CHARLENE EDWARDS HONEYWELL, District Judge.
Armistar Cole, a Florida inmate, timely filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his Hillsborough County convictions (Dkt. 1). Respondent filed a response (Dkt. 8), and Cole filed a reply (Dkt. 13). Upon consideration, the petition will be DENIED.
Cole was convicted after a jury trial of armed robbery and armed kidnapping. (Dkt. 10, Ex. 1, Vol. I, pp. 90-91). The trial court sentenced him to life in prison on both charges. (Dkt. 10, Ex. 1, Vol. II, p. 250). The state appellate court affirmed Cole's conviction and sentence for armed robbery, but reversed his conviction for armed kidnapping and directed the trial court to enter a judgment for the lesser offense of false imprisonment with a firearm. Cole v. State, 942 So.2d 1010 (Fla. 2d DCA 2006). The trial court did so and sentenced Cole to five years in prison for that charge. (Dkt. 10, Ex. 7). Cole did not appeal.
Cole filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Dkt. 10, Ex. 16). Following two remands from the state appellate court, the state postconviction court denied relief on the claim that Cole raises in his federal habeas petition. (Dkt. 10, Exs. 31, 39, 40); Cole v. State, 89 So.3d 993 (Fla. 2d DCA 2012) and Cole v. State, 146 So.3d 1259 (Fla. 2d DCA 2014). The state appellate court per curiam affirmed this denial of relief. (Dkt. 10, Ex. 42).
Theresa Zioerjen and her husband owned a Dollar Store. While Zioerjen was working there on the morning of July 8, 2003, Cole came in and purchased a bag of candy. Cole returned to the store a second time and bought a drink. When he entered the store a third time to buy candy, he placed money on the counter. As Zioerjen looked down to get change, Cole jumped over the counter and grabbed her by the neck. After a struggle, Cole pulled out a gun and took Zioerjen's purse. Cole also took a DVD player from behind the counter. He demanded that Zioerjen open a file cabinet, apparently believing it might contain money. After seeing that the file cabinet held only supplies, he pointed the gun at Zioerjen and told her to get in the bathroom and stay there.
A short time later, Zioerjen heard a chime indicating that Cole had exited. She left the bathroom and called 911. Police obtained videos from the store's security system that showed the robbery, Cole's two entrances into the store prior to the robbery, and the exterior area. A video from the parking lot showed a white pickup truck with several distinctive features, such as striping along the side and a toolbox in the bed.
Several months later, police developed Cole as a suspect when he was pulled over driving a truck similar to the one seen in the surveillance video. Detective Jimmy Hinkle made a photopack containing Cole's photo and showed it to Zioerjen. She identified Cole as the perpetrator. After police arrested Cole, he called his wife from jail and requested that she remove a DVD player from their home. Police later recovered the DVD player from an acquaintance of the Coles. The DVD player was the same model as the DVD player taken from the store, and a remote control provided by Zioerjen worked on it.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this proceeding. See Penry v. Johnson, 532 U.S. 782, 792 (2001). Habeas relief can only be granted if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated on the merits in state court unless the state court's adjudication:
A decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
The AEDPA was meant "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). Accordingly, "[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is different from an incorrect one." Id. at 694. See also Harrington v. Richter, 562 U.S. 86, 103 (2011) ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").
The state appellate court affirmed the denial of Cole's postconviction relief in per curiam decisions. These decisions warrant deference under § 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See also Richter, 562 U.S. at 99 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."). When a state appellate court issues a silent affirmance, "the federal court should `look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale" and "presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
Cole claims ineffective assistance of trial counsel. His claims are analyzed under Strickland v. Washington, 466 U.S. 668 (1984). Cole must demonstrate that his counsel performed deficiently in that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id.
Cole must also show that he suffered prejudice by demonstrating "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. Obtaining relief on a claim of ineffective assistance of counsel is difficult because federal habeas review is "doubly" deferential to counsel's performance and the state court's decision. Richter, 562 U.S. at 105.
Cole alleges that trial counsel was ineffective in failing to adequately cross-examine Detective Hinkle and Theresa Zioerjen. He identifies three topics about which he believes counsel should have further cross-examined Detective Hinkle: 1) Detective Hinkle's alleged failure to identify Cole as the suspect seen in the video; 2) Detective Hinkle's alleged failure to investigate another suspect; and 3) Detective Hinkle's failure to identify a gun in the video of the robbery. He also claims that counsel was ineffective in not asking Zioerjen to identify a gun in the video.
