a "UNITED STATES DISTRICT COURT oo □□ _ SOUTHERN DISTRICT OF FLORIDA □□ □ CASE 24-80250-CV-MIDDLEBROOKS
DAMION ANTHONY DELAPENA,
Petitioner, . . □ :
DEPARTMENT OF CORRECTIONS, STATE OF FLORIDA, Respondent. □□ me
“ORDER ADOPTING REPORT AND RECOMMENDATION ‘THIS CAUSE is before the Court upon Petitioner’s Petition under 28 U.S.C. § 2254 for □ “Writ of Habeas Corpus: by a Person in State Court Custody (“Petition”), filed March's, 2024. □□□□ 2 1). The Motions were referred to. Magistrate Judge William Matthewman. (DE 3). Respondent, the
Florida Department of Corrections, has filed an Amended Response’ to the Petition (DE 11), an ‘Appendix (DE), and transaripts (DE 8; 9; 10). Petitioner has opted tot to filea reply.OnFebruary 3, 2025; Judge Matthewman entered a Report and Recommendation (“Report”), recommending that the Petition be denied, and finding:no evidentiary hearing to be-requited. (DE 12). Petitioner □□ filed his objections on: February 12, 2025. (DE 13). No response to the objections has yet been □ filed, but I am prepared to rule without need ofaresponse. □ □□ “Thave reviewed the Report, the record, Petitioner’ objections, and the relevant caselaw. □ =
My review de novo. Pursuant to 28 U.S.C..§ 2254(d), an individual in state custody may seek .
federal habeas compus relief if his continued incarceration violated the United. States. Constitution: □ . or federal law. To-obtain such relief, a petitioner must demonstrate that the state.court’s ruling: 1)
resulted in a decision that was contiiry to. clearly established Federal law, as determined by the □
Supreme Court of the United States; or2) resulted in a decision that was based on an-inreasonable □ determination of the facts in light ofthe evidence presented in the State court nroceeding. 28USC. 2254(€)(1)-(2)s. see also Williams v Taylor, 529 US. 362, 405-06 (2000); Fuga v, Head, 261 □□ 1206, 1 215-16 ( 1th Cir. 2001). The standard under § 2254(d) is a demanding one, for which petitioner carries the burden of proof” Bobby v. Dixon, 565.U'S. 23,24 (2011) (quoting “Harrington ve Richter, 562 US. 86, 102-03 (2011), Cullen-».. Pinholster, 563 US. 170, □□□□ ~ -Q011). State colt decisions imist Be given a sirong presumption of deference, even when the state’ -court adiudicates petitioner's claim summarily. See Richter, . 560. US. at 96-100; Gill □□ □□ “Mecusker, 633 1272; 1288 (11th Cir. 2011): a De With these principles in mind, Teoncur fully with Judge Mattheivman’s findings as laid out “in the Report. PetitiGner cites three grounds for relief, all-predicated on claims of ineffective □ assistance of counsel. None justify relief under § 2254(d). Under §.2254(A), my review is limited as to“any claim that sis adjudicated on the metits in State court proceedings{ BUSC.§ 2054(d). 2 “Here, the Fourth District Court of Appeal ‘summarily affirmed ‘the ‘state couit’s: dismissal’ of □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ vounse clans, deo must “Jooke through’ the unexplained: □ decision to the last related staté-court decision that does provide'a relevant rationale.” Wilson □□ □□ “Sellers, 138°S. Ct 1188; 1192 2018). As Petitioner contends that the state court erred. in its □ □ application of federal law conceming ineffective assistance of counsel, I tum tothe three □□□□□□□□ upod- which sith clainis were made.” oo, : ws ae : In evaluating clans of ineffective ‘assistincé of. counsel, courts apply a two-ptong test. : “Under the sperformiance” prong, the defendant must show that counsel’s performance ‘fell below
an objective standard of reasonablenées.”” King v United States, 250 F. App’x. 930, 932 (11th Cir. 2007): (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)) “Under the ‘prejudice’ prong, defendant must show that counsel’s deficient performance actually prejudiced the defendant that; “but for the attomey’s error, the outcome of the proceeding would have been different.’” Id (quoting Strickland, 466 US. at 694). The: petitioner must prove both prongs by a □□□ preponderance of the evidence, and establish that particular acts or omissions of counsel “were □ outside the wide range of professionally competent assistance.” Chandler v. United States; 218 . 1305, 1313, 1314 (1 Ith Cir 2000) (quoting Burger v. Kemp, 483 U.S. 776, 794 1987): see
