Au v. Buss et al
Filing
42
OPINION AND ORDER re: 1 Petition for writ of habeas corpus denying Claims 1, 2, and 5 and dismissing Claims 3 and 4 as unexhausted and procedurally barred. The Clerk shall enter judgment accordingly and close the case. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 3/4/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DAVID JOSEPH AU,
Petitioner,
v.
Case No:
2:11-cv-103-Ftm-29UAM
EDWIN BUSS and FLORIDA
ATTORNEY GENERAL,
Respondents.
___________________________________/
OPINION AND ORDER
This matter comes before the Court on David Joseph Au’s
(“Petitioner's”) petition for writ of habeas corpus filed pursuant
to
28
U.S.C.
§
2254
(Doc.
1,
filed
March
3,
2011).
Upon
consideration of the petition, the Court ordered Respondents to
show cause why the relief sought in the petition should not be
granted (Doc. 6).
Thereafter, Respondents filed a response and a
supplemental response to the petition in compliance with this
Court’s instructions and with the Rules Governing Section 2254
Cases
in
the
United
States
District
Courts
(Docs.
17,
38).
Petitioner filed a reply and three supplemental replies to the
responses (Docs. 20, 24, 27, 41).
Petitioner raises five claims for relief in his petition.
Petitioner alleges that: (1) trial counsel was ineffective for
failing to object to the State’s improper introduction of character
evidence;
(2)
trial
counsel
was
ineffective
for
failing
to
investigate the victim’s criminal history; (3) trial counsel was
ineffective for failing to investigate witnesses who had contact
with the victim shortly before death; (4) trial counsel was
ineffective for failing to object to deficient jury instructions;
and
(5)
the
cumulative
effects
of
trial
counsel’s
deficient
performance resulted in prejudice (Doc. 1 at 5-21).
Because this Court can adequately assess Petitioner's claims
without further factual development, an evidentiary hearing will
not be conducted. Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.
2003).
Upon due consideration of the petition, the responses, the
replies, and the state-court record, this Court concludes that
Claims Three and Four are due to be dismissed as unexhausted and
procedurally barred.
Claims One, Two, and Five are due to be
denied.
I.
Background and Procedural History
On February 20, 2004, Petitioner was charged by information
with second degree murder with a firearm, in violation of Florida
Statute § 782.04(2) (Vol. 1 at 1).1
On November 3, 2004, after a
jury
guilty
trial,
Petitioner
was
found
as
charged
and
sentenced to thirty years in prison (Vol. 3 at 185, 224).
was
On
January 20, 2006, Petitioner's conviction and sentence were per
1
Unless otherwise noted, citations to volumes (Vol.__ at __) and
exhibits (Ex. __ at __) are to those filed by Respondents on
November 8, 2011 (Doc. 18). References to the trial transcript,
contained in Volume Four, will be cited as (T. at __)
2
curiam affirmed by Florida’s Second District Court of Appeal (Ex.
5); Au v. State, 923 So. 2d 498 (Fla. 2d DCA 2006).
On July 25, 2006, Petitioner fled a pro se petition for writ
of habeas corpus in which he alleged that his appellate counsel
rendered ineffective assistance of counsel by failing to argue
that the State did not prove the identity of the victim (Ex. 9).
The Petition was denied (Ex. 12); Au v. State, 940 So. 2d 1131
(Fla. 2d DCA 2006).
On March 13, 2008, Petitioner filed a motion
seeking leave to file a belated appeal in which Petitioner alleged
that
appellate
counsel
“failed
to
recognize
unobjected-to
fundamental errors in both the jury instructions and jury charge.”
(Ex. 16 at 4).
alleging
Petitioner's motion was construed as a petition
ineffective
assistance
of
appellate
counsel
and
was
denied on April 17, 2008 (Ex. 17).
On June 15, 2007, Petitioner filed, through retained counsel,
a motion to vacate his judgment pursuant to Rule 3.850 of the
Florida Rules of Criminal Procedure (“Rule 3.850 motion”) in which
he raised six grounds of ineffective assistance of trial counsel
(Ex. 21).
On August 20, 2009, Petitioner filed an amended Rule
3.850 motion in which he restated and expanded upon four of the
ineffective
assistance
claims
assistance claim (Ex. 22).
and
added
a
new
ineffective
The amended Rule 3.850 motion was
dismissed by the post-conviction court as untimely filed due to
counsel’s failure to attach a proper oath until after Florida’s
3
two-year statute of limitations for Rule 3.850 motions had passed
(Ex. 27).
The post-conviction court addressed only the original
Rule 3.850 motion, and it was denied on the merits. Id.
Florida’s
Second District Court of Appeal affirmed per curiam (Ex. 29); Au
v. State, 50 So.3d 604 (2010).
The instant petition was filed in this Court on March 3, 2011
(Doc. 1).
In the petition, Petitioner seeks to raise the same
arguments as previously raised in the Rule 3.850 motion rejected
by the post-conviction court as untimely. Id.
In response to the
petition, Respondents argued that these claims were unexhausted
and procedurally barred (Doc. 17).
On October 16, 2013, the Court
ordered Respondents to file a supplemental response addressing the
ineffective
assistance
of
counsel
claims
alleged
to
be
procedurally defaulted in light of the United States Supreme
Court’s holding in Martinez v. Ryan, 132 S. Ct. 1309 (2012) (Doc.
29).
