Jennings v. Secretary, Department of Corrections, et al
Filing
69
OPINION AND ORDER re: 61 Amended petition for writ of habeas corpus is denied. Petitioner is DENIED a certificate of appealability. The Clerk of the Court is ORDERED to terminate any pending motions, enter judgment, and close this case. Signed by Judge Sheri Polster Chappell on 12/1/2020. (SLU)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRANDY BAIN JENNINGS,
Petitioner,
v.
Case No.: 2:13-cv-751-FtM-38MRM
SECRETARY, DEPARTMENT
OF CORRECTIONS and
ATTORNEY GENERAL, STATE
OF FLORIDA,
Respondents.
/
OPINION AND ORDER1
Before the Court is Petitioner Brandy Bain Jennings’ Amended Petition
for Writ of Habeas Corpus Under 28 U.S.C. § 2254. (Doc. 61). Jennings,
through counsel, challenges his 1996 convictions for three counts of murder
and one count of robbery, for which he was sentenced to death by the Twentieth
Judicial Circuit Court, in and for Collier County, sitting in Pinellas County,
Florida.2 He raises the following grounds for relief: (1) Jennings was denied
effective assistance of counsel at the penalty phase in violation of the Sixth,
1
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2
Jennings’ trial was conducted in Pinellas County pursuant to an order granting a
change of venue.
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Eighth, and Fourteenth Amendments; (2) Jennings’ convictions and sentences
are materially unreliable because trial counsel was ineffective for failing to
adequately impeach the prejudicial testimony of Angela Cheney; (3) the
postconviction court erred in summarily denying several claims in violation of
the Fifth, Sixth, Eighth, and Fourteenth Amendments; (4) the trial court
should have suppressed Jennings’ statements to law enforcement authorities
and all evidence derived from it, as the statements were obtained in violation
of his right to counsel; and (5) Jennings’ death sentence violates the Sixth and
Eighth Amendments and due process because a jury did not make the findings
of fact necessary to render him eligible for a death sentence. (Id.).
Respondents filed an amended response (Doc. 66), and Jennings filed a
reply (Doc. 67).
I. Timeliness and Evidentiary Hearing
Respondent concedes the Petition is timely filed. (Doc. 66 at 39-40). The
Court agrees.
Jennings asks for an evidentiary hearing on each of his claims. (Doc. 61
at 27). In support, he claims, “The state court evidentiary development was
limited in fundamental ways and inadequate.” (Id. at 38). Respondent argues
Jennings does not carry his burden of establishing his entitlement to an
evidentiary hearing. (Doc. 66 at 46-47).
2
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A federal court “must limit its review under § 2254(d) to the state court’s
record.” Brannon v. Sec'y, Fla. Dep't of Corr., No. 19-13757, 2020 WL 2188675,
at *5 (11th Cir. May 6, 2020) (finding district court erred in granting
evidentiary hearing and considering evidence not before the state court).
“An evidentiary hearing is
unnecessary
unless
it
would
“enable
[a
postconviction petitioner] to prove the petition’s factual allegations, which, if
true, would entitle [him] to federal habeas relief.” Samuels v. Sec'y, Dep't of
Corr., No. 19-13445, 2020 WL 2097260, at *1 (11th Cir. May 1, 2020) (quoting
Crowe v. Hall, 490 F.3d 840, 847 (11th Cir. 2007)). “[T]he burden is on the
petitioner to establish the need for an evidentiary hearing.” Jones v. Sec’y, Fla.
Dep’t of Corr., 834 F.3d 1299, 1318 (11th Cir. 2016) (citations omitted), cert.
denied, __ U.S. __, 137 S. Ct. 2245 (2017). Conclusory allegations will not
suffice. Instead, a petitioner must proffer specific facts and evidence, which, if
true, would prove an entitlement to relief. Id. at 1319.
Jennings has set forth no specific facts or evidence which warrant an
evidentiary hearing. As discussed infra, Jennings does not establish that the
state court erred in summarily denying certain claims. The Court finds an
evidentiary hearing is not warranted because the material facts are developed
in the record. Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if the record
refutes the factual allegations in the petition or otherwise precludes habeas
relief, a district court need not hold an evidentiary hearing); see also Jones, 834
3
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F.3d at 1318-19.
Jennings has not demonstrated he is entitled to an
evidentiary hearing, 28 U.S.C. § 2254(e)(2), and therefore his request for an
evidentiary hearing is denied.
II. Factual and Procedural Background
A. Trial and Sentence
On December 20, 1995, a grand jury returned indictments charging
Jennings and Charles Jason Graves with three counts of premeditated murder
and one count of robbery. (Direct Appeal Record (DA) at 20-21). Tom Osteen
and Adam Sapenoff from the Office of the Public Defender represented
Jennings.
Graves was represented by private counsel.
Jennings filed a
pretrial motion to suppress statements made to law enforcement (DA at 152)
and motion for change of venue (DA at 108).
The circuit court denied the
motion to suppress (DA at 170) but granted a change of venue (DA at 140).
Jennings’ trial started on October 28, 1996 in Pinellas County, Florida.
On October 31, 1996, the jury found Jennings guilty of murdering Dorothy
Siddle, Vicki Smith, and Jason Wiggins during the robbery of a Cracker Barrel
restaurant in Naples, Florida.
(Trial Transcript (TT) at 835). The penalty
phase proceeding was held the next day.
The jury, by a vote of 10-2,
recommended the death penalty for each murder count.
Transcript at 163).
(Penalty Phase
The trial court, following the jury’s recommendation,
sentenced Jennings to death (DA at 790).
4
The Florida Supreme Court
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accurately summarized the underlying facts presented at trial in Jennings’
direct appeal:
Dorothy Siddle, Vicki Smith, and Jason Wiggins, all of whom
worked at the Cracker Barrel Restaurant in Naples, were killed
during an early morning robbery of the restaurant on November
15, 1995. Upon arriving on the scene, police found the bodies of all
three victims lying in pools of blood on the freezer floor with their
throats slashed. Victim Siddle's hands were bound behind her back
with electrical tape; Smith and Wiggins both had electrical tape
around their respective left wrists, but the tape appeared to have
come loose from their right wrists.
Police also found bloody shoe prints leading from the freezer,
through the kitchen, and into the office, blood spots in and around
the kitchen sink, and an opened office safe surrounded by plastic
containers and cash. Outside, leading away from the back of the
restaurant, police found scattered bills and coins, shoe tracks, a
Buck knife, a Buck knife case, a pair of blood-stained gloves, and a
Daisy air pistol.
Jennings (age twenty-six) and Jason Graves (age eighteen), both
of whom had previously worked at the Cracker Barrel and knew
the victims, were apprehended and jailed approximately three
weeks later in Las Vegas, Nevada, where Jennings ultimately
made lengthy statements to Florida law enforcement personnel. In
a taped interview, Jennings blamed the murders on Graves, but
admitted his (Jennings') involvement in planning and, after
several aborted attempts, actually perpetrating the robbery with
Graves. Jennings acknowledged wearing gloves during the robbery
and using his Buck knife in taping the victims' hands, but claimed
that, after doing so, he must have set the Buck knife down
somewhere and did not remember seeing it again. Jennings
further stated that he saw the dead bodies in the freezer and that
his foot slipped in some blood, but that he did not remember
falling, getting blood on his clothes or hands, or washing his hands
in the kitchen sink. Jennings also stated that the Daisy air pistol
belonged to Graves, and directed police to a canal where he and
Graves had thrown other evidence of the crime.
5
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In an untaped interview the next day, during which he was
confronted with inconsistencies in his story and the evidence
against him, Jennings stated, "I think I could have been the killer.
In my mind I think I could have killed them, but in my heart I
don't think I could have."
At trial, the taped interview was played for the jury, and one of the
officers testified regarding Jennings' untaped statements made
the next day. The items ultimately recovered from the canal were
also entered into evidence.
The medical examiner, who performed autopsies on the victims,
testified that they died from "sharp force injuries" to the neck
caused by "a sharp-bladed instrument with a very strong blade,"
like the Buck knife found at the crime scene. A forensic serologist
testified that traces of blood were found on the Buck knife, the
Buck knife case, the area around the sink, and one of the gloves
recovered from the crime scene, but in an amount insufficient for
further analysis. An impressions expert testified that Jennings'
tennis shoes recovered from the canal matched the bloody shoe
prints inside the restaurant as well as some of the shoe prints from
the outside tracks leading away from the restaurant.
