Hayes v. State Of Florida et al

Filing 32

OPINION AND ORDER re: 1 Petition for writ of habeas corpus is denied. Signed by Judge Sheri Polster Chappell on 2/22/2017. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DAVID LEE HAYES,
Petitioner,
v.

Case No: 2:13-cv-774-FtM-38CM

FLORIDA ATTORNEY GENERAL,
Respondent.
/
OPINION AND ORDER1
I. Status
Petitioner David Lee Hayes (hereinafter “Petitioner” or “Hayes”) initiated this action
proceeding pro se by filing a timely 28 U.S.C. § 2254 petition for writ of habeas corpus
(Doc. #1, “Petition”) and supporting memorandum (Doc. #1-1, pp. 1-19, “Memorandum”)
on October 28, 2013. Hayes raises three grounds for relief challenging his judgment and
conviction of burglary of a dwelling and grand theft entered in the Twentieth Judicial
Circuit Court in Lee County, Florida.
Respondent filed a Response (Doc. #20, Response) opposing all grounds and
attached supporting exhibits (Doc. #22, Exhs. 1, 2A through 2D, and 3 through 17)

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comprising the trial court record, the record on direct appeal, and postconviction
pleadings. Inter alia, Respondent argues that Petitioner has not exhausted his claims or
they are otherwise barred from federal review, and alternatively that Petitioner has not
satisfied 28 U.S.C. § 2254(d) (1)-(2). Petitioner filed a Reply (Doc. #18).
For the reasons that follow, the Court concludes that Petitioner is not entitled to
habeas relief and the Petition must be denied. Because the Petition can be resolved on
the basis of the record, an evidentiary hearing is not warranted. Schriro v. Landrigan,
550 U.S. 465, 473-474 (2007) (finding if the record refutes the factual allegations in the
petition or otherwise precludes habeas relief, a district court is not required to hold an
evidentiary hearing).
II. Background and Pertinent Procedural History
An Information charged Hayes with grand theft (count 1) and burglary of a dwelling
(count 2). Exh. 1. Hayes proceeded to a jury trial on July 7, 2010. Exh. 2D. The jury
returned a verdict of guilty as charged. Exh. 2D, 222, 2E. The state provided notice to
have Hayes declared a prison release reoffender, and a habitual felony offender. Exh.
3.

The trial court sentenced Hayes as a habitual felony offender to ten years

imprisonment on the grand theft count and to thirty-years imprisonment on the burglary
of a dwelling count. Exh. 5 at 322, 327, 329, 340-343.
Hayes pursued a direct appeal raising two issues: (1) did law enforcement have
probable cause to arrest Hayes based upon the reported observations of a citizen
informant when law enforcement could not confirm critical facts provided by the informant;
and (2) did the trial court err in permitting the state to admit into evidence testimony
regarding the informant’s hearsay statements. Exh. 7. The state filed an answer brief.

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Exh. 8. The appellate court per curiam affirmed Hayes’s judgment and sentence. Exh.
9.
Hayes then moved for postconviction relief under Florida Rule of Criminal
Procedure 3.850 raising two grounds for relief: (1) Hayes was unlawfully convicted on a
defective charging instrument in violation of Due Process and a violation of his Fourteenth
Amendment right to a fair and impartial jury trial; and (2) Hayes was convicted on improper
jury instructions, which constituted fundamental, prejudicial error.
postconviction court entered an order summarily denying relief.

Exh. 11.
Exh. 12.

The
Hayes

appealed. Exh. 13. The state filed a notice it would not be filing a response brief. Exh.
14. The appellate court per curiam affirmed the lower court’s summary denial. Exh. 15.
Hayes then filed the instant § 2254 Petition.
III. Applicable § 2254 Law
A. 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).
Abdul-Kabir v. Quarterman, 550 U.S. 233, 246 (2007); Penry v. Johnson, 532 U.S. 782,
792 (2001). Post-AEDPA law governs this action. Abdul-Kabir, 550 U.S. at 246; Penry,
532 U.S. at 792; Davis v. Jones, 506 F.3d 1325, 1331, n.9 (11th Cir. 2007).
Under the deferential review standard, 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

