ORDER
Raymond Kyle, a Florida inmate, filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his Hillsborough County conviction. (Dkt. 1). Respondent opposes the petition. (Dkt. 8). Petitioner did not file a reply. Upon consideration, the petition is DENIED.
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("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).1 A petitioner must demonstrate that the state court's adjudication of his federal claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or 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)(1)-(2).
INEFFECTIVE ASSISTANCE OF COUNSEL Petitioner's claims allege ineffective assistance of trial counsel. The applicable federal law is set out in Strickland v. Washington, 466 U.S. 668 (1984). To show entitlement to relief under Strickland, Petitioner must first demonstrate that his counsel performed deficiently in that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. Petitioner must also show that he suffered prejudice by demonstrating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Obtaining federal habeas relief on an ineffective assistance claim is difficult because review is "doubly" deferential to counsel's performance and the state court's decision. Harrington v. Richter, 562 U.S. 86, 105 (2011).
Ground One: "Ineffective assistance of counsel for failing to object to false and misleading testimony in regard to finding a knife on the Defendant's person, when the arrest reports clearly reflect that no knife was seized."
Petitioner was charged with having committed carjacking in Tampa on January 19, 2008. The next day, Petitioner was arrested in Nashville, Georgia, after being pulled over by Officer KalebMorgan. Officer Morgan testified that he believed Petitioner had a pocketknife on his person at the time of arrest. Petitioner alleges that counsel should have objected because Officer Morgan never disclosed prior to trial that Petitioner possessed a knife. The state court denied his claim:
Defendant alleges counsel was ineffective for failing to object to false and misleading testimony. Specifically, Defendant alleges counsel failed to object to Officer Kaleb Morgan's testimony that he believed Defendant had a pocketknife on him when he was arrested. Defendant claims the criminal report affidavit does not indicate any weapons were seized from Defendant when arrested or when the car was searched. Defendant contends that because whether or not Defendant possessed a knife played a crucial part in his trial, counsel's failure to object prejudiced him. Defendant maintains had counsel objected he may have been convicted of a lesser offense. The specific testimony subject of ground one is as follows:
[CROSS EXAMINATION]
DEFENSE COUNSEL: Did you search Mr. Kyle?
OFFICER MORGAN: I patted him down for weapons.
DEFENSE COUNSEL: Did he have any weapons on him?
OFFICER MORGAN: I believe he had a pocket knife in his pocket.
[REDIRECT EXAMINATION] [sic]2
STATE ATTORNEY [sic]: You say pocket knife. What do you mean when you say a pocket knife?
OFFICER MORGAN: You know, it's just a small foldable one.
STATE ATTORNEY [sic] : Was it big? Thick? Something like a hunting knife?
OFFICER MORGAN: No, sir. Very simple. Like you would keep in your pocket.
The Court first finds Defendant has failed to provide a valid legal basis for which his counsel could have objected to the testimony and that such objection would havebeen sustained [sic]. See Kennedy v. State, 547 So. 2d 912 (Fla. 1989) (finding mere conclusory allegations are not sufficient to meet burden on post-conviction relief).
The Court finds the testimony provided by Officer Morgan concerning the pocket knife occurred during cross examination of Officer Morgan by Defendant's counsel, Mr. Baker. The Court finds trial counsel had no legal basis to object to his own line of questioning and thus counsel cannot be found deficient for failing to object to this testimony. See Hitchcock v. State, 991 So.2d 337, 361 (Fla. 2008) (finding defense counsel "cannot be deemed ineffective for failing to make a meritless objection"). Nor could counsel have objected to the State's questioning Officer Morgan about the knife on redirect examination as such questions are within the scope of cross examination. Hinton v. State, 347 So. 2d 1079, 1080 (Fla. 3d DCA 1977) (citing Noeling v. State, 40 So.2d 120 (Fla. 1949)).
