's factual findings are presumed correct unless rebutted by clear and convincing evidence.[] Id. § 2254(e)(1); Ferrell v. Hall, 640 F.3d 1199, 1223 (11th Cir. 2011).Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013).
AEDPA "imposes a highly deferential standard for evaluating state court rulings" and "demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (internal quotation marks omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision." Harrington v. Richter, — U.S. —, —, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (internal quotation marks omitted). "It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). The Supreme Court has repeatedly instructed lower federal courts that an unreasonable application of law requires more than mere error or even clear error. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003); Lockyer, 538 U.S. at 75 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."); Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ("[A]n unreasonable application of federal law is different from an incorrect application of federal law.").
"This presumption of correctness applies equally to factual determinations made by state trial and appellate courts." Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)).
"[A] federal court reviewing the judgment of a state court must first identify the last adjudication on the merits. It does not matter whether that adjudication provided a reasoned opinion because section 2254(d) 'refers only to a decision' and does not 'requir[e] a statement of reasons.'" Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (quoting Harrington v. Richter, 562 U.S. 86, 98 (2011)). When the last adjudication on the merits "'is unaccompanied by an explanation,' a petitioner's burden under section 2254(d) is to 'show[ ] there was no reasonable basis for the state court to deny relief.'" Id. (quoting Richter, 562 U.S. at 98). "'[A] habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the] Court.'" Id. (quoting Richter, 562 U.S. at 102).
When the reasoning of the state trial court was reasonable, there is necessarily at least one reasonable basis on which the state supreme court could have denied relief and our inquiry ends. In this way, federal courts can use previous opinions as evidence that the relevant state court decision under review is reasonable. But the relevant state court decision for federal habeas review remains the last adjudication on the merits, and federal courts are not limited to assessing the reasoning of the lower court.Id. at 1239.
IV. Ineffective Assistance of Counsel
Regarding claims of ineffective assistance of counsel, a petitioner "must meet both the deficient performance and prejudice prongs of Strickland." Wong v. Belmontes, 558 U.S. 15, 16 (2009) (per curiam) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
To establish deficient performance, a person challenging a conviction must show that counsel's representation fell below an objective standard of reasonableness. A court considering a claim of ineffective assistance must apply a strong presumption that counsel's representation was within the wide range of reasonable professional assistance. The challenger's burden is to show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.Richter, 562 U.S. at 104 (citations and quotations omitted). Because both prongs of the two-part Strickland test must be satisfied to show a Sixth Amendment violation, "a court need not address the performance prong if the petitioner cannot meet the prejudice prong, and vice-versa." Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir. 2010) (citation omitted).
With respect to prejudice, a challenger must demonstrate 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. It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. Counsel's errors must be so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
A state court's adjudication of an ineffectiveness claim is accorded great deference.
The question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable - a substantially higher threshold. And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations and quotations omitted). Thus, the standards created by Strickland and § 2254(d) are both highly deferential, "and when the two apply in tandem, review is 'doubly' so[.]" Harrington, 562 U.S. at 105 (quoting Knowles, 556 U.S. at 123). As such, "[s]urmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
V. Findings of Fact and Conclusions of Law
A. Ground One
Petitioner argues that the state trial court lacked jurisdiction to enter a judgment or impose sentence in her case because the statute under which she was convicted, specifically Florida Statute § 893.13, as amended by Florida Statute § 893.101, is unconstitutional based on Shelton v. Sec'y, Dep't of Corr., 802 F. Supp. 2d 1289 (M.D. Fla. 2011) (Shelton I). Shelton I held that section 893.13 "violate[d] the due process clause" and "[was] unconstitutional on its face." Shelton I, 802 F. Supp. 2d at 1308. Petitioner raised this claim in her amended motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 (Amended Rule 3.850 Motion) in state trial court. Ex. Q. The state trial court denied Petitioner's claim finding that it was bound by the First District Court of Appeal's decisions upholding the constitutionality of Florida Statute § 893.13, as amended by Florida Statute § 893.101. Ex. R at 2. The First District Court of Appeal (First DCA) affirmed the state trial court's denial of this claim. Ex. S.