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(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). Cullen v. Pinholster, 563 U.S. 170, 181 (2011). “This is a difficult
to meet, and highly deferential standard for evaluating state-court rulings, which demands
that the state-court decisions be given the benefit of the doubt.” Id. (internal quotations
and citations omitted). See also Harrington v. Richter, 562 U.S. 86, 102 (2011) (pointing
out that “if [§ 2254(d)’s] standard is difficult to meet, that is because it was meant to be.”).
Both the Eleventh Circuit and the Supreme Court broadly interpret what is meant
by an “adjudication on the merits.” Childers v. Floyd, 642 F.3d 953, 967-68 (11th Cir.
2011). A state court’s summary rejection of a claim, even without explanation, qualifies
as an adjudication on the merits that warrants deference by a federal court. Id.; see also
Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Indeed, “unless the state
court clearly states that its decision was based solely on a state procedural rule [the Court]
will presume that the state court has rendered an adjudication on the merits when the
petitioner’s claim ‘is the same claim rejected’ by the court.” Childers v. Floyd, 642 F.3d
at 969 (quoting Early v. Packer, 537 U.S. 3, 8 (2002)).
“A legal principle is ‘clearly established’ within the meaning of this provision only
when it is embodied in a holding of [the United States Supreme] Court.”

Thaler v.

Haynes, 559 U.S. 43, 47 (2010); see also Carey v. Musladin, 549 U.S. 70, 74 (2006)
(citing Williams v. Taylor, 529 U.S. 362, 412 (2000)) (recognizing “[c]learly 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). “A state court decision involves an unreasonable application of federal law
when it identifies the correct legal rule from Supreme Court case law but unreasonably

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applies that rule to the facts of the petitioner's case, or when it unreasonably extends, or
unreasonably declines to extend, a legal principle from Supreme Court case law to a new
context.” Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271, 1291 (11th Cir. 2012)
(internal quotations and citations omitted). The “unreasonable application” inquiry
requires the Court to conduct the two-step analysis set forth in Harrington v. Richter, 562
U.S. at 86. First, the Court determines what arguments or theories support the state
court decision; and second, the Court must determine whether “fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a prior”
Supreme Court decision. Id. (citations omitted). Whether a court errs in determining
facts “is even more deferential than under a clearly erroneous standard of review.”
Stephens v. Hall, 407 F.3d 1195, 1201 (11th Cir. 2005).

The Court presumes the

findings of fact to be correct, and petitioner bears the burden of rebutting the presumption
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
B. Federal Claim Must Be Exhausted in State Court
Ordinarily, a state prisoner seeking federal habeas relief must first “‘exhaus[t] the
remedies available in the courts of the State,’ 28 U.S.C. § 2254(b)(1)(A), thereby affording
those courts ‘the first opportunity to address the correct alleged violations of [the]
prisoner’s federal rights.’” Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Coleman
v. Thompson, 501 U.S. 722, 731 (1991)). This imposes a “total exhaustion” requirement
in which all of the federal issues must have first been presented to the state courts.
Rhines v. Weber, 544 U.S. 269, 274 (2005). “Exhaustion requires that state prisoners
must give the state courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the State's established appellate review process. That

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is, to properly exhaust a claim, the petitioner must fairly present every issue raised in his
federal petition to the state's highest court, either on direct appeal or on collateral review.”
Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (citing O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999) and Castile v. Peoples, 489 U.S. 346, 351 (1989)).
To fairly present a claim, a petitioner must present the same federal claim to the
state court that he urges the federal court to consider. A mere citation to the federal
constitution in a state court proceeding is insufficient for purposes of exhaustion.
Anderson v. Harless, 459 U.S. 4, 7 (1983). A state law claim that “is merely similar to
the federal habeas claim is insufficient to satisfy the fairly presented requirement.”
Duncan v. Henry, 513 U.S. 364, 366 (1995)(per curiam). “‘[T]he exhaustion doctrine
requires a habeas applicant to do more than scatter some makeshift needles in the
haystack of the state court record.’” McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir.
2005) (quoting Kelley v. Sec’y for the Dep’t of Corr., 377 F.3d 1317, 1343-44 (11th Cir.
2004)).
“The teeth of the exhaustion requirement comes from its handmaiden, the
procedural default doctrine.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001), cert.
denied, 534 U.S. 1136 (2002). Under the procedural default doctrine, “[i]f the petitioner
has failed to exhaust state remedies that are no longer available, that failure is a
procedural default which will bar federal habeas relief. . . .” Smith, 256 F.3d at 1138. A
procedural default for failing to exhaust state court remedies will only be excused in two
narrow circumstances.

