Bacon v. Bondi et al
Filing
33
OPINION AND ORDER denying Grounds 1, 2, 4, and 6 of 1 Petition for writ of habeas corpus; dismissing as procedurally barred Grounds 3 and 5, or in the alternative denying on the merits. The Clerk shall enter judgment accordingly and close the case. A certificate of appealability is denied. Signed by Judge John E. Steele on 3/28/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT BACON,
Petitioner,
v.
Case No: 2:13-cv-804-FtM-29CM
PAM BONDI,
Respondent.
OPINION AND ORDER
I.
Status
Petitioner Robert Bacon (hereinafter “Petitioner,” “Bacon,”
or “Defendant”) 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 Memorandum of Law (Doc. #2, “Memorandum”)
challenging his judgment and conviction of DUI manslaughter and
leaving the scene of an accident involving death entered in the
Twentieth Judicial Circuit Court in Collier County, Florida.
Respondent filed a Response (Doc. #16, Response) opposing all
grounds and attached supporting exhibits (Doc. #17, Exhs. 1-15;
Doc. #27, Supp. Exh. 16-17) consisting of the record on direct
appeal and the postconviction record.
Inter alia, Respondent
argues that Petitioner has not satisfied 28 U.S.C. § 2254(d) (1)-
(2). 1
Petitioner filed a Reply (Doc. #31) and also attached an
exhibit (Doc. #32-1) consisting of the postconviction court’s
order denying his Rule 3.850 motion, which Respondent previously
submitted.
For the reasons that follow, the Court denies the Petition.
II.
A.
Applicable § 2254 Law
Deferential Review Required By AEDPA
Petitioner filed his Petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214 (1996).
Abdul-Kabir v.
Quarterman, 550 U.S. 233, 246 (2007); Penry v. Johnson, 532 U.S.
782,
792
action.
(2001).
Consequently,
post-AEDPA
law
governs
this
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
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
1
Respondent states
Response at 10, n.1.
that
the
- 2 -
Petition
is
timely
filed.
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
Cullen v. Pinholster, ___ U.S. ___, 131 S.
Ct. 1388, 1398 (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. (citations omitted).
See also Harrington v. Richter,
___ U.S. ___, 131 S. Ct. 770, 786 (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
Thus,
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)).
- 3 -
“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, ___ U.S.
___, 130 S. Ct. 1171, 1173 (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).
involves
an
unreasonable
application
“A state court decision
of
federal
law
when
it
identifies the correct legal rule from Supreme Court case law but
unreasonably 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, 131 S. Ct. at 770.
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.
- 4 -
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).
The Supreme Court has held that review “is limited to the
record that was before the state court that adjudicated the claim
on the merits.”
Cullen, 131 S. Ct. at 1398.
Thus, the Court is
limited to reviewing only the record that was before the state
court at the time it rendered its order.
B.
Id.
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
- 5 -
by invoking one complete round of the State's established appellate
review
process.
That
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.”
U.S. 364, 366 (1995) (per curiam).
Duncan v. Henry, 513
“‘[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
- 6 -
(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” 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, Petitioner would have to show a fundamental
miscarriage of justice.
C.
Ineffective Assistance of Counsel
Ineffective assistance of counsel claims are reviewed under
the standards established by 28 U.S.C. § 2254(d).
Hall, 527 F.3d 1162, 1183 (11th Cir. 2008).
Newland v.
Post-AEDPA, the
standard set forth in Strickland v. Washington, 466 U.S. 668
(1984), remains applicable to the claims of ineffective assistance
of counsel raised in this case.
Newland, 527 F.3d at 1184.
In
Strickland, the Supreme Court established a two-part test to
determine whether a convicted person is entitled to habeas relief
on
the
grounds
that
his
or
her
counsel
rendered
ineffective
assistance: (1) whether counsel’s representation was deficient,
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i.e., “fell below an objective standard of reasonableness” “under
prevailing professional norms,” which requires a showing that
“counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”;
and
(2)
whether
the
deficient
performance
prejudiced
the
defendant, i.e., there was a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different, which “requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.”
Strickland, 466 U.S. at 688;
see also Bobby Van Hook, 558 U.S. 4, 8, 130 S. Ct. 13, 16 (2009);
Cullen v. Pinholster, 131 S. Ct. at 1403 (2011)
States may “impose whatever specific rules . . . to ensure
that criminal defendants are well represented,” but “the Federal
Constitution imposes one general requirement: that counsel make
objectively reasonable choices.”
Bobby Van Hook, 130 S. Ct. at
17 (internal quotations and citations omitted).
It is petitioner
who bears the heavy burden to “prove, by a preponderance of the
evidence, that counsel’s performance was unreasonable.”
Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006).
Jones v.
A court must
“judge the reasonableness of counsel’s conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct,” Roe
v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland,
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466 U.S. at 690), applying a “highly deferential” level of judicial
scrutiny.
Id.
A court must adhere to a strong presumption that
“counsel’s conduct falls within the wide range of reasonable
professional
assistance.”
Strickland,
466
U.S.
at
689.
An
attorney is not ineffective for failing to raise or preserve a
meritless issue.
Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir.
1989); United States v. Winfield, 960 F.2d 970, 974 (11th Cir.
1992) (“a lawyer’s failure to preserve a meritless issue plainly
cannot prejudice a client”). “To state the obvious: the trial
lawyers, in every case, could have done something more or something
different.
So, omissions are inevitable.
But, the issue is not
what is possible or ‘what is prudent or appropriate, but only what
is constitutionally compelled.’”
