CHARLES A. STAMPELOS, Magistrate Judge.
On October 20, 2014, Petitioner, Gregory Pappas, a prisoner in the custody of the Florida Department of Corrections, proceeding through counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Pursuant to orders of this Court, Petitioner filed a Second Amended Petition on December 18, 2014, ECF No. 8, and on March 10, 2015, a third amended petition with memorandum. ECF Nos. 12, 13, 14. Respondent filed an answer with exhibits on December 7, 2015. ECF Nos. 25, 27. Petitioner filed a reply with exhibits on January 7, 2016. ECF No. 29.
The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all the issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this case. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons set forth herein, the pleadings and attachments before the Court show that Petitioner is not entitled to federal habeas relief and this amended § 2254 petition should be denied.
Petitioner was charged by Amended Information on July 5, 2007, in the circuit court in and for Escambia County, Florida, with Count 1, shooting into an occupied vehicle on or about February 28, 2007, in violation of section 790.19, Florida Statutes; and Count 2, aggravated assault by threat with a deadly weapon, without intent to kill, by firing a flare gun at an occupied vehicle, and at the time possessing a firearm, a flare gun, in violation of sections 784.021(1)(a) and 775.087(2), Florida Statutes. Ex. A at 3.
Jury trial was held on May 27-28, 2008, at which Petitioner did not testify. Ex. D, E. The jury found Petitioner guilty as charged, with a special finding that he used, carried, or actually possessed a firearm and that he discharged it during the commission of the aggravated assault. Ex. C at 447. Judgment and sentence were entered on May 28, 2008, and Petitioner was sentenced on Count 2 to a minimum mandatory term of twenty years in prison due to the finding that Petitioner used, carried or actually possessed a firearm and discharged a firearm. Petitioner was sentenced to a concurrent term of five years in prison for Count 1, with credit for time served of two days. Ex. C at 448-56.
Petitioner appealed to the state First District Court of Appeal, which affirmed per curiam without opinion on August 20, 2009.
Petitioner filed a motion for post-conviction relief in the trial court pursuant to Florida Rule of Criminal Procedure 3.850 on January 10, 2011.
Petitioner filed his third amended petition for writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254 raising the following grounds for relief:
Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for persons in state custody only under certain specified circumstances. Section 2254(d) provides in pertinent part:
28 U.S.C. § 2254(d). See also
"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."
The Supreme Court has explained that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable."
Id. at 102-03 (citation omitted). The federal court employs a "`highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'"
"Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court."
In order to obtain review where a claim is unexhausted and, thus, procedurally defaulted, the Petitioner must show cause for the default and prejudice resulting therefrom or a fundamental miscarriage of justice.
This Court's review "is limited to the record that was before the state court that adjudicated the claim on the merits."
For claims of ineffective assistance of counsel, the United States Supreme Court has adopted a two-part test:
To demonstrate prejudice under
Petitioner contends he was denied effective assistance of trial counsel when his attorney failed to move to suppress evidence seized from his truck after police entered Petitioner's garage to feel the truck's hood. ECF No. 13 at 5. This claim was raised in his Rule 3.850 motion and denied by the post-conviction court. Ex. U at 228.
The police arrived at Petitioner's home after a report that he had fired a flare gun during an apparent road rage incident. Law enforcement received a 911 call from the victim Susan Elizabeth Langston reporting that when she turned on to Bayou Boulevard from Lloyd Street in Escambia County, she noticed a vehicle directly behind her flashing its lights. Ex. A at 4 (police report). She reported that when the vehicle passed her on the left, the driver, later identified as Petitioner, gave her a rude hand signal, which she returned. Langston reported that Petitioner pulled his vehicle to the shoulder and as she drove past, he stuck his arm out the window and was holding what appeared to be an orange flare gun, which was in the shape of an actual gun. The victim reported that Petitioner fired the flare gun and a flare was projected over her car in which her seven-year-old daughter was a passenger.