The State also presented testimony concerning previous
statements made by Jennings regarding robbery and witness
elimination in general. Specifically, Angela [Cheney], who had
been a friend of Jennings', testified that about two years before the
crimes Jennings said that if he ever needed any money he could
always rob someplace or somebody. [Cheney] further testified that
when she responded, "That's stupid. You could get caught,"
Jennings replied, while making a motion across his throat, "Not if
you don't leave any witnesses." On cross-examination, [Cheney]
further testified that Jennings had "made statements similar to
that several times."
The State also presented testimony concerning previous
statements made by Jennings regarding his dislike of victim
Siddle. Specifically, Bob Evans, one of the managers at Cracker
Barrel, testified that Jennings perceived Siddle to be holding him
back at work and that, just after Jennings quit, he said about
Siddle, "I hate her. I even hate the sound of her voice." Donna
6
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Howell, who also worked at Cracker Barrel, similarly testified that
she was aware of Jennings' animosity and dislike of Siddle, and
that Jennings had once said about Siddle, "I can't stand the bitch.
I can't stand the sound of her voice."
The jury found Jennings guilty as charged. In the penalty phase,
the defense presented mitigation evidence, including general
character testimony from witness Mary Hamler, who testified on
direct examination that she had lived with Jennings for two and
one-half years. She also testified that Jennings had gotten along
well with her children during that time, and that he cried when
they (Jennings and Hamler) broke up.
On cross-examination, the State elicited testimony from Hamler
that there was another side to Jennings' character and that
Jennings once said that if he ever committed a robbery, he would
not be stupid enough to stick around, but would go north. Hamler
further testified on cross-examination that Jennings was angry at
Cracker Barrel in general, and Siddle in particular, for "jerking
him around" and holding him back at work, and that in this regard
Jennings once said of Siddle that "one day she would get hers."
The defense presented further character evidence from several of
Jennings' friends that he was good with children, got along with
everybody, and was basically a nonviolent, big-brother type who
was happy-go-lucky, fun-loving, playful, laid back, and likeable.
Jennings' mother testified that her son never met his father and
that she raised Jennings herself. She claimed that Jennings had
been a straight-A student, but quit school to take care of her when
she became sick.
The jury recommended death by a vote of ten to two as to each of
the murders. In its sentencing order, the trial court found three
aggravators: (1) that the murders were committed during a
robbery; (2) that they were committed to avoid arrest; and (3) that
they were cold, calculated, and premeditated (CCP).
The trial court found only one statutory mitigator: that Jennings
had no significant history of prior criminal activity (some weight).
The trial court explicitly found that two urged statutory mitigators
did not exist: that Jennings was an accomplice in a capital felony
7
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committed by another and that his participation was relatively
minor; and that Jennings acted under extreme duress or under the
substantial domination of another person. The trial court also
found eight nonstatutory mitigators: (1) that Jennings had a
deprived childhood (some weight); (2) that accomplice Graves was
not sentenced to death (some weight); (3) that Jennings cooperated
with police (substantial weight); (4) that he had a good
employment history (little weight); (5) that he had a loving
relationship with his mother (little weight); (6) that he had positive
personality traits enabling the formation of strong, caring
relationships (some weight); (7) that he had the capacity to care for
and be mutually loved by children (some weight); and (8) that he
exhibited exemplary courtroom behavior (little weight).
After evaluating the aggravators and mitigators, the trial court
sentenced Jennings to death for each murder. The trial court also
sentenced Jennings to fifteen years' imprisonment for the robbery.
Jennings v. State, 718 So.2d 144, 145-47 (Fla. 1998) (footnotes omitted). The
Florida Supreme Court affirmed the conviction and sentence on direct appeal.
Jennings v. State, 718 So. 2d 144 (Fla. 1998).
Jennings unsuccessfully
petitioned the United States Supreme Court for a writ of certiorari. Jennings
v. Florida, 527 U.S. 1042 (1999).
B.
State Post-Conviction Proceedings
Jennings raised twenty-five postconviction claims in state court. (PostConviction Appeal Record (PCA) at 2289-2400).
The postconviction court
granted an evidentiary hearing on five ineffective-assistance claims and
summarily dismissed the rest.
(PCA 2549-2570).
Over several days, the
postconviction court heard testimony from eleven witnesses: trial attorney
Thomas Osteen, mental health experts Dr. Thomas Hyde, Dr. Hyman
8
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Eisenstein, and Dr. Faye Sultan, and friends and family members, including
Angela Cheney, Patricia Scubbard, Lloyd Scubbard, Heather Johnson, Kevin
McBride, Bruce Martin, and co-defendant Graves. (PCA at 2645-3154).
Osteen, who had represented about 30 capital defendants at the time of
Jennings’ trial, was assisted by co-counsel Sapenoff and investigator Ed Neary.
At the postconviction hearing, Osteen testified mainly about his investigative
and strategic decisions.
When Osteen began representing Jennings, he
enlisted the help of two mental health experts: psychiatrist Robert Wald and
psychologist Russell Masterson. Osteen asked Dr. Wald to evaluate Jennings’
competency and delve into his personality and background for anything that
could be a mitigating factor during sentencing. Dr. Masterson supplemented
Dr. Wald’s work with psychological testing.
Osteen chose Drs. Wald and
Masterson because he had a good relationship with them, and they understood
the type of evaluation he wanted. It was Osteen’s practice to speak with the
doctors after receiving their reports to get more detail. Osteen ultimately
determined that Jennings did not have a strong mental-health defense and
chose not to present testimony from Dr. Wald or Dr. Masterson because it
would open the door to harmful evidence mentioned in their report, like
Jennings’ criminal history.
Osteen said he probably did not consult the ABA guidelines when
representing Jennings, and he did not hire a mitigation specialist. He instead
9
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relied on Neary to investigate Jennings’ background. Osteen did not know if
Neary traveled outside Florida for this case.
Osteen himself talked to
Jennings, his mother, and several of his friends. Osteen recalled that Jennings
came from a lower socioeconomic background, but that he had a close, loving
relationship with his mother, Tawny Jennings. At the penalty phase of the
trial, Osteen had Jennings’ mother and friends testify about his positive
character traits and hopefully elicit sympathy from the jury.
All three post-conviction medical experts testified about Jennings’
history of head injuries, febrile seizures, and drug and alcohol abuse. The
results of behavioral neurologist Thomas Hyde’s examination of Jennings were
mostly normal. But because of some subtle neurological findings and Jennings’
history, Hyde recommended neuropsychological testing.
Jennings’ counsel
thus hired neuropsychologist Hyman Eisenstein, who tested Jennings first in
2000 and again in 2010. In 2000, Dr. Eisenstein found that Jennings had
above-average intelligence, but discrepancies between certain scores, like
Jennings’ verbal IQ and performance IQ, suggested brain dysregulation. Dr.
Eisenstein described the results as “sort of a red flag saying there is something
going on here that is not typical.” (PCA at 2999). But he reached no clinical
diagnosis in 2000.
The results of Dr. Eisenstein’s 2010 testing fit with the 2000 results, but
this time he diagnosed Jennings with a reading disorder and intermittent
10
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explosive disorder. Dr. Eisenstein testified that Dr. Masterson’s conclusions
were consistent with his, but he criticized the sufficiency of Dr. Masterson’s
testing and reporting. Applying his findings to the facts of this case, Dr.
Eisenstein opined that Jennings’ untreated reading disorder “led to
tremendous amounts of aggression and hostility disproportionate to any
precipitating event or factor.” (PCA at 2718). He then concluded that the
murders were not premeditated because some unknown provocation during the
robbery triggered Jennings’ intermittent explosive disorder, creating in
Jennings an irresistible impulse to kill the victims.
Psychologist Ellen Sultan investigated Jennings’ background and
testified about factors that could have been considered mitigating. Dr. Sultan
found that sexual abuse was pervasive in Jennings’ extended family. She
described Tawny Jennings as mentally ill and inadequate as a parent. Tawny
introduced Jennings to marijuana, fed him beer as a baby, and told him about
her history of sexual abuse at an inappropriate age. Dr. Sultan, like Dr.
Eisenstein, diagnosed Jennings with intermittent explosive disorder, but she
did not tie the murder to the diagnosis. While she found none of Florida’s
statutory mitigators applicable, Dr. Sultan considered Jennings a “quite
damaged person” who operates “in the world in a highly dysfunctional way.”
(PCA at 3096). And she opined that Jennings’ background—particularly the
excessive and prolonged substance abuse beginning in pre-adolescence and a
11
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sexually exploitative, neglectful, and impoverished childhood environment—
are predictive of impulse control, attention, and concentration problems,
occupational and social difficulties, propensity towards criminal behavior, and
the inability to regulate emotions.