Chandler v. United States, 218
F.3d 1305, 1313 (11th Cir. 2000) (quoting Burger v. Kemp, 483 U.S.
776, 794 (1987)).
III.
Findings of Fact and Conclusions of Law
This Court has carefully reviewed the record and, for the
reasons set forth below, concludes no evidentiary proceedings are
required in this Court.
Schriro v. Landrigan, 550 U.S. 465, 127
S. Ct. 1933, 1939-40 (2007).
Petitioner does not proffer any
evidence that would require an evidentiary hearing, Chandler v.
McDonough, 471 F.3d 1360 (11th Cir. 2006), and the Court finds
that the pertinent facts of the case are fully developed in the
- 9 -
record before the Court.
Schriro, 550 U.S. at 474; Turner v.
Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541
U.S. 1034 (2004).
A.
Ground One
Petitioner first argues that the trial court erred by denying
his
motion
to
suppress.
Petition
at
5;
Memorandum
at
2-8.
Petitioner explains that an eyewitness in this case, Carlos Diaz,
testified that on February 11, 2008, at around 11:00 p.m. he was
driving alone in his vehicle going south on U.S. 41 to pick up his
brother from work.
flashing light.
He past two bicyclists, one of whom had a
After he passed the bicyclists, Diaz looked in
his rearview mirror and saw a black truck get close to the
bicyclists and then one of the truck’s headlights went out.
truck then passed Diaz’s vehicle.
The
Diaz caught up with the truck
stopped at an intersection and wrote down the tag number.
After
Diaz picked-up his brother at work, Diaz drove back by the accident
scene and stopped to tell police what he had witnessed.
then taken to a home in Naples Park.
Diaz was
Once at the Naples Park
home, Petitioner claims that Diaz saw him in handcuffs and in a
spot light.
Additionally, Petitioner contends that he was placed
in the back seat of the police car.
Diaz identified Petitioner
as the driver of the truck he saw.
Diaz did not subsequently
identify Petitioner in court.
Instead, Petitioner claims that
- 10 -
Deputy Boliak testified that another officer had stated that Diaz
identified him on the evening of the incident.
Id. at 4.
Petitioner contends the out-of-court identification procedure
was unduly suggestive and impermissible.
Citing “Simmons v.
U.S.,” 2 Petitioner argues that the trial court did not make a
factual finding regarding the first prong of Simmons, i.e. whether
the identification was tainted or highly suggestive, and instead
only addressed the second prong of Simmons, ultimately finding
that the totality of the circumstances did not give rise to a
substantial likelihood of misidentification.
Petitioner submits
that the trial court’s finding was erroneous because Diaz could
not identify Petitioner as the driver, even when he was presented
in a different perspective involving being placed in police car
and viewed through rear-view mirror, or with a hat placed on his
head to match the description of the driver.
Id. at 7.
Instead,
Petitioner argues Diaz only became certain of the identification
during the suppression hearing.
In
Response,
Respondent
Id.
acknowledges
that
Petitioner
exhausted Ground One by raising this claim in his motion to
2
Petitioner’s cite is incorrect.
Simmons is actually a
Florida Supreme Court, not a United States Supreme Court case, and
was relied upon in the trial court’s order to deny Petitioner’s
motion to suppress.
See Exh. 17 (citing Simmons v. State, 934
So.2d 1100, 1118 (Fla. 2006).
- 11 -
suppress with the trial court and on direct appeal.
Response at
Respondent argues that Ground One is barred by the Stone 3
12.
doctrine because Petitioner had a full and fair opportunity to
develop this claim before the State court.
Response at 12.
Respondent reviews the testimony provided at the pre-trial hearing
on the motion to suppress and notes that the trial court denied
Bacon’s motion.
Id. at 14 (citing Exh. 10e at 169-195 hearing
transcript); see also Doc. #32 (referencing Exhs. 16-17 (trial
court order denying Bacon’s motion to suppress)). 4
The
Court
agrees
with
Respondent
that
Petitioner
has
exhausted Ground One by raising the issue at the trial court in a
motion to suppress, which the trial court denied, and then on
direct appeal.
However, the Court does not find that Ground One
is barred by Stone v. Powell, 428 U.S. 465 (1976).
In Stone, the
United States Supreme Court held:
where the State has provided an opportunity
for full and fair litigation of a Fourth
Amendment claim, a state prisoner may not be
granted federal habeas corpus relief on the
ground
that
evidence
obtained
in
an
unconstitutional
search
and
seizure
was
introduced at his trial. In this context the
contribution of the exclusionary rule, if any,
to the effectuation of the Fourth Amendment is
3
Stone v. Powell, 428 U.S. 465 (1976).
In the Response, Respondent inadvertently cites Exh. 10c as
the trial court’s order denying Bacon’s motion to suppress. The
trial court’s order denying the motion to suppress is located at
a supplemental appendix, Exh. 17. See Doc. #32.
4
- 12 -
minimal, and the substantial societal costs of
application of the rule persist with special
force.
Id. at 494-95 (footnotes omitted).
bring
a
Fourth
Amendment
Here, Petitioner does not
challenge.
Instead,
Petitioner
challenges the out-of-court identification as unduly suggestive
and a violation of his right to due process under the Fourteenth
Amendment.
Petition at 5.
Thus, Respondent is incorrect to
assert that Stone bars such a claim from habeas review.
