Harry Austin v. Secretary, Department of Corre, et al

Filing

Opinion issued by court as to Appellant Harry Austin. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-13436
Non-Argument Calendar
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D.C. Docket No. 0:15-cv-61264-JIC

HARRY AUSTIN,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 6, 2018)
Before WILSON, JORDAN, and JULIE CARNES, Circuit Judges.
PER CURIAM:

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Petitioner Harry Austin appeals the district court’s denial of his habeas
corpus petition filed pursuant to 28 U.S.C. § 2254. On appeal, Petitioner argues
that his attorney was ineffective for failing to object on Confrontation Clause
grounds to the admission of a police officer’s testimony concerning a deceased
witness’s description and identification of Petitioner as a burglary suspect. After
careful review, we affirm.
I.

BACKGROUND
A.

State Criminal Conviction and Post-Conviction Proceedings

In 2007, a Florida jury found Petitioner guilty of burglary of a dwelling,
grand theft, possession of cocaine, possession of drug paraphernalia, and resisting
an officer without violence. On appeal, the Florida appellate court reversed
Petitioner’s convictions after concluding that Petitioner had been forced to
represent himself without an inquiry that satisfied Faretta v. California, 422 U.S.
806 (1975).
Before commencement of the retrial, Petitioner’s trial counsel made an oral
motion in limine to exclude the testimony of Officer Eugene McCoy regarding the
contents of a “BOLO” 1 he issued and the statements made by an unavailable
witness regarding the description and identification of Petitioner as the burglar.
The State argued that identification “in and of itself” is not hearsay. The court

1

“BOLO” stands for “be on the lookout.”
2

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determined that the existence of the BOLO, the officer’s testimony regarding his
actions in response to it, and the fact of the identification itself were admissible.
At trial, Officer McCoy testified that he responded to a 911 call at a
residence in Fort Lauderdale around midnight on October 22, 2005. When he
arrived, he spoke with the caller, Joshua Saks,2 and obtained a description of the
suspect, which he used to place a BOLO on the police radio. Officer McCoy
observed that the rear bedroom window was broken, as well as the presence of
wires that were not attached to anything. Officer McCoy further testified that, after
Petitioner was detained, Saks identified him as the person who had been in his
home.
Officer Shannon Dameron testified that he was in the vicinity when he was
alerted to a 911 call regarding a crime in progress. While responding to the call, he
heard a BOLO over the radio. Around the same time, he observed someone—later
identified as Petitioner—who matched the description on the BOLO. Petitioner
was running with a laptop computer in the opposite direction from where the crime
occurred. Officer Dameron attempted to make contact with him but, when
Petitioner did not stop, a foot pursuit ensued. After observing Petitioner throw the
laptop, Officer Dameron tackled him and arrested him. Upon searching Petitioner,
Officer Dameron found a crack pipe that contained cocaine residue.
2

Saks died in a motorcycle accident prior to trial.
3

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Lucien Sirois testified that when he left home on October 22, 2005, his
laptop was plugged in on his desk. When he returned home that evening, he saw
that the window in his room was broken and that his laptop computer was missing.
He later observed officers trying to take fingerprints off of his laptop.
The jury found Petitioner guilty of burglary, grand theft, possession of
cocaine, possession of drug paraphernalia, and resisting an officer without
violence. Petitioner was sentenced to 30 years’ imprisonment.
On appeal, Petitioner argued in relevant part that the trial court erred by
admitting Officer McCoy’s testimony about Saks’s description and identification
of Petitioner because it did not fall within the identification exception to the
hearsay rules and because Saks was not subject to cross-examination. The Florida
appellate court affirmed all of Petitioner’s convictions, except as to grand theft.
The appellate court reversed that conviction and remanded to the trial court to enter
judgment for the lesser included offense of petit theft. Petitioner’s motion for
rehearing was denied.
Petitioner filed a motion for post-conviction relief, which he later amended,
pursuant to Florida Rule of Criminal Procedure 3.850. Of relevance to this appeal,
he argued that his trial counsel was ineffective for not objecting to the introduction
of Saks’s identification as a violation of the Confrontation Clause.