In affirming the state trial court's decision, the First DCA relied on the Florida Supreme Court's opinion in State v. Adkins, 96 So. 3d 412 (Fla. 2012). In Adkins, the Florida Supreme Court held that section 893.101 did "not violate any requirement of due process articulated by [its] Court or the [United States] Supreme Court," thereby rejecting the contention that section 893.13 was unconstitutional. Adkins, 96 So. 3d at 423. Thereafter, the Eleventh Circuit Court of Appeals reversed Shelton I and held that the Adkins decision was not contrary to clearly established federal law and was not an unreasonable application of clearly established federal law. Shelton v. Sec'y, Dep't of Corr., 691 F.3d 1348 (11th Cir. 2012) (Shelton II).
Thus, based on Shelton II and upon thorough review of the record, the Court concludes that the state court's adjudication of this claim was not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Petitioner is not entitled to relief on ground one.
B. Ground Two
Petitioner argues that trial counsel was ineffective for advising her to reject a plea offer of two years in prison followed by three years of probation and proceed to trial because trial counsel "was sure to win at trial" (Subclaim I). Petitioner raised this claim in her Amended Rule 3.850 Motion in state trial court. Ex. Q. The state trial court denied Petitioner's claim finding that it was "legally insufficient for failure to allege any specific deficiency on counsel's part." Ex. R at 4. The First DCA reversed the state trial court's denial of this claim finding that the state trial court should have allowed Petitioner an opportunity to amend her claim. Ex. S. On remand, the state trial court dismissed this claim and granted Petitioner leave to amend within thirty days. Ex. T. Thereafter, Petitioner filed another amended motion for post-conviction relief (Second Amended 3.850 Motion) again arguing that trial counsel was ineffective for advising her to reject the plea offer. Exs. U, V. Additionally, Petitioner argued that trial counsel was ineffective for failing to advise her of the maximum sentence she faced if convicted (Subclaim II). Exs. U, V.
After review of the Second Amended 3.850 Motion, the state trial court again denied Subclaim I and found that
the Defendant pleads no specific facts or explanation in the instant motion that detail why counsel's performance was deficient for promising to win at trial and then failing to win. The Defendant does not assert that counsel's evaluation of his chances of winning at trial was unreasonable. The Defendant does not provide any factual description of why counsel "should not have guaranteed that he would win at trial." Further, the Defendant does not assert what counsel should have done differently in order to bring his actions into the range of effective performance. These empty allegations and conclusory arguments do not entitle the Defendant to postconviction relief. See Morgan v. State, 991 So. 2d 835, 841 (Fla. 2008) ("The mere fact that Morgan did not prevail at trial does not translate into misadvice. Some specific deficiency on the part of counsel must be alleged."). With regard to prejudice, the Defendant does not demonstrate that a reasonable probability exists that the outcome of the trial would have been different but for counsel's failing to win the trial after his promise to win, or that, as a result of this alleged ineffective assistance, the trial was rendered fundamentally unfair, as required by Florida law. See, e.g., Sochor v. State, 883 So. 2d 766, 784 (Fla. 2004). In fact, the instant motion contains no additional information about why the Defendant believes that counsel was ineffective for believing he could win the trial or what happened at the trial that rendered it unfair based on counsel's performance. Therefore, as the Defendant's claim remains insufficient, and she has been afforded the opportunity to make it sufficient, the instant claim is summarily denied. See Morgan v. State, 991 So. 2d 835.Ex. X at 2-3. Further, the state trial court denied Subclaim II on the basis that (1) the additional claim was "an abuse of procedure" because Petitioner failed to assert the claim in a prior post-conviction motion and (2) Petitioner failed to demonstrate prejudice as required under Strickland. With respect to the lack of prejudice, the state trial court stated
The Defendant admits that counsel did tell her "that the charge she was accused of carried a three year minimum mandatory." Amended Motion at 3. Then, the Defendant claims that the plea agreement she rejected called for two years in DOC and three years of probation. Still, the Defendant argues that her decision to proceed to trial was coerced because "counsel [attorney] had a duty to inform her that this was a favorable plea offer and that it was actually for less than the minimum mandatory of three years." Motion at 3. This argument is illogical. If counsel did tell the Defendant that the minimum mandatory sentence was three years in DOC, as she admits, then the Defendant did know that the plea agreement of two years in DOC was favorable because it offered less than the minimum mandatory of three years in DOC. Therefore, the Defendant is admitting that she proceeded to trial knowing full well that the minimum sentence she could receive was at least one year more than the plea agreement's sentence called for---the same plea agreement that she now requests be accepted if the instant motion is granted. See attached Amended Motion at 4. This discredits the Defendant's claim that her decision to reject the plea agreement was uninformed.