See
Stovall v. Denno, 388 U.S. 293 (1967), abrogated on other grounds,
Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993) (holding
that an unnecessarily suggestive pre-indictment identification
could violate due process and was presented in the context of
habeas corpus proceedings); see also Kimmelman v. Morrison, 477
U.S. 365, 374-75 (1986)(finding a claim that a petitioner’s defense
attorney was incompetent in connection with a motion to suppress
was subject to review in a habeas action); Withrow v. Williams,
507 U.S. 680, 687 (1993) (finding Stone bar did not restrict
exercise
of
federal
habeas
jurisdiction
on
a
claim
that
a
petitioner’s conviction rests on statements obtained in violation
of Miranda v. Arizona, 384 U.S. 436 (1966)).
Nevertheless, Petitioner’s Ground One remains subject to the
AEDPA standards of review set forth in 28 U.S.C. § 2254(d) as
discussed above because the trial court issued an order denying
- 13 -
Petitioner’s motion to suppress.
task
is
to
determine
whether,
In other words, this Court’s
in
admitting
the
out-of-court
identification, the state courts’ adjudication was contrary to
clearly
established
federal
law,
an
unreasonable
application
thereto, or based on an unreasonable determination of the facts.
When this Court is tasked with evaluating the constitutionality of
an out-of-court identification:
First, we must determine whether the original
identification
procedure
was
unduly
suggestive.
Dobbs v. Kemp, 790 F.2d 1499,
1506 (11th Cir. 1986), modified in part on
other grounds, 809 F.2d 750 (11th Cir.), cert.
denied, ____ U.S. _____, 107 S. Ct. 2203
(1987).
If
we
conclude
that
the
identification procedure was suggestive, we
must then consider whether, under the totality
of the circumstances, the identification was
nonetheless reliable.
See Neil v. Biggers,
409 U.S. 188, 199 (1972), Dobbs, 790 F.2d at
1506.
This
second
stage
involves
consideration of five factors identified by
the Supreme Court in Neil v. Biggers:
opportunity to view, degree of attention,
accuracy
of
the
description,
level
of
certainty, and length of time between the
crime and the identification.
409 U.S. at 199.
This is essentially the standard the trial court
used in denying Petitioner’s motion to suppress.
Petitioner contends the trial court did not make a finding as
to the first element of Simmons, i.e. whether the identification
was tainted or highly suggestive, but the record shows the trial
judge
discussed
the
matter
and
the
- 14 -
ruling
in
fact
favored
Petitioner
with
respect
to
that
portion
of
the
test.
Specifically, the trial court noted that “it was unclear whether
all
show-up
identification
are
inherently
unnecessarily
suggestive, or whether that is a factual issue to be determined by
a court.”
Exh. 17 at 44.
The trial court then went on to presume
that all show-up identifications are unnecessarily suggestive, but
proceeded to address the second prong of the test consisting of
several factors to determine that misidentification in this case
was not likely.
Id. at 44-45.
The factors the trial court
considered are the same factors set forth in Neil v. Biggers, 409
U.S.
at
199.
Thus,
the
governing legal principles.
trial
court
identified
the
correct
Petitioner is only entitled to relief
if he can point to a materially indistinguishable Supreme Court
case
in
which
the
Supreme
Court
excluded
an
out-of-court
identification; if he can show that the state court’s adjudication
was an objectively unreasonably application of clearly established
Supreme Court case law; or, if he can show that the decision was
an
objectively
unreasonable
determination
of
the
facts.
Petitioner Bacon has not done so.
In the order denying Petitioner’s motion to suppress, the
trial judge noted that Diaz’s show-up identification of Bacon as
the driver occurred only about 1 to 1 1/2 hours after the incident
occurred.
Based on testimony from Diaz, the judge found that Diaz
- 15 -
had ample opportunity to view Bacon.
The judge noted that Diaz
drove past two bicycles on US 41 in Collier County Florida.
Diaz
took special note of the bicyclists traveling on the bike path
because of the flashing light on one bike.
He continued to view
the bicyclists in his rear-view mirror and witnessed a black truck
approaching them and then the truck’s right-headlight winked out.
Diaz was alerted to pay attention to the driver of the black truck
by this event.
The black truck then passed Diaz and he wrote down
the license plate number.
As Bacon, who was the driver of the
black truck, and Diaz stopped at an intersection, Diaz got a good
view
of
the
driver’s
profile.
intersection was well illuminated.
Diaz
testified
that
the
The trial judge found Diaz’s
degree of attention was significant having witnessed what he
suspected was the truck that hit the bicyclists.
Diaz gave an
accurate description of Bacon to police officers prior to the showup identification.
looked
different
enforcement.
There was no testimony or evidence that Bacon
than
the
description
Diaz
provided
to
law
The judge noted that both Diaz and Sergeant Humann
testified that Diaz was not 100% certain of his identification of
Bacon when Diaz viewed Bacon facing forward, but he was 80 or 90%
sure.
Once Bacon turned so Diaz could see his profile, Diaz was
100% certain with his identification.
- 16 -
Based on the foregoing, the
trial court found the procedure used in this case did not give
rise to a substantial likelihood of misidentification.
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 resulted in a decision contrary
to or an unreasonable application of Supreme Court precedent, or
an unreasonable determination of the facts based on the evidence
presented.
The suppression hearing transcript supports the trial
court’s findings.
See generally Exh. 10e. In fact, the trial
judge was generous to Petitioner in finding that the out-of-court
identification occurred one hour to one and a half hours following
the
crime
when
testimony
also
supported
a
finding
that
the
identification happened less than 30 minutes, or no more than one
hour following the crime.
allegations
that
identification
Diaz
are
Exh. 10e at 180, 184.
could
not
unequivocally
identify
refuted
him
by
Petitioner’s
during
the
the
record.