The Court further finds Defendant cannot demonstrate sufficient prejudice. Defendant alleges he was prejudiced by this testimony because whether he possessed a knife was a crucial part of his trial. Defendant was charged by information, which alleged Defendant carjacked victim, Ria Persad, with a knife. [The] [v]ictim testified at trial the knife used in the carjacking "looked like a knife that when I used to go camping a camping knife. So it wasn't like a kitchen knife. It looked like something maybe used for cutting rope or something like that." Thus, even if the testimony of Officer Morgan concerning a "pocketknife" was excluded from trial, the Court finds the outcome of the trial would not have been different given the victim's testimony concerning the "camping knife" Defendant used in the carjacking. See Strickland, 466 U.S. at 694.
The Court finds counsel was not deficient as counsel had no legal basis to object to his own line of questioning and Defendant has not demonstrated prejudice sufficient to undermine the outcome of the trial. For the foregoing reasons, the Court finds no relief is warranted on ground one.
(Dkt. 10, Ex. 16, Final Order Denying Motions for Post-Conviction Relief, pp. 3-5) (court's record citations omitted).
The state court's application of Strickland was not unreasonable. The implication that Petitioner was arrested with a pocket knife which was the knife used in the carjacking was tenuous because, as the state court noted, Morgan and the victim gave inconsistent descriptions of the knives. (Dkt 10, Ex. 2, p. 114; Ex. 3, p. 230). Moreover, the victim testified in detail about being carjackedat knifepoint, and identified Petitioner as the perpetrator. (Dkt. 10, Ex. 2, pp. 109-46). And he was found in Georgia driving the victim's vehicle. (Id., pp. 183-86, 195-96;Dkt. 10, Ex. 3, pp. 216-20). In light of the evidence, Petitioner failed to show a reasonable probability that the outcome of trial would have been different if counsel had challenged Officer Morgan's testimony. The state court did not unreasonably apply Strickland in denying Petitioner's claim. Nor did it base its decision on an unreasonable determination of the facts. Ground One is without merit.
Ground Five:3 "Ineffective assistance of counsel for leading the Defendant into testimony which created the impression that defendant possessed a knife."
Petitioner alleges that trial counsel was ineffective in eliciting his testimony that he possessed a knife. The state court denied this claim, finding:
Defendant alleges ineffective assistance of counsel for leading Defendant into testimony that created the impression that he possessed a knife. Defendant claims that, on direct examination, counsel questioned him about the officer's testimony which resulted in Defendant admitting to possessing a knife. Defendant alleges counsel's improper questioning violated his right against self-incrimination and that counsel's error prejudiced him because the jury may have accepted the Defendant's testimony concerning the possession of a knife as an admission of guilt. The specific line of questioning subject of ground five is as follows:
DEFENSE COUNSEL: Now, the officer - now you heard the officer testify that when he patted you down you had a small pocket knife on you.
DEFENDANT: That is what I understand him to say.
DEFENSE COUNSEL: The pocket knife was 2-inches small?
DEFENDANT: Yes, sir.
DEFENSE COUNSEL: Was it a hunting knife?
DEFENDANT: No, sir. Not by no means.
The Court first finds Defendant waived his privilege against self-incrimination as to matters reasonably related to the subject matter of his direct testimony when he cho[]se to take the stand and testify at trial. See State v. Hickson, 630 So. 2d 172, 176 (Fla. 1993); see also Jenkins v. Wessel, 780 So. 2d 1006, 1008 (Fla. 4th DCA 2001).
The Court further finds, as stated in ground one, Defendant cannot demonstrate prejudice. The victim testified the knife Defendant used in the carjacking was a "camping knife" and "one used for cutting rope." Thus, even if Defendant's testimony concerning a "two-inches small pocketknife" was excluded from trial, the Court finds the outcome of the trial would not have been different given the victim's testimony concerning the "camping knife" Defendant used in the carjacking.
Additionally, at the evidentiary hearing, Defendant's prior counsel Marcia
...
