CHARLENE EDWARDS HONEYWELL, District Judge.
Petitioner Romerio La'Tee Walker, proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Dkt. 1.) He also filed a memorandum of law with an appendix. (Dkts. 3, 4.) Walker challenges convictions entered by the Circuit Court for the Tenth Judicial Circuit, in and for Polk County, Florida. Respondent filed a response (Dkt. 27), in which it concedes the petition's timeliness. Petitioner filed a reply with an appendix. (Dkts. 31, 32.) Upon review, the petition must be denied.
Walker was charged with possession of cocaine with intent to sell (count one) and possession of drug paraphernalia (count two). (Dkt. 29, Ex. 1.) In August 2008, he entered a plea of no contest in exchange for a sentence of eight years in prison on count one, to be suspended on the condition that he complete ten years of probation. (Dkt. 29, Ex. 4.) He was sentenced to time served on count two. (Dkt. 29, Ex. 83, Vol. VII, p. 1183.) Walker voluntarily dismissed his direct appeal. (Dkt. 29, Ex. 18.) Walker's probation officer filed several affidavits alleging violations of probation. (Dkt. 29, Exs. 5, 7, 9, 10, 17.) At a June 2010 hearing, upon finding that Walker violated his probation, the court revoked probation and sentenced Walker to serve the eight year term that was previously suspended. (Dkt. 29, Ex. 31.) Walker appealed, but voluntarily dismissed his appeal. (Dkt. 29, Ex. 37.)
Walker filed numerous postconviction motions challenging his convictions and sentences. His pleadings included several motions for postconviction relief under Florida Rule of Criminal Procedure 3.850 and a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). (Dkt. 29, Exs. 43, 54, 69.) The state court summarily denied these motions. (Dkt. 29, Exs. 56, 67, 70, 72.) In a consolidated appeal, the state appellate court per curiam affirmed the orders of denial. (Dkt. 29, Ex. 88.)
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). 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), which sets forth a highly deferential standard for federal court review of a state court adjudication, states:
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, 694 (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). 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 [the federal court is] 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, 529 U.S. at 412.
The purpose of federal review is not to re-try the 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." Cone, 535 U.S. at 693. In other words, "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).
The state appellate court affirmed the denial of Walker's postconviction motion in a per curiam decision without a written opinion. This decision warrants 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.").
Review of the state court decision is limited to the record that was before the state court:
Pinholster, 563 U.S. at 181-82. Walker 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).
Claims of ineffective assistance of counsel are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984):
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998). Demonstrating deficient performance "requires showing that counsel made errors so serious that counsel was not func tioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Deficient performance is established if, "in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." Id. at 690. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. Additionally, "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id.
Walker must demonstrate that counsel's alleg ed 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." Id. at 691-92. To show prejudice, a petitioner must demonstrate "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. When the case involves a plea, the prejudice inquiry focuses on whether counsel's deficient performance "affected the outcome of the plea process. In other words, in order to satisfy the `prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
A petitioner cannot meet his burden merely by showing that counsel's choices were 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)).
Sustaining a claim of ineffective assistance of counsel on federal habeas review is 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 105 (citations omitted). See also Pinholster, 563 U.S. at 202 (a petitioner must overcome the "`doubly deferential' standard of Strickland and AEDPA.").
If a claim of ineffective assistance of counsel can be resolved through one of the Strickland test's two prongs, the other prong need not be considered. 466 U.S. at 697 ("[T]here 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.").
Walker was represented by a succession of three attorneys, and he filed pre-plea motions to dismiss two of them. (Dkt. 29, Ex. 84, Vol. VI, pp. 1020-24, 1057-63; Vol. VII, pp. 1165-73.) Walker's last motion concerned Assistant Public Defender Geoffrey Foster, the attorney who represented him at the change of plea hearing.
Walker states that he raised this argument as claim 20 of his third amended postconviction motion. There, he alleged that he was forced to enter a plea due to judicial bias.
(Doc. 29, Ex. 70, p. 1411) (court's record citations omitted).
