JAMES D. WHITTEMORE, District Judge.
Petitioner, an inmate of the Florida penal system proceeding pro se, initiated this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging a conviction for acting as an unlicensed mortgage broker entered in case number 07-cf-3296 in 2007 by the Thirteenth Judicial Circuit Court, Hillsborough County, Florida (Dkt. 1).
On August 1, 2007, an Information was filed charging Petitioner with two counts of unlicensed mortgage brokering in case number 07-CF-3296 (Resp. Ex. 14). Petitioner was found guilty of one count of acting as an unlicensed mortgage broker (Resp. Ex. 17). She was sentenced to 5 years in prison (Resp. Ex. 22). On January 29, 2009, the state appellate court affirmed without a written opinion (Resp. Ex. 28). The Florida Supreme Court dismissed Petitioner's petition for discretionary review (Resp. Ex. 29; Ex. 30).
On August 6, 2009, Petitioner filed a post-conviction motion pursuant to Rule 3.850, Florida Rules of Civil Procedure (Resp. Ex. 51). The state post-conviction court dismissed the motion in part and denied it in part (Resp. Ex. 53). On January 5, 2010, Petitioner filed an amended motion for post-conviction relief (Resp. Ex. 54). The amended motion raised the following claims: 1) counsel was ineffective in failing to call Ronald McVeigh, Russell Fuller and Ann Thompson, 2) counsel was ineffective in failing to provide information about a plea offer, 3) counsel was ineffective in preparation for trial, 4) counsel was ineffective in failing to move for a mistrial when a witness tampered with the jury, 5) counsel was ineffective in failing to negotiate a plea deal, 6) counsel was ineffective in failing to know the mortgage broker licensing statute and mortgage law, 7) counsel was ineffective in failing to move for a mistrial or to disqualify the trial judge when the judge failed to allow certain testimony, and 8) counsel was ineffective in failing to introduce documents (Resp. Ex. 54). The court ordered the State to respond to some claims and denied other claims (Resp. Ex. 55). The State filed a response (Resp. Ex. 59), and Petitioner filed a reply (Resp. Ex. 61). On October 6, 2010, the state post-conviction court denied some claims and ordered an evidentiary hearing on others (Resp. Ex. 60). Following the January 11, 2012 evidentiary hearing (Resp. Ex. 77), the state post-conviction court denied Petitioner's Rule 3.850 motion (Resp. Ex. 78). Petitioner appealed, and on July 13, 2012, she filed her pro se Initial Brief (Resp. Ex. 92). On May 9, 2014, the Second District Court of Appeal affirmed the denial of Petitioner's request for rule 3.850 relief (Resp. Ex. 95); Wooten v. State, 150 So.3d 1150 (Fla. 2d DCA 2014) [table]. On July 8, 2014, the Florida Supreme Court dismissed Petitioner's petition to invoke discretionary review (Resp. Exs. 98, 99). Petitioner's federal habeas petition (Dkt. 1) raises the following four grounds for relief:
a. provide a meaningful defense, by proceeding to trial without having any information, depositions, or discovery;
The petition is subject to the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") effective April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Under AEDPA, 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) sets forth a highly deferential standard for federal court review of a state court's findings of law and fact. It provides that habeas relief may not be granted on a claim adjudicated on the merits in state court unless such determination:
28 U.S.C. § 2254(d)(1)-(2).
Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "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, 694 (2002).
A state court's factual findings must also be given deference. Specifically, a state court's determinations of fact "shall be presumed to be correct," and the habeas petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Henderson v. Campbell, 353 F.3d 880, 890-91 (11th Cir. 2003).
To have a facially valid claim alleging ineffective assistance of counsel, Petitioner must meet the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland's two-part test requires Petitioner to demonstrate that counsel's performance was deficient and "there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.
"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 130 S.Ct. 1473, 1485 (2010). "Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Harrington v. Richter, 131 S.Ct. 770, 788 (2011). As the Richter Court explained:
Id. (citations omitted).
Respondent contends that Petitioner's claims are procedurally barred from federal habeas review because Petitioner did not exhaust the claims in state court. The Court disagrees.
Before a district court can grant habeas relief to a state prisoner under § 2254, the petitioner must exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in a state post-conviction motion. See § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To exhaust state remedies a state prisoner "`must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process,' including review by the state's court of last resort, even if review in that court is discretionary." Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) (quoting O'Sullivan, 526 U.S. at 845).