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The State responded that Petitioner’s Confrontation Clause argument was
procedurally barred to the extent it raised trial court error. To the extent Petitioner
asserted ineffective assistance of counsel on this ground, the State argued that he
could not show that counsel was deficient but, even if he could, he had not
demonstrated prejudice. The trial court denied Petitioner’s 3.850 motion, citing
the State’s response. Petitioner filed a motion for rehearing, which was denied.
Petitioner subsequently filed a petition for belated appeal with the Florida
appellate court. The Florida appellate court granted his motion. Petitioner argued
that his trial counsel was ineffective for failing to object on Confrontation Clause
grounds to the admission of Saks’s identification of Petitioner. The Florida
appellate court affirmed in a per curiam decision without a written opinion.
Petitioner filed a motion for rehearing, which was denied.
B.

Federal Habeas Corpus Petition

In June 2015, Petitioner filed the present habeas corpus petition pursuant to
28 U.S.C. § 2254. Of relevance, Petitioner asserted that his trial counsel was
ineffective for failing to object on Confrontation Clause grounds to the testimony
of Officer McCoy regarding Saks’s description and identification of Petitioner as
the burglar.
The magistrate judge issued a Report and Recommendation (“R&R”),
recommending that the § 2254 petition be denied. In particular, the magistrate
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judge concluded that the state court’s denial of Petitioner’s ineffective assistance of
counsel claim was not contrary to, or an unreasonable application of, clearly
established federal law because Petitioner failed to demonstrate that counsel was
deficient. But to the extent there was any error, the magistrate judge concluded
that it was harmless based on the overwhelming evidence of Petitioner’s guilt.
Over Petitioner’s objections, the district court adopted the R&R and denied
the § 2254 petition. The district court also denied a certificate of appealability
(“COA”). A member of this Court later granted Petitioner a COA on the following
issue:
Whether the state court unreasonably applied Strickland v.
Washington, 466 U.S. 668 (1984), when it denied [Petitioner’s] claim
that his trial counsel rendered ineffective assistance by failing to
object on Confrontation Clause grounds to Officer McCoy’s
testimony concerning a deceased witness’s description and
identification of the robber.
This Court also appointed Petitioner counsel to represent him on appeal.
II.

DISCUSSION
A.

Standard of Review

We review a district court’s denial of a habeas petition under § 2254
de novo. Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240, 1245 (11th Cir.
2014). Although we review the district court’s factual findings for clear error, we
review its rulings on questions of law and mixed questions of law and fact de novo.
Id. An ineffective assistance claim “presents a mixed question of law and fact that
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we review de novo.” Pope v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 1254, 1261
(11th Cir. 2014).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets
forth a standard that makes granting habeas relief difficult on a claim that the state
court has adjudicated on the merits. See White v. Woodall, 572 U.S. __, 134 S. Ct.
1697, 1702 (2014). Under AEDPA, a federal court may only grant habeas relief on
a claim if the state court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law” or “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).
A state court decision is “contrary” to clearly established federal law if the
state court “arrives at a conclusion opposite to that reached by” the Supreme Court
or decides a case differently than the Supreme Court when faced with a case
involving materially indistinguishable facts. Wellington v. Moore, 314 F.3d 1256,
1260 (11th Cir. 2002). Moreover, a state court decision constitutes an
“unreasonable application” of clearly established federal law, where the court
identifies the correct governing principles, but unreasonably applies those
principles to a petitioner’s case. Id. at 1261.
In the present case, the Florida appellate court denied Petitioner’s
ineffective-assistance claim without a written opinion. Because we interpret the
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Florida appellate court’s decision as a denial on the merits, it is entitled to
deference under § 2254(d). See Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245,
1254–55 (11th Cir. 2002) (concluding that the state court’s summary denial of a
claim is considered an adjudication on the merits for purposes of § 2254(d)(1)).
Petitioner must therefore show that there was “no reasonable basis” for the state
court’s decision. See Harrington v. Richter, 562 U.S. 86, 98 (2011) (“Where a
state court’s decision is unaccompanied by an explanation, the habeas petitioner’s
burden still must be met by showing that there is no reasonable basis for the state
court to deny relief.”).
B.

