Daniel Tappen v. Secretary, Florida Department

Filing

Opinion issued by court as to Appellant Daniel L. Tappen. 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.

Case: 16-14993

Date Filed: 01/09/2018

Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14993
Non-Argument Calendar
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D.C. Docket No. 4:13-cv-00345-RH-CAS

DANIEL L. TAPPEN,
Petitioner - Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(January 9, 2018)
Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.
PER CURIAM:

Case: 16-14993

Date Filed: 01/09/2018

Page: 2 of 3

Daniel Tappen, a Florida inmate serving a life sentence for first degree
murder, appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a
writ of habeas corpus. The district court granted Tappen a certificate of
appealability on one issue: whether admission at trial of the surreptitious recording
of a conversation between Tappen and his attorney violated the Sixth Amendment.
While Tappen was detained pretrial, he obtained permission to walk through
the scene of the crime—his residence—while accompanied by his attorney but
remaining in the custody of police. While the walk-through took place, Tappen
discussed the case with his attorney while handcuffed to a deputy. Unbeknownst
to Tappen or his attorney, the State video and audio recorded the walk-through,
capturing Tappen’s discussion with his attorney. Over Tappen’s objection, the
State offered the recording into evidence at trial.1 The jury convicted Tappen of
the murder. On appeal, Tappen again asserted that admission of the surreptitious
recording was in error; the appellate court affirmed his conviction without an
opinion. See Tappen v. State, 75 So. 3d 274 (Fla. Dist. App. 2011).
Tappen filed a federal habeas petition, relying for his Sixth Amendment
claim on Shillinger v. Haworth, 70 F.3d 1132 (10th Cir. 1996), a case granting a
petitioner relief under circumstances similar to Tappen’s. Because he filed his
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Defense counsel objected based on the attorney-client privilege and did not invoke the
United States Constitution. Despite the fact that Tappen apparently procedurally defaulted his
Sixth Amendment claim by failing to object on that ground in the trial court, the district court
reached the merits of Tappen’s Sixth Amendment claim. We do so as well, assuming for
purposes of this opinion that Tappen’s claim was presented properly to the state courts.
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Case: 16-14993

Date Filed: 01/09/2018

Page: 3 of 3

federal petition after April 24, 1996, it was governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). Generally, AEDPA bars federal
courts from granting habeas relief to a petitioner on a claim that was adjudicated
on the merits in state court unless the state court’s adjudication:
(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
(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).
The district court denied Tappen’s petition, noting as relevant here that
Haworth was not a Supreme Court decision and thus could not satisfy Tappen’s
burden to overcome AEDPA deference. On appeal, Tappen criticizes the district
court for failing to account for the egregiousness of the facts in his case. But, as in
the district court, Tappen has failed to identify any Supreme Court precedent
establishing that his Sixth Amendment right was violated. More specifically, he
has failed to show that the state court’s rejection of his claim was contrary to or
involved an unreasonable application of clearly established law as determined by
the Supreme Court. Thus we, like the district court, must reject his petition.
AFFIRMED.

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