STEVEN D. MERRYDAY, District Judge.
Gregory L. Baker applies for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1) and challenges the validity of his state convictions for trafficking in illegal drugs and driving while his license was suspended or revoked, for which convictions Baker serves fifteen years imprisonment. Numerous exhibits ("Respondent's Exhibit __") support the response. (Doc. 11) The respondent admits the application's timeliness. (Doc. 11, p. 8)
Officer Gregory Shone saw Baker driving a moped scooter. Officer Shone checked the scooter's license plate and discovered the scooter was registered to Baker, whose license was suspended. Officer Shone initiated a traffic stop and arrested Baker for driving while his license was suspended. During a search of Baker, Officer Shone found in Baker's pocket a prescription bottle bearing the name "Michael Jackson" and containing twenty-one oxycodone pills. After receiving a Miranda warning, Baker told Officer Shone that the pills belonged to his friend, Michael Jackson, who had dropped the pills when he and Baker were "hanging out." Baker was unable to provide Officer Shone with Jackson's address or telephone number but told Officer Shone that he planned to return the pills to Jackson.
Baker was charged with trafficking in oxycodone, possessing cocaine,
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential standard for federal court review of a state court adjudication, states in pertinent part:
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:
"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 693 (2002). "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." Harrington v. Richter, 562 U.S. 86, 103 (2011). See White v. Woodall, 572 U.S. 415, 427 (2014) ("The critical point is that relief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no `fairminded disagreement' on the question. . . .") (citing Richter); Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) ("And an `unreasonable application of' those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.") (citing Woodall, 572 U.S. at 419). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that we are to decide."). 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. at 412.
The purpose of federal review is not to re-try the state case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications 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. at 694. A federal court must afford due deference to a state court's decision. "AEDPA prevents defendants — and federal courts — from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, 559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) ("This is a `difficult to meet,' . . . and `highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt'. . . .") (citations omitted).
When the last state court to decide a federal claim explains its decision in a reasoned opinion, a federal habeas court reviews the specific reasons as stated in the opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) ("[A] federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable."). When the relevant state-court decision is not accompanied with reasons for the decision, 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, 138 S. Ct. at 1192. "[T]he State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision. . . ." Wilson, 138 S. Ct. at 1192.
In a per curiam decision without a written opinion the state appellate court on direct appeal affirmed Baker's convictions and sentences. (Respondent's Exhibit 8) Similarly, in another per curiam decision without a written opinion the state appellate court affirmed the denial of Baker's Rule 3.850 motion for post-conviction relief. (Respondent's Exhibit 15) The state appellate court's per curiam affirmances warrant deference under Section 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.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003). 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."), and Bishop v. Warden, 726 F.3d 1243, 1255S56 (11th Cir. 2013) (describing the difference between an "opinion" or "analysis" and a "decision" or "ruling" and explaining that deference is accorded the state court's "decision" or "ruling" even absent an "opinion" or "analysis").
As Pinholster, 563 U.S. at 181-82, explains, review of the state court decision is limited to the record that was before the state court:
Baker bears the burden of overcoming by clear and convincing evidence a state court factual determination. "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state court's rejection of Baker's post-conviction claims warrants deference in this case.
Baker claims ineffective assistance of counsel, a difficult claim to sustain. "[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:
Strickland requires proof of both deficient performance and consequent prejudice. 466 U.S. at 697 ("There is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds."). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. 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." 466 U.S. at 690. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." 466 U.S. at 690.
Baker must demonstrate that counsel's alleged error 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." 466 U.S. at 691. To meet this burden, Baker 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." 466 U.S. at 694.
Strickland cautions that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." 466 U.S. at 690-91. Baker cannot meet his burden merely by showing that the avenue chosen by counsel proved unsuccessful.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. . . . [T]he issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). The required extent of counsel's investigation was addressed recently in Hittson v. GDCP Warden, 759 F.3d 1210, 1267 (11th Cir. 2014), cert. denied sub nom., Hittson v. Chatman, 135 S.Ct. 2126 (2015):
See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (confirming that counsel has no duty to raise a frivolous claim).
