Gilbrook v. Sec'y, Dep't of Corr.
| Decision Date | 30 April 2012 |
| Docket Number | CASE NO. 5:10-cv-355-Oc-10TBS |
| Parties | MICHAEL P. GILBROOK, SR., Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents. |
| Court | U.S. District Court — Middle District of Florida |
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. section 2254 (Doc. No. 1). Upon consideration of the petition, the Court ordered Respondents to show cause why the relief sought in the petition should not be granted. Thereafter, Respondents filed a response to the petition for writ of habeas corpus in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases for the United States District Courts (Doc. No. 13). Petitioner filed a reply to the response (Doc. No. 17). Upon due consideration of the petition, the response, the reply, and the state court record, the Court concludes that the petition must be denied.1
Petitioner was charged by second amended information with two counts of felony battery (counts one and five) and three counts of aggravated assault with a deadly weapon(counts two, three, and four) (App. B at 1-2).2 Prior to trial, defense counsel, an assistant public defender, moved to withdraw as counsel citing a conflict because the Office of the Public Defender had previously represented State witness Eddie Mills. Id. at 20-21. The trial court granted the motion to withdraw and appointed substitute counsel. Id. at 22. Substitute counsel subsequently moved to withdraw from representation because Petitioner had obtained private counsel. Id. at 53 The trial court also granted that motion. Id. at 54. On August 21, 2006, defense counsel Gregory E. Tucci ("Tucci") moved to withdraw from representation after learning that Petitioner had filed a bar complaint against him. Id. at 60. After holding a Faretta3 hearing (App. OO), the trial court granted Tucci's motion to withdraw and allowed Petitioner to represent himself (App. OO at 8; App. B at 83).
Trial commenced on November 13, 2006, at which time the trial court noted that Syed Qadri ("Qadri") was acting as standby counsel (App. C at 4). Although Qadri worked for the Office of the Public Defender, this fact was not noted on the record. Id. Petitioner advised the trial court that he still wished to represent himself. Id. at 4, 7-8. Thereafter, on November 16, 2006, the second day of trial, Petitioner requested that Qadri be allowed to represent him for the remainder of the trial. Id. at 51-52. Again, the record does not reflect whether Petitioner was aware that Qadri worked for the Office of the Public Defender. Id. The trial court granted Petitioner's request and appointed Qadri as defense counsel. Id. at 52.4 After the defense rested, the trial court granted Petitioner's motion for judgment ofacquittal as to count four. Id. at 224. Petitioner was convicted as charged of counts one, two, three, and five. Id. at 284. The trial court sentenced Petitioner to five-year terms of imprisonment for each count, with the sentence in counts one, two, and three to run consecutively (App. D at 12). Petitioner appealed, raising one ground for relief (App. E). The Fifth District Court of Appeal per curiam affirmed (App. G).
Petitioner filed a petition for writ of habeas corpus with the Fifth District Court of Appeal alleging ineffective assistance of appellate counsel (App. H). The appellate court denied the petition without discussion (App. I). Petitioner subsequently filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure in which he alleged eleven grounds for relief (App. L). The trial court entered an order striking grounds one and three of the Rule 3.850 motion with leave to amend and summarily denied the remaining claims (App. M). Petitioner then filed an amended Rule 3.850 motion for post-conviction relief raising the two grounds that had been stricken from his prior motion (App. N). The trial court summarily denied the claims on the merits (App. O). Petitioner appealed both of the trial court's orders of denial (App. R). The Fifth District Court of Appeal per curiam affirmed the lower court's denial of his claims (App. S).
Petitioner also filed a Rule 3.800(a) motion in which he complained of a scoresheet error (App. U). The trial court denied the motion finding that although there was a scoresheet error, Petitioner nonetheless would have received the same sentence (App. V). Petitioner appealed (App. Y), and the appellate court affirmed per curiam (App. Z). Petitioner filed a second Rule 3.800(a) motion (App. AA), which was denied (App. BB). On appeal, the Fifth District Court of Appeal affirmed per curiam (App. CC).
Finally, Petitioner filed another Rule 3.850 motion for post-conviction relief (App.DD). The trial court denied the motion as successive (App. EE). Petitioner appealed (App. HH), and the Fifth District Court of Appeal affirmed per curiam (App. II). Petitioner also filed a second petition for writ of habeas corpus alleging ineffective assistance of appellate counsel (App. JJ). The Fifth District Court of Appeal dismissed the petition (App. KK). The instant federal petition for writ of habeas corpus alleging nine grounds for relief follows (Doc. No. 1).
Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
28 U.S.C. § 2254(d). See Brown v. Patton, 544 U.S. 133, 141 (2005); Price v. Vincent, 538 U.S. 634, 638-39 (2003). A state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits which warrants deference. Ferguson v. Calliper, 527 F.3d 1144, 1146 (11th Cir. 2008).
"Clearly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issues its decision. Carey v. Musladin, 549 U.S. 70, 74 (2006)(citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). "[T]o be 'contrary to' clearly established federal law,the state court must either (1) apply a rule that contradicts the governing law set forth by Supreme Court case law, or (2) reach a different result from the Supreme Court when faced with materially indistinguishable facts." Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010) (internal quotations and citation omitted); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
A state court decision involves an "unreasonable application" of the Supreme Court's precedents if the state court correctly identifies the governing legal principle but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown, 544 U.S. at 134; Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000); or, "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Bottoson, 234 F.3d at 531 (quoting Williams, 529 U.S. at 406). The "unreasonable application" inquiry "requires the state court decision to be more than incorrect or erroneous"; it must be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-77 (2003) (citation omitted); Mitchell, 540 U.S. at 17-18; Ward, 592 F.3d at 1155.
Ineffective assistance of counsel claims are reviewed under the standards established by 28 U.S.C. § 2254(d). Newland v. Hall, 527 F.3d 1162, 1183 (11th Cir. 2008). Post-AEDPA, the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), remains applicable to the claims of ineffective assistance of counsel raised in this case. Newland, 527 F.3d at 1184. In Strickland, the Supreme Court established a two-part test for determining whether a convicted person is entitled to relief on the ground that hiscounsel rendered ineffective assistance: (1) whether counsel's performance was deficient and "fell below an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced the defense.5 Strickland, 466 U.S. at 687-88; see also Bobby Van Hook, 130 S. Ct. 13, 16 (2009). A habeas court's review of a claim under the Strickland standard is "doubly deferential." Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (quoting Knowles v. Mirzayanze, 129 S. Ct. 1411, 1420 (2009) (citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)).
States may "impose whatever specific rules . . . to ensure that criminal defendants are well represented," but "the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices." Bobby Van Hook, 130 S. Ct. at 17 (internal quotations and citations omitted). It is petitioner who bears the heavy burden to "prove, by a preponderance of the evidence, that counsel's performance was unreasonable." Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court must "judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct," Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690), applying a "highly deferential" level of judicial scrutiny. Id. A court must adhere to a strong presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. An attorney is not ineffective for failing to raise or preserve a meritless issue. Ladd v. Jones, ...
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