On remand from the state appellate court, the state postconviction court denied Cole's claims, finding that he could not demonstrate prejudice as a result of counsel's performance:
(Dkt. 10, Ex. 39, p. 4) (court's record citations omitted).
The State presented significant evidence of Cole's identity. Zioerjen testified that Cole came into the store three times the morning of the robbery, and that nothing disguised or covered his face. (Dkt. 10, Ex. 1, Supp. III, pp. 201-03). She also testified that she was in close proximity to Cole. (Id., pp. 203-06, 227). Zioerjen recalled giving police a description of Cole, and testified that she was certain in her photo pack identification of Cole. (Id., pp. 211-13). She stated that she knew "from the minute [she] looked at the pictures who it was." (Id., p. 213). When she identified Cole in the courtroom, she said that she was sure he was the person who robbed her. (Id., pp. 222-23). Additionally, after Cole told his wife to dispose of a DVD player, police recovered from the Coles' acquaintance a DVD player of the same model taken from the store, which worked with a remote control provided by Zioerjen. (Dkt. 10, Ex. 1, Supp. II, pp. 139-46).
Cole identifies four matters that he believes are relevant to identity and should have been addressed during counsel's cross-examination of Detective Hinkle. Each is discussed below. However, as the state court found, Cole cannot show prejudice under Strickland.
Detective Hinkle testified at trial that he did not believe he spoke to Zioerjen when he responded to the store because she had been taken to the hospital. (Dkt. 10, Ex. 1, Supp. II, pp. 108-09). Cole claims that counsel failed to impeach Detective Hinkle with his inconsistent deposition testimony that he did talk to Zioerjen at the store. However, Cole does not explain the significance of the alleged inconsistency between Detective Hinkle's deposition and trial testimonies. Given the inconsequential nature of the alleged discrepancy, and in light of the significant evidence of Cole's identity, Cole cannot show that he suffered prejudice as a result of counsel's performance.
The evidence presented at trial shows that Detective Hinkle initially believed that the white pickup truck seen in the surveillance video may have been a Toyota, but that it was later determined to be a Nissan. On cross-examination, Detective Hinkle testified that when he and other officers watched the video, he could not tell the truck's brand but "would have said Toyota because [he] had owned one." (Id., p. 150). He stated that even after another officer identified the truck as a Nissan Frontier based on the video, he was not positive of the truck's brand. (Id., pp. 150-51). Cole claims that counsel was ineffective in not asking Detective Hinkle how, specifically, police concluded the truck was a Nissan. But Cole does not explain what information Detective Hinkle would have testified to or how it would have benefitted the defense. Considering the vagueness of Cole's claim and the evidence of identity described above, Cole does not establish a reasonable probability that the outcome would have been different had counsel inquired further about how police determined the truck's brand.
Detective Hinkle testified that he believed that two T-shirts found in Cole's home matched the T-shirt worn by the perpetrator in the video. Counsel made three objections to this testimony:
(Dkt. 10, Ex. 1, Supp. II, pp. 124, 128, 129).
Cole claims that counsel was ineffective in failing to more specifically object that Detective Hinkle was improperly providing lay opinion testimony. Under § 90.701(2), Fla. Stat., a lay witness may give opinion testimony if his opinion "do[es] not require a special knowledge, skill, experience, or training." Cole claims that Detective Hinkle's opinion about the T-shirt comparison did require such qualifications, and that counsel therefore also should have asked Detective Hinkle whether he had such knowledge, skill, experience, and training as to render him an expert. Cole also contends that counsel was ineffective in failing to question Detective Hinkle about the T-shirts on cross-examination. However, even if counsel had successfully excluded Detective Hinkle's opinion testimony, or had cross-examined him about the T-shirts, Cole does not show a reasonable probability that the outcome of trial would have been different considering the State's evidence of identity.
Detective Hinkle testified that a still photograph taken from the surveillance video was lightened to enhance its quality. (Dkt. 10, Ex. 1, Supp. II, p. 127). Cole contends that counsel should have asked Detective Hinkle if he could positively identify Cole in the photograph after it was altered, and why he did not send the video to the Florida Department of Law Enforcement "for clarity." (Dkt. 1, p. 12). Cole suggests that in altering the photograph, Detective Hinkle "was conducting comparisons that required special knowledge, skill, experience, and training" and was giving opinion testimony. (Id.). But even assuming that 1) counsel could have excluded the altered photograph or Cole's testimony about it, or 2) Detective Hinkle would have said that he could not identify Cole from the enhanced photograph, Cole cannot show prejudice because the jury still heard of the overwhelming evidence of his identity unrelated to the photograph.