Under 28 U.S.C. § 2254(d) Baker must prove that the state court's decision was "(1) . . . contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States or (2) . . . based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Sustaining a claim of ineffective assistance of counsel is very difficult because "[t]he standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Richter, 562 U.S. at 106. See also Pinholster, 563 U.S. at 202 (An applicant must overcome this "`doubly deferential' standard of Strickland and [the] AEDPA."), Johnson v. Sec'y, Dep't of Corr., 643 F.3d 907, 911 (11th Cir. 2011) ("Double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding."), and Pooler v. Sec'y, Dep't of Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) ("Because we must view Pooler's ineffective counsel claim — which is governed by the deferential Strickland test — through the lens of AEDPA deference, the resulting standard of review is "doubly deferential."), cert. denied, 134 S.Ct. 191 (2013).
In denying Baker's motion for post-conviction relief, the state court recognized that Strickland governs a claim of ineffective assistance of counsel. (Respondent's Exhibit 11, Order Denying Motion for Post-conviction Relief) Because the state court rejected the claims based on Strickland, Baker cannot meet the "contrary to" test in Section 2254(d)(1). Baker instead must show that the state court unreasonably applied Strickland or unreasonably determined the facts. In determining "reasonableness," a federal application for the writ of habeas corpus authorizes determining only "whether the state habeas court was objectively reasonable in its Strickland inquiry," not an independent assessment of whether counsel's actions were reasonable. Putnam v. Head, 268 F.3d 1223, 1244, n.17 (11th Cir. 2001), cert. denied, 537 U.S. 870 (2002). The presumption of correctness and the highly deferential standard of review requires that the analysis of each claim begin with the state court's analysis.
Baker contends that this trial counsel rendered ineffective assistance (1) by not requesting that the trial judge conduct a "genuineness inquiry" into the reason given by the state for its peremptory challenge of prospective juror Ali, (2) by not pointing out to the trial judge the state's "misleading" characterization of Ali's statements during voir dire, and (3) by not renewing an objection to the jury panel when the jury was sworn.
The record shows that during voir dire the prosecutor inquired of Ali as follows (Respondent's Exhibit 1A, pp. 75-77)
The prosecutor exercised a peremptory strike against Ali as follows (Respondent's Exhibit 1A, p. 113):
Trial counsel did not object to the composition of the jury before the jury was sworn.
Baker argues that the state failed to comply with Melbourne v. State, 679 So.2d 759, 764 (Fla. 1996), which prescribes a three-step analysis for evaluating an objection to a party's race-based peremptory challenge to a venireman:
Baker asserts that, although the first two prongs of Melbourne were met, the third prong was not satisfied because the trial court "failed to conduct an inquiry into the genuineness of the State's explanation to determine if it was pretextual." (Doc. 1, p. 6) Baker argues that if trial counsel had preserved this issue for appellate review, he would have received a new trial.
"[A] state court's interpretation of state law . . . binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005). See also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (explaining that "[s]tate courts are the ultimate expositors of state law," and federal courts must abide by their rulings on matters of state law) (citations and footnote omitted). Although an ineffective assistance of counsel claim is a federal constitutional claim which the court considers in light of the clearly established law of Strickland, when "the validity of the claim that [counsel] failed to assert is clearly a question of state law, . . . we must defer to the state's construction of its own law." Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984). See also Will v. Sec'y, Dep't of Corr., 278 F. App'x 902, 908 (11th Cir. 2008) ("Although an ineffective assistance of counsel claim is a federal constitutional claim, which we consider in light of the clearly established rules of Strickland, when `the validity of the claim that [counsel] failed to assert is clearly a question of state law, . . . we must defer to the state's construction of its own law.'") (citing Alvord, 725 F.2d at 1291); Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) ("The Florida Supreme Court already has told us how the issues would have been resolved under state law had [the applicant's counsel] done what [the applicant] argues he should have done. . . . It is a `fundamental principle that state courts are the final arbiters of state law, and federal habeas courts should not second-guess them on such matters.'") (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)); Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) ("[T]he Alabama Court of Criminal Appeals has already answered the question of what would have happened had [the applicant's counsel] objected to the introduction of [the applicant's] statements based on [state law] — the objection would have been overruled. . . . Therefore, [the applicant's counsel] was not ineffective for failing to make that objection.").