A review of the record also reflects that the Defendant cannot demonstrate prejudice regarding her alleged lack of knowledge of the maximum sentence. The record contains a document entitled Statement of Rights and Receipt of Charges, filed with the Suwannee County Clerk of the Court on May 15, 2006---after the Defendant's first appearance in this Court. See attached Statement of Rights and Receipt of Charges. In the Statement, the Defendant acknowledged that she "had explained to [her] the charges upon which [she] was arrested, the nature of the charge(s) against [her], the maximum penalty therefor, and the conditions of [her] release, if any." Statement of Rights and Receipt of Charges, emphasis added. The Defendant signed the Statement. See attached. Therefore, even if counsel did not explain the maximum sentence to the Defendant, she had known of the maximum sentence that she faced since her very first appearance before this Court. See attached. Therefore,
the Defendant could not have suffered prejudice from the alleged ineffective assistance of counsel in this regard. If a defendant cannot demonstrate prejudice, it is not necessary to delve into whether counsel's performance was actually deficient. See, e.g., Hurst v. State, 18 So. 3d 975 (Fla. 2009).Ex. X at 4 (emphasis in original). The First DCA per curiam affirmed without opinion the state trial court's denial of these claims. Ex. Y.
Respondent contends Subclaims I and II are not exhausted and without merit. Under the AEDPA, "a petitioner must exhaust all state court remedies available for challenging his conviction" before the petitioner can seek federal habeas relief. Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351 (11th Cir. 2012) (citing 28 U.S.C. § 2254(b), (c)). For a federal claim to be exhausted, the petitioner must "fairly present" the federal claim to the state courts in a manner that allows "the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). "In the process of exhausting a [federal] claim, the petitioner must [also] comply with all 'independent and adequate' state procedures, else the petitioner will have procedurally defaulted on that claim." Powell v. Allen, 602 F.3d 1263, 1269 (11th Cir. 2010). That said, "[a] habeas petitioner who has [procedurally] defaulted his federal claims in state court meets the technical requirements for exhaustion [as] there are no state remedies any longer 'available' to him." Coleman v. Thompson, 501 U.S. 722, 732 (1991). However, "[a]n adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'" Alderman v. Zant, 22 F.3d 1541, 1551 (11th Cir. 1994) (quoting Harris v. Reed, 489 U.S. 255, 262 (1989)). The Eleventh Circuit Court of Appeals applies a three-part test to determine
when a state court's procedural ruling constitutes an independent and adequate state rule of decision. First, the last state court rendering a judgment in the case must clearly and expressly state that it is relying on state procedural rules to resolve the federal claim without reaching the merits of that claim. Secondly, the state court's decision must rest solidly on state law grounds, and may not be "intertwined with an interpretation of federal law." Finally, the state procedural rule must be adequate; i.e., it must not be applied in an arbitrary or unprecedented fashion. The state court's procedural rule cannot be "manifestly unfair" in its treatment of the petitioner's federal constitutional claim to be considered adequate for the purposes of the procedural default doctrine.Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) (internal citations omitted).