Respondent argues that Petitioner failed to exhaust her claims because she failed to raise them on appeal of the state post-conviction court's denial of her Rule 3.850 motion. Respondent specifically contends that when Petitioner appealed the denial of Rule 3.850 relief, Petitioner "pressed the same two issues, previously raised by her appointed counsel, in her direct appeal after conviction in lower case 07-CF-3296" and did not "specifically challenge[] the decisions on her rule 3.850 claims of omission of trial counsel. . . ." (Dkt. 55 at p. 15).
A close review of Petitioner's Initial Brief, however, reveals that Petitioner did address her Rule 3.850 claims (Resp. Ex. 92). Although not artfully articulated, Petitioner's Initial Brief asserted, among other things, that trial counsel was ineffective 1) in failing to call witnesses Ronald McVeigh, Russell Fuller, and Ann Thompson (id. at pp. 17-20), 2) in proceeding to trial unprepared (id. at pp. 22-23), 3) in failing to know the law pertaining to mortgage brokers and loan originators (id. at pp. 23-25), 4) in failing to move for a mistrial on the ground that the trial court prohibited Petitioner from eliciting testimony regarding the difference between a mortgage broker and a loan officer (id. at pp. 25-27), and 5) in failing to present evidence, specifically, a newspaper advertisement, an employment application, and a mortgage broker application signed by Jeff Rosen (id. at p. 27).
Petitioner complains that trial counsel rendered ineffective assistance because he was inadequately prepared for trial. Petitioner asserts counsel was not prepared for trial because he went to trial only two days after he knew about her case, he did not have any information on the case, and he did not initiate discovery or take depositions. Petitioner alleges that counsel believed that the State was not prepared for trial, and counsel wanted to "bluff" the State.
In state court, Petitioner raised this claim as Ground Three of her amended Rule 3.850 motion (Resp. Ex. 54 at pp. 9-10). After an evidentiary hearing, the state post-conviction court denied the claim as follows:
(Resp. Ex. 78 at pp. 8-9) (footnote omitted) (emphasis in original).
The state post-conviction court flatly rejected Petitioner's claim, finding that counsel was prepared for trial. This finding is presumed to be correct under the AEDPA, and Petitioner has not rebutted that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
During the Rule 3.850 evidentiary hearing, Petitioner's trial counsel unequivocally testified that he was prepared for trial (Resp. Ex. 77 at pp. 51-52, 77-78). Moreover, he testified that in preparing for trial he:
(Id. at p. 47). He further testified that Petitioner knew all the State's witnesses, and she wrote down a number of questions she wanted counsel to ask the witnesses (Id. at pp. 77-78).
Additionally, a review of the trial transcript shows that defense counsel was adequately prepared for trial and effectively presented Petitioner's defense that she was not acting as an unlicensed mortgage broker, but rather was acting as a loan officer and was not required to have a license (Resp. Ex. 16). Counsel did this by extensively cross-examining the State's witnesses, especially Rosen, and presenting Petitioner's testimony that she had responded to an advertisement soliciting loan officers, not mortgage brokers, that she never held herself out as a mortgage broker, and that she was working as a loan officer for Rosen under his license (Id.). Counsel also attempted to present testimony from Jason Booth explaining the difference between a mortgage broker and a loan officer (Id. at p. 248). The trial court, however, did not allow this testimony (Id. at pp. 248-56). Petitioner asserts that counsel should have presented evidence and argument that she was employed as a "loan originator" and that loan originators are not required to be licensed. Petitioner, however, testified that she was a "loan officer" not a "loan originator." (Id. at pp. 261, 263, 274).
In this circumstance, the test is not whether trial counsel did everything he could have done. Rather, the test is whether the assistance that was rendered was "within the `wide range of reasonable professional assistance.'" Waters v. Thomas, 46 F.3d 1506, 1518 (11th Cir. 1995) (quoting Strickland, 466 U.S. at 689). Petitioner's trial counsel's assistance was within this range.
In light of the record and the doubly-deferential standard of ineffective assistance of counsel claims reviewed under § 2254, Petitioner has failed to show that the state courts' denial of this claim was objectively unreasonable. Accordingly, Ground One does now warrant federal habeas relief.