Accordingly, Petitioner is denied relief on Ground One.
Ground Two
Ground Two contains three sub-parts.
Petitioner argues that
his trial counsel rendered ineffective assistance of counsel in
violation of the Sixth Amendment when counsel failed to object to
the introduction of prejudicial hearsay testimony.
2.
Petition at
Petitioner’s supporting memorandum expounds on this claim
- 17 -
generally
Boliak’s
asserting
testimony
that
counsel
concerning
failed
three
to
object
matters
that
to
Deputy
ultimately
“bolstered the State’s case on the disputed issue of identity.”
Memorandum at 10.
Petitioner first takes issue with officer Boliak’s testimony
that Boliak asked Bacon’s roommate, Dawn Clements, to bring him
the hat that Bacon wore earlier that evening.
Boliak testified
that Clements brought him the hat, and it was used to assist
eyewitness Diaz in identifying Bacon as the driver wearing the
hat.
Petitioner
asserts
that
Clements
testified
only
as
a
rebuttal witness and did not talk about the hat and was not crossexamined about the hat.
Id.
Petitioner contends this constituted
prejudicial hearsay testimony to which counsel failed to object.
In Response, Respondent acknowledges Ground Two is exhausted
to the extent Petitioner raised the claims in his Rule 3.850 motion
and
appealed
the
Response at 19.
postconviction
court’s
denial
therefrom.
Referring to the postconviction court’s order
denying Petitioner relief on his claim, Respondent argues that
Petitioner
cannot
postconviction
satisfy
court
the
Strickland
determined
that
the
test
because
record
the
refuted
Petitioner’s claims.
The Court agrees with Respondent and finds Ground Two is
exhausted to the extent Petitioner raised this claim in his Rule
- 18 -
3.850 motion, identified by the postconviction court as grounds
1a, 1b, and 1c, and appealed the trial court’s denial therefrom.
In denying Petitioner relief on this claim, the postconviction
court cited Strickland and found in pertinent part as follows:
As for Ground 1a . . .[t]he record reflects
that Corporal Boliak had information that the
driver of the truck involved in the criminal
incident was male, wore a baseball cap, and
that Corporal Boliak observed Defendant at his
residence and noticed that Defendant’s hair
gave the appearance that he had recently worn
a hat. (T. 232, 371, 264-67). Additionally,
the eyewitness that was able to write down and
report the driver’s automobile tag number to
law enforcement authorities, testified that he
saw the profile of the driver and that the
driver was wearing a dark baseball cap. (T.
231-32). The eyewitness identified the truck
at Defendant’s residence as the same truck
involved in the criminal incident earlier the
same night. (T. 234).
Additionally, the
record reflects that trial counsel objected to
the
prosecuting
attorney’s
questions
of
Corporal Boliak regarding the request of
Defendant’s roommate to bring him the hat
Defendant was wearing that day (T. 266).
Notably, the Court sustained trial counsel’s
objection as having no foundation to the line
of questions to Corporal Boliak at the time of
the testimony (T. 266). Based on a review of
the above referenced trial transcript, the
Court finds that even if Corporal Boliak’s
trial testimony amounted to inadmissible
hearsay and trial counsel were found to be
ineffective for failing to object to Corporal
Boliak’s trial testimony that he requested
Defendant’s female roommate to bring him the
hat Defendant was wearing on the day of the
criminal incident and she brought him a hat,
Defendant cannot demonstrate that there was a
reasonable probability that, but for counsel’s
- 19 -
errors the result of the proceeding would have
been different.
Therefore, even if trial
counsel’s performance was deficient as alleged
in Defendant’s Ground 1a, trial counsel cannot
be found to have been ineffective because
Defendant
cannot
demonstrate
prejudice
pursuant to Strickland. Accordingly, Ground
1a is hereby denied.
Exh. 10g at 3-5.
The Court finds that the State courts’ decisions were neither
contrary to, nor an unreasonable application of Strickland.
Nor
did the postconviction court’s decision amount to an unreasonable
determination of the facts based on the evidence presented.
postconviction
court
applied
the
Strickland
standard
Petitioner’s claim of ineffective assistance of counsel.
The
to
The
postconviction court reasonably determined that counsel did not
render
deficient
Clements’
hat
performance
testimony,
based
which
on
caused
failure
to
Petitioner
object
to
prejudice,
because counsel did in fact object on other grounds, and the trial
court sustained the objection.
Additionally, the postconviction
court determined Petitioner could not show prejudice considering
there was eyewitness testimony that identified Petitioner’s truck
as the vehicle the eyewitness saw hit the bicyclist and further
identified Petitioner as the driver.
Accordingly, Petitioner is
denied relief on Ground Two sub-claim a.
- 20 -
Next, Petitioner takes issue with officer Boliak’s testimony
that immediately after placing the hat on Bacon’s head, Diaz
identified him as the driver of the truck who was involved in the
accident.
Memorandum at 11.
Petitioner argues that Boliak had
no personal knowledge of Diaz’s identification and only learned
about the identification through another officer.
Id.
The postconviction court entered an order denying Petitioner
relief finding as follows:
A review of the trial transcript reveals that
Corporal Boliak never testified as to any
statement made by anyone else regarding the
eye witness’s ability to identify Defendant
after placing the hat on his head. (T. 268).
