Barnes v. Secretary, DOC et al
Filing
19
OPINION AND ORDER dismissing the Florida Attorney General as a named respondent; denying 1 Petition for writ of habeas corpus. The Clerk shall terminate any pending motions, 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 8/19/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES R. BARNES,
Petitioner,
v.
Case No:2:11-cv-362-FtM29CM
SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents.
/
OPINION AND ORDER
I.
Petitioner
James
R.
Background
Barnes
initiated
this
action,
with
counsel, by filing a Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 (Doc. #1, Petition) and supporting memorandum
of law (Doc. #2, Memorandum) challenging his June 21, 2002 judgment
of conviction after a jury trial of carjacking and giving a false
name entered in the Twentieth Judicial Circuit Court, Lee County,
Florida (case number 01-CF-3298A).
The instant Petition raises one ground for relief: whether
defense counsel rendered ineffective assistance of counsel by
failing to sufficiently investigate and present a defense that the
offense was in fact a drug deal that went awry, not an attempted
carjacking.
Petition at 5.
Respondent 1 filed a Response opposing the Petition (Doc. #12,
Response) and attached supporting exhibits (Doc. #13, Resp. Exhs.
001-046)
consisting
of
postconviction pleadings. 2
the
record
on
direct
appeal
and
Respondent argues that the Petition
fails to satisfy 28 U.S.C. § 2254 (d).
Petitioner filed a Reply
(Doc. #14, Reply) and attached as an exhibit (Doc. #15, Pet. Exh.
A) a copy of the trial transcript.
This matter is ripe for review.
1Petitioner
names the Florida Attorney General, and Secretary
Department of Corrections as Respondents. Petition at 1. Rule
2(a) of the Rules Governing Section 2254 Cases in United States
District Courts (hereinafter the “Rules”) provides that applicants
in “present custody” seeking habeas relief should name “the state
officer having custody of the applicant as respondent.”
The
Supreme Court has made clear that there “is generally only one
proper respondent to a given prisoner’s habeas petition.”
Rumsfield v. Padilla, 542 U.S. 426, 435 (2004).
This is “‘the
person with the ability to produce the prisoner’s body before the
habeas court.’”
Id. at 435-436.
When the petitioner is
incarcerated and challenges his present physical confinement “the
proper respondent is the warden of the facility where the prisoner
is being held, not the attorney general or some other remote
supervisory official.” Id. at 436 (citations to other authorities
omitted). Alternatively, the chief officer in charge of the state
penal institution is also recognized as the proper named
respondent. Rule 2(a), Sanders v. Bennet, 148 F.2d 19 (D.C. Cir.
1945). In Florida, the proper Respondent in this action is the
Secretary of the Florida Department of Corrections.
Thus, the
Florida Attorney General will be dismissed from this action.
2Respondent
concedes that the Petition is timely filed, see
Response at 9-10, and does not raise any exhaustion or procedural
default concerns.
See id.
The Court agrees the Petition is
timely filed, and exhausted to the extent Petitioner raised the
claim as Ground A in his Rule 3.850 motion, Resp. Exh. 40, and
appealed the adverse result thereafter, Resp. Exh. 41. The Court
will proceed to analyze the claim under § 2254(d).
-2-
II.
A.
Applicable § 2254 Law
Deferential Review Required By AEDPA
Petitioner filed his Petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214 (1996).
See
Abdul-Kabir v.
Quarterman, 550 U.S. 233, 246 (2007); Penry v. Johnson, 532 U.S.
782,
792
action.
Davis
(2001).
Consequently,
post-AEDPA
law
governs
this
Abdul-Kabir, 550 U.S. at 246; Penry, 532 U.S. at 792;
v.
Jones,
506
F.3d
1325,
1331,
n.9
(11th
Cir.
2007).
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, 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).
to meet.
This standard is both mandatory and difficult
White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
A state
court’s summary rejection of a claim, even without explanation,
qualifies
deference.
as
an
adjudication
on
the
merits
which
warrants
Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir.
