BROOKS

v.

SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS (DUVAL COUNTY)

I. Status

Petitioner Clifton Brooks, an inmate of the Florida penal system, initiated this action on June 18, 2019, by filing a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1).1 In the Petition, Brooks challenges a 2013 state court (Duval County, Florida) judgment of conviction for sexual battery and lewd or lascivious molestation. He raises six grounds for relief. See Petition at 7-25. Respondents submitted a memorandum in opposition to the Petition. See Response (Doc. 7). They also submitted exhibits. See Docs. 7-1 through 7-33. Brooks filed a brief in reply, see Reply (Doc. 8), and

II. Relevant Procedural History

On July 30, 2012, the State of Florida charged Brooks with sexual battery (count one), lewd or lascivious molestation (count two), and lewd or lascivious exhibition (count three). Doc. 7-15 at 28. On February⁸, 2013, the

State filed an amended information changing the date of the offenses alleged in counts one and three. Id. at 128. On February 13, 2013, at the conclusion of a trial, the jury found Brooks guilty of counts one and two. Id. at 139-40. The trial court granted a judgment of acquittal as to count three. Id. at 141. On

February 27, 2013, the trial court adjudicated Brooks to be a sexual predator and sentenced him to concurrent terms of life imprisonment for counts one and two. Doc. 7-16 at 19-24. On direct appeal, Brooks, with the benefit of counsel, filed an initial brief and an amended brief, arguing the trial court erred by failing to conduct a sufficient Faretta² inquiry (ground one), failing to order a competency evaluation (ground two), admitting collateral acts of a sexual nature (ground three), and failing to conduct a Faretta inquiry before imposing the sentences

The First DCA reversed and remanded Brooks’s convictions and sentences on December⁴, 2015. Doc. 7-28 at 2-6. The First DCA remanded for the trial court to determine Brooks’s competency at the time of his trial. Id. at 4. If the trial court could not make a nunc pro tunc competency determination,

the First DCA ordered the court to hold a new trial. Id. at 4-5. The First DCA also remanded for the trial court to conduct a new sentencing hearing because the court had not renewed the offer of counsel before sentencing. Id. The First DCA issued the mandate on December 30, 2015. Doc. 7-29 at 3. On remand,

the trial court, nunc pro tunc, determined Brooks to be competent. Docs. 7-4 at 3; 7-13 at 19. Brooks was adjudicated to be a sexual predator and sentenced to concurrent terms of life imprisonment on counts one and two. Doc. 7-5 at 3-9. On April 15, 2016, Brooks filed a pro se motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Doc. 7-10 at 2-73. In his Rule 3.850 Motion, Brooks alleged the State filed a deficient information (ground one), the trial court erred when it denied Brooks’s right to a speedy trial upon demand (ground two), counsel was ineffective for failing to adopt Brooks’s demand for a speedy trial (ground three), the trial court erred when it failed to grant Brooks’s motion to dismiss the information (ground four), counsel was ineffective for providing the State with evidence of Brooks’s alibi (ground five),

and the State knowingly used false evidence as a basis for the charges in the information (ground six). Id. at 7-8, 14-28. On December 19, 2017, the postconviction court summarily denied relief on all grounds. Doc. 7-11 at 2-10. The First DCA per curiam affirmed the denial of relief without a written opinion on April 17, 2019, Doc. 7-32 at 2, and issued the mandate on May 15, 2019, Doc. 7-33 at 2.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F. 3d 1057, 1060 (11th Cir. 2011). “In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834 F. 3d 1299, 1318-19 (11th Cir. 2016). “It follows that if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474. The pertinent facts of this case are fully developed in the record before the Court. Because the Court can “adequately assess [Brooks’s] claim[s] without further factual development,” Turner v. Crosby, 339 F. 3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a state prisoner’s federal petition for habeas corpus. See Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F. 3d 600, 642 (11th Cir. 2016). “‘The purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011) (quotation marks omitted)). As such, federal habeas review of final state court decisions is “‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting Hill v. Humphrey, 662 F. 3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)). The first task of the federal habeas court is to identify the last state court decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec’y,