Respondents filed a supplemental response, and Petitioner
replied to the supplemental response (Docs. 38, 41).
II.
Governing Legal Principles
a.
Standard of Review Under the Antiterrorism Effective
Death Penalty Act (“AEDPA”)
Pursuant to the AEDPA, federal habeas relief may not be
granted with respect to a claim adjudicated on the merits in state
court unless the adjudication of the claim:
(1)
resulted in a decision that was contrary to,
or involved an unreasonable application of,
4
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). A state court’s summary rejection of a claim,
even without explanation, qualifies as an adjudication on the
merits which warrants deference.
Ferguson v. Culliver, 527 F.3d
1144, 1146 (11th Cir. 2008).
“Clearly established federal law” consists of the governing
legal principles, rather than the dicta, set forth in the decisions
of the United States Supreme Court at the time the state court
issues its decision. Carey v. Musladin, 549 U.S. 70, 74 (2006)
(citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
A decision
is “contrary to” clearly established federal law if the state court
either: (1) applied a rule that contradicts the governing law set
forth by Supreme Court case law; or (2) reached a different result
from
the
Supreme
Court
when
faced
with
materially
indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th
Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
A state court decision involves an “unreasonable application”
of the Supreme Court’s precedents if the state court correctly
identifies the governing legal principle, but applies it to the
facts of the petitioner’s case in an objectively unreasonable
manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.
5
Moore, 234 F.3d 526, 531 (11th Cir. 2000) or, “if the state court
either unreasonably extends a legal principle from [Supreme Court]
precedent
to
a
new
context
where
it
should
not
apply
or
unreasonably refuses to extend that principle to a new context
where it should apply.”
Williams, 529 U.S. at 406).
Bottoson, 234 F.3d at 531 (quoting
The unreasonable application inquiry
“requires the state court decision to be more than incorrect or
erroneous,” rather, it must be “objectively unreasonable.” Lockyer
v. Andrade, 538 U.S. 63, 75-77 (2003) (citation omitted); Mitchell,
540 U.S. at 17-18; Ward, 592 F.3d at 1155.
Finally, the Supreme Court has clarified that: “a decision
adjudicated on the merits in a state court and based on a factual
determination will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the
state-court proceeding[.]” Miller–El v. Cockrell, 537 U.S. 322,
340 (2003) (dictum). When reviewing a claim under § 2254(d), a
federal court must bear in mind that any “determination of a
factual issue made by a State court shall be presumed to be
correct,” and the petitioner bears “the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28
U.S.C.
§
2254(e)(1);
see
e.g.
Miller–El,
537
U.S.
at
340
(explaining that a federal court can disagree with a state court’s
factual finding and, when guided by AEDPA, “conclude the decision
6
was unreasonable or that the factual premise was incorrect by clear
and convincing evidence”).
b.
Standard for Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established
a two-part test for determining whether a convicted person is
entitled
to
relief
on
the
ground
that
his
counsel
rendered
ineffective assistance. 466 U.S. 668, 687-88 (1984). A petitioner
must establish that counsel’s performance was deficient and fell
below
an
objective
standard
of
reasonableness
and
that
the
deficient performance prejudiced the defense. Id.
Because both
parts
in
of
the
Strickland
test
must
be
satisfied
order
to
demonstrate a violation of the Sixth Amendment, a district court
need not address the performance prong if the petitioner cannot
meet the prejudice prong, or vice versa. Holladay v. Haley, 209
F.3d 1243, 1248 (11th Cir. 2000).
The focus of inquiry under Strickland's performance prong is
“reasonableness under prevailing professional norms.” Strickland,
466 U.S. at 688-89.
In reviewing counsel's performance, a court
must adhere to a strong presumption that “counsel’s conduct falls
within the wide range of reasonable professional assistance.”
at 689.
Id.
Indeed, the petitioner bears the heavy burden to “prove,
by a preponderance of the evidence, that counsel’s performance was
unreasonable[.]” Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir.
2006). A court must “judge the reasonableness of counsel’s conduct
7
on the facts of the particular case, viewed as of the time of
counsel’s
conduct,”
judicial scrutiny.
applying
a
“highly
deferential”
level
of
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)
(quoting Strickland, 466 U.S. at 690).
As
to
the
prejudice
prong
of
the
Strickland
standard,
Petitioner’s burden to demonstrate prejudice is high. Wellington
v.
Moore,
314
F.3d
1256,
1260
(11th
Cir.
2002).
Prejudice
“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, 466 U.S. at 687.
That is, “[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.
is
“a
probability
sufficient
to
A reasonable probability
undermine
confidence
in
the
outcome.” Strickland, 466 U.S. at 694.
c.
Exhaustion and Procedural Default
The
AEDPA
precludes
federal
courts,
absent
exceptional
circumstances, from granting habeas relief unless a petitioner has
exhausted
all
means
of
available
relief
under
state
Specifically, the AEDPA 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 unless it appears that–
(A) the applicant has exhausted the remedies
available in the courts of the State; or
8
law.
(B)
(i) there is an absence
of
available
State
corrective process; or
(ii) circumstances exist
that render such process
ineffective to protect the
rights of the applicant.
28 U.S.C. § 2254(b)(1) (2012).
Exhaustion of state remedies requires that the state prisoner
“fairly presen[t] federal claims to the state courts in order to
give the State the opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights[.]” Duncan v. Henry,
513 U.S. 364, 365 (1995) (citing Picard v. Conner, 404 U.S. 270,
275-76 (1971)).