Rather, Corporal Baliok only testified as to
his knowledge that the eye witness identified
Defendant and that another officer informed
him that the eye witness was able to identify
Defendant (T. 268). Accordingly, the claims
asserted by Defendant in Ground 1b are without
merit. Based on a review of the above
referenced trial transcript, the Court finds
that even if Corporal Boliak’s trial testimony
amounted to inadmissible hearsay and trial
counsel were found to be ineffective for
failing to object to Corporal Boliak’s trial
testimony that Defendant was identified as the
driver once a hat was placed on Defendant’s
head, Defendant cannot demonstrate that there
is a reasonable probability that, but for
counsel’s errors, the result of the proceeding
would have been different.
Exh. 10g at 5-6 (emphasis added).
The Court finds that the State courts’ decisions were neither
contrary to, nor an unreasonable application of Strickland.
- 21 -
Nor
did the postconviction court’s decision amount to an unreasonable
determination of the facts based on the evidence presented.
postconviction
court
applied
the
Strickland
standard
Petitioner’s claim of ineffective assistance of counsel.
postconviction
court
reasonably
determined
that
The
to
The
counsel
performance did not cause Petitioner prejudice because the record
showed that Corporal Baliok did not testify as Petitioner claimed
he did, i.e. that “immediately after placing the hat on Bacon’s
head, Diaz identified him as the driver of the truck who was
involved in the accident.”
Boliak testified regarding his own
knowledge of Diaz’s identification of Petitioner Bacon as the
driver.
Accordingly, Petitioner is denied relief on sub-claim b
of Ground Two.
Third,
Petitioner
contends
that
“Boliak
testified
that
Clements told him how long Bacon had been home before the police
arrived, along with ‘other information’.”
Memorandum at 11.
Petitioner contends Clements testified that she went to bed and
didn’t know what time Bacon arrived home so the causal link between
Bacon’s arrival at the residence and the time of the crash was
only introduced through Boliak’s hearsay testimony.
In
denying
Petitioner
relief
postconviction court found as follows:
- 22 -
on
this
Id.
claim,
the
The record reflects that Corporal Boliak
testified
that
Defendant’s
roommate
had
provided him with information regarding the
amount of time that Defendant had been home
prior to law enforcement’s arrival at the
residence.
(T. 269).
Corporal Boliak did
not testify as to what this information was
nor anything that was said by Defendant’s
roommate.
Corporal Boliak testified that
based upon the information obtained from
Defendant’s roommate, he believed that they
had found the driver of the vehicle from the
criminal incident (T. 269-70). Based on a
review
of
the
above
referenced
trial
transcript,
the
Court
finds
that
the
referenced trial testimony of Corporal Boliak
concerning his questioning the roommate as to
how long Defendant had been at the residence
before police arrived, does not rise to the
level of hearsay by inescapable inference.
However,
even
if
the
referenced
trial
testimony of Corporal Boliak were hearsay by
inescapable
inference,
Defendant
cannot
demonstrate that there is a reasonable
probability that, but for counsel’s errors,
the result of the proceeding would have been
different.
Therefore,
even
if
trial
counsel’s performance was deficient as alleged
in Defendant’s Ground 1c, trial counsel cannot
be found to have been ineffective because
Defendant cannot demonstrate prejudice under
Strickland.
Exh. 10g at 6-7.
The Court finds that the State courts’ decisions were neither
contrary to, nor an unreasonable application of Strickland.
Nor
did the postconviction court’s decision amount to an unreasonable
determination of the facts based on the evidence presented.
postconviction
court
applied
the
- 23 -
Strickland
standard
The
to
Petitioner’s claim of ineffective assistance of counsel.
The
postconviction court reasonably determined that Boliak’s testimony
concerning the time Bacon arrived home, which he learned from
Clements,
did
not
constitute
hearsay
testimony.
Thus,
the
postconviction court reasonably determined that defense counsel
could not be deemed ineffective under the Sixth Amendment for
failing to raise a meritless motion.
Chandler v. Moore, 240 F.3d
907, 917 (11th Cir. 2001) (counsel is not ineffective for failing
to
raise
a
non-meritorious
motion).
Additionally,
the
postconviction court noted counsel’s performance did not cause
Petitioner prejudice.
Accordingly, Petitioner is denied relief
on sub-claim c of Ground Two.
Ground Three
Petitioner challenges the verdict form used in his case and
submits that the general verdict form violated his Due Process
rights.
Petition at 8.
Specifically, Petitioner alleges that he
was charged in a two-count information with leaving the scene of
an accident under Florida Statute § 316.027.
Memorandum at 14.
Petitioner states that the statue provides that leaving the scene
of an accident involving injury is a third-degree felony, whereas
leaving the scene of an accident involving death is a first-degree
felony.
Id.
According to Petitioner, the information alleged
both injury and death in the alternatives.
- 24 -
The jury returned a
general verdict of leaving the scene of a crash involving death or
injury.
Petitioner argues that as a result, the verdict only
supports a conviction of the lesser third-degree offense and the
related sentence not to exceed five years imprisonment.
In
Response,
Respondent
initially
argues
that
any
issue
concerning the verdict form concerns a matter of state law for
which federal habeas corpus relief is not available.
33.
Response at
Alternatively, Respondent argues that Petitioner did not
exhaust the federal dimension of his claim before the State court
and consequently Ground Three is now procedurally defaulted. Id.
at 34.
Moreover, Respondent points out that Petitioner agreed to
the general verdict form at trial and did not object to the form,
which was necessary to preserve any alleged error.
Id. at 34, n.
11.
Turning to the merits, Respondent argues that the verdict
form
revealed
in
count
one
that
the
jury
flatly
rejected
Petitioner’s hypothesis of innocence that he was not driving his
truck at the time the victim was struck and killed, finding him
guilty of DUI manslaughter.