Langston managed to obtain the vehicle tag number, and law enforcement was dispatched to Petitioner's residence where the vehicle with that tag number was parked in the open garage. The arrest report stated that the vehicle, which matched the description and tag number given by the victim, "had a warm hood." Ex. A at 4. Petitioner was arrested and, the report indicates, "[a] search of Pappas' vehicle, incident to arrest, revealed an orange flare gun located in an open compartment on the driver's side door. . . . The flare gun was seized and turned in as evidence." Ex. A at 5.
The post-conviction court granted an evidentiary hearing on this claim that trial counsel was ineffective for failing to move to suppress the search of Petitioner's vehicle and the seizure of the flare gun. At the hearing, held March 12, 2012, both Petitioner and his trial counsel testified. The court also reviewed transcripts of the testimony of two officers in the case and the trial transcript. Ex. T at 95-98. Petitioner testified that when the first officer arrived at his residence, he met him outside in front of the open garage. Petitioner's truck was parked inside. Petitioner testified that he was never asked for permission and never gave officers permission to enter his home, his curtilage, or his garage. Ex. T at 104-05.
Petitioner testified that a second officer, Officer Fortenberry, drove up in his driveway and exited her vehicle, screaming at him that "the lady had a baby in the car." Ex. T at 107. Petitioner said that Officer Fortenberry then entered the garage without asking permission and touched the hood of the truck, which was facing forward inside the garage. Ex. T at 107-110. Petitioner said he refused to answer any questions posed by the officers and he asked for a lawyer, but they continued to ask him questions. Ex. T at 112-13. He testified that he requested they not go into the truck, and once they did, he was arrested and the flare gun was seized. Ex. T at 114.
At the Rule 3.850 hearing, Petitioner testified that his trial counsel talked to him before trial and advised him about trial strategy. Ex. T at 116. According to Petitioner, he told his trial counsel about how the officers entered the garage without his consent and went into his truck to seize a flare gun, but that his attorney never discussed the possibility of suppression of the evidence with him. Ex. T at 128.
Petitioner's trial counsel testified at the evidentiary hearing that he and Petitioner discussed the circumstances of the officers entering his garage and that he explored the possibility of moving to suppress. Ex. T at 147. He said he deposed the officers with that possibility in mind and he provided the copies of the deposition transcripts to Petitioner to review. He recalled that it was "after the flare had been found from — based on the consent, they got the flare." Ex. T at 148. He testified that Petitioner never told him he did not give permission for officers to go into the truck and that based on his conversations with Petitioner, "it was clear to me there was no motion to suppress available." Ex. T at 148.
Trial counsel was cross-examined on the issue of whether, when he deposed Officer Fortenberry, and she said she went into the garage to check the truck, counsel should have seen that a motion to suppress was necessary. Ex. T at 166. Counsel did not respond directly but testified that he did discuss the possibility of a suppression motion with Petitioner. Counsel explained: "There was more than a thorough discussion with my client. We talked about it because it was hard to make him understand things sometimes, so I went over it with him numerous times." Ex. T at 173. Counsel also testified that he recalled the depositions indicating that entry into the garage and touching the hood of the car came after Petitioner gave permission to Officer Briarton to search the truck. Ex. T at 170. However, Officer Fortenberry testified in her deposition, which the post-conviction court reviewed, that after she arrived at Petitioner's residence, he was read his
Petitioner's claim that trial counsel should have moved to suppress the evidence of the flare gun because any consent to search the truck was tainted by Officer Fortenberry's warrantless entry into the garage to feel the truck hood was denied by the post-conviction court. Ex. U at 228-33. The court found trial counsel's testimony to be credible and Petitioner's testimony to be less than credible. Ex. U at 229. The court also found that before consent to search was given, Officer Fortenberry briefly entered the open garage and felt the truck hood. Ex. U at 230. The court stated in the order:
Ex. U at 231-232 (citations and footnotes omitted). The court also noted that counsel filed voluminous pretrial motions in pursuance of his strategy to challenge the constitutionality of the statute. Ex. U at 232, n.15. Denial of this claim was affirmed by the state First District Court of Appeal. Ex. CC. These state court adjudications are entitled to AEDPA deference.