The basis for Baker's ground of ineffective assistance of trial counsel is a failure to object to an alleged misapplication of state law under Melbourne.
Baker contends that his trial counsel rendered ineffective assistance by not arguing that Section 893.135, Florida Statutes,
The state post-conviction court summarily denied this ground in Baker's Rule 3.850 motion (Respondent's Exhibit 11, Order Denying Defendant's Motion for Post-Conviction Relief, pp. 4-5) (court's record citation omitted):
Baker's contention that "if the as-applied challenge to Fla. Stat. § 893.135 had been presented to the [state] court, the challenge would have been upheld or at least preserved for appellate review where it would have been upheld" is speculative and unsupported by any legal authority. Moreover, Baker fails to state how the application of section 893.135, Florida Statutes, in his case violated his federal right to due process under the Fifth Amendment. Baker cannot obtain relief on ground two because he fails to satisfy Strickland's prejudice prong. 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). Baker has not shown that the state court unreasonably applied Strickland or unreasonably determined the facts in denying his ground of ineffective assistance of counsel. 28 U.S.C. § 2254(d)(1), (d)(2).
Baker contends that his trial counsel rendered ineffective assistance by (1) not presenting a "prescription defense" to the trafficking charge and (2) not requesting a jury instruction on that defense.
Baker asserts that (1) "fundamental error occurred when the court failed to instruct on a prescription defense that obviously applied to the trafficking charge," and (2) that absent trial counsel's failure to request a jury instruction on the prescription defense, "there is every reason to believe that . . . the jury . . . would have found [him] not guilty."
Baker relies on Ramirez v. State, 125 So.3d 171 (Fla. 4th DCA 2013) — decided over two years after Baker's trial — in which Florida's Fourth District Court of Appeal (1) reversed the defendant's drug trafficking conviction after the trial court failed to charge the jury with a "prescription" defense and (2) concluded that Ramirez's counsel rendered ineffective assistance by not requesting a "prescription" defense. Baker includes in his application a table showing "the similarities between the facts of [h]is case and the facts in Ramirez." (Doc. 1 p. 19)
The state post-conviction court summarily denied this ground in Baker's Rule 3.850 motion (Respondent's Exhibit 11, Order Denying Defendant's Motion for Post-Conviction Relief, pp. 5-7) (court's record citation omitted):
"No holding of the Supreme Court clearly establishes that in order to perform within the `wide range of reasonable professional assistance,' Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, counsel must accurately predict how the law will turn out or hedge every bet in the hope of a favorable development." Rambaran v. Sec'y, Dep't of Corr., 821 F.3d 1325, 1334 (11th Cir. 2016).
United States v. Ardley, 273 F.3d 991, 993 (11th Cir. 2001) (brackets in original) (citations to additional cases omitted), cert. denied, 535 U.S. 979 (2002).
Baker fails to establish that the prescription defense was available to him at the time of his trial. As the state post-conviction court noted, in McCoy v. State, 56 So.3d 37, (Fla. 1st DCA 2010), — decided over six months after Baker's trial — the state appellate court decided as a matter of first impression that the prescription defense is available to an innocent possessor of a controlled substance who has a legally recognized reason for possessing a drug prescribed to another individual. Ineffective assistance of counsel is not proven by showing that trial counsel failed to anticipate a change in the law. See Ardley, 273 F.3d at 993. Moreover, even if the application of the prescription defense announced in McCoy and applied in Ramirez was available to him at the time of his trial, Baker cannot establish that his trial counsel rendered ineffective assistance by either not presenting the defense or not requesting a jury instruction on the defense. Baker testified at trial that he knew Jackson and that Jackson assisted Baker's mother around her house and her yard. (Respondent's Exhibit 1B, p. 209) However, Baker admitted on direct examination that Jackson (1) never told him that he could have his (Jackson's) pills and (2) never gave Baker authorization to pick up his pills from a pharmacy. (Respondent's Exhibit 1B, p. 222) Baker presented no evidence that he obtained the oxycodone pills pursuant to a valid prescription or that he was Jackson's agent. See McCoy, 56 So. 3d at 39 ("Thus, schedule III controlled substances may be `lawfully obtained' by an agent of the prescription holder who can provide `satisfactory patient information.' An agent is `[o]ne who is authorized to act for or in place of another.'" Black's Law Dictionary 68 (8th ed. 2004)). Baker fails to meet his burden of proving that the state court either unreasonably applied Strickland or unreasonably determined the facts by rejecting this ground of ineffective assistance of counsel. 28 U.S.C. § 2254(d)(1), (d)(2).