The petitioner must apprise the state court of
the federal constitutional issue, not just the underlying facts of
the claim or a similar state law claim.
Snowden v. Singletary,
135 F.3d 732 (11th Cir. 1998). In addition, a federal habeas court
is precluded from considering claims that are not exhausted but
would clearly be barred if returned to state court. Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991) (if a petitioner has failed
to
exhaust
state
remedies
and
the
state
court
to
which
the
petitioner would be required to present his claims in order to
meet
the
exhaustion
requirement
would
now
find
the
claims
procedurally barred, there is a procedural default for federal
habeas purposes regardless of the decision of the last state court
to which the petitioner actually presented his claims).
9
Finally,
a federal court must dismiss those claims or portions of claims
that have been denied on adequate and independent procedural
grounds under state law. Coleman, 501 U.S. at 750. If a petitioner
attempts to raise a claim in a manner not permitted by state
procedural rules, he is barred from pursuing the same claim in
federal court. Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.
1994).
Procedural
circumstances.
default
will
be
excused
only
in
two
narrow
First, a petitioner may obtain federal review of
a procedurally defaulted claim if he can show both “cause” for the
default and actual “prejudice” resulting from the default.
establish
cause
for
procedural
default,
a
petitioner
“To
must
demonstrate that some objective factor external to the defense
impeded the effort to raise the claim properly in state court.”
Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). In Martinez
v. Ryan, 132 S. Ct. 1309 (2012), the United States Supreme Court
recently held that ineffective assistance of counsel in an initialreview state collateral proceeding may provide cause to excuse the
procedural default of an ineffective assistance of trial counsel
claim, provided that the defaulted claim is “substantial.” 132 S.
Ct. at 1318–20.
To establish prejudice, a petitioner must show
that there is at least a reasonable probability that the result of
the proceeding would have been different.
353 F.3d 880, 892 (11th Cir. 2003).
10
Henderson v. Campbell,
The second exception, known as the fundamental miscarriage of
justice,
only
occurs
in
an
extraordinary
case,
where
a
“constitutional violation has probably resulted in the conviction
of one who is actually innocent[.]”
478, 479-80 (1986).
legal insufficiency.
(1998).
Murray v. Carrier, 477 U.S.
Actual innocence means factual innocence, not
Bousley v. United States, 523 U.S. 614, 623
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.
(1995).
In
addition,
“[t]o
Schlup v. Delo, 513 U.S. 298, 327
be
credible,
a
claim
of
actual
innocence must be based on [new] reliable evidence not presented
at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting
Schlup, 513 U.S. at 324).
III. Analysis
a.
Claim One
Petitioner alleges that trial counsel rendered ineffective
assistance when he failed to object to the State’s improper use of
character evidence and to the State’s improper remarks during
closing argument (Doc. 1 at 5).
Specifically, Petitioner claims
that counsel should have objected to the testimony of witness John
McGuire who was questioned as to whether the victim was known to
be violent or aggressive when drinking and to the State’s closing
references to the victim as not “a bad drunk.” Id. at 6-7.
Petitioner also argues that trial counsel was ineffective for
11
failing to object to the State’s characterization of the victim as
a harmless drunk who could not have posed a threat to Petitioner.
Id. at 6-7.
history
which
Petitioner alleges that the victim had a criminal
included
charges
of
driving
while
intoxicated,
domestic violence, battery, criminal mischief, and intimidation of
a law enforcement officer, and that trial counsel should have
introduced evidence of that history. Id. at 7-8.
Petitioner raised the substance of this claim in Claim Two of
his initial Rule 3.850 motion, and the post-conviction court broke
the
claim
into
three
sub-claims.
The
post-conviction
court
concluded that Petitioner alleged that counsel was ineffective
for: (a) failing to investigate the criminal history and character
of the victim; (b) failing to object to the State’s improper
introduction of character evidence; and (c) failing to object to
the State’s improper closing argument concerning the victim’s
character (Ex. 27 at 3).
Each of these claims was considered, and
rejected, by the post-conviction court. Id.2
The post-conviction court concluded that counsel was not
ineffective for failing to object to the State’s introduction of
character
evidence
because
such
evidence
was
introduced
in
response to trial counsel’s characterization of the victim:
2
In Claim Two of the instant petition, Petitioner re-alleges his
claim that counsel was ineffective for failing to investigate the
victim’s criminal background. Accordingly, this aspect of Claim
One will be addressed in the discussion of Claim Two.
12
Defendant argues that counsel was ineffective
for failing to object to the State’s improper
introduction of character evidence. Defendant
believes it was improper for the State to
elicit rebuttal testimony regarding the
victim’s positive character when the Defendant
had not yet introduced evidence of the
victim’s negative character, pursuant to Fla.
Stat. Section 90.404(1)(b).
This claim is
refuted by the record, since defense counsel
raised this issue in his opening argument by
making statements regarding the victim’s “evil
intent,” drunkenness, and “bizarre” behavior.
The
State’s
presentation
of
character
testimony in response to a statement by
defense counsel in opening argument was
admissible, because defense counsel opened the
door, and the State had a right to rebut. Gore
v. State, 706 So. 2d 1328, 1335-1336 (Fla.