In light of the testimony presented at the evidentiary hearing concerning counsel's trial strategy and investigation into the possibility of a successful motion to suppress, and in light of the trial testimony, the post-conviction court's credibility determinations and conclusions are not objectively unreasonable. Under § 2254(d), federal courts have "no license to determine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them."
Neither deficiency nor prejudice under the standards required by
Petitioner has failed to demonstrate that the state courts' adjudication of this claim resulted in a decision that is contrary to, or involving an unreasonable application of,
Petitioner contends in Ground 2 that he was denied effective assistance of trial counsel when counsel failed to request a jury instruction mirroring the definitions of "firearm" and "destructive device" under section 775.087(2), Florida Statutes, and by reference therein, section 790.001, Florida Statutes. ECF No. 13 at 7. This claim was raised in Petitioner's post-conviction motion and denied by the trial court. Ex. U at 227. The state First District Court of Appeal affirmed. Ex. CC.
Count 2 of the Amended Information alleged that Petitioner committed an aggravated assault and in the course of that offense, actually possessed and discharged a firearm, to-wit: a flare gun, in violation of sections 784.021(1)(a) and 775.087(2), Florida Statutes. Ex. A at 3. Petitioner contends that prior to the start of the jury trial, the court removed the definition of "destructive device" from the jury instructions as inapplicable, and shortened the definition of "firearm," all without objection by Petitioner's counsel. ECF No. 11-2 at 10. Petitioner argues that the definition of "destructive device" is an "exculpatory definition" because a flare gun does not meet the statutory definition of a "destructive device," and failure to have the jury instructed on it was a violation of due process. Id. He further contends that the shorter version of the definition of "firearm" favored the State. Id. at 10.
The Respondent contends that the definition of "destructive device" was not necessary because it was irrelevant to the charges, which alleged possession and discharge of a "firearm." ECF No. 25 at 31. Respondent also contends that the revised version of the statutory definition of "firearm" given to the jury was simply a more concise version of the definition and only omitted irrelevant parts of that statutory definition. Id.
The post-conviction court denied the claim, finding that the instruction given to the jury—"A firearm is legally defined as any weapon which will, is designed to, or may be readily converted to: one, expel a projectile; two, by action of an explosive"—was a proper instruction based on the charges filed and the facts of the case. Ex. U at 227. At trial, defense counsel agreed with this instruction. Ex. D at 63.
The post-conviction court characterized the instruction given as a shorter version of the statutory definition which "omitted the inapplicable provisions." Id. The court concluded that it would not have made any difference in the outcome of the trial if a longer statutory definition of "firearm" had been given. The court also agreed that under the statutory definition of "destructive device," a flare gun would not have qualified as such, but that the jury was only tasked with determining if Petitioner carried a "firearm." Ex. U at 228.
At trial, the court instructed the jury on the charge of aggravated assault, and in so doing stated in pertinent part:
Ex. E at 380-381. The full definition of "firearm" set forth in section 790.001(6), Florida Statutes (2008), is as follows:
§ 790.001(6), Fla. Stat. (2008). Although the statutory definition of "firearm" includes "any destructive device," it does so in the disjunctive. Terms in a statute that are connected by a disjunctive are generally given separate meanings.
Section 790.001(4) defines "destructive device" as follows:
§ 790.001(4), Fla. Stat. (2008). That statute goes on to exclude from the definition a device not designed or redesigned, used, or intended for use as a weapon; a device which is redesigned so that it may be used solely as a signaling, line-throwing, safety, or other similar device; any shotgun other than short-barreled; or any nonautomatic rifle other than a short-barreled rifle generally suitable for hunting big game. § 790.001(4)(a)-(d), Fla. Stat. (2008).
