Gallion v. Sec'y, Fla. Dep't of Corr., Case No. 3:17-cv-663-J-39MCR

CourtU.S. District Court — Middle District of Florida
Writing for the CourtBRIAN J. DAVIS United States District Judge
Docket NumberCase No. 3:17-cv-663-J-39MCR
Decision Date21 June 2019

JERRY GALLION, Petitioner,

Case No. 3:17-cv-663-J-39MCR


June 21, 2019



Petitioner, who is proceeding pro se, challenges his state court conviction through a Petition for Writ of Habeas Corpus (Petition) (Doc. 1) pursuant to 28 U.S.C. § 2254. He is serving a fifteen-year prison sentence as a prison release reoffender as to count three (robbery) and a three-year consecutive sentence as to count four (fleeing or attempting to elude a law enforcement officer). Petition at 1. Respondents filed an Answer to Petition for Writ of Habeas Corpus (Response) (Doc. 24).1 Petitioner responded by filing a Reply to Respondents' Response to Order to

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Show Cause (Doc. 29). The Petition is timely filed. See Response at 6-7.


The pertinent facts are fully developed in this record or the record otherwise precludes habeas relief; therefore, the Court is able to "adequately assess [Petitioner's] claim[s] without further factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004). As the record refutes the asserted factual allegations or otherwise precludes habeas relief, the Court finds Petitioner is not entitled to an evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Petitioner has not met his burden of demonstrating a need for an evidentiary hearing, particularly since an evidentiary hearing was conducted in state court on several claims. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011) (opining a petitioner bears the burden of establishing the need for an evidentiary hearing with more than speculative and inconcrete claims of need), cert. denied, 565 U.S. 1120 (2012).


In the instant Petition, Petitioner raises twelve grounds. In ground one, he claims the trial court erred in denying the motion for judgment of acquittal on the charge of robbery, asserting the evidence was insufficient to show the property taken was in the possession or control of the victim at the time of the taking.

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Petition at 14. Petitioner raises one claim of ineffective assistance of appellate counsel in ground two, contending his appellate counsel was ineffective for failure to argue a properly preserved claim that the trial court erred in failing to conduct an adequate Richardson2 hearing concerning the state's late disclosure of photograph and clothing evidence used for identification purposes. Petition at 15.

Petitioner raises eight claims of ineffective assistance of trial counsel. He claims trial counsel was ineffective for: failure to object to the trial court imposing an illegal sentence under the prison release reoffender statute and for failure to award jail time credit on count four (ground three); failure to timely object to the state's late disclosure of evidence, a photograph and clothing (ground four); providing affirmative misadvice concerning the right to testify, including advice that Petitioner's prior conviction would automatically be introduced to the jury if Petitioner testified (ground five); failure to investigate, depose, and call witnesses (Linda Robinson, Leroy Harrison III, Elijah Laster, Johnny Lee, Darrell Monger, and Ola Rae Monger) (ground six); failure to successfully suppress Petitioner's incriminating statements made during his arrest (ground seven); providing affirmative misadvice concerning the penalty Petitioner faced and for failure to convey the strength and

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weaknesses of the state's case, resulting in Petitioner's inability to make an informed decision as to whether or not to accept a plea offer (ground eight); failure to object and claim fundamental error concerning the improper jury instruction for aggravated fleeing that failed to properly instruct the jury on the elements of the crime (ground nine); and failure to object to the prosecutor's systematic striking of African American jurors from the panel (ground ten). Petition at 20, 23, 28, 32, 35, 37, 40, & 44.

In ground eleven, Petitioner raises one claim of ineffective assistance of post conviction counsel for failure to interview and call witnesses to the evidentiary hearing on the post conviction motion. Petition at 47. Finally, in ground twelve, Petitioner claims the post conviction court committed reversible error in reappointing post conviction counsel for the second evidentiary hearing on the post conviction motion, asserting a conflict arose during the first hearing. Petition at 49.


The Antiterrorism and Effective Death Penalty Act (AEDPA) governs a state prisoner's federal petition for habeas corpus. See 28 U.S.C. § 2254. This statute "imposes important limitations on the power of federal courts to overturn the judgments of state courts in criminal cases." Shoop v. Hill, 139 S.Ct. 504, 506 (2019) (per curiam). The AEDPA statute: "respects the authority and ability of state courts and their dedication to the protection

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of constitutional rights." Id. Therefore, "[u]nder AEDPA, error is not enough; even clear error is not enough." Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335, 1349 (11th Cir. 2019) (citing Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017) (per curiam)).

Applying the statute as amended by AEDPA, federal courts may not grant habeas relief unless one of the claims: "(1)'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) '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)." Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d 1298, 1300-1301 (11th Cir. 2019).

Thus, in order to obtain habeas relief, the state court decision must unquestionably conflict with Supreme Court precedent. Harrington v. Richter, 562 U.S. 86, 102 (2011). If some fairminded jurists could agree with the lower court's decision, habeas relief must be denied. Meders, 911 F.3d at 1351. As noted in Richter, unless the petitioner shows the state court's ruling was so lacking in justification that there was error well understood and comprehended in existing law beyond any possibility for fairminded disagreement, there is no entitlement to habeas relief. Burt v. Titlow, 571 U.S. 12, 19-20 (2013).

In undertaking its review, this Court is not obliged "to flyspeck the state court order or grade it." Meders, 911 F.3d at

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1349. Indeed, specificity and thoroughness of the state court decision is not required; even if the state court fails to provide rationale or reasoning, AEDPA deference is due "absent a conspicuous misapplication of Supreme Court precedent." Id. at 1350 (citation and quotation marks omitted).

Of importance, a state court's finding of fact, whether a state trial court or appellate court, is entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). But, this presumption of correctness applies only to findings of fact, not mixed determinations of law and fact. Brannan v. GDCP Warden, 541 F. App'x 901, 903-904 (11th Cir. 2013) (per curiam) (recognizing the distinction between a pure question of fact from a mixed question of law and fact), cert. denied, 573 U.S. 906 (2014).

Where there has been one reasoned state court judgment rejecting a federal claim followed by an unexplained order upholding that judgement, federal habeas courts employ a "look through" presumption: "the federal court should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (Wilson).

Once a claim is adjudicated in state court and a prisoner seeks relief in the federal court system, AEDPA's formidable barrier to habeas relief comes into play, and it is very difficult for a petitioner to prevail under this stringent standard. As

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such, state-court judgments will not easily be set aside once the Court employs this highly deferential standard that is intentionally difficult to meet. See Richter, 562 U.S. at 102. Although AEDPA does not impose a complete bar to issuing a writ, it severely limits those occasions to those "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts" with Supreme Court precedent. Id. In sum, application of the standard set forth in 28 U.S.C. § 2254(d) ensures that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, and not a mechanism for ordinary error correction. Richter, 562 U.S. at 102-103 (citation and quotation marks omitted).


Petitioner raises multiple claims of ineffective assistance of counsel. To prevail on his Sixth Amendment claims, Petitioner must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 688 (1984), requiring that he show both deficient performance (counsel's representation fell below an objective standard of reasonableness) and prejudice (there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different). See Brewster v. Hetzel, 913 F.3d 1042, 1051-52 (11th Cir. 2019) (reviewing court may begin with either component).

In order to obtain habeas relief, a counsel's errors must be so great that they actually adversely effect the defense. In order

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to satisfy this prejudice prong, the reasonable probability of a different result must be "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

The standard created by Strickland is a highly deferential standard, requiring a most deferential review of counsel's...

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