Baker contends that his trial counsel rendered ineffective assistance by not objecting to the "permissive presumption" included in the jury instruction on his affirmative defense. Specifically, Baker challenges the following instruction (Doc. 1, p. 22; Respondent's Exhibit 1B, pp. 277-78):
Baker claims that "[t]he jury was not instructed that . . .[,] while it was `permitted,' it was not required to find that [Baker] was aware of the illicit nature of the controlled substance if it found that [Baker] was in actual or constructive possession of the controlled substance." (Doc. 1, p. 23) Baker further claims that the jury was not instructed "that the presumption it was permitted to make of the evidence of knowledge of the illicit nature of the controlled substance may be contradicted and rebutted by other evidence demonstrating [Baker] was not aware of the illicit nature of the controlled substance." (Doc. 1, p. 23) Baker alleges that "[i]f the jury had been properly instructed, there was a reasonable probability that the jury would have found that [he] did not know of the illicit nature of the oxycodone, notwithstanding his actual possession of the oxycodone." (Doc. 1, p. 27)
The state post-conviction court summarily denied this ground in Baker's Rule 3.850 motion (Respondent's Exhibit 11, Order Denying Defendant's Motion for Post-Conviction Relief, p. 7) (court's record citation omitted) (brackets in original):
To show that counsel rendered ineffective assistance by not objecting to a jury instruction, Baker must show that (1) the instruction was improper, (2) a reasonably competent attorney would have objected to the instruction, and (3) the failure to object prejudiced him. Daugherty v. Dugger, 839 F.2d 1426, 1428 (11th Cir. 1988). Baker fails to satisfy these requirements. The state post-conviction court concluded that the instruction given was consistent with Florida's standard jury instructions. "[A] state court's interpretation of state law . . . binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Baker cites no Florida case invalidating the jury instruction given in his case. He demonstrates neither that the instruction was "defective" under state law nor that a reasonable probability exists that the outcome of his trial would have been different had counsel objected to the jury instruction on the permissive presumption. Accordingly, because he cannot demonstrate prejudice under Strickland, Baker fails to meet his burden of proving that the state court either unreasonably applied Strickland or unreasonably determined the facts by rejecting this ground of ineffective assistance of counsel. 28 U.S.C. § 2254(d)(1), (d)(2).
Baker contends that his appellate counsel rendered ineffective assistance by not arguing on direct appeal that the "permissive presumption" jury instruction violates Baker's federal right to due process. Baker asserts that "[u]nder the facts of this case, . . . the interests of justice present a compelling demand for application of the fundamental error doctrine." (Doc. 1, p. 51) The state appellate court denied this ground of ineffective assistance of appellate counsel in Baker's state habeas petition. (Respondent's Exhibit 23)
The Strickland standard of review applies to a claim of ineffective assistance of appellate counsel. Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991), cert. denied, 502 U.S. 1077 (1992). To establish a claim, Baker must show both that appellate counsel performed deficiently and that the deficient performance resulted in prejudice. To demonstrate deficient performance, Baker must show that appellate counsel's failure to discover a non-frivolous issue and file a merits brief raising that issue fell outside the range of professionally acceptable performance. Smith v. Robbins, 528 U.S. 259, 285-86 (2000). To demonstrate prejudice, Baker must show that a reasonable probability exists that, but for appellate counsel's unreasonable failure to file a merits brief on a particular issue, Baker would have prevailed on appeal. Smith, 528 U.S. at 285-86.