Walker has failed to demonstrate that his plea was involuntarily entered because the court denied his motion to dismiss Foster, thereby requiring him to proceed with counsel he did not want. The standard for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31 (1970).
Although a defendant's statements during a plea colloquy are not insurmountable, "the representations of the defendant, his lawyer, and the prosecutor at [a plea hearing], as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). "[W]hen a defendant makes statements under oath at a plea colloquy, he bears a heavy burden to show his statements were false." United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988).
Walker's plea colloquy provides:
(Dkt. 29, Ex. 83, Vol. VII, pp. 1177-88.)
The record reflects that Walker understood the charges against him and possible penalties he faced, as well as the agreed-upon sentence to be imposed and the terms and conditions of probation. He also understood the rights that he waived by entering his plea. Walker told the court that he was not forced, coerced, or threatened into entering the plea. He did not raise any complaints about counsel or protest that the court's rulings regarding counsel's performance left him no choice but to plead.
To the extent his decision to plead might have involved a fear of receiving a greater sentence upon conviction at trial, Walker fails to show that this consideration rendered his plea involuntary. See, e.g., Brady v. United States, 397 U.S. 742, 751 (1970) ("We decline to hold . . . that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged.").
Walker has not demonstrated that his plea was involuntary on the basis alleged. He does not show that the state court's rejection of his claim was contrary to or an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts. Consequently, Walker is not entitled to relief on Ground Four.
The claims in Ground Two stem from Walker's allegation that Foster had a conflict of interest that prevented him from advising Walker about the State's plea offers. In support, Walker describes three plea offers he claims the State presented. The first offer was to reduce the charge of possession of cocaine with intent to sell to simple possession, in exchange for a sentence of five years in prison and a waiver of all appellate rights and all claims of ineffective assistance of counsel. (Dkt. 3, p. 11.) Walker alleges that the State next offered him a five year sentence for simple possession and, under the terms of the agreement, he "would retain his right to a direct appeal but would still be required to waive claims of ineffective assistance of counsel." (Id.) The third offer, Walker states, was for an eight-year suspended sentence and would provide that Walker "would still be allowed to appeal the orders denying his motions to dismiss the public defender." (Id.) Walker asserts that Foster relayed the offers but said that he could not advise Walker whether to accept them because conditions about claims involving the performances of Foster and Candy Murphy, another assistant public defender who previously represented Walker in the case, created a conflict of interest.
Walker seems to refer interchangeably to claims challenging the court's denial of his motions to dismiss counsel and claims asserting ineffective assistance of trial counsel. It appears that Walker intends to refer to appellate claims alleging trial court error for denying his motions to dismiss counsel, which motions were based on Walker's allegations that counsel was not providing effective assistance. The Court reaches this conclusion due to Walker's discussion about the claims he wanted to raise on direct appeal
In ground eleven of his second amended postconviction motion, Walker alleged that Foster was ineffective for failing to withdraw in light of the alleged conflict. The state court denied Walker's claim:
(Dkt. 29, Ex. 67, pp. 1393-94.) The court also rejected claim 23 of Walker's third amended postconviction motion:
(Dkt. 29, Ex. 70, p. 1411) (court's record citation omitted).
To establish that counsel was ineffective in connection with a conflict of interest, a defendant must demonstrate that there was an actual conflict of interest, and that the conflict adversely affected his lawyer's performance. Lightbourne v. Dugger, 829 F.2d 1012, 1023 (11th Cir. 1987). See also United States v. Rodriguez, 982 F.2d 474, 477 (11th Cir. 1993) ("A criminal defendant's right to effective assistance of counsel is violated where the defendant's attorney has an actual conflict of interest that affects the defendant adversely.") (citing Cuyler v. Sullivan, 446 U.S. 335 (1980) and United States v. Petz, 764 F.2d 1390, 1392 (11th Cir. 1985)).