Fla. Dep’t of Corr., 828 F. 3d 1277, 1285 (11th Cir. 2016). The state court need not issue a written opinion explaining its rationale in order for the state court’s decision to qualify as an adjudication on the merits. See Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is unaccompanied by an explanation, the United States Supreme Court has instructed: [T]he 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). The presumption may be rebutted by showing that the higher state court’s adjudication most likely relied on different grounds than the lower state court’s reasoned decision, such as persuasive alternative grounds that were briefed or argued to the higher court or obvious in the record it reviewed. Id. at 1192, 1196. If the claim was “adjudicated on the merits” in state court, § 2254(d) bars relitigation of the claim unless the state court’s decision (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); Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited scope of federal review pursuant to § 2254 as follows: First, § 2254(d)(1) provides for federal review for claims of state courts’ erroneous legal conclusions. As explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000), § 2254(d)(1) consists of two distinct clauses: a “contrary to” clause and an “unreasonable application” clause. The “contrary to” clause allows for relief only “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523 (plurality opinion). The “unreasonable application” clause allows for relief only “if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for claims of state courts’ erroneous factual determinations. Section 2254(d)(2) allows federal courts to grant relief only if the state court’s denial of the petitioner’s claim “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)(2). The Supreme Court has not yet defined § 2254(d)(2)’s “precise relationship” to § 2254(e)(1), which imposes a burden on the petitioner to rebut the state court’s factual findings “by clear and convincing evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S. Ct.¹⁰, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v. Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192 L.Ed.2d 356 (2015). Whatever that “precise relationship” may be, “‘a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.’” Titlow, 571 U.S. at ---, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)). Tharpe v. Warden, 834 F. 3d 1323, 1337 (11th Cir. 2016); see Teasley v. Warden, Macon State Prison, 978 F. 3d 1349, 1356 n.1 (11th Cir. 2020). Also, deferential review under § 2254(d) generally is limited to the record that was before the state court that adjudicated the claim on the merits. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”). Thus, “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct.¹⁰, 16 (2013). “Federal courts may grant habeas relief only when a state court blundered in a manner so ‘well understood and comprehended in

562 U.S. at 102-03). This standard is “meant to be” a “difficult” one to meet. Richter, 562 U.S. at 102. A district court’s obligation is “to train its attention” on the legal and factual basis for the state court’s ruling, not to “flyspeck the state court order or grade it.” Meders v. Warden, Ga. Diagnostic Prison, 911

F. 3d 1335, 1349 (11th Cir. 2019) (citing Wilson, 138 S. Ct. at 1191-92). Thus, to the extent that a petitioner’s claims were adjudicated on the merits in the state courts, they must be evaluated under 28 U.S.C. § 2254(d).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a § 2254 habeas action in federal court, a petitioner must exhaust all state court remedies that are available for challenging his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]” every issue raised in his federal petition to the state’s highest court, either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In addressing exhaustion, the United States Supreme Court explained: Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the “‘“opportunity to pass upon and correct” alleged violations of its prisoners’ federal rights.’” Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To provide the State with the necessary “opportunity,” the prisoner must “fairly present” his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim. Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004). A state prisoner’s failure to properly exhaust available state remedies results in a procedural default which raises a potential bar to federal habeas review. The United States Supreme Court has explained the doctrine of procedural default as follows: Federal habeas courts reviewing the constitutionality of a state prisoner’s conviction and sentence are guided by rules designed to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism. These rules include the doctrine of procedural default, under which a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule. See, e.g., Coleman, supra, at 747– 748, 111 S. Ct. 2546; Sykes, supra, at 84–85, 97 S. Ct. 2497. A state court’s invocation of a procedural rule to deny a prisoner’s claims precludes federal review of the claims if, among other requisites, the state procedural rule is a nonfederal ground adequate to support the judgment and the rule is firmly established and consistently followed. See, e.g., Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127– 1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417 (2009). The doctrine barring procedurally defaulted claims from being heard is not without exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law. See Coleman, 501 U.S., at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may be excused under certain circumstances. Notwithstanding that a claim has been procedurally defaulted, a federal court may still consider the claim if a state habeas petitioner can show either (1) cause for and actual prejudice from the default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F. 3d 1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,