First, a petitioner may obtain federal habeas review of a

procedurally defaulted claim if he shows both “cause” for the default and actual “prejudice”

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resulting from the asserted error. House v. Bell, 547 U.S. 518, 536-37 (2006); Mize v.
Hall, 532 F.3d 1184, 1190 (11th Cir. 2008).
Second, under exceptional circumstances, a petitioner may obtain federal habeas
review of a procedurally defaulted claim, even without a showing of cause and prejudice,
if such a review is necessary to correct a fundamental miscarriage of justice. House,
547 U.S. at 536; Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
IV. Findings of Fact and Conclusions of Law
The Petition raises these three grounds:
Ground One- Petitioner’s 14th amendment rights were
violated when Lee County Sheriff’s unlawfully stopped him,
detained him and seized him without probable cause;
Ground Two- Petitioner’s 6th Amendment right to the
confrontation clause was violated when the trial judge read
the allegations and accusations contained in the charging
instrument to the jury panel; and
Ground Three- 6th Amendment right to confrontation was
violated by the prosecutor.
See Petition at 6-9 (errors in original). The Court will address each ground in turn.
A. Ground One
Petitioner states that his Fourteenth Amendment rights were violated when the Lee
County Sheriff’s Office unlawfully stopped, detained, and seized him without probable
cause. Petition at 4. As background, Petitioner explains that on August 30, 2007, at
approximately 12:30, Deputy Kinnon conducted a traffic stop of the vehicle he was driving
containing himself and one other occupant at the 7-11 store at U.S. 41 and Boy Scout
Road in Fort Myers based upon a civil witness reporting to 911 a suspected burglary in
progress. Memorandum at 5. Petitioner faults his ultimate seizure because the witness
had reported he thought the burglar carried away an item like a weed wacker, but no

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weed wacker was located in his car when stopped.

Instead, in the backseat of

Petitioner’s car was a satchel, a power charger, and a miter saw.

Id. at 6. Thus,

Petitioner contends that his arrest was unlawful based on this discrepancy. Id. at 7.
In Response, Respondent argues that any challenge Petitioner raises to Officer
Kinnon’s initial stop is procedurally defaulted because Petitioner waived the issue at trial
by conceding the initial stop was a proper Terry stop. Response at 12. To the extent
Petitioner argues that the officer lacked probable cause to arrest him, Respondent argues
that the claim is barred by the Stone2 doctrine because Petitioner had a full and fair
opportunity to litigate his Fourth Amendment claim in the state court. Id. at 14-15.
1. Exhaustion and Procedural Default
As discussed above, a petitioner who fails to raise his federal claims in the state
court is procedurally barred from pursuing the same claim in federal court absent a
showing of cause and prejudice, or a fundamental miscarriage of justice. Supra at 7-10.
A procedural default can arise in different ways. A claim may be procedurally defaulted
when a state court correctly applies a procedural default principle of state law and
concluded that the petitioner’s federal claims are barred in its order dismissing the
petitioner’s postconviction claim. Bailey v. Nagle, 172 F.3d 1299, 1302-1303 (11th Cir.
1999). When a state court makes this determination, the federal court must determine
whether the last state court rendering judgment “clearly and expressly” stated that its
judgment rested on a procedural bar.

Id.

Second, a claim may be procedurally

defaulted when a petitioner never raised the claim in state court and it is obvious that the
unexhausted claim would now be procedurally defaulted in state court. Id. at 1303.

2

Stone v. Powell, 428 U.S. 465 (1976).

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A procedural default for failing to exhaust state court remedies will only be excused
in one of two narrow circumstances. First, Petitioner may obtain review of a procedurally
defaulted claim if he shows both “cause” for the default and actual “prejudice” resulting
therefrom. House, 547 U.S. 518, 536-537 (2006); Mize, 532 F.3d at 1190. Second,
Petitioner would have to show a fundamental miscarriage of justice.
To establish cause for a procedural default, Petitioner “must demonstrate that
some objective factor external to the defense impeded the effort to raise the claim properly
in state court.”

Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999).

To show

prejudice, Petitioner must demonstrate not only that the errors at his trial created the
possibility of prejudice but that they worked to his actual and substantial disadvantage
and infected the entire trial with error of constitutional dimensions.
Frady, 456 U.S. 152 (1982).