"An `actual conflict' of interest occurs when a lawyer has `inconsistent interests.'" Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999) (citing Smith v. White, 815 F.2d 1401, 1405 (11th Cir. 1987). A possible or speculative conflict is insufficient. See Cuyler, 446 U.S. at 350. "To prove adverse effect, a defendant needs to demonstrate: (a) that the defense attorney could have pursued a plausible alternative strategy, (b) that this alternative strategy was reasonable, and (c) that the alternative strategy was not followed because it conflicted with the attorney's external loyalties." Reynolds v. Chapman, 253 F.3d 1337, 1343 (11th Cir. 2001). "If there is a guilty plea involved, [a] Court looks at whether the attorney's actual conflict adversely affected the defendant's decision to plead guilty." Pegg v. United States, 253 F.3d 1274, 1278 (11th Cir. 2001). Once a defendant establishes both an actual conflict and an adverse effect from the conflict, prejudice is presumed and the defendant is entitled to relief. Lightbourne, 829 F.2d at 1023.
Walker points to no record evidence to support his claim. He does not establish that the State made multiple plea offers, what the terms of any such plea offers were, or that Foster refused to advise him because he believed he had a conflict due to conditions about appellate claims challenging counsel's performance.
Even assuming Walker established that Foster had an actual conflict, he has not demonstrated any reasonable alternative action that Foster failed to pursue due to the conflict. Advice contrary to counsel's interests would have been to reject the plea offer or offers described by Walker and proceed to trial, thereby preserving the ability to raise claims on appeal challenging the trial court's denial of Walker's motions to dismiss counsel due to counsel's alleged deficiencies.
Walker has not demonstrated that the state court's denial of his claims was contrary to or an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts. Consequently, Ground Two warrants no relief.
Walker argues that he never formally entered a plea and that, instead, counsel entered the plea on his behalf. He appears to raise two claims of error in connection with this assertion. First, Walker contends that the state court had no authority to impose sentence because he had not entered a plea. (Dkt. 3, p. 29.) Walker's argument is liberally interpreted as presenting a federal due process claim.
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 postconviction motion. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition."). See also Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.") (citations omitted). A state prisoner "`must give the state courts one full opport unity 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).
To exhaust a claim, a petitioner must make the state court aware of both the legal and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) ("Exhaustion of state remedies requires that the state prisoner `fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass on and correct alleged violations of its prisoners' federal rights.'") (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). A federal habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." Pruitt, 348 F.3d at 1358. The prohibition against raising an unexhausted claim in federal court extends to both the broad legal theory of relief and the specific factual contention that supports relief. Kelley v. Sec'y, Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).
The requirement of exhausting state remedies as a prerequisite to federal review is satisfied if the petitioner "fairly presents" his claim in each appropriate state court and alerts that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971). A petitioner may raise a federal claim in state court "by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or simply by labeling the claim `federal.'" Baldwin v. Reese, 541 U.S. 27, 32 (2004).
A fundamental miscar riage of justice occurs in an extraordinary case where a constitutional violation has probably resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892. This exception requires a petitioner's "actual" innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To meet this standard, a petitioner must show a reasonable likelihood of acquittal absent the constitutional error. Schlup, 513 U.S. at 327.
Walker did not exhaust his federal claim because he did not raise the federal dimension of the argument in state court. (Dkt. 29, Ex. 54, pp. 846-52.) Walker cannot return to state court to present the ground in a successive Rule 3.800(a) motion. See Fla. R. Crim. P. 3.800(a)(2). Therefore, the claim is procedurally defaulted. Walker does not argue or establish that either exception applies to overcome the default. Notwithstanding the default, however, Walker is not entitled to relief. In his Rule 3.800(a) motion to correct illegal sentence, Walker argued that the court lacked authority to sentence him because he never entered a plea. (Dkt. 29, Ex. 54, p. 849.) The state court denied relief by adopting the State's response to this allegation, which provides:
(Dkt. 29, Ex. 55, pp. 1221-23) (State's record citations omitted).
