Upshaw v. Jones
| Decision Date | 18 October 2016 |
| Docket Number | Case No. 4:14cv155-WS/CAS |
| Parties | JOHNNY JAMES UPSHAW, Petitioner, v. JULIE L. JONES, Secretary, Department of Corrections, Respondent. |
| Court | U.S. District Court — Northern District of Florida |
JOHNNY JAMES UPSHAW, Petitioner,
v.
JULIE L. JONES, Secretary,
Department of Corrections, Respondent.
Case No. 4:14cv155-WS/CAS
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION
October 18, 2016
REPORT AND RECOMMENDATION TO DENY § 2254 PETITION
On March 19, 2014, Petitioner Johnny James Upshaw, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. This Court directed Respondent to file a response. ECF No. 7. On January 8, 2015, Petitioner filed a motion to amend the petition to set forth additional facts. ECF No. 12. On January 13, 2015, the Court vacated the previous order directing the Respondent to file an answer and granted the Petitioner's motion for leave to amend the petition. ECF No. 13. Petitioner was directed to file an amended § 2254 petition on the form required by Rule 2(c), R. Gov. § 2254 Cases in U.S. Dist. Cts., and to set forth grounds and supporting facts. ECF No. 13 at 2. The order
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further directed the substitution of Julie L. Jones, Secretary of the Florida Department of Corrections, as Respondent. ECF No. 13 at 3.1
Upshaw's amended § 2254 petition was filed on March 4, 2015, ECF No. 16, challenging his convictions and thirty-year concurrent habitual felony offender sentences entered by the Circuit Court for the Third Judicial Circuit, Taylor County, Florida, on October 6, 2008 for: Count (1) trafficking in cocaine weighing 28 grams or more but less than 200 grams; and Count (2) conspiracy to commit the offense of trafficking in cocaine weighing 28 grams or more but less than 200 grams. Ex. L.2 On July 1, 2015, Respondent filed an answer with exhibits, ECF No. 19, and Petitioner filed a reply with memorandum of law on August 28, 2015. ECF No. 25.
The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all the issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this case. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons set forth herein, the
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pleadings and attachments before the Court show that Petitioner is not entitled to federal habeas relief and this § 2254 petition should be denied.
By amended information filed September 9, 2008, Petitioner was charged in case number 2007-325-CF-(A) with two counts in connection with events that took place on October 9, 2007, in Taylor County, Florida. Ex. A. Count (1) charged trafficking in cocaine weighing 28 grams or more but less than 200 grams in violation of section 893.135, Florida Statutes; and Count (2) charged conspiracy to commit trafficking in cocaine weighing 28 grams or more but less than 200 grams in violation of sections 777.04(3) and 893.135, Florida Statutes. Ex. A. Petitioner was also charged by separate amended information filed on September 9, 2008, with one count of possession of a firearm by a felon in violation of section 790.23, Florida Statutes, for which a nolle prosequi was later entered. Ex. A, J.
Petitioner filed a motion to suppress evidence obtained in a search executed pursuant to a warrant. Ex. D. An evidentiary hearing was held on that motion on August 21, 2008, Ex. E, after which the trial court entered an order denying the motion. Ex. G. Jury trial was held September 9-10, 2008, Ex. H, at which Petitioner did not testify. Ex. H. at 297. The jury
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found Petitioner guilty as charged in Counts (1) and (2). Ex. H at 356; Ex. I.
Judgment and sentence were entered October 6, 2008, and Petitioner was sentenced to two concurrent thirty-year prison terms as a habitual felony offender pursuant to section 775.084(4)(a), Florida Statutes. Ex. L at 3, 5. Petitioner received 362 days credit for time served. Ex. L at 4, 6. Petitioner appealed to the First District Court of Appeal raising one claim—that the trial court erred in denying the motion to suppress. Ex. N. The First District Court of Appealed affirmed per curiam without a written opinion on September 7, 2010, and the mandate was issued September 23, 2010. Ex. P, Q; see Upshaw v. State, 43 So. 3d 699 (Fla. 1st DCA 2010).
On December 1, 2011, Petitioner filed a pro se motion for post-conviction relief in the state trial court under Florida Rule of Criminal Procedure 3.850, raising six claims of ineffective assistance of counsel and one claim of cumulative error. Ex. R. An amended 3.850 motion was filed April 25, 2012, amending Petitioner's claim 3 concerning trial counsel's performance in investigating witnesses and preparing for trial. Ex. T. The state trial court granted an evidentiary hearing on claim four, which alleged that counsel was ineffective in affirmatively misadvising Petitioner
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concerning his right and his decision to testify and confront witnesses. Ex. U. After the state court ruled that he would not be appointed counsel for the evidentiary hearing, Ex. U, Petitioner represented himself at the hearing held June 6, 2013. Ex. V.
The state court denied post-conviction relief in an order entered July 5, 2013. Ex. W. In that order, pertinent to the issues raised in Upshaw's § 2254 petition in this Court, the state court ruled that trial counsel was not deficient in his advice to Petitioner concerning the risks of testifying. Ex. W at 5-8. The court also ruled that trial counsel was not ineffective in failing to strike or challenge Juror N as biased because of his views on illegal drugs. Ex. W at 8-10.
Petitioner, pro se, appealed the denial of post-conviction relief to the Florida First District Court of Appeal, raising three points of error: (1) failure to appoint post-conviction counsel; (2) failure to find trial counsel misadvised Petitioner concerning the risks of testifying; and (3) failure to find ineffective assistance of counsel concerning Juror N. Ex. X. The appellate court affirmed per curiam without written opinion on January 23, 2014. Ex. Z. After rehearing was denied, Ex. BB, the mandate was issued on March 31, 2014. Ex. CC; see Upshaw v. State, 133 So. 3d 934 (Fla. 1st DCA 2014).
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As indicated above, Upshaw filed a petition and amended petition for writ of habeas corpus in this Court pursuant to 29 U.S.C. § 2254 raising three grounds for relief:
(1) The State secured its conviction through violation of the U.S. Constitution's Fourth Amendment by failing to suppress the evidence seized in violation of the knock and announce requirements when executing a search warrant. ECF 16 at 4.
(2) Trial counsel was ineffective by providing misadvice as to the ramifications of Petitioner testifying in his own behalf, in violation of the U.S. Constitution's Sixth Amendment. ECF 16 at 6.
(3) Trial counsel was ineffective for allowing a biased juror to sit on Petitioner's jury trial, in violation of the U.S. Constitution's Sixth Amendment. ECF 16 at 7.
Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for persons in state custody. Section 2254(d) provides in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 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
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(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). See, e.g., Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 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.'" Cullen, 563 U.S. at 181 (quoting Harrington v. Richter, 162 U.S. 86, 102 (2011), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). This Court's review "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen, 131 S.Ct. at 1388.
For claims of ineffective assistance of counsel, the United States Supreme Court has adopted a two-part test:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient performance, a "defendant must show that counsel's performance fell below an objective standard of reasonableness." Id. at 688. To demonstrate prejudice, a defendant "must show that there is a reasonable
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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. For this Court's purposes, "[t]he question 'is not whether a federal court believes the state court's determination' under the Strickland standard 'was incorrect but whether that determination was unreasonable—a substantially higher threshold.' " Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). "And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably...
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