There was no allegation in the case pertaining to Petitioner possessing or using a "destructive device" in the commission of the offense. Thus, trial counsel was not deficient in failing to object to removing the definition of destructive device from the instructions given the jury. Because Petitioner was charged with possession and use of a firearm, which is defined in the disjunctive in the statute as "any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive," it was not unreasonable for the post-conviction court to find that counsel was not deficient in failing to request an instruction also defining "destructive device." Even if the statutory definition for "destructive device" had been given, the jury would also have been instructed on the definition of "firearm." Therefore, even if the jury had determined that the flare gun was not a destructive device, such a determination would not mean the jury would be precluded from finding that the flare gun met the definition of a "firearm," as Petitioner was charged with possessing and firing.
The post-conviction court also reasonably determined that trial counsel was not deficient in failing to object to the shortening of the definition of "firearm" to only that disjunctive portion that essentially described a device that expels a projectile by way of an explosive. The standard jury instruction for aggravation of a felony by carrying or using a firearm does recite the entire disjunctive statutory definition of "firearm" as set forth in section 790.001(6). See Fla. Std. Jury Instr. (Crim.) 3.3(a). However, those parts of the definition referring to "the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun" were not pertinent to the charge in the case or the evidence presented at trial.
The Florida Supreme Court has not mandated that any time the definition of "firearm" is required to be given to a jury, the entire statutory definition must be read. The opposite is true. For example, in the standard jury instruction for the offense of discharging a firearm in public or on residential property, the instruction defining "firearm" for purposes of that charge includes the same shortened version of the definition that was given in this case. See Fla. Std. Jury Instr. (Crim.) 10.6. The initial determination of the applicable substantive law in each case should be made by the trial judge and the judge is charged with correctly instructing the jury in each case.
At trial, the State presented a firearm and tool mark expert who testified that he had examined and test fired the flare gun found in Petitioner's truck. Ex. D at 165. He testified that the flare gun operated with a hammer which is cocked and a trigger which is pulled, causing the firing pin to travel forward to strike the primer of the cartridge. Ex. D at 169-70. The flare gun also has a breech and a barrel. Ex. D at 170. He testified that these same features appear on a gun. Ex. D163-64; 171. He testified that the striking of the pin ignites the process of burning powder which expels whatever is in the barrel of the flare gun. Id. at 172. When he test fired the flare gun, he first loaded it with a cartridge in the barrel, pulled the hammer back, and then pulled the trigger. Ex. D at 187-88. He said the flare gun expels a projectile by means of an explosive. Ex. D at 190. When he fired it, it operated consistent with that of a pistol that expels a bullet. Ex. D at 188, 190.
Whether, based on this and the other testimony presented, the flare gun met the definition of a firearm as charged in the Amended Information and as described in the jury instructions was a question for the jury. See
Petitioner has not demonstrated that the post-conviction court unreasonably determined that counsel was not deficient in failing to request a reading of the entire definition of "firearm" and in failing to request an instruction on the definition of "destructive device." Accordingly, Petitioner has failed to meet the requirements of 28 U.S.C. § 2254(d). Habeas relief on this ground should be denied.
Petitioner contends that he was denied effective assistance of appellate counsel when his attorney failed to argue on appeal the trial court's denial of a "deadly weapon" alternative to "firearm" on the aggravated assault verdict form, which he contends, denied him due process and the possibility of a jury pardon. ECF No. 13 at 9; ECF No. 14 at 13. He argues that "aggravated assault with a deadly weapon" is a "one-step removed lesser-included offense of Aggravated Assault with a Firearm." ECF No. 14 at 23. He also argues here that nowhere on the verdict form was a provision made for the jury to find him guilty only of aggravated assault without the enhancement for a firearm provided in section 775.087(2), Florida Statutes. He claims this omission prejudiced him because the appellate court would have reversed based on the confusing jury verdict form omitting a lesser included offense.