Although the court did not directly ask him if he in fact was entering a plea, Walker cites no authority providing that a defendant must say any particular words to effectuate entry of a plea. The court asked Walker whether it was his understanding that he was entering a no contest plea, and Walker replied that it was. Furthermore, the change of plea hearing transcript, read in its entirety, reflects that Walker understood he was entering a plea and that he voluntarily made the choice to do so. He voiced no objections, hesitation, or confusion about entering his plea. Nor did he protest when the court announced that it accepted his plea as freely and voluntarily entered. In addition, Walker signed a plea form providing that he entered a plea of no contest to the counts as charged, that he would receive an agreed-upon sentence, and that he acknowledged the rights he waived. (Dkt. 29, Ex. 2.) Walker does not show entitlement to relief.
Walker's second argument within Ground Three is that his attorney lacked authority to enter a no contest plea on his behalf. He states that "it appeared that [Walker] was confused as to the issues [he] would be allowed to raise on direct appeal, so to keep [him] from discovering the truth the Public Defender injected himself in the plea colloquy and entered a no contest plea on [his] behalf." (Dkt. 1, p. 8.) This argument is interpreted as raising the same ineffective assistance of counsel claim that Walker presented in claim 15 of his second amended postconviction motion, to which Walker refers in his federal habeas petition. In that claim, he argued that counsel was ineffective for failing to object to his being sentenced despite not having entered a plea or having had a trial. The state court rejected his argument:
(Dkt. 29, Ex. 70, p. 1409.)
The record supports the denial of this claim. As addressed, the record is clear that Walker entered a no contest plea in exchange for an agreed-upon sentence. Thus, Walker has not established a basis upon which counsel could have objected. Furthermore, there is no indication from the record of the change of plea hearing that Walker was confused about the issues that he reserved the right to raise on direct appeal. It was apparent that, as part of the agreement, Walker reserved the right to challenge on appeal the dispositive issue of the court's denial of his motion to suppress. Walker fails to show that the state court's rejection of his claim was contrary to or an unreasonable application of clearly established federal law, or was based upon an unreasonable determination of the facts. Walker is not entitled to relief on Ground Three.
In Ground One, Walker alleges ineffective assistance of counsel in connection with his motions to suppress.
Through his attorney at the time, Ronald Toward, Walker filed a motion to suppress physical evidence and admissions on July 14, 2006. The motion alleged that evidence was obtained as a result of an illegal warrantless seizure and illegal investigatory detention in violation of the Fourth and Fourteenth Amendments. (Dkt. 29, Ex. 83, Vol. VI, pp. 1001-05.) The court conducted an evidentiary hearing, at which Polk County Sheriff's Deputy Brad Gallagher testified about the events leading to Walker's arrest.
Gallagher conducted a traffic stop at 2:52 a.m. on December 17, 2005, after he saw Walker make a right turn at a red light without stopping. (Dkt. 29, Ex. 83, Vol. VII, pp. 1197-98.) Gallagher made contact with Walker and waited for him to get his information from the locked glove box. (Id., pp. 1200-01.) That Walker seemed "very protective" of the glove box raised Gallagher's suspicions about its contents. (Id., p. 1201.) Walker re-locked the glove box after retrieving the documents. (Id.) Gallagher, who performed traffic stops "continuously all night long," believed it "was very unusual for this to occur." (Id.)
Walker gave Gallagher his registration and Florida identification card. (Id.) Walker did not give Gallagher proof of insurance. (Id.) Walker stated that his driver's license was valid but that he did not have it with him. (Id.) Gallagher returned to his car and looked up Walker's information, verifying that Walker had a valid driver's license. (Id., p. 1202.)
Gallagher requested a canine unit over the radio. (Id., p. 1204.) Walker found his proof of insurance. (Id.) Gallagher returned to his car to verify Walker's insurance information. (Id.) Gallagher was about to begin writing Walker a citation but realized he had run out of citation forms. (Id., pp 1204-05.) "As soon as [Gallagher] noticed" this, the canine unit with Deputy Leslie and another unit with Deputy Marvin arrived. (Id., p. 1205.) Gallagher obtained a citation form from Marvin and started writing the citation. (Id., p. 1206.)