Jennings’ cousin, Patricia Scudder, and her husband, Lloyd Scudder,
testified about Jennings’ life before he moved to Florida. Patricia described
Jennings’ childhood homes as very messy, with dirty dishes, papers, and dog
feces everywhere. Tawny’s bed was so covered in clothes she slept in a hide-abed with Jennings. Patricia described Tawny’s relationship with Jennings as
close and loving, but also overprotective and sometimes inappropriate. For
example, Tawny breastfed Jennings until he was four or five years old. Lloyd
Scudder described Tawny as a bad mother. He understood her only sources of
income to be welfare and “hooking.”
Tawny had a series of boyfriends, including Frank, who seemed jealous
of Jennings and tried to push him away from his mother. Once, Patricia
walked into the apartment and saw Tawny in bed with a man—both naked—
with Jennings lying on the floor watching television. Both Scudders identified
child molesters in Jennings’ extended family, but neither claimed that
Jennings himself was abused.
Angela Cheney appeared and mostly answered questions about her trial
testimony—that Jennings said he could get away with robbery by leaving no
12
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witnesses, while gesturing across his throat. Cheney’s testimony was largely
unchallenged at trial, but at the hearing she revealed details Osteen could
have used to attack her credibility. Cheney became friends with Jason Graves
in high school, and she met Jennings through Graves. Cheney dated Jennings
for about a month and did not maintain a friendship with him after they broke
up. She later married Graves’ brother, Robert Cheney. Robert was present
when Cheney first met with police to give her statement, but they were
divorced or separated during Jennings’ trial. Cheney acknowledged being
partly motivated by concern for Graves’ well-being. But she also reaffirmed
the truthfulness of her trial testimony.
Jason Graves testified at the postconviction hearing, but he said nothing
notable, and neither party relied on his testimony in their briefs to this Court.
Three of Jennings’ friends from his teenage years—Heather Johnson, Kevin
McBride, and Bruce Martin—testified that he was not an aggressive person
but could get angry when provoked. They also described Jennings’ heavy
drinking and regular drug use.
After hearing and considering this testimony, the postconviction court
denied Jennings’ motion for postconviction relief.
(PCA at 3247-3260).
Jennings appealed to the Florida Supreme Court and simultaneously
petitioned for a writ of habeas corpus. Denying both, the Florida Supreme
Court held: (1) Jennings’ “trial counsel was not ineffective for failing to obtain
13
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or present childhood and background mitigation” because Osteen’s mitigation
strategy could be considered sound; (2) trial counsel was deficient in the crossexamination of Angela Cheney, but the failure did not undermine the court’s
confidence in the outcome because other compelling evidence supported it; (3)
the postconviction court did not err by summarily dismissing three of Jennings’
claims because each was procedurally barred, refuted by the record, or both;
and (4) Jennings’ appellate counsel was not deficient for failing to raise certain
issues on appeal because none of those issues had merit. Jennings v. State,
123 So. 3d 1101 (Fla. 2013).
Jennings now petitions this Court for a writ of habeas corpus.
III. Applicable Habeas Law
A. AEDPA
The Antiterrorism Effective Death Penalty Act (AEDPA) governs a state
prisoner’s petition for habeas corpus relief. 28 U.S.C. § 2254. Relief may only
be granted on a claim adjudicated on the merits in state court if the
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.
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28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet.
White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A state court’s violation of state
law is not enough to show that a petitioner is in custody in violation of the
“Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a);
Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
“Clearly established federal law” consists of the governing legal
principles set forth in the decisions of the United States Supreme Court when
the state court issued its decision. White, 134 S. Ct. at 1702; Casey v. Musladin,
549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
Habeas relief is appropriate only if the state court decision was “contrary to, or
an unreasonable application of,” that federal law. 28 U.S.C. § 2254(d)(1). 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 Supreme
Court precedent it 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
15
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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.” Bottoson, 234 F.3d at 531
(quoting Williams, 529 U.S. at 406). “A state court’s determination that a claim
lacks merit precludes federal habeas relief so long as fair-minded jurists could
disagree on the correctness of the state court’s decision.” Harrington v. Richter,
562 U.S. 86, 101 (2011). “[T]his standard is difficult to meet because it was
meant to be.” Sexton v. Beaudreaux, 138 S. Ct. 2555, 2558 (2018).
Finally, when reviewing a claim under 28 U.S.C. § 2254(d), a federal
court must remember 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); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A]
state-court factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in the first
instance.”).
B. Retroactivity
Federal courts generally “cannot disturb a state conviction based on a
constitutional rule announced after a conviction became final.” Knight v. Fla.
Dep’t of Corr., 936 F.3d 1322, 1331 (11th Cir. 2019), cert. denied --- U.S. --(2020) (citing Teague v. Lane, 489 U.S. 288 (1989)).
16
“Only two narrow
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exceptions pierce this general principle of nonretroactivity: new rules that are
‘substantive rather than procedural,’ and ‘watershed rules of criminal
procedure implicating the fundamental fairness and accuracy of the criminal
proceeding.’” Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 352-53 (2004)).
When a question of retroactivity arises, a federal court must conduct a
threshold Teague analysis. Id. (citing Horn v. Banks (Banks I), 536 U.S. 266
(2002)).
C. Exhaustion and Procedural Default
AEDPA precludes federal courts, absent exceptional circumstances, from
granting habeas relief unless a petitioner has exhausted all means of relief
available under state law. Failure to exhaust occurs “when a petitioner has
not fairly presented every issue raised in his federal petition to the state’s
highest court, either on direct appeal or on collateral review.” Pope v. Sec’y for
Dep’t. of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (cleaned up).
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, 735 (11th Cir. 1998). Respondents concede that
Jennings exhausted all grounds but one, which the Court will address below.
D. Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a two-part
test for determining whether a convicted person may have relief for ineffective
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assistance of counsel. 466 U.S. 668, 687-88 (1984). A petitioner must establish:
(1) counsel’s performance was deficient and fell below an objective standard of
reasonableness; and (2) the deficient performance prejudiced the defense. Id.
This is a “doubly deferential” standard of review that gives both the state court
and the petitioner’s attorney the benefit of the doubt. Burt, 134 S. Ct. at 13
(citing Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)).
When considering the first prong, “courts must ‘indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.’” Sealey v. Warden, 954 F.3d 1338, 1354 (11th Cir.
2020) (quoting Strickland, 466 U.S. at 689). When considering counsel’s duty
to investigate, “strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable judgments support the
limitations on investigation.” Strickland, 466 U.S. at 690-91. The Eleventh
Circuit has held that while counsel in a capital case must conduct an adequate
background investigation, it need not be exhaustive. Sealey, 954 F.3d at 1355.
The second prong requires the defendant to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Id. (quoting Strickland, 466 U.S.
at 694). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. “An ineffective-assistance claim can be decided
on either the deficiency or prejudice prong.” Id. And “[w]hile the Strickland
18
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standard is itself hard to meet, ‘establishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the more difficult.’” Id.
(quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)).
Analysis
A. Ground One: Jennings was denied effective assistance of
counsel at the penalty phase in violation of the Sixth, Eighth,
and Fourteenth Amendments
Jennings argues that lead trial counsel Thomas Osteen failed to
adequately investigate Jennings’ past for mitigating evidence, and as a result,
Osteen did not provide his mental health experts—Dr. Wald and Dr.
Masterson—with necessary documents (like school and medical records). That
failing, coupled with incomplete testing and reporting by Wald and Masterson,
led to inaccurate and inadequate evaluations and reports. (Doc. 61 at 45-84).
Respondent concedes this claim is exhausted for habeas purposes. (Doc. 66 at
47).
The Florida Supreme Court evaluated Jennings’ argument in two
components: failure to present mental health mitigation and failure to conduct
an adequate background investigation. As to the mental-health component,
the court found that Osteen made a reasonable strategic decision not to present
mental mitigation testimony because he believed (1) this was not a strong
mental-health case and (2) it could have opened the door to other damaging
evidence, like Jennings’ drug use and criminal history. The Florida Supreme
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Court was unmoved by Jennings’ attacks on the work of Dr. Wald and Dr.
Masterson, which was mostly fueled by the testimony of Dr. Eisenstein. It
agreed with the lower court’s characterization of Dr. Eisenstein’s criticism as
“mere semantics.” Jennings, 123 So. 3d at 1115.
The state court also found, despite Jennings’ contentions, that Dr. Wald
and Dr. Masterson “were aware of and considered [Jennings’s] history of head
injuries, drug and alcohol use, and childhood psychiatric treatment for anger
issues.” Id. And the court held that Osteen could not have been deficient for
relying on qualified experts, even if Jennings presented more favorable expert
opinions post-conviction. Finally, the court found that even if Osteen and his
experts should have sought more information, Jennings did not show prejudice
because he identified no particular information that would have made a
difference.