A similar claim was raised in Petitioner's petition for writ of habeas corpus alleging ineffective assistance of appellate counsel in the state First District Court of Appeal. Ex. L at 8-10. In that petition, he argued that the verdict form was incorrect, and that appellate counsel should have raised the issue because it did not provide an alternative verdict of aggravated assault with a deadly weapon, which he characterized as a lesser included offense of aggravated assault with a firearm. Ex. L at 8. The petition was denied on the merits without explanation. Ex. Q.
Petitioner appears to refer to the interchange that occurred at trial, after the jury was instructed, when trial counsel asked the court to amend the verdict form. Ex. E at 391-92; 399. Trial counsel's objection to the verdict form was stated to the judge as follows:
Ex. E at 391-393. Further discussion ensued a short time later and the trial judge made the following explanation:
Petitioner was charged with Count 2 in the Amended Information, alleging that he
Ex. A at 3 (emphases omitted). Section 784.021(1)(a), Florida Statutes (2008), with which Petitioner was charged, provides that an "aggravated assault" is an assault "with a deadly weapon" without intent to kill by intentional unlawful threat.
The verdict form as it pertained to Count 2 in this case stated:
Ex. C at 447. The jury found Petitioner guilty of aggravated assault by threat. That is the base charge of aggravated assault even though it did not mention "deadly weapon." That language did appear in Count 2 and did appear in the jury instructions given to the jury.
At trial, defense counsel was requesting primarily that, after the findings concerning a firearm, the verdict should reiterate that if the jury finds he did not use a firearm, they should find him guilty only of aggravated assault. As the trial judge explained, that finding was already on the verdict form, at the beginning, and did not need to be repeated at the end. If the jury found Petitioner guilty of aggravated assault but also found he did not use a firearm, the jury would indicate by checking "No" next to the questions asking about a firearm. The end result of such a finding would be that Petitioner was convicted of the base offense of aggravated assault without any enhancement for the firearm. Repetition of the option to find the Petitioner guilty of aggravated assault was not necessary and, as the trial judge indicated, would have been more confusing. The jury was properly instructed, and was told, "If you find only the defendant committed aggravated assault but did not possess a firearm, then you should find him guilty only of aggravated assault." Ex. E at 381. This provided the guidance Petitioner was seeking, and the verdict form allowed the jury to make that decision by checking the "No" lines if they found no firearm was involved.
Moreover, Petitioner was incorrect in characterizing "aggravated assault with a deadly weapon" as a lesser included offense of "aggravated assault with a firearm." The Florida Standard Jury Instruction for Aggravated Assault under section 784.021, Florida Statutes, lists as lesser included offenses: Improper exhibition of a dangerous weapon or firearm; Assault; Attempt, and Discharging firearms in public. See Fla. Std. Jury Instr. 8.2 (Crim.) Aggravated Assault. Therefore, in light of the actual charge of aggravated assault, the jury was correctly instructed. Moreover, the jury form correctly reflected the options available to the jury, including the option of finding Petitioner guilty of aggravated battery without the finding of use of a firearm. Ex. C at 447.
"Claims of ineffective assistance of appellate counsel are governed by the same standards applied to trial counsel under
The state district court of appeal denied this claim on the merits without explanation. Ex. Q. The Eleventh Circuit has reiterated the deference owed to the state courts' adjudication in a § 2254 petition:
Even if appellate counsel should have raised this claim as a non-frivolous issue preserved by trial counsel, the alleged error would likely have been found harmless beyond a reasonable doubt based on the evidence in the case. Evidence was presented that the flare gun at issue met, in all respects, the pertinent portion of the definition for "firearm" in section 790.001(6), Florida Statutes. The jury found that the flare gun was a "firearm" and that Petitioner actually discharged it. All these circumstances provide a reasonable basis for the state court to deny Petitioner's claim that trial counsel was ineffective and that, but for counsel's alleged error, the appeal would have been successful. For these reasons, Petitioner has not demonstrated that the state court's adjudication of this claim was contrary to or an unreasonable application of federal law.
Therefore, Petitioner has failed to demonstrate entitlement to relief under § 2254 and Ground 3 should be denied.