As Leslie conducted the dog sniff, Gallagher finished writing the citation. (Id., p. 1207.) After Leslie's dog alerted to Walker's vehicle, the deputies found $3,050 in cash in the glove box, cocaine in the driver's seat, and cocaine and paraphernalia on Walker's person. (Id., pp. 1207-08.) Thirteen minutes passed between the time Gallagher stopped Walker and Leslie's arrival with the dog. (Id., p. 1206.)
The state trial court denied Walker's motion to suppress on September 20, 2006. The order, signed by Judge Alcott, found "the warrantless search of the vehicle to be reasonable as based on a valid traffic stop and the probable cause furnished by the canine alert that occurred without unreasonable delay." (Dkt. 29, Ex. 83, Vol. VI, pp. 1008-09.)
On October 20, 2006, Walker deposed Gallagher during the civil forfeiture case involving his vehicle, in which Walker proceed pro se.
In addressing the outstanding suppression issues at an August 24, 2007 hearing, a successor judge, Judge Selph, took the matter concerning Gallagher's testimony under advisement. (Dkt. 29, Ex. 83, Vol. VI, pp. 1047-49.) At a September 12, 2007 hearing, Judge Selph stated that he had read the transcript from the civil forfeiture case and listened to the recording of the original motion to suppress hearing. (Id., pp. 1066-67.) He rejected Walker's request to reconsider the denial on the basis of Gallagher's civil forfeiture testimony. (Id., pp. 1068-70; Vol. VII, pp. 1071-75.) Suppression issues were again addressed at hearings on January 4, 2008, and March 25, 2008, before a second successor judge, Judge Jacobsen. At both hearings, Judge Jacobsen declined to reconsider the previous suppression rulings. (Dkt. 29, Ex. 83, Vol. VII, pp. 1104, 1129-31, 1159-60.)
In his federal habeas petition, Walker alleges that counsel "failed to investigate, develop, and bring impeachment evidence before the Court during hearings on the motion to suppress." (Dkt. 1, p. 5.) Walker claims that he uncovered this "impeachment evidence" during his own investigation in the civil forfeiture case.
Walker's voluntary plea waives any claims of constitutional violations prior to the plea. See Tollett v. Henderson, 411 U.S. 258, 267 (1973) ("[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.").
However, Walker may present a claim of ineffective assistance of trial counsel if such a claim challenges the voluntariness of the plea itself. See Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) ("A defendant who enters a plea of guilty waives all nonjurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained."). Stano v. Dugger, 921 F.2d 1125, 1150-51 (11th Cir. 1991) ("The Court allows only challenges to the voluntary and intelligent entry of the plea if a convicted defendant can prove `serious derelictions' in his counsel's advice regarding the plea.") (citation omitted). Walker alleges in his memorandum, similar to his argument in Ground Four, that he was forced into entering the plea due to counsel's performance. (Dkt. 3, p. 24.) Accordingly, this claim is interpreted as invoking the voluntariness of his plea. Walker presents three specific matters that he alleges counsel should have addressed during the motion to suppress hearing. Each allegation is discussed below.
This allegation is construed as raising the same argument presented in claim 1 of Walker's postconviction motion, in which he asserted that Toward, who represented him at the motion to suppress hearing, should have obtained and presented this information. The state court rejected Walker's argument:
(Dkt. 29, Ex. 67, pp. 1385-87) (court's record citations omitted).
To the extent Walker argues that information showing Gallagher obtained his criminal history reflects an inconsistency in Gallagher's statements about why he called for a canine unit, and thus would have shown him to be an untrustworthy witness, his claim is entirely speculative. Walker has not demonstrated that such information would have caused the court to discredit Gallagher's testimony and grant the motion. Speculation cannot sustain a claim of ineffective assistance of counsel. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim).