As to the insufficient-investigation component of this claim, the Florida
Supreme Court found no deficiency in trial counsel’s performance. The court
noted that Dr. Masterson’s findings were similar to Dr. Sultan’s, despite Dr.
Sultan’s more thorough background investigation. It found that “this is not a
case where trial counsel failed to investigate, obtain, or provide any
background information to the experts and therefore could not have made a
reasoned strategic decision about its presentation.” Id. The court excused
Osteen’s failure to discover the history of sexual abuse in Jennings’ family
20
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because his practice was to inquire into sexual abuse and it never came up as
an issue. In fact, Jennings denied any history of sexual abuse. Even if Osteen
should have discovered the abuse in Jennings’ family, the state court found no
prejudice:
While information concerning the sexual abuse of his family
members might have been mitigating in establishing Jennings’
troubled childhood and emotional development, the trial court
found as nonstatutory mitigation that Jennings had a deprived
childhood, and the presentation of this testimony might have run
contrary to counsel’s strategic decision of finding friends who could
speak positively about Jennings.
Id. at 1118.
Jennings objects to several aspects of the state court’s analysis. First,
he bristles at the characterization of Dr. Eisenstein’s criticism of Dr.
Masterson’s report as “mere semantics.” But arguing about what is and is not
“mere semantics” is simply more semantics. What matters is whether Osteen
was constitutionally deficient for relying on Dr. Masterson’s report.
Dr.
Eisenstein found Dr. Masterson’s report “grossly insufficient” from a
“neuropsychiatric aspect” and more of a “neuropsychological screener” than a
full examination report. (PCA at 2751). But he also called the report “a good
starter” for someone “trying to figure out if there is significant mitigation or
not.” (PCA at 2753-54). And despite the differences in their testing and
reporting practices, Dr. Eisenstein testified that Dr. Masterson’s conclusions
were consistent with his.
(PCA at 2698).
21
After carefully reviewing Dr.
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Masterson’s report, given Dr. Eisenstein’s criticisms, the Court finds Osteen’s
reliance on the report to be within an objective standard of reasonableness.
Dr. Eisenstein did reach several diagnoses that Dr. Masterson did not—
most notably intermittent explosive disorder (IED). The IED diagnosis did not
stem from neuropsychological testing. Rather, in accordance with the DSMIV, Dr. Eisenstein based it on discrete episodes of aggressive impulses grossly
out of proportion to any precipitating psychosocial stressors, as reported by
Jennings and his mother. Dr. Masterson did not fail to uncover Jennings’
history of violent incidents—he mentions several in his report—and he
reported a clinical indication of “difficulty with impulse control.” (PCA at
3767). So, although Osteen did not have formal diagnosis of IED, he did have
the information he needed to make an aggressive-impulse argument at
sentencing. But that might have done more harm than good by opening the
door to Jennings’ prior violent acts. It certainly would have conflicted with
Osteen’s strategy of emphasizing Jennings’ positive character traits.
Next, Jennings argues that Osteen failed to obtain enough school and
medical records, which would have shown a history of febrile seizures and
repeated head injuries. Osteen knew of Jennings’ history of head injuries
because Dr. Masterson mentioned it in his report. Osteen apparently did not
know of the febrile seizures, but Jennings fails to show how that knowledge
might have impacted the trial. According to Dr. Hyde, the importance of the
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febrile seizures and repeated head injuries was that they showed a need for
neuropsychological testing. But since Osteen had Jennings tested, knowledge
of the seizures would not have led to the discovery of any additional mitigating
information.
Jennings’ argument that Osteen failed to adequately investigate his life
before moving to Florida is likewise unavailing. He points to new details
presented at the postconviction hearing of his squalid childhood living
conditions and his troubled relationship with his mother. But Osteen had
ample information on Jennings’ early life from Jennings’ extensive selfreporting, and he used that information successfully at sentencing—the trial
court considered Jennings’ deprived childhood a mitigating factor. Osteen’s
strategy of focusing on the positive aspects of Jennings’ relationship with his
mother also bore fruit, as the trial court considered it another mitigating factor.
Osteen did not learn of the sexual abuse pervasive in Jennings’ family
and Jennings’ exposure to known child molesters. Although Jennings himself
was not a victim of those men, Dr. Sultan explained how learning about sexual
violence at a young age could have been mitigating:
Q
You mentioned that [Tawny Jennings] was a victim of sexual
abuse. To your knowledge, was Mr. Jennings aware that his
mother had been sexually abused?
A.
Yes. It was one of the first things he told me about actually.
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Q.
Can you briefly explain what kind of impact that might have
on an individual, the knowledge that his mother had been sexually
abused by family members?
A.
There is a body of literature that has to do with witnessing
sexual violence and being told about sexual violence at an
inappropriate age. I don’t know what an appropriate age would
be—adulthood would be an appropriate age, but he was a preadolescent when he knew about this. What we know is that even
the telling of such stories produce significant emotional distress in
children because they’re simply not prepared—in a brain
development sense, not prepared for the kind of information. So I
don’t know how to separate out the contribution of that damage to
Mr. Jennings’ state, but I know that it certainly contributed.
(PCA at 3099).
That Osteen’s investigation did not uncover this information does not
necessarily show he was ineffective. “The reasonableness of counsel’s actions
may be determined or substantially influenced by the defendant’s own
statements or actions.” Strickland, 466 U.S. at 691. “An attorney does not
render ineffective assistance by failing to discover and develop evidence of
childhood abuse that his client does not mention to him. Williams v. Head, 185
F.3d 1223, 1237 (11th Cir. 1999). Osteen did not learn of the sexual abuse in
Jennings’ family because neither Jennings nor his mother told him about it.
He interviewed both in preparation for sentencing, and it was his practice to
investigate past sexual abuse. Osteen was not deficient for relying on Jennings
to self-report this type of potentially mitigating information.
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Osteen’s investigation of Jennings’ background might not have been
exhaustive, but it was reasonable and adequate.
Osteen’s investigation
decisions were guided largely by the information he received from Jennings.
As the Supreme Court explained, “Counsel’s actions are usually based, quite
properly, on informed strategic choices made by the defendant and on
information supplied by defendant. In particular, what investigation decisions
are reasonable depends critically on such information.” Strickland, 466 U.S.
at 691. Every mental health expert consulted in this case—before and after
trial—agreed that Jennings has an above-average intelligence, and none found
any mental health issues that would make him an unreliable historian. Osteen
properly relied on Jennings to self-report his history.
Based upon a thorough review of the record, the Court finds the state
court’s denial of relief on this ground was not contrary to or an unreasonable
application of Strickland.
B. Ground Two:
Jennings’ convictions and sentences are
materially unreliable because trial counsel was ineffective for
failing to adequately impeach the prejudicial testimony of
Angela Cheney
Jennings claims Osteen was constitutionally ineffective for failing to
adequately cross-examine Angela Cheney.
(Doc. 61 at 84-93).
The state
concedes this ground is exhausted for habeas purposes. (Doc. 66 at 66).
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During the guilt phase of Jennings’ trial, Angela Cheney gave the
following testimony:
Q.
A.
Q.
A.
Q.
A.
Now, let me direct your attention back before the November
15th, 1995 Cracker Barrel murders and robbery. Do you
recall having a discussion with the Defendant, Brandy
Jennings, about a robbery?
Yes, sir.
It where did this discussion occur?
At his apartment.
All right. And would you tell the jury about this discussion.
What did he say and what did you say?
There was a couple people around and we were just talking
about money and stuff like that and he said if he ever needed
any money, he could always rob someplace or somebody.
And we were talking and I said, “Well that’s stupid. You can
get caught.” And he said, “Not if you don’t leave any
witnesses.”
(TT at 699-700). Cheney also testified that Jennings gestured across his throat
as he spoke. Osteen’s cross-examination was minimal. He asked when the
conversation occurred—November 1993—and who else was there—Chris
Graves and someone named Bruce.
The sentencing court cited Cheney’s
testimony to support the avoiding arrest and cold, calculated, and
premeditated (CCP) aggravating factors.