Ineffective-Assistance-of-Counsel Claim

To establish ineffective assistance of counsel, a § 2254 petitioner must show
that (1) counsel’s performance was deficient, falling below an objective standard
of reasonableness, and (2) the petitioner suffered prejudice as a result of the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687–88 (1984).
To establish prejudice, “[t]he defendant must show that there is 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.” Harrington, 562
U.S. at 104. Because a § 2254 petitioner must establish both Strickland prongs to
prevail on an ineffective-assistance claim, a court need not consider both prongs if
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the petitioner fails to show either deficient performance or prejudice. Cox v.
McNeil, 638 F.3d 1356, 1362 (11th Cir. 2011).
“The standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is doubly so.” Hittson v.
GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014) (quotations omitted). The
Supreme Court has stated that “[t]he question is not whether a federal court
believes the state’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) (quotations omitted). Courts
must ask whether “there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Harrington, 562 U.S. at 105.
Here, prior to the retrial, Petitioner’s trial counsel moved in limine to
exclude Officer McCoy’s testimony regarding Saks’s identification of Petitioner as
the burglar. However, trial counsel’s objection appears to have been based on
hearsay grounds, as she did not specifically object that the testimony would violate
the Confrontation Clause. See Williams v. State, 967 So.2d 735, 747 n.11 (Fla.
2007) (explaining that a general objection to inadmissible hearsay does not
preserve a Confrontation Clause argument). But regardless, even if Petitioner’s
trial counsel rendered deficient performance, it would have been reasonable for the
state court to conclude that Petitioner was not prejudiced by trial counsel’s failure
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to object to Officer McCoy’s testimony on Confrontation Clause grounds. That is,
Petitioner cannot show a reasonable probability that, but for trial counsel’s failure
to object to Officer McCoy’s testimony on this basis, the outcome of the
proceeding would have been different.
Even without Officer McCoy’s testimony that Saks identified Petitioner as
the burglar, the other evidence presented at trial showed that: (1) a laptop was
stolen from a home around midnight; (2) Officer Dameron observed Petitioner
running in the vicinity of the burglary with a laptop; (3) Petitioner refused Officer
Dameron’s orders to stop and a foot chase ensued; (4) while chasing Petitioner,
Officer Dameron observed Petitioner throw a laptop in the bushes; (5) a crack pipe
with cocaine residue was found in Petitioner’s possession; and (6) Lucien Sirois
testified that his bedroom window was broken and that there was no reason
Petitioner should have had his laptop. Given the other evidence of guilt, the
likelihood of a different outcome was not substantial. See Harrington, 562 U.S. at
112 (explaining that to establish prejudice “[t]he likelihood of a different result
must be substantial, not just conceivable”). Because the state court had a
reasonable basis to conclude that Petitioner had not shown prejudice, the state

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court’s rejection of Petitioner’s ineffective assistance of counsel claim was not
contrary to, or an unreasonable application, of Strickland. 3
For the above reasons, the district court’s denial of Petitioner’s § 2254
petition is AFFIRMED.

3

Petitioner also argues that the district court erred by denying him an evidentiary hearing and
that his counsel was ineffective due to a conflict of interest and for failing to object to Saks’s
identification on hearsay grounds. Because those issues are outside the scope of the COA, we do
not address those issues in this appeal. See Murray v. United States, 145 F.3d 1249, 1251 (11th
Cir. 1998) (holding that appellate review is limited to issues specified in the COA).
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