Petitioner claims that trial counsel was ineffective in failing to call "witnesses whose testimony would have been exculpatory." (Dkt. 1 at docket p. 5). In her amended Rule 3.850 motion, Petitioner asserted that counsel should have called Ronald McVeigh, Russell Fuller, and Ann Thompson (Resp. Ex. 54 at pp. 2-7). Petitioner contended that McVeigh would have testified that he hired Petitioner as a loan originator, not a mortgage broker, and that Petitioner did not need to be licensed for the position (Id.). Petitioner asserted that Fuller would have testified he interviewed Petitioner for a loan originator position, the position is "ministerial and clerical," and Petitioner was one of twelve loan originators hired following an advertisement in the newspaper (Id). Finally, Petitioner opined that Ann Thompson could have testified as an expert witness, and would have testified to the difference between loan originators and mortgage brokers, and Florida's mortgage broker licensing requirements (Id.).
In state court, Petitioner raised this claim in Ground One of her amended Rule 3.850 motion (Id.). After an evidentiary hearing, the state post-conviction court denied the claim as follows:
(Resp. Ex. 78 at pp. 5-7) (footnote omitted) (emphasis in original).
McVeigh, Fuller, and Thompson did not testify during the state Rule 3.850 evidentiary hearing (Resp. Ex. 77). During the evidentiary hearing, Petitioner admitted that she never spoke to McVeigh, Fuller, or Thompson, or obtained affidavits from them (Id. at p. 224). And Petitioner has not presented any evidence to this Court supporting her contention that McVeigh, Fuller, and Thompson were available and willing to testify at trial, and that they would have testified as she theorizes.
"[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit. A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim." See United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (footnotes omitted). Consequently, Petitioner's claim is too speculative to warrant relief. See Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001) ("Johnson offers only speculation that the missing witnesses would have been helpful. This kind of speculation is `insufficient to carry the burden of a habeas corpus petitioner.'") (quoting Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir.1985)). See also Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim).
Moreover, during the Rule 3.850 evidentiary hearing, Petitioner's trial counsel testified that Petitioner never provided him with McVeigh and Thompson's names (Resp. Ex. 77 at pp. 23, 33, 34). And although Petitioner mentioned Fuller's name while discussing the case with counsel (id. at pp. 24, 27), Petitioner told counsel that she did not have any witnesses (Id. at p. 34).
Petitioner has failed to demonstrate that counsel acted deficiently and that she sustained prejudice. Therefore, the state post-conviction court's denial of this claim was neither contrary to, nor an unreasonable application of Strickland, nor was it based upon an unreasonable determination of the facts in light of the evidence presented. Accordingly, Ground Two does not warrant federal habeas relief.
Petitioner contends that trial counsel was ineffective in failing to present certain exculpatory evidence. In her state amended Rule 3.850 motion, Petitioner specifically stated that counsel was ineffective in failing to obtain and present 1) a Tampa Tribune employment advertisement soliciting loan originators, 2) the employment application she completed in response to the advertisement, which would have indicated that she applied for a position as a loan originator, and 3) a mortgage broker application that was signed by Jeff Rosen and indicated that Rosen, not Petitioner, was the mortgage broker for the Tavares Levarity loan (Resp. Ex. 54 at pp. 19-20). Petitioner argued that had counsel obtained and presented these documents at trial, she would have been found not guilty of the acting as an unlicenced mortgage broker charge because the documents proved that she was not acting as a mortgage broker, but rather was a loan originator (Id.).
In state court, Petitioner raised this claim as Ground Eight of her amended Rule 3.850 motion (Id.). After an evidentiary hearing, the state post-conviction court denied the claim as follows:
(Resp. Ex. 78 at pp. 14-15) (emphasis in original).
The state post-conviction court's determination that Petitioner failed to demonstrate prejudice was not objectively unreasonable, and was not based on an unreasonable determination of the facts. First, Petitioner did not provide, either to this Court or the state post-conviction court, the documents (newspaper advertisement, employment application, and mortgage broker application signed by Jeff Rosen) that she contends would have established that she was acting as a loan originator rather than a mortgage broker. Petitioner's conclusory allegations regarding what the documents would show, without any evidence to support those allegations, do not warrant federal habeas relief. By neglecting to present any evidence in support of her claim, Petitioner's claim is conclusory and insufficient to prove ineffective assistance of counsel under Strickland. See Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992) ("`Conclusory allegations of ineffective assistance are insufficient.'") (quoting United States v. Lawson, 947 F.2d 849, 853 (7th Cir. 1991)).