The trial judge read to the jury the standard instruction on the permissive presumption. Baker provides no evidence establishing an error in the instruction. Moreover, trial counsel neither objected to the permissive presumption instruction nor moved for a judgment of acquittal based on Baker's lack of knowledge of the illicit nature of the controlled substance. Accordingly, appellate counsel could not have argued on direct appeal that the "permissive presumption" jury instruction violates Baker's federal right to due process because the issue was not properly preserved by objection in the trial court. Baker cannot establish prejudice as a result of appellate counsel's omission because no reasonable probability exists that had appellate counsel raised the jury instruction issue, the result of the appeal would have been different. See Pinkney v. Sec'y, Dep't of Corr., 876 F.3d 1290, 1297 (11th Cir. 2017) ("Prejudice requires a reasonable probability of a different result, Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, and there is no reasonable probability that the result of an appeal would have been different if appellate counsel had raised an issue the court would have refused to consider because it was not preserved in the trial court.").
Baker also fails to establish fundamental error. Pinkney, 876, F.3d at 1296-97, explains:
Baker fails to demonstrate fundamental error because he does not show that trial counsel's failure to object to the instruction affected the validity of the trial. Consequently, Baker shows neither that appellate counsel unreasonably elected to not raise this issue on appeal nor that he would have prevailed on appeal if appellate counsel had raised the issue. Robbins, 528 U.S. at 285-86. See also Barnes, 463 U.S. at 751-52 ("Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues."). Because he establishes neither deficient performance nor resulting prejudice, Baker cannot prevail on this ground of ineffective assistance of appellate counsel. The state appellate court's denial of relief was neither contrary to, nor an unreasonable application of, the Strickland standard. 28 U.S.C. § 2254(d)(1), (d)(2).
Baker contends that his trial counsel rendered ineffective assistance (1) by not presenting a "temporary possession" defense and (2) by not requesting a jury instruction on that defense. Baker claims that his trial counsel erred by not asserting as an affirmative defense to the trafficking charge that Baker only temporarily possessed the oxycodone "in order to lawfully dispose of the contraband." (Doc. 16, p. 9) Baker further contends that fundamental error occurred in his case when the trial court "failed to instruct on a defense that obviously applied to the trafficking charge." (Doc. 1, p. 31)
The state post-conviction court summarily denied this ground in Baker's Rule 3.850 motion (Respondent's Exhibit 11, Order Denying Defendant's Motion for Post-Conviction Relief, pp. 8-9) (court's record citations omitted):
Baker fails to show the viability of a "temporary possession" defense in his case. Baker admits in his application that he "has not been able to find a Florida case which approved such a defense where temporary custody of the controlled substance was taken in order to return the contraband to the rightful owner." (Doc. 1, p. 30) This court must defer to the state court's determination that Baker had no viable temporary possession defense under Florida law. Richey, 546 U.S. at 76; Alvord, 725 F.2d at 1291. See also Pinkney, 876 F.3d at 1299 ("As the Supreme Court and this Court have repeatedly acknowledged, it is not a federal court's role to examine the propriety of a state court's determination of state law.") (citations omitted)). Baker fails to meet his burden of proving that the state court either unreasonably applied Strickland or unreasonably determined the facts by rejecting this ground of ineffective assistance of counsel. 28 U.S.C. § 2254(d)(1), (d)(2).
Baker contends that his trial counsel rendered ineffective assistance by not arguing that Baker's sentences violate the Eighth Amendment. Baker alleges that his trial counsel should have argued that the sentences are "cruel and unusual" and "grossly disproportionate" to Baker's crimes. Baker "suggests that it is cruel, for a man . . . doing what he thought was a good deed in picking up a lost prescription bottle and holding it until he could return it to a friend, to go to prison for fifteen . . . years." (Doc. 1, p. 41) Baker argues that his trial "counsel's performance fell below an objective standard of reasonableness by not researching, investigating, and presenting to the court an as-applied challenge to his sentence as violating the Eighth Amendment to the United States Constitution and Article 1, Section 17 of the Florida Constitution."