Wright v. Hopper, 169 F. 3d 695, 706 (11th Cir. 1999). In the absence of a showing of cause and prejudice, a petitioner may receive consideration on the merits of a procedurally defaulted claim if the petitioner can establish that a fundamental miscarriage of justice, the continued incarceration of one who is actually innocent, otherwise would result. The Eleventh Circuit has explained: [I]f a petitioner cannot show cause and prejudice, there remains yet another avenue for him to receive consideration on the merits of his procedurally defaulted claim. “[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This exception is exceedingly narrow in scope,” however, and requires proof of actual innocence, not just legal

Ward, 592 F. 3d at 1157. “To meet this standard, a petitioner must ‘show that it is more likely than not that no reasonable juror would have convicted him’ of the underlying offense.” Johnson v. Alabama, 256 F. 3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be credible,’ a claim of actual innocence must be based on reliable evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases, allegations of actual innocence are ultimately summarily rejected. Schlup, 513 U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective assistance of counsel. That right is denied when a defense attorney’s performance falls below an objective standard of reasonableness and thereby prejudices the defense.” Yarborough v. Gentry, 540 U.S.¹, 5 (2003) (per curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish deficient performance, a person challenging a conviction must show that “counsel’s representation fell below an objective standard of reasonableness.” [Strickland,] 466 U.S. at 688, 104 S. Ct. 2052. A court considering a claim of ineffective assistance must apply a “strong presumption” that counsel’s representation was within the “wide range” of reasonable professional assistance. Id., at 689, 104 S. Ct. 2052. The challenger’s burden is to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., at 694, 104 S. Ct. 2052. It is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id., at 687, 104 S. Ct. 2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of any iron-clad rule requiring a court to tackle one prong of the Strickland test before the other.” Ward, 592 F. 3d at 1163. Since both prongs of the two-part Strickland test must be satisfied to show a Sixth Amendment violation, “a court need not address the performance prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F. 3d 1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at 697.

A state court’s adjudication of an ineffectiveness claim is accorded great deference. “[T]he standard for judging counsel’s representation is a most deferential one.” Richter, 562 U.S. at ---, 131 S. Ct. at 788. But “[e]stablishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” Id. (citations and quotation marks omitted). “The 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, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009) (quotation marks omitted). If there is “any reasonable argument that counsel satisfied Strickland’s deferential standard,” then a federal court may not disturb a state-court decision denying the claim. Richter, 562 U.S. at ---, 131 S. Ct. at 788.

Hittson v. GDCP Warden, 759 F. 3d 1210, 1248 (11th Cir. 2014); Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the deference to counsel’s performance mandated by Strickland, the AEDPA adds another layer of deference — this one to a state court’s decision — when we are considering whether to grant federal habeas relief from a state court’s decision.” Rutherford v. Crosby, 385 F. 3d 1300, 1309 (11th Cir. 2004). As such, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

Brooks alleges the trial court did not have “subject matter jurisdiction” to convict and sentence him because the State filed a defective information. Petition at 7. Pursuant to Florida Rule of Criminal Procedure 3.140(g), “[a]n information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney. . . .” Brooks claims Assistant

State Attorney Alan Mizrahi did not have the authority to sign the information on behalf of State Attorney Angela Corey. Id. at 7-8. According to Brooks, a State Attorney may not contract with an Assistant State Attorney for a period of employment exceeding three years as set forth in Florida Attorney General

Opinion 079-69. Id. at 8; Reply at 5. Mizrahi renewed his contract with Corey on January⁸, 2009; however, Mizrahi allegedly did not renew his contract after the expiration of three years. Petition at 8. Brooks contends Mizrahi then did not have the authority to sign the initial information on July 27, 2012, as a designated assistant state attorney, and the information did not invoke the trial court’s jurisdiction. Id. at 8-9.