Second, during the Rule 3.850 evidentiary hearing, Petitioner's trial counsel testified that his notes did not indicate that Petitioner asked him to obtain the newspaper advertisement and the mortgage application signed by Jeff Rosen (Resp. Ex. 77 at pp. 72-73). And although trial counsel testified that he did not obtain a copy of Petitioner's employment application (id. at p. 75), he was never asked if Petitioner had asked him to obtain a copy of the employment application. Petitioner testified that she asked trial counsel to obtain a copy of the newspaper advertisement, employment application, and mortgage broker application signed by Rosen (Id. at pp. 168-70).
In denying this claim, the state post-conviction court stated, in pertinent part, that "the Court finds the testimony of Mr. McKeever to be more credible than that of Defendant." (Resp. Ex. 78 at p. 15). In federal habeas proceedings, deference is given to a trial court's credibility determinations, and such findings may be disturbed only if they are unreasonable in light of the evidence. Gore v. Sec'y for Dep't of Corr., 492 F.3d 1273, 1300 (11th Cir. 2007). The testimony that the state post-conviction court found to be credible reflected that trial counsel's notes did not indicate that Petitioner had asked him to obtain the documents, but did indicate that Petitioner told him she wanted to proceed to trial and did not want discovery. Accordingly, trial counsel did not render deficient performance in failing to obtain and present documents of which he was not aware prior to trial.
Additionally, Petitioner has failed to demonstrate prejudice because she has not shown a reasonable probability of a different outcome at trial had her counsel obtained the documents and presented them. During trial, Tavares Levarity, the individual whom Petitioner helped refinance his home, testified that Petitioner had told him that she was a licensed mortgage broker (Resp. Ex. 16 at pp. 133, 148). India Miracle, who worked at America's Best Mortgage ("ABM"), testified that Petitioner was a mortgage broker who worked with ABM as an independent contractor (Id. at pp. 158-59). Rosen, the owner of ABM, testified that he interviewed Petitioner to work for him as a mortgage broker, and not as an employee but rather an independent contractor (Id. at 190-91). During the interview, Rosen asked Petitioner for a copy of her mortgage broker license, and she told him that she was licensed and would get him a copy of the license (Id. at pp. 191-92). Rosen hired Petitioner as a mortgage broker on an independent contractor basis (Id. at p. 192).
Petitioner testified that she went to Starfish Capital ("Starfish") in response to a newspaper advertisement seeking applicants for a loan officer position (Id. at pp. 260-61). Starfish was a branch office for ABM (Id. at p. 262). Rosen testified that he was not responsible for the Starfish newspaper advertisement soliciting loan officers (Id. at p. 290). Rosen further testified that Starfish "was Ron McVeigh," that McVeigh "had a branch license under my company to have his own office," and that McVeigh "had the ability to hire and fire people." (Id. at pp. 202-03). Petitioner testified that she accepted a position with Starfish as a loan officer (Id. at p. 263). She was not with Starfish very long, and within 15 to 20 days after she started working with Starfish, she met with Rosen (Id. at p. 264). Petitioner accepted "a position" with ABM (id. at p. 266), and was "working under the license of Mr. Rosen" as "a loan officer" (Id. at pp. 267, 274). Rosen testified that Petitioner was not working under his license, and that "[b]rokers work under their license and work with me." (Id. at p. 288). Petitioner admitted that she solicited a loan on behalf of Mr. Levarity, and that she received compensation from Mr. Rosen for doing so (Id. at p. 286).
In light of this testimony, the newspaper advertisement and employment application would not have established that Petitioner was not acting as a mortgage broker. Even if the advertisement solicited "loan officers," and the application was for a loan officer position, those documents pertained to Starfish and would not have established that Rosen subsequently hired Petitioner as a loan officer, and that Petitioner was not acting as a mortgage broker on the Levarity loan. Rosen unequivocally testified that he had nothing to do with the advertisement, that McVeigh could hire and fire people, that Petitioner told him she had a mortgage broker license, and that he hired Petitioner as a mortgage broker on an independent contractor basis.