1997). Pursuant to Gore, counsel had no basis
upon which to object to the testimony elicited
by the State. Counsel cannot be ineffective
for failing to argue a meritless issue.
Teffeteller v. Dugger, 734 So. 2d 1009, 1023
(Fla. 1999). Ground 2(b) is DENIED.
(Ex. 27 at 4) (citations to the record omitted).
The post-
conviction court then concluded that the State’s comments during
closing were not improper because the prosecutor was making fair
comment on the evidence produced at trial:
Defendant argues that counsel was ineffective
for failing to object to the State’s improper
closing argument regarding the victim’s
character.
Defendant believes the State’s
comments that the victim was not a bad tenant,
was not a bad drunk, and that the victim had
no history of being a threat while he was drunk
were improper.
The context of the entire
closing
argument
demonstrates
that
the
prosecutor was making fair comment on the
evidence produced at trial. The prosecutor’s
statements were not improper or objectionable,
when taken in context with what the evidence
13
established during trial. Stephens v. State,
975 So. 2d 405, 421 (Fla. 2007). “The proper
exercise of closing argument is to review the
evidence and to explicate those inferences
which may reasonably be drawn from the
evidence.” Griffin v. State, 866 So. 2d 1, 16
(Fla. 2003), citing Bertolotti v. State, 476
So. 2d 130, 134 (Fla. 1985).
Merely arguing
a conclusion that can be drawn from the
evidence is permissible fair comment. Griffin
v. State, 866 So. 2d 1, 16 (Fla. 2003), citing
Mann v. State, 603 So. 2d 1141, 1143 (Fla.
1992). The prosecutor’s comments fell within
the wide latitude permitted in closing
arguments to the jury. Stephens v. State, 975
So. 2d 405, 421 (Fla. 2007). Defendant could
not show he was prejudiced by comments that
were permissible. Counsel had no basis upon
which to object, and cannot be deemed
ineffective for failing to raise a meritless
issue. Teffeteller v. Dugger, 734 So. 2d 1009,
1023 (Fla. 1999). Ground 2(c) is DENIED.
(Ex. 27 at 5) (citations to the record omitted).
Petitioner does not explain how the post-conviction court’s
adjudication of these issues was contrary to Strickland or based
upon
an
unreasonable
determination
of
the
facts.
Rather,
Petitioner reasserts that the state court’s decision resulted from
its misapplication of Florida Statute § 90.404(1)(b).3
3
Florida Statute § 90.404(1)(b)(2) authorizes the introduction of
the reputation of the victim’s peacefulness when “offered by the
prosecution in a homicide case to rebut evidence that the victim
was the aggressor.”
Petitioner argues that “[a]t the point in
time that the prosecutor elicited Mr. McGuire’s testimony, the
Defendant had not introduced any evidence of [the victim’s]
character or that he was the aggressor for which the State would
have been entitled to rebut. Thus the evidence was inadmissible
and objectionable.” (Doc. 1 at 7). Even assuming, arguendo, that
this Court agreed with Petitioner's interpretation of § 90.404,
the Court is bound by the state courts’ interpretation of state
14
Even if Petitioner’s current claim could be interpreted as an
assertion that the state court unreasonably applied Strickland
when it concluded that counsel’s performance was not deficient, in
order to grant habeas relief, this Court would have to first
conclude that the post-conviction court and the Second District
Court
of
Appeal
misinterpreted
Florida
law.
In
Herring
v.
Secretary, Dept. of Corr., 397 F.3d 1338 (11th Cir. 2005) and
Callahan v. Campbell, 427 F.3d 897 (11th Cir. 2005), the Eleventh
Circuit addressed similar issues.
In those cases, the petitioners
claimed that their trial attorneys were ineffective, based on state
law, for failing to object to certain evidence at trial. Herring,
397 F.3d at 1354-55; Callahan, 427 F.3d 897, 932.
On direct
appeal, the state courts rejected the petitioners' claims based on
state law. Herring, 397 F.3d at 1354-55; Callahan, 427 F.3d 897,
932.
Both petitioners brought ineffective assistance of counsel
claims in their federal habeas petitions, and the Eleventh Circuit
rejected the claims, because granting the petitions would have
required the Eleventh Circuit to conclude that the state appellate
courts misinterpreted state law. Herring, 397 F.3d at 1354-55 (“The
Florida Supreme Court already has told us how the issues would
have been resolved under Florida state law had [petitioner's
law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“”[A] state
court’s interpretation of state law, including one announced on
direct appeal of the challenged conviction, binds a federal court
sitting in habeas corpus.”); see also discussion infra.
15
counsel] done what [petitioner] argues he should have done. . . .
It is a ‘fundamental principle that state courts are the final
arbiters of state law, and federal habeas courts should not secondguess them on such matters.’”); Callahan, 427 F.3d 897, 932 (“[T]he
Alabama Court of Criminal Appeals has already answered the question
of what would have happened had [petitioner's counsel] objected to
the introduction of [petitioner's] statements based on [state
law]-the objection would have been overruled. . . . Therefore,
[petitioner's counsel] was not ineffective for failing to make
that objection.”).
Here, as in Herring and Callahan, Florida’s Second District
Court of Appeal has answered the question of what would have
happened had Petitioner's counsel attempted to introduce evidence
of the victim’s criminal history or objected to the State’s remarks
during
trial
or
closing
regarding
the
victim’s
character.