United States v.

In other words, he must show at least a reasonable

probability of a different outcome. Henderson v. Campbell, 353 F.3 d 880, 892 (11th Cir.
2003).
A petitioner may obtain federal habeas review of a procedurally defaulted claim,
without a showing of cause or prejudice, if review is necessary to correct a fundamental
miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477
U.S. at 495-96. A fundamental miscarriage of justice occurs in an extraordinary case
where a constitutional violation has probably resulted in the conviction of someone who
is actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995). This exception requires
a petitioner's “actual” innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.
2001). To meet this standard, a petitioner must show a reasonable likelihood of acquittal
absent the constitutional error. Schlup, 513 U.S. at 327.

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To the extent Petitioner challenges the officer’s initial basis to stop Petitioner’s car,
the Court finds that portion of Ground One is now procedurally defaulted. A claim may
be procedurally defaulted when a petitioner never raised the claim in state court and it is
obvious that the unexhausted claim would now be procedurally defaulted in state court.
Petitioner’s defense counsel conceded that the officer’s initial stop of the car was lawful.
Exh. 2 at 434 (defense attorney stating there was sufficient information for the officer to
do a Terry stop based on the BOLO, the unique type of car, and the brake lights.). In
Florida, to preserve a claim for appellate review, specific legal argument or grounds upon
which it is based must be presented to the trial court. See generally Hannah v. Crosby,
Case No. 8:04-cv-1072-T24EAJ, 2005 WL 2346966 *5 (M.D. Fla. Sept. 26, 2005) (citing
cases) (noting contemporaneous objection rule); see also Spann v. Florida, 857 So.2d
845, 852 (Fla. 2003) (noting in Florida to be preserved for appeal, the specific legal ground
upon which a claim is based must be raised at trial and a claim different than that will not
be heard on appeal)(citation omitted). To the extent Petitioner now challenges his initial
stop, this portion of Ground One was not preserved for appeal in accordance with Florida
law, was unexhausted, and is now procedurally defaulted.

Petitioner cannot show

cause, prejudice, or a fundamental miscarriage of justice to overcome the procedural bar.
2. Barred by Stone
Turning to Petitioner’s argument that the officer lacked probable cause to arrest
him, the Court finds the claim is barred by the Stone doctrine. The law is well settled
that a federal court cannot entertain a violation of a habeas petitioner’s Fourth
Amendment rights if the petitioner had an opportunity for full and fair consideration of his
claim in the State courts. Stone, 428 U.S. at 494; Bradley v. Nagle, 212 F.3d 559, 564

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(11th Cir. 2000); Mincey v. Head, 206 F.3d 1106, 1125 (11th Cir. 2000). “[F]ull and fair
consideration requires consideration by the fact-finding court, and at least the availability
of meaningful appellate review by higher state court.” Mincey, 206 F.3d at 1126. Here,
Petitioner’s prior exhaustion of this ground in the Florida courts triggers the bar of Stone
v. Powell, precluding federal review of his Fourth Amendment claim, because the State
provided Petitioner with processes for full and adequate consideration of this ground.
A review of the record evidences that Petitioner was provided a “full and fair
consideration” of his claims. On November 7, 2009, the trial court held a hearing on the
motion to suppress during which officers McKinnon and Dunaske testified. Exh. 2 at 38.
Upon conclusion of the hearing, the trial court denied Petitioner’s motion to suppress
finding that the officers had probable cause to arrest Petitioner for burglary. Id. at 440.
The judge found that the nature of the items seen in plain view in the back of the car
generally met the description given by the witnesses to dispatchers. Id. Significantly,
the witness kept a “continuous view” of the vehicle that met the description of the burglar’s
car. Id. at 441. Petitioner and the co-occupant of the car met the description of the
people the witness saw “going over the fence.” Id.

The judge noted that if the items

were taken with permission someone would not jump over a fence carrying the items.
Id. Based on the foregoing, the trial court found probable cause for Petitioner’s arrest
based on the information available to the law enforcement officers. Petitioner does not
demonstrate that the suppression hearing conducted by the trial court and the review of
trial court’s conclusions by the appellate court did not afford him a full and fair opportunity
to develop the factual issues of his case. Any allegation of State court error in denying
a motion to suppress does not suffice to avoid the Stone bar. Mason v. Allen, 605 F.3d

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1114, 1120 (11th Cir. 2010); see also Peoples v. Campbell, 377 F.3d 1208, 1224-26 (11th
Cir. 2004) (holding that Stone precluded consideration on habeas review of claim alleging
lack of probable cause for arrest).