1. Subclaim I
With regard to Subclaim I, Petitioner presented Subclaim I to the state trial court and the First DCA affirmed the denial of Subclaim I based on the state trial court's determination that the claim was facially insufficient. See Mason v. Allen, 605 F.3d 1114, 1119 n.2 (11th Cir. 2010) ("When the last state court rendering judgment affirms without explanation, we presume that it rests on the reasons given in the last reasoned decision." (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991); Sweet v. Sec'y, Dep't of Corrs., 467 F.3d 1311, 1316-17 (11th Cir. 2006))). Thus, Petitioner met the technical requirements for exhaustion on Subclaim I, and therefore, the Court will review the claim with AEDPA deference to the state appellate court's decision. See Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1286 (11th Cir. 2012) ("a Florida state court's dismissal of a post-conviction claim for facial insufficiency constitutes—at least for purposes of the procedural default analysis—a ruling 'on the merits' that is not barred from [the Court's] review.").
Upon thorough review of the record, the Court concludes that the state court's adjudication of Subclaim I was not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
Even assuming the state court's adjudication of this claim is not entitle to deference, this claim is without merit. Under the first prong of Strickland, to establish trial counsel's deficient performance, Petitioner "must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 689. That said, "an erroneous strategic prediction about the outcome of a trial is not necessarily deficient performance." Lafler v. Cooper, 566 U.S. 156, 174 (2012).
In this case, Petitioner fails to allege or explain how trial counsel's advice predicting the outcome of the trial was unreasonable. Petitioner does not allege trial counsel advice was based on an incomplete investigation of the facts and circumstances of the case, a flawed defense strategy, or an inaccurate understanding of the Florida statutes or case law. As such, Petitioner fails to demonstrate that trial counsel's performance was deficient. Petitioner is not entitled to relief on Subclaim I of ground two.
2. Subclaim II
With respect to Subclaim II, Petitioner presented Subclaim II to the state trial court and the First DCA affirmed the denial of Subclaim II based on the state trial court's determination that the claim was "an abuse of procedure" and without merit. See Mason, 605 F.3d at 1119 n.2 ("When the last state court rendering judgment affirms without explanation, we presume that it rests on the reasons given in the last reasoned decision."). Thus, Petitioner met the technical requirements for exhaustion. Nevertheless, because the state court denied Subclaim II after clearly and expressly relying on a state procedural rule that was not "intertwined with an interpretation of federal law" and was adequate, the claim is barred from federal review. See Alderman, 22 F.3d at 1549 (citing Harris, 489 U.S. at 264 n.10) ("[W]here a state court has ruled in the alternative, addressing both the independent state procedural ground and the merits of the federal claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim."). Petitioner has not established a cause and prejudice exception, nor has she shown that there would be a fundamental miscarriage of justice to overcome the bar.
Even assuming Subclaim II is not barred and giving AEDPA deference to the state appellate court's decision, Petitioner is not entitled to relief. The state trial court noted that after Petitioner's first appearance in court, Petitioner signed a document acknowledging the fact that Petitioner was aware of the maximum penalties of the charges filed against her. Ex. X at 4. Petitioner provides no rebuttal to this fact. Therefore, Petitioner was aware of the maximum penalties at the time she was making the decision to either accept or not accept the plea offer, and failed to demonstrate prejudice under Stickland.
While it appears the Statement of Rights and Receipt of Charges was inadvertently left out of the federal habeas record, the Court accepts the state trial court's finding regarding it.
Upon thorough review of the record, the Court concludes that the state court's adjudication of Subclaim II was not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Petitioner is not entitled to relief on Subclaim II of ground two.
C. Ground Three
Petitioner argues that the trial court erred in denying her motion to suppress that sought suppression of evidence (i.e. cocaine and marijuana) obtained as a result of a search warrant. Petitioner raised this claim on direct appeal. Ex. J. The First DCA per curiam affirmed without opinion. Ex. N.
Pursuant to Stone v. Powell, 428 U.S. 465 (1976), Respondent contends this claim is barred from federal habeas review because "Petitioner received a full and fair hearing on the issue in the state courts." Response at 10. Further, Respondent contends this claim is without merit.