Respondents argue that Brooks’s claim is not cognizable in a federal petition for writ of habeas corpus because it concerns solely state law. Response at 20. In his Supplemental Reply, Brooks asserts the defective information violated his due process rights, and he may raise the claim that the trial court lacked subject matter jurisdiction at any time. Supplemental Reply at 2-5. Brooks raised a similar claim in state court as ground one of his Rule 3.850 Motion. Doc. 7-10 at 7, 14-16. In denying relief, the circuit court explained:

In Ground one of his Motion, Defendant claims that the information filed in his case is invalid because the Assistant State Attorney Alan Mizrahi did not renew his contract with the State Attorney Angela Corey in a timely manner. Defendant argues that an Assistant State Attorney must renew their contract every three years and, if they don’t, any information they file prior to renewal is invalid and fails to invoke the Court’s jurisdiction. In support of his claim, Defendant cites State of Florida Attorney General Opinion 079-69. Defendant’s claim is meritless because he has completely misinterpreted the Attorney General Opinion he cites. Attorney General Opinion 079-69 addresses an inquiry about whether a State Attorney can legally contract with an Assistant State Attorney for a definite period longer than three years. 1979 Op. Att’y Gen. Fla. 169 (1979). The opinion answers this inquiry in the negative and it appears Defendant has interpreted this to mean that Assistant State Attorney must renew a contract every three years in order to continue performing their duties. Id. Defendant’s interpretation, however, is incorrect. The opinion clarifies that Assistant State Attorneys serve at the will of the State Attorney and cannot enter into employment contracts that bind the State Attorney to retain Assistant State Attorney’s for a defined period of time. Id. Thus, Defendant’s claim is without merit. Accordingly, Defendant’s claim in Ground One is denied.

Doc. 7-11 at 4-5. The First DCA per curiam affirmed the denial of relief without a written opinion. Doc. 7-32 at 2. To the extent that the First DCA denied this claim on the merits,⁷ the

S. Ct. at 1194.

Even assuming the appellate court’s adjudication of the claim is not entitled to deference, Brooks’s claim is without merit. Insofar as Brooks argues the information did not conform with Florida Rule of Criminal Procedure 3.140(g) based on the Assistant State Attorney’s expired contract, his claim presents a state law issue that is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”). Rather, the Court mut determine on federal habeas review whether Brooks’s custody violates the United States Constitution or the laws or treaties of the United States. See 28 U.S.C. § 2254(a); Coleman v. Thompson, 501 U.S. 722, 730 (1991). Brooks does not present such a claim in his Petition. A defective information claim is cognizable on federal habeas review only when the charging document is so deficient that it deprives the convicting court of jurisdiction. DeBenedictis v. Wainwright, 674 F. 2d 841, 842 (11th Cir. 1982). A charging document is legally sufficient “if it: (1) presents the essential elements of the charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense.” United States v. Jordan, 582 F. 3d 1239, 1245 (11th Cir. 2009) (citation and quotations omitted). Here, the information met the minimum requirements for invoking the jurisdiction of the trial court. The information included Brooks’s name and described the times and locations of the offenses. Doc. 7-15 at 28. It stated the statutory basis for each count and set forth the elements of sexual battery, lewd or lascivious molestation, and lewd or lascivious exhibition. Id. The trial court also had subject matter jurisdiction because the information charged Brooks with sexual battery, lewd or lascivious molestation, and lewd or lascivious exhibition in violation of Florida Statutes sections 794.011(2)(a), 800.04(5)(b), and 800.04(7)(c). Id. The information was not so defective that it deprived the trial court of jurisdiction. See DeBenedictis 674 F. 2d at 842. Accordingly, Brooks is not entitled to federal habeas relief on ground one.