Petitioner next contends that he was denied effective assistance of appellate counsel when counsel failed to argue as error the trial court's refusal to allow his expert to testify that a flare is not an "explosive" or "firearm" under Federal law. ECF No. 13 at 10; ECF No. 14 at 16. At trial, Petitioner called Warren Parker, who was allowed to testify as an expert on explosives. Ex. E at 240. He testified without objection that a "flare launcher" such as the one involved in this case was larger than a standard pistol and is orange in color, and that in his opinion the flare launcher in this case was not a firearm under the Florida statutory definition. Ex. E at 242-43.
When Parker began to distinguish the primer mixture in a flare cartridge from that in a standard shotgun shell, he attempted to testify that under federal standards, the mixture was not classified as an explosive. Ex. E at 244. The trial court sustained the State's objection to Parker testifying to what Federal law provides regarding flare devices.
On cross-examination, Parker agreed that the flare launcher has a hammer, trigger, barrel, and breech just like a pistol. Ex. E at 267. He agreed the flare cartridge has a primer and black powder, which is a chemical compound that is ignited by heat and flame, and he agreed that under Florida law, an explosive is a chemical compound yielding to combustion by application of heat, flame, or shock. Ex. E at 268-69. He denied that the black powder in a flare launcher expels a projectile, but that it provides "some gases" that launch the flare. Ex. E at 270-71. The primer creates a spark. Ex. E at 275. Parker agreed that "[t]he cylinder is the flare" and that it comes out of the flare gun and is "consumed" as it flies through the air. Ex. E at 284-85. In answering a question on cross-examination, Parker also made reference to the flare launcher being exempted under federal law. No objection or motion to strike was made. Ex. E at 271.
Petitioner contends that appellate counsel should have argued on appeal that Parker, as an expert, should have been allowed to testify that a flare launcher does not qualify as an explosive or firearm under federal law. ECF No. 14 at 16-17. This claim was raised in the petition for writ of habeas corpus filed in the state First District Court of Appeal in which he contended that appellate counsel was ineffective for failing to make this argument. Ex. L. The appellate court affirmed on the merits. Ex. Q.
Respondent contends that the trial court did not abuse its discretion in excluding testimony of federal law or regulations on the issue of whether a flare gun or flare launcher is considered to be a firearm because the issue before the trial court was whether it was a firearm under Florida law. ECF No. 25 at 40. Accordingly, Respondent contends, appellate counsel cannot be deficient for failing to raise a meritless issue. ECF No. 25 at 43.
As noted above, "[c]laims of ineffective assistance of appellate counsel are governed by the same standards applied to trial counsel under
Therefore, even if the appellate court were to find that Parker should have been allowed to testify as an expert in more detail concerning the federal classification of flare launchers, it is likely the court would have found the limitation on Parker's testimony harmless in light of the totality of his testimony and that of the State's witnesses concerning the design and function of the flare gun. The jury was instructed to determine if the flare gun was a "firearm under the definition in section 790.001(6), as follows:
§ 790.001(6), Fla. Stat. (2008). The evidence met this definition provided in Florida law.
When the district court of appeal does not give reasons for its summary affirmance, "if there was any reasonable basis for the state court to deny relief, [this Court is] bound to affirm the denial of the petition."
Petitioner has failed to demonstrate that the state court's adjudication resulted in a decision that was contrary to, or involving an unreasonable application of,
In Ground 5, Petitioner contends that trial counsel rendered ineffective assistance by failing to move to suppress the "contaminated or destroyed" exculpatory evidence consisting of the flare gun that Officer Fortenberry discharged before placing into evidence.
Id. at 14.