Jennings faults Osteen for not
attacking Cheney’s credibility with (1) her relationships with Jennings and
Graves, (2) her communications with Graves after his arrest, and (3) her
history of drug use.3
Jennings also argues that Osteen should have impeached Cheney’s testimony
with evidence that Jennings lived at North Gate Club apartments with Bruce
3
26
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Upon review, the Florida Supreme Court found that Osteen “was
deficient with respect to his preparation for and cross-examination of Cheney”
because “by failing to question Cheney about her potential motivations and
biases in this case, regardless of whether any such biases influenced her
testimony, counsel deprived the jury of the ability to make a fully informed
decision about Cheney’s credibility.” Jennings, 123 So. 3d at 1119. Despite the
state’s use of Cheney’s evidence to support a guilty verdict and two aggravating
factors, the Florida Supreme Court determined that Jennings failed to prove
prejudice. The court reasoned Osteen’s deficiency did not undermine the state
court’s confidence in the guilty verdict because “the State presented
considerable other evidence of Jennings’ guilt… Specifically, Jennings made
inculpatory statements to law enforcement, owned the murder weapon, and
left bloody shoe prints leading away from the murder scene.” Id. at 1120.
The court likewise found no prejudice in the sentencing phase because
the aggravators were supported by other evidence. For the CCP aggravator,
that evidence included “Jennings’ established dislike for one of the victims, the
speed with which the robbery and murders were accomplished, and Jennings’
Martin in November 1993. This evidence contradicts Cheney’s testimony at
the 2010 postconviction hearing, when she recalled the conversation occurring
at an apartment they shared—perhaps in a complex called Waverly. But the
evidence would not have impeached her trial testimony, so it is not relevant
here.
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ownership of the murder weapon[,]” as well as the “execution-style nature of
the killings.” Id. And for the avoid arrest aggravator, the court noted that
Jennings wore gloves but no mask, even though the witnesses knew and could
identify him, and that the victims were restrained in the freezer, so Jennings
could have eliminated any immediate threat by securing the freezer door.
Finally, the court found that an adequate cross-examination would not have
entirely destroyed Cheney’s credibility. Id. at 1121.
Jennings argues the state court unreasonably applied Strickland by (1)
glossing over the significance of Cheney’s testimony and (2) applying the wrong
standard—that an adequate cross-examination must have entirely destroyed
Cheney’s credibility. Both of Jennings’ arguments mischaracterize the state
court’s reasoning. It did not downplay the significance of Cheney’s testimony
or apply an overly rigorous standard. Rather, the court considered the other
evidence to determine the likelihood of a different outcome had Cheney not
testified at all.
The Strickland Court explained the legal standard courts should use
when assessing prejudice from counsel’s errors:
When a defendant challenges a conviction, the question is whether
there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.
When a defendant challenges a death sentence…, the question is
whether there is a reasonable probability that, absent the errors,
the sentencer…would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death.
28
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Strickland, 466 U.S. at 696. The state court’s application of Strickland was
proper. In fact, by evaluating the evidence as if Cheney had not testified, it
applied a standard more favorable to Jennings than required, because
adequate cross-examination would have impeached—not excluded—Cheney’s
testimony. Jennings has no right to relief on this ground.
C. Ground Three: The state court erred in summarily denying
three meritorious claims in violation of the Fifth, Sixth,
Eighth, and Fourteenth Amendments
This ground has multiple parts. First, Jennings argues the state court
erred by denying an evidentiary hearing on three postconviction claims: (1)
the prosecutor made improper statements and arguments at trial, (2) Osteen
was ineffective for failing to challenge forensic evidence, and (3) Osteen was
ineffective for failing to challenge the admissibility and reliability of Jennings’
statements to the police. Because the postconviction court denied two of these
claims before the postconviction evidentiary hearing, Jennings complains it
violated Florida Rule of Criminal Procedure 3.851. (Doc. 61 at 94-99). The
state concedes this ground is substantially exhausted. (Doc. 66 at 75).
No habeas relief lies for the post-conviction court’s refusal to grant an
evidentiary hearing on three of the claims. It is “beyond debate” that Jennings
is not entitled relief on this ground. Anderson v. Sec’y, Dep’t. of Corr., 462 F.3d
1319, 1330 (11th Cir. 2006). The Eleventh Circuit has “held the state court’s
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failure to hold an evidentiary hearing on a petitioner’s 3.850 motion is not a
basis for federal habeas relief.” Id.
The Court now turns to each of the substantive merits of the three claims
the Florida Supreme Court determined were properly summarily denied:
1. Prosecutorial misconduct
This sub-claim has two parts: prosecutorial misconduct and ineffective
assistance of counsel. Jennings identifies three allegedly improper statements
made by the prosecutor in the sentencing phase:
The prosecutor mischaracterized the nature of mitigation, as an
“attempt to escape accountability,” argued impermissible
aggravating circumstances including that Jennings had “spent his
ill gotten gains at Flints, a topless dance club,” and stated that the
co-defendant Graves had already received a life sentence.
(Doc. 61 at 96-97). And he claims the prosecutor violated his rights to due
process and a fair trial by arguing inconsistent theories in Jennings’ and
Graves’ trials. The Florida Supreme Court held these claims were procedurally
barred because Jennings could and should have raised them on direct appeal.4
Jennings 123 So. 3d at 1122.
Federal courts “cannot consider a claim where ‘the last state court
rendering a judgment in the case clearly and expressly stated that its judgment
The Florida Supreme Court did address, and reject, Jennings’ claim of
inconsistent theories on direct appeal when deciding a related issue—whether
Jennings’ and Graves’ sentences were impermissibly disparate.
4
30
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rests on a state procedural bar.’” Spencer v. Sec’y, Dep’t. of Corr., 609 F.3d
1170, 1178 (11th Cir. 2010) (quoting Parker v. Sec’y, Dep’t. of Corr., 331 F.3d
764, 771 (11th Cir. 2003)). “Accordingly, ‘a federal habeas claim may not be
reviewed on the merits where a state court determined that the petitioner
failed to comply with an independent and adequate state procedural rule that
is regularly followed.’” Id. (quoting Philmore v. McNeil, 575 F.3d 1251, 1260
(11th Cir. 2009)). The Supreme Court affirmed these principles in Johnson v.
Lee, 136 S. Ct. 1802 (2016).
Jennings does not attack the adequacy of the procedural rule that barred
his postconviction claims. It would have been fruitless. See Spencer, 609 F.3d
at 1179. (“There is no doubt that, under Florida law, a claim is procedurally
barred from being raised on collateral review if it could have been but was not
raised on direct appeal.”). Two exceptions would allow this Court to consider
Jennings’ claims of prosecutorial misconduct:
This procedural bar may be overcome—and we may consider the
merits of these claims—only if [the petitioner] demonstrates both
cause for the failure to raise the claims on direct appeal and actual
prejudice, or demonstrates that a failure to consider the claims will
result in a fundamental miscarriage of justice. To establish
“cause” for procedural default, a petitioner must demonstrate that
some objective factor external to the defense impeded the effort to
raise the claim properly in state court. 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.
Finally, a “fundamental miscarriage of justice” occurs in an
extraordinary case, where a constitutional violation has resulted
in the conviction of someone who is actually innocent.
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Spencer, 609 F.3d at 1179-80 (cleaned up). Jennings does not identify cause or
prejudice to excuse his failure to raise prosecutorial misconduct on direct
appeal. Indeed, the prosecutor’s statements at both his and Graves’ trial were
known when he filed his direct appeal. Nor does Jennings claim he is innocent.
Thus, this Court may not consider his claims of prosecutorial misconduct.
Jennings also claims that Osteen was ineffective for failing to object to
the prosecutor’s three allegedly improper statements during sentencing: that
mitigation was “an attempt to escape accountability,” that Jennings “spent his
ill gotten gains at Flints, a topless dance club,” and that Graves had received
a life sentence. (Doc. 61 at 96-97). The state court properly rejected this
ineffective-assistance claim because Jennings failed to show prejudice. In fact,
the trial court considered Graves’ life sentence as a mitigating factor.
This claim is insufficient.
Jennings does not identify any clearly
established federal law contrary to the Florida Supreme Court’s reasoning or
any unreasonable factual finding. And—like in state court—he does not show
any prejudice stemming from Osteen’s failure to object to the prosecutor’s
statements.
2. Failure to challenge forensic evidence
Jennings next contends counsel was ineffective because he failed to
challenge the reliability of the forensic evidence. (Doc. 61 at 102-104). At issue
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is the state’s expert witness testimony of cause and manner of death and
shoeprint examination, and crime-scene testimony from two police officers. Dr.
Manfred Borges opined that the victims’ wounds matched Jennings’ Buck
knife, which he saw at the scene. Borges came to his opinion by comparing the
wounds to “a dental knife with almost all the same characteristics.” (TT at
393). David Grimes testified that Jennings’ Reebok shoes matched various
shoeprints at the crime scene. And Officers Robert Browning and John Horth
testified about their observations of the crime scene. Jennings claims Osteen
was ineffective because he did not call his own forensic experts to rebut the
state’s evidence.