Id. at 36 (citing Exh. 10b at 18).
Contrary to Respondent’s arguments that Ground Three raises
only an issue with State law for which federal habeas relief does
not lie, Petitioner raises a federal due process challenge and
cites to Yates v. U.S., 354 U.S. 298 (1957) and Apprendi v. New
Jersey, 530 U.S. 466 (2000) in support of his claim.
- 25 -
However, the
Court agrees with Respondent that the claim is not exhausted and
is now procedurally defaulted.
As discussed above, a claim may be procedurally defaulted
when a state court correctly applies a procedural default principle
of state law and concludes 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
procedurally defaulted in state court.
claim
would
now
be
Id. at 1303.
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”
“prejudice” resulting therefrom.
(2006); Mize, 532 F.3d at 1190.
for
the
default
and
actual
House, 547 U.S. 518, 536-537
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
- 26 -
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
procedurally
prejudice,
may
defaulted
if
review
obtain
claim,
is
miscarriage of justice.
federal
without
necessary
habeas
a
to
review
showing
correct
a
a
cause
of
of
or
fundamental
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.
This
exception
Schlup v. Delo, 513 U.S. 298, 327 (1995).
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.
327.
- 27 -
Schlup, 513 U.S. at
In Petitioner’s Rule 3.850 motion, he did not alert the State
court to any federal dimension of this claim.
Instead, Petitioner
argued that the he received an illegal sentence due to the nonspecific verdict form.
Exh. 9.
The State responded accordingly
and argued that the verdict form indicated that the jury found
Petitioner guilty on count one of DUI Manslaughter.
4.
Exh. 10 at
The State further responded that the jury instructions read
to the jury were in accordance with the Standard Florida Jury
Instructions, which did not require the jury to make a specific
finding as to whether the crash involved death or injury.
Id.
Due to Petitioner’s failure to raise the federal dimension of his
claim before the State courts, Petitioner failed to exhaust Ground
Three.
Bailey, 172 F.3d at 1302.
Consequently, Ground Three is
now procedurally defaulted under Florida law.
Petitioner has not
established cause, prejudice, or a fundamental miscarriage of
justice to overcome the procedural bar.
Alternatively, Petitioner is denied relief on the merits of
Ground Three.
Petitioner’s defense attorney did not object to the
verdict form.
Thus, this Court reviews for plain error when there
is no objection to the verdict form before the jury retires to
deliberate.
United States v. Davis, 841 F.3d 1253, 1260 (11th
Cir. 2016) (citing Fed. R Crim. P. 30(d); see, e.g., United States
v. Mitchell, 146 F.3d 1338, 1342 (11th Cir. 1998) (“Because [the
- 28 -
defendant] did not raise objections to the [verdict form] we review
. . . for plain error.”)).
To show plain error, a defendant must
show that: (1) an error existed, (2) it was plain, (3) the error
effected his substantial rights, and (4) it seriously affected the
fairness,
integrity
proceedings.
or
public
Id. at 1260-61.
reputation
of
the
judicial
Petitioner has shown no error with
the verdict form in this case, much less an error that affected
his substantial rights or the integrity of the proceedings.
The verdict form provided the jury with three options under
count one: (a) The defendant is guilty of DUI Manslaughter; (b)
The defendant is guilty of the lesser included offense of Driving
While Under the Influence; and (c) The defendant is not guilty.
Exh. 3.
Bacon
The jury checked beside option (a) finding Petitioner
guilty
of
DUI
Manslaughter.
The
trial
judge
properly
instructed the jury regarding the DUI manslaughter count.
The
jury understood that if they did not believe Petitioner caused the
death of the victim, then they could find Petitioner guilty of
driving while under the influence, or not guilty.
See Exh. 3
(verdict form); Exh. 10c at 343-344 (jury instructions).
The
verdict form properly coincided with the Information that charged
Petitioner with DUI manslaughter.
Undisputed evidence presented
at trial supported the finding that the victim was killed from the
incident, not merely injured.
The jury weighed the evidence and
- 29 -
evidently
found
the
witnesses’
testimony
more
credible
than
Petitioner’s testimony that he did not drive his vehicle on the
night of the incident.
Because Petitioner has not shown any error
with the verdict form, Petitioner is, in the alternative, denied
relief on the merits of Ground Three.
Grounds Four and Six
In
Grounds
Four
and
Six,
Petitioner
raises
ineffective
assistance of defense counsel claims related to counsel’s alleged
failure to move for a judgment of acquittal.
The Court will
address Grounds Four and Six together because the underlying
portion of these Strickland claims concern sufficiency of the
evidence.
In Ground Four, Petitioner argues defense counsel rendered
ineffective assistance in violation of his Sixth Amendment rights
by failing to challenge the sufficiency of the evidence on the
“knowledge” element of the leaving the scene of an accident charge.
Petition at 10.
Petitioner submits that “there was no proof that
the driver of the truck ever saw the victim.”
Memorandum at 16.
Additionally, Petitioner argues that he was “highly intoxicated”
so he would not have perceived what the other witnesses saw.
Id.
at 18.
In Ground Six, Petitioner faults his defense attorney for
failing to move for a judgment of acquittal on the DUI manslaughter
- 30 -
count.
Petition at 14.
Petitioner argues that the evidence was
insufficient to establish that he caused the fatal accident.
Id.
Respondent argues that Petitioner has not shown the state
decision rejecting his claim was contrary to or an unreasonable
application of Strickland, or was a decision that resulted in an
unreasonable determination of the facts in light of the evidence
presented.
