Denmark v. Sec'y, Dep't of Corr.
| Decision Date | 27 February 2020 |
| Docket Number | Case No. 5:17-cv-54-Oc-36PRL |
| Parties | ALPHONSO LEE DENMARK, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents. |
| Court | U.S. District Court — Middle District of Florida |
Petitioner, a Florida prisoner proceeding pro se, initiated this action for habeas corpus relief pursuant to 28 U.S.C. § 2254 and is proceeding on an Amended Petition (Dkts. 1, 14). Upon consideration of the petition, the Court ordered Respondent to show cause why the relief sought in the petition should not be granted (Dkt. 22). Thereafter, Respondent filed a Response and Appendix (Dkts. 27, 28). Petitioner did not file a reply, and the time to do so has passed. Because the Court may resolve the petition on the basis of the record, an evidentiary hearing is not warranted. See Habeas Rule 8(a).
After a jury trial in Marion County, Petitioner was found guilty of one count each of: burglary of a dwelling; fleeing and eluding; attempted burglary of a dwelling; possession of hydrocodone; driving with a suspended license (habitual); and resisting an officer without violence. (Dkt. 28, Respondents' Exhibit A, pp. 8-9, 287-89, 394, 397-408, hereafter "Exh."). The evidence presented at trial demonstrated that while police were attempting to execute an arrest warrant on the Petitioner, he fled in his car. (Exh. A, Trial Transcript, pp. 407-20). Petitioner eventually abandoned the car and broke into a duplex apartment. Id. at 463-64. A hydrocodone pill was found in the console of Petitioner's car. Id. at 494-96, 507-08. The duplex was owned by Nancy Chapman and had recently been rented by John Tegtmeyer. Id. at 662-68. The Amended Information only listed Nancy Chapman as the owner in possession as to Count I (burglary of a dwelling). Id. at 8-9. Prior to calling its final witness, the State moved to amend the information and include in the jury instructions both Ms. Chapman and Mr. Tegtmeyer. Id. at 662-68. Trial counsel objected, but the trial court overruled the objections. Id. Ms. Chapman testified at trial that she owned the duplex in question and that one unit was rented to John Tegtmeyer and one was rented to Jacquie Flowers. Id. at 679-82. Ms. Chapman testified that she did not give the Petitioner permission to enter either apartment. Id.
Petitioner was sentenced to a total of 23 years in prison. Id. at 397-408. Petitioner appealed, and on September 25, 2012, the Fifth District Court of Appeal per curiam, without opinion, affirmed his conviction and sentence. (Exh. I); Denmark v. State, 98 So.3d 583 (Fla. 5th DCA 2012). Mandate issued October 19, 2012. Id.
On May 12, 2013, Petitioner filed a motion for postconviction relief pursuant to Fla. R. Crim. P. 3.850. (Exh. J, pp. 2-24). Petitioner eventually filed a second amended Rule 3.850 motion on June 4, 2014. (Exhs. K, L). The postconviction court summarily denied the motion on February 16, 2015, and Petitioner appealed. (Exhs. O, P). The Fifth District Court of Appeal affirmed per curiam without opinion on May 5, 2015. (Exh. R); Denmark v. State, 166 So. 3d 804 (Fla. 5th DCA 2015).
On July 18, 2014, Petitioner filed a state habeas petition alleging that appellate counsel was constitutionally ineffective for failing to argue that the trial court erred by allowing the Stateto amend the information. (Exh. S). The Fifth District Court of Appeal denied the petition on April 28, 2017. (Exh. V).
On May 4, 2017, Petitioner filed the present petition, raising two grounds for relief: (1) trial counsel was constitutionally ineffective for failing to adequately object to the State's amendment of the information; and (2) appellate counsel was constitutionally ineffective for failing to argue on appeal that the trial court erred by allowing the State to amend the information. (Dkt. 14).
Because Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The AEDPA "establishes a more deferential standard of review of state habeas judgments," Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), 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. 685, 693 (2002); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) ().
Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). 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. 362, 412 (2000).
"[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the 'contrary to' and 'unreasonable application' clauses articulate independent considerations a federal court must consider." Maharaj v. Secretary for Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
Under the "contrary to" clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materially indistinguishable facts. Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.
If the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was "objectively unreasonable." Id.
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244F.3d at 835-36; 28 U.S.C. § 2254(e)(1).
Claims of ineffective assistance of counsel are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to demonstrate both deficient performance by counsel and resulting prejudice. Demonstrating deficient performance "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. 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.
Petitioner must demonstrate that counsel's alleged errors 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 show Id. at 694.
Sustaining a claim of ineffective assistance of counsel on federal habeas review is verydifficult 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." Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations omitted). See also Cullen v. Pinholster, 563 U.S. 170, 202 (2011) () (citation omitted).
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 (); Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998) ().
Before a district court can grant habeas relief to a state prisoner under § 2254, the petitioner must...
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