The Florida Supreme Court rejected this claim as legally insufficient
because Jennings did “not allege what specific information other experts would
have been able to offer or how this presentation would have impacted the case.”
Jennings, 123 So.3d at 1123. Jennings identifies no federal law contrary to the
state court’s adjudication. When “a petitioner raises an ineffective assistance
claim based on counsel’s failure to call a witness, the petitioner carries a heavy
burden ‘because often allegations of what a witness would have testified to are
largely speculative.’” Finch v. Sec’y, Dep’t. of Corr., 643 F. App’x 848, 852 (11th
Cir. 2016) (quoting Sullivan v. DeLoach, 459 F.3d 1097, 1108-09 (11th Cir.
2006)).
33
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In Finch, the petitioner asserted that a particular expert would have
testified that the state’s DNA evidence was unreliable because of flawed
methodology, but he did not support the assertion with any evidence. Id. The
Eleventh Circuit found that the Florida Supreme Court’s denial of the claim
“was not contrary to, or an unreasonable application of, clearly established
federal law.” Id. Similarly, the petitioner in Wilson v. Sec’y, Dep’t. of Corr.
argued that trial counsel should have called an expert to rebut the state’s
medical examiner but did not establish what conclusion his expert would have
reached. 769 F. App’x 825, 827 (11th Cir. 2019). The Eleventh Circuit denied
the claim because “ineffective assistance of counsel cannot be proven via
conclusory assertion.” Id. Jennings has done even less than Finch. He does
not state, even hypothetically, what forensic evidence Osteen could have
presented. Jennings has not carried his burden on this point.
3. Failure to challenge admissibility and reliability of Jennings’
confession
Jennings next faults Osteen for not investigating the circumstances
surrounding Jennings’ confession, which led to Osteen’s alleged ineffectiveness
in his motion to suppress the confession and his subsequent cross-examination
of the State’s key witnesses. (Doc. 61 at 104-107). Ralph Cunningham, chief
investigator for the Twentieth Judicial Circuit of Florida State Attorney’s
Office, interviewed Jennings twice. Jennings expressly waived his Miranda
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rights both times. The first interview was taped, and the jury listened to the
tape at trial. Cunningham conducted a second, untaped interview the next day
to “clear up some inconsistencies” and “go over some other facts.” (TT at 704).
Cunningham testified that during the second interview, Jennings said, “I think
I could have been the killer. In my mind I think I could have killed them, but
in my heart I don’t think I could have.” (TT at 738).
Jennings argues that Osteen failed to adequately investigate two aspects
of the statement: (1) Jennings’ mental health and how it affected his ability to
knowingly, intelligently, and voluntarily waive his Miranda rights; and (2)
discrepancies within and between “Cunningham’s report and testimony [and]
the reports of Officers Crenshaw and Rose.” (Doc. 61 at 107).
As pointed out by the Florida Supreme Court, contrary to Jennings’
assertions, the state court did not summarily deny the mental-health aspect of
this claim. Jennings, 123 So. 3d at 1123. Rather, the postconviction court
afforded Jennings an evidentiary hearing on this claim, but the only evidence
Jennings elicited was that “Osteen did not recall if defendant used drugs at the
time he gave his confessions and he was sure he investigated that issue.” (PCA
at 3259). The Florida Supreme Court also denied Jennings relief on the second
part of this claim—the alleged discrepancies—because Jennings did “not allege
what these inconsistencies are or what information trial counsel should have
been aware of or used as impeachment evidence.” Jennings, 123 So. 3d at 1123.
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Jennings challenges no aspect of the Florida Supreme Court’s
adjudication of this claim, and the Court finds no fault in it.
Jennings’
conclusory assertion that he was unable to knowingly and voluntarily waive
his Miranda rights is not enough. He presented no evidence to support it,
despite ample opportunity—he had three mental health experts testify at the
postconviction hearing, and the postconviction court gave the green light for
evidence on the issue. Jennings’ failure to identify the discrepancies Osteen
could have used to challenge Cunningham’s testimony is likewise fatal to this
claim. See Boyd v. Comm’r, Ala. Dep’t. of Corr., 697 F.3d 1320, (11th Cir. 2012)
(denying an ineffective-assistance claim because the petitioner disclosed no
specific piece of evidence trial counsel should have uncovered).
Having reviewed each of the subparts of Ground Three, the Court finds
Jennings has not demonstrated that the state court’s rejection was contrary to
clearly established federal law or based on an unreasonable determination of
the facts. Ground Three is denied in its entirety. 28 U.S.C. § 2254(d).
D. Ground 4: Jennings’ statements to police, and all evidence
derived from them, should have been suppressed because
they were obtained in violation of his right to counsel
Jennings argues the trial court erred by refusing to suppress his
statements to detectives. (Doc. 61 at 107-111). Respondents acknowledge this
ground is exhausted for federal habeas purposes. (Doc. 66 at 87).
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Jennings and Graves were arrested in Las Vegas on December 8, 1995.
Collier County Sheriff’s Office detectives Rose and Crenshaw traveled to Las
Vegas later that day and met with Jennings at the Clark County Jail on
December 9, just after midnight.
Detective Crenshaw read Jennings his
Miranda warning, including his right to an attorney, whether or not he could
afford one. During the interview, Jennings said he wanted a lawyer. The
officers stopped the interview, and Detective Rose offered to get Jennings a
phone book.
Investigator Cunningham went to the Clark County Jail on December
10, 1995, to talk to Graves. As Cunningham was leaving the interview room,
he saw Jennings near the booking desk. Jennings asked Cunningham if he
had heard from Tawny Jennings. Cunningham said he had not, but that
Detective Crenshaw was trying to reach her. Jennings then said that after
talking to his mother, he decided he wanted to talk about the robbery. “He
said that he did not want to take the blame for the killings of three people that
his partner had done, that he wanted to tell his side of the story.” (DA at 976).
Cunningham, Rose, and Jennings went into the interview room, and
Cunningham read Jennings his Miranda rights. Jennings said he understood
his rights and wished to speak. He then went through the facts of the crime
with Cunningham and Rose. Cunningham asked if they could take a recorded
statement, Jennings consented, and Cunningham advised Jennings of his
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Miranda rights again. In the two-and-a-half hour taped interview, Jennings
described his history, the events leading up to the crime, and the crime itself.
During the interview, Jennings told the officers where they could find some
physical evidence he and Graves hid after fleeing the Cracker Barrel. Police
later recovered that evidence. Cunningham returned to the jail on December
11 to go over some inconsistencies and other facts with Jennings. During this
conversation, Jennings said, “I think I could have been the killer. In my mind
I think I could have killed them, but in my heart I don’t think I could have.”
(TT at 738).
Osteen moved to suppress Jennings’ statements, and the trial court held
a suppression hearing. (DA at 154). The trial court denied the motion, finding
that Jennings voluntarily initiated his contact with Cunningham and Rose and
knowingly, intelligently, and voluntarily waived his right to counsel and his
right to remain silent. At trial, the state played the recorded interview, and
Cunningham testified about Jennings’ confession over Osteen’s objections.
The state also introduced the physical evidence Jennings helped police recover.
On direct appeal, Jennings argued that Detective Rose’s offer to get him
a phone book was an inadequate response to Jennings’ invocation of his right
to counsel, and any subsequent waiver of his Miranda rights was tainted. The
Florida Supreme Court found that “even if Jennings invoked his right to
counsel, he voluntarily initiated further contact with the police” and that he
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gave the statements “after voluntarily, knowingly, and intelligently waiving
his Miranda rights.” Jennings v. State, 718 So. 2d 144, 150 (Fla. 1998). Thus,
the statements were admissible under Edwards v. Arizona, 451 U.S. 477
(1981).
The state court also found that Jennings’ decision to reinitiate a
conversation with Cunningham and Rose “was motivated not by any
misapprehension of this right or ‘taint’ of the telephone book scenario, but by
an interceding conversation between Jennings and his mother, wherein she
advised Jennings to talk to the police.” Jennings, 718 So. 2d at 149.
In his petition to this Court, Jennings’ reasserts his contention that any
waiver of his Miranda rights was not knowing, intelligent, and voluntary
because of Detective Rose’s allegedly inadequate response when Jennings
invoked his right to counsel. Jennings’ argument is based mainly on state
law—the Florida Constitution provides greater protections than the federal
Constitution. But Florida state law cannot be the basis of federal habeas relief.
28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010). And the federal
cases cited by Jennings’ strongly support the state court’s adjudication.