Therefore, counsel cannot be held ineffective for failing to
object. The state court’s ruling did not result in an unreasonable
application of federal law, and Petitioner is not entitled to
federal habeas relief on Claim One. 28 U.S.C. § 2254(d).
b. Claim Two
Petitioner argues that counsel was ineffective for neglecting
to investigate the criminal history and character of the victim
because such evidence would have been admissible as rebuttal
testimony during Petitioner's trial (Doc. 1 at 9).
16
Specifically,
Petitioner asserts that the victim “had a jaded history of heavy
drinking with associated violent and threatening tendency.” Id.
Petitioner argues that counsel should have called Indiana Police
Officer, Jeff Cook, to testify that the victim had been charged
with intimidation of a law enforcement officer after he was pulled
over by police. Id. at 10.
Plaintiff also argues that the victim
had “a troubling domestic violence history in the State of Florida,
which would have been utilized by trial counsel as impeachment
material to stem the tide of the prosecution[‘]s misleading ‘good
guy’ character image of [the victim] at trial.” (Doc. 11 at 24).
Petitioner
asserts
that
he
suffered
prejudice
from
counsel’s
failure because, had Petitioner had the opportunity “to defend
himself with the truth,” it would have affected the outcome of the
trial (Doc. 1 at 11).
Petitioner raised this issue to a limited extent in Claim
Two(a) of his original Rule 3.850 petition when he asserted that
counsel was ineffective for failing to investigate the criminal
history and character of the victim (Ex. 21).
Specifically,
Petitioner argued that the victim had a criminal history, including
three charges of driving under the influence and an Indiana charge
for intimidation of a law enforcement officer. Id. at 6.
In his
second Rule 3.850 motion, Petitioner expanded upon this claim by
stating that Police Officer Jeff Cook should have been called to
testify as to the events surrounding the victim’s arrest for
17
intimidation
of
a
law
enforcement
officer
(Ex.
22
at
10).
Petitioner also asserted in his amended Rule 3.850 motion that
Tampa Police Officer Spirk should have been called to testify as
to
the
authenticity
of
a
domestic
violence
report
prepared
regarding an incident of domestic violence. Id. at 11.
Respondents argue that this claim is exhausted only to the
extent raised in Petitioner's first Rule 3.850 motion because
Petitioner’s amended Rule 3.850 motion was dismissed by the state
court as procedurally barred (Doc. 17 at 11).
The Court has
compared the issues raised in Claim Two of the instant petition
with those raised in Petitioner's original Rule 3.850 motion and
concludes that Petitioner's additions do not fundamentally alter
this claim.
The legal issues raised in this claim were considered
and ruled upon by the state court.
Thus, this claim is exhausted
and will be addressed on the merits.
However, the Court will not
consider the additional facts and allegations that were not before
the state court when it considered this claim.4
4
Petitioner, citing Martinez v. Ryan, asserts that this Court
should consider the additional facts and allegations raised in his
defaulted Rule 3.850 motion and in the instant petition (Doc. 22).
This Court does not agree. Martinez does not support a conclusion
that a petitioner should be permitted to expand the factual record
in order to bolster ineffective assistance of counsel claims which
were raised and rejected in the initial-review state postconviction proceeding.
Because this claim was raised in
Petitioner's initial timely post-conviction proceeding, and was
rejected by the state post-conviction court on the merits, the
claim is exhausted, and Martinez has no bearing on the resolution
of Claim Two. See Moore v. Mitchell, 708 F.3d 760, 785 (6th Cir.
18
The post-conviction court responded to Petitioner's assertion
that trial counsel was ineffective for failing to delve into the
victim’s criminal history, by stating:
Defendant
believes
counsel
should
have
investigated
and
introduced
evidence
regarding the victim’s prior convictions for
driving under the influence and “intimidation
of a law enforcement officer.”
Even had
counsel proffered this evidence, there is no
prejudice.
The record indicates that the
State filed a motion in limine to exclude this
specific evidence. A copy of the motion in
limine is attached.
Further, even if this
evidence was admissible under Fla. Stat.
Section 90.404, it does not appear it would
have been admissible under Section 90.405,
which precludes specific acts evidence when
the character of a person is not an essential
element of the crime or defense. See Dupree v.
State, 615 So. 2d 713, 721 (Fla. 1st DCA 1993).
In the instant case, the victim’s character
was not an essential element of the defense.
Defendant admitted he did not know the victim,
so he would have been unaware of the victim’s
character or prior convictions at the time of
the offense, such that presentation of this
evidence at trial would not be relevant to the
jury’s determination of whether Defendant's
belief he was under imminent threat was
reasonable. Ground 2(a) is DENIED.
(Ex. 27 at 4). Petitioner does not explain how the post-conviction
court’s adjudication of this claim was contrary to Strickland.
2013); Lopez v. Ryan, 678 F.3d 1131, 1137 (9th Cir. 2012)
(declining to decide whether Martinez could be expanded to include
ineffective assistance of post-conviction counsel in failing to
develop the factual basis of a claim); see also Cullen v.
Pinholster, 131 S. Ct. 1388, 1401 (2011) (recognizing that federal
habeas courts are generally limited to the factual record that was
before the State court when it considered a claim).
19
Instead, Petitioner argues that, because the State introduced
evidence of the victim’s peaceful character, “under Florida law,
this entitled Petitioner to rebut that with evidence of the
victim’s specific acts of violence.” (Doc. 41 at 5).