B. Grounds Two and Three

In ground two, Brooks claims the trial court denied his right to a speedy trial upon demand. Petition at 11. Brooks alleges he attempted to file a demand for speedy trial on September 21, 2012; however, the trial court would not accept the filing. Id. According to Brooks, defense counsel, Todd Niemczyk, had withdrawn from the case at the time Brooks filed his demand for speedy trial. Id. at 12. Therefore, the trial court should have accepted his pro se filing because he did not have counsel. Id. Brooks contends that by not accepting his demand, the trial court violated his right to due process pursuant to Article One, Section Nine of the Florida Constitution and right to a speedy trial pursuant to the Sixth and Fourteenth Amendments of the United States

Constitution. Id. In ground three, Brooks alleges successor counsel, Darcy Galnor, was ineffective because she did not adopt his demand for speedy trial. Id. at 13. According to Brooks, if Galnor had adopted his demand, she could have filed a notice of expiration of time for a speedy trial and the charges would have been dismissed. Id. at 14. Brooks raised similar claims in state court as grounds two and three of his Rule 3.850 Motion. Doc. 7-10 at 7, 16-19. In denying relief, the circuit court explained:

In Grounds Two and Three, Defendant alleges that his right to demand a speedy trial was violated. In Ground Two, Defendant argues that the Court erred in not accepting his “Motion for Speedy Trial Upon Demand,” which Defendant states was filed pro se on September 21, 2012. Defendant claims that his motion was not accepted by the Court because Defendant was represented by counsel at the time. Defendant alleges that on September 21, 2012 he was unrepresented and the Court should have accepted his motion as a pro se filing. Alternatively, in Ground Three, Defendant argues that if he was in fact represented by counsel on September 21, 2012, then counsel was ineffective for failing to adopt Defendant’s pro se “Motion for Speedy Trial Upon Demand.” In both grounds, Defendant claims he was prejudiced because it prevented him from filing a notice of expiration and moving for the charges to be dismissed as a violation of Rule 3.191.

A claim of trial court error cannot be raised in a rule 3.850 motion. Seibert v. State, 64 So. 3d 67, 77 (Fla. 2010). Therefore, Defendant’s claim that the Court erred in denying Defendant’s pro se demand for speedy trial is procedurally barred from being raised in a rule 3.850 motion. A defendant, however, may use the underlying facts from a claim of trial court error in order to make a claim of ineffective assistance of counsel, which can be raised in a rule 3.850 motion. Id. A claim of ineffective assistance of counsel based on counsel failing to assert a defendant’s speedy trial rights requires the defendant to show that counsel made an unreasonable decision not to pursue those rights and defendant was prejudiced by that decision. Remak v. State, 142 So. 3d 3, 6 (Fla. 2d DCA 2014). To sufficiently plead prejudice, a defendant must allege specific facts that demonstrate that the State could not have brought the movant to trial within the recapture window or the quality of the State’s evidence would have been diminished if it were forced to trial. Id.

Defendant’s claim that counsel was ineffective for failing to adopt Defendant’s demand for speedy trial is meritless. Defendant is operating under the belief that had his demand for speedy trial been adopted by counsel, the time period would have expired and Defendant would have been able to file a motion for discharge. Defendant glosses over the fact that when a defendant asserts his speedy trial rights he is also informing the court that he is ready to proceed to trial, which the record strongly suggests was not the case. On September 21, 2012, the day Defendant alleges was his first attempt to file a demand for speedy trial, counsel had not yet deposed Shontrell Harris, a key witness for the charged offenses, and [R.H.], a William’s Rule witness. Counsel’s motions to continue demonstrate on the record that counsel was not ready to proceed to trial and it is not unreasonable for counsel to not demand a speedy trial when she has not deposed important witnesses. Therefore, Defendant’s claims in Grounds Two and Three are denied.