In Edwards, the Supreme Court held that an accused, “having expressed
his desire to deal with the police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made available to him,
unless the accused himself initiates further communication, exchanges, or
conversations with the police.” Edwards, 451 U.S. at 485 (emphasis added).
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Jennings does not challenge the state court’s factual finding that he voluntarily
initiated contact with Cunningham and Rose after invoking his right to
counsel.
In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Supreme Court
reaffirmed the Edwards rule and clarified that even when an accused
reinitiates dialogue with police, the prosecution still must prove the accused
knowingly and voluntarily waived the right to counsel and the right to remain
silent. The Florida Supreme Court found that the prosecution met its burden,
based on these facts:
Upon Jennings’ reinitiation of conversation with police, he was
again advised of his Miranda rights, including his right to have a
lawyer appointed to represent him before questioning if he could
not afford one. Thereafter, at the beginning of the taped interview
when Detective Rose and Investigator Cunningham prepared to
again advise Jennings of his Miranda rights, Jennings stated that
he could save them the trouble because he understood his rights
fully. Despite this, Detective Rose again advised Jennings of his
Miranda rights, once again including his right to have a lawyer
appointed to represent him before questioning if he could not
afford one. The record also indicates that, before making his
subsequent untaped statement the next day, Jennings was again
advised of his Miranda rights and executed a written waiver.
Jennings, 718 So. 2d at 150.
Jennings challenges none of these factual
findings, and they are supported by the record. The state court correctly
applied Edwards.
Jennings fails to meet his burden for habeas relief on
Ground Four, and the Court denies it. 28 U.S.C. § 2254(d).
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E. Ground 5: Jennings’ death sentence violates the Sixth and
Eighth Amendments and his right to due process because a
jury did not make all necessary findings of fact
Jennings attacks the constitutionality of his sentence and the procedure
used to deny his successive Rule 3.851 motion in light of the Supreme Court’s
decision in Hurst v. Florida, 136 S. Ct. 616 (2016) and its progeny. (Doc. 61 at
112-139). Before addressing the claims, the Court provides some background.
After the jury found Jennings guilty on all counts, the trial court
conducted the sentencing phase of trial.
Upon conclusion, the jury
recommended a death sentence by a vote of 10 to 2. The trial court found three
statutory aggravating factors—commission during a robbery, avoiding arrest,
and CCP—outweighed the mitigating circumstances and, following the jury’s
recommendation, sentenced Jennings to death.
Jennings’ convictions and
sentence became final in 1999, when the Supreme Court denied Jennings’
petition for a writ of certiorari.
In 2002, the Supreme Court cast doubt on the constitutionality of
Florida’s capital sentencing scheme when it held Arizona’s procedure, which
was similar in some respects to Florida’s, violated the Sixth Amendment. Ring
v. Arizona, 536 U.S. 584 (2002). The Arizona scheme required the trial judge,
following a jury adjudication of a defendant’s guilt for first-degree murder, to
determine the presence or absence of aggravating and mitigating factors. The
Arizona judge could sentence the defendant to death only if there was at least
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one aggravating factor and “no mitigating circumstances sufficiently
substantial to call for leniency.” Id. at 593. The Court reasoned that “Arizona’s
enumerated aggravating factors operate as ‘the functional equivalent of an
element of a greater offense,’” so “the Sixth Amendment requires that they be
found by a jury.” Id. at 609 (quoting Apprendi v. New Jersey, 530 U.S. 466, 494
n.19 (2000)).
In 2016, the Supreme Court held Florida’s capital sentencing scheme
also violated the Sixth Amendment.
Hurst, 136 S. Ct. 616.
Despite the
differences in Florida’s and Arizona’s schemes—namely, Florida’s requirement
for a jury recommendation—the Court found Ring applicable. Since Florida’s
death-penalty statute required the judge—not the jury—to decide whether any
aggravating factors existed, it violated the Sixth Amendment. Hurst, 136 S.
Ct. at 624. The Court overruled previous decisions Spaziano v. Florida, 468
U.S. 447 (1984) and Hildwin v. Florida, 490 U.S. 638 (1989) “to the extent they
allow a sentencing judge to find an aggravating circumstance, independent of
a jury’s factfinding, that is necessary for imposition of the death penalty.” Id.
at 624.
On remand of Hurst v. Florida, the Florida Supreme Court went a step
further. Along with the existence of aggravating circumstances, it held that a
“jury must also unanimously find that the aggravating factors are sufficient for
the imposition of death and unanimously find that the aggravating factors
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outweigh the mitigation before a sentence of death may be considered by the
judge.” Hurst v. State, 202 So. 3d 40, 54 (Fla. 2016). The court based its
heightened protection in part on Florida law and in part on its understanding
that “Hurst v. Florida mandates that all the findings necessary for imposition
of a death sentence are ‘elements’ that must be found by a jury[.]” Id. at 57.
In 2016, the Florida Supreme Court addressed the retroactivity of Hurst
in two separate cases: Asay v. State, 210 So. 3d 1 and Mosley v. State, 209 So.
3d 1248. Applying Witt v. State, 387 So. 2d 922 (Fla. 1980), which provides
more expansive retroactivity standards than the federal Teague test, the court
decided to make the Supreme Court’s issuance of Ring the cutoff date. Thus,
Florida courts retroactively apply Hurst only to cases in which a death sentence
became final after June 24, 2002. Asay, 210 So. 3d at 22; Mosley, 209 So. 3d
at 1283.
Despite Jennings’ 1999 finality of sentence and conviction, he filed a
successive Rule 3.851 motion, seeking relief under Hurst. After the postconviction court denied Jennings’ motion, he appealed to the Florida Supreme
Court.
The Florida Supreme Court
stayed Jennings’ appeal pending its
decision in Hitchcock v. State, 226 So. 3d 216 (Fla. 2017). In Hitchcock, the
Florida Supreme Court rejected constitutional arguments that Hurst should
be applied to sentences that became final before Ring. The court then ordered
Jennings to show cause why its reasoning in Hitchcock should not be
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dispositive in his case. Jennings’ response failed to sway the court, and it
affirmed denial of his motion. Jennings v. State, 237 So. 3d 909 (Fla. 2018).
The Court turns to the claims raised in in Ground Five.
1. Jennings’ right to retroactive application of Hurst v. Florida
Jennings argues the Florida Supreme Court’s decision to deny him relief
under Hurst is contrary to federal law for three reasons: (1) Hurst announced
substantive constitutional rules that must be given retroactive effect; (2)
Florida’s limited retroactivity rule violates the Eighth Amendment because it
ensures arbitrary and unreliable infliction of the death penalty; and (3)
Florida’s limited retroactivity rule violates the Equal Protection Clause of the
Fourteenth Amendment.
i.
Retroactive effect of Hurst
When facing questions of retroactivity in habeas cases, federal courts
must apply the standards articulated in Teague. The first step is to determine
when the petitioner’s conviction became final.
Knight, 936 F.3d at 1334.
Jennings’ conviction became final when the Supreme Court denied his motion
for a writ of certiorari on June 24, 1999. Next, if the rule at issue had not been
announced by the final-conviction date, the Court must “’assay the legal
landscape’ as it existed at the time and determine whether existing precedent
compelled the rule—that is, whether the case announced a new rule or applied
an old one.” Id. Jennings does not argue that Hurst v. Florida applied an
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existing rule. Even if he did, the Eleventh Circuit has rejected that argument
because “Hurst was not dictated by prior precedent—and in fact explicitly
overruled existing precedent upholding Florida’s death penalty sentencing
scheme[.]” Id. at 1336.
Jennings focuses on the final step of the Teague analysis—whether Hurst
falls within one of the two exceptions to nonretroactivity. Those exceptions are
“(1) holdings that create substantive (not procedural) rules that place ‘certain
kinds of primary, private individual conduct beyond the power of the criminal
law-making authority to proscribe,’ and (2) holdings that constitute ‘watershed
rules of criminal procedure.’” Id.
Jennings hangs his hat on the first exception, arguing that Hurst
announced two substantive rules:
First, the court held that the Sixth Amendment requires that a
jury decide whether the aggravating factors have been proven
beyond a reasonable doubt, whether they are sufficient to impose
the death penalty, and whether they are outweighed by the
mitigating factors…Second, the court held that the Eighth
Amendment requires the jury’s fact-finding during the penalty
phase to be unanimous.
(Doc. 61 at 126-27). Jennings’ argument fails. First, he relies on Florida
Supreme Court’s Hurst v. State decision, not the United States Supreme
Court’s Hurst v. Florida decision. Federal habeas relief must be based on
federal law, as established by the United States Supreme Court. Hurst v.