Pursuant to Stone, Ground One of the Petition

challenging the probable cause for Petitioner’s arrest is dismissed.
B. Grounds Two and Three
Grounds Two and Three both raise claims under the Sixth Amendment,
Confrontation Clause. In ground two, Petitioner argues that the trial judge violated the
Confrontation Clause by reading the charging instrument to the jury.

Petition at 8;

Memorandum at 7. In Response, Respondent argues that Ground Two is exhausted
and now procedurally defaulted because Petitioner never challenged the trial court’s
reading of the charging document to the jury.

Response at 21.

Alternatively,

Respondent addresses the merits and argues that the trial court’s reading of the
Information to the jury in no way violated Petitioner’s right to confrontation because
among other reasons the charging document is not testimonial. Id. at 26.
1. Exhaustion and Procedural Default of Ground Two
The Court finds Ground Two is now procedurally defaulted.

A claim may be

procedurally defaulted when a petitioner never raised the claim in state court and it is
obvious that the unexhausted claim would now be procedurally defaulted in state court.
Petitioner never objected to the trial judge’s reading of the Information. Exh. 2d at 2930.

In Florida, to preserve a claim for appellate review, specific legal argument or

grounds upon which it is based must be presented to the trial court. See generally
Hannah v. Crosby, Case No. 8:04-cv-1072-T24EAJ, 2005 WL 2346966 *5 (M.D. Fla.
Sept. 26, 2005) (citing cases) (noting contemporaneous objection rule); see also Spann
v. Florida, 857 So.2d 845, 852 (Fla. 2003) (noting in Florida to be preserved for appeal,

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the specific legal ground upon which a claim is based must be raised at trial and a claim
different than that will not be heard on appeal)(citation omitted). Petitioner did not alert
the trial court to the Constitutional dimension of his claim, which is required to exhaust a
claim. Supra at 5-6.

Ground Two was not properly exhausted and is now procedurally

defaulted. Petitioner cannot show cause, prejudice, or a fundamental miscarriage of
justice to overcome the procedural bar.
2. Merits of Ground Two
The Confrontation Clause of the Sixth Amendment of the United States
Constitution guarantees that A[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.@ U.S. Const. Amend. VI.
Matters concerning admission of evidence and the Confrontation Clause are different, but
protect similar values. California v. Green, 399 U.S. 149, 155-56 (1970).
Here, Petitioner takes issue with the trial court’s following reading to the
prospective jury:
THE COURT: At this time I am going to read you the
Information and ask you certain questions as a whole. The
Information is very appropriately called an Information
because it is a document that informs the Defendant of the
charges that the State has brought against him. It should not
be considered by you as proof of guilt and it is not evidence.
It is simply a document designed to inform, as I said, the
Defendant of the charges.
In this case, the State has charged in a two-count Information:
Count I, Grand Theft. More specifically, the State charges
that on or about August 30, 2007 in Lee County, Florida David
Lee Hayes did unlawfully and knowingly obtain or use or
endeavor to obtain or endeavor to use money or property of
another; to wit, a miter saw of Stanley Burun, as owner or
custodian thereof, taken from a dwelling or enclosed curtilage
of a dwelling. The value of such property or money being
$100 or more but less than $300, with the intent to temporarily
or permanently deprive the owner or custodian of their money