also Strickland, 466US. at 686. Ordinarily, “[jjudicial scrutiny of counsel’ s performance mustbe hi ghly deferential,” Strickland, 466 USS. at.689, and “FcJourts must indulge the strong presumption □□
‘that counsel’s performance was reasonable and that counsel made all significant decisions in the □ : exercise of reasonable professional judgment.” Chandler, 218 F.3d at 1314 (ith Cir. 2000). First, Petitioner claims counsel was ineffective because. counsel failed to file a motion to.” □ suppress the physical evidence recovered. from his house, Judge Matthewman found that this ground should be denied, as when a petitionar “faults his lawyer for failing to pursue a motion to suppress priot to entering a plea, both the deficient performance ind prejudice prongs of Strickland: □ on the viability: of the motion to suppress.” Arvelo y. Sec’y Fla. Dep ‘t of Corr, 188 F.3d 1345. 1348 (11th Cir. 2015)). On. the record supplied, Judge: Matthewman determined that □□□□ Fourth Amendment violation oceurred, as. the search warrant justifying the search of Petitioner’s house was proper and the supporting affidavit supplied probable cause. Petitioner objects on the □ □
grounds that Judge Matthewman failed to account for the affidavit (1) failing to contain □□ assertion that Petitioner matched the description of robbery suspects and: (2): failing to establish □
that. Petitioner’s vehicle was used- by Petitioner during the ‘period -where robberies occurred. (DE at 2). I find this objection unavailing. “Searches pursuant fo a ‘warrant will rarely require any □ □ deep inquiry into reasonableness.” State y. Sabourin, 39-So. 3d 376, 384 Fla. Ist DCA 2010) (citing United States v. Leon, 468-U.S. $91, 999 (1984). Suppression of evidence is.a proper remedy for.an invalid warrant only where the affidavit lacks any. indicia of probable cause. Id. For □
the reasons articulated by Judge Matthewman and the state court, the affidavit contained sufficient □ detail to supply probable cause to justify the seaich warrant, and thus Petitioner's counsel did not act unreasonably by failing to challenge it. (DE 12.at 117). □ □□ Be Second, Petitioner claims counsel was ineffective for advising him that there were grounds □□ “fora downward departure should he enter an open plea. To prevail, Petitioner must demonstrate. that he would not have pleaded guilty and would: have gone. to trial but for his counsel’ advice.
All Lockhart, 474 U.S. 52,.56-59 (l 985). Here: it is undisputed that Petitioner “had the idea of entering an open plea” prior to. counsel’s mentioning of a downward departure. (DE 13 at.2). “Although Pétitioner objects-and. argues that this. advice occurred “prior to-him actually entering □□□□ ‘open plea,” the record does not. establish a reasonable probability. that Petitioner would have insisted on going: to. trial ‘absent. such. advice. AS Judge “Matthewman property found, the
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a "UNITED STATES DISTRICT COURT oo □□ _ SOUTHERN DISTRICT OF FLORIDA □□ □ CASE 24-80250-CV-MIDDLEBROOKS
DAMION ANTHONY DELAPENA,
Petitioner, . . □ :
DEPARTMENT OF CORRECTIONS, STATE OF FLORIDA, Respondent. □□ me
“ORDER ADOPTING REPORT AND RECOMMENDATION ‘THIS CAUSE is before the Court upon Petitioner’s Petition under 28 U.S.C. § 2254 for □ “Writ of Habeas Corpus: by a Person in State Court Custody (“Petition”), filed March's, 2024. □□□□ 2 1). The Motions were referred to. Magistrate Judge William Matthewman. (DE 3). Respondent, the
Florida Department of Corrections, has filed an Amended Response’ to the Petition (DE 11), an ‘Appendix (DE), and transaripts (DE 8; 9; 10). Petitioner has opted tot to filea reply.OnFebruary 3, 2025; Judge Matthewman entered a Report and Recommendation (“Report”), recommending that the Petition be denied, and finding:no evidentiary hearing to be-requited. (DE 12). Petitioner □□ filed his objections on: February 12, 2025. (DE 13). No response to the objections has yet been □ filed, but I am prepared to rule without need ofaresponse. □ □□ “Thave reviewed the Report, the record, Petitioner’ objections, and the relevant caselaw. □ =
My review de novo. Pursuant to 28 U.S.C..§ 2254(d), an individual in state custody may seek .