Petitioner
asserts that, because the post-conviction court did not consider
this particular aspect of the claim, he is entitled to a de novo
review of Claim Two. Id.
Petitioner's
assertion
ignores
the
fact
that
the
post-
conviction court specifically determined that this evidence would
not have been admissible under Florida Statute § 90.405 (Ex. 27 at
4) (“[E]ven if this evidence was admissible under Fla. Stat.
Section 90.404, it does not appear it would have been admissible
under Secion 90.405, which precludes specific acts evidence when
the character of a person is not an essential element of the crime
or
defense.”).
The
confirmed on appeal.
post-conviction
court’s
conclusion
was
A state court’s interpretation of state law
binds this Court. Bradshaw, 546 U.S. at 76.
The state court has answered the question of what would have
happened if counsel had sought to introduce evidence of the
victim’s criminal history.
Trial counsel was not ineffective for
failing to seek to introduce this evidence because the trial court
would have rejected any attempt to do so. See discussion supra
Claim
One.
This
claim
fails
to
20
satisfy
either
prong
of
the
Strickland analysis, and Petitioner is not entitled to federal
habeas relief on Claim Two. 28 U.S.C. § 2254(d).
c.
Claim Three
Petitioner asserts that trial counsel was ineffective for
failing to investigate witnesses who had contact with the victim
prior to the shooting incident (Doc. 1 at 13).
Specifically,
Petitioner asserts that trial counsel should have called witnesses
Andrew Hamilton, Mike George, and Brian Ebener at trial to testify
as to the victim’s “reputation as an unpleasant alcoholic whom has
frequently demonstrated violent tendencies against persons while
inebriated.” Id. at 13-14.
Petitioner asserts that he raised this issue in his first
Rule 3.850 motion, and it is therefore exhausted (Doc. 41 at 7).
However, in the first Rule 3.850 motion, Petitioner pointed to a
newspaper article published two days after Petitioner's arrest in
which four people claimed to have contact with the victim on the
night of his death and described the victim’s unusual behavior
that evening (Ex. 21 at 10).
The issue raised by Petitioner in
that motion was that, had counsel “properly investigated by taking
the statements of [Andrew Hamilton, Mike George, Andrea Dimsdale,
and Piper Halliday], it is likely that counsel would have obtained
competent
admissible
evidence
concerning
21
the
behavior
and
character of the [the victim] that evening.” Id.5
Thus, the claim
raised in Petitioner's first Rule 3.850 motion involved a different
set of witnesses and is distinct from the “reputation” claim raised
in the instant petition.
Petitioner's post-conviction counsel did
attempt to raise the instant issue in his procedurally barred
amended Rule 3.850 motion.
However, the second Rule 3.850 motion
was dismissed as untimely filed (Ex. 27 at 2).
Accordingly, the
instant claim has not been exhausted.
Petitioner argues that his procedural default of this claim
is excused by Martinez v. Ryan (Doc. 22). In Martinez, the Supreme
Court held that ineffective assistance of collateral counsel in an
initial review state collateral proceeding may provide cause to
excuse the procedural default of an ineffective assistance of trial
counsel claim, if the defaulted claim is “substantial.” (Doc. 22)
The holding in Martinez is not an independent basis for overturning
a conviction, but rather an equitable rule that allows a federal
court to decide a habeas claim that was procedurally defaulted in
the initial-review state post-conviction proceeding. Id. at 1312.
5
The post-conviction court determined that the claim raised
in Petitioner's first Rule 3.850 motion was insufficiently pleaded
because he had not indicated that the witnesses were known to
counsel, or that the witnesses were available to testify (Ex. 27
at 7). The post-conviction court also addressed this claim on the
merits, concluding that, because none of the proposed witnesses
were present when the victim was killed, their testimony would not
have been relevant to the issues at trial. Id. at 8.
22
The Court concludes that Claim Three is not “substantial” so as to
merit consideration under Martinez.
It is true that “[t]o perform within constitutional bounds,
defense
counsel
must
conduct
a
reasonable
investigation
in
relation to their representation.” Borden v. Allen, 646 F.3d 785,
818 (11th Cir. 2011). However to the extent that Petitioner argues
that his counsel failed to arrange for witnesses to testify for
the defense at trial, the “mere fact that other witnesses might
have been available or that other testimony might have been
elicited from those who testified is not a sufficient ground to
prove ineffectiveness of counsel.” Chandler v. United States, 218
F.3d 1305, 1316 n. 20 (11th Cir. 2000) (en banc) (quoting Waters
v. Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995)).
complaints
“are
not
favored,
because
the
Indeed, such
presentation
of
testimonial evidence is a matter of trial strategy and because
allegations of what a witness would have testified are largely
speculative.” Buckelew v. United States, 575 F.2d 515, 521 (5th
Cir. 1978).6
Petitioner's unsupported contention that each of the
listed witnesses would have testified that the victim was an
“unpleasant alcoholic whom has frequently demonstrated violent
tendencies against persons while inebriated” fails to satisfy
6
The decisions of the former Fifth Circuit handed down before
October 1, 1981 are binding in the Eleventh Circuit. Bonner v.
City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir.1981) (en
banc).
23
Strickland’s
prejudice
prong
because
“mere
speculation
that
missing witnesses would have been helpful is insufficient to meet
the petitioner's burden of proof.” Streeter v. United States, 335
F. App’x 859, 864 (11th Cir. 2009) (citing Johnson v. Alabama, 256
F.3d 1156, 1187 (11th Cir. 2001)).