Nor does Walker show that information about Gallagher's motive in calling for a canine unit would have provided a basis to challenge the validity of the search under the Fourth Amendment, which protects against unreasonable searches and seizures. "When police stop a motor vehicle, even for a brief period, a Fourth Amendment `seizure' occurs." United States v. Whitlock, 493 Fed. App'x 27, 30 (11th Cir. 2012) (citing Whren v. United States, 517 U.S. 806, 809-10 (1996)). Limits apply to an officer's conduct during a traffic stop:
United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001).
"Under the exclusionary rule, evidence obtained in an encounter that is in violation of the Fourth Amendment, including the direct products of police misconduct and evidence derived from the illegal conduct, or `fruit of the poisonous tree,' cannot be used in a criminal trial against the victim of the illegal search and seizure." United States v. Perkins, 348 F.3d 965, 969 (11th Cir. 2003) (citing United States v. Terzado-Madruga, 897 F.2d 1099, 1112 (11th Cir. 1990)).
Walker has not shown that Gallagher's obtaining his criminal history during the course of the traffic stop was improper. "So long as the computer check does not prolong the traffic stop beyond a reasonable amount of time under the circumstances of the stop, the inclusion of a request for criminal histories does not constitute a Fourth Amendment violation." Purcell, 236 F.3d at 1279. "It is well established that officers conducting a traffic stop may `take such steps as [are] reasonably necessary to protect their personal safety.'" Id. at 1277 (quoting United States v. Hensley, 469 U.S. 221, 235 (1985)). "Many courts have recognized that knowledge of the criminal histories of a vehicle's occupants will often be relevant to that safety. . . . The request for criminal histories as part of a routine computer check is justified for officer safety." Id. at 1278. Walker does not show that reviewing criminal history of vehicle occupants during a traffic stop was not routine for Gallagher.
Furthermore, Walker does not establish that Gallagher's reason for calling the canine unit was relevant to the legality of the dog sniff and subsequent seizure of contraband. A dog sniff is generally permissible during a traffic stop as long as it does not unreasonably add to the duration of the stop. "[A] dog sniff that does not unreasonably prolong the traffic stop is not a search subject to the Fourth Amendment, and based on this principle, the Supreme Court has `rejected the notion that the shift in purpose from a lawful traffic stop into a drug investigation was unlawful because it was not supported by any reasonable suspicion.'" Whitlock, 493 Fed. App'x at 31 (quoting Muehler v. Mena, 544 U.S. 93, 101 (2005)). See also Illinois v. Caballes, 543 U.S. 405, 409 (2005) ("[T]he use of a well-trained narcotics-detection dog-one that does not expose noncontraband items that otherwise would remain hidden from public view-during a lawful traffic stop, generally does not implicate legitimate privacy interests.") (internal quotation marks and citation omitted); Rodriguez v. United States, ___ U.S. ___, 135 S.Ct. 1609, 1616 (2015) ("The critical question. . . is not whether the dog sniff occurs before or after the officer issues a ticket . . . but whether conducting the sniff prolongs-i.e., adds time to—the stop.") (internal quotation marks omitted).
Gallagher's testimony shows that the drug dog arrived and performed a sniff during the course of the traffic stop. Gallagher was checking Walker's insurance information—which Walker did not initially provide—when the dog arrived, and the sniff occurred as Gallagher wrote Walker's traffic citation.
The state court rejected this claim when Walker raised it in his postconviction motion:
(Dkt. 29, Ex. 67, p. 1387.)
Walker raised another claim concerning the glove box and video, which the state court denied:
(Dkt. 29, Ex. 67, p. 1390.)
Again, any claim that information about Gallagher's motivations would have caused the court to find his testimony not credible and therefore grant the motion to suppress is too speculative to support an ineffective assistance claim. See Tejada, 941 F.2d at 1559. And, as discussed, Walker fails to show that Gallagher's motive in requesting a canine unit would have supported a Fourth Amendment claim. Walker has not carried his burden to establish that counsel performed deficiently or that he suffered resulting prejudice. He does not show that the state court's decision was contrary to or an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts.
(Dkt. 29, Ex. 83, Vol. VI, pp. 1010-11.)