2008).
-3-
“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.
White, 134 S. Ct. at 1702; 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.
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
-4-
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.
Petitioner must show
that the state court's ruling was “so lacking in justification
that
there
was
an
error
well
understood
and
comprehended
in
existing law beyond any possibility for fairminded disagreement.”
White, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S.
___, 131 S. Ct. 770, 786–787 (2011)).
Finally,
the
Supreme
Court
has
stated
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., Burt v. Titlow, 134 S. Ct. 10, 1516 (2013); 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 was unreasonable or that
the
factual
premise
was
incorrect
evidence”).
-5-
by
clear
and
convincing
B.
Ineffective Assistance of Counsel
Ineffective assistance of counsel claims are reviewed under
the standards established by 28 U.S.C. § 2254(d).
Hall, 527 F.3d 1162, 1183 (11th Cir. 2008).
Newland v.
Post-AEDPA, the
standard set forth in Strickland v. Washington, 466 U.S. 668
(1984), remains applicable to the claims of ineffective assistance
of counsel raised in this case.
Newland, 527 F.3d at 1184.
In
Strickland, the Supreme Court established a two-part test to
determine whether a convicted person is entitled to habeas relief
on
the
grounds
that
his
or
her
counsel
rendered
ineffective
assistance: (1) whether counsel’s representation was deficient,
i.e., “fell below an objective standard of reasonableness” “under
prevailing professional norms,” which requires a showing that
“counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”;
and
(2)
whether
the
deficient
performance
prejudiced
the
defendant, i.e., there was a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different, which “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 688;
see also Bobby v. Van Hook, 558 U.S. 4, 8 (2009); Cullen v.
Pinholster, 131 S. Ct. at 1403 (2011).
-6-
States may “impose whatever specific rules . . . to ensure
that criminal defendants are well represented,” but “the Federal
Constitution imposes one general requirement: that counsel make
objectively reasonable choices.”
Bobby Van Hook, 558 U.S. at 9
(internal quotations and citations omitted).
It is petitioner
who bears the heavy burden to “prove, by a preponderance of the
evidence, that counsel’s performance was unreasonable.”
Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006).
Jones v.
A court must
“judge the reasonableness of counsel’s conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct,” Roe
v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland,
466 U.S. at 690), applying a “highly deferential” level of judicial
scrutiny.
Id.
A court must adhere to a strong presumption that
“counsel’s conduct falls within the wide range of reasonable
professional assistance.”
Strickland, 466 U.S. at 689. “To state
the obvious: the trial lawyers, in every case, could have done
something
more
or
something
different.
So,
omissions
are
inevitable.
But, the issue is not what is possible or ‘what is
prudent
appropriate,
or
compelled.’”
but
only
what
is
constitutionally
Chandler v. United States, 218 F.3d 1305, 1313 (11th
Cir. 2000)(quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).
“Establishing that a state court’s application of Strickland
was unreasonable under § 2254(d) is all the more difficult.”
Mendoza v. Sec’y, Fla. Dep’t of Corr., ____ F.3d _____, 2014 WL
-7-
3747685, *20 (11th Cir. July 31, 2014)(quoting Richter, 131 S. Ct.
at 788).
“Where the highly deferential standards mandated by
Strickland and AEDPA both apply, they combine to produce a doubly
deferential form of review that asks only whether there is any
reasonable
argument
deferential standard.”
that
counsel
satisfied
Id. (quoting Downs v. Sec’y, Fla. Dep’t
of Corr., 738 F.3d 240, 258 (11th Cir. 2013)).
not
whether
a
Strickland’s
federal
court
believes
the
“The question is
state
court’s
determination under the Strickland standard was incorrect but
whether that determination was unreasonable—a substantially higher
threshold.”