In Stone, the United States Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." 428 U.S. 465, 494 (1976). "For a claim to be fully and fairly considered by the state courts, where there are facts in dispute, full and fair consideration requires consideration by the fact-finding court, and at least the availability of meaningful appellate review by a higher state court." Tukes v. Dugger, 911 F.2d 508, 513-14 (11th Cir. 1990) (quoting Morgan v. Estelle, 588 F.2d 934, 941 (5th Cir. 1979)). However, a "trial court's failure to make explicit findings on matters essential to the fourth amendment issue, combined with . . . the state appellate court['s] summary affirmance, precludes a conclusion . . . that the state provided the meaningful appellate review necessary to erect a Stone v. Powell bar to [a] review of the claim." Id. at 514; see Hearn v. Florida, 326 F. App'x 519, 522 (11th Cir. 2009) ("A state does not afford a defendant a full and fair opportunity to litigate the validity of a search under the Fourth Amendment when the state courts fail to make essential findings of fact."). Now "[w]here . . . the facts are undisputed, and there is nothing to be served by ordering a new evidentiary hearing, the full and fair consideration requirement is satisfied where the state appellate court, presented with an undisputed factual record, gives full consideration to defendant's Fourth Amendment claims." Tukes, 911 F.2d at 514 (quoting Morgan, 588 F.2d at 941).
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as precedent those cases decided in the Fifth Circuit prior to October 1, 1981.
Here, at the hearing on her motion to suppress, Petitioner argued before the state trial court that the allegations stated in the affidavit in support of the search warrant failed to establish probable cause. Ex. E. Petitioner, however, did not dispute any of the actual allegations made in the affidavit. Therefore, the state trial court did not need to make any findings of fact because the facts were already established. The state trial court denied the motion to suppress finding there was "a reasonable inference that Ms. Frank went to the home to obtain the drugs based on the circumstances outlined in the probable cause affidavit and . . . therefore . . . there [was] sufficient probable cause for the issuance of the warrant." Ex. E at 11. The First DCA presented with the same facts as the state trial court affirmed. Therefore, under Stone, this claim is barred from federal habeas review because Petitioner had a full and fair opportunity to litigate her Fourth Amendment claim.
Assuming this claim is not barred, Petitioner is not entitled to relief. "Probable cause to support a search warrant exists when the totality of the circumstances allows the conclusion that 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Kapordelis, 569 F.3d 1291, 1310 (11th Cir. 2009) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). Where a warrant to search a residence is sought, "the affidavit should establish a connection between the defendant and the residence to be searched and a link between the residence and any criminal activity." United States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002).
The affidavit in this case reveals that a reliable confidential informant (CI) informed investigators with the Suwannee County Sheriff's Office (SCSO) that he or she had previously purchased crack cocaine from Yolanda Frank (Frank). Ex. C at 2. At the time of that purchase, the CI witnessed Frank walk from 300 Sixth Street to 301 Louis Avenue, the property that was the subject of the search warrant (Subject Property), enter and leave the Subject Property, and then return to 300 Sixth Street with crack cocaine. Ex. C at 2. Based on this information and with the CI's cooperation, the SCSO arranged a controlled drug buy between Frank and the CI. Ex. C at 2.
For the controlled buy, the affiant, a law enforcement officer with approximately fifteen years of experience, who was working in an undercover capacity, drove the CI to 300 Sixth Street to meet Frank. Ex. C at 3. The affiant and CI made contact with Frank and the CI asked Frank for $100.00 worth of crack cocaine. Ex. C at 3. Frank told the CI to wait and the affiant observed Frank walk to and enter the Subject Property. Ex. C at 3. Shortly thereafter, the affiant observed Frank exit the Subject Property, walk back to the vehicle occupied by the affiant and CI, and hand a substance to the affiant. Ex. C at 3. A presumptive test was performed on the substance indicating the presence of cocaine. Further, the affidavit stated that the Subject Property was "being occupied by or under the control of a black female, SHIRLEY ROBINSON and/or other unknown subjects . . ." Ex. C at 1.
The Court finds that the affidavit contained sufficient evidence to establish probable cause for a search warrant. Therefore, the state court's adjudication of this claim was not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Petitioner is not entitled to relief on ground three.