The state court denied Walker's claim that counsel was ineffective for failing to uncover and present such evidence:
(Dkt. 29, Ex. 67, pp. 1387-88.)
The record supports the state court's denial of this claim. Despite Gallagher's later description of two different matters with which he was concerned-the traffic infraction and the contents of the glove box-the stop for the traffic citation was ongoing and had not been unreasonably delayed when Gallagher conducted the trunk search and the flashlight search. Furthermore, the record shows that Murphy presented Gallagher's October 2006 testimony to the court during the consideration of Walker's motions to rehear and reconsider the court's denial of the motion to suppress. Upon reviewing the record of the motion to suppress hearing and the deposition, however, the court did not find any basis to reconsider the motion to suppress. (Dkt. 29, Ex. 83, Vol. VI, pp. 1068-70; Vol. VII, pp. 1071-75.)
Walker has not shown that the state court's rejection of his claim was contrary to or an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts. Walker is not entitled to relief on Ground One.
Walker represented himself during violation of probation proceedings. He asserts that, on June 21, 2010, at the evidentiary hearing on an allegation of violation and subsequent sentencing, the court erred by allowing him to continue to proceed pro se without offering him counsel. Walker's claim is interpreted as raising the allegation presented in claim 19 of his third amended postconviction motion. In that ground, he argued that the trial court's failure to renew the offer of counsel or conduct a Faretta
(Dkt. 29, Ex. 72) (court's record citation omitted).
The State's response, adopted by the postconviction court, provides:
(Doc. 29, Ex. 71, pp. 2-3.)
A federal habeas petitioner's failure to present a claim in accordance with state procedural rules generally precludes federal habeas review of the claim. Coleman v. Thompson, 501 U.S. 722(1991); Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir.2001) ("[C]laims that have been held to be procedurally defaulted under state law cannot be addressed by federal courts."). "However, a state court's rejection of a federal constitutional claim on procedural grounds will only preclude federal review if the state procedural ruling rests upon [an] `independent and adequate' state ground." Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.2001). A state court's procedural ruling constitutes an independent and adequate state rule of decision if (1) the last state court rendering a judgment in the case clearly and expressly states that it is relying upon a state procedural rule to resolve the federal claim without reaching the merits of the claim, (2) the state court's decision rests solidly on state law grounds and is not intertwined with an interpretation of federal law, and (3) the state procedural rule is not applied in an "arbitrary or unprecedented fashion," or in a "manifestly unfair manner." Id. (citing Card v. Dugger, 911 F.2d 1494 (11th Cir.1990)).
Florida courts regularly follow the rule that claims of trial court error are properly raised on direct appeal. See Bruno v. State, 807 So.2d 55, 63 (Fla. 2001) ("[T]he main question on direct appeal is whether the trial court erred. . . . A claim of trial court error generally can be raised on direct appeal."). Florida courts also routinely observe the rule that issues appropriate for direct appeal are not cognizable in a postconviction motion. See Perez v. State, 959 So.2d 408, 411 (Fla. 3d DCA 2007) ("Perez's . . . claims are all claims Perez could have raised on direct appeal and, therefore, [are] not cognizable under rule 3.850 . . . and are procedurally barred); Suto v. State, 422 So.2d 924, 924 (Fla. 2d DCA 1982) ("Issues which were or could have been raised on a direct appeal are not cognizable grounds for relief under rule 3.850.").
The state court resolved this ground by applying an independent and adequate state procedural bar. Therefore, it is procedurally defaulted and may only be considered if Walker establishes that either the cause and prejudice or fundamental miscarriage of justice exception applies to overcome the default. See Harris v. Reed, 489 U.S. 255, 262 (1989) ("[A]n adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show" one of these exceptions). Walker does not demonstrate that either exception applies. Consequently, Ground Five is barred from review and cannot provide relief.
It is therefore
It is further
(Dkt. 29, Ex. 69, p. 1367.)
(Dkt. 29, Ex. 83, Vol. VII, pp. 1203-04.)