Florida announced a narrower rule than Hurst v. State—the Sixth Amendment
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requires a jury, not a judge, to determine the existence of any aggravating
factors.
The Florida Supreme Court’s broader interpretation of Hurst v.
Florida was wrong, a mistake it recently recognized in State v. Poole, 297 So.
3d 487 (Fla. 2020): “This Court clearly erred in Hurst v. State by requiring
that the jury make any finding beyond the section 921.141(3)(a) eligibility
finding of one or more statutory aggravating circumstances.” Poole, 297 So. 3d
at 503.
The issue for this Court is whether either of the Teague exceptions
applies to the narrower rule announced in Hurst v. Florida. The Eleventh
Circuit decided they do not in Knight:
The Hurst rule does not fit within either exception. To begin,
substantive rules include decisions that change the range of
conduct or the class of person that the law punishes. Procedural
rules, on the other hand, regulate only the manner of determining
the defendant’s culpability. In considering which category the
Hurst rule falls into, we have a head start because the Supreme
Court has already held that Ring represented a prototypical
procedural rule. And that makes sense: Ring changed the
permissible procedure for sentencing in a capital case when it
required that a jury rather than a judge find the essential facts
necessary to impose the death penalty. Because Hurst’s holding—
that an advisory jury’s mere recommendation is not enough to
satisfy this procedural requirement—is an extension of the rule
from Ring, we have no trouble concluding that Hurst also
announced a procedural rule, and not a substantive rule.
Knight v. Fla. Dep’t of Corr., 936 F.3d 1322, 1336-37 (11th Cir. 2019).
Jennings, like Knight, does not contend that Hurst v. Florida fits within the
second exception.
“Indeed, the watershed exception remains somewhat
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theoretical at this point; in the years following Teague, the Supreme Court has
never found a rule that fits.” Id. at 1337. “In short, Hurst [v. Florida] meets
neither exception, and therefore is not retroactive.” Id.
ii.
Retroactivity and the Eighth Amendment
Before addressing Jennings’ two constitutional objections to Florida’s
retroactivity decision vis-à-vis Hurst v. Florida, the Court notes that they are
probably not cognizable here.
States may fashion and apply their own
retroactivity standards in state postconviction proceedings, and state
retroactivity decisions have no significance in federal habeas cases. Id. Before
applying any rule retroactively, this Court must perform a threshold Teague
analysis. Id. Thus, this Court cannot grant Jennings any relief under Hurst
v. Florida without ignoring the binding precedent set out in Knight.
Jennings raises three Eighth Amendment arguments. His first is an
attack on a fundamental aspect of retroactivity. Jennings contends that by
setting a cutoff date for the retroactivity of Hurst v. Florida and Hurst v.
State—permitting Hurst relief only to inmates whose death sentences were
final before June 24, 2002—the Florida Supreme Court ensured arbitrary
infliction of the death penalty. Jennings provides no Supreme Court precedent
suggesting that state retroactivity decisions cannot hinge on the date a
conviction becomes final. Indeed, the Teague test does just that: “Unless they
fall within an exception to the general rule, new constitutional rules of criminal
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procedure will not be applicable to those cases which have become final before
the new rules are announced.” Teague, 489 U.S. at 310.
Jennings next argument has nothing to do with the retroactivity of Hurst
v. Florida. Rather, it springs from a rule adopted by the Florida Supreme
Court in Hurst v. State: “the penalty phase jury must be unanimous in making
the critical findings and recommendation that are necessary before a sentence
of death may be considered by the judge or imposed.” Hurst, 202 So. 3d at 59.
The Florida Supreme Court recognized it was adopting a rule that required
“more protection…than that mandated by the federal Constitution[,]” and it
explicitly derived the rule from “the Florida Constitution and Florida’s long
history of requiring jury unanimity in finding all the elements of the offense to
be proven[.]” Id. at 54-57. Based on state law supplemented by snippets of
Supreme Court dicta, Jennings argues his death sentence violates the Eighth
Amendment because it flowed from a non-unanimous death recommendation.
The argument fails because Jennings identifies no misapplication of federal
law. What is more, the jury did unanimously find one aggravating factor when
it convicted Jennings of robbery. See Fla. Stat. § 921.141(6)(d).
Jennings’ third Eighth Amendment argument has even less to do with
Hurst v. Florida. He raises a Caldwell5 challenge based on the trial court’s
5
Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985).
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instruction to the jury “that its penalty phase verdict was merely advisory and
only needed to be returned by a majority vote.” (Doc. 61 at 134). The Supreme
Court explained the reach of Caldwell in Romano v. Oklahoma:
[W]e have since read Caldwell as relevant only to certain types of
comment—those that mislead the jury as to its role in the
sentencing process in a way that allows the jury to feel less
responsible than it should for the sentencing decision. Thus, to
establish a Caldwell violation, a defendant necessarily must show
that the remarks to the jury improperly described the role assigned
to the jury by local law.
512 U.S. 1, 9 (1994) (cleaned up). Jennings identifies no part of the trial court’s
instructions to the jury that mischaracterized the jury’s role in sentencing, and
after thorough review, the Court finds none. Jennings’ Caldwell challenge
lacks merit. See Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir. 1997) (“[I]t
is clear that references to and descriptions of the jury’s sentencing verdict as
an advisory one, as a recommendation to the judge, and of the judge as the
final sentencing authority are not error under Caldwell…because they
accurately characterize the jury’s and judge’s sentencing roles under Florida
law.”).
iii.
Retroactivity and the Fourteenth Amendment
Finally, Jennings argues that Florida’s retroactivity rule violates the
Equal Protection Clause: “Florida’s decision to apply the Hurst decisions only
to the ‘post-Ring’ group of death row inmates results in the unequal treatment
of prisoners who were all sentenced to death under the same unconstitutional
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scheme.” (Doc. 61 at 136). This argument is merely a restatement of his
Eighth Amendment argument, and it fails for the same reasons. The Supreme
Court not only approves of but mandates a retroactivity rule that hinges on
when sentences became final. Teague, supra.
To establish an equal-protection violation, Jennings “must prove
purposeful, intentional discrimination—and to do that, he must prove that the
governmental decisionmaker acted as it did ‘because of, and not merely in spite
of, its effects on an identifiable group.’” Morrissey v. United States, 871 F.3d
1260, 1171 (11th Cir. 2017) (quoting Pers. Adm’r of Mass. v. Feeney, 442 U.S.
256, 279 (1979)). Jennings fails to allege—much less prove—an unlawful
intent. The Florida Supreme Court explained the reason for the rule in Mosley
v. State, 209 So. 3d 1248, 1281 (Fla. 2016); it believed “that Florida’s capital
sentencing statute was unconstitutional from the time that the United States
Supreme Court decided Ring.”
Thus, Jennings has not demonstrated his sentence violates the Equal
Protection Clause of the Fourteenth Amendment.
2. Florida Supreme Court’s procedure on appeal of Jennings successive
Rule 3.851 motion
Jennings contends that by ordering him to brief the applicability of
Hitchcock to his case, and by affirming the denial of his successive Rule 3.851
motion without full briefing, the Florida Supreme Court violated his Eighth
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Amendment and Fourteenth Amendment rights to due process. Jennings’
argument fails for two reasons. First, the Florida Supreme Court’s procedure
did not harm Jennings because he is not entitled to retroactive application of
Hurst v. Florida. Second, an alleged defect in a state collateral proceeding
cannot be the basis for federal habeas relief because it does not undermine the
legality of the conviction itself. Holsey v. Thompson, 462 F. App’x 915, 917
(11th Cir. 2012).
Having reviewed each of the subparts of Ground Five, the Court finds
Jennings has not demonstrated that the state court’s rejection was contrary to
clearly established federal law or based upon an unreasonable determination
of the facts. Ground Five is denied in its entirety. 28 U.S.C. § 2254(d).
DENIAL OF 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, a
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
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encouragement to proceed further,” Miller–El v. Cockrell, 537 U.S. 322, 335–
36 (2003) (citations omitted). Jennings has not made the requisite showing
here and may not have a certificate of appealability on any ground of his
Petition.
Accordingly, it is now
ORDERED:
(1) Petitioner Brandy Bain Jennings’ Amended Petition for Writ of
Habeas Corpus by a Person in State Custody (Doc. 61) is DENIED.
(2) Petitioner is DENIED a certificate of appealability.
(3) The Clerk of the Court is ORDERED to terminate any pending
motions, enter judgment, and close this case.
DONE and ORDERED in Fort Myers, Florida on December 1, 2020.
Copies: All Parties of Record
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