“any
Id. (citing Knowles, 556 U.S. at 123).
reasonable
argument
that
counsel
satisfied
If there is
Strickland’s
deferential standard,” then a federal court may not disturb a state
court decision denying the claim.
Id. (citing Richter, 131 S. Ct.
at 788).
III.
Findings of Fact and Conclusions of Law
This Court has carefully reviewed the record and, for the
reasons set forth below, concludes no evidentiary proceedings are
required in this Court.
Schriro v. Landrigan, 550 U.S. 465, 127
S. Ct. 1933, 1939-40 (2007).
Petitioner does not proffer any
evidence that would require an evidentiary hearing, Chandler v.
McDonough, 471 F.3d 1360 (11th Cir. 2006), and the Court finds
that the pertinent facts of the case are fully developed in the
record before the Court.
Schriro, 550 U.S. at 474; Turner v.
-8-
Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541
U.S. 1034 (2004).
Petitioner argues that trial counsel rendered ineffective
assistance
of
counsel
when
counsel
failed
to
sufficiently
investigate and present a defense that the offense was in fact a
drug deal that went awry, not an attempted carjacking.
at 5.
Petition
Petitioner argues that he told his defense attorney that
the incident was not an attempted carjacking, but instead an
altercation over a botched drug deal.
Id.
Petitioner further
argues that he told his defense attorney that when he was arrested,
Deputy
Bushong
seized
pills
from
him.
Id.
The
fact
that
Petitioner had pills on him supported this theory of defense.
Defense counsel, however, neither further developed the issue
concerning the pills found on Petitioner, nor articulated the
theory of the defense that the episode was really a drug deal gone
awry.
Id.
In
Response,
Respondent
refers
the
Court
to
the
postconviction court’s order denying Petitioner relief on this
claim (raised as Claim A in the Rule 3.850 motion).
13.
Respondent
argues
that
Petitioner
cannot
Response at
establish
the
deficiency prong of Strickland because there was no reason for
defense counsel to investigate any alleged drug deal because the
seized
pills
Further,
were
assuming
not
a
arguendo
controlled
Petitioner
-9-
substance.
could
Id.
establish
at
14.
defense
counsel’s deficient performance, Respondent argues Petitioner has
not
established
the
prejudice
prong
of
Strickland
because
Petitioner cannot show that the outcome of the case would have
been any different had defense counsel used the drug deal theory
of defense because other evidence was introduced that supported
Petitioner’s carjacking conviction.
Id. at 15.
In Reply, Petitioner argues that the postconviction court’s
decision was unreasonable because no report was ever introduced
into evidence concerning the test results of the pills during the
Richardson hearing.
Reply at 6.
Instead, the postconviction
court relied on the prosecutor’s hearsay statement during the
hearing.
Id.
Petitioner points to other problems that existed
with the collection of the pills.
The
Court
finds
Id. at 7.
Petitioner
has
not
shown
that
the
postconviction court’s decision was contrary to or resulted in an
unreasonable application of Strickland; or resulted in a decision
that was based on an unreasonable determination of the facts in
light of the evidence. In denying Petitioner’s Rule 3.850 claim,
the postconviction court found as follows:
The State indicated that the FDLE test results
showed that the pills were not a controlled
substance.
This
refutes
Defendant’s
contention that the pills were Valium.
Mr.
Underwood testified that he was driving behind
the victim’s car, and saw the two passengers
beating the victim, who was driving, and
attempt to force him out of the vehicle. Mr.
Beckler, the victim, testified that he offered
to give Defendant and his co-defendant a ride
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to a hotel because their van broke down, that
Defendant threatened to shoot him if he did
not get out of the car, Defendant pushed him
out of the vehicle, and that the men beat him
when he fought to get his keys.
Both
Defendant and the co-defendant gave statements
at the scene in which they stated the victim
“wigged out” on them and started swinging at
them and threatening them for no reason.
Notably, neither Defendant nor co-defendant
mentioned a drug deal gone bad in their
statements.