Cole has not shown prejudice as a result of counsel's alleged failure to address any of the above matters relevant to establishing Cole's identity as the perpetrator. He has not shown that the state court's denial of his claim involved an unreasonable application of Strickland or was based on an unreasonable determination of fact.
After a local news channel aired video of the robbery, police received a tip that the robber resembled a man named Ronnie Mata. On cross-examination, Detective Hinkle testified that he contacted Mata but determined that Mata was not a suspect:
(Dkt. 10, Ex. 1, Supp. II, pp. 148-49).
On redirect, Detective Hinkle addressed his conclusion that Mata was not a suspect:
(Id., pp. 155-56).
Cole argues that counsel was ineffective in failing to adequately cross-examine Detective Hinkle about two matters concerning Mata. However, as the state court found, Cole has not established prejudice.
Cole claims that Mata was the subject of a federal indictment for armed robbery. He claims that counsel must have known about the indictment because an investigator from the Public Defender's Office obtained a copy of the indictment. Therefore, Cole contends, counsel should have asked Detective Hinkle about the indictment and brought up Detective Hinkle's allegedly false deposition testimony that Mata was not linked to any armed robberies. But because Cole fails to show that Mata's indictment in another case was relevant to whether Mata may have been a suspect in this case, and because of the substantial evidence of Cole's identity, Cole does not show a reasonable probability that the outcome of trial would have been different had counsel asked Detective Hinkle about the indictment. Accordingly, he has not demonstrated prejudice due to counsel's performance.
Cole claims that counsel should have asked Detective Hinkle how, considering he had never met Mata in person, he could be sure 1) that the photograph he looked at actually depicted Mata and 2) that Mata's stature was inconsistent with the person shown in the video. Cole does not establish prejudice as a result of counsel's failure to ask these questions. Detective Hinkle did not reference the stature of the suspect in the video in testifying about his decision not to purse Mata, and Cole only speculates that the photograph Detective Hinkle obtained might not have actually depicted Mata. See Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (a federal court may not grant habeas relief "on the basis of little more than speculation with slight support."); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim). Accordingly, as the state court found, Cole cannot show that he was prejudiced by counsel's performance. Cole does not show that the state court unreasonably applied Strickland or unreasonably determined the facts in denying his claims that counsel was ineffective in cross-examining Detective Hinkle about Mata.
Cole argues that counsel was ineffective in not asking either Detective Hinkle or the victim to identify the gun in the video. He appears to contend that counsel's failure to do so deprived him of an argument to support his motion for judgment of acquittal. The state court did not unreasonably deny this claim on Strickland's prejudice prong. The State presented significant evidence showing that Cole used a gun. Zioerjen testified that Cole pulled out a gun during the robbery and pointed it at her. (Dkt. 10, Ex. 1, Supp. III, p. 204, 207). She described it as a small silver gun about the size of Cole's hand. (Id., p. 205). Zioerjen had some familiarity with guns because she had taken a self-defense course during which she learned to fire a gun, and she testified that the gun appeared real to her. (Id.). She also testified that she was less than three feet from Cole when she saw the gun. (Id., p. 206).
Accordingly, even assuming that neither witness could identify a gun in the video, Cole was not prejudiced in light of this evidence. First, Cole does not show a reasonable probability that he would have succeeded on a motion for judgment of acquittal. When considering such a motion, the court must view the evidence in the light most favorable to the State. See State v. Williams, 742 So.2d 509, 511 (Fla. 1st DCA 1999) ("[A] court should not grant the motion [for judgment of acquittal] unless, when viewed in a light most favorable to the state, the evidence does not establish the prima face case of guilt." (citation omitted)). The evidence, taken in the light most favorable to the State, establishes that Cole possessed a gun during the offenses. Further, considering Zioerjen's testimony about the gun, Cole fails to show a reasonable probability that the jury's verdict would have been different even if the witnesses could not specifically identify a gun in the video. Accordingly, Cole has not demonstrated that the state court unreasonably applied Strickland or unreasonably determined the facts in denying his claim.
Any of Petitioner's allegations not specifically addressed herein have been found to be without merit.
It is therefore
1. Cole's petition for writ of habeas corpus (Dkt. 1) is
2. The Clerk is directed to enter judgment against Cole and to close this case.
3. Cole is not entitled to a certificate of appealability ("COA"). A petitioner does not have absolute entitlement to appeal a district court's denial of his habeas petition.28 U.S.C. § 2253(c)(1). A COA must first issue. Id. "A [COA] may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Cole "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)). Cole has not made this showing. Because Cole is not entitled to a COA, he is not entitled to appeal in forma pauperis.