D. Ground Four
Petitioner argues that trial counsel was ineffective for failing "to request a jury instruction as to the affirmative defense of 'knowledge' pursuant to section 893.101 of the Florida Statutes." (Doc. 1 at 15). Petitioner raised this claim in an "addendum" to the Second Amended 3.850 Motion. Ex. W. The state trial court denied consideration of the claim concluding the "addendum" was procedurally barred for three reasons: (1) it was successive, (2) it was untimely, and (3) it was "an abuse of procedure" because Petitioner failed to raise the claim in a prior post-conviction motion. Ex. X at 4-6. The First DCA per curiam affirmed without opinion the state trial court's denial of the "addendum." Ex. Y. Respondent contends this claim is not exhausted and without merit.
Like ground two, Petitioner presented this claim to the state trial court and the First DCA affirmed the denial of this claim. See Mason, 605 F.3d at 1119 n.2 ("When the last state court rendering judgment affirms without explanation, we presume that it rests on the reasons given in the last reasoned decision."). Nevertheless, because the state court denied this claim after clearly and expressly relying on a state procedural rule that was not "intertwined with an interpretation of federal law" and was adequate, this claim is barred from federal review. Petitioner has not established a cause and prejudice exception, nor has she shown that there would be a fundamental miscarriage of justice to overcome the bar.
Notwithstanding the bar, Petitioner's claim is without merit. Petitioner's defense at trial was that she had no knowledge of the cocaine found at the Subject Property and that the cocaine did not belong to her. See Ex. E. Petitioner presented no evidence to support the affirmative defense that she did not know the illicit nature of the substance found at the home. Thus, Petitioner was not entitled to a jury instruction based on this affirmative defense. Trial counsel's performance cannot be deficient for failing to request a jury instruction where the evidence presented at trial does not support such jury instruction. See Fondren v. Comm'r, Ala. Dep't of Corr., 568 F. App'x 680, 686 (11th Cir. 2014) ("It is axiomatic that if an instruction was not warranted by the facts established at trial, then a failure to request such instruction or object to its absence cannot constitute ineffective assistance of counsel.").
Here, the Court assumes Petitioner properly presented this claim to the state court, yet the state court did not adjudicate the claim on the merits. Therefore, the Court reviews this claim de novo. See Cone v. Bell, 556 U.S. 449, 472 (2009)
Further, the jury instruction given to the jury required the jury to review the evidence presented at trial and determine beyond a reasonable doubt that Petitioner knew the substance found at the Subject Property was cocaine. As Respondent points out "[t]his instruction was far more favorable to Petitioner than an instruction which [would have] place[d] the burden on her" (Doc. 19 at 18) to inject reasonable doubt. In light of the jury instruction given, there was no reasonable probability that the result of the proceeding would have been different, and therefore, Petitioner fails to demonstrate prejudice. Petitioner is not entitled to relief on ground four.
"[t]o prove the crime of trafficking in cocaine, the state must prove the following four elements beyond a reasonable doubt: First, that Shirley Ann Robinson knowingly possessed a certain substance. Second, the substance was cocaine or a mixture containing cocaine. Third, the quantity of the substance involved was 28 grams or more. Fourth, Shirley Ann Robinson knew that the substance was cocaine or a mixture containing cocaine." Ex. F at 262 (emphasis added).
VI. Conclusion
The Court has considered Petitioner's claims and reviewed the state court record. After due consideration, it is
ORDERED:
1. The Petition (Doc. 1) is DENIED, and this case is DISMISSED WITH PREJUDICE.
2. The Clerk of the Court shall enter judgment dismissing this case with prejudice and close this case.
3. If Petitioner appeals the denial of the Petition, the Court denies a certificate of appealability. Because this Court has determined that a
certificate of appealability is not warranted, the Clerk of the Court shall terminate from the pending motions report any motion to proceed on appeal as a pauper that may be filed in this case. Such termination shall serve as a denial of the motion.
This Court should issue a certificate of appealability only if Petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this substantial showing, Petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were 'adequate to deserve encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration of the record as a whole, a certificate of appealability is not warranted. --------
DONE AND ORDERED at Jacksonville, Florida this 4th day of March, 2017.
/s/_________
TIMOTHY J. CORRIGAN
United States District Judge sflc
c:
Petitioner
Counsel of Record