Likewise, the mortgage broker application would not have established that Petitioner was not acting as a mortgage broker on the loan. Rosen testified that he may have sent his broker license to the lender to close the Levarity deal because "[y]ou can't close any deals without sending a license to a lender." (Resp. Ex. 16 at p. 289). Even if Rosen's broker's license was on the application, that would not establish that Petitioner was not acting as a mortgage broker on the Levarity loan. The jury was instructed, in pertinent part, that:
(Resp. Ex. 16 at pp. 324-25). Petitioner admitted that 1) she performed all the work on the Levarity loan, including accepting Levarity's application for a mortgage loan and soliciting a loan on Levarity's behalf (Resp. Ex. 16 at p. 286), 2) she received "the broker fee and the processing fee" from Rosen for the Levarity loan (id. at p. 281), and 3) she did not have a mortgage broker license (Id. at pp. 286-87).
Petitioner has failed to meet her burden of proving that the state post-conviction court's decision was contrary to Strickland, or was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See 28 U.S.C. § 2254(d)(1), (2). Accordingly, Ground Three warrants no federal habeas corpus relief.
In Ground Four, Petitioner first contends that trial counsel was ineffective in failing to know the law as it applied to her case. In Ground Six of her amended Rule 3.850 motion, Petitioner asserted that counsel did not know the law governing loan originators, and did not know that loan originators were not required to have a mortgage broker license under Florida Statutes, Chapter 494 (2006) (Resp. Ex. 54 at pp. 13-14). In denying this claim, the state post-conviction court stated:
(Resp. Ex. 78 at pp. 11-13) (emphasis in original).
The state post-conviction court's determination that Petitioner failed to demonstrate deficient performance was not objectively unreasonable, and was not based on an unreasonable determination of the facts. While Petitioner's claim of ineffective assistance of trial counsel is a federal question, her challenge to the application of Florida law is a state law matter. In rejecting this claim, the state post-conviction court determined that Petitioner did not meet any exemption from the license requirement enumerated in Chapter 494.
Petitioner next contends in Ground Four of the petition that counsel was ineffective in failing to move for a mistrial. In Ground Seven of her amended Rule 3.850 motion, Petitioner complained that counsel was ineffective in failing to move for a mistrial or to disqualify the trial judge on the ground that the judge refused defense counsel's request to have Jason Booth, an employee of the State of Florida Department of Financial Services, testify to the difference between a loan originator and a mortgage broker, and about whether or not loan originators are required to be licensed under Florida Statutes, Chapter 494 (Resp. Ex. 54 at pp. 16-18). Petitioner asserted that the trial judge's refusal to allow this testimony amounted to "judicial misconduct and bias." (Id. at p. 18).
In denying this claim, the state post-conviction court stated:
(Resp. Ex. 78 at pp. 13-14) (emphasis in original).
As noted above, this Court must defer to the state post-conviction court's interpretation of state law. Will, 278 Fed. App'x at 908. In rejecting this claim, the state post-conviction court determined that there was no basis under Florida law to disqualify the judge or for a mistrial. Therefore, the state post-conviction court has answered what would have happened if trial counsel had moved to disqualify the judge or for a mistrial on the ground that the judge denied defense counsel's request to have Booth testify regarding the law pertaining to loan originators—the motions would have been denied. See 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 Florida state law had [petitioner's counsel] done what [petitioner] 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)); see also Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005). Because a motion to disqualify and a motion for mistrial would have been denied, Petitioner cannot show that counsel was deficient in failing to file the motions and that she was prejudiced by counsel's failure to file the motions. See, e.g., United States v. Curbelo, 726 F.3d 1260, 1267 (11th Cir. 2013) ("[I]t goes without saying that counsel is not ineffective for failing to file a meritless suppression motion.") (citation omitted); Meeks v. Moore, 216 F.3d 951, 961 (11th Cir. 2000) (counsel not ineffective for failing to make meritless motion for change of venue).
Petitioner has failed to demonstrate that the state courts' rejection of this ineffective assistance of trial counsel claim was contrary to or an unreasonable application of Strickland, or was based on an unreasonable determination of the facts. Accordingly, Ground Four does not warrant federal habeas relief.
ACCORDINGLY, it is