Doc. 7-11 at 5-6 (record citations omitted). The First DCA per curiam affirmed

1. Ground Two

To the extent that the First DCA denied ground two on the merits, the

Assuming the appellate court’s adjudication of the claim is not entitled to deference, Brooks’s claim is without merit. The Court initially notes that at the time Brooks filed his demand for a speedy trial, the Public Defender’s Office represented him. The trial court appointed the Public Defender’s Office to represent Brooks on July 13, 2012. Doc. 7-15 at 27. The Public Defender’s Office did not withdraw from representing Brooks until January⁷, 2013. Doc. 7-13 at 28, 39. Both Niemczyk and Galnor were assistant public defenders. Docs. 7-15 at 9-10; 7-17 at 189, 198. The trial court was not obliged to accept

Nevertheless, the trial court did not violate Brooks’s constitutional right to a speedy trial. “In all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial. . . .” U.S. Const. amend. VI. The Supreme Court has set forth factors for evaluating whether a speedy trial violation occurred in contravention of the Sixth Amendment. See Barker v. Wingo, 407 U.S. 514, 530-31 (1972). These factors include the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Id.

Here, the Jacksonville Sheriff’s Office arrested Brooks on July 12, 2012. Doc. 7-15 at 20. The State filed the initial information on July 30, 2012. Id. at 28. Brooks proceeded to trial on February 13, 2013, and a jury found Brooks guilty of counts one and two on that same day. Id. at 139-40. The State charged

Brooks with serious offenses, one of which constituted a capital felony, that occurred over a span of years. Id. at 28; see § 794.011(2)(a), Fla. Stat. (“A person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony. . .”). Moreover, the case involved the use of WilliamsRule evidence as well as testimony from multiple underaged witnesses. Doc. 7-15 at 30, 73-74. A delay of approximately seven months would not be unreasonable under these circumstances. See Barker, 407 U.S. at 530-31. Moreover, there were significant reasons for the delay. The trial court granted defense counsel’s motion for a continuance on December⁶, 2012, so an expert could evaluate Brooks’s competency and counsel could depose an eyewitness and a Williams Rule witness. Docs. 7-15 at 92-93; 7-17 at 183. The witnesses had not appeared for their scheduled depositions. Doc. 7-15 at 93. At that time, the trial court even set a tentative date of February 11, 2013, for jury selection in order to preserve Brooks’s right to proceed with a trial as soon as possible. Doc. 7-17 at 184. The delay did not greatly prejudice Brooks. If Brooks had proceeded to trial before December⁶, 2012, he would have done so without the depositions of key witnesses. Doc. 7-15 at 92-93. Further, Brooks has “failed to identify any potential witnesses or items of evidence that were lost as a result of the delay.” Castillo v. Florida, 630 F. App'x 1001, 1007 (11th Cir. 2015). As such, his constitutional right to a speedy trial was not violated. Accordingly, Brooks is not entitled to federal habeas relief on ground two.

2. Ground Three

To the extent that the First DCA denied ground three on the merits, the

Nevertheless, even if the appellate court’s adjudication of the claim is not entitled to deference, Brooks’s claim is without merit. Counsel was not deficient for failing to adopt Brooks’s demand for a speedy trial. The record shows as early as November 27, 2012, counsel had not deposed certain witnesses because they failed to appear at scheduled depositions. Doc. 7-17 at 166. Counsel maintained that she wanted to complete all depositions in the case because if a jury found Brooks guilty, he would receive a mandatory term of life imprisonment. Id. at 168-69. On December⁶, 2012, counsel filed a motion for a continuance citing additional concerns about Brooks’s competency and the failure of an eyewitness and a Williams Rule witness to appear at depositions scheduled for October 31, 2012. Docs. 7-15 at 92-93; 7-17 at 177-