Thus, to overcome the procedural default under
Petitioner gives no detailed information in the petition or memorandum of law as to why
Even assuming arguendo that Petitioner satisfies these threshold requirements, Petitioner still must demonstrate under
Petitioner argues here that Officer Fortenberry seized a flare gun from his truck at the time of his arrest. ECF No. 11-2 at 18. He alleges that the flare gun was loaded and "it is inconceivable that Officer Fortenberry who has been a certified L.E.O. for six (6) years, and trained in firearms handling and safety would cock the hammer while attempting to unload the flare gun. . . . Since the burnt gunpowder was lacking from the flare gun Fortenberry purposely fired the flare gun to produce the burnt gunpowder needed to establish that it was fired by Pappas." Id. at 18. He further alleged that he told his trial counsel that he never fired a flare gun and that "the flare device used by Pappas was a "Sky Blazer" flare stick (Stick Flare) which is similar to a roman candle (fireworks)." Id.
Even though this claim was not raised by Petitioner in the post-conviction motion, certain testimony was presented at the evidentiary hearing that is relevant to this inquiry. As he argues here, Petitioner testified at the evidentiary hearing that he did not use the flare gun taken from the vehicle, but used a flare stick. Ex. T at 117. His trial counsel testified at the evidentiary hearing that Petitioner admitted he fired the flare gun. Ex. T at 142. Counsel also testified at the hearing that Petitioner told him "we could say it was a stick flare. And I didn't think that would fly that it was a stick flare because of the description given by Ms. Langston, I think her name was." Ex. T at 143. Counsel said he understood Petitioner to be wanting to say something that was not accurate; and he thought it was not a good idea to put Petitioner on the witness stand to testify to this, both because the victim had described the device as a flare gun and because counsel knew what Petitioner was saying was not accurate. Id. Trial counsel testified that Petitioner "indicated that he could testify that he had a stick flare and not a flare gun. In other words, it would be a lie." Ex. T at 158. If counsel had this same belief and knowledge prior to trial after conversations with his client, he could have made the strategic decision not to move to suppress the flare gun based on allegations that it had been discharged by Fortenberry on purpose because she knew she had seized the wrong flare device, as Petitioner now contends.
Moreover, there was no indication in the testimony that Officer Fortenberry discharged the flare gun on purpose to create powder residue. She testified at her deposition prior to trial that she took the flare gun to the police station and "when I was trying to disengage it, I shot it off. So there is the empty shell casing in there." Ex. V at 12. She further explained, "I didn't want to put it in there loaded because God forbid somebody in property management handled it and it went off, like we do regular guns. I was trying to unload it and the trigger went back and it popped into the ground." Ex. V at 13. She said, "Next time I'll make sure I get someone who has experience with flare guns" to disable it. Ex. V at 17.
In light of Officer Fortenberry's deposition testimony, trial counsel would have been reasonable in concluding that a motion to suppress alleging that the officer fired the flare gun on purpose to create powder residue would not have been successful. The jury also heard during Officer Fortenberry's trial testimony that the flare gun had been fired accidentally. Ex. D at 158. Moreover, even if the flare gun itself had been suppressed, there is no reasonable probability—measured in terms of undermining confidence in the verdict—that the jury would have acquitted him of the charge in light of the trial testimony of the victim that she saw Petitioner fire an orange flare gun out the window of his vehicle toward her car.
Because Petitioner has failed to demonstrate a reasonable probability that, but for trial counsel's alleged error, the result of the trial would have been different, the claim of a substantial ineffectiveness sufficient to justify excusing the procedural default under
Based on the foregoing, Petitioner Gregory Pappas, is not entitled to federal habeas relief. Accordingly, the third amended § 2254 petition (ECF No. 13) should be denied.
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and if a certificate is issued "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." Rule 11(b) provides that a timely notice of appeal must still be filed, even if the court issues a certificate of appealability.
Petitioner fails to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2);
The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." The parties shall make any argument as to whether a certificate should issue by objections to this Report and Recommendation.
Leave to appeal in forma pauperis should also be denied. See Fed. R. App. P. 24(a)(3)(A) (providing that before or after notice of appeal is filed, the court may certify appeal is not in good faith or party is not otherwise entitled to appeal in forma pauperis).
It is therefore respectfully