federal habeas compus relief if his continued incarceration violated the United. States. Constitution: □ . or federal law. To-obtain such relief, a petitioner must demonstrate that the state.court’s ruling: 1)
resulted in a decision that was contiiry to. clearly established Federal law, as determined by the □
Supreme Court of the United States; or2) resulted in a decision that was based on an-inreasonable □ determination of the facts in light ofthe evidence presented in the State court nroceeding. 28USC. 2254(€)(1)-(2)s. see also Williams v Taylor, 529 US. 362, 405-06 (2000); Fuga v, Head, 261 □□ 1206, 1 215-16 ( 1th Cir. 2001). The standard under § 2254(d) is a demanding one, for which petitioner carries the burden of proof” Bobby v. Dixon, 565.U'S. 23,24 (2011) (quoting “Harrington ve Richter, 562 US. 86, 102-03 (2011), Cullen-».. Pinholster, 563 US. 170, □□□□ ~ -Q011). State colt decisions imist Be given a sirong presumption of deference, even when the state’ -court adiudicates petitioner's claim summarily. See Richter, . 560. US. at 96-100; Gill □□ □□ “Mecusker, 633 1272; 1288 (11th Cir. 2011): a De With these principles in mind, Teoncur fully with Judge Mattheivman’s findings as laid out “in the Report. PetitiGner cites three grounds for relief, all-predicated on claims of ineffective □ assistance of counsel. None justify relief under § 2254(d). Under §.2254(A), my review is limited as to“any claim that sis adjudicated on the metits in State court proceedings{ BUSC.§ 2054(d). 2 “Here, the Fourth District Court of Appeal ‘summarily affirmed ‘the ‘state couit’s: dismissal’ of □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ vounse clans, deo must “Jooke through’ the unexplained: □ decision to the last related staté-court decision that does provide'a relevant rationale.” Wilson □□ □□ “Sellers, 138°S. Ct 1188; 1192 2018). As Petitioner contends that the state court erred. in its □ □ application of federal law conceming ineffective assistance of counsel, I tum tothe three □□□□□□□□ upod- which sith clainis were made.” oo, : ws ae : In evaluating clans of ineffective ‘assistincé of. counsel, courts apply a two-ptong test. : “Under the sperformiance” prong, the defendant must show that counsel’s performance ‘fell below
an objective standard of reasonablenées.”” King v United States, 250 F. App’x. 930, 932 (11th Cir. 2007): (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)) “Under the ‘prejudice’ prong, defendant must show that counsel’s deficient performance actually prejudiced the defendant that; “but for the attomey’s error, the outcome of the proceeding would have been different.’” Id (quoting Strickland, 466 US. at 694). The: petitioner must prove both prongs by a □□□ preponderance of the evidence, and establish that particular acts or omissions of counsel “were □ outside the wide range of professionally competent assistance.” Chandler v. United States; 218 . 1305, 1313, 1314 (1 Ith Cir 2000) (quoting Burger v. Kemp, 483 U.S. 776, 794 1987): see
also Strickland, 466US. at 686. Ordinarily, “[jjudicial scrutiny of counsel’ s performance mustbe hi ghly deferential,” Strickland, 466 USS. at.689, and “FcJourts must indulge the strong presumption □□
‘that counsel’s performance was reasonable and that counsel made all significant decisions in the □ : exercise of reasonable professional judgment.” Chandler, 218 F.3d at 1314 (ith Cir. 2000). First, Petitioner claims counsel was ineffective because. counsel failed to file a motion to.” □ suppress the physical evidence recovered. from his house, Judge Matthewman found that this ground should be denied, as when a petitionar “faults his lawyer for failing to pursue a motion to suppress priot to entering a plea, both the deficient performance ind prejudice prongs of Strickland: □ on the viability: of the motion to suppress.” Arvelo y. Sec’y Fla. Dep ‘t of Corr, 188 F.3d 1345. 1348 (11th Cir. 2015)). On. the record supplied, Judge: Matthewman determined that □□□□ Fourth Amendment violation oceurred, as. the search warrant justifying the search of Petitioner’s house was proper and the supporting affidavit supplied probable cause. Petitioner objects on the □ □