Rather, their statements
resemble the victim’s testimony up until the
point where they indicate the victim attacked
them for no reason while he was driving them
to a hotel. Detective Bushong testified that
it would have made no difference as far as the
carjacking statute if there were drugs
involved, and evidence of drugs would not have
cast doubt on the victim’s story.
Further,
even
if
counsel
was
somehow
deficient,
Defendant
cannot
establish
prejudice. Even if the pills were in evidence
to support the drug deal gone bad story
Defendant
now
maintains,
there
is
no
reasonable probability of a different outcome,
since there was sufficient other evidence, as
stated above, for the jury to find Defendant
and the co-defendant threatened the victim,
beat him, and attempted to force him out of
his vehicle. Defendant failed to allege any
facts that, if true, satisfied either prong of
Strickland.
Resp. Exh. 040.
The postconviction court’s order addressed both prongs of the
Strickland test.
First, the postconviction court found defense
counsel’s actions-- failure to further develop information about
the pills and tangentially the drug deal gone awry line of defense-
did
not
constitute
deficient
performance
based
on
the
representation of the prosecution that an FDLE report confirmed
- 11 -
that the pills found on Petitioner were not Valium.
Petitioner
argues that the postconviction court’s decision was unreasonable
because no report concerning the outcome of the FDLE test on the
pills
was
ever
postconviction
prejudice
introduced
court
because
found
there
was
into
evidence.
Petitioner
Second,
could
sufficient
not
evidence
the
establish
to
support
Petitioner’s conviction for carjacking based on testimony from the
victim, a witness to the incident that called police, and the
responding police officers.
The
postconviction
court’s
determination
performance was not unreasonable.
as
to
deficient
Defense counsel did not develop
the drug deal gone awry theory of defense.
Defense counsel instead
opted for a defense strategy that coincided with the recorded
statements both Petitioner and his co-defendant voluntarily gave
authorities,
which
were
introduced
at
trial. 3
The
strategic
3As
summarized in Petitioner’s memoranda: Petitioner said he
was going to Key West with a man named Larry Koonce. (T. 209201.) Petitioner and Koonce’s van broke down on Exit 25 or Exit
26. (T. 210.) They left the van at a RaceTrac and got a hotel
room at the Tides Motel the night before. (T. 210.) Petitioner
said that he went to a strip club near the hotel and when he came
back, all of his clothes and “all that type of stuff” was gone
from the hotel room. (T. 210.) Petitioner said that Koonce called
a colleague from pharmacy school. (T. 210.) Petitioner said that
he and Koonce met Mr. Burns earlier in the day (T. 210).
Petitioner said that he and Burns split up with Koonce earlier in
the day and couldn’t get back in contact with him. As a result,
they went back to the van to wait for Koonce. (T. 210.)
Petitioner said that he asked “this kid (the victim-Beckler)
to give him a ride to the van at RaceTrac (T. 212.) Petitioner
further said that when they arrived at the van, the window was
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choices
made
by
constitutionally
defense
adequate
counsel
given
the
were
reasonable
circumstances.
and
Defense
counsel was aware of the recorded statements from Petitioner and
his co-defendant.
These recorded statements, i.e. the victim
started hitting Petitioner and the co-defendant for no reason while
driving them to the hotel, were inconsistent with the proposed
theory of defense sub judice that the offense was really a drug
deal gone awry.
See generally Johnson v. Alabama, 256 F.3d 1156,
1178 (11th Cir. 2011).
Nevertheless, the Court need not address the performance
prong when a petitioner has not shown the requisite prejudice under
Strickland.
Wright v. Sec’y Fla. Dep’t of Corr., ____ F.3d _____,
2014 WL 3809389, *22 (11th Cir. Aug. 4, 2014)(citing Bishop v.
Warden, GDCP, 726 F.3d 1243, 1254 (11th Cir. 2013)(“[A] court need
not determine whether counsel’s performance was deficient before
smashed out and things were missing from the van. (T. 212.).