Response at 38-47.
Respondent further points out that
Petitioner’s defense attorney did in fact move for a judgment of
acquittal on the DUI manslaughter count and the leaving a scene of
an accident count, which the trial court rejected.
Exh. 10c at
257, 260.
The Court agrees with Respondent that Petitioner exhausted
Grounds Four and Six to the extent he raised the claim in his Rule
3.850 motion as his third claim for relief.
postconviction
incorporating
findings.
court
by
denied
reference
Petitioner
the
State’s
Exh. 10 at 8.
relief
on
response
the
as
The
claim
its
own
See Exh. 10g at 7 (order denying relief); see also Exh.
10 at 4-5 (State’s Response to Rule 3.850).
the adverse result.
Petitioner appealed
Exh. 11.
The Court finds that the State courts’ decisions were neither
contrary to, nor an unreasonable application of Strickland.
Nor
did the postconviction court’s decision amount to an unreasonable
determination
of
the
facts
based
- 31 -
on
the
evidence
presented.
Although incorporating by reference the State’s response in its
order, the Strickland standard was the applicable standard applied
to
reject
Petitioner’s
claims
of
ineffective
assistance
of
counsel.
Initially, the record refutes Petitioner’s claim that defense
counsel rendered ineffective assistance in failing to move for a
judgment of acquittal on the DUI manslaughter count.
To the
contrary, the record reveals that defense counsel moved for an
acquittal on the DUI manslaughter and the leaving the scene of an
accident counts.
Exh. 10c at 257.
In response to defense
counsel’s motion, the prosecutor reviewed the evidence presented.
Id. at 258-260.
motion.
The trial court then denied defense counsel’s
Id. at 260.
Thus, Petitioner is denied relief on Ground
Six to the extent that the record clearly refutes Petitioner’s
claim that counsel was ineffective in failing to move for an
acquittal on the DUI manslaughter count.
Turning
to
Ground
Four,
Petitioner
argues
that
defense
counsel rendered ineffective assistance by failing to move for a
judgment of acquittal on the “knowledge” element of the leaving
the scene of the accident count because no evidence was presented
that the driver of the truck knew he hit the victim.
To determine
sufficiency of the evidence under Florida law, a court considers
whether, “after viewing the evidence in the light most favorable
- 32 -
to the State, a rational trier of fact could find the existence of
the elements of the crime beyond a reasonable doubt.”
v. State, 863 So. 2d 271, 283 (Fla. 2003).
Johnston
Petitioner was
convicted of leaving the scene of a crash involving death under a
provision of the Florida Statutes that sets forth the following
four elements: (1) Bacon was the driver of a vehicle involved in
a crash; (2) Bacon knew or should have known that he was involved
in a crash; (3) Bacon knew or should have known of the injury to
or death of a person; and (4) (a) Bacon willfully failed to stop
at the scene at the crash or as close to the crash as possible and
remain there until had given “identifying information” to the
injured person and to any police officer investigating the crash,
or (b) Bacon willfully failed to render “reasonable assistance” to
the injured person if such treatment appeared to be necessary or
was requested by the injured person.
State v. Mancuso, 652 So.
2d 370, 372 (Fla. 1995) (“criminal liability under section 316.027
requires proof that the driver charged with leaving the scene
either knew of the resulting injury or death or reasonably should
have known from the nature of the accident.”); see also
at 340-341 (jury instructions).
Exh. 10c
Significantly, what Petitioner
fails to consider in Ground Four is that the knowledge element is
satisfied when there is evidence supporting the finding that the
defendant “knew or should have known” that he or she was involved
- 33 -
in the crash.
The trial judge instructed the jury accordingly.
See Exh. 10 at 340.
A review of the record confirms sufficient evidence was
presented to the jury to rationally support Petitioner Bacon’s
conviction on this count.
The jury heard testimony from Maria
Elizabeth Hernandez, the victim’s fellow cyclist, that the victim
had a flashing bright light attached to her bike.
Exh. 10c at 71.
Other drivers including Carlos Diaz and Emily Weston testified
that they noticed the bicyclists due to the flashing light on the
bike prior to the incident.
Id. at 85 (Weston); Id. at 109-110
(Diaz noting the flashing light on the bike in the bike lane).
Emily Weston further testified that she heard a loud thud.
at 85.
Id.
Specifically, Weston testified:
And then, as I was driving, all of a sudden,
I heard a really loud thud or whatever, and I
still didn’t really—nothing really registered
at that time. And then, all of a sudden, the
truck was way ahead of me. And we had been
going the same speed. So it was weird that
he was that far ahead of me all of a sudden.
So I kind of, you know, I was like, okay, I’m
going to turn around and just make sure
nothing happened. So I turned around. I came
back. And when I pulled up, there was a body
there.
Id.
Diaz also testified that after he saw the truck’s right front
headlight blink out, the truck picked-up speed.
Id. at 110-111.
Officer Spina, the first officer to arrive at the crime scene,
- 34 -
testified that “[i]t looked like a bomb went off in the road.
There was material scattered all over the road, paper, Styrofoam,
plastic, lenses, car lens.
It was just like someone emptied
garbage in the middle of the road . . . There was an individual
lying on the road in the bike path.
Id. at 95.
Spina also
identified the people who were present at the scene when he arrived
and testified that Diaz arrived within moments after his arrival.
Id. at 95-98.
Officer Paul Boliak, the officer who first arrived
at Petitioner’s house after running a slightly modified tag number
search based on the tag Diaz provided, noted that the black pickup truck was parked in the drive way and pulled up “pretty close”
to the garage door or a wall.