grounds that Judge Matthewman failed to account for the affidavit (1) failing to contain □□ assertion that Petitioner matched the description of robbery suspects and: (2): failing to establish □
that. Petitioner’s vehicle was used- by Petitioner during the ‘period -where robberies occurred. (DE at 2). I find this objection unavailing. “Searches pursuant fo a ‘warrant will rarely require any □ □ deep inquiry into reasonableness.” State y. Sabourin, 39-So. 3d 376, 384 Fla. Ist DCA 2010) (citing United States v. Leon, 468-U.S. $91, 999 (1984). Suppression of evidence is.a proper remedy for.an invalid warrant only where the affidavit lacks any. indicia of probable cause. Id. For □
the reasons articulated by Judge Matthewman and the state court, the affidavit contained sufficient □ detail to supply probable cause to justify the seaich warrant, and thus Petitioner's counsel did not act unreasonably by failing to challenge it. (DE 12.at 117). □ □□ Be Second, Petitioner claims counsel was ineffective for advising him that there were grounds □□ “fora downward departure should he enter an open plea. To prevail, Petitioner must demonstrate. that he would not have pleaded guilty and would: have gone. to trial but for his counsel’ advice.
All Lockhart, 474 U.S. 52,.56-59 (l 985). Here: it is undisputed that Petitioner “had the idea of entering an open plea” prior to. counsel’s mentioning of a downward departure. (DE 13 at.2). “Although Pétitioner objects-and. argues that this. advice occurred “prior to-him actually entering □□□□ ‘open plea,” the record does not. establish a reasonable probability. that Petitioner would have insisted on going: to. trial ‘absent. such. advice. AS Judge “Matthewman property found, the
posteonviction court properly summarized and analyzed Mr: Mair’s testimony, contrary to what . Petitioner argues in his papers,” and “did not involve an unreasonable application of clearly. established federal law, nor was it based on an unreasonable determination of the facts.” (DE 12 at. 21). Judge Maithewman’ thetefore’ correctly’ determined Petitioner’ s : second ground for □ ineffective counsel to be unsupported. □□ □□
Finally, Petitioner claims counsel was ineffective in advising him that cell phone records □ obtained during discovery were not beneficial to his defense. Judge Matthewman determined that the postconviction-court did not err in rejecting Petitioner’s claim, as Petitioner cannot show that “he would not have entered the open plea had he realized the phone records were beneficial to his defense.” (DE 12 at 23). Petitioner objects, and claims he was “prejudiced by defense counsel’s deficient performance,” and testified that “he would not have entered the open plea had he realized. the phone records were beneficial to his defense.” (DE 13 at 3). “[W]hen a defendant makes statements under oath at a plea colloquy, he bears a heavy burden to show his statements were false.” United States v. Rogers, 848 F.2d 166, 168.(11th Cir. 1988). During the change of plea, Petitioner averred that “he was satisfied with his counsel’s services, that Petitioner knowingly, intelligently and. voluntarily entered the guilty plea, and that Petitioner entered into the plea agreement of his own free will.” (DE 12 at 23). Petitioner’s sole. testimony..on postconviction posture, without more, cannot unseat his prior colloquy, and thus his objection is unpersuasive. CONCLUSION
For the foregoing, reasons, itis ORDERED AND ADJUDGED that 1. The Report and Recommendation (DE 12) is ADOPTED. 2.. Petitioner’s Objections to the Report (DE 13) are OVERRULED.. 3. Petitioner’s Petition (DE 1)isDENIED. 4. Final Judgment will be issued by separate Order. SIGNED in West Palm Beach, Florida, this day of Febpugi “20 4 Yj Donald M. Middlebrooks : United States District Judge . ;