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or property, or any benefit therefrom or to appropriate the
money or property to the use of another or to any person not
entitled to it, contrary to Florida law.
The State charges in Count II Burglary of a dwelling.
Specifically, the State charges on or about August 30, 2007 in
Lee County, Florida David Lee Hayes did unlawfully enter or
remain in a certain structure; to wit, a dwelling located at or in
the vicinity of 1105 Timberline Circle. Fort Myers Florida in the
county and state aforesaid, the property of Stanley Burun, as
owner or custodian thereof with the intent to commit an
offense therein; to wit, theft, contrary to Florida law.
Exh. 2D at 30 (emphasis added). The Information neither constituted a witness, or
evidence, to whom Petitioner’s Sixth Amendment right to Confrontation attaches. The
judge simply informed Petitioner and the prospective jury of the State’s accusations
against Petitioner for which his criminal trial was commencing and warned both Petitioner
and the prospective jury that the Information did not constitute evidence. Ground Two is
dismissed as procedurally defaulted, or, in the alternative is denied on the merits.
3. Exhaustion and Procedural default of Ground Three
In ground three, Petitioner faults the prosecutor for making certain statements
concerning the “be on the lookout” (“BOLO”) report during opening statements and argues
these opening statements violated the Confrontation Clause. Petition at 9; Memo at 1218.
Respondent argues that to the extent Petitioner raises a prosecutorial misconduct
claim in the instant Petition, such a claim is unexhausted and procedurally defaulted
because Petitioner never faulted the prosecutor for his opening statements at the trial
court level and on direct appeal. Response at 32 (citing Spencer v. State, 842 So. 2d 52
(Fla. 2003) (holding that substantive claims of prosecutorial misconduct that could have

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and should have been raised on direct appeal are procedurally barred from consideration
in a postconviction motion)).
Respondent also argues that Ground Three is unexhausted and procedurally
defaulted because the claim presented here differs from the claim Petitioner raised in the
trial court and on appeal. Response at 30. Respondent submits that when Petitioner
requested a new trial, he asserted that the trial court’s ruling that the officer could testify
that he stopped Petitioner’s vehicle because it matched a description provided in a BOLO
report was erroneous because it permitted a hearsay description of the vehicle. Id. at 30
(citing Exh. 7 at 15). The state responded that the trial court correctly ruled that any
statements of the witness regarding the BOLO could not be elicited and no details came
out. Id. (citing Exh. 8 at 17-18). Alternatively, the state argued that to the extent the
trial court erred by allowing limited testimony, any error was harmless under Florida law
because there was no reasonable probability that the error effected the verdict because
no contents of the report were revealed to the jury. Id.
Respondent’s arguments concerning Petitioner’s procedural default of Ground
Three are well taken. The Court agrees that Petitioner did not preserve and properly
exhaust a prosecutorial misconduct claim stemming from the prosecutor’s opening
statement. Ground Three is unexhausted and now procedurally defaulted. Petitioner
has not shown cause, prejudice, or a fundamental miscarriage of justice to overcome the
procedural default.
2. Merits of Ground Three
In the alternative, Respondent argues the Sixth Amendment right to confrontation
did not attach to the prosecutor’s opening statements.

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Response at 33.

Further,

Respondent argues that the prosecutor’s opening statement did not deprive Petitioner of
a fundamentally fair trial considering Petitioner’s own inconsistent statements, his
eventual confession, and his possession of recently stolen property. Id. at 34.
The prosecutor’s opening statement did not involve the admission of any evidence,
and did not rise to the level of constitutional error. Frazier v. Cupp, 394 U.S. 731, 73336 (1969). Further, the law enforcement officers who initially stopped and then arrested
Petitioner with the stolen property in his car testified as to the details of the stop and
arrest, and were subject to cross-examination. Additionally, the owner of the stolen
property testified and identified his stolen property, and was subject to cross-examination.
The Court finds no error under Crawford, 541 U.S. 36. Ground Three is dismissed as
procedurally defaulted, or, in the alternative is denied on the merits.
ACCORDINGLY, it is hereby
ORDERED:
1. The § 2254 Petition (Doc. #1) is DENIED.
2.

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
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability on either petition. A prisoner seeking to appeal a district court's final order
denying his petition for writ of habeas corpus has no absolute entitlement to appeal but
must obtain a certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1); Harbison v.
Bell, 556 U.S. 180, 184 (2009). “A [COA] may issue . . . only if the applicant has made

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a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make such a showing, Petitioner “must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong,” Tennard v.
Dretke, 542 U.S. 274, 282 (2004) or, that “the issues presented were adequate to deserve
encouragement to proceed further”, Miller-El v. Cockrell, 537 U.S. 322, 335-36
(2003)(citations omitted).

Petitioner has not made the requisite showing in these

circumstances. Finally, because Petitioner is not entitled to a certificate of appealability,
he is not entitled to appeal in forma pauperis.
DONE and ORDERED in Fort Myers, Florida on this 22nd day of February, 2017.

FTMP-1
Copies: All Parties of Record

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