Exh. 10c at 140-141.
The truck had
damage to the right front side, where the headlight, corner marker
lamp is and the front grille had significant damage with a lot of
food, specifically pasta, mixed in the grille area and the head
light area.
Id. at 141-142.
Officer Boliak testified he believed
this was the suspect vehicle because there was also pasta at the
crime scene because the victim was carrying a to-go box from the
Italian restaurant where she worked.
Id. at 142.
Additionally,
Boliak testified there were some scrapes and impact on the paint
that looked like the truck had hit a bicycle and a human body.
Id.
Thus,
sufficient
evidence
was
- 35 -
presented
at
trial
that
Petitioner
Bacon
knew,
or
should
have
known,
that
the
crash
happened and that he did not stay at the scene.
Contrary to Petitioner’s assertions, voluntary intoxication
does not negate the knowledge element.
Olguin v. State, 903 So.
2d 270 (Fla. 3d DCA 2005) (discussing voluntary intoxication is
not a defense to leaving a scene of an accident involving death).
Defense counsel cannot be deemed ineffective under Strickland for
failing to make a specific argument about the knowledge requirement
because such an argument would have been meritless when considering
the evidence.
Accordingly, Petitioner is denied relief on Ground
Four.
Ground Five
Petitioner submits that “a state key witness . . . changed
her testimony on a key fact.”
Petition at 12.
Petitioner argues
the “state court’s denial of his newly discovered evidence claim
was
contrary
to
established law.”
or
an
unreasonable
Memorandum at 18.
application
of
clearly
Specifically, Petitioner’s
roommate and girlfriend at the time, Dawn Clements, testified at
trial as a rebuttal witness and denied driving Bacon’s truck that
night.
Id. at 19.
Clements also apparently testified that she
had long hair, which she wore in a ponytail.
Id.
Later, however,
Petitioner submits that Clements admitted that she provided false
testimony about the length of her hair at trial.
- 36 -
Id.
Respondent asserts that a newly discovered evidence claim
does not constitute a sufficient ground for relief in a § 2254
petition.
claim
is
Petitioner
Response at 51.
unexhausted
failed
to
Respondent further argues that the
and
now
alert
dimension of his claim.
procedurally
the
Id.
State
defaulted
courts
to
the
because
federal
In the alternative, Respondent
addresses the merits of the claim and argues Clements’ post-trial
testimony that she was mistaken about her hair length is not the
type of evidence that would produce an acquittal.
Id. at 55.
The Court agrees that Ground Five is unexhausted and now
procedurally defaulted to the extent Petitioner did not alert the
state court to the federal dimension of his claim.
See Exh. 9 at
14 (Rule 3.850 motion- fourth claim for relief); Exh. 11 at 26-27
(appellate brief on denial of Rule 3.850 motion).
Instead, Ground
Five was presented to the state court in terms of a violation of
State law only, i.e. that such evidence would have produced an
acquittal.
Exh. 9 at 15-16.
Petitioner has not shown cause,
prejudice, or a fundamental miscarriage of justice to overcome the
procedural default of Ground Five.
Supra at pp. 25-26.
Turning to address the merits, Respondent is correct that a
free-standing actual innocence claim based on newly discovered
evidence is not a ground for federal habeas relief.
Herrera v.
Collins, 506 U.S. 390, 400-402 (1993); McQuiggin v. Perkins, ___
- 37 -
U.S. ___, 133 S. Ct. 1924 (2013) (discussing actual innocence
gateway claim to excuse an otherwise barred petition under the
AEDPA statute of limitations).
In McQuiggin, the Supreme Court
cautioned “that tenable actual-innocence gateway pleas are rare:
‘[A] petitioner does not meet the threshold requirement unless he
persuades the district that, in light of the evidence, no juror,
acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.’”
Id. (citations omitted).
“[F]ederal habeas courts sit to ensure individuals are not
imprisoned in violation of the Constitution- not to correct errors
of fact.”
Herrera, 506 U.S. at 400.
Even if Petitioner could
assert a free-standing actual innocence claim, a review of the
evidence presented to the jury reveals that the jury made a
rational decision to convict Petitioner.
Clements’ testimony
concerning the length of her hair would not have obliterated her
testimony that she did not drive Petitioner’s truck that night, or
Diaz’s 100% certain profile identification of Petitioner as the
driver of the truck that hit the bicyclist on the night of the
incident.
Petitioner’s truck was undisputedly involved in a crash
that evening.
The jury simply did not find Petitioner’s testimony
that he remained at home and did not drive his truck that evening
credible.
Accordingly, Ground Five is denied on the merits in
the alternative.
- 38 -
ACCORDINGLY, it is hereby
ORDERED:
1.
The Petition for Writ of Habeas Corpus (Doc. #1) is DENIED
as to Grounds One, Two, Four, and Six for the reasons set forth
herein.
Grounds Three and Five are DISMISSED as procedurally
barred and in the alternative denied on the merits.
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 a
substantial showing of the denial of a constitutional right.”
U.S.C. § 2253(c)(2).
demonstrate
court’s
that
assessment
To make such a showing, Petitioner “must
reasonable
of
28
the
jurists
would
constitutional
find
claims
the
district
debatable
or
wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) or, that “the
issues presented were adequate to deserve encouragement to proceed
- 39 -
further”,
Miller-El
v.
(2003)(citations omitted).
Cockrell,
537
U.S.
322,
335-36
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
of March, 2017.
SA: ftmp-1
Copies: All Parties of Record
- 40 -
28th
day
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