The state post-conviction court summarily denied this ground in Baker's Rule 3.850 motion (Respondent's Exhibit 11, Order Denying Defendant's Motion for Post-Conviction Relief, pp. 9-10) (court's record citations omitted):
The Eighth Amendment "prohibits . . . sentences that are disproportionate to the crime committed." Solem v. Helm, 463 U.S. 277, 284 (1983). Generally, a sentence within the limits imposed by statute is neither excessive, nor cruel and unusual under the Eighth Amendment. United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006). Baker was sentenced within the limits imposed under Florida law. See Fla. Stat. § 775.082. Baker's is not an "extraordinary case" in which the sentences are so grossly disproportionate to the offenses of conviction that the sentences violate the Eighth Amendment. Baker presents no basis upon which trial counsel could have objected to the lawfully imposed sentences. Baker fails to meet his burden of proving that the state court either unreasonably applied Strickland or unreasonably determined the facts by rejecting this ground of ineffective assistance of counsel. 28 U.S.C. § 2254(d)(1), (d)(2).
Baker contends that his appellate counsel rendered ineffective assistance by arguing on direct appeal that the trial court erred by denying his judgment of acquittal based on the state's failure to establish that Baker "possessed" the oxycodone pills. Baker claims that "[t]here was never any evidence presented to the jury by the state or defense with regard to this issue and this issue was not the issue presented to the trial court for consideration on [his] motion and renewed motion for judgment of acquittal." (Doc. 1, p. 45) Rather, Baker alleges, his lack of knowledge of the illicit nature of the pills "was the one and only issue as to [his] criminal liability or guilt in this case." (Doc. 1, p. 44) Baker asserts that appellate counsel's argument as to the possession element of the trafficking charge "was tantamount to presenting no argument at all." (Doc. 1, p. 45) p. 51) The state appellate court denied this ground of ineffective assistance of appellate counsel in Baker's state habeas petition. (Respondent's Exhibit 23)
The record refutes Baker's contention that the possession issue "was not the issue presented to the trial court for consideration on [his] motion and renewed motion for judgment of acquittal." Trial counsel argued at the close of the state's case (Respondent's Exhibit 1A, p. 165):
The trial court denied the motion for judgment of acquittal. (Respondent's Exhibit 1A, p. 166) Trial counsel renewed the motion after the defense rested, which motion the trial court denied. (Respondent's Exhibit 1B, p. 224) Appellate counsel challenged on appeal the denial of Baker's motion for judgment of acquittal based on trial counsel's argument that the state failed to prove possession. Baker presents no basis, aside from his dissatisfaction with the outcome of his direct appeal, to support a finding of either deficient performance or prejudice by his appellate counsel. The state appellate court's denial of this ground is neither contrary to, nor an unreasonable application of, the Strickland standard. 28 U.S.C. § 2254(d)(1), (d)(2).
Accordingly, Baker's application for the writ of habeas corpus (Doc. 1) is
Baker is not entitled to a certificate of appealability ("COA"). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Section 2253(c)(2) permits issuing a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." To merit a COA, Baker must show that reasonable jurists would find debatable both the merits of the underlying claims and the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show that reasonable jurists would debate either the merits of the claims or the procedural issues, Baker is entitled to neither a COA nor leave to appeal in forma pauperis.
Accordingly, a certificate of appealability is
See also Wagner v. State, 88 So.3d 250, 252 (Fla. 4th DCA 2012) ("A valid prescription is a complete defense to trafficking and a defendant is entitled to a jury instruction on the defense.") and McCoy v. State, 56 So.3d 37, 39 (Fla. 1st DCA 2010) ("As reason dictates, the prescription defense is clearly available to those who have a valid prescription written directly on their behalf for the pills in their possession.") (citations omitted).
