Scott v. Sec'y, Dep't of Corr.

CHESTER L. SCOTT, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.

Case No. 5:16-cv-684-Oc-36PRL

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION

March 24, 2020

ORDER DENYING PETITION

Petitioner, a Florida prisoner acting pro se, initiated this action for habeas corpus relief pursuant to 28 U.S.C. § 2254 (Dkt. 1). Upon consideration of the petition, the Court ordered Respondent to show cause why the relief sought in the petition should not be granted (Dkt. 2). Respondent filed a Response and Appendix (Dkt. 5). Petitioner has filed a Reply and Notice of Supplemental Authority (Dkts. 6, 8). Because the Court may resolve the petition on the basis of the record, an evidentiary hearing is not warranted. See Habeas Rule 8(a).

I. PROCEDURAL HISTORY

After a jury trial in Marion County, Petitioner was found guilty of one count of conspiracy to traffic in cocaine, 400 grams or more. (Dkt. 5, Respondents' Exhibits A, B, hereafter "Exh."). The case was prosecuted by the Florida Office of Statewide Prosecution.¹ (Exh. A). The evidence presented at trial consisted primarily of the contents of wiretaps andthe testimony of witnesses who testified regarding the sale and purchase of cocaine with Petitioner. (Exh. B). The Second Amended Information alleged that the offense involved Marion, Levy, Alachua, and Hillsborough counties. (Exh. A). At the close of the case in chief, defense counsel moved to dismiss based on the failure of the Office of Statewide Prosecution to establish jurisdiction. (Exh. B, pp. 256-58). The trial court denied the motion. Id. at 262-63. On October 17, 2011, Petitioner was sentenced to 20 years in prison, with a mandatory minimum term of 15 years. (Exh. D at p. 54).

Petitioner appealed, raising one ground for relief: the defense motion to dismiss should have been granted because the Office of Statewide Prosecution did not have jurisdiction; the proceedings below were timely challenged and therefore voidable. (Exh. G). On November 2, 2012, the Fifth District Court of Appeal affirmed Petitioner's conviction and sentence, issuing a written opinion. (Exh. J); Scott v. State, 102 So.3d 676 (Fla. 5th DCA 2012). The court noted the lead investigator's trial testimony "that many of the intercepted calls associated with Scott's illegal activities originated in Levy County (which is in a different judicial circuit than Marion County). Under King, this testimony was sufficient to demonstrate the OSP's authority to prosecute the Marion County crime for which Scott was convicted." Id. at 678 (citing King v. State, 790 So. 2d 477, 479-80 (Fla. 5th DCA 2001)). The DCA also agreed that the motion to dismiss was untimely under Rule 3.190(c) of the Florida Rules of Criminal Procedure and was waived because it was not raised prior to trial. Id. The Florida Supreme Court declined to accept jurisdiction. (Exh. Q).

On July 17, 2013, Petitioner filed a state habeas petition raising claims of ineffective assistance of appellate counsel, followed by Amended and Second Amended Petitions. (Exhs.R, S, Y). The Fifth District Court of Appeal denied the petitions on August 29, 2014. (Exh. CC.)

On June 27, 2014, Petitioner filed a motion for postconviction relief pursuant to Fla. R. Crim. P. 3.850. (Exh. DD). Petitioner eventually filed a second amended Rule 3.850 motion. (Exh. EE). The postconviction court conducted an evidentiary hearing on April 1, 2015. (Exh. HH). Petitioner was represented by counsel at the hearing. Id. The trial court denied the Amended Motion for Postconviction Relief on May 4, 2015. (Exh. II). The Fifth District Court of Appeal affirmed per curiam without opinion on July 5, 2015. (Exh. PP); Scott v. State, 198 So.3d 639 (Fla. 5th DCA 2015).

On November 28, 2016, Petitioner filed the present petition, raising six grounds for relief:

1. Appellate counsel was constitutionally ineffective for failing to argue that the prosecutor introduced evidence that exceeded the scope of the information;

2. Appellate counsel was constitutionally ineffective for failing to argue that it was error to admit unauthenticated audio recordings and transcripts of the recordings;

3. Appellate counsel was constitutionally ineffective for failing to argue that it was error to deny the motion for judgment of acquittal because the evidence supported a buy-sell transaction, not a conspiracy;

4. Appellate counsel was constitutionally ineffective for failing to argue that it was error to instruct the jury that it could find Petitioner guilty of conspiracy as a principal;

5. Trial counsel was constitutionally ineffective for failing to object to the jury instruction permitting the jury to find Petitioner guilty of conspiracy as a principal; and,

6. Trial counsel was constitutionally ineffective for failing to move to suppress the authorization for wiretap by the Office of Statewide Prosecution.

(Dkt. 1).

II. GOVERNING LEGAL PRINCIPLES

Because Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The AEDPA "establishes a more deferential standard of review of state habeas judgments," Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), 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); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (recognizing that the federal habeas court's evaluation of state-court rulings is highly deferential and that state-court decisions must be given the benefit of the doubt).

A. Standard of Review Under the AEDPA

Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim adjudicated on the merits in state court 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.

28 U.S.C. § 2254(d). The phrase "clearly established Federal law," encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).

"[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the 'contrary to' and 'unreasonable application' clauses articulate independent considerations afederal court must consider." Maharaj v. Secretary for Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):

Under the "contrary to" clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme 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 [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.

If the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was "objectively unreasonable." Id.

Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).

B. Ineffective Assistance of Counsel Standard

Claims of ineffective assistance of counsel are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to demonstrate both deficient performance by counsel and resulting prejudice. Demonstrating deficient performance "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Deficient performance is established if, "in light of all the circumstances, the identified acts oromissions [of counsel] were outside the wide range of professionally competent assistance." Id. at 690. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. Additionally, "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." Id.

Petitioner must demonstrate that counsel's alleged errors prejudiced the defense because "[a]n 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." Id. at 691-92. To show prejudice, a petitioner must show "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." Id. at 694.

Sustaining a claim of ineffective assistance of counsel on federal habeas review is very difficult...