Petitioner has not attached
any sworn statements from these uncalled witnesses, and merely
speculates that they would have testified on his behalf and that
their testimony would have been favorable.
Such speculation is
“insufficient to carry the burden of a habeas corpus petitioner[.]”
Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir. 1985).
Because Petitioner has not established how he was prejudiced
within the meaning of Strickland, he has not shown that his claim
was “substantial” so as to excuse his default under Martinez.
Neither has Petitioner presented new, reliable evidence so as to
satisfy the “actually innocent” exception to a procedural bar
contemplated in Murray v. Carrier.
Accordingly, Claim Three is
dismissed as unexhausted and procedurally barred.
d.
Claim Four
Petitioner asserts that trial counsel was ineffective for
failing to object to the trial court’s decision to “eliminate a
crucial portion of the standard jury instruction on justifiable
use of deadly force[.]” (Doc. 1 at 16).
Specifically, Petitioner
argues that counsel should have insisted that the trial court read
to the jury a portion of the standard jury instruction instructing
24
that
deadly
force
was
justified
if
a
defendant
believed
it
necessary to prevent “[t]he imminent commission of (applicable
forcible) felony against (himself)(herself) or another.” (Doc. 1
at 17).
Although the omitted portion is intended to be read only
if applicable, Petitioner argues that counsel should have insisted
that aggravated assault was a forcible felony that would have
justified
inclusion
of
the
additional
instruction
and
that
omitting this portion “lessoned the burden to convict[.]” Id.
Respondents argue that this claim is procedurally defaulted
because Petitioner did not raise it in his first, properly filed,
Rule 3.850 motion (Doc. 17 at 11).
Petitioner concedes that he
did not timely raise this claim in a Rule 3.850 motion, but argues
that he timely raised an issue of ineffective assistance of
appellate
counsel
in
a
petition
for
belated
appeal,
and
accordingly, the claim is exhausted (Doc. 41 at 7). Alternatively,
Petitioner argues that his procedural default of this claim is
excused
pursuant
to
Martinez
v.
Ryan
(Doc.
22).
The
Court
concludes that this claim has not been exhausted and is now
procedurally barred.
First,
Petitioner's
ineffective
assistance
of
appellate
counsel claim did not exhaust his claim of ineffective assistance
of
trial
petition.
counsel,
which
is
the
claim
raised
in
the
instant
The United States Supreme Court has held that a habeas
petitioner's presentation of an ineffective-assistance of trial
25
counsel
claim
in
state
court
does
not
exhaust
a
claim
that
appellate counsel was ineffective -- even when the same act or
omission allegedly rendered both counsel ineffective. Baldwin v.
Reese,
541
U.S.
27,
29
(2004).
This
holding
applies
here.
Accordingly, Petitioner's state petition in which he argued that
appellate counsel was ineffective for failing to raise a claim of
fundamental error on direct appeal (Ex. 16) did not exhaust the
instant claim that trial counsel was ineffective for failing to
present that same issue to the trial court.
Likewise, Petitioner’s Martinez argument does not excuse
Petitioner's failure to exhaust.
portion
of
the
transcript
in
After reviewing the relevant
which
the
issue
of
this
jury
instruction was discussed, the Court concludes that the claim is
not “substantial.” Martinez, 132 S. Ct. at 1318-20.
During the charge conference, defense counsel notified the
trial judge that he wished for a condensed portion of the standard
instruction regarding the justifiable use of deadly force to be
read to the jury (T. at 602).
The full Florida instruction
regarding the justifiable use of deadly force reads:
The use of deadly force is justifiable only if
the defendant reasonably believes that the
force is necessary to prevent imminent death
or great bodily harm to himself while
resisting
1. another’s attempt to murder him,
26
2. any attempt to commit (applicable
felony) upon him, or
3. any attempt to commit (applicable
felony) upon or in any dwelling,
residence, or vehicle occupied by
him.
Fla. St. J. I. § 3.6(f).
Defense counsel argued to the court that
Petitioner's testimony had not established any “applicable felony”
to justify the use of the instructions contained in numbers one
through three of the standard instruction (T. at 605).
consequence,
asserted
defense
counsel,
those
portions
As a
of
the
instruction needed to be omitted from the jury charge because “a
person is justifiable using force likely to cause death or great
bodily harm if he reasonably believes that such force is necessary
to prevent the imminent death or great bodily harm to himself or
another.” (T. at 604-05).
Although the State countered that
Petitioner's testimony had “arguably” established an aggravated
assault (so as to warrant reading the full instruction), the Court
agreed with defense counsel and stated that an instruction stating
that a defendant is justified in using deadly force if he faced
“imminent or great bodily harm to himself or another” would be
sufficient (T. at 605).
Petitioner now argues that omitting the additional language
regarding aggravated assault lessened the burden of proof needed
for a conviction (Doc. 41 at 9).
The Court does not agree.
its charge to the jury, the trial court instructed that:
27
In
An issue in this case is whether the defendant
acted in self-defense. It is a defense to the
offense with which David Joseph Au is charged
if the death of Michael Pontius resulted from
the justifiable use of force likely to cause
death or great bodily harm.
A person is justified in using force likely to
cause death or great bodily harm if he
reasonably believes that such force is
necessary to prevent imminent death or great
bodily harm to himself or another.