Petitioner said that he then asked the victim to give him a ride
to a motel where he could get a room.
(T. 212-213.)
At that
point, Petitioner said that Beckler “just wigged out, started
swinging on me.” (T. 213.) Petitioner denied trying to take the
victim’s vehicle from him. (T. 214.)
Ronald Burns’ (the co-defendant) statement was also played to
the jury. Burns said that he was at the RaceTrac at Exit 26 of
Interstate 75. (T 220.) Burns said that he window of the van was
broken out. (T. 220.)
The victim gave Burns and Petitioner a
ride. The victim was supposed to be taking them to a hotel. (T.
220.) Burns said that as they were driving, the victim started
“wigging out on [Petitioner] and me.” Burns said that the victim
started throwing punches at Petitioner and him. (T. 220.)
Memoranda at 16-17.
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examining the prejudice suffered by the defendant as a result of
the alleged deficiencies.” (quotation marks omitted), petition for
cert. filed, No. 13-1345 (U.S. Mar. 3, 2014); Ward v. Hall, 592
F.3d 1144, 1163 (11th Cir. 2010)(“[A] court need not address the
performance prong if the petitioner cannot meet the prejudice
prong…”)).
As set forth above, to find prejudice, the Court would
have to determine that there was a reasonable probability that,
but
for
counsel’s
unprofessional
errors,
proceeding would have been different.
the
result
of
the
This requires showing that
counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.
The
result
of
the
trial
was
reliable
because
there
was
sufficient evidence introduced to support the carjacking and false
name convictions.
A witness, who was driving behind the vehicle
on his return from training at a fire station, testified that he
called 911 because “all hell broke loose inside the car” in front
of him.
Exh. 46 at 32.
The witness testified that the driver got
thrown out of the car on his back.
Id.
After officers arrived,
the witness saw the driver of the car had a bloodied mouth.
at 38.
Id.
The witness identified Petitioner as one of the two people
who were in the car beating the driver.
Id. at 39.
The victim testified that Petitioner and the co-defendant
approached him at the RaceTrac gas station and asked for a ride to
their vehicle that was broken down. Id. at 53.
- 14 -
The victim agreed
to help them.
Id.
During the ride, Petitioner put the gear shift
into park, turned off the ignition, and pushed him out of the car
at Hart Road and Bayshore.
Id. at 51-69.
The victim testified
that Petitioner told him, “I’m going to shoot you if you don’t get
out.”
Id.
When the victim saw there was no gum, he fought his
way back into the car.
control
of
his
Id.
vehicle,
While the victim was trying to regain
co-defendant
Burns,
who
was
in
the
backseat, hit the victim over the head with a beer bottle and
caused injury to the victim’s lips.
Id.
In light of the evidence,
it was reasonable for the postconviction court to determine that
the outcome of trial would not have been different had counsel
raised this alternative defense theory.
ACCORDINGLY, it is hereby
ORDERED:
1.
The Florida Attorney General is DISMISSED as a named
Respondent.
2.
The Petition for Writ of Habeas Corpus is DENIED for the
reasons discussed herein.
3.
The Clerk of Court shall terminate any pending motions,
enter judgment accordingly, and close this case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
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IT IS FURTHER ORDERED that 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 .
Id.
“A
certificate
of
appealability
may
issue
only
if
the
applicant has made a substantial showing of the denial of a
constitutional right.”
showing,
petitioner
Id. at § 2253(c)(2).
“must
demonstrate
that
To make such a
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 v. Cockrell, 537 U.S. 322, 335-36
(2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
The issues raised by Petitioner do not satisfy these standards.
Further, because Petitioner is not entitled to a certificate of
appealability, he is not entitled to proceed in forma pauperis on
appeal.
DONE and ORDERED in Fort Myers, Florida on this
of August, 2014.
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19th
day
SA: alr
Copies: All Parties of Record
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