In
deciding
whether
the
defendant
was
justified in the use of force likely to cause
death or great bodily harm, you must judge him
by the circumstances by which he was
surrounded at the time the force was used.
The danger facing the defendant need not have
been actual; however, to justify the use of
force likely to cause death or great bodily
harm, the appearance of danger must have been
so real that a reasonably cautious and prudent
person under the same circumstances would have
believed that the danger could be avoided only
through the use of that force.
Based on
appearances, the defendant must have actually
believed the danger was real.
(T.
at
678-79).
“aggravated
The
assault”
trial
from
court’s
the
omission
instruction
did
of
not
the
words
increase
Plaintiff's burden to show the justifiable use of deadly force.
Petitioner had testified as to the victim’s actions prior to the
shooting, and the trial court clearly instructed the jury that it
must consider the circumstances Petitioner faced at the time deadly
force was used against the victim.
Jurors are presumed to follow
the law as they are instructed. Raulerson v. Wainwright, 753 F.2d
869, 876 (11th Cir. 1985).
Therefore, the trial court’s failure
to provide a specific name for the alleged actions of the victim
28
would not have affected the jurors’ consideration of Petitioner's
claim of self-defense.
Petitioner cannot show prejudice from the
omission of this portion of the jury instruction.
Likewise, it was not objectively unreasonable for counsel to
conclude that the additional instructions were unnecessary and to
request a much shorter instruction.
See Strickland, 466 U.S. at
688 (in order to establish deficient performance, a defendant must
show that his counsel’s conduct fell below an objective standard
of reasonableness).
As noted, Petitioner testified at trial about
the victim’s behavior prior to the shooting (T. at 525-600).
Petitioner, who had offered the victim a ride home, testified that
the victim refused to provide him with his address and, after
Petitioner stopped at his own home and retrieved a gun, the victim
just began “flipping out.”
State
noted,
the
actions
(T. at 565-36, 540).
of
the
victim
Although, as the
could
“arguably”
be
considered an aggravated assault, it was not unreasonable for
defense counsel to seek to expand the categories of behavior that
could justify the use of deadly force.
Accordingly, Petitioner
has not satisfied either prong of the Strickland analysis.
This claim is not substantial, and Martinez does not overcome
the procedural bar. Neither has Petitioner presented new, reliable
evidence so as to satisfy the “actually innocent” exception to a
procedural bar contemplated in Murray v. Carrier.
Accordingly,
Claim Four is dismissed as unexhausted and procedurally barred.
29
d.
Claim Five
Petitioner asserts that the cumulative effects of his trial
counsel’s ineffective assistance justify vacating his conviction
and sentence (Doc. 1 at 20-21).
In Morris v. Sec’y, Dept. of
Corr., 677 F.3d 117, 1132 (11th Cir. 2012), the Eleventh Circuit
recognized that “[t]he cumulative error doctrine provides that an
aggregation of non-reversible errors (i.e., plain errors failing
to necessitate reversal and harmless errors) can yield a denial of
the
constitutional
right
to
a
fair
trial,
which
calls
for
reversal.” Id. at 1132 (quoting United States v. Baker, 432 F.3d
1189, 1223 (11th Cir. 2005)).
The court noted, however, that a
cumulative error claim must fail when none of the petitioner’s
individual claims of error have merit.
Id.
This Court has addressed each of Petitioner’s claims and found
no individual errors. Accordingly, no cumulative errors can exist,
and Claim Five is denied. See Mullen v. Blackburn, 808 F.2d 1143,
1147 (5th Cir. 1987)(Petitioner could not obtain habeas relief
through aggregation of individual meritless claims he had averred;
twenty times zero is zero); Moore v. Reynolds, 153 F.3d 1086, 1113
(10th Cir. 1998) (“Cumulative error analysis applies where there
are two or more actual errors; it does not apply to the cumulative
effect of non-errors.”).
Any of Petitioner's allegations not specifically addressed
herein have been found to be without merit.
30
IV.
Certificate of Appealability
Petitioner is not entitled to a certificate of appealability.
A
prisoner
seeking
a
writ
of
habeas
corpus
has
no
absolute
entitlement to appeal a district court's denial of his petition.
28 U.S.C. § 2253(c)(1).
Rather, a district court must first issue
a certificate of appealability (“COA”).
“A [COA] may issue . . .
only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such
a showing, Petitioner must demonstrate that “reasonable jurists
would find the district court's assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or
that “the issues presented were ‘adequate to deserve encouragement
to proceed further’”, Miller–El, 537 U.S. at 335–36. Petitioner
has not made the requisite showing in these circumstances.
Because
Petitioner
is
not
entitled
to
a
certificate
of
appealability, he is not entitled to appeal in forma pauperis.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.
Claims One, Two and Five of the Petition for Writ of
Habeas Corpus filed by David Joseph Au are DENIED.
Claims Three
and Four are DISMISSED as unexhausted and procedurally barred.
2.
Petitioner is DENIED a Certificate of Appealability and
leave to proceed in forma pauperis on appeal.
31
3.
The Clerk of the Court is directed to terminate all
pending motions, enter judgment accordingly, and close this case.
DONE AND ORDERED at Fort Myers, Florida, this
March, 2014.
SA: OrlP-4 3/4/14
Copies to: David Joseph Au
Counsel of